Billy M

Hi all,

I've recently found this forum and it's a goldmine of useful information. Apologies in advance for such a long post, but hopefully someone can offer some advice as I don’t seem to be getting a great deal from the Border Agency! I wonder if anyone is in a similar situation and can advise, or just has a little more knowledge than us of the rules & regs surrounding UK right of abode and citizenship...

Anyway, some background – I am a British citizen and live in the UK, but my girlfriend is a New Zealand resident and lives there (yes, it is difficult!!). We’re trying to decide the right thing for her to apply for so that she can move over here, and indeed if it’s likely that she’ll succeed in any of those applications.

Here are her circumstances...

So, here are a few questions....

Thanks loads for any advice any of you can offer - it would be a massive, massive help as we’re beginning to tear our hair out, and I can ill-afford to lose any more hair!!

Cheers
Billy M

JAJ

Her mother was a Citizen of the UK & Colonies by descent in 1977. She only became a British citizen otherwise than by descent in 1983 (when full protection was introduced for Crown Service - there was only partial protection in the 1948 Act).

As a result, since here parents were not in UK-recruited Crown Service when she was born in PNG in 1977, then she would not have acquired CUKC status. She has to demonstrate this as part of the requirements to register as a British citizen now under UKM.

You should look up the British Nationality Act 1948 (section 5) to verify this. It says, as follows:


5.—(i) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth:

Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless—

(a) that person is born or his father was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects; or

(b) that person's birth having occurred in a place in a foreign
country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary
of State, later; or

(c) that person's father is, at the time of the birth, in Crown service under His Majesty's government in the United Kingdom; or

(d) that person is born in any country mentioned in subsection of section one of this Act in which a citizenship law has then taken effect and does not become a citizen thereof on birth.

It's available at http://www.statutelaw.gov.uk

Subclause (c) does not work, if her father was not on Crown Service. And subclause (d) may not work either, because it seems that PNG was not added to section 1(3) until 1980 and even if it was added sooner, the citizenship laws of post-1949 independent colonies were never "declared to have taken effect" (you would have to verify this too, if important).

There has been some discussion of whether Occupied Germany would count as a place where "His Majesty then has or had jurisdiction over British subjects;". I am not aware of the Home Office accepting this, but it might be the basis for an interesting court case. Note that the Federal Republic of Germany was already in place by 1950 ... it might be easier to argue this for the immediate post-war years but still not certainty of success.

So it doesn't look like there is any basis to claim citizenship via UKM registration, or Right of Abode. Best options seem to be an Ancestry Visa (which she knows about) or a spouse/partner visa. There are pros and cons to both choices, although both lead to permanent residence and ultimately British citizenship.

By the way - if she has any siblings born on 1.1.1983 or later, the siblings are most likely British citizens by descent.

JAJ

By the way, are you (and she) aware that unless she upgrades her NZ citizenship to "full" NZ citizenship, she will not be able to pass on her NZ citizenship to any children born in the UK.

http://britishexpats.com/wiki/New_Ze...hip_by_Descent

Are you saying her mother hasn't become a New Zealander, any particular reason why not?

Billy M

Hi JAJ,

Many, many thanks for the very helpful posts - my apologies for not thanking you earlier, but I've been away with work for almost 2 weeks. I hope you don’t think I’ve been rude not replying earlier. But I have been keeping up my research on this subject – I have given myself square eyes from so much reading of this site, the ‘other’ immigration forum, plus the UKBA & visa websites!!

I feared that you would confirm my fears - that she most likely does not have the right to citizenship or right of abode. It is frustrating obviously, with a British mother and grand father.

As you confirmed, I figured it hung on her mother being born outside the UK and thus being a citizen by descent. The bit you mention about whether or not they would accept a British army hospital in Germany as being somewhere that His Majesty then has or had jurisdiction over British subjects is what I have been trying to get an answer to from the UKBA. I had hoped that this may be seen as being ‘in Britain’ as it were, given he was serving in the British Army. Do you think it would be worth an application anyway, or is that too optimistic? And if it fails would it go against any future application for an ancestry/fiancé/spouse visa?

An additional point that I’m not sure is relevant, but worth mentioning – they all (her, her mother and her father) came to live in the UK when she was 3 until she was 5, from June 1980 until April 1982. Her mother obviously had a British passport, but her father (the New Zealander) initially got a spouse visa valid for 1 year, then after 1 year upgraded to ILR. We have the old passports with relevant stamps and the letter confirming his ILR. I assume this does not alter anything?

As for your questions – yes, she has both a brother and a sister born after 01/01/83. You can imagine how frustrated she is to hear that they are eligible for citizenship and she isn’t!

After what you mentioned about her ‘full’ NZ citizenship, she called up their version of our UKBA to find out. As you say she would not be able to pass on her NZ citizenship to any children she and I may have if born here in the UK. It is as it says in the link you provided, she can apparently upgrade herself to ‘full’ citizenship to be able to gain that right for the sum of roughly $450 – it would seem to be a money exercise! Obviously her existing daughter is fully NZ having been born there to an NZ mother.

And yes, her mother has become a New Zealander. I believe she is dual nationality, British and NZ.

I’ve been doing some research on the ancestor/fiancé visa front in case we are not be able to go down the ROA/citizenship route. A couple of questions if I may (sorry to ask again)...

• What are the pros and cons of these, which one would be better?
• We are keen to get married, but how far back will they want to see evidence of a relationship for a fiancé visa? We first got together 12 years ago, but have only relatively recently rekindled things. So fortunately we have photos from back then and a fair bit of correspondence in the intervening years, and a lot from more recently.
• Can her daughter come with her as a dependant on both visas? And if so, is she considered to be fully entitled to schooling/NHS care?
• Does having previously had an ancestor work visa preclude her from getting another one?
• Is it straightforward to move from ancestor to spouse visa at some point in the future? What if she hasn’t worked while here?
• She is studying to become a nurse at the moment, so has no money to speak of – if applying for an ancestor visa can she say she will be living with her boyfriend when in the UK and he will support her and her child (and provide my bank statements/mortgage), thus avoiding the problems of her having no money? Or will the mention of a boyfriend in the UK set off alarm bells?

I’m sorry for so many questions. I have so many in my head, but will try and ration my questions!!!

Anyway, thanks again for the earlier answers, much appreciated – I feel like I owe you a few beers!!

Cheers
Billy M

JAJ

It is likely she could have been registered as a British citizen before she was 18, if an application had been made at the time, in these circumstances (because her mother became British otherwise than by descent in 1983). There is a lot of flexibility in the law for those under 18. Not so much for adults.

http://www.ukba.homeoffice.gov.uk/si.../nisec2gensec/

Look at the Home Office document on EXTRA-TERRITORIAL JURISDICTION to see their current thinking on the subject. It is not set in stone and could be changed if the Home Office lawyers thought it was incomplete, but that is the case now.

They have reduced the fees for UKM so if she wanted to make an application then she could - HOWEVER, it would need to be well prepared and refer to the law as it is, not as you or she think it ought to be.

http://www.ukba.homeoffice.gov.uk/br...britishmother/

I cannot tell you if it would prejudice a spouse/ancestry visa application. It ought not to, as long as it wasn't fraudulent, but you never know. Alternatively, she could get the spouse/ancestry visa first and apply for UKM later on.

You and she may decide that it may be simpler and quicker to get a spouse visa anyway, considering she can become naturalised British this way in a few years.


What was her status at the time? She wasn't a UK & Colonies citizen, and New Zealanders were subject to immigration control, so she must have had a visa/ILR of her own.

Alternatively - is it possible that she was registered as a UK citizen with the Home Office in that period?

If interested, they should apply for passports now unless they have a strong reason not to (eg if they have NZ security clearances they want to keep). The reason is that their eligibility hinges on proving that their grandfather was in UK-recruited Crown Service when their mother was born and that is not necessarily going to be quick to do.

Note that from http://www.citizenship.govt.nz that one of the requirements (as well as 5 years residence, which she has) is that she should intend to live in NZ. In other words, she can contemplate leaving NZ only after the process is done and it may not be advisable to get a UK settlement visa beforehand.

Acquisition of NZ citizenship has never caused loss of British citizenship.


You need to find a good UK immigration solicitor to answer these questions, definitively. Normally a spouse visa is preferable to ancestry, because a. there is no specific requirement to work (which there is with ancestry) and b. you get ILR in 2 years rather than 5.

The main disadvantage of spouse vs. ancestry is that if the relationship ends before ILR you may have to leave the United Kingdom. If the ancestry visa still existed it could be applied for (but only back in NZ, as far as I know) and the 5 year clock for ILR would start from scratch.

If you start with ancestry then unless you qualify for spouse status quickly, it is normally preferable to remain on ancestry. The reason is that if you switch from ancestry to spouse, you cannot count the years on ancestry towards the waiting time for ILR as a spouse.

If you're not legally married and haven't lived together for a period of time (2 years or so) then you may not be eligible for spouse, so the decision spouse or ancestry depends on your plans for the future and commitment, etc. There is a fiancee visa that allows marriage in the UK and an in-country switch to spouse, but that has its own issues (I am not sure if it's possible to work on this visa).

As far as I know, spouse visa holders can use the NHS and her daughter, as a dependent visa holder, can attend school. Same goes for ancestry visas, as far as I know, but you need to verify all of this.

Ancestry is a visa leading to settlement so as far as I know they are not too concerned if someone has a partner in the UK. You should look at the "Policy and Law" section of http://www.ukvisas.gov.uk

Speaking of her daughter, is she solely responsible for the care of the child and if there is another parent with legal rights over her, does he consent to the child leaving NZ?

Fortunately the daughter, if she is 6, should be age 18 long before ILR is granted either way. There can be complications if dependent visa holders become adults before ILR is obtained.

Billy M

Hi JAJ,

Many thanks for such a copmprehensive reply, it is hugely appreciated.

Yes, I have found the bits about how it could have been done when she was a child/under 18 – it’s frustrating her mother never did that, to say the least!!

I’ve had a read of the EXTRA-TERRITORIAL JURISDICTION document and also the BRITISH NATIONALITY SUMMARY from the same link – interestingly it mentions ‘the question of the status of children born in a foreign country while their father was serving there’ under para 6, The 1918 Act, referring to the 1914 Act, but doesn’t clear it up. Also para 13, BNA 1948 (which would have been in force when her mother was born in Germany in 1950), but I got a bit confused by this time!! I also see from the BRITISH NATIONALITY ACTS link in para 8, British Nationality and Status of Aliens Act 1943 it says it ‘relaxed the law relating to the nationality of children born abroad of British fathers’ but doesn’t give any more detail. Finally, in MANDATED TERRITORIES AND TRUST TERRITORIES if I read it right having been born in PNG in Jan 1977, she was 16 months too late! Again, I’m not sure of this, but irrelevant anyway given her date of birth I think.

No, we will certainly not be doing anything fraudulently in any application we make. It needs to be done right or not at all!

Yes, as you say I think it looks like we will probably be going down the fiancé/ancestry route initially and then later on go for spouse/naturalisation/citizenship. To be honest the right of abode and citizenship routes are not looking too promising and could take a long while to only end up proving fruitless (and clearly a bad idea if there is a even a small chance that failure may prejudice a later application). At least we have reasonably high confidence of succeeding in applying for a fiancé or ancestry visa – and they appear to both be simpler and quicker to get.

I’m not sure - will find out and get back to you what visa she had, but she wasn’t registered as a UK citizen (if only life was that simple!)...

Thanks, I’ll pass it on.

Yes, she is aware that she’d need to do that before any British visa stuff if she wants to do it. I assume they have similar arrangements to us in that any kids we may have would have the right to get some form of visa if they ever wanted to go to NZ. It’s on my (ever growing) list of other things I plan to look into.

We’re not married and haven’t lived together for 2 years, this is ultimately why we’re doing all this – so we can be together. Yes, with the fiancé visa it lasts for 6 months, within which you have to marry and change to a spouse visa. We couldn’t get a spouse visa at the moment as we’re not married and also couldn’t get the unmarried visa as we’ve not lived together for 2 years as if we were married.

As you say, on the fiancé visa she cannot work – but that is OK as it’s only for 6 months and once on a spouse visa after that she can then work if she wants to. Are there any other issues with the fiancé visa that you’re aware of, that I have missed?

So as I understand it we would have to go fiancé-spouse-ILR-citizenship, which is clearly going to be expensive for her and her child, by my working out it totals £5,279 from start to finish! Not a problem, but this government department must make some serious money! I’ve not worked out the ancestry costs as I’m not sure whether she should simply remain on that for 5 years or transfer over to spouse when we marry.

Yes, this is as I was thinking. There being no requirement to work is handy as she may well not be working for the whole period, certainly not when she initially arrives. And clearly the sooner it all gets done the better, so 2 years (plus 6 months for fiancé) is better than 5.

If she was on an ancestry visa, am I right in my belief that after 5 years she would not get ILR if she hadn’t worked continuously? I assume in this case if she came on an ancestry visa she’d be wise to change to a spouse visa as soon as we’re married, if she wasn’t working?

Yes, I’ve heard rumours it may disappear – any ideas when that may happen or indeed if it is likely to happen?

Yes, I believe this to be the case too, but am finding it difficult to get that confirmed. I understand that the local council has an obligation to provide schooling to everyone who is legally living here. But I’m not yet 100% sure on that as I haven’t had it confirmed. I have private health with work, so once we’re married they would both get that through me, but until then they’d have to rely on the NHS.

That’s good news, I had presumed that they may see her as trying to cheat her way in to the country to be with her boyfriend, but maybe that’s not the case. I wonder if my money could be used to prove that ‘you can adequately support and accommodate yourself and your dependants without help from public funds’. Not sure about that one...

This is a good question!! Yes, she has been solely responsible since day 1 and has brought her up entirely on her own. Without going into too many details, the father pays no maintenance and has never looked after the daughter. He lives in another country and they have very little contact. However, they never went through the courts in the divorce/custody. All she has is an agreement with him and a counsellor’s report stating that they’ve agreed that she be the ‘day to day carer’. They are not on the best of terms and he may be awkward if his consent is required. It has the potential to be a stumbling block, I think! We are not yet sure what proof is required to show that she has sole responsibility.

Anyway, thanks again JAJ for all your help – it really is so helpful having some help and advice from someone who knows the system so well. Thank you very much.

Cheers
Billy M

JAJ

British Nationality and Status of Aliens Act 1914:
http://www.legislation.gov.uk/ukpga/...ntents/enacted

British Nationality and Status of Aliens Act 1943:
http://www.legislation.gov.uk/ukpga/...ntents/enacted

The 1918 Act isn't online but if you look hard enough, you can probably find a copy.


The Territory of Papua was an external Australian territory ... if she had been born there before Independence on 16 September 1975 she would have been an Australian citizen by birth (unless her parents were diplomats). The Territory of New Guinea (northern half of what's now PNG) was a mandated territory under Australian administration, not British. One could always try to argue that the jurisdiction of Her Majesty applied equally, but it would be harder.


Never assume anything! New Zealand does not have an "ancestry visa" like the United Kingdom.

If she does not upgrade her citizenship, and she has a child born in Britain, then the child will not be a New Zealand citizen and won't get NZ citizenship unless brought to NZ during childhood and naturalised. If the child stays in Britain up to becoming an adult, there is no right to immigrate to NZ.



Ancestry-ILR-citizenship for her plus daughter will still cost money, perhaps not as much but a significant sum.

I am not aware of other issues with the fiance visa - but you really need to talk to an immigration solicitor.

As to the choice, it really depends on whether you plan to get married soon. You can switch from ancestry to spouse so that might be the best option BUT if you are going to do that switch, then you need to do so sooner rather than later, in order to get ILR.

In other words:

- if you plan to get married soon, then arrive on a fiance or ancestry visa, get married and then switch to spouse (or get married in NZ and arrive on a spouse visa)

- if you don't plan to get married soon, or perhaps not at all, then ancestry is a better option. Even if you get married a few years down the line, it might be better for her to remain on ancestry and get ILR that way. With ILR, she could look to become a British citizen.



I don't know how periods of unemployment work in terms of getting ILR off ancestry. You could read the Immigration Rules and the Immigration Directorate Instructions - on the UKBA website. Or, discuss with a solicitor and get advice in writing.


It was talked about under the last government but nothing more came of it. It could disappear anytime - but it may never disappear.


Ask your local council. If they don't answer, in writing, talk to your local councillors.

NHS:
http://www.dh.gov.uk/en/Healthcare/E...able/DH_074374

also:
http://www.dh.gov.uk/en/Healthcare/E...able/DH_074381



If it not possible (or advisable) to get his consent, she may need an order from the New Zealand family courts to remove child from NZ. She may need advice from a family law practitioner in New Zealand.


Again, though - you really do need a UK immigration solicitor to work through all these issues. And you need to be prepared to pay for comprehensive advice, a quick phone call won't do. The Law Societies have lists of accredited immigration specialists - but you still need to do your own due diligence. There is a vast difference in the quality and experience of different solicitors. You could try (without recommendation) http://www.lauradevine.com

Billy M

Many thanks again JAJ,

Just wanted to let you know we're grateful for all the advice. Again, sorry for not replying sooner - I am a pilot and am often away from home with work, plus I had to recover from a friend's stag do!

But we have been looking into all the avenues you suggested, and doing plenty of research. We also emailed some questions to the UKBA Nationality Enquiries (having got nowhere really on the phone with them), but have not had a response from them yet.

There was a post on here last year (http://britishexpats.com/forum/showt...&highlight=ukm) which had a couple of posters with similar circumstances to ours. I sent them private messages/emails to see if they had ever got anything resolved, but unfortunately I've not heard back from them either.

Anyway, thanks again for the posts - much appreciated to get some good advice.

Will update you with any progress we make as and when it happens...

Cheers
Billy M

JAJ

Don't rely on ever getting an answer, if the question is too hard.

If you are serious about pursuing this route, you need to find a lawyer with experience in this situation (no, I can't recommend one) and prepare to make a formal application with a view to going to court if refused.

Applying for a British passport would be pointless as there is no statutory basis for issuing passports, so they can be refused for any reason. The way to approach it would normally be to apply for a Right of Abode stamp in her NZ passport. But discuss with lawyer when you find one.

Otherwise, assuming you never get a response from the Home Office, you need to look at other options.

And your partner does need to fix her NZ citizenship status, as mentioned.