Wrongly classified british by descent
Apr 11th 2013, 4:55 am
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Wrongly classified british by descent
I was born in Kenya in 1956 to British born parents. My birth was registered at the British High Commission in Nakuru 4 days after by birth.
My 2 children were born in Israel after 1983 and when they were 2 and 3 respectively I tried to register them as British citizens at the British Embassy in Tel Aviv - only to be told that this was not possible as I was condsidered British by Descent following changes in British Nationality Law in 1981. I was deeply shocked, but was told nothing could be done.
I recently made contact with an immigration lawyer to find out if my previous "downgrading" to British by Descent was , in fact, legal.
He claims that it was NOTfor the following reasons:
Section 14(b) applies to pre 1983 Citizens of the UK and Colonies (CUKC) where;
(i) He was a CUKC under section 5 of the BNA 1948. This cannot be the case with our client as she became a CUKC under section 4 of this Act.
(ii) He was a person who under any provision of the former nationality acts would have been considered a CUKC by descent. Again this provision does not apply as no CUKC under section 4 of the BNA 1948 was considered a CUCK by descent.
(iii) This subsection relates to CUKC’s who also had the Right of Abode. Those who had the Right of Abode by virtue of the following sections of the Immigration Act 1971 are re-classified as British Citizens by descent;
(1) Through section 2(1)b only (via parent or grandparent); or
(2) Through 2(1)b & 2(1)c (5 yrs residence) only; or
(3) Through being the wife of a person described in (1) & (2) above.
Our client’s mother did indeed have the Right of Abode through Section 2(1)b (Citizen of the UK and Colonies with mother born in the UK) but she also acquired the Right of Abode through Section 2(1)(d)(Commonwealth Citizen with a UK born parent). She therefore cannot have been re-classified as a British Citizen by descent under this section as she did not only have the Right of Abode through section 2(1)b only.
I am awaiting the Home Office's decision on my application and was wondering if anyone else has come across this problem ( I am told that my case is very rare) and if so - what was the outcome? If the outcome is positive (my lawyer thinks it will be) I would like to let other people, who may be in my position, know about it. It has been a MAJOR source of dismay and outrage for me for over 20 years.
My 2 children were born in Israel after 1983 and when they were 2 and 3 respectively I tried to register them as British citizens at the British Embassy in Tel Aviv - only to be told that this was not possible as I was condsidered British by Descent following changes in British Nationality Law in 1981. I was deeply shocked, but was told nothing could be done.
I recently made contact with an immigration lawyer to find out if my previous "downgrading" to British by Descent was , in fact, legal.
He claims that it was NOTfor the following reasons:
Section 14(b) applies to pre 1983 Citizens of the UK and Colonies (CUKC) where;
(i) He was a CUKC under section 5 of the BNA 1948. This cannot be the case with our client as she became a CUKC under section 4 of this Act.
(ii) He was a person who under any provision of the former nationality acts would have been considered a CUKC by descent. Again this provision does not apply as no CUKC under section 4 of the BNA 1948 was considered a CUCK by descent.
(iii) This subsection relates to CUKC’s who also had the Right of Abode. Those who had the Right of Abode by virtue of the following sections of the Immigration Act 1971 are re-classified as British Citizens by descent;
(1) Through section 2(1)b only (via parent or grandparent); or
(2) Through 2(1)b & 2(1)c (5 yrs residence) only; or
(3) Through being the wife of a person described in (1) & (2) above.
Our client’s mother did indeed have the Right of Abode through Section 2(1)b (Citizen of the UK and Colonies with mother born in the UK) but she also acquired the Right of Abode through Section 2(1)(d)(Commonwealth Citizen with a UK born parent). She therefore cannot have been re-classified as a British Citizen by descent under this section as she did not only have the Right of Abode through section 2(1)b only.
I am awaiting the Home Office's decision on my application and was wondering if anyone else has come across this problem ( I am told that my case is very rare) and if so - what was the outcome? If the outcome is positive (my lawyer thinks it will be) I would like to let other people, who may be in my position, know about it. It has been a MAJOR source of dismay and outrage for me for over 20 years.
Apr 11th 2013, 7:30 am
#2
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Re: Wrongly classified british by descent
An interesting question. Firstly, an Act of Parliament cannot be illegal (by definition) so the question is whether the Home Office interpretation of the law is legal.
The problem with this approach is twofold. Firstly:
1. The reason why Section 14 of the British Nationality Act doesn't say anything about those who had Right of Abode under section 2(1)(d) becoming British by descent is because these persons didn't become British citizens on 1.1.1983. So there was absolutely no need for them to have been mentioned in Section 14 of the Act.
If it had been decided back in 1981-82 that (non-U.K./Colonies) Commonwealth citizens with Right of Abode based on a parent should have become British citizens automatically, they absolutely would have been classed as British by descent.
2. Your case isn't "rare". If you win your argument, then anyone born before 1983 with a U.K. born parent becomes British otherwise than by descent on 1.1.83 and the consequence is the creation of probably hundreds of thousands of additional British citizens by descent, most of whom linked only to the United Kingdom by a grandparent. Since this would go against the entire tenor and ethos of the British Nationality Act 1981, I would expect the Home Office to fight this with every resource at its disposal.
In addition,
3. If there is an ambiguity in the law, then as far as I know courts often look at what was the intention of the relevant clause. But discuss further with your lawyer!
4. Is there any chance your parents were in U.K. recruited Crown Service (or designated equivalent) when you were born in Kenya? That could be enough to make you British otherwise than by descent from 1.1.1983
5. Did you make a formal application for your children to be registered as British citizens? If so, what does the refusal letter from the Home Office say? If you have special ties to the United Kingdom, these should have been taken into account regarding discretionary registration.
And by the way ... I very much doubt there was a British High Commission in Kenya in 1956, as it was a colony/protectorate in those days. High Commissioners only exist in independent Commonwealth countries. Colonies and protectorates have a Governor.
The problem with this approach is twofold. Firstly:
1. The reason why Section 14 of the British Nationality Act doesn't say anything about those who had Right of Abode under section 2(1)(d) becoming British by descent is because these persons didn't become British citizens on 1.1.1983. So there was absolutely no need for them to have been mentioned in Section 14 of the Act.
If it had been decided back in 1981-82 that (non-U.K./Colonies) Commonwealth citizens with Right of Abode based on a parent should have become British citizens automatically, they absolutely would have been classed as British by descent.
2. Your case isn't "rare". If you win your argument, then anyone born before 1983 with a U.K. born parent becomes British otherwise than by descent on 1.1.83 and the consequence is the creation of probably hundreds of thousands of additional British citizens by descent, most of whom linked only to the United Kingdom by a grandparent. Since this would go against the entire tenor and ethos of the British Nationality Act 1981, I would expect the Home Office to fight this with every resource at its disposal.
In addition,
3. If there is an ambiguity in the law, then as far as I know courts often look at what was the intention of the relevant clause. But discuss further with your lawyer!
4. Is there any chance your parents were in U.K. recruited Crown Service (or designated equivalent) when you were born in Kenya? That could be enough to make you British otherwise than by descent from 1.1.1983
5. Did you make a formal application for your children to be registered as British citizens? If so, what does the refusal letter from the Home Office say? If you have special ties to the United Kingdom, these should have been taken into account regarding discretionary registration.
And by the way ... I very much doubt there was a British High Commission in Kenya in 1956, as it was a colony/protectorate in those days. High Commissioners only exist in independent Commonwealth countries. Colonies and protectorates have a Governor.
Last edited by JAJ; Apr 11th 2013 at 7:33 am.
Apr 11th 2013, 9:07 am
#3
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Re: Wrongly classified british by descent
Thanks so much for your speedy and concise reply
To answer your questions:
4. Is there any chance your parents were in U.K. recruited Crown Service (or designated equivalent) when you were born in Kenya? That could be enough to make you British otherwise than by descent from 1.1.1983
No - my father worked as a jockey and racehorse trainer in Kenya until 1963.
5. Did you make a formal application for your children to be registered as British citizens? If so, what does the refusal letter from the Home Office say? If you have special ties to the United Kingdom, these should have been taken into account regarding discretionary registration.
Yes I did make a formal application to the British Embassy in Tel Aviv when my children were 2 and 3 respectively ( they are now 25 and 27). Living in Israel without the benefit of today's Internet I had no idea that changes had been made to my citizenship and was never informed of this by the British Embassy inTel Aviv. I have close ties to the UK - both parents were born in the UK andI lived there from 1963 til 1982. I gave proof of this to the Embassy but they still did not exercise diescretion in my favour (which my lawyer says they could have done) - they just said I had missed the deadline for registering my children as British and that was the end of it. I did not keep the letter they sent - only have written proof of them returning my original documents to me.
And by the way ... I very much doubt there was a British High Commission in Kenya in 1956, as it was a colony/protectorate in those days. High Commissioners only exist in independent Commonwealth countries. Colonies and protectorates have a Governor.
I checked my birth registration - it says " the British District Commission" and it confirms my registration as a British citizen.
My lawyer (highly reputable) says he has only come across one other case like mine in all his years of practice. (He , himself worked for the Home Office for many years) He successfully gained British Citizenship for teh children of his other client who was, like myself, born in Kenya - so I am still hopeful.
Thanks for your time!!
__________________
To answer your questions:
4. Is there any chance your parents were in U.K. recruited Crown Service (or designated equivalent) when you were born in Kenya? That could be enough to make you British otherwise than by descent from 1.1.1983
No - my father worked as a jockey and racehorse trainer in Kenya until 1963.
5. Did you make a formal application for your children to be registered as British citizens? If so, what does the refusal letter from the Home Office say? If you have special ties to the United Kingdom, these should have been taken into account regarding discretionary registration.
Yes I did make a formal application to the British Embassy in Tel Aviv when my children were 2 and 3 respectively ( they are now 25 and 27). Living in Israel without the benefit of today's Internet I had no idea that changes had been made to my citizenship and was never informed of this by the British Embassy inTel Aviv. I have close ties to the UK - both parents were born in the UK andI lived there from 1963 til 1982. I gave proof of this to the Embassy but they still did not exercise diescretion in my favour (which my lawyer says they could have done) - they just said I had missed the deadline for registering my children as British and that was the end of it. I did not keep the letter they sent - only have written proof of them returning my original documents to me.
And by the way ... I very much doubt there was a British High Commission in Kenya in 1956, as it was a colony/protectorate in those days. High Commissioners only exist in independent Commonwealth countries. Colonies and protectorates have a Governor.
I checked my birth registration - it says " the British District Commission" and it confirms my registration as a British citizen.
My lawyer (highly reputable) says he has only come across one other case like mine in all his years of practice. (He , himself worked for the Home Office for many years) He successfully gained British Citizenship for teh children of his other client who was, like myself, born in Kenya - so I am still hopeful.
Thanks for your time!!
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Apr 11th 2013, 9:01 pm
#4
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Re: Wrongly classified british by descent
Your children were apparently eligible for registration as British citizens under section 3(2) of the British Nationality Act 1981. At the time, the deadline to make an application was within 12 months of birth. The Home Secretary had discretion to accept a late application up to the child's 6th birthday.
On January 13, 2010, the deadline was extended to age 18.
Did the application you made at the British Embassy get forwarded to the Home Office in the United Kingdom? The Embassy had absolutely no right to determine applications for British nationality. Its role at the time was merely to forward them to the Home Office for consideration.
If you have evidence that an application was made, but not given full consideration by the Home Office, the best option may well be to make the argument that the application is still undetermined and should be decided now. Under current policy, a pre-2010 section 3(2) application for a child under 6 should normally be granted.
See Chapter 6 of the Nationality Instructions which discusses undetermined citizenship applications.
And discuss with your lawyer!
And again - by the way, your were a Citizen of the U.K & Colonies automatically, not by registration.
On January 13, 2010, the deadline was extended to age 18.
Did the application you made at the British Embassy get forwarded to the Home Office in the United Kingdom? The Embassy had absolutely no right to determine applications for British nationality. Its role at the time was merely to forward them to the Home Office for consideration.
If you have evidence that an application was made, but not given full consideration by the Home Office, the best option may well be to make the argument that the application is still undetermined and should be decided now. Under current policy, a pre-2010 section 3(2) application for a child under 6 should normally be granted.
See Chapter 6 of the Nationality Instructions which discusses undetermined citizenship applications.
And discuss with your lawyer!
And again - by the way, your were a Citizen of the U.K & Colonies automatically, not by registration.
Apr 12th 2013, 6:05 am
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Re: Wrongly classified british by descent
Thanks again for your reply
Unfortunately I did not keep the letter of refusal from the embassy and do not remember what specific reason (if any) was given for the refusal. I vaguely remember being told that if were to go and live in England with the children that they could become naturalised.
I do, however, have evidence that an application was made to the Tel Aviv embassy as they returned my original documents to me by registered post with an accompanying confirmation of sending the documents. I recently got in touch with the Embassy (on my lawyers advice) in order to ascertain why I was not granted discretion regarding my children( they were under 6 at the time) but the Embassy says that they only keep records for 12 years and then they are destroyed.
I do not remember if the Embassy dealt with my application or whether they sent my application to the Home office.
I had completely forgotten about the matter and resigned myself to the situation, but I came across an immigration lawyer who specialises in complicated citizenship cases relating to the Colonies.
My lawyer successfully gained British citizenship for the children of a client with a similar problem to mine. She, also, was born in Kenya to a British born mother before 1963. The only difference between us is that she holds Kenyan citizenship in addition to British ( I hold Israeli citizenship in addition to British). My lawyer says " I can tell you this matter is sufficiently complex that it is likely to be dealt with only by one of a very few number of persons who still have the knowledge to deal with such matters" so it is clearly not considered straightforward.
Anyway, I am still waiting for a decision.
Unfortunately I did not keep the letter of refusal from the embassy and do not remember what specific reason (if any) was given for the refusal. I vaguely remember being told that if were to go and live in England with the children that they could become naturalised.
I do, however, have evidence that an application was made to the Tel Aviv embassy as they returned my original documents to me by registered post with an accompanying confirmation of sending the documents. I recently got in touch with the Embassy (on my lawyers advice) in order to ascertain why I was not granted discretion regarding my children( they were under 6 at the time) but the Embassy says that they only keep records for 12 years and then they are destroyed.
I do not remember if the Embassy dealt with my application or whether they sent my application to the Home office.
I had completely forgotten about the matter and resigned myself to the situation, but I came across an immigration lawyer who specialises in complicated citizenship cases relating to the Colonies.
My lawyer successfully gained British citizenship for the children of a client with a similar problem to mine. She, also, was born in Kenya to a British born mother before 1963. The only difference between us is that she holds Kenyan citizenship in addition to British ( I hold Israeli citizenship in addition to British). My lawyer says " I can tell you this matter is sufficiently complex that it is likely to be dealt with only by one of a very few number of persons who still have the knowledge to deal with such matters" so it is clearly not considered straightforward.
Anyway, I am still waiting for a decision.
Apr 14th 2013, 5:39 pm
#6
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Re: Wrongly classified british by descent
I vaguely remember being told that if were to go and live in England with the children that they could become naturalised.
I do, however, have evidence that an application was made to the Tel Aviv embassy as they returned my original documents to me by registered post with an accompanying confirmation of sending the documents. I recently got in touch with the Embassy (on my lawyers advice) in order to ascertain why I was not granted discretion regarding my children( they were under 6 at the time) but the Embassy says that they only keep records for 12 years and then they are destroyed.
I do not remember if the Embassy dealt with my application or whether they sent my application to the Home office.
I do not remember if the Embassy dealt with my application or whether they sent my application to the Home office.
As noted, they were supposed to send it to the Home Office.
My lawyer successfully gained British citizenship for the children of a client with a similar problem to mine. She, also, was born in Kenya to a British born mother before 1963. The only difference between us is that she holds Kenyan citizenship in addition to British ( I hold Israeli citizenship in addition to British). My lawyer says " I can tell you this matter is sufficiently complex that it is likely to be dealt with only by one of a very few number of persons who still have the knowledge to deal with such matters" so it is clearly not considered straightforward.
The law is straightforward. Again, discuss further with your lawyer but I think there is no chance the Home Office will accept that you are a British citizen otherwise than by descent, based on the argument you stated. without going to the highest court in the land.
However, if your strategy is to establish that your children each have an undecided application for British citizenship in the system dating from 1985-86, then that's obviously not straightforward, but has more scope for success.
It would be interesting to know how you get on. In the meantime, if by some chance one of your British parents was born in Ireland or Northern Ireland, then your children can register as Irish citizens.
Last edited by JAJ; Apr 14th 2013 at 5:41 pm.
Apr 15th 2013, 8:32 am
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Re: Wrongly classified british by descent
Thanks for your reply - I still have one or two queries - if you can bear with me:
"Except that the Embassy had no authority to make a refusal. Did you submit a formal application with fee? Or was just a general enquiry?"
As far as I can recall my only correspondence was directly with the Tel Aviv Embassy, however, it is doubtful that they would ignore correct procedure and deal with it themselves if this was not acceptable.
I definitely made a formal application as I had to run around getting original documents, including school reports, student card, NHS card, tax forms (To prove minimum 5 years residence). As I said, I did not keep the letter of refusal, I do not even remember getting one. It's hard to remember, but I think I went to the Embassy in person and was informed orally.- - that's why I remember being told I could take the children to Britain in order to naturalise them.
I do have proof that an application was made in the form of a letter detailing the return of all my original documents - would this be acceptable as proof? After all - what other reason could I have for sending all these original documents to the Embassy? The document I have is dated 6.07.1989. So my children would have been 2 and 3 respectively at the time. Well within the 6 year discretionary period (which I was not informed about).
The Tel Aviv Embassy claims they destroy all records after 12 years - but surely the Home Office does not?
As regards you saying my current application has no chance of success - you may be right but my lawyer does not think so. He has agreed to waive his fee if the application is unsuccessful - so why would he invest his valuable time in an application that was doomed to failure? It doesn't make sense. He has 22 years of experience and used to work for the Home Office himself - so I find it all very confusing. I am hoping that he knows something that neither of us does.
I have one further question which slightly confuses and troubles me:
I understand that children who were born British by Descent (i.e outside of UK to a British born parent)can later be re-classified as British other than by descent if they become naturalised - i.e by being in the UK for a period of 5 years. I lived in the UK from the age of 11 to 25. Would this not apply to me? Although I obviously did not go through a process of naturalisation because I was already considered a British Citizen with ROA.
But anyway - thanks for your help. By the way - are you an immigration lawyer yourself? You seem to have a very clear and concise knowledge of British immigration laws.
"Except that the Embassy had no authority to make a refusal. Did you submit a formal application with fee? Or was just a general enquiry?"
As far as I can recall my only correspondence was directly with the Tel Aviv Embassy, however, it is doubtful that they would ignore correct procedure and deal with it themselves if this was not acceptable.
I definitely made a formal application as I had to run around getting original documents, including school reports, student card, NHS card, tax forms (To prove minimum 5 years residence). As I said, I did not keep the letter of refusal, I do not even remember getting one. It's hard to remember, but I think I went to the Embassy in person and was informed orally.- - that's why I remember being told I could take the children to Britain in order to naturalise them.
I do have proof that an application was made in the form of a letter detailing the return of all my original documents - would this be acceptable as proof? After all - what other reason could I have for sending all these original documents to the Embassy? The document I have is dated 6.07.1989. So my children would have been 2 and 3 respectively at the time. Well within the 6 year discretionary period (which I was not informed about).
The Tel Aviv Embassy claims they destroy all records after 12 years - but surely the Home Office does not?
As regards you saying my current application has no chance of success - you may be right but my lawyer does not think so. He has agreed to waive his fee if the application is unsuccessful - so why would he invest his valuable time in an application that was doomed to failure? It doesn't make sense. He has 22 years of experience and used to work for the Home Office himself - so I find it all very confusing. I am hoping that he knows something that neither of us does.
I have one further question which slightly confuses and troubles me:
I understand that children who were born British by Descent (i.e outside of UK to a British born parent)can later be re-classified as British other than by descent if they become naturalised - i.e by being in the UK for a period of 5 years. I lived in the UK from the age of 11 to 25. Would this not apply to me? Although I obviously did not go through a process of naturalisation because I was already considered a British Citizen with ROA.
But anyway - thanks for your help. By the way - are you an immigration lawyer yourself? You seem to have a very clear and concise knowledge of British immigration laws.
Apr 15th 2013, 11:02 am
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Re: Wrongly classified british by descent
I definitely made a formal application as I had to run around getting original documents, including school reports, student card, NHS card, tax forms (To prove minimum 5 years residence). As I said, I did not keep the letter of refusal, I do not even remember getting one. It's hard to remember, but I think I went to the Embassy in person and was informed orally.- - that's why I remember being told I could take the children to Britain in order to naturalise them.
The Tel Aviv Embassy claims they destroy all records after 12 years - but surely the Home Office does not?
As regards you saying my current application has no chance of success - you may be right but my lawyer does not think so.
- I think you've no chance of convincing the Home Office that the British Nationality Act 1981 makes you a British citizen otherwise than by descent; (I'm not convinced either); but
- you do have a chance of establishing that you made an application for your children to be registered under section 3(2) of the Act that has never been formally determined.
I understand that children who were born British by Descent (i.e outside of UK to a British born parent)can later be re-classified as British other than by descent if they become naturalised - i.e by being in the UK for a period of 5 years. I lived in the UK from the age of 11 to 25. Would this not apply to me? Although I obviously did not go through a process of naturalisation because I was already considered a British Citizen with ROA.
But anyway - thanks for your help. By the way - are you an immigration lawyer yourself?
Apr 15th 2013, 2:19 pm
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Re: Wrongly classified british by descent
"There have been many cases of correct procedure not being followed."
You may be right here - I do not remember getting any letter from the Home Office - ALL communications were with the TA embassy and it is they who returned my documents, not the Home Office. I am not at all convinced that they even knew about the 6 year discretionary period, because if they did, I think I would have been granted it. I definitely was not aware of the discretionary period - because if I were - I would immediately have got in touch with a lawyer at the time in order to find out why I did not benefit from it.
"Every valid application made must be either formally granted or refused. Refusals have to be in writing."
Maybe there was a letter of refusal from the Embassy, but if there were - it CERTAINLY did not give any reason for the refusal, because I would remember it.
you do have a chance of establishing that you made an application for your children to be registered under section 3(2) of the Act that has never been formally determined.
Yes - my lawyer says that it is an avenue to be explored, should the original application fail. I have more or less resigned myself that it will.
Thanks again for your time
You may be right here - I do not remember getting any letter from the Home Office - ALL communications were with the TA embassy and it is they who returned my documents, not the Home Office. I am not at all convinced that they even knew about the 6 year discretionary period, because if they did, I think I would have been granted it. I definitely was not aware of the discretionary period - because if I were - I would immediately have got in touch with a lawyer at the time in order to find out why I did not benefit from it.
"Every valid application made must be either formally granted or refused. Refusals have to be in writing."
Maybe there was a letter of refusal from the Embassy, but if there were - it CERTAINLY did not give any reason for the refusal, because I would remember it.
you do have a chance of establishing that you made an application for your children to be registered under section 3(2) of the Act that has never been formally determined.
Yes - my lawyer says that it is an avenue to be explored, should the original application fail. I have more or less resigned myself that it will.
Thanks again for your time
Jun 26th 2013, 3:59 pm
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Re: Wrongly classified british by descent
I was born in Kenya in 1956 to British born parents. My birth was registered at the British High Commission in Nakuru 4 days after by birth.
My 2 children were born in Israel after 1983 and when they were 2 and 3 respectively I tried to register them as British citizens at the British Embassy in Tel Aviv - only to be told that this was not possible as I was condsidered British by Descent following changes in British Nationality Law in 1981. I was deeply shocked, but was told nothing could be done.
I recently made contact with an immigration lawyer to find out if my previous "downgrading" to British by Descent was , in fact, legal.
He claims that it was NOTfor the following reasons:
Section 14(b) applies to pre 1983 Citizens of the UK and Colonies (CUKC) where;
(i) He was a CUKC under section 5 of the BNA 1948. This cannot be the case with our client as she became a CUKC under section 4 of this Act.
(ii) He was a person who under any provision of the former nationality acts would have been considered a CUKC by descent. Again this provision does not apply as no CUKC under section 4 of the BNA 1948 was considered a CUCK by descent.
(iii) This subsection relates to CUKC’s who also had the Right of Abode. Those who had the Right of Abode by virtue of the following sections of the Immigration Act 1971 are re-classified as British Citizens by descent;
(1) Through section 2(1)b only (via parent or grandparent); or
(2) Through 2(1)b & 2(1)c (5 yrs residence) only; or
(3) Through being the wife of a person described in (1) & (2) above.
Our client’s mother did indeed have the Right of Abode through Section 2(1)b (Citizen of the UK and Colonies with mother born in the UK) but she also acquired the Right of Abode through Section 2(1)(d)(Commonwealth Citizen with a UK born parent). She therefore cannot have been re-classified as a British Citizen by descent under this section as she did not only have the Right of Abode through section 2(1)b only.
I am awaiting the Home Office's decision on my application and was wondering if anyone else has come across this problem ( I am told that my case is very rare) and if so - what was the outcome? If the outcome is positive (my lawyer thinks it will be) I would like to let other people, who may be in my position, know about it. It has been a MAJOR source of dismay and outrage for me for over 20 years.
My 2 children were born in Israel after 1983 and when they were 2 and 3 respectively I tried to register them as British citizens at the British Embassy in Tel Aviv - only to be told that this was not possible as I was condsidered British by Descent following changes in British Nationality Law in 1981. I was deeply shocked, but was told nothing could be done.
I recently made contact with an immigration lawyer to find out if my previous "downgrading" to British by Descent was , in fact, legal.
He claims that it was NOTfor the following reasons:
Section 14(b) applies to pre 1983 Citizens of the UK and Colonies (CUKC) where;
(i) He was a CUKC under section 5 of the BNA 1948. This cannot be the case with our client as she became a CUKC under section 4 of this Act.
(ii) He was a person who under any provision of the former nationality acts would have been considered a CUKC by descent. Again this provision does not apply as no CUKC under section 4 of the BNA 1948 was considered a CUCK by descent.
(iii) This subsection relates to CUKC’s who also had the Right of Abode. Those who had the Right of Abode by virtue of the following sections of the Immigration Act 1971 are re-classified as British Citizens by descent;
(1) Through section 2(1)b only (via parent or grandparent); or
(2) Through 2(1)b & 2(1)c (5 yrs residence) only; or
(3) Through being the wife of a person described in (1) & (2) above.
Our client’s mother did indeed have the Right of Abode through Section 2(1)b (Citizen of the UK and Colonies with mother born in the UK) but she also acquired the Right of Abode through Section 2(1)(d)(Commonwealth Citizen with a UK born parent). She therefore cannot have been re-classified as a British Citizen by descent under this section as she did not only have the Right of Abode through section 2(1)b only.
I am awaiting the Home Office's decision on my application and was wondering if anyone else has come across this problem ( I am told that my case is very rare) and if so - what was the outcome? If the outcome is positive (my lawyer thinks it will be) I would like to let other people, who may be in my position, know about it. It has been a MAJOR source of dismay and outrage for me for over 20 years.
My father was born in Kenya in 1962 to British parents, but all I have is a birth certificate and his British passports.
Jun 26th 2013, 4:12 pm
#11
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Re: Wrongly classified british by descent
Your father's parents probably did register the birth - it was known at the time that it was necessary. But he may not have kept the registration certificate because it may not have seemed important once he had got his first passport. I never thought I would need mine again - but luckily I kept it.
Aug 6th 2013, 11:40 am
#12
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Re: Wrongly classified british by descent
I was born in Kenya in 1956 to British born parents. My birth was registered at the British High Commission in Nakuru 4 days after by birth.
My 2 children were born in Israel after 1983 and when they were 2 and 3 respectively I tried to register them as British citizens at the British Embassy in Tel Aviv - only to be told that this was not possible as I was condsidered British by Descent following changes in British Nationality Law in 1981. I was deeply shocked, but was told nothing could be done.
I recently made contact with an immigration lawyer to find out if my previous "downgrading" to British by Descent was , in fact, legal.
He claims that it was NOTfor the following reasons:
Section 14(b) applies to pre 1983 Citizens of the UK and Colonies (CUKC) where;
(i) He was a CUKC under section 5 of the BNA 1948. This cannot be the case with our client as she became a CUKC under section 4 of this Act.
(ii) He was a person who under any provision of the former nationality acts would have been considered a CUKC by descent. Again this provision does not apply as no CUKC under section 4 of the BNA 1948 was considered a CUCK by descent.
(iii) This subsection relates to CUKC’s who also had the Right of Abode. Those who had the Right of Abode by virtue of the following sections of the Immigration Act 1971 are re-classified as British Citizens by descent;
(1) Through section 2(1)b only (via parent or grandparent); or
(2) Through 2(1)b & 2(1)c (5 yrs residence) only; or
(3) Through being the wife of a person described in (1) & (2) above.
Our client’s mother did indeed have the Right of Abode through Section 2(1)b (Citizen of the UK and Colonies with mother born in the UK) but she also acquired the Right of Abode through Section 2(1)(d)(Commonwealth Citizen with a UK born parent). She therefore cannot have been re-classified as a British Citizen by descent under this section as she did not only have the Right of Abode through section 2(1)b only.
I am awaiting the Home Office's decision on my application and was wondering if anyone else has come across this problem ( I am told that my case is very rare) and if so - what was the outcome? If the outcome is positive (my lawyer thinks it will be) I would like to let other people, who may be in my position, know about it. It has been a MAJOR source of dismay and outrage for me for over 20 years.
My 2 children were born in Israel after 1983 and when they were 2 and 3 respectively I tried to register them as British citizens at the British Embassy in Tel Aviv - only to be told that this was not possible as I was condsidered British by Descent following changes in British Nationality Law in 1981. I was deeply shocked, but was told nothing could be done.
I recently made contact with an immigration lawyer to find out if my previous "downgrading" to British by Descent was , in fact, legal.
He claims that it was NOTfor the following reasons:
Section 14(b) applies to pre 1983 Citizens of the UK and Colonies (CUKC) where;
(i) He was a CUKC under section 5 of the BNA 1948. This cannot be the case with our client as she became a CUKC under section 4 of this Act.
(ii) He was a person who under any provision of the former nationality acts would have been considered a CUKC by descent. Again this provision does not apply as no CUKC under section 4 of the BNA 1948 was considered a CUCK by descent.
(iii) This subsection relates to CUKC’s who also had the Right of Abode. Those who had the Right of Abode by virtue of the following sections of the Immigration Act 1971 are re-classified as British Citizens by descent;
(1) Through section 2(1)b only (via parent or grandparent); or
(2) Through 2(1)b & 2(1)c (5 yrs residence) only; or
(3) Through being the wife of a person described in (1) & (2) above.
Our client’s mother did indeed have the Right of Abode through Section 2(1)b (Citizen of the UK and Colonies with mother born in the UK) but she also acquired the Right of Abode through Section 2(1)(d)(Commonwealth Citizen with a UK born parent). She therefore cannot have been re-classified as a British Citizen by descent under this section as she did not only have the Right of Abode through section 2(1)b only.
I am awaiting the Home Office's decision on my application and was wondering if anyone else has come across this problem ( I am told that my case is very rare) and if so - what was the outcome? If the outcome is positive (my lawyer thinks it will be) I would like to let other people, who may be in my position, know about it. It has been a MAJOR source of dismay and outrage for me for over 20 years.
Thank you for the wonderful post. i wasn't born in England. my father obtain his British in 1972 and i was born in 1984 in Nigeria. i came to this country in 2007 and i obtain my resident eea2 via my fiance. My brother made his own application in Nigeria and the Home Office requested that my brother and my father and my mother should go for a DNA test. after completing the DNA test. everything came back positive and few weeks after my brother was granted a British passport. when i see a solicitor advise and i was been told that i am a British by Descent that because before i was born my father has already obtain his British citizenship and that classify me as a British by descent. i made my application last week and i am just nervous what the outcome would be. and i will like to know what are my chances and what should i look forward to. i hope i can get help with this as soon as possible.
Thank you
Aug 6th 2013, 8:36 pm
#13
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Re: Wrongly classified british by descent
How can I help you?
Judy
Judy
Aug 8th 2013, 2:14 pm
#14
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Re: Wrongly classified british by descent
Judyv
The registration may have been made at the office of the DISTRICT COMMISSIONER in Nakuru. There was no British High Commission. Getting these facts and terminology 100% right. are important if you are going to put your case to the competent authorities.
The registration may have been made at the office of the DISTRICT COMMISSIONER in Nakuru. There was no British High Commission. Getting these facts and terminology 100% right. are important if you are going to put your case to the competent authorities.
Aug 8th 2013, 6:23 pm
#15
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Re: Wrongly classified british by descent
Thanks for the advice Scot47 - but luckily for me my application was successful anyway and my sons have been given the status of British citizens.