cally49

The parents are not married yet.

The Mother has a certificate of Naturalisation dated May 2005 the dads is a certificate of registration dated 24-02-1995

The father lived in the UK for a year when we all went over as a family around 1999-2000 and then he returned to live in the UK for around 6yrs returning to NZ around November 2005.



Hope i have done this right JAJ i have not replied this way before so forgive me if it turns out wrong......Many thanks for your help.......
Cheers Cally



Congratulations![/QUOTE] Thankyou........All thanks to you.....

cally49

So yes we are talking about 2 different families and i agree its very confusing if im confused you guys must be really confused anyhow looking forward to JAJ's reply (how did i manage to mess up the quoted reply I have no idea but thanks for changing it for me bev.....You are a star!

JAJ

As the Kiwi mother is a naturalised British citizen then she is British otherwise than by descent.

Therefore the 6 month old is a British citizen (by descent). The father's status doesn't really matter because the child can claim citizenship from the mother (that's been the case since 1983).

Just get a British passport for the child asap to document status.

Incidentally, the fact that the Embassy said no on the phone is irrelevant. The people answering the phone on services like this often have only a hazy understanding of the rules.


The British born son is British otherwise than by descent.

As child #2 was born after 1 July 2006 when rules for unmarried fathers changed, then child is automatically a British citizen (by descent) => just get a British passport asap.


As for child #1, things are a little more complex to determine whether the child is already British. If not, child can be registered as British but that will cost some money.

So to work out whether the child is automatically British or needs to be registered as British can you please clarify:

1. Has your son always lived in New Zealand (since age 1), or has he ever gone back to the United Kingdom?; and

2. Is he also a New Zealand citizen?; and

3. Do he and his partner have any plans to get married?

cally49

Hi there JAJ and thankyou for your efforts this far. In answer to your recent questions.

1. British born son lived in the UK with us for 12 months from 1999 to 2000 he went to school there for a short time. (He was 15)

2. I am sure he has not been made a New Zealand Citizen but he does have a NZ passport as well as a British one. (His dad was born in New Zealand)

3.He and his partner have always intended to marry. They have been living together for around 7 yrs and are engaged but then the children came along and its got put on the back burner for now i guess does this make a difference?
Well thanks once again have a nice evening and hope all this info elps someone else as well.
Cheers
Cally

JAJ

Based on the information you give, I am quite confident that child #1 (aged 2.5) is already a British citizen. The explanation is complex, but here goes:

Prior to 1 July 2006, as a general rule an unmarried British father could not pass on his British nationality. But this is not the precise wording of the law. An explanation of the law is given by this document from the Home Office Nationality Instructions:
http://www.ind.homeoffice.gov.uk/doc...cy?view=Binary

(incidentally don't try to read that whole document as it will confuse you).

1.1 Section 50(9) of the British Nationality Act 1981 explains that, for the purposes of the Act, where a child is born before 1 July 2006 "the relationship of a mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her, but.... the relationship of father and child shall be taken to exist between a man and any legitimate child born to him".

So what do they mean by "legitimate"? The document goes on to say:

1.2 There is no definition of "legitimate" in the Act. However, legal advice suggests that English law, in considering questions of legitimacy, will look to the law of the domicile of the father at birth. If that law treats a child as legitimate, then English law will likewise recognise that status

So where was the father "domiciled" at the time the child was born? His own father was a New Zealander, he's a New Zealander (despite his U.K. birth) and he's mainly lived his life in New Zealand, so assuming he's planning to stay in New Zealand then as far as the United Kingdom is concerned, he's almost certainly "domiciled" in New Zealand.

Here's where it gets interesting. New Zealand abolished the statutory concept of "illegitimacy" on 1 January 1970, so as far as New Zealand is concerned, the child was born "legitimate" despite the parents being unmarried. And because the father is NZ-domiciled, then British law takes the same view.

And so the child was born "legitimate" in the eyes of the United Kingdom and hence your son was in the unusual position before 1 July 2006 of being able to pass on his British nationality.

The document quoted above goes on to describe this exact situation:

5.1.2 Taking New Zealand as an example, and assuming the father in each case is UK born:

...

• A child born out of wedlock in New Zealand after 1 January 1970 should be regarded as legitimate, and would have a claim to British citizenship by descent through the father, if both parents were domiciled in New Zealand [incidentally only father needs to be NZ domiciled] at the time of the child's birth


So what should you do? Apply for a British passport for the child in the normal way. Obviously you won't have the parent's marriage certificate which they will usually look for but you should print out the document above, highlight the relevant sections, and ask the High Commission to send the father a "Domicile Questionnaire" which he will answer and should prove he is New Zealand domiciled when the child was born.

Once this evidence has been provided then they should issue a British passport.

Do not be surprised if front-line staff at the High Commission know nothing about this. It's quite an unusual section of the law. You will need to be proactive and don't hesitate to take things to a more senior level if you are brushed off.

cally49

Thankyou so much for all the time and effort you have put in to this JAJ I really appeciate it and it just goes to show that being told NO! by one person on the phone doesnt mean thats the end of the matter...

Merry Christmas!

JAJ

A British citizen by registration may be a British citizen either by descent or otherwise. Depends on the circumstances.

A British citizen by naturalisation is always a British citizen otherwise than by descent, except some cases of naturalisation in colonies/territories before 1983.

JAJ

And from what you say, that was in the much simpler case where the mother was naturalised British. Absolutely no excuse for the advice line to get that one one wrong, but it happens all the time.

Unfortunately, when you deal with public authorities, you usually need to know the answer before you ask the question.

JAJ

A bit of history here. When your son was born in 1977, British mothers normally could not pass on their citizenship (this was the law in many countries at one time or another).

In the late 1970s the Nationality Act was under review and the Government decided in principle that a new British Nationality Act (which would eventually come into being on 1.1.1983) would give British women the right to pass on their nationality on a par with men.

Pending this new legislation, on 8 February 1979 then then Home Secretary (Merlyn Rees) announced that going forward, the existing power in the law to register any "minor" as a U.K. citizen would normally be exercised on application for the child of a British born or naturalised mother. Your son therefore got his application done just before the deadline of age 18, after which there was no more discretion in the law.

(this concession was re-opened in 2003 for those eligible originally who missed out on the age 18 deadline).

If you look at your son's registration certificate it will almost certainly show that he is registered as a British citizen under section 3(1) of the British Nationality Act. As a result he is a British citizen "by descent" because he is registered under s3(1) AND had a British parent when he was born.

As it happens, it doesn't really matter that he's British by descent because his wife is British otherwise than by descent. If she had not become naturalised when she lived in Britain, then there would have been extra hoops to go through to get British citizenship for their 6 month old child.

It is strongly recommended to apply for the passports immediately just in case things aren't as described - in many situations where the child isn't automatically British an application for citizenship has to be made within 12 months of birth. So for peace of mind, get the child's passport now.

BEVS

You know what . This guy JAJ is awesome IMHO.

Am Loolah

Ditto BEVS here - and it's all FREE!!!!

cally49

I think hes supercalifractilisticexpialidocious as well what a geat guy and what a big heart to give so much time to so many people!

JAJ you are a star thanks so much we will get on to this right away.......

AND you didnt tell me off for spelling Citezinship wrong!

A very Merry Christmas to you all and im sure Santa will be puting some nice things under the tree for JAJ this year!

Cheers
Cally

cally49

NEWSFLASH!
Well just a quick update the mum of the 6month old sent me a text today (she the one thats the naturalised British citizen) and she had phoned the Embassy people once again armed with all JAJs knoweledge and sure enough they didnt havea clue what it was about so she got someone higher up the ladder and HEY PRESTO! The little guy is already a British Citizen and they can apply for a British Passport right away......HOW AMAZING WAS THAT AYE THE FAMILY IS JUST STOKED and daghter in law was so grateful tat i wouldnt take no for an answer and contacted you guys......

The other grandchildrens dad is a skipper on a fishing boat so we have to wait for him to come home 20th Dec before applying because of the domicile form to be filled out by him.
So a heartfelt thanks once again to you all and especially JAJ! I thought you would all be interested in the outcome of all ofthis so i will keep you updated as things progress......Cheers and have a great weekend everyone..Cally