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Case study: British nationality by descent, British mothers

by Sable International | Nov 07, 2011
  • This client wants to register their child as British, despite having renounced British Nationality in the past (and reclaimed British Nationality recently). The mother was born in Kenya and was British by Descent, and had spent in excess of 3 years in the UK. Click here for more information on British Nationality by Descent, British Mothers and recent UKM anti-gender discrimination legislation as supplied by Whatpassport.com.
    baby-baby-with-mom-mother-kiss-tenderness-67663

    Below is a letter written by one of our UK Nationality partners on behalf of a client who qualified for one of the five forms of British Nationality. To protect the identity of the client, their name has been redacted but all other information is unchanged.

    The Letter to the UK Home Office

    Dear Sir/ Madam,

    My client wishes to register their child as a British Citizen pursuant to Section 3(1) of the British Nationality Act 1981. The purpose of this letter is to explain how our client qualifies for Registration to aid your consideration of the matter.

    Section 3(2) of the British Nationality Act 1981 reads as follows;

    (2) A person born outside the United Kingdom and the qualifying territories shall be entitled, on an application for his registration as a British citizen made within the period of twelve months (amended to ‘made before the child’s 18th birthday’ rather than within 12 months of the birth with section 43 of the BCI Act 2009) from the date of birth, to be registered as such a citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the requirements specified in paragraphs (a) and (b) of that subsection, are fulfilled in the case of either that person's father or his mother ("the parent in question").

    (3) The requirements referred to in subsection (2) are-

    (a) that the parent in question was a British citizen by descent at the time of the birth AND

    (b) that the father or mother of the parent in question; 

    (i)                   was a British citizen otherwise than by descent at the time of the birth of the parent in question; OR

    (ii)                 became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; AND 

    (c) that as regards some period of three years ending with a date not later than the date of the birth; 

    (i)                   the parent in question was in the United Kingdom or a qualifying territory at the beginning of that period; AND

    (ii)                 the number of days on which the parent in question was absent from the United Kingdom and the qualifying territories in that period does not exceed 270. 

    Section 9.7.4 of Chapter 9 of the NI’s confirms that where a child would qualify under section 3(2) of the BNA 1981 but for the parent’s renunciation, the child can be registered under Section 3(1) where the parent in question has subsequently resumed British Citizenship. 

    In regard to the first section, our client was born outside of the UK. He is under the age of 18 at the date of this application. Our client is not stateless and therefore the further qualifying criteria of subsection (3) applies as follows: 

    First, the mother was a British Citizen by descent at the time of his birth. Our client’s mother was born in Kenya in 1968. At the time of her birth, her father was a Citizen of the UK & Colonies and therefore acquired the same status by section 5 of the British Nationality Act 1948. She later became a British Citizen in accordance with Section 11 of the British Nationality Act 1981 as she acquired the Right of Abode through her own mother’s birth in the UK in 1941. Such persons are classified as British Citizens by Descent. It therefore follows that the child’s mother would have indeed been a British Citizen by descent on the day that our client was born, but for her renunciation of British Citizenship in 1990. 

    Second, the parent (i.e. grandparent to the applicant) was a British Citizen otherwise than by descent at the time of his birth or would have become so on 01/01/83. She was a Citizen of the UK & Colonies by virtue of section 4 of the British Nationality Act 1948 (birth in the UK). Section 14(1) of our later 1981 Nationality Act governs who became a British Citizen by descent or not. This section makes it clear that those born in the UK would not become such citizens. She therefore became a British Citizen otherwise than by decent on 01/01/83. 

    Finally, the parent in question has resided in the UK for a three year period without long absences (270 days away from the UK Constitutes a long absence in terms of the law here) from the UK. 

    We trust that the above adequately explains why our client would qualify for section 3(2) registration were it not for his mother’s prior renunciation. 

    Kind regards,

    We are a professional services company that specialises in cross-border financial and immigration advice and solutions.

    Our teams in the UK, South Africa and Australia can ensure that when you decide to move overseas, invest offshore or expand your business internationally, you’ll do so with the backing of experienced local experts.

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