NATIONALITY LAW

Discussion in 'Finance, Property, Law' started by one-flew-over, Oct 31, 2008.

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  1. A mate of mine has just had his first child. He wants to get the baby a British passport but has a problem.

    My mate is duel UK / Aussie national. Both his parents are British through and through but moved to Australia just as they began a family. Consequently my mate was born in Aus. He is a 'British by decent' under the British Nationality Act 1981 as he was born overseas. Under this section the British nationality is not passed on if his children are also born outside the UK. Due to his mother dying shortly before the birth of his son, my mate and his wife returned to Aus for the last week of his mothers life and the funeral was on the last day his wife could fly, so they could not return to the UK for the birth.

    Not a problem as under Sect 3 (2) of the Nationality act if he had lived in the UK for 3 consecutive years he then could pass on the British nationality to his kids. He had lived in the UK as a nipper and though it was for over 3 years but has just found out he is short of the 3 years to fulfil the requirements under that section.

    Is there any other avenue for him or is his son not entitled to a UK passport. If anyone could advise please!

    Cheers

    ofo
     
  2. If he is living in the UK can he not apply to naturalise his child after a certain amount of residence (3 years?). Presumably the child's mother is non British.
     
  3. You would have thought as both his parents were British that naturally his own Son would be allowed to be a British Citizen and to hold a British Passport! if he himself is a British Citizen and Passport holder then his Son should also be! I had problems also getting my Son British Citizenship as I am married to a Bosnian Doctor, however my problem was having to wait until we were married before he was accepted as a British Citizen, it might very well help your case if you write personally to the Home Office, they do read what is sent to them and do take individual cases into consideration. if your mate is living in Aus then he needs to do this through the British Embassy/Consul there... I wish him all the Very Best after having clashed myself along a similar route...
     
  4. Thanks.

    His wife is Aussie - Brit grandparents. Unfortunately the law would allow a naturalised Brit to pass on nationality but not this "British by Decent' for children of Brits born overseas who have not lived in the UK for 3 consecutive years.

    Yes on solution is returning to the UK and living there but in their line of work they are working overseas. It would also mean his wife could not work until she had also naturalised. Hers is the main career.

    Thanks for the support.
     
  5. So both parents are British?

    Then the child is British no matter where born.

    In addition as a result of being born in Australia, the child is a natural Australian.

    A clear case of dual nationality to me.

    Of course the scum who rule us for the time being have been fiddling with rules, having British parents might not be enough to be British. Now if is parents were Afghan refugees - he could probably have one at the drop of a hat. Try using the name Muhammed, that might help.
     
  6. He's saying that the Mother is Australian, but with British Grandparents, surely she also can claim Dual Nationality however I know there is a problem with claiming Citizenship after 18 years of age. I still think as they are married then the child can surely be either British or Australian or better, BOTH like it's Father, if they weren't married as in my case until we married then the child takes it's Mother's Nationality. Maybe Inf/MP is right, it might be an idea to wait until the Government is run by the Tories!
     
  7. That is right - the mother can not claim UK citizenship other than through residency. Because the father was born outside the UK his status is different than if he had been born at home. The baby also being born outside the UK therefore does not get the UK citizenship.

    This could impact the forces. If a soldier has a family while serving abroad, and if they don't return to the UK for 3 consecutive years (most postings being 2 and in fact in my 17 years I've not spent 3 full years back in the UK) and the child joins up and has his or her kids overseas then under the law they seem buggered.

    It sounds so simple - British Dad, British son, but this a strange circumstance and this falls into that. The little fellow will probably get a bloody Green Baggy and torment me in my old(er) age! :x
     
  8. Ok, here goes...

    It can get very complicated.

    Your mate is right, his Nationality cannot be passed on to his sprog, except in exceptional circumstances that do not apply here.

    Unless he is prepaired to up sticks and bring the family to the UK for 5 years and then apply for Citizenship for the child on the basis of permanent resedency (which would then lead ultimately to a UK passport) then his options are non existant.

    There is another possibility. Assuming that one or both of your mate's parents were born in the UK, then the son qualifies for a thing called Ancestry, through having at least one British grandparent. The downside is that he has to apply from outside the UK himself , be at least 17 and 1/2, and come to the UK to live and work for initially 5 years.

    If he then wants a UK passport he can apply for citizenship after this period.

    Whats the fixation with wanting a UK passport, everyones got one these days anyway...

    ps does your mate hold a UK passport as well as an Aussie one, cos if not then technically he is not a dual national anyway.

    Try writing direct to :

    UK Border Agency
    Lunar House
    40 Wellesley Road
    Croydon, Surrey
    CR9 2BY

    or ring: Immigration Enquiry Bureau 08706067766

    Hope this helps.
     
  9. Thanks T24D

    That would work - the driver is that most of the family remain in Scotland and he wants his son to have the choice to live there. That Ancestry clause would allow that.

    Cheers

    ofo
     
  10. I am not an expert on Immigration so I got the the Immigration Lawyer in my firm to do a reply for me. He says this:

    "There is one possible way your friend’s son may be able to obtain British Citizenship. It is useful to recite the relevant law on this particular question which you have correctly cited as Section 3(2) of the British Nationality Act 1981. Under this section a child will have an entitlement to be registered as a British Citizen if the following requirements are met:

     they were born outside the UK; and
     they were born to parents, one or both of whom are British citizens by descent; and
     the parent who is British by descent was born to a parent (the child's grandparent) who was a British citizen otherwise than by descent; and
     the parent who is British by descent lived in the UK at any time before the child's birth for a continuous period of three years; and
     during the period they were living in the UK the parent was not absent for more than 270 days; and
     the application is made within 12 months of the child's birth.

    Based on the information you have provided, and again as you have rightly pointed out, the requirement for your friend to have lived in the UK for a continuous period of 3 years seems not to have been met. The requirements are therefore not satisfied. However, in exceptional circumstances, the UK Border Agency may exercise their discretion to allow applications made within six years of the child's birth. They normally grant such applications under one of the following circumstances:

     the parents received incorrect advice from an official source, a solicitor or other recognised advisory agency. For example, they had been told the child was already a British citizen; or
     there were domestic difficulties which distracted the parents; or
     the family had intended to come to the United Kingdom and apply for the child's registration under section 3(5) of the British Nationality Act 1981 but had been prevented from returning to the United Kingdom because of:

    - the death of one of the parents; or
    - other unforeseen circumstances, for example an employer's demands or the parent's divorce; or

     the parents made enquiries about the possible need for registration within the normal 12-month period. This was followed up by an application no later than three months after the end of that period; or
     in any other case, the application is made up to a month late; or
     the child has a brother or sister for whom a successful, in time, application was made under section 3(2); or
     the child would suffer significant hardship by not being a British citizen.

    A significant hardship would include:
     the family's ability to remain where it is depends on the child acquiring British citizenship; or
     the child is stateless and is at a disadvantage under local law.

    On the information you have provided your friend’s son may be able to obtain citizenship as his mother’s death prevented them from returning to the UK for his birth which would have enabled his registration as a British Citizen had they done so. An application therefore can be made but will need to be prepared correctly with particular citation of the law and the UK Home Office guidance. The use of a solicitor is highly advised.

    One point to note is that a child registered as a British citizen under this section will become a British citizen by descent. They will be unable to pass British citizenship on automatically to any of their children born outside the UK"

    I hope that helps.
    If you have any further questions - feel free to post on here or PM me.
     
  11. The child could also stay in the UK under UK ancestry laws if you have a British Grandparent. IIRC its a grant of 4 years leave to remain followed by Indefinite Leave and then child could gain full citizenship in his/her own right, but check with UKBA as I left it back in 2002 so may be a bit out of date
     
  12. Judge, a non related question but maybe your mate may know the answer.

    situation: i am in australia on a 457 business long stay visa and hoping to get perm res and eventually citizenship. my question is if i marry my aussie bird in the meantime do i get citizenship by being married to an aus, and also does she get pom staus??
    would save loads of time and paperwork.

    Thanks

    CFC
     
  13. JD

    That has nailed it - thank you very much!

    ofo
     
  14. No worries, you are welcome.
     
  15. So are these rules cause for concern for servicemen (and girlies) as outlined by One-flew-over above?