Certificate of Entitlement to the Right of Abode

There is one difference between the lady in the link that you provided earlier and you.

I was born in Kenya in 1956 to British born parents...

Kenya became independent in 1963.

As she was born in a British colony (and because of the language of Kenya's constitution and nationality law, she did not become a Kenyan citizen at independence), she was born and remained a CUKC otherwise than by descent. The reason that she was being classified as a British citizen by descent (and the point in dispute in that thread) was because the Home Office argued that her RoA was by descent.

To be a British citizen otherwise than by descent at commencement of the BNA 1981 on 1st January 1983, the person needed to have held both CUKC otherwise than by descent AND RoA otherwise than by descent.

Either one of them being by descent would make the resultant British citizenship a citizenship by descent.

Your father, on the other hand, held both CUKC and RoA by descent (I believe that the caseworker is wrong in ascribing your father RoA through Section 2(i)(d), but that is by the bye).

Sha101 wrote: ↑

Thu Dec 16, 2021 7:56 pm

At birth he was a CUKC by descent under section 5(1) of the British Nationality Act 1948

Section 14 of the BNA 1981 wrote:14 Meaning of British citizen (by descent).

(1)For the purposes of this Act a British citizen is a British citizen “by descent” if and only if—
...
(b)subject to subsection (2), he is a person born outside the United Kingdom before commencement who became a British citizen at commencement and immediately before commencement—
(i)was a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act (citizenship by descent); or...

Even if the caseworker ascribes your father RoA through Section 2(i)(d), as in the case of the lady in the link you provided earlier, he would still not have CUKC status otherwise than by descent and thus would still be a British citizen by descent.

You have two possible courses of action;
(a) Write to the caseworker with a link to the other forum arguing that as they have attributed RoA to your father under Section 2(i)(d) of the Immigration Act 1971, that makes your father a British citizen otherwise than by descent and you a British citizen by descent.
Keep in mind though that an incorrectly issued British passport (or CoE-RoA) does not make you a British citizen and that if somebody were to review your case later on, you can be refused a British passport or CoE-RoA on renewal (as has happened recently with the British passports of some children of EEA citizens).
(b) Write to the lady on the other forum, requesting her for the contact details of her lawyer and present your case to them.

secret.simon wrote: ↑

Thu Dec 16, 2021 8:45 pm

There is one difference between the lady in the link that you provided earlier and you.

I was born in Kenya in 1956 to British born parents...

Kenya became independent in 1963.

As she was born in a British colony (and because of the language of Kenya's constitution and nationality law, she did not become a Kenyan citizen at independence), she was born and remained a CUKC otherwise than by descent. The reason that she was being classified as a British citizen by descent (and the point in dispute in that thread) was because the Home Office argued that her RoA was by descent.

To be a British citizen otherwise than by descent at commencement of the BNA 1981 on 1st January 1983, the person needed to have held both CUKC otherwise than by descent AND RoA otherwise than by descent.

Either one of them being by descent would make the resultant British citizenship a citizenship by descent.

Your father, on the other hand, held both CUKC and RoA by descent (I believe that the caseworker is wrong in ascribing your father RoA through Section 2(i)(d), but that is by the bye).

Sha101 wrote: ↑

Thu Dec 16, 2021 7:56 pm

At birth he was a CUKC by descent under section 5(1) of the British Nationality Act 1948

Section 14 of the BNA 1981 wrote:14 Meaning of British citizen (by descent).

(1)For the purposes of this Act a British citizen is a British citizen “by descent” if and only if—
...
(b)subject to subsection (2), he is a person born outside the United Kingdom before commencement who became a British citizen at commencement and immediately before commencement—
(i)was a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act (citizenship by descent); or...

Even if the caseworker ascribes your father RoA through Section 2(i)(d), as in the case of the lady in the link you provided earlier, he would still not have CUKC status otherwise than by descent and thus would still be a British citizen by descent.

You have two possible courses of action;
(a) Write to the caseworker with a link to the other forum arguing that as they have attributed RoA to your father under Section 2(i)(d) of the Immigration Act 1971, that makes your father a British citizen otherwise than by descent and you a British citizen by descent.
Keep in mind though that an incorrectly issued British passport (or CoE-RoA) does not make you a British citizen and that if somebody were to review your case later on, you can be refused a British passport or CoE-RoA on renewal (as has happened recently with the British passports of some children of EEA citizens).
(b) Write to the lady on the other forum, requesting her for the contact details of her lawyer and present your case to them.

Agree Lady retained her CUKC status, As she was born to parent from the UK.

you correctly pointed out, its her ROA claim was in dispute.

If this is the case her ROA claim under sections 2 (1)(b)(i) and 2 (1)(d) of the Immigration Act 1971, would be a mistake.

1. She could not have ROA under section 2(1)(a) she was not born, registered, or naturalised, in the UK.

2. She would have ROA under section 2(1)(b)(i) and 2(1)(c), as her parent were born in the UK, this combination would make her British citizen by descent.

3. If her ROA claim on the basis of section 2(1)(c) only, she would become British citizen otherwise than by descent.

The lady's claim to RoA is not the central theme of this thread, it is your claim.

So, let's revisit first principles.

For anybody born after 1st January 1983, the *only* (I do not know any more ways of emphasising that particular word) way to hold RoA is to hold British citizenship. For such people, RoA *cannot* be acquired without British citizenship.

As you were born after that particular date, therefore your claim to RoA hinges entirely on whether you are a British citizen or not.

UK nationality law limits automatic descent of British citizenship to one generation outside the UK.

Your father was born outside the UK and Colonies before 1983 and was therefore a CUKC by descent.

On 1st January 1983, by operation of law, your father became a British citizen by descent, because he had CUKC status by descent.

British nationality law does not allow automatic descent of British citizenship to children born outside the UK to children born to British citizens by descent.

Therefore you are not a British citizen.

Therefore you do not hold RoA.

QED.

The pre-1983 Section 2 of the Immigration Act 1971 does not apply to you because you were born after 1983. It did apply to the lady in that thread because she was born before that date. Because of that simple fact, you cannot draw parallels between your case and her case.

PS: I knew I had discussed similar points before. See this thread to see an example when the change in law disadvantaged a person born before the change of law, but whose younger brother born after the change benefitted from the change of law.

Be aware that there are no direct parallels between that case and yours. I am just using it as an example where the advantage of the change of law can go the other way.

Sha101 wrote: ↑

Fri Dec 17, 2021 3:05 pm

Agree Lady retained her CUKC status, As she was born to parent from the UK.

Also, crucially, she acquired her CUKC status by birth in a British colony.

That is to say that she acquired her CUKC status, not by descent, but otherwise than by descent. And that makes a huge difference.

Had she been born in Kazakhstan or Kathmandu, she would have been in the same situation as you. But she was not.

secret.simon wrote: ↑

Fri Dec 17, 2021 5:28 pm

Sha101 wrote: ↑

Fri Dec 17, 2021 3:05 pm

Agree Lady retained her CUKC status, As she was born to parent from the UK.

Also, crucially, she acquired her CUKC status by birth in a British colony.

That is to say that she acquired her CUKC status, not by descent, but otherwise than by descent. And that makes a huge difference.

Had she been born in Kazakhstan or Kathmandu, she would have been in the same situation as you. But she was not.

One final question?

Colony CUKC's otherwise than by descent who had ROA in the UK, under section 2(1)(b) and 2(1)(d). became British Citizen otherwise than by decent.

Or

Is it under section 2(1)(c). after completing five year residency in the UK.

Or

Is it doesn't matter under whatever provisions.because crucially Lady was a Colony CUKC otherwise than by descent, therefore became British Citizen otherwise than by descent.

Sha101 wrote: ↑

Sat Dec 18, 2021 7:58 pm

Colony CUKC's otherwise than by descent who had ROA in the UK, under section 2(1)(b) and 2(1)(d). became British Citizen otherwise than by decent.

Yes.

14 Meaning of British citizen (by descent).

(1)For the purposes of this Act a British citizen is a British citizen “by descent” if and only if—
...
(iii)had the right of abode in the United Kingdom by virtue only of paragraph (b) of subsection (1) of section 2 of the M1Immigration Act 1971 as then in force (connection with United Kingdom through parent or grandparent), or by virtue only of that paragraph and paragraph (c) of that subsection (settlement in United Kingdom with five years’ ordinary residence there), or by virtue only of being or having been the wife of a person who immediately before commencement had that right by virtue only of the said paragraph (b) or the said paragraphs (b) and (c); or

As regards the impact of RoA on citizenship by descent, the language of the Act emphasises (with the word "only") that only if the RoA is based solely on 2(1)(b) or a combination of 2(1)(b) & 2(1)(c), would a CUKC otherwise than by descent become a British citizen by descent.

Note that 2(1)(d) is extremely limited in scope. Not only must the person be a Commonwealth citizen (and never lose that Commonwealth citizenship), they must be born before 1983 and one of their parents (not any of the preceding generations, but the immediately direct parent) must have been born in the UK (not a colony). I suspect that is why it is not listed in the subsection of Section 14 quoted above.

Sha101 wrote: ↑

Sat Dec 18, 2021 7:58 pm

Is it under section 2(1)(c). after completing five year residency in the UK.

No. If a person had RoA solely through 2(1)(c) (five years residency in the UK) and also had CUKC otherwise than by descent (by birth in a colony before independence and not automatically acquiring the citizenship of that post-colonial nation, for instance), they would become a British citizen otherwise than by descent on 1st January 1983.

That RoA however would not have been inheritable by their children born abroad, but would have been personal and specific to the person completing those five years (that is the underlying story of the thread that I had posted yesterday).

However, if they had RoA by descent under 2(1)(b), five years residence in the UK would not wash away the "by descent" part.

Sha101 wrote: ↑

Sat Dec 18, 2021 7:58 pm

Is it doesn't matter under whatever provisions.because crucially Lady was a Colony CUKC otherwise than by descent, therefore became British Citizen otherwise than by descent.

That is literally what the whole of the thread on the other forum posted by you is about.

I mentioned in one of my earlier responses that in order to become a British citizen otherwise than by descent at commencement, a person would have needed to have both CUKC status otherwise than by descent AND RoA otherwise than by descent on 1st January 1983.

Although the lady had CUKC otherwise than by descent, the Home Office contended that she had RoA by descent (solely under 2(1)(b)) and therefore was a British citizen by descent herself. That is why her children could not be born as British citizens.

The lawyer argued (and the Home Office seem to have accepted) that she had RoA under both 2(1)(b) and 2(1)(d).

Because she had RoA under 2(1)(d) as well as 2(1)(b) (not solely under either 2(1)(b) or 2(1)(b) & (c)), she had RoA otherwise than by descent. And we know that she had CUKC status otherwise than by descent. That made her a British citizen otherwise than by descent and therefore her two children were accepted as British citizens by descent.

Truly grateful to you Secret Simon for analysing the whole topic.

secret.simon wrote: ↑

Sat Dec 18, 2021 8:49 pm

Sha101 wrote: ↑

Sat Dec 18, 2021 7:58 pm

Colony CUKC's otherwise than by descent who had ROA in the UK, under section 2(1)(b) and 2(1)(d). became British Citizen otherwise than by decent.

Yes.

14 Meaning of British citizen (by descent).

(1)For the purposes of this Act a British citizen is a British citizen “by descent” if and only if—
...
(iii)had the right of abode in the United Kingdom by virtue only of paragraph (b) of subsection (1) of section 2 of the M1Immigration Act 1971 as then in force (connection with United Kingdom through parent or grandparent), or by virtue only of that paragraph and paragraph (c) of that subsection (settlement in United Kingdom with five years’ ordinary residence there), or by virtue only of being or having been the wife of a person who immediately before commencement had that right by virtue only of the said paragraph (b) or the said paragraphs (b) and (c); or

As regards the impact of RoA on citizenship by descent, the language of the Act emphasises (with the word "only") that only if the RoA is based solely on 2(1)(b) or a combination of 2(1)(b) & 2(1)(c), would a CUKC otherwise than by descent become a British citizen by descent.

Note that 2(1)(d) is extremely limited in scope. Not only must the person be a Commonwealth citizen (and never lose that Commonwealth citizenship), they must be born before 1983 and one of their parents (not any of the preceding generations, but the immediately direct parent) must have been born in the UK (not a colony). I suspect that is why it is not listed in the subsection of Section 14 quoted above.

Sha101 wrote: ↑

Sat Dec 18, 2021 7:58 pm

Is it under section 2(1)(c). after completing five year residency in the UK.

No. If a person had RoA solely through 2(1)(c) (five years residency in the UK) and also had CUKC otherwise than by descent (by birth in a colony before independence and not automatically acquiring the citizenship of that post-colonial nation, for instance), they would become a British citizen otherwise than by descent on 1st January 1983.

That RoA however would not have been inheritable by their children born abroad, but would have been personal and specific to the person completing those five years (that is the underlying story of the thread that I had posted yesterday).

However, if they had RoA by descent under 2(1)(b), five years residence in the UK would not wash away the "by descent" part.

[quote=Sha101 post_id=2047100 time=16398

The lawyer argued (and the Home Office seem to have accepted) that she had RoA under both 2(1)(b) and 2(1)(d).

Because she had RoA under 2(1)(d) as well as 2(1)(b) (not solely under either 2(1)(b) or 2(1)(b) & (c)), she had RoA otherwise than by descent. And we know that she had CUKC status otherwise than by descent. That made her a British citizen otherwise than by descent and therefore her two children were accepted as British citizens by descent.

Judgment I posted at the beginning probably correctly decided.

Judge didn't give better reasoning on the Judgment, but this is what i think.

The passport at page 10 had an entry certificate stamp dated 19 August 1976 for settlement/accompanying mother to join father.

Sponsor's mother was commonwealth citizen had RoA under section 2(2)(a), of the Immigration Act 1971. the sponsor was accompanying mother as her dependent to join father.

Sponsor had RoA thorough his relationship with CUKC father and also had RoA thorough his mother a commonwealth citizen.

Apologies secret Simon I'm not trying to circumvent my claim, but only trying to explore any possibilities.