registration for child - automatic vs discretionary

[Mckk]

I need to know: is there a difference between the entitlement TO APPLY (discretionary registration), and the entitlement TO BE REGISTERED (automatic registration)?

In other words, if I apply, do I know if my daughter will definitely be approved or not? (I understand I will be applying under MN1, Section 3(2) as we're still living abroad)

Background: my dad acquired British Citizenship under the British Nationality (Hong Kong) Act 1990, which means under this 1990 Act, Section 2(1), my dad is a British Citizen OTHERWISE THAN BY DESCENT.

I unfortunately acquired mine by virtue of being his minor - spousal and minor children's registrations are acquired under the same 1990 Act but under Schedule 2, which means I am a British Citizen BY DESCENT.

However, I would be the FIRST GENERATION of a "by descent" citizen, which means my daughter, who was born outside the UK, is entitled to register as a British citizen.

Now the application costs £970+ - that's half of my savings. I've desperately trying to find out, if there's any certainty that my daughter's application will be successful?

She is 2 years old. I saw on some lawyer's site that technically she should have applied within 1 year of her birth, though the Home Secretary holds the right to discretion for up to 6 years after the child's birth. I haven't been able to verify this particular detail yet.

So... is the entitlement to register the same as entitlement to BE REGISTERED?

[Indguru90]

Hi McKK,

There is strictly no such thing as an "entitlement to apply", as one has a right to apply for anything by default. However, there is a distinction between registration by discretion and by entitlement, as you correctly point out. You are asking whether your daughter, as the child of a British citizen (BC) by descent by virtue of BN(HK)A 1990, Sched.2, has a legal entitlement to registration as a BC. Please note that if the application based on entitlement were to be approved, your daughter would be a BC otherwise than by descent. Your daughter must be under the age of 18 for the application to be receivable. I don't know where you got the information about registration within one year from.

The answer to your question is that there is an entitlement under s.3(2) or s.3(5), but on the facts stated by you, I don't think you satisfy the statutory requirements of either provision. I apologise for the convoluted answer below but I think you'll probably want to know what the precise legal position is so you can seek further advice as required. The registration provisions are pretty complex.

Let me set out the requirements of s.3(2) first. Three conditions need to be satisfied under s.3(2).

- Condition 1: you must have been a BC by descent at the time of your daughter's birth: tick

- Condition 2: your father was a BC otherwise than by descent at the time of your birth - if you were registered after birth, as you probably were, this requirement in s.3(3)(b)(i) is not satisfied.

- Condition 3: you (and only you) must at some stage in your life have lived in the UK for three years, having been absent for no more than 270 days in that period. Please clarify whether you have ever spent a consecutive three-year period in the UK with absences below the statutory maximum

(Note: the good character requirement in BNA 1981 s.41A does not apply to your daughter as she's not yet 10 years of age.)

Depending on your answers to the questions in green, you daughter may or may not have an entitlement. If she does not, there are other avenues to registration:

Section 3(5) BNA 1981 - the Home Office will actually always test first whether there is an entitlement under s.3(5) before turning to s.3(2) in the alternative, see Nationality Guidance "Registration as British citizen: children", p.12.
The conditions here are that:
1) you were a BC by descent when your daughter was born - tick
2) you, your spouse and your daughter have lived in the UK for three years with no more than 270 days' absence each As your daughter is only 2, you cannot by definition satisfy this requirement, and s.3(5) is not an option for you. In any event, you're resident in HK not the UK.

This leaves the general clause in s.3(1), which gives the Home Secretary discretion to register any minor - this is not an entitlement and would only give your daughter BC by descent. The caseworking instructions clearly state that each s.3(1) application must be considered on its merits. The only statutory requirements for a minor registration at discretion is that the Home Secretary "sees fit" to register your daughter. Unfortunately, the guidance does not directly address a situation such as yours, where the child is the child of a British citizen by descent but does not qualify under the entitlement provisions in s.3(2) or s.3(5). Any application for registration under s.3(1) would therefore be more or less speculative, unfortunately. It's up to you to decide whether this would be worth well nigh a grand to you.

[Indguru90]

I need to know: is there a difference between the entitlement TO APPLY (discretionary registration), and the entitlement TO BE REGISTERED (automatic registration)?

In other words, if I apply, do I know if my daughter will definitely be approved or not? (I understand I will be applying under MN1, Section 3(2) as we're still living abroad) See the detailed answer given above.

Background: my dad acquired British Citizenship under the British Nationality (Hong Kong) Act 1990, which means under this 1990 Act, Section 2(1), my dad is a British Citizen OTHERWISE THAN BY DESCENT.

I unfortunately acquired mine by virtue of being his minor - spousal and minor children's registrations are acquired under the same 1990 Act but under Schedule 2, which means I am a British Citizen BY DESCENT.

However, I would be the FIRST GENERATION of a "by descent" citizen, which means my daughter, who was born outside the UK, is entitled to register as a British citizen.Entitled only if you have previously lived in the UK for three years, as per explanation above. The entitlement under s.3(2) is tied to some very strict conditions.

Now the application costs £970+ - that's half of my savings. I've desperately trying to find out, if there's any certainty that my daughter's application will be successful?Given that you'll likely need to make a section 3(1) discretionary application, unfortunately no.

She is 2 years old. I saw on some lawyer's site that technically she should have applied within 1 year of her birth, though the Home Secretary holds the right to discretion for up to 6 years after the child's birth. I haven't been able to verify this particular detail yet.I don't know what this is about but it's not about registration as a BC.

So... is the entitlement to register the same as entitlement to BE REGISTERED? That's a different question from what you ask at the outset but the way you put it here, yes it's the same thing.
Sections 3(2) and 3(5) entitle you to register/be registered. However, section 3(1) merely gives the Home Secretary discretion to register if she "sees fit".

[Mckk]

Thank you so much for your detailed responses. After reading your post I did more research and you are right that my dad would have had to be a citizen at the time of MY birth. However, the legislature also states "or became a 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" (source: http://www.legislationline.org/download ... 003_en.pdf)

What is "at commencement" here?

There is an oxford comma before "or", which means the "but for his death" clause is separate from the first condition.

As for absences - that's another confusing thing. I grew up in England - I moved there in 1995 when I was 8 years old, and then I moved to the Czech Republic (resident in Cz now) in 2010 when I was 22 or something. So I certainly have 3 consecutive years in the UK - but not 3 consecutive years immediately prior to my daughter's birth. The MN1 guide says 3 YEARS AT ANY TIME BEFORE THE CHILD'S BIRTH is fine - however the MN1 application form wants absences at any RECKONABLE TIME. Needless to say, I'm a bit confused now.

[JAJ]

"Commencement" is 1 January 1983. This is the date the British Nationality Act 1981 came into force.

You appear to meet the residential requirement for Section 3(2) registration of your child but the application would fail because you did not have a British citzen (otherwise than by descent) parent when you were born. Intentionally or otherwise- this is an anomaly because had you been born after your parent became a British citizen, you would have acquired British citizenship by descent under the general provisions of the law and you would be able to pass on British citizenship under section 3(2).

The Home Office might consider this case or registration under section 3(1)- but there is no guarantee. Would you be prepared to lose the application fee?

Other options may depend on:
- Does child have the nationality of the other parent and/or the Czech Republic. If you are ethnically Chinese, then the child may also have Chinese-HKSAR nationality.
- Do you intend to return to the U.K. at any stage in the future?

[secret.simon]

However, the legislature also states "or became a 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" (source: http://www.legislationline.org/download/action ... 003_en.pdf)What is "at commencement" here?

The commencement that is talked of is the commencement of the Act on 1st January 1983. That provision outlines what happens to those people who were already Citizens of the United Kingdom and Colonies on 1st January 1983 and would not be applicable in the case of your father, as there were significant subsequent changes to the status of people resident in Hong Kong.

The Section 3(2) entitlement for your child to be registered as a British citizen would not apply in your child's case as your parent was not a British citizen at the time of your birth.

(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

At the commencement of the British Nationality Act 1981 on 1st January 1983, your father would have most likely become a British Dependent Territory Citizen (BDTC), not a British citizen, unless he had a family connection to the UK (either he or one of his parents was born in the UK).

Possible future Section 3(5) entitlement - If you decide to move along with your family to the UK, your daughter would be entitled to be registered as a British citizen after residing with you in the UK for three years, provided she is still a minor at that time. That means that you must move to the UK with her before she reaches the age of 15. Such registration has no requirements about the status of your father at the time of your birth. Such registration would make her a British citizen otherwise than by descent.

You could of course make a discretionary application to the Secretary of State under Section 3(1), arguing that but for the requirement for your father to have been a British citizen at your birth, all other conditions of Section 3(2) are satisfied and that children of minors registered under the British Nationality (Hong Kong) Act 1990 ought to be treated sympathetically. But that is a discretionary application and given that the child has not shown that her future lies in the UK, it may be rejected.

On a side note, if the child is registered under either Section 3(1)-discretionary-or 3(2)-entitlement-, she will in her own turn become a British citizen by descent. Only Section 3(5) will allow her to become a British citizen otherwise than by descent.

(1) For the purposes of this Act a British citizen is a British citizen “by descent” if and only if—
(a) he is a person born outside the United Kingdom after commencement who is a British citizen by virtue of section 2(1)(a) only or by virtue of registration under section 3(2) or 9; or
...
(c) he is a British citizen by virtue of registration under section 3(1) and either—

• (i) his father or mother was a British citizen at the time of the birth; or
  (ii) his father or mother was a citizen of the United Kingdom and Colonies at that time and became a British citizen at commencement, or would have done so but for his or her death; or

EDIT: Overtaken by JAJ's more succinct post.

[Mckk]

My daughter is a Czech citizen, part of the EU. My concern is what do I do once the UK leaves the EU? How would I even get my child into the UK with me and stay for 3 years in order to qualify for the entitlement under Section 3(5)? Should I be looking into child visas, indefinite leave to remain, what? I don't have £18k to prove I can sustain my child - I only work part-time! My husband is the one who pays the bills and in any case, we don't have that level of savings.

We visit the UK 3-4 times a year because her grandparents, cousins, aunt/uncle are all there. I do have plans to relocate back to the UK one day - no concrete plans but it is my hope to do so one day.

I have not even thought of HK/China citizenship - I don't mind about that one as I have no plans to return there. I'm currently a permanent resident in the Czech Republic and it's either gonna be here or the UK, speaking of the long-term. I don't currently hold a HK passport, though I do have their ID card and thus, the right of abode.

[secret.simon]

My daughter is a Czech citizen, part of the EU. My concern is what do I do once the UK leaves the EU? How would I even get my child into the UK with me and stay for 3 years in order to qualify for the entitlement under Section 3(5)?

We do not know what will happen after 29th March 2019. But, until then, your daughter can accompany you and live with you in the UK. That is a good 20 months, more than half of the three year requirement for Section 3(5) registration.

There will likely be transitional arrangements for EU citizens (such as your daughter) already living in the UK on Brexit day. Just make sure that she qualifies as a self-sufficient person by taking out private health insurance for her and making sure that she does not claim benefits while she is in the UK.

[Indguru90]

My daughter is a Czech citizen, part of the EU. My concern is what do I do once the UK leaves the EU? How would I even get my child into the UK with me and stay for 3 years in order to qualify for the entitlement under Section 3(5)?

We do not know what will happen after 29th March 2019. But, until then, your daughter can accompany you and live with you in the UK. That is a good 20 months, more than half of the three year requirement for Section 3(5) registration.

There will likely be transitional arrangements for EU citizens (such as your daughter) already living in the UK on Brexit day. Just make sure that she qualifies as a self-sufficient person by taking out private health insurance for her and making sure that she does not claim benefits while she is in the UK.

Just to add to secret.simon's post that since you're currently resident in the Czech Republic as a PR, your daughter may qualify under the Surinder Singh route, meaning you don't have to prove sufficient resources and private health insurance/European Health Insurance Card for a self-sufficient person. Of course, this route is pretty likely to disappear once the UK has left the EU.

[JAJ]

My daughter is a Czech citizen, part of the EU. My concern is what do I do once the UK leaves the EU? How would I even get my child into the UK with me and stay for 3 years in order to qualify for the entitlement under Section 3(5)? Should I be looking into child visas, indefinite leave to remain, what? I don't have £18k to prove I can sustain my child - I only work part-time! My husband is the one who pays the bills and in any case, we don't have that level of savings.

We visit the UK 3-4 times a year because her grandparents, cousins, aunt/uncle are all there. I do have plans to relocate back to the UK one day - no concrete plans but it is my hope to do so one day.

Are you planning to become a Czech citizen before you return to the U.K. The Czech Republic now allows dual citizenship (since 2014).

Regarding your daughter. For Section 3(5) registration there is no need for her to hold any kind of U.K. visa.

I have not even thought of HK/China citizenship - I don't mind about that one as I have no plans to return there. I'm currently a permanent resident in the Czech Republic and it's either gonna be here or the UK, speaking of the long-term. I don't currently hold a HK passport, though I do have their ID card and thus, the right of abode.

Assuming you're ethnically Chinese- then as I understand it you remain a Chinese-HKSAR citizen and entitled to the passport. It might be worth clarifying with the Chinese authorities whether your child is also Chinese-HKSAR citizen (or entitled to be registered as a citizen) and if so, what rights and obligations that entails. One of which is that Czech or British consular protection would not be available while in China, if also a Chinese citizen. On the other hand- China-HKSAR citizenship may open up opportunities both in China and elsewhere in Asia for the future.

We do not know what will happen after 29th March 2019. But, until then, your daughter can accompany you and live with you in the UK. That is a good 20 months, more than half of the three year requirement for Section 3(5) registration.

There will likely be transitional arrangements for EU citizens (such as your daughter) already living in the UK on Brexit day. Just make sure that she qualifies as a self-sufficient person by taking out private health insurance for her and making sure that she does not claim benefits while she is in the UK.

Presumably the other parent will be exercising treaty rights and on that basis, as I understand, the child qualifies as a dependent and would not need sickness insurance. As for benefits- does a child claim benefits?

In any case- it's irrelevant for Section 3(5) registration since the child does not need to have ILR/PR- or in fact any visa status in order to apply. The law only requires physical presence in the 3 year period.

[Mckk]

Thank you all for your helpful responses. Yes, I understand that my daughter would not need any kind of visa and residence status in order for her to go through the registration 3(5) route - but I'm just thinking that she WOULD need a visa to even enter the UK once the UK leaves the EU. What would she need to even enter the country, and then legally stay?

Currently my daughter has the typical Czech health insurance. By Czech law, everyone must have health insurance and as a Czech child, her insurance is paid by the state until the age of 18 or until she stops studying. I'm currently on Czech parental benefit, which I'm entitled to by virtue of having a child (not clear on the exact details, but I think you have to be at least a PR, which I am).

And yeah I do have hopes of getting Czech nationality one day. Unfortunately I have been rather lazy with my language acquisition, so I still don't speak Czech. I have only A2 level. I think to go for Czech nationality, I would need at least B2 level. I'm nowhere near!

Ideally, I'd like us all to be both Czech and British. I'm in the best place to get Czech nationality right now, because I'm already PR here and obviously, with jobs and a flat in the country, we're probably staying for some time still.

There's no way we'd be able to move to the UK fast enough before Brexit. We just bought a property in the Czech Republic, and we both enjoy our jobs. My husband could technically look into a transfer to the UK, since he works for Amazon - but then we get into details of job satisfaction, closeness to family (currently we live 1 street away from my husband's parents. In the UK my parents live in Somerset - almost no jobs there in my husband's area ), what on earth I'd even do in the UK job-wise (I teach English by virtue of being a native speaker but I'm not officially qualified). Basically it's a case of - there's actually no financial need to move to the UK - Czech Republic is doing far better than the UK in a lot of respects right now, esp employment, and the international community in Prague is excellent for me. Emotional need to move is split - because my husband's family lives down the road, so he is willing to leave but there's gotta be something he can at least look forward to in the UK - either a good job or the knowledge that we would at least be close to MY parents. I guess these are now getting into the more personal aspects and difficulties of emigrating... My husband is Czech and he also fears the anti-immigrant sentiment that gets reported in the UK. I've been a foreigner all my life so this isn't new to me, but for him, it's scary.

And then to add to this, if I have hopes to apply for Czech nationality, then I can't leave right now... It's not super important to me, I guess, but it seems a shame not to?

I'm not too sure about the Chinese government... I had a brief look at Hong Kong nationality laws (or rather Chinese ones that apply to Hong Kong) and it looks almost as complicated as the British one. One set of complicated laws at a time!!!

[Richard W]

In any case- it's irrelevant for Section 3(5) registration since the child does not need to have ILR/PR- or in fact any visa status in order to apply. The law only requires physical presence in the 3 year period.

That's true if the child is under 10 when registration would occur. Otherwise, deliberately being without a visa when one was required would, according to the general Home Office instructions, be taken as evidence of bad character. Presumably the sins of the parents are to be visited on the children. I don't know whether this is actually happening.