Family visa

[Howard122]

Hello. Please help. I am a bc by decent and currently living in Hong Kong. I am married with 3 kids. I would like to go back to the uk with the kids and my wife will not come with us. (She is non bc) .
So which visa I should apply for my kids? Since I asked few consultants and they all said I need to apply as a “family” . But my wife is not willing to stay in the Uk as she still has business in Hong kong and she will not going to apply for citizenship.

Thank you

[secret.simon]

How old are the children?

Unless you have sole responsibility for the children, I can't see a way for your children to move to the UK with you without your wife.

If you are a British citizen by descent, your children can be registered as British citizens after living in the UK for three years with your wife and you (i.e. both of you), provided they are still under the age of 18 on the date of application for the registration (i.e. after three years).

The only way around that would be if your wife and you were either legally divorced or legally separated. See Section 3(5) and (6) in the link above.

That is why i think you should persuade her to move to the UK, for the sake of the children.

[Howard122]

How old are the children?

Unless you have sole responsibility for the children, I can't see a way for your children to move to the UK with you without your wife.

If you are a British citizen by descent, your children can be registered as British citizens after living in the UK for three years with your wife and you (i.e. both of you), provided they are still under the age of 18 on the date of application for the registration (i.e. after three years).

The only way around that would be if your wife and you were either legally divorced or legally separated. See Section 3(5) and (6) in the link above.

That is why i think you should persuade her to move to the UK, for the sake of the children.

Ok understand. Thank you

[manci]

Have you by any chance lived in the UK at any time for at least 3 years prior to the birth of the children?

[secret.simon]

Have you by any chance lived in the UK at any time for at least 3 years prior to the birth of the children?

Shoot, I forgot to ask that. Good catch.

Also, how did your British citizen acquire their British citizenship?

[Howard122]

Have you by any chance lived in the UK at any time for at least 3 years prior to the birth of the children?

I think I have, 2 years A level and the 1st year in University, which I already have my bc during that time.

[Howard122]

Have you by any chance lived in the UK at any time for at least 3 years prior to the birth of the children?

Shoot, I forgot to ask that. Good catch.

Also, how did your British citizen acquire their British citizenship?

Sorry , my kids don’t have British citizenship, that’s why I would like to take them back to the UK.

[secret.simon]

How did your British citizen parent acquire British citizenship?

[Howard122]

How did your British citizen parent acquire British citizenship?

British National (Hong Kong) act 1990

[manci]

How did your British citizen parent acquire British citizenship?


British National (Hong Kong) act 1990

This unfortunately means that even if you had lived in the UK for 3 years before the children were born, the children don't qualify for registration under section 3(2) of the British Nationality Act 1981 because your British citizen parent (the children's grandparent) did not become British citizen on 1 January 1983 but only later.

[secret.simon]

the children don't qualify for registration under section 3(2) of the British Nationality Act 1981 because your British citizen parent (the children's grandparent) did not become British citizen on 1 January 1983 but only later.

I suspect that the alternative condition in Section 3(2) of the BNA 1981, that the British citizen otherwise than by descent grandparent had that status on the day the British citizen by descent parent was born, is not met in this case either.

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 [F3or 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 [F4and the qualifying territories] in that period does not exceed 270.

To the OP, were you born after your British citizen parent was given British citizenship or before that event?

[manci]

To the OP, were you born after your British citizen parent was given British citizenship or before that event?

You are right to ask the question but if the OP had been born before his parent acquired British citizenship under the British Nationality (Hong Kong) Act 1990 then it is likely that the OP, as a minor, would also have become a BC otherwise than by descent under Schedule 2 of that Act.
https://www.legislation.gov.uk/ukpga/19 ... 1991-02-01

To the OP:
How and when did you acquire British citizenship?

[secret.simon]

if the OP had been born before his parent acquired British citizenship under the British Nationality (Hong Kong) Act 1990 then it is likely that the OP, as a minor, would also have become a BC otherwise than by descent under Schedule 2 of that Act.
https://www.legislation.gov.uk/ukpga/19 ... 1991-02-01

Section 2(1) of the Act makes anybody who was registered under Schedule 2 (including spouses) a British citizen by descent.

2 Consequential nationality provisions.
(1)A person who is registered as a British citizen by virtue of section 1(1) above shall be treated for the purposes of the M1British Nationality Act 1981 (in this Act referred to as “the principal Act”) as a British citizen otherwise than by descent; and a person who is registered as a British citizen by virtue of Schedule 2 to this Act shall be treated for the purposes of that Act as a British citizen by descent.

I think that the OP has no option but to persuade his spouse to move with the rest of the family to the UK, ideally before the 15th birthday of the eldest child (so that they can be registered as British citizens under Section 3(5) before their 18th birthday).

[Howard122]

I was born before my Dad acquired the BC thur the British HK Act 1990. So after all these comments, I guess the only way to do is to get the spouse visa no later my eldest child 15th birthday.

Thank you everyone

[manci]

I guess the only way to do is to get the spouse visa

I am not totally convinced.

The question
Are the OP's children eligible to be registered as BCs?

The OP didn't mention dates so the following is based on assumed dates.

Chronology (assumed)

1991
(I) The OP's British parent (the children's grandparent) was given British citizenship under the British Nationality (Hong Kong) Act 1990. He is now a BC otherwise than by descent.
(ii) The OP as a minor child became a British citizen at the same time, he is now a BC by descent

2000 - 2003
The OP spent 3 years in the UK

2008, 2010, 2012
The OP's 3 children were born outside the UK

Discussion

It seems that if the above chronology is correct the OP's 3 children only fail to be eligible to register as BCs under section 3(2) of the BNA 1981 because their BC grandparent did not become a BC otherwise than by descent on 1 January 1983 but only a few years later.

Could a case be made for the HO to exercise discretion?

[secret.simon]

It seems that if the above chronology is correct the OP's 3 children only fail to be eligible to register as BCs under section 3(2) of the BNA 1981 because their BC grandparent did not become a BC otherwise than by descent on 1 January 1983 but only a few years later.

Could a case be made for the HO to exercise discretion?

A Section 3(2) registration is an entitlement if the specific conditions are met.

The exercise of discretion would kick it to a Section 3(1) application.

Given that the residence period of the British citizen by descent parent (and quite likely the British citizen otherwise than by descent) in the UK is fairly limited, the HO would likely expect the family to move to the UK and reside for at least some time in the UK before exercising discretion.

Besides, a registration under either Section 3(2) or Section 3(1) would make the children British citizens by descent themselves, while a registration under Section 3(5)-after the whole family resided in the UK for at least three years-would make them British citizens otherwise than by descent. So that this whole cycle does not need to repeat itself.