Does my husband have automatic claim to british citizenship?

[wowowo]

hi everyone, I've been going through some nationality law and found that my husband might have automatic claim to british citizenship at commencement of British Nationality Act 1981. Can anyone advice please?

- My husband was born in 1981 in Hong Kong which was then a colony of UK
- His father was born in 1950s in Hong Kong
- His grandfather and grandmother (father side) was born in 1930s also in Hong Kong

According to BNA 1981 section 11 (1),

Citizens of U.K. and Colonies who are to become British citizens at commencement

(1)Subject to subsection (2), a person who immediately before commencement—

(a)was a citizen of the United Kingdom and Colonies; and

(b)had the right of abode in the United Kingdom under the M1Immigration Act 1971 as then in force,

shall at commencement become a British citizen.

(2)A person who was registered as a citizen of the United Kingdom and Colonies under section 1 of the M2British Nationality (No. 2) Act 1964 (stateless persons) on the ground mentioned in subsection (1)(a) of that section (namely that his mother was a citizen of the United Kingdom and Colonies at the time when he was born) shall not become a British citizen under subsection (1) unless—

(a)his mother becomes a British citizen under subsection (1) or would have done so but for her death; or

(b)immediately before commencement he had the right of abode in the United Kingdom by virtue of section 2(1)(c) of the Immigration Act 1971 as then in force (settlement in United Kingdom, combined with five or more years’ ordinary residence there as a citizen of the United Kingdom and Colonies).


and Immigration Act 1971 section 2 (1) (b)

A person is under this Act to have the right of abode in the United Kingdom if--
(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either -- (ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it.


So, his grandfather and grandmother were British Subject by birth then became CUKC under BNA 1948. My father in law was born as a CUKC and so was my husband. therefore my husband should have the right of abode under IA 1971. Thus my husband should have became a British Citizen at commencement of BNA 1981?

Does that make any sense? If he does have the claim of British Citizenship is it possible for him to claim it back now and how? He is now holding a British National Overseas passport because his right were deprived by the British Government, at the time of his birth he was a CUKC then became a BDTC then BNO.

Thanks in advance, any help will be appreciated.

[JAJ]

Read the Immigration Act again, including the pieces you have missed out.

"... he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and

the parent either-
(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands ; or
(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it ; or ... "

[wowowo]

Thank you for the reply!

"... he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and

the parent either-
(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands ; or
(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it ; or ... "

Sorry im no expert in the this area but if I have interpreted it correctly, the parent only has to fulfill either (i) or (ii) right? my husband grandfather and grandmother did have CUKC status at the time of my father in law's birth. They were born 1930s in the Crown's Dominions were born as British Subject. when BNA 1948 came into effect they became CUKC. So (ii) was fulfilled.

[JAJ]

Sorry im no expert in the this area but if I have interpreted it correctly, the parent only has to fulfill either (i) or (ii) right? my husband grandfather and grandmother did have CUKC status at the time of my father in law's birth. They were born 1930s in the Crown's Dominions were born as British Subject. when BNA 1948 came into effect they became CUKC. So (ii) was fulfilled.

They may have had CUKC but it looks like they had it by connection with Hong Kong, not the United Kingdom. Big difference. As a general rule, in order to become a British citizen in 1983 you had to be a UK-connected CUKC, not a Colony-CUKC.

[wowowo]

hi thank you again for the reply.

Can you please clarify on which part of the law does it say it has to be UK-CUKC? as far as im concerned CUKC stands for Citizen of United Kingdom AND COLONIES, i think the term says it all. if Colony-CUKC is any difference to UK-CUKC why such terms never existed?

I have also had a look at the Nationality caseworking instruction in UKBA website, http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

The flow chart actually determines that my husband has the right of abode in the uk at 31 Dec 1982 under IA 1971 Section 2 (1) (b) (ii).

I think thats if only the parent had CUKC was not sufficient but if parent's parent was also a British Subject or CUKC then it can prove one has sufficient connection with the UK.

[JAJ]

The flow chart actually determines that my husband has the right of abode in the uk at 31 Dec 1982 under IA 1971 Section 2 (1) (b) (ii).

The flow-chart is missing some words referring to acquiring CUKC by connection with the UK itself.

Read the original Act at:
http://www.opsi.gov.uk/acts/acts1971/pd ... 077_en.pdf

By the way - you don't really think everyone in Hong Kong in 1983 got Right of Abode in the UK ?

[wowowo]

hi JAJ, thanks for the reply. An answer to your question, no, I do not think everyone in HK got right of abode in 1983. Im not sure whether u know HK very well or not, but not many people are actually native HKer. The majority of ppl there have parents or grandparents came from China during WW2. Hence they wouldnt have such connection (i.e. British Subject grandparents or CUKC parents).

I am not trying to question your knowledge, I know u r very knowledgeable in immigration law. but i just thought maybe it is a loophole. I have read the link u gave me over and over again (section 2). If I just put the bits that applies to my husband's case in one sentence, it will be,

A person is under this Act to have the right of abode in the United Kingdom if he is a citizen of the United Kingdom and Colonies born to by a parent who had that citizenship at the time of the birth and that parent had been born to by a parent who at the time of that birth so had it.

Please correct me if im wrong, i think there will be one argument, which is the last three words. SO HAD IT. so had CUKC status or right of abode? however, according to the flow chart, Was either of the parent's parent when the parent was born or legally adopted a CUKC by birth, adoption, naturalisation or registration? It only ask if the parent's parent was a CUKC or not! given that there is still plenty of room after the sentence, why dont they put 'in the UK' after it if this is a requirement?

I dunno... maybe this is just my imagination. but i really dont see any reason for HO to decline this claim.

Anyway, can u please tell me if form NS is the way to go please? given that £76 is quite a reasonable price it might be worth a try do u think?