British citizen other than by descent? Kenya/Wales/NZ

[kiwirobnz]

We would appreciate help interpreting the BNA complexities. The basic facts

My husband was born in Kenya 1957.

Both his parents were born in Wales (UK citizens) in 1918/1920.

My husband has a recent British Passport which states he is a British Citizen.

We live in New Zealand. (I am no use for this discussion - only NZ and South African heritage)

Our children were born in NZ in 1999 & 2001.

1. Is my husband a British Citizen other than by descent?

2. If so, our children are British by descent? (We would then apply for British Passports for them, and then I'd have a few more questions but if not eligible, the discussion can stop here).

Many thanks for any help, Rob

[barker]

Hi Kiwirobnz,

Your husband is British by descent. you might find the following information helpful

http://www.ukba.homeoffice.gov.uk/briti ... ornabroad/

[Amber]

Has your husband lived in the UK or a qualifying territory for 3 years?

If my memory serves me right I think there may have been some special case regarding Kenya and allowing people in your husband's situation to be British otherwise than by descent, but it'll need looking into as I'm not certain I think it's something to do with Kenyan citizenship was not offered to people born there before independence who had British citizenship. You should try and get the Home Office to agree, if they do, the children born in NZ would be British by descent if not they may be entitled to register as British subject to the sentence I wrote at the beginning.

[kiwirobnz]

Thank you to those who have replied.

My husband was a CUKC and had right of abode prior to 1983.

We think it is the determination of his right of abode that affects whether he is "otherwise" or "by descent". We think he had right of abode because both parents were born in UK.

He has never been a Kenyan citizen, the family immigrated to NZ instead of staying in Kenya.

We don't mind filling in forms, and we have birth certificates etc, but just nothing about how my husband had right of abode - and that old passport was stolen.

Do you think it could be worthwhile going through a "nationality status" process for our children?

My husband's stay in the UK as an adult was patchy, as is our documentation, so if we don't have to use that route, we'd rather not.

[kiwirobnz]

bump

[kiwirobnz]

Thank you Amber

You have suggested: You should try and get the Home Office to agree.

Can you please clarify if we do that by using the NS form and pay 94 GBP or if we can just write a letter asking for confirmation that he is British Otherwise than by Descent.

[Amber]

Yes, try form NS as it's not too expensive. Include all information you can about them not having Kenyan citizenship and ask them to look into the Father being British otherwise than by descent and the grandchildren British by descent.

[kiwirobnz]

FYI - we did the NS form and got a fairly quick reply back that my husband is a citizen by descent. Oh well, at least we know. I am not really convinced it was well investigated, but there isn't much we can do about it without using a UK lawyer, and from here in NZ, it is just too difficult.

We'll go down the really expensive route (for us) of my husband's three year residency to get them citizenship. Hopefully it works.

Any advice about the evidence required to proove or disprove residence would be appreciated.

He was there from 1979 to 1983 but had a few trips through Europe etc. Alot of his work was cash-type or pub jobs so not much info from that. He does have a deposit book from that time lurking about. I am hopeful that we have enough information to make it easy for them but it would be great to know if anyone has gone through this process.

[vinny]

What were your husband's parents' occupations?

[kiwirobnz]

Husband's father worked for East Africa Railways and Harbours in Kenya (Nairobi) at the time of my husband's birth, and his mother was a housewife (1957).

[vinny]

If his father was in the British Crown service, then he may have been British otherwise than by descent.

[kiwirobnz]

Thanks Vinny. He applied for NS documentation to see if he was a citizen otherwise than by descent, but unfortunately, the result was citizen by descent, so we have to go through the Section 3(2) route.

[vinny]

Just checking that they didn't miss anything obvious.

[kiwirobnz]

Thanks again Vinny. We were more disappointed that the 1948 Immigration Act 'promise' of section 4 didn't last into the 1981 Act. It seemed that my husband was a CUKC by birth at birth in 1957, but became by descent in 1981.

Hey ho, we're hopeful the section 3(2) will work and his lack of information from his time in the UK during '79-'83 won't be too much of a problem.

[Gsoundop]

Hi kiwirobnz,
I am going through the same process at the moment and I have a very similar background.
I live in NZ.
I was born in Kenya in 1952. My father was born in Scotland, my mother in Kenya.
My children born in NZ in 1987 and 1991.
I have paid to get this checked and it looks very positive. I have to decide whether I pay more money to get a Home Office report done before I try to get my children citizenship.
The initial finding is that I have citizenship other than by descent.
Getting them British passports would be useful but not essential so I have to weigh up the cost vs benefit.
Oh I forgot to say my mother's brother and father worked for EAR&H.

[kiwirobnz]

Thanks for that reply. Interesting. Who did you pay to determine if you were citizen by descent? We used the UK Nationality Status form and they determined it was "by descent".

[kiwirobnz]

There seems to have been a change or at least an update relating to Right of Abode in August 2015.

While the Nationality Status determination we got from Home Office in 2014 said my husband only had ROA because of his father's birth in the UK, we think there is more clarity about how ROA is determined. There is a table that suggests that he had ROA through 2(1)(b)(i) before the commencement of the 1971 Immigration Act but that became 2(1)(a) with the commencement of the 1981 BNA.

Does anyone know if there is really a change, or more clarity?

Thanks.

[vinny]

See also CoE-RoA.

RoA and British citizenship may be different for people born prior to 1983.
All British citizens have the RoA.
Some Commonwealth citizens have RoA.
However, all people born from 1983 with RoA are British citizens.

[kiwirobnz]

Thanks Vinny. The 2014 NS advice said my 1957 Kenya Colony born husband was:
"British citizen ‘by descent’ under section 14(1)(b)(iii) of the British Nationality Act 1981 because he was a Citizen of UK & Colonies who had right of abode in the UK by virtue of my father’s birth in the UK."

However, I agree with you CoE post:
"Note that 2(1)(a) does not differentiate on the many ways a person may be British. Consequently, all British citizens automatically have the Right of Abode. So, it doesn't matter how/why the applicant is British. Therefore, 6(a) is always true for all British citizens."

Do you, or anyone one else, agree with us that we should question the NS statement? He had ROA by virtue of being a BC prior to 1983? And then is BC otherwise than by descent?

Or are we missing something? Thanks again for anyone's comments in reading this. We have really struggled to understand what happened with the s.4 1948 BNA status and direct connection to UK through legitimate father.

[vinny]

I don't think that having RoA affects British citizenship by descent or otherwise than by descent in any way.

[kiwirobnz]

ROA is central to my husband's case of by descent or otherwise, because he is 'by descent' if he

who was a citizen of the United Kingdom and Colonies who:
• had the right of abode under s.2(1)(b) only of the Immigration Act
1971 (s.14(1)(b)(iii)); or
• had the right of abode under s.2(1)(b) only and s.2(1)(c) of the
1971 Act (s.14(1)(b)(iii));

It is really important therefore, with the new 2015 ROA instructions that have appeared, that if he has ROA only through his father. However, if before the 1981 BNA came into force, he had ROA because of CUKC citizenship and s4 of the 1948 BNA, he should be a citizen otherwise than by descent.

[Gsoundop]

kiwirobnz, I know you have sent me a private message but the website says I'm not authorised to receive private messages. Please email me at xxxxxxxxxxxxx

Note As this is a public forum, I have removed all personal identifying details from your post so as to maintain your privacy & security.

Ref forum T&Cs (click)
- Board Moderator

[kiwirobnz]

An update for those of you who have assisted or are following this:

We re-applied for a Nationality Status determination and both children have been confirmed by the Home Office as British Citizens under section 12(1)a of the BNA 1981.

This means that their father, born in the UK Colony of Kenya in Nairobi in 1957, with UK born parents, was a Citizen Otherwise Than By Descent, not By Descent which is what the Home Office's first determination was.

Unfortunately, despite pretty much determining this ourselves, we went the expensive but much faster British lawyer/immigration consultant route to finally sort this out.

I am disappointed that it seemed to take the lawyer's letterhead etc to make the HO take notice but at least it worked, five years after I'd first figured out they must be UK citizens.

[kiwirobnz]

oops - don't seem to be able to edit my post. they are British Citizens unders section 2(1)(a) of the BNA 1981, not section 12.

[kiwirobnz]

Closure to this:

So eventually, we paid the vast sums one of the prominent British consultants/lawyers to formalise the work we'd already done, and do a nationality status application for each of our children. I suspect the fancy letterhead helped, and the Home Office confirmed that they were BC by descent, which means their dad, born in 1957 in the Colony of Kenya with UK born parents, was a citizen otherwise than by descent.

I do think the original NS that we had done whereby the HO said their dad was a citizen by descent was just wrong, but at that time, 4 years ago, we didn't have the confidence to request a review.

After 4.5 years, and about NZ$3,000 (~GBP1500), they have their UK passports in their hands!

Thanks to everyone who has helped.