dave21683 wrote:
Why is this exactly? I thought that the whole law change in 1983 meant that people could backdate applications for citizenship that they should have got had the law been the same as what the 83 bill was changing it to. But if he can't get it seems weird that I can (not that I am complaining!)
Good question! The reply is a little long-winded, so here goes:
Generally speaking, a person registered as a Citizen of the UK & Colonies (CUKC) in the United Kingdom - which included registration by the British High Commission in an independent Commonwealth country (something not possible since 1983) - was sufficient to confer Right of Abode (ROA) in the United Kingdom under the Immigration Act 1971 (in force from 1 January 1973).
However, section 2(2) of the 1971 Act provided that:
"... in subsection (1)(a) and (b) above references to registration as a citizen of the United Kingdom and Colonies shall not, in the case of a woman, include registration after the passing of this Act [28 October 1971] under or by virtue of section 6(2) (wives) of the British Nationality Act 1948 unless she is so registered by virtue of her marriage to a citizen of the United Kingdom and Colonies before the passing of this Act."
So your mother did not get Right of Abode through her registration as a CUKC, because she was married only after the cut-off date of 28.10.71.
It didn't matter to her because the Act gave her ROA based on her husband.
Fast forward to 2003 and the new section 4C of the British Nationality Act 1981, to deal with overseas born children of British mothers. There are
three requirements to register as a British citizen under the Act:
- born between 8 Feb 1961 and 31 December 1982 (clearly your brother is ok here); and
- would have been a CUKC if women had been able to pass on their CUKC status in the same way as men at the time (again, no issues here as any man naturalised or registered as CUKC could normally pass it on, except some specific exceptions not relevant here).
- if your brother had been a CUKC before 1983, he would have had Right of Abode in the United Kingdom. This is where it gets more problematic. For the purposes of ROA under the Immigration Act 1971, your mother was not considered "registered in the United Kingdom" so your brother could not have got ROA based on her status. If neither parent nor grandparent had a UK link, and if he didn't get ROA based on his own UK residence pre 1983 (clearly impossible) then he would not have acquired a Right of Abode in the U.K. under the Immigration Act 1971 as it was at the time. Hence he would not have become a British citizen on 1.1.1983 but instead would have become a British Overseas citizen on 1.1.1983.
And hence, he does not meet the third requirement for section 4C registration, so can't register as a British citizen now.
Unfortunately he can't get Right of Abode either, for the same reason. And with no U.K. born grandparents, the Ancestry Visa is out too.
You had the benefit of a loophole in the 1981 Act. Really, to be consistent with the terms of the 1971 Act, section 14 of the 1981 Act should have included your mother's situation as leading to British citizenship "by descent". But it did not do so - the only s6(2) registration women who became British citizens by descent were those whose husbands became British citizens by descent (or would have become, if living).
And by default, every British citizen not specifically defined as a British citizen by descent automatically became a British citizen "otherwise than by descent".
So what it boils down to is that you have effectively been able to benefit from the fact your mother's ex-husband was U.K. born, while the pre-1983 combination of citizenship/immigration laws does not confer the same benefit on your brother.
I'm open to correction if anyone else can do better than this.
