British Citizenship by descent of foreign born British Citizen

[taddo12]

I currently hold British Citizenship via my father although was originally born in France.

My child will be born in Japan with a Japanese mother. I had originally assumed that the child will automatically be entitled to British Citizenship via me and though am seeing contradictory claims as I was not born in UK.

Can I ask whether my child is automatically entitled to a British passport and if not what process we’d need to go through to acquire one?

Thank you very much

[taddo12]

For clarity both myself and wife live in UK, wife is currently on spouse visa though doesn’t yet have indefinite leave to remain.

[vinny]

If your father was in the British crown service when you were born in France, then you may be British otherwise than by descent?

If you are British by descent, then your child is probably not automatically British.

If child is not British, then child may apply for a child settlement visa under Appendix FM-SE, in line with his/her mother.

[taddo12]

If your father was in the British crown service when you were born in France, then you may be British otherwise than by descent?

If you are British by descent, then your child is probably not automatically British.

If child is not British, then child may apply for a child settlement visa under Appendix FM-SE, in line with his/her mother.

Thank you for this. Does my wife’s spouse VISA not allow her to bring the child with her when she returns to the UK?

What is the typical processing time for the visa required you’ve specified? If my wife were to remain in Japan for too long I fear this would jeopardise her application to remain indefinitely and put us in a catch 22 situation.

[secret.simon]

Does my wife’s spouse VISA not allow her to bring the child with her when she returns to the UK?

No. The visa your wife will be issued is for her alone. The child will need their own visa in their own passport.

If you are a British citizen by descent (because you were born in France), you have a choice, after the child's birth, to either
(a) while in Japan, register the child as a British citizen under Section 3(2) of the BNA 1981 (for which you will need your own birth certificate, your parent's British birth certificate, the child's birth certificate and your parents' marriage certificate). That registration will also make the child a British citizen by descent and therefore the child will themselves not be able to pass on British citizenship to their children born abroad.
(b) after the child's birth, apply for a visa in-line with the mother's spouse visa. Then, after three years of living in the UK as a family unit, the child can be registered as a British citizen under Section 3(5) of the BNA 1981. That will make the child a British citizen otherwise than by descent in their own right and they would be able to pass on British citizenship to one generation born outside the UK.

[taddo12]

Does my wife’s spouse VISA not allow her to bring the child with her when she returns to the UK?

No. The visa your wife will be issued is for her alone. The child will need their own visa in their own passport.

If you are a British citizen by descent (because you were born in France), you have a choice, after the child's birth, to either
(a) while in Japan, register the child as a British citizen under Section 3(2) of the BNA 1981 (for which you will need your own birth certificate, your parent's British birth certificate, the child's birth certificate and your parents' marriage certificate). That registration will also make the child a British citizen by descent and therefore the child will themselves not be able to pass on British citizenship to their children born abroad.
(b) after the child's birth, apply for a visa in-line with the mother's spouse visa. Then, after three years of living in the UK as a family unit, the child can be registered as a British citizen under Section 3(5) of the BNA 1981. That will make the child a British citizen otherwise than by descent in their own right and they would be able to pass on British citizenship to one generation born outside the UK.

Thank you again for the comprehensive response.

Option (b) sounds most practical but not while in Japan. As Japanese citizens can remain in UK for up to 6 months with no particular visa anyway can we apply for the baby’s permanent VISA once in UK? In don’t see it being feasible to apply while in Japan (given the evidence required based on the link you sent).

[taddo12]

Apologies what I mean above is apply for the baby’s visa in line with my wife’s spouse visa once we’re in UK.

[taddo12]

Does my wife’s spouse VISA not allow her to bring the child with her when she returns to the UK?

No. The visa your wife will be issued is for her alone. The child will need their own visa in their own passport.

If you are a British citizen by descent (because you were born in France), you have a choice, after the child's birth, to either
(a) while in Japan, register the child as a British citizen under Section 3(2) of the BNA 1981 (for which you will need your own birth certificate, your parent's British birth certificate, the child's birth certificate and your parents' marriage certificate). That registration will also make the child a British citizen by descent and therefore the child will themselves not be able to pass on British citizenship to their children born abroad.
(b) after the child's birth, apply for a visa in-line with the mother's spouse visa. Then, after three years of living in the UK as a family unit, the child can be registered as a British citizen under Section 3(5) of the BNA 1981. That will make the child a British citizen otherwise than by descent in their own right and they would be able to pass on British citizenship to one generation born outside the UK.

For option (b) do you have a rough understanding of the documentation required? Is this more or less proof that we are the parents of the baby and a (translated) birth certificate?

Thanks very much

[secret.simon]

Option (b) sounds most practical but not while in Japan. As Japanese citizens can remain in UK for up to 6 months with no particular visa anyway can we apply for the baby’s permanent VISA once in UK? In don’t see it being feasible to apply while in Japan (given the evidence required based on the link you sent).

The underlined section is incorrect. Japanese citizens can enter the UK for upto six months on the basis of a visit visa issued for the six months, which is either stamped into their passports at the airport or associated with their passports digitally if they use the e-Gates.

While they are in the UK, neither your wife nor your child can switch to another visa (visitors can't switch to other visas within the UK). They need to start the process for application for spousal (and child) visa while outside the UK. And ideally, while the applications are in process, they should not travel to the UK.

If the child is not born yet, it may be a thought to have your wife give birth in the UK. If the child is born in the UK, the child would automatically be a British citizen (as it is born in the UK and at least one of the parents is a British citizen). Indeed, if born in Northern Ireland, it would be a British citizen by birth, eligible for Irish citizenship and quite likely a Japanese citizen by birth too (though they may have to make a choice when they reach 22 years of age as to which citizenship to keep).

[taddo12]

Option (b) sounds most practical but not while in Japan. As Japanese citizens can remain in UK for up to 6 months with no particular visa anyway can we apply for the baby’s permanent VISA once in UK? In don’t see it being feasible to apply while in Japan (given the evidence required based on the link you sent).

The underlined section is incorrect. Japanese citizens can enter the UK for upto six months on the basis of a visit visa issued for the six months, which is either stamped into their passports at the airport or associated with their passports digitally if they use the e-Gates.

While they are in the UK, neither your wife nor your child can switch to another visa (visitors can't switch to other visas within the UK). They need to start the process for application for spousal (and child) visa while outside the UK. And ideally, while the applications are in process, they should not travel to the UK.

If the child is not born yet, it may be a thought to have your wife give birth in the UK. If the child is born in the UK, the child would automatically be a British citizen (as it is born in the UK and at least one of the parents is a British citizen). Indeed, if born in Northern Ireland, it would be a British citizen by birth, eligible for Irish citizenship and quite likely a Japanese citizen by birth too (though they may have to make a choice when they reach 22 years of age as to which citizenship to keep).

Thanks very much for your helpful response.

My wife already has a spouse visa, so if my understanding is correct we need to apply for a dependent visa for the baby once she is born (as a dependent of my wife, rather than myself?). This visa will then need to be attached to her Japanese passport in order for to enter the UK in August. Is this correct?

If so, is there a link outlining the documentation required or online application? I assume that this should mainly consist of proof that we are the baby's parents, birth certificate and copies of our passports etc?

We would have chosen for my wife to give birth in UK (or NI as you've suggested) but she's now almost 37 weeks pregnant and too late to safely travel.

One other question I have, since I will be travelling to UK in June and my wife with the baby in August, is there any special permission I need to write in advance for my wife to present to immigration at Heathrow when she arrives?

Thank you again so much for your help on this

[taddo12]

Does my wife’s spouse VISA not allow her to bring the child with her when she returns to the UK?

No. The visa your wife will be issued is for her alone. The child will need their own visa in their own passport.

If you are a British citizen by descent (because you were born in France), you have a choice, after the child's birth, to either
(a) while in Japan, register the child as a British citizen under Section 3(2) of the BNA 1981 (for which you will need your own birth certificate, your parent's British birth certificate, the child's birth certificate and your parents' marriage certificate). That registration will also make the child a British citizen by descent and therefore the child will themselves not be able to pass on British citizenship to their children born abroad.
(b) after the child's birth, apply for a visa in-line with the mother's spouse visa. Then, after three years of living in the UK as a family unit, the child can be registered as a British citizen under Section 3(5) of the BNA 1981. That will make the child a British citizen otherwise than by descent in their own right and they would be able to pass on British citizenship to one generation born outside the UK.

have looked into this a bit more and option a) seems better. Family visa is around £1500 plus £470 nhs charge for children, plus we'd have to apply for British citizenship anyway, which is around £1000. As I understand home office could refuse family visa application also if they determine the baby is entitled to citizenship?

Looking at 3/2 of the MN1 it seems that conditions are met, since my father was born in UK. You mentioned that we can't bring the baby back on a visitor visa as we can't change to family visa while she's in UK, but is this different when applying for British citizenship?

[vinny]

If you have spent at least 3 continuous years in the UK before your child’s birth then child may be entitled to register under Section 3(2). Else, child may be entitled to register under Section 3(5) after residing in the UK for 3 continuous years with parents. 3(2) gives child citizenship by descent. 3(5) gives child citizenship otherwise than by descent, which may be preferable.

Unlike your wife, your child may be able to switch from a visitor to leave under Appendix FM, as there are no Immigration status requirements to prevent a child visitor from switching. However, it may be risky if they find other grounds for refusing or even prevent a child from entering as a visitor?

[taddo12]

If you have spent at least 3 continuous years in the UK before your child’s birth then child may be entitled to register under Section 3(2). Else, child may be entitled to register under Section 3(5) after residing in the UK for 3 continuous years with parents. 3(2) gives child citizenship by descent. 3(5) gives child citizenship otherwise than by descent, which may be preferable.

Unlike your wife, your child may be able to switch from a visitor to leave under Appendix FM, as there are no Immigration status requirements to prevent a child visitor from switching. However, it may be risky if they find other grounds for refusing or even prevent a child from entering as a visitor?

Thanks for this Vinny, much appreciated.

I've lived in UK all my life, my wife has been with me since 2018 on a spouse visa also so 3(2) I think is the most applicable (though aware that this will put my daughter in the same position as me if she has children, at least we'll be able to tell her in advance!).

Thank you also for your comments regarding her entry. To be honest having spoken to different sources it would be good to get a definitive answer as to what Immigration would do, is there anyone who would be best advise or is it just a family/immigration lawyer I should just speak to?

[vinny]

Perhaps you could ask a Chief Immigration Officer at the intended port of entry? If their response is favorable, then don’t forget to get his/her full name for reference. Do let us know their response.

[taddo12]

Perhaps you could ask a Chief Immigration Officer at the intended port of entry? If their response is favorable, then don’t forget to get his/her full name for reference. Do let us know their response.

Is it possible in this scenario to apply for a visitors visa in advance, rather than the decision to let our child into the country made after they've landed?

[vinny]

Possible. However, a Chief Immigration Officer also has powers to refuse entry for visa holders, although it may be unlikely for a child.

[taddo12]

Possible. However, a Chief Immigration Officer also has powers to refuse entry for visa holders, although it may be unlikely for a child.

Thanks again Vinny.

https://www.gov.uk/government/publicati ... #documents

In the above guidance "Section 3(2) – evidence that the British parent lived in the UK for a period of 3 years at some time before the child’s birth" is part of the additional required documentation. What would count for this? Bank/utility/mortgage statements etc sufficient?

Thanks very much

[vinny]

They probably prefer similar acceptable items of correspondence for a three year continuous period. However, any may help?