Nationality or statelessness

[Richard66]

My wife and I are a bit noplussed and do not know what to do:

I am a British citizen born in Brazil and my father was not in crown service or anything similar. (My mother is American, but born in Brazil, while her father was working there. Even though I am an American citizen also, I have never been to the US.)

I have not been in the UK since September 2002 and then I was only there for 3 months on holiday.

My wife is a Russian citizen born in Russia.

We both live in Italy.

She is expecting a baby.

The fact I was not born outside the UK and have not been there since 2002 seems to me to mean our child will not be a British citizen.

Russian nationality law says a child born outside of Russia will only be Russian if both parents are Russian, so our child will not be a Russian citizen.

The fact neither of us is Italian means the child will not be Italian either.

There is the possibility the child can be naturalised American or Russian, but for that it will need to be already in possession of a nationality, which it will not have.

What are the chances the child can claim UK citizenship? If not, could we register it as such and what are the chances the request will be accepted?

I realise the best would be for the child to be born in the UK, but we have the EEA FP problem and I am afraid they would deny it, seeing her pregnant.

[John]

You are British but as you were born in Brazil you are British by descent. That means that your children born outside the UK are not British .... as you suspect is the case.

But your children born in the UK would indeed by British, from the moment of birth.

I realise the best would be for the child to be born in the UK, but we have the EEA FP problem and I am afraid they would deny it, seeing her pregnant.

Her being pregnant is not an issue here. They cannot possibly deny the EEA Family Permit just because she is pregnant. Indeed it is rather good proof that the marriage is real, and not a marriage of convenience!

But you are British so we need to work out if the Surinder Singh route is available. You are in Italy! Doing what? That is, in what way are you exercising your EU Treaty Rights? Are you employed? Self-employed? Or what are you doing there?

If you are economically active in Italy then it would be possible for your wife to apply for the EEA Family Permit, assuming of course that the two of you intend to move to the UK.

[86ti]

Russian nationality law says a child born outside of Russia will only be Russian if both parents are Russian, so our child will not be a Russian citizen.

Check that very carefully! Our daughter (wife Russian, me Austrian) was born June 2006 in Tokyo. She was added to her mum's passport after I signed a document saying that I do not object to her becoming a Russian citizen. She is also Austrian through me.

[Richard66]

86ti, as you say, you are Austrian, so your child was already Austrian when you signed such a document. This is called "expedited naturalisation". The issue is (and we checked the law) that this is applicable to children who are citizens of another country or are stateless. You might argue the child will be stateless and so might claim, but in this case such a claim could be made for British or Italian citizenship. For practical reasons, we do not want our child to be exclusively Russian.

As for your comment, John, may I add the EEAFP is also issued to family members of UK citizens who only want to visit for less than 90 days?

I was employed until February 2008, after working for 1 year and 6 months. As I am enrolled at the local Job Centre, I am technically still considered as employed. (Italy being Italy, I do have a side job too, but that's another story.) My wife, however, does work.

The practical aspect is that we cannot afford to go for any long period to the UK, as we will not earn a penny that way and, while we would be covered for medical emergencies (we are both enrolled for the local NHS and have the EU health card), I am sure birth is not contemplated.

But John, have you forgotten I am one of the main anti-EEA FP a******rs on this forum?

[JAJ]

Will the child be a Brazilian citizen by descent?

[Richard66]

This is the question I was hoping would not be asked: if it can be asked here, it could be asked by the ones dealing with the application). There is a claim to Brazilian citizenship by descent, but here I would need my wife's consent, in that to register the child I will need her birth certificate translated and certified by the Brazilian embassy in Moscow and she takes a dim view of this. Consider also that once a person acquires a second citizenship, he must renounce Brazilian citizenship, so the will not be able to naturalise himself Russian or American without losing Brazilian citizenship.

The situation becomes absurd, because I am in Italy as a British Citizen. How will I explain that my child, through my Russian wife, is Brazilian? This child will grow up, he will speak Italian, he will speak English, he will speak Russian, but he will be none of these: he will be the citizen of a country he has never seen and where a language he cannot understand is spoken.

Can you imagine the hoo-ha at immigration? The child of an EU citizen who is not itself an EU citizen? WHo is annotated non on my British passport or on my wife's Russian one, but on a Brazilian one? And, of course, he will need to apply for a residence card as a family member of an EU citizen...

We are anxious the child have an EU citizenship and I realise that telling the whole truth might make things very very complicated. (I have certainly never told the Italians I have two other citizenships!) I am willing to keep quiet about this "Brazilian" connection but I will not lie if asked the truth.

[visitor4now]

I know you don't want (or don't care) your child to be a Brazilian citizen , but in case he/she turns out to be one, there will be absolutely no need to renounce his/her Brazilian citizenship in the future, in case he/she becomes a citizen of another country.

I know loads of people who have dual Brazilian/Italian/Portuguese/Spanish/German/American citizenship. They certainly didn't have to renounce their Brazilian nationality to acquire the other.

[Richard66]

But did these people naturalise themselves or they simply claimed another citizenship through a parent or grandparent? If a person naturalises himself he must renounce Brazilian citizenship, unless the naturalisation was imposed by the other state as a condition for residence. This is not the case: the child would be naturalised voluntary (by the mother) and the Russian state is making no pressure whatsoever.

[Frontier Mole]

Why do you think there will be a problem with EEA FP, there is nothing except criminal deportation that would prevent it being issued. I am getting the impression she overstayed in the UK, is that correct?. If she did it will not impact on the EEA FP. There is so much case law in your favour.

I agree with John, it does not matter one jot that your wife is pregnant.

[John]

But John, have you forgotten I am one of the main anti-EEA FP a******rs on this forum?

Indeed I had forgotten!

Frontier Mole, I think that I can safely say that Richard66 considers it to be unnecessary to apply for an EEA Family Permit for his wife, but he overlooks, or wants to forget, the fact that she is a visa national, and thus will have problems boarding the plane/train/ferry in order to get to the UK to claim EU Rights on arrival.

And given that she is now pregnant, it is a bit much asking her to swim the channel! It will be a lot less effort filling in the VAF5 application form!

Come on Richard66, stop fighting the system and get filling in the form!

[Richard66]

No, John, I do not forget or overlook: I just feel that giving in is just what the UK government wants and there will be a big, broad smile across whoever's face it is. I was hoping the European commission would have solved the problem before now, but they are so slow! Given the way things are going, it will be 2015 before they do anything.

The question remains unanswered, however, about the chances of registration being successful or not. As it costs £400 I would like to know.

[John]

The question remains unanswered, however, about the chances of registration being successful or not. As it costs £400 I would like to know.

Application for a Residence Card, using form EEA2, is free!

[Richard66]

Yes, John... Of course, my quarrel about the EEA FP began before any storks were flying around and at this point we have to see which is the lesser evil. One thing is not go to England for a week's holiday and another is to have a baby that has no nationality (or has an absurd one) is quite another. So far my quarrel has been a free-time activity, but the plot now thickens... Of course we cannot just fly to the UK in on Sunday, baby born on Monday and return on Tuesday and that is another problem.

This little digression might explain things a bit (or maybe it is only idle boasting, you decide):

My family on my father's side comes from near Liverpool and has been there since the year dot (one of my great aunts was the first woman newspaper editor in the UK, one of my great uncles was a professor at Cambridge, while another was Lord Justice W) my family on my mother's side comes from Maryland, Catholics that left Wales in the XVI century, My wife's family has been in Russia ever since Russia has been a country (centuries, that is). We live in Italy and speak Italian to each other at home (neutral language) and have no intention of going anywhere else to live and there: the child becomes Brazilian for the sole reason that I happened to be born there! Now, if I had been born on the Moon? Would the child be Lunatic

[John]

One thing is not go to England for a week's holiday and another is to have a baby that has no nationality (or has an absurd one) is quite another.

If you just go on holiday to the UK .... wow ... the cost of the hospital bill for the delivery! Ouch!

[Richard66]

Which then, is your suggestion? If I were to go there to work would it change things? I suppose I could find some sort of job there for a month or so.

What I was mentioning before was:

http://www.bia.homeoffice.gov.uk/britis ... thercases/

What are the chances of this being successful?

[visitor4now]

I can assure you that Brazilian law FULLY allows dual citizenship so there is no need to renounce it when acquiring another one, except if the law of the country you're being naturalized into doesn't tolerate dual citizenship for naturalized people, e.g. Germany, Finland, Denmark, Austria, Greece...

Not that you care about Brazilian citizenship anymore, anyway...

[visitor4now]

One more thing, your child will only acquire Brazilian citizenship if you register his/her birth with consular authorities. Therefore, you could just NOT bring the Brazilian citizenship issue before Italian authorities and argue that your child will be stateless (check http://en.wikipedia.org/wiki/Italian_nationality_law), and try to get him/her registered as an Italian citizen.

If they do bring the Brazilian issue into question, as you can't hide that because you were born there, you may say that you won' be able to transmit that citizenship... making your child effectively stateless...

No way to pass British citizenship 'cause you're British by descent, no way to pass Russian citizenship 'cause you aren't Russian and no way to pass Brazilian citizenship because you won't register your child...

Think Italian immigration people would accept that?

[JAJ]

This is the question I was hoping would not be asked: if it can be asked here, it could be asked by the ones dealing with the application).

It almost certainly will be asked. Remember that your birthplace in Brazil is (presumably) on your British passport.

You may wish to read Chapter 10 of the Nationality Instructions:
http://www.bia.homeoffice.gov.uk/policy ... ns/nivol1/

Bear in mind the following:

1. For section 3(2) purposes, the child is stateless if he or she has no other nationality at birth. Entitlement to another nationality does not count as having one.

2. Acquisition of another nationality after birth does not appear to count. Rightly or wrongly, section 3(2) of the Act says "born stateless" when discussing a waiver of the 3 year residence period for parents.

3. The child does need to have a British "otherwise than by descent" grandparent.

4. Authorities in other countries don't always co-operate in issuing letters confirming that a child does not have their nationality. So you may have to be creative and come up with substitute evidence, for example, references to that country's nationality law and/or a letter from a competent immigration legal practitioner in that country.

[Wanderer]

I'm pretty sure Richard that ur child will be granted Russian Citizenship via rg Russian consulate when ur wife applies for his/her passport. It's not automatic is what russian law says (I think).

Mind u russian citizenship is not much use but it's a start!

[Ben]

I'm pretty sure Richard that ur child will be granted Russian Citizenship via rg Russian consulate when ur wife applies for his/her passport. It's not automatic is what russian law says (I think).

In which case, should Richard firstly apply for the child to be registered as a British citizen, then Russian, then Brazilian? If I understand correctly what's been said, if following this order, the child could well end up a citizen of three countries.

Additionally, if successful in acquiring British citizenship, would the child be a British citizen otherwise than by decent and thus able to transmit this citizenship to his own children?

[Richard66]

Visitor, where do you get your information from? Can you read Portuguese? I am quoting you from the Brazilian constituion and you cannot go much higher than that!

Art 12 § 4º - Será declarada a perda da nacionalidade do brasileiro que:

I - tiver cancelada sua naturalização, por sentença judicial, em virtude de atividade nociva ao interesse nacional;

II - adquirir outra nacionalidade por naturalização voluntária
II - adquirir outra nacionalidade, salvo no casos: (Redação dada pela Emenda Constitucional de Revisão nº 3, de 1994)

a) de reconhecimento de nacionalidade originária pela lei estrangeira; (Incluído pela Emenda Constitucional de Revisão nº 3, de 1994)

b) de imposição de naturalização, pela norma estrangeira, ao brasileiro residente em estado estrangeiro, como condição para permanência em seu território ou para o exercício de direitos civis; (Incluído pela Emenda Constitucional de Revisão nº 3, de 1994)

As I mentioned earlier, Wanderer, the child will become Russian, but only if he already has a nationality or has been declared stateless. From the Russian Citizenship law:

Article 12. Acquisition of Russian Federation Citizenship by Virtue of the Birth
1. A child shall acquire Russian Federation citizenship by virtue of birth if as of the date of birth of the child:
a) both his/her parents or his/her single parent have Russian Federation citizenship (irrespective of the child's place of birth);
b) one of his/her parents has Russian Federation citizenship and the other parent is a stateless person or has been recognised as a person unaccounted for or if the whereabouts thereof are unknown (irrespective of the child's place of birth);
c) one of his/her parents has Russian Federation citizenship and the other one is a foreign citizen, on the condition that the child has been born in the territory of the Russian Federation or if otherwise he/she is going to become a stateless person;

Art 14 6. There shall be admitted to citizenship of the Russian Federation in the simplified manner without observing the conditions provided for by Part One of Article 13 of this Federal Law children and disabled persons who are foreign citizens or stateless persons:
a) a child one of whose parents is a citizen of the Russian Federation - on the application of this parent and in the presence of the other parent's consent to the child's becoming a citizen of the Russian Federation. Such consent shall not be required if the child resides on the territory of the Russian Federation;

Your girlfriend might like to check that in the original.

To be continued.

[Wanderer]

Richard, my info is from UK anglo-russian couple with a child born here - they all say it's no issue - just stick the sprog on a passport.

Ur sitch is a bit different tho - ur not in the UK. Plus again - what use is a Russian passport other than the visa issue - if the kids is a boy would make him liable to National Service....

[Richard66]

Just what I am saying, Wanderer: your friends' child already was a British citizen when his parents applied for Russian naturalisation. The issue here is that the chil will not be British or American, Italian or what not. Actually, We cannot even register him as a Brazilian anyway, as we need the mother's birth certificate translated and legalised in Moscow and my wife, in this case, is not collaborating (maybe the fact she's not going to Russia has something to do with it?.

Visitor4you: I have inquired and, for the Italians, it is not only the fact the child does not get the nationality automatically, but it needs to be proved that acquiring one of the parents' nationality is impossible. Just not registering the child will not cut much ice. The issue is, I do not want to be associated to two nationalities in Italy. I myself need to naturalise myself in some years time for my wife's sake and if this comes out... I don't want to think of the complications!

To be continued: I want to see what John is suggesting.

[Richard66]

Sorry, I meant Jaj! Excuse me! I think we have the solution! Indeed: the child will be born stateless, as the Act says. Acquisition of Brazilian nationality for those born abroad is by registration only and is by no means automatic. If we do not register it, it can only acquire citizenship by residence in Brazil while still a minor.

I notice the instructions also speak or hardship, but speaking of late applications. The fact the child is not a Britsh citizen certainly will mean a lot of hardship: Residence cards, visas and so on.

The Russians will not play ball: they would much rather declare the child stateless themselves and then give it Russian citizenship and, at this point, we do not really want that.

The Italians will certainly give us such a letter as you mention, while the Brazilians (if it comes up: I notice in the instructions you sent me there was not talk of ascertaining if the parent by descent has acquired the nationality of the place where he was born) will give a letter saying what citizenship is by registration.

My father was, of course, born in England.

Benifa, the trouble is getting the first citizenship. The others follow: once he is a British citizen he can naturalise himself Russian, then American, then, if and when I become Italian, he will become Italian too. Then, just for the fun of it, we go and register hims as a Brazilian! Wow! World record there! The child who was born stateless now has 5 citizenships!

[JAJ]

The Russians will not play ball: they would much rather declare the child stateless themselves and then give it Russian citizenship and, at this point, we do not really want that.

Can you get something in writing from a Russian lawyer confirming the application of this?

Because if you don't, the Home Office could easily conclude that your child, born with one Russian parent and no other nationality, is automatically a Russian citizen at birth and hence ineligible for registration as a British citizen under section 3(2) of the Act?

If this is the case, you may wish to read section 9.12 of the Nationality Instructions, dealing with discretionary registration under section 3(1) of the Act:
http://www.ukba.homeoffice.gov.uk/sitec ... ichapter9/


9.12 Second or subsequent generations born abroad into a British citizen family on long-term business or service overseas

9.12.1 During the passage of the British Nationality Bill through Parliament, Ministers said that the special problems of British business families on long-term service overseas would be taken into account in considering applications under s.3(1).

9.12.2 Ministers said also that British citizens working overseas for
international organisations should have little difficulty in acquiring British citizenship for their children born abroad, provided they were maintaining a connection with this country (but see also 9.5.8 above).

9.12.3 In such cases the discretion to register may be used sympathetically, but we should expect there to be clear and strong links with the United Kingdom (both personally and through the parent's employment) or compassionate circumstances. These might include the avoidance of statelessness although, if the child is the third or subsequent generation born abroad, we should not assume that it is for the United Kingdom to put this right.

9.12.4 We should therefore normally register a second or subsequent generation child born and living abroad if:

a. the child is part of a British citizen family on long-term business abroad; or
b. at least one parent is a British citizen working overseas for an international organisation of which the United Kingdom is a member; and
c. if necessary, both parents consent to the registration or any objections by the non-applicant parent are ill-founded (see 9.18 below); and
d. there is no reason to refuse on character grounds (see 9.17.29 - 9.17.32 below and Annex B); and
e. both the child and the family have strong links with the United Kingdom such as:
• ancestors born in the UK
• frequent visits to the UK
• cultural or professional associations with the UK
• relatives living in the UK
• investments or property in the UK
• education of the child either in the UK or in an English speaking school abroad, or

f. there are compassionate circumstances such as:
• the avoidance of statelessness if the child is the second generation born abroad
• hardship for the child because the child is not a British citizen
• problems for the family in carrying on business or service if the child is not a British citizen

NB. These links and compassionate circumstances are not comprehensive and are for guidance only. Each case must be considered on its merits and we must be ready to consider any other reasons links or circumstances put forward by an applicant.