Do I have right of abode??

[LeftMyHeartInEngland]

XXXXX of XXXXX explains a route to British citizenship through double descent that affects my family. In a youtube video "British citizenship by double descent - section 12(5)" he cites an example from Canada in which a woman marries a man (who is British by descent through his British father) before January 1, 1949. She gains the citizenship of her husband. He calls this provision an anomaly that came about through the effort to rectify the unfair discrimination against woman with regard to passing on citizenship. So because she gains citizenship through marriage, she passes on double descent citizenship to her children...but only to her children who were born after December 31, 1948.

So my question is this: in light of new legislation, section 4L of the British Nationality Act, acquisition by registration: special circumstances point a) historical legislative unfairness, would not the exclusion of her children born before January 1, 1949 be considered discrimination based on date of birth or age. Age is considered a protected characteristic.

For example: my Canadian mother married my Canadian father (British by descent through his British father) in 1942. They had three children, born in 1943, 1945 and 1950. As it stands, only her youngest child can make a claim for British citizenship. The two eldest, by virtue of their date of birth, are excluded.

I wonder if one could apply for citizenship based on the premise I have outlined...in light of this new legislation that is designed to rectify historical unfairness.

I would be grateful for any thoughts on this matter. I may be missing something glaringly obvious that makes it undoable. As this new legislation is only a year or so old, i was unable to find any precedents.

Thanks kindly

[LeftMyHeartInEngland]

January 1, 1949 appears to be the cut-off date with regard to double descent in the scenario I outlined above (mother married to father, British by descent, gains his nationality and passes on same to her children born AFTER December 31, 1948). But then I read information in the Gov.UK website with regard to double descent.which confuses me. I have pasted the text below.

"If you were born BEFORE 1949
You may be able to apply for British citizenship by double descent if:
You and one of your parents were not in a Commonwealth country, and you were born before 1915,
OR
You or one of your parents were born in a former British territory,
OR
YOU HAD A GRANDMOTHER OR MOTHER WHO WAS MARRIED TO A BRITISH MAN BEFORE 1949."

My grandmother married a British man long before 1949. My grandfather was a British Home Child, orphaned and sent to Canada at age 6. They were married in Canada but my grandfather was still considered British I would assume. I was born in 1945.

Am I eligible to apply or am I not? Very confused. Any thoughts will be appreciated.

[LeftMyHeartInEngland]

Oops! Apologies. My mistake, above reference was not Gov.UK but a UK Immigration law office website.

Back to the drawingboard. Looking for something more official.

Sorry for the mixup.

[LeftMyHeartInEngland]

I started another thread a few days ago with regard to a possible path to British Citizenship because of a) historical legislative unfairness. This path to citizenship is denied to me due to my date of birth (pre-1949). I was thinking that might be considered unfairness due to discrimination against the protected characteristic, age. There have been many views of my other thread but no-one has posted thoughts. I thought that avenue was fairly uncomplicated but possibly/likely not.

Point c) exceptional circumstances seem to me to be very complex but the possibility of it being an avenue is one I think I should explore.

I am hoping I might get some feedback with regard to c) in my case.

My exceptional circumstances have to do with my marriage. My now deceased husband (year of death, 2022) was a British Citizen. We married in England in 2010. I was granted Discretionary Leave (not a spouse visa) for 3 years. My route to citizenship was as follows: a second application for a further three years, (mandatory 6 years in total of Discretionary Leave), when I would be eligible to apply for Indefinite Leave, then one year later an application for British Citizenship. These steps were dependent on our marriage being intact for the duration. Unfortunately my husband suffered a massive stroke in 2013. He survived but was left with overwhelming personality changes that resulted in paranoia, anger, frustration and abuse directed at me as his carer and wife. I was forced to leave and return to Canada a number of times for the sake of my health. In time, I lost my visa status as I was away longer than allowed. Upon return as a visitor in order to care for my husband, I applied for Discretionary Leave to remain on Compassionate Grounds and was accepted. Unfortunately, after a time I was again forced to leave as my husband's paranoia escalated and caused severe damage to my health. Our plans for my application for citizenship were derailed by the effects of my husband's stroke, exceptional circumstances beyond my control. Had it not been for my husband's stroke and it's devastating effects I would have been able to apply for British Citizenship at the end of 2016.

I wonder if my situation might warrant making application based on point c).
Any thoughts would be greatly appreciated.

Thanks kindly

Exceptional circumstances
You may be able to be registered under this provision if you did not become, or were unable to become, a British citizen because of your specific circumstances – if those circumstances were exceptional. You will not normally qualify if you are applying under this section just because you do not meet the requirements for other routes. You would need to show that there were particular and exceptional circumstances that directly prevented you from being, or being able to become, a British citizen.
Please refer to the following examples of the sort of exceptional circumstances where it might be appropriate to register an individual under this route. Please note, however, that each case will be considered on its own merits.
If you think that you missed out on being, or being able to become, a British citizen because of exceptional circumstances relating to you, you need to clearly set out in your application form:
what your exceptional circumstances were
how you would otherwise have been, or been able to become, a British citizen – state the legislation and section you would have qualified under

[contorted_svy]

As Section 4L is still quite recent we may not have many similar cases on record on the forum yet. Regarding your special circumstances it may be best to get a solicitor's opinion on what proof to provide. It sounds like you had quite a hard time, but I imagine that the HO would argue it wasn't absolutely necessary for you to go abroad when your husband's health deteriorated.

[LeftMyHeartInEngland]

Thank you for responding. Yes, it was difficult. I did get permission from Home Office a few times to find a room nearby to rent so that I could still be near when needed but it always triggered my husband's anger and paranoia so that he would contact Home Office and tell them the relationship was over. They would contact me a tell me my visa was rescinded and I must leave the country. My husband would then tell me if I came back he would contact them and tell them the relationship was intact again. Then they would contact me again and tell me I could stay. This happened a number of times. Made me a nervous wreck. This on top of accusations of bigamy, adultery, theft etc. He sent those accusations to his bank, to the Canadian government, to the Home Office, to the police and to his social worker...not to mention friends, family, carers and neighbours. When I left for respite he desperately wanted me back, when I came back he became angrier and angrier to the point of ramming me with his electric wheelchair and of swinging a piece of wood missing my face by inches. The change in my husband's personality following the stroke was catastrophic to our marriage. I wonder if Home Office keeps all correspondence in my file. If so, they hold some evidence because he wrote them a number of times, to tell them to deport me and other times to tell them how much he wanted me with him...even a rambling letter describing his sex life over the years, for what purpose I have no idea.

[secret.simon]

This thread is a wall of text that needs going through, but from a quick glance, some corrections are in order.

The purpose of Section 4L is to correct historical legislative discrimination, that if they were not there, the person would have acquired British citizenship automatically. Thus, it is a remedy for past discrimination based on gender, illegitimacy, etc, which prevented automatic acquisition of British citizenship for some people.

What it does not do is displace the present legislation on naturalisation. Naturalisation was and is always at discretion and the SSHD/Home Office has leeway to exercise discretion for most provisions. But they can't exercise discretion to the point of rendering the statutory requirements otiose. For the same reasons, Section 4L can't be used to replace the naturalisation process wholesale.

It is unclear from the volume of text whether you have ILR. If you haven't got ILR, the first step is to get it. You may have grounds for applying for ILR based on domestic violence. You'd need to build up a history of recording domestic violence incidents with mental health charities, the police and other such bodies. Once you have ILR, you can possibly apply for naturalisation in the usual way.

[contorted_svy]

I believe OP held ILR at some point in the past but lost it due to husband's statements to the HO that the relationship wasn't intact.

[CR001]

I believe OP held ILR at some point in the past but lost it due to husband's statements to the HO that the relationship wasn't intact.

OP had discretionary leave to remain not ilr

[LeftMyHeartInEngland]

Historical legislative unfairness ins one of three points considered in 4L.

The second is 'an act or omission of a public authority'

and the third ' exceptional circumstances relating to the applicant'

If a person lost out on attaining automatic acquisition, there is no fee for the application.

There is a fee if a person lost out on the ability to register/make application (not automatic).

4L deals with more than historical legislative unfairness and with automatic acquisition.

points a) and b) seem fairly straightforward to me.

point c) exceptional circumstances, not so much.

Hence my question. Reading section 4L guidance doesn't make it much clearer for me. So I appreciate hearing the opinions of others with far more understanding than I have,

My thanks to everyone who posts a response.

[LeftMyHeartInEngland]

Points a) and b) clearly deal with errors/unfairness within the system.

Point c) seem to me to be completely outside of that sphere. But, rather, deals with exceptional circumstances in a person's life that prevented them from applying for British Citizenship.

In my case, I began down the path to citizenship but exceptional circumstances, my husband's stroke and it's devastating effects prevented me from continuing.

Does that qualify me to apply under 4L c)?

I have no idea. It's very confusing.

[contorted_svy]

Points a) and b) clearly deal with errors/unfairness within the system.

Point c) seem to me to be completely outside of that sphere. But, rather, deals with exceptional circumstances in a person's life that prevented them from applying for British Citizenship.

In my case, I began down the path to citizenship but exceptional circumstances, my husband's stroke and it's devastating effects prevented me from continuing.

Does that qualify me to apply under 4L c)?

I have no idea. It's very confusing.

I am not sure you "started" your path to citizenship unless you held ILR, as that is one of the requirements. Considering your history of having British ancestry exploring section 4L from the historical unfairness perspective may be more worth it. As your situation does seem very convoluted I would recommend you seek an opinion from a solicitor.

[LeftMyHeartInEngland]

thank you contorted_svy.

You have given me food for thought. I do wish I had been able to get as far down the path as ILR as it would have helped a great deal I'm sure but, on the other hand, ILR is not the first step on the path so I was hoping that the distance I had come and the route I was planning on taking before circumstances derailed us would put me in good stead if I choose to apply.

I am still looking into historical legislative unfairness but I think it might be a dead-end. I have spoken to an immigration expert and am not hopeful.

Thank you again

[LeftMyHeartInEngland]

Just to clarify, in light of thoughts expressed in an above post:

1) apologies for the "wall of text". I was trying to be thorough and clear, didn't mean to overdo.

2) I did not apply for ILR based on domestic abuse because I was not a victim of domestic abuse. I was, as was my husband, the victim of his inability to control emotions and encroaching dementia caused by the exceptional circumstance of massive stroke.

3) my purpose in exploring the possibility that a legal avenue to British Citizenship may have opened to me is not to find a way to beat the system, to circumvent any laws of the land, but to access something I hold dear and lost the ability to access through exceptional curcumstances. If 4L opens a legal way for me, why would I not take it?

My thanks for all thoughts posted. I am very grateful as they will help me to either move forward with an application or to move forward by not applying.

[LeftMyHeartInEngland]

With regard to my initial post: I had wondered why only children born after 1948 were able to be registered as British but after consultation with a UK immigration expert I understand that there is no age discrimination in a case such as mine because my father had the right to register me within one year of my birth (April 1945) and he didn't do so which would make me ineligible.
 
However, my father was in the Canadian Army and was stationed overseas, Holland I think, when I was born and was not discharged until late 1946, 1 1/2 years after my birth.  He was unable to register me in Canada within the required time limit. So I must find out if legislation allowed him to register me outside of Canada and I'm not sure how to do that. Possibly if the law did not allow soldiers serving overseas to register their children, that may be considered either a) historical legislative unfairness or b) an act or ommision of a public authority.

Hopefully someone here knows whether or not registration could have been done outside of Canada or might be able to tell me how I might access that information.

Thanks kindly

[LeftMyHeartInEngland]

I have done further research and have discovered that Canada had missions in both the Netherlands and Belgium where my father was posted. However both embassies were forced to evacuate and relocate to London during the war and were not re-established until 1947. I also learned that in 1945 Canadian diplomatic representatives and embassies were dependent on the Crown (until 1978) so my thinking is that since that was the case and because I was born a British subject in 1945 and my father should have been able to register me but was unable due to exceptional circumstances, this issue belongs here... if my thinking is not faulty.

So to recap because my head is spinning, I now know that 1) my father was not able to return to Canada until late in 1946 so was unable to register me as British within my first year as required, 2) there was no Canadian embassy in either the Netherlands nor Belgium for him to register me while overseas and, 3) as far as I can see, Canadian embassies were under the control of Britain.

If all of these factors are accurate, I wonder if I can make an application under section 4L, point c) because there was no unfairness involved nor an act or omission that prevented my father from registering but there were exceptional circumstances, a world war, tht prevented my father from registering me as British in his home country or in the country he was posted in.

Does this sound like a reasonable conclusion? I would be grateful for any thoughts/suggestions.

[contorted_svy]

As Section 4L is still very new, it is not easy to advise - you could speak to your solicitor again presenting your circumstances like this and see what they say? You would need to supply some kind of proof that your father was living was stationed in Belgium I imagine.

[LeftMyHeartInEngland]

Thank you. I have requested my father's military records, just waiting for them to arrive. Hopefully the records will tell me where he was stationed and when he was discharged and returned to Canada. I'm certain of the timing but need to be able to present proof. I'm not going to see a lawyer about it. I'm not confident that any lawyer in Canada would have enough knowledge of British legislation or citizenship law to be of any help. I think if my father's military records tell me what I need to know, I will put together my case and prepare the application myself and see what happens. Nothing to lose but money.

[contorted_svy]

You can also consult a British immigration solicitor, I'm sure they offer online consultations these days.

[LeftMyHeartInEngland]

Thank you. I've requested my father's military records and also requested my UK immigration records. Once I've received them, I'll be able to decide what to do next. As far as consulting a British immigration solicitor is concerned, besides the cost involved, I am not feeling very hopeful at the moment. As section 4L is so new, I'm not sure even a British immigration expert will have answers. There are so few successful precedents to reference, none using point c) as far as I can see, and point c) is not at all clear and straightforward. I won't be ready to make an application for a few months. Perhaps by that time there will be a few successful...or unsuccessful...applications that I can refer to, to help me with my decision. I'll keep checking here to see if there is any news about section 4L applications.

I am very grateful for this forum. Sorting out in my mind what to do...or what not to do...is much less stressful when I can bounce my thoughts off others and when other folks make suggestions.

[contorted_svy]

I appreciate that even a British immigration solicitor won't have had many Section 4L cases yet but they are the experts in interpreting British immigration and nationality law, so it is appropriate to go to them rather than foreign solicitors. You can wait for a while and see if more cases are reported, or have a chat with a solicitor in the UK - first brief consultation is usually free.

[LeftMyHeartInEngland]

Thank you. I will do as you suggest. Speaking to a solicitor in the UK would be helpful . I'll wait 'til I receive the documents I have requested so I can be more clear when I explain my situation. Thank you again for your help.

[LeftMyHeartInEngland]

I have done further research and have gotten some advise and am looking at two options. There is a question that needs to be answered before I can decide which, if any, is doable in my situation.

it has been established that discrimination did exist with regard to women not being able to pass British citizenship down to their children. In my family's case I have been assured that my younger brother (now deceased) born after December 31, 1948 was covered by the new provision but was told that I am not because I was born BEFORE January 1, 1949. The reason I was given was that before that date a father, British by descent, could/should have registered his children as British within 1 year of their birth. My father did not do that. BUT another immigration expert told me that this is not true, that there is no cut-off date. I have scoured the British Citizenship Acts back to 1914 and the only reference to the need to register children as British within a year of birth was in the 1922 Act and it was with regard to 'foreign nationals'. I have found nothing to support what I had been told. Somehow I must find the answer. If anyone can help me with this quandary, I'd be most grateful.

**If there is no cut-off date and I am covered, I will apply on the basis of discrimination/unfairness. (4C or 4L a), I'm not sure) If I am not covered because there is a cut-off date, I will apply under 4L c) exceptional circumstances, because when I was born and for 1 1/2 years after my birth my father was in the Canadian Army posted to North West Europe (Holland specifically) where there was no embassy (evacuated during the war and not re-estblished until 1947). My father was unable to register me as required because of exceptional circumstances (world war 2). I suppose discrimination might come into play here as well because my mother (married to my father before 1949) was, at the time, not allowed to pass citizenship onto her children so she could not do so in my father's absence.

I apologize for the length of this post. Hopefully someone has an answer that can help me decide what to do.

Thank you kindly.

[LeftMyHeartInEngland]

There is so much research to be done without even leaving this forum and I am so grateful for that...although my confusion grows as well.

I have tentatively concluded that I have been barking up the wrong tree when focusing on 4L. I have seen here and on another forum, examples of folks applying for citizenship...and succeeding...using section 4C and application UKM. The examples I saw were from Tanzania and South Africa but I also read of a successful application from Australia. All were through their mothers married before January 1, 1949 to their fathers who were British by descent.

It becomes more and more clear to me that this is the route I should take. I was hesitant for a long time because I was told by xxxxx that I was not qualified because I was born before 1949. I have not been able to corroborate this assertion anywhere else and have asked countless times for some sort of proof of this but am ignored so I am going to assume they are mistaken.

I've put together a timeline of all that I know and have documentation for or have ordered documentation for. Hoping it can be perused by forum members far more knowledgeable than I am. I really need some encouragement...or discouragement if I am whistling in the wind.

Paternal great grandfather:
Born 1857, Liverpool, UK
Died: 1887, Liverpool, UK

Paternal Grandfather:
Born: 1881, Liverpool. UK
His father died age 30, leaving wife and 4 children. Great grandmother could not care for family, was forced to give up two eldest children (boys), age 9 & 6 (my grandfather) to Liverpool Foundling Home who, in turn, put the two little boys on a ship to Canada (1888) to become child farm labourers.
(British Home Children).
(I am happy to say that the UK Government finally in 2019 admitted that the Child Migration Scheme was cruel/unfair/illegal, unfortunately only after 100,000 innocent children were torn from their families and driven from their homeland. A recompense of 20,000 pounds was offerred to any living British Home Child or, if deceased, their direct descendents still living, small compensation for the misery caused). This information isn't necessary for my application, of course, just a note to explain one of the reasons I want my British identity back through citizenship. It's symbolic, of course, will not make my grandfather's life any easier nor the lives, by extension, of his 9 children, all deceased).
Married: 1904, Ontario, Canada
Died: 1955, Ontario, Canada

Father:
Born: 1909, Ontario, Canada
Married: 1941, Ontario, Canada (mother born 1921, Saskatchewan, Canada, of British descent but a few generations, Died: 1983, Saskatchewan, Canada)
Divorced: 1961
Died: 1999, British Columbia, Canada

Me: Born: 1945, Ontario, Canada.

I have most birth, death, marriage certificates except my mother's birth and death certificates. Will order them.

I am very nervous about this. I wonder if anyone can tell me if I am on the right track.

With grateful thanks...and apologies for the British Home Children rant.

[LeftMyHeartInEngland]

I've put together a timeline of all that I know and have documentation for or have ordered documentation for, to help explain what I am hoping to do.

Paternal great grandfather:
Born 1857, Liverpool, UK
Died: 1887, Liverpool, UK

Paternal Grandfather:
Born: 1881, Liverpool. UK
Sent to Canada at age 6 as an orphan under the Child Migration Scheme. (British Home Children)
Married: 1904, Ontario, Canada
Died: 1955, Ontario, Canada

Father:
Born: 1909, Ontario, Canada
Married: 1941, Ontario, Canada
(mother born 1921, Saskatchewan, Canada. Died: 1983, Saskatchewan, Canada)
Divorced: 1961
Died: 1999, British Columbia, Canada

Father's military record:
Enlisted in Canadian Army (Queen's Own Rifles) February 1944, Ontario, Canada
Reported for duty UK November 1944
My birth recorded in father's records, April 28, 1945
Posted to North West Europe (Holland) June 1, 1945
Discharged and returned to Canada August 1946

I had been thinking about applying for citizenship through my mother, married to my father, British by descent, before January 1, 1949. But when I had a status trace done, I was told that I wasn't eligible for citizenship through my mother's marriage to my father because I was born before Jan 1, 1949 and that only children born after December 31, 1948 were eliglble. I wasn't able to get any more information than that so continued to research and learned that, prior to 1949 a British father living in Canada would have had to register his children as British at a British consulate within 12 months of their birth and there is no record of my father doing that.

I have looked at a number of ways that I might be able to apply since I cannot do so through my mother's marriage after all because of my birth date.

But have been thinking about applying using 4L c) execptional circumstances. My father had only 34 days in the UK in which to register me rather than 12 months because he was posted to Holland for 15 months after my birth. The British consulate there had been evacuated and was not re-established until 1947. My mother would have been unable to register me at a British consulate because she was not considered a British citizen until after 1948.

I wonder if this situation might qualify as exceptional circumstances. My father had only 34 days in which to register my birth and under difficult circumstances during that time.

In the guidance, 'Registration as a British citizen:children of British parents", there is guidance on how to consider applications for registration of persons born before January 1, 1949. Of course, it is dependent on previous registration before 1949. Hence my dilemma.

If anyone has any thoughts i'd appreciate hearing.

Thank you.