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devil's advocate please - 4L c)

A section for posts relating to applications for Naturalisation or Registration as a British Citizen. Naturalisation

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LeftMyHeartInEngland
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Re: Registering a Person Born Before January 1, 1949

Post by LeftMyHeartInEngland » Sat Feb 10, 2024 3:01 am

The more I research, the more clear and straightforward it becomes...I think.

I have read in Home Office guidance the following with regard to consular births: "For registration of a birth in a British Consulate, the birth must be registered in accordance with the legal requirements of the country in which the birth occurred and certificates should be obtained from the relevant local authority."

I was concerned that for the short time my father was stationed in England after my birth (34 days) or during the year and a half that he was subsequently posted to the Netherlands, the British Consulate that had been evacuated might have reopened. He might have had opportunity to register my birth there.

But since reading the above Home Office directive, that would not have been acceptable.

He had to register me in Canada, not overseas, within one year of my birth. Exceptional circumstances prevented him form doing that because he was posted overseas from November 1944 (5 months before my birth) until August 1946 (16 months after my birth). Legislation at the time required that the father who was British by descent register the birth at a British consulate. My mother would not have been able to do so in my father's place, i wouldn't think.

Is it that straightforward?? Exceptional circumstances prevented my father from registering in a British consulate in the country in which I was born. It seems clear to me. 4L seems appropriate.

Thoughts please.

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British subject in 1943, suddenly NOT in 1949??

Post by LeftMyHeartInEngland » Tue Feb 13, 2024 6:26 pm

The 1914 British Nationality & Status of Aliens Act states:
Definition of a natural-born British subject
a) any person born within His Majesty's dominions and allegiance.
b) any person born outside....(required to be registered in a British Consulate)
Canada was within His Majesty's dominions.

The 1943 Act makes no changes with regard to people born within His Majesty's dominions but reiterates requirement for registration for people born outside.

The 1948 British Nationality Act states in section 17: Registration of births occurring before commencement of Act:
"Notwithstanding the repeal by this Act of the British Nationality and Status Act 1943, the birth of a person born before the date of commencement of this Act may be registered after that at a consulate of His Majesty as defined in that Act; and if the birth is registered in the circumstances specified in subsection (2) of section one of that Act, that person shall be deemed for the purpose of this Act to have been a British subject immediately before the commencement of this Act."

Subsection 2 of the 1943 Act is with reference to persons born outside of His Majesty's dominions, NOT those born within.
The 'circumstances specified' is that the registration be done within one year of the child's birth.

I was born in 1945 to my British subject mother married before 1949 to my British by Descent father (his father born in the UK). After having a status trace done, I was told I was ineligible to apply for citizenship through my mother under 4L a) historical legislative unfairness because I was born before 1949, that before 1949 fathers had the responsibility to register their child within one year after their birth.

This logic flies in the face of legislation in 1943. How can section 17 of the 1948 Act suddenly apply to children born within His Majesty's dominions when it didn't apply in 1943?? A child was automatically a British subject in 1943 and suddenly the father would have had to register a child he didn't have to register by law three years earlier.

This make no sense to me whatsoever.

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Re: British subject in 1943, suddenly NOT in 1949??

Post by secret.simon » Wed Feb 14, 2024 10:15 am

I will start by congratulating you on having done some historic research.

To start with, it needs to be understood that there are three different statuses at three different times, not all of which correspond on-to-one with each other.

Before 1948, all people born in any of His Majesty's Dominions (including Canada) were British subjects.

From 1st January 1949, a new status was created, Citizen of the United Kingdom and Colonies (CUKC). Only those British subjects born within the UK and its colonies (i.e. not Dominions) or those whose fathers met that requirements became CUKCs. CUKCs were a sub-set of the wider category of British subjects. So not all British subjects were CUKCs, but all CUKCs were British subjects.

On 1st January 1983, yet another status was created, British citizen. Only those CUKCs who were either born or naturalised or registered in the UK or those whose father or grandfather were so born, naturalised or registered in the UK became British citizens. Again, like the example above, not all CUKCs became British citizens. Those CUKCs who failed to become British citizens became British Overseas Citizens, without the right of abode in the UK.

The intent of each of the successive British Nationality Acts (mainly of 1948 and 1981) and of the intervening (Commonwealth) Immigration Acts was specifically to reduce the number of people who had the automatic right to reside in the UK (which is why Brexit really should not have come as a surprise. Controlling the ability of people to arrive in the UK by right predates Brexit by decades. That saying about those who do not study history are bound to repeat it is true).

So, British subjects retained their status even after 1949 (see Section 1 of the British Nationality Act 1948). But those British subjects without CUKC status became subject to immigration control.

Now, let's look at your situation. You were born in 1945 in Canada. So you were born a British subject. So Section 17 of the British Nationality Act 1948 would be irrelevant, as all it would do is register you as a British subject, which you already were.

On 1st January 1949, you remained a British subject (and post 1983, are a Commonwealth citizen in UK law), because you were a Canadian citizen (Sections 1(1) and 1(3) of the BNA 1948). But you were not a CUKC, because neither you nor your father were born (or naturalised) in the UK or its colonies (Section 12(2) of the BNA 1948). Crucially, even if you substitute your mother in place of your father, she does not meet this requirement either. That is to say, the descent of CUKC status outside the UK and colonies was restricted to one generation from those born or naturalised in the UK.

So you don't have an argument to stand on, either under Section 17 of the BNA 1948 (not applicable to you, because you can't be registered as a British subject which you already were), or of historic legislative unfairness, because the same result occurs even if you were to attempt to inherit a status through your mother instead of your father.

Now, let's have a look at your father. Your father would have become a CUKC on 1st January 1949, because he would have met the requirements of Section 12(2) of the BNA 1948. He would also have had Right of Abode under Section 2(1)(b)(i) of the Immigration Act 1971 as enacted, and thus, if alive, would have become a British citizen by descent in 1983.

So you may be able to claim Right of Abode in the UK, as a Commonwealth citizen with Right of Abode in the UK, under Section 2(1)(d) of the Immigration Act 1971 as enacted. Apply for a CoE-RoA, with your own, your father's and grandfather's birth certificates, and your parents' and grandparents' marriage certificates.

As a Commonwealth citizen with Right of Abode (RoA), you will have almost all the same rights as a British citizen within the UK, except for a British passport and that you could be deported if you committed a crime.

You may find a thread I had contributed to in 2017, in particular the additional readings at the bottom, to be of interest.
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Re: British subject in 1943, suddenly NOT in 1949??

Post by contorted_svy » Wed Feb 14, 2024 12:26 pm

Link to apply while outside of the UK https://www.gov.uk/right-of-abode/apply ... ntitlement
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Re: British subject in 1943, suddenly NOT in 1949??

Post by LeftMyHeartInEngland » Wed Feb 14, 2024 1:50 pm

I thank you so much, secret.simon for taking the time to give me such a thorough explanation. It's early in the morning here and I'm not fully awake. As soon as my head clears I will sit down and go through your post. I'm looking forward to understanding things. I've been trying to navigate through all the legislation by myself and getting more and more confused. The penny never drops :(

I had a status trace done and got thoroughly stuck with the explanation I was given that I would have qualified if I had been born after 1948. Same mother, same father, different year of birth. Couldn't get my head 'round that even after reading all the legislation and all the legislation changes from 1914 onward. I think your explanation will help me get past that.

I'm stubborn but a bit thick.

And contorted_svy, thank you for the link, most appreciated.

I've only looked at right of abode briefly in passing, didn't think it involved me at all, can't remember why I came to that conclusion. But I will surely look at it more closely now.

I'm sure to have more questions as I endeavour to understand. I hope one or both of you will be willing to help some more. I do so much appreciate the time, patience and expertise that so many share on this forum.

Thank you kindly.

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Re: British subject in 1943, suddenly NOT in 1949??

Post by LeftMyHeartInEngland » Wed Feb 14, 2024 4:19 pm

Well, I'm gobsmacked...to say the least. I've just read the government information with regard to Right of Abode. I have all the required birth and marriage certificates. By all accounts I am eligible for ROA.

And I am more than satisfied with that.

I realize that my reasons for wanting to live in England if possible, or at least have the freedom to come and go, are entirely emotional. And, of course, emotions carry no weight when it comes to legislation.

I also know that my emotional need to come 'home' might be looked on negatively, even scornfully, by some because I live in a rather peaceful country with loads of social benefits, universal healthcare, a decent standard of living, even a cost of living slightly lower than the UK...and thankfully no war or unrest or inequality (at least not in my case). And the weather is not bad either, save for a few icy winter months. Some folks really need to be somewhere other than their home country. And I don't.
So it seems unfair that just because my grandfather was born in England and I am a Commonwealth citizen I can move to the UK without all the cost and paperwork and stress that others have to endure...or even that I can come at all and so many others can't.

And I know that if I explain the my 'emotional' need and the depth of it, it still doesn't make anyone who is in dire straits feel any better.

So I won't explain except to say that my grandfather suffered a great deal of anguish as a result of having to leave his home and family at age 6. (search Child Migration Scheme or British Home Children online).

My grandfather never recovered from the loss and neither did my father. I grew up in a home as British as any in England. The deep attachment never left us. I expect my grandfather never knew he could have gone home, all he ever knew was hard physical labour from the age of 6. My father died in 1999 never knowing he was a British citizen, something he would have been comforted to know. My younger brother, born in 1950, died last year not knowing that he could have applied for British citizenship. My little brother was British to his core. In 2010 I married a British man and lived in England. I never felt at home so deeply in my life. My husband's stroke and resulting personality changes and abuse made living in England with him impossible. For my health and my safety, I had to leave. My right to stay in the UK was dependent on my marriage. I didn't know until today that I had the right of abode. I could have stayed.

And now I can come home. For my grandfather, for my father, for my little brother and for me.

Sorry for the wall of text. I thank you, simon.secret, for pointing me to ROA. I had been looking so hard for a way home but couldn't find one anywhere.

I am so grateful for this forum, for myself and for everyone who might be helped by the kind and generous folks who share their knowledge so freely.

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Re: British subject in 1943, suddenly NOT in 1949??

Post by LeftMyHeartInEngland » Wed Feb 14, 2024 5:35 pm

Have I jumped the gun here?

I understand how my father would have been eligible for ROA based on section 2 (1) (b) (i)

but secret.simon quotes section section 2 (1) as suppoort for me to be eliglble but that section states:

" a person is under this Act to have the right of abode in the UK if:
(d) he is a Commonwealth citizen born or legally adopted by a parent who at the time of his birth or adoption had citizenship of the UK and colonies by his birth in the UK"

My father was British by descent, not by birth.

Where does that leave me? Not ROA eligible as far as I can see.

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Re: British subject in 1943, suddenly NOT in 1949??

Post by contorted_svy » Wed Feb 14, 2024 5:38 pm

I believe @secret.simon was suggesting that you were born a British subject - and that is what should make you eligible.
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Re: British subject in 1943, suddenly NOT in 1949??

Post by LeftMyHeartInEngland » Wed Feb 14, 2024 6:03 pm

When I search government pages with regard to ROA, they specify that the parent be born in the UK.

I keep looking at the latest Act and still can't see where it applies to me.

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devil's advocate please - 4L c)

Post by LeftMyHeartInEngland » Thu Feb 15, 2024 2:22 am

I wish I understood a bit more about BNA 1981 section 4L c) exceptional circumstances. It appears to be unrelated to a) or b) but to personal circumstances that derailed a person's journey to British citizenship rather than legislative or public authority issues.

I keep going back to my original thought, to do with my marriage and the damage done by my husband's stroke that sent me back to Canada and scuppered our plans. I outlined my thoughts near the beginning of my rambling threads. I'll copy them below. I know it would be a long-shot at best. If I'd gotten as far as ILR I might be a bit more optimistic but the journey did start and it was derailed due to exceptional circumstances beyond my control, beyond anyone's control for that matter.

Could someone please play devil's advocate for me and give me all the reasons why applying under 4L c) won't work. I'd then be able to build a case by debating those reasons or I'd be able to accept defeat. I'm stubborn but sometimes quitting is the best/only choice. I've been fighting 10 years to stay in/return to England and I'm tired and near defeat. This is my last kick at the can.

I've posted my case below:

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 planned 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 would be grateful for any input you may have.

Thanks kindly

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Re: devil's advocate please - 4L c)

Post by contorted_svy » Thu Feb 15, 2024 7:32 am

I believe the main issue with 4L c) is that you didn't have ILR at any stage. if you had been able to acquire that, you'd have stronger grounds.


I understand you have very strong emotional motivations to try to come back to the UK - I would advise waiting for another reply from @secret.simon on the issue you highlighted with the ROA route, and talking to a British immigration solicitor. Section 4L c) is still quite new so there aren't a lot of successful cases, but the ROA route is very well established, and an expert solicitor could give you a yes/no answer.
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Re: devil's advocate please - 4L c)

Post by LeftMyHeartInEngland » Thu Feb 15, 2024 8:35 am

Thank you. Yes, I know it would be a long-shot to apply under 4L c) and my emotions get the better of me. But I may take the risk if ROA doesn't work. I've researched ROA and I'm not hopeful but I will wait for secret.simon to see if he can help me to understand how it would work.

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Re: devil's advocate please - 4L c)

Post by LeftMyHeartInEngland » Thu Feb 15, 2024 10:01 am

I thought that if I apply using 4L c) I could describe the situation in depth, emphasing that I accumulated 5.5 years residence in total, although not consecutively (3 years, then 2.5 years with 1.5 years in between) because of the situation with my marriage. Home Office has evidence of it's own if they keep all correspondence in my file. My husband sent a number of very odd letters to them and also sent requests that I be deported followed by messages that he had changed his mind. He even signed their forms saying I no longer was living with him when it was not true. Home Office sent me two or three letters saying that my leave was rescinded (wrong word) and I must leave. Those letters were followed by ones saying I could stay after all because my husband had not been truthful. He sent them letters accusing me of bigamy and adultery and theft, wanted me arrested and deported. Hopefully they keep all correspondence in my file. It would corroborate my explanation of his deteriorating mental health. Home Office would be able to see that i was working toward ILR. I did file a police report once when the physical abuse got violent. That's the only report I made to authorities although my husband's social worker had to get involved when he became abusive with me and with one of his female carers and when he filed for divorce on the grounds that I was having an affair with his 20-something carer. (I was 71 at the time) The man I am describing is not the man I married. It is a man who suffered a massive stroke. This is what can happen to a mind that's had a catastrophic injury. Anyway, these are some of the events that I would mention in order to describe the exceptional circumstances that derailed our plans for me to reach British citizenship.

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Re: devil's advocate please - 4L c)

Post by secret.simon » Thu Feb 15, 2024 3:32 pm

LeftMyHeartInEngland wrote:
Wed Feb 14, 2024 5:35 pm
Have I jumped the gun here?

I understand how my father would have been eligible for ROA based on section 2 (1) (b) (i)

but secret.simon quotes section section 2 (1) as suppoort for me to be eliglble but that section states:

" a person is under this Act to have the right of abode in the UK if:
(d) he is a Commonwealth citizen born or legally adopted by a parent who at the time of his birth or adoption had citizenship of the UK and colonies by his birth in the UK"

My father was British by descent, not by birth.

Where does that leave me? Not ROA eligible as far as I can see.
I apologise. I made a mistake and mentally missed out of the "born in the UK" requirement for the parent. You are correct. You are not eligible for RoA.

With regards to Section 4L(c), I still think that that route does not apply to you. The purpose of that section is provide the Secretary of State with the discretionary ability to remedy historic unfairness. What it is not a plenary power to bypass or disregard the requirements of naturalisation.

You are of course free to apply and keep us posted of how it is processed. I am fairly certain that it will be rejected, even if you take it to court (and citizenship applications are one that courts tend to keep well out of).

An alternative approach may be for you to apply for an Ancestry visa to move to the UK, as one of your grandparents is born in the UK, live here for five continuous years, get ILR and then naturalise a year after that.

Ancestry visa is a work visa and you are expected to work in the UK. But I read somewhere that even volunteering for an hour a week counts as work for the purpose of the Ancestry visa. Not sure how accurate that is, so wait for others to respond on that point.
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Re: devil's advocate please - 4L c)

Post by CR001 » Thu Feb 15, 2024 4:03 pm

For Ancestry visa, any work is permitted.

Hopefully the OP has independent financial means to financially support themselves though.
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Re: devil's advocate please - 4L c)

Post by LeftMyHeartInEngland » Thu Feb 15, 2024 4:39 pm

I have exhausted my options. The UK Ancestry Visa is out of reach. The $10,000 application fee (primarily health surcharge) is far above my ability to manage. I can support myself frugally with pensions, I've done it before in England and I do it here. I have a small online business that makes very little but would be acceptable as 'work' since volunteering is acceptable. If those were the only considerations, I'd be happy to go through the steps it would take to ILR and eventually citizenship, even at my age.

It's time to let go. There is no way home for me. That breaks my heart. But it is what it is.

I thank you for your help. The forums here and all the willing helpers are appreciatedso much by so many.

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