British Subject to British Citizen 1949

[LondonRioTraveller]

I am helping a friend born in South Africa to determine whether she is likely to be able to register as a British citizen. The case is as follows:

1. In 1943 a South African-born woman married a man who was born in the UK.

2. As far as I understand it, after the marriage the woman's British status became linked to that of her husband.

3. According to the 1949 Nationality Act:

"A woman who was a British subject immediately before the date of the commencement of this Act and has before that date been married to a person who becomes, or would but for his death have become, a citizen of the United Kingdom and Colonies by virtue of any of the foregoing provisions of this section shall on that date herself become such a citizen."

4. The couple divorced in 1955. In 1956 the woman married a South African.

5. In 1957 the woman and her non-British husband had a child born in South Africa.

6. Is that child entitled to register as a British citizen on the basis that in 1949 the mother became a citizen of the UK?

On the face of it, the answer to that last question appears to be "potentially yes" -- assuming if the mother did not automatically lose her UK citizenship when she remarried.

If the child (my friend) is potentially able to register for UK citizenship, would a pre-1949 marriage certificate be sufficient evidence of her mother's UK citizenship? In other words, did a woman on marriage automatically become British/UK or would she have had to register her marriage with the British authorities?

Thank you for any help with this!!

[secret.simon]

This is an interesting question and I have gone back and forth on it, as it is not quite that straightforward.

To start with, the first thing to understand is that there are two underlying requirements for somebody born before 1st January 1983 to have become a British Citizen on that date.

They needed to have Citizen of the United Kingdom and Colonies (CUKC) status, AND,
They needed to have the Right of Abode (RoA) under the Immigration Act 1971.

I see that you have an EU flag on your profile. So, to give you a historic perspective, the UK has always been averse to mass migration from any organisation that it was a member of. It wasn't not just a Brexit thing. It has happened repeatedly in history. But you know what they say, those who don't study their history are destined to repeat it.

In the immediate post WWII environment, it was the Commonwealth, where, as countries became independent, many people still retained CUKC status without any connection to the UK, because they or their parents were born in a colony/protectorate, but not in the UK. So, in the 1960s and 1971, a series of Acts of Parliament restricted the rights of CUKCs who had no direct connection to the UK to come to the UK. That was called Right of Abode (RoA). Right of Abode, for those born before 1983, is defined by Section 2 of the Immigration Act 1971, as enacted.

As RoA was created as a concept in the more enlightened 1970s, it was gender-neutral from the start. It required either parent or one of the grandparents to have been born, registered or naturalised in the UK. CUKC by descent, by contrast, was only possible only via the patrilineal line.

On 1st January 1983, those CUKCs who had RoA became British Citizens. Those CUKCs without RoA became British Overseas Citizens (BOC), without the right to live in the UK. They were entitled to British passports and consular British assistance outside the UK, but they could only move to the UK on the same grounds as any other migrant.

Note that the BOC status was meant to be a closed class. There is no way to acquire BOC status after 1983, except if the child was stateless at birth and born to at least one parent who was a BOC.

Now, onto the case at hand. Unusually, I suspect that you are correct that the mother automatically acquired British Subject status in 1943 (Section 10(1) of the British Nationality and Status of Aliens Act 1914). And the British Nationality Act 1948 appears to require the agency of the Secretary of State for any loss of CUKC status (i.e. I could not find any provision for automatic loss of CUKC status).

Interestingly, it seems the mother may also have acquired RoA status by her marriage to a British subject.

(2)A woman is under this Act also to have the right of abode in the United Kingdom if she is a Commonwealth citizen and either—

(a)is the wife of any such citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a), (b) or (c) above or any such Commonwealth citizen as is mentioned in subsection (1)(d); or

(b)has at any time been the wife—
(i)of a person then being such a citizen of the United Kingdom and Colonies or Commonwealth citizen; or
(ii)of a British subject who but for his death would on the date of commencement of the [1948 c. 56.] British Nationality Act 1948 have been such a citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a) or (b);

So, the mother would have become a British citizen on 1st January 1983 and, if still alive, can apply for a British Citizen passport.

However, I don't think her son can. Note that RoA status for people born before 1983 is not inheritable, but needs to be met by the person meeting the requirements of Section 2 linked to above. And the son of the mother mentioned above does not meet any of the requirements for RoA.

So, even if he could inherit CUKC status before 1983 (which he couldn't because CUKC mothers could not transmit their status to their children), he would not have RoA status at all.

Can he register as a British citizen? Form UKM (see guidance), which allows children of CUKC mothers born before 1983 to register as British citizens, requires the applicant to both prove that he would have acquired CUKC status from the mother AND have RoA. While the son can demonstrate the former, he can't demonstrate the latter.

There is a new Form ARD, which requires the son to prove that he would have become a British citizen on 1st January 1983, but for "historic legislative unfairness". As mentioned above, RoA was gender-neutral from the start, so it may be hard to prove that there was gender discrimination on its acquisition.

The reason that the son can't register as a BOC is because it is a closed category and one can't register to become a BOC.

But applying on the two forms above is almost free (the fees of £130 would be refunded if the application fails), so feel free to give it a shot.

Note that if any registration is successful, the son will only acquire British citizenship from the date of registration. There will be no benefit to any children born to him before the date of registration.

Also note that even if he moves to the UK, he won't be eligible for the State Pension (which requires a minimum of 10 years of contributions to qualify for even a fraction of the full State Pension) and most benefits which are gate-kept by eligibility for the State Pension.

Also, note that the entirety of the advice above is predicated on the mother having divorced her British subject/CUKC husband. If the marriage was annulled, obviously that changes the facts (because the marriage will be treated as if it never occurred).

PS: This is a musing of the evolution of the law on non-British wives of British subjects/CUKCs/British citizens, not affecting the case above, but reflecting on the study that went into it.
Pre-1948, wives (not husbands) of British subject men were automatically deemed to have become British subjects.
From 1948 to 1983, wives of CUKCs had to register to become CUKCs themselves (i.e. it was no longer automatic)
From 1983, spouses (of either gender) of British citizens could naturalise after getting ILR AND three years residence in the UK.
In the last decade, the sentence now also includes civil partners (of the same or opposite gender), but the rules on acquiring ILR means that de facto, it now takes five years of residence in the UK to naturalise as a spouse of a British citizen

[LondonRioTraveller]

Thank you, secret.simon, for your comprehensive reply to my query -- and apologies for the long delay in thanking you!

It seems that my friend has absolutely nothing to lose in submitting an application to register as a British citizen but I will tell her that this is very much long shot! Whatever the outcome, I'll post news of the eventual decision. (By the way, she knows that if she moves to the UK she cannot claim a state retirement pension. For her the only practical purpose is to be able to travel to the UK and EU without going through the trouble and expense of applying for visas.)

Thanks again!