Right of abode in Indian passport for minors

[curious2006]

I have two friends in a dilemma over Right of abode in Indian passport for children born in UK when both parents have ILR (i.e. permanent residence in UK).

One friend (husband and wife) are both Indian citizens with ILR in the UK since 2004. They are expecting a baby this month in UK and are mulling over whether to apply for British or Indian passport for the baby. The baby will automatically be British at birth as both parents have ILR. As my friend wants to return back to India in a few years time, he is seriously considering whether he is allowed to apply for an Indian passport for the baby and then take right of abode for the baby in the Indian passport. I understand from previous discussion-chains that since Dec 2004, there has been a change of rule regarding Indian citizenship by descent. In light of the Dec 2004 rule changes, could this friend apply for Indian passport followed by right of abode for the baby next month?

My second friend (husband and wife) are both Indian citizens with ILR in the UK since 2002. They had a baby in UK in 2003 and applied for a
an Indian passport for the baby and took right of abode stamping in the Indian passport. They did not apply for a British passport for the baby as they too wanted to return to India in a few years. So this is a pre-Dec 2004 situation. This friend wants to know whether there will be any problem or hassle when he tries to renew the Indian passport for the baby at the end of 5 year period. It seems Indian high commission ask for a letter from the UK Home Office to state whether the applicant (i.e the baby) has acquired British nationality (or not) for passport renewal or to replace a lost or stolen passport.

This is a unique situation as the baby has acquired British nationality at birth and not voluntarily by registration or naturalisation. It is unlikely that UK Home Office will give such a letter that Indian High commission would need for the baby. Would this be a problem? If this could be a big problem, my friend is happy to apply now for a British passport for the baby followed by cancelling the baby's Indian passport and applying for a PIO card. Could there be any problem in the baby getting a PIO card because of the unique situation?

Your considered thoughts and suggestions would be appreciated.

[ppron747]

I have two friends in a dilemma over Right of abode in Indian passport for children born in UK when both parents have ILR (i.e. permanent residence in UK).

One friend (husband and wife) are both Indian citizens with ILR in the UK since 2004. They are expecting a baby this month in UK and are mulling over whether to apply for British or Indian passport for the baby. The baby will automatically be British at birth as both parents have ILR. As my friend wants to return back to India in a few years time, he is seriously considering whether he is allowed to apply for an Indian passport for the baby and then take right of abode for the baby in the Indian passport. I understand from previous discussion-chains that since Dec 2004, there has been a change of rule regarding Indian citizenship by descent. In light of the Dec 2004 rule changes, could this friend apply for Indian passport followed by right of abode for the baby next month?

My second friend (husband and wife) are both Indian citizens with ILR in the UK since 2002. They had a baby in UK in 2003 and applied for a
an Indian passport for the baby and took right of abode stamping in the Indian passport. They did not apply for a British passport for the baby as they too wanted to return to India in a few years. So this is a pre-Dec 2004 situation. This friend wants to know whether there will be any problem or hassle when he tries to renew the Indian passport for the baby at the end of 5 year period. It seems Indian high commission ask for a letter from the UK Home Office to state whether the applicant (i.e the baby) has acquired British nationality (or not) for passport renewal or to replace a lost or stolen passport.

This is a unique situation as the baby has acquired British nationality at birth and not voluntarily by registration or naturalisation. It is unlikely that UK Home Office will give such a letter that Indian High commission would need for the baby. Would this be a problem? If this could be a big problem, my friend is happy to apply now for a British passport for the baby followed by cancelling the baby's Indian passport and applying for a PIO card. Could there be any problem in the baby getting a PIO card because of the unique situation?

Your considered thoughts and suggestions would be appreciated.

According to the Indian Ministry of Home Affairs website

(iii) A person born outside India on or after 3rd Decmber, 2004 shall not be a citizen of India, unless the parents declare that the minor does not hold passport of another country and his birth is registered at an Indian consulate within one year of the date of birth or with the permission of the Central Government, after the expiry of the said period.

Youl'll note that it says "passport" - not "nationality"

I can't comment on how the Indian High Commission in London actually administers this, because I have no personal experience, but it seems fairly clear to me that this means that it should be perfectly safe for a child to have a Certificate of Entitlement to the Right of Abode in its Indian passport, and that it's the acquisition of a British passport that would trigger the loss of Indian citizenship.

[lemess]

I echo ppron's point. if you download the form for a new Indian passport from the Indian HC website, it clearly asks you to declare that you have not got a passport from another nation and promise to surrender your Indian passport if you ever get one. This clearly implies that it is the act of getting a British passport that signals the exercise of the entitlement so it should be perfectly acceptable to hold an Indian passport with a right of abode sticker.

The issue is however what possible advantage could someone get from this ? The child would be unable to travel visa free in Europe and many countries of the world ( the key benefit of a UK passport) and it might as well have an ILR stamp if it wants to be able to live in the UK on an Indian passport. That way there is no risk of ever being on the wrong side of an over officious Indian immigration official.

I suspect the most effective strategy for most children would be to get a UK passport and a PIO card or OCI now that those schemes are operational. This way the child will always be able to go back to India and live and work there for as long as they like without a visa while also keeping the benefit of holding an EU passport and visa free travel and access to many advantages this combination would bring them when they grow up in an increasingly globalised world.

[ppron747]

....and it might as well have an ILR stamp if it wants to be able to live in the UK on an Indian passport.... That way there is no risk of ever being on the wrong side of an over officious Indian immigration official.

It's a technical point, lemess, but IND may well not be prepared to put an ILR endorsement into the passport of a child they know to be a British citizen. ILR, after all, can expire after two years absence, whereas ROA can't. I think it would be purporting to impose some control over someone over whom they actually have no control. I know it happened in ye olden days, when ILR could be granted at ports, but I doubt if it does now...

For the short term, I think the C of E is the best bet, but your speculation that OCI/PIO in a British passport (once the former has bedded in properly) would work looks good in the longer term.

[curious2006]

In a pre-Dec 2004 situation, when right of abode has been obtained in an Indian passport for a child, is this right of abode applicable for the whole life of the baby? Or is it not really applicable once the baby attains full age (18 years)?

When the baby attains full age and becomes an adult, right of abode in an adult passport may not be legal and could be objected to by Indian immigration officials? Is this true?

[ppron747]

As I understand it, although the Citizenship Act and the constitution object to poeple having more than one citizenship, there is subordinate legislation clarifying this as meaning the obtaining of the passport of another country, in cases where the acquisition of the other citizenship was not voluntary.
It is at least a year ago since I looked at this stuff, and I might be misremembering. But if I'm right - and I think I am - it means that people who acquired British citizenship automatically at birth don't have to renounce it in order to retain Indian citizenship, so long as they don't acquire a British passport. So they should be OK with a certificate of entitlement to the right of abode.

[curious2006]

I found an update in Annex H within the IND web site which has lots of useful information. The web site says it has been recently updated.

The web site is www.ind.homeoffice.gov.uk/ind/en/home/ laws___policy/policy_instructions/nis/chapter_14/annex_h.html

ppron747 - this might mean that in a pre-Dec 2004 situation, the child with Indian passport with right of abode stamp will lose the right of abode entitlement once the child reaches 18 years if the child renounces British citizenship (so as not to lose Indian citizenship)

lemess, raikal - you might find the updates in Annex H of IND web site useful too.

[ppron747]

ppron747 - this might mean that in a pre-Dec 2004 situation, the child with Indian passport with right of abode stamp will lose the right of abode entitlement once the child reaches 18 years if the child renounces British citizenship (so as not to lose Indian citizenship)

Yes - except in certain cases where the person was born before 1983, ROA depends on the individual being a British citizen, so if they renounce BC, they also lose ROA