Am I a British Overseas Citizen???

[penanglad]

I believe the absence of a loss provision was actually agreed following representations from the people of Penang and Malacca. What I'd be interested in knowing is why these representations were accepted. Was it something to do with ethnicity?

I can't think of any strong reason - all Penang and Malacca British subjects were automatically Malayan citizens under the Federation of Malaya Agreement 1948, and it seems contrary to the spirit of the draft Constitution, which was at the request of the main parties amended to prevent the exercise dual nationality - admittedly this was more concerned with Chinese and Indian nationality than British.

I remember being told that the British government gave assurances that Penang and Malacca would retain some sort of special status. Possibly it was seen as a cost-free way of reassuring Penang and Malacca citizens that independence would not disadvantage them, and they could at any time choose to give up their Malayan passports for a UK one. At that time there was no benefit to being a CUKC rather than another British subject other than the passport.

[JAJ]

The reason is that the 1957 independence Acts (Ghana and Malaya) were the first ones to come after the 1948 BNA and the idea of depriving people of CUKC on independence was novel.

I don't dispute that the 1957 independence acts for Ghana and Malaya were among the first, but I don't think the idea was entirely "novel" - British subject status had been withdrawn from Burmese after that country's independence outside the Dominions in 1948.

[Bakuli]

Just posting an update regarding my situation. It's been 13 weeks since I wrote to the IND requesting a letter to confirm my British citizenship entitlement. I have received no news and on the few occasions I rang the IND, they couldn't give me a timescale to expect a reply! It has been a very frustrating wait. Would it help matters if I make a complaint against the IND?

[JAJ]

Just posting an update regarding my situation. It's been 13 weeks since I wrote to the IND requesting a letter to confirm my British citizenship entitlement. I have received no news and on the few occasions I rang the IND, they couldn't give me a timescale to expect a reply! It has been a very frustrating wait. Would it help matters if I make a complaint against the IND?

You could go ahead and make a formal application for either a British passport or a Right of Abode certificate in your Malaysian passport without that letter. Have you done that?

The fact that they refuse to give any timescale to respond to your letter is completely unacceptable. There is a complaints process you can follow:
http://www.ind.homeoffice.gov.uk/contactus/complaints

You could immediately write to your Member of Parliament and ask him or her to take the issue up with the Minister responsible for IND, but it's usually better to make an internal complaint first and then escalate as necessary.

[penanglad]

I presume you sent all original documents with your letter? There's nothing to be lost by making a complaint, or contacting your MP. That's what they're there for.

If you didn't send in any documents, just apply for the passport. Your situation is not too complicated.

[Bakuli]

Hi Penanglad,
I had all my original documents returned to me from IND after I requested it back following the cancellation of my application for naturalisation.
I was in touch with the passport office, via their helpline, some time ago and was advised to get a letter from IND to confirm my British citizenship status. So, I am not sure if I can go ahead with my passport application without the letter from IND.

Bakuli

[Bakuli]

Hi Jaj

Thanks for your advice. I am going to try and apply for the British passport despite the absence of the letter from IND to confirm my British citizenship entitlement.
In the meantime, I am also going to lodge a complaint using their internal procedure.

Regards,
Bakuli

[Bakuli]

I rang the Passport Office today to make an appointment to apply for a passport in person at the Passport Office in Victoria, London. I told them that I was a Malaysian passport holder but have a claim to British citizenship under Section 11(1) of the BNA 1981. I was asked to give them my home contact number and that they would call me back as they need to check out my claim ( they didn't seem to have a clue about Section 11(1) of BNA 1981). After about a couple of hours I had a call back from the Passport Office and told that I have to bring in my father's birth certificate! I informed them that I would not be able to do so because I have no contact with my father or know of his whereabouts as he left the family when I was a kid. The caller still insisted that I needed my father's birth certificate to go ahead with my passport application. Finally, I managed to get the message across that I was not claiming British citizenship through my parents but that it was my entitlement under Section 11(1) of the BNA 1981. I was then told to bring along my passport, birth certificate, letter from Home Office showing I have ILR and utility bills etc to prove my identity. They did also warn me that it might take a while for my passport application as they have to carry out checks to verify my status. Well, I am keeping my fingers crossed that all will go well this saturday when I attend my appointment at the passport office.

[ppron747]

I've been through your previous posts, Bakuli, and concocted the following, which you might like to take with you on Saturday - I hope it summarises your situation. The crucial point, IMO will be the proof of five years continuous UK residence (less time off for short holidays) leading up to the grant of ILR. So make sure you've got that organised neatly...

1955: BS:CUKC under section 4 of the British Nationality Act 1948, by birth in Malacca, which was a British Colony from 2 September 1858 until 30 August 1957

31 August 1957: Malacca became independent as part of the Federation of Malaya, and you became a citizen of Malaya. But the Federation of Malaya Independence Act 1957 contained no provision for loss of BS:CUKC by those connected with either Malacca or Penang, or the former Malay States, so you continued to be a BS:CUKC as well.

16 September 1963: Malaya was joined by Sabah, Sarawak and Singapore, and renamed the Federation of Malaysia. But only people who became Federal citizens on that day lost BS:CUKC - so people from Sabah, Sarawak and Singapore lost it, but people who were already Federal citizens didn't lose it. So, you retained BS:CUKC.

12 February 1974: You arrived in UK, first as a student then as a nurse, and you stayed.

27 August 1981: You were granted indefinite leave to remain. Because you had been in UK for more than five years, and were "settled" at the end of that period, you acquired the right of abode in UK under section 2(1)(c) of the Immigration Act 1971, as it was then in force.

1 January 1983: As a BS:CUKC with the right of abode in UK, you became a British citizen under section 11(1) of the British Nationality Act 1981.

Good luck!

[Bakuli]

Hi Paul,

Thank you so much for your help in summarising my situation so well. It will definitely help in supporting my claim to British citizenship.

The only correction I have to make to your summary is that I was born in Penang and not Malacca.

[Bakuli]

Paul,

I need to ask you one question regarding the right of abode.
Would it make any difference that I do not have the Certificate of the Right of abode in my Malaysian passport although I am entitled to it? Would I need to have it (the certificate) before I can proceed any further with my passport application?

Thanks

[JAJ]

Paul,

I need to ask you one question regarding the right of abode.
Would it make any difference that I do not have the Certificate of the Right of abode in my Malaysian passport although I am entitled to it? Would I need to have it (the certificate) before I can proceed any further with my passport application?

No,you don't need this. It's an alternative option, however.

[ppron747]

Shouldn't make a difference, Bakuli

A Certificate of Entitlement to the Right of Abode demonstrates that the individual has already proved a claim to ROA. So if you had one, it would save the Passport Office from having to do some thinking - and the same would apply if you were able to produce the "status letter" that the Home Office have so conspicuously failed to produce, after such a long wait.

But I can't see that there's any reason why the Passport Office shouldn't get their thinking caps on, and work it out for themselves... Passport Office Examiners are fully capable of assessing a claim under section 2(1)(c) of the Immigration Act - although they might be a bit rusty, as it wouldn't be something that crops up in first-time applications too often, these days.

[Bakuli]

Thank you Paul and Jaj for your answers. I will let you guys know the outcome of my passport application in the next week or so.

[penanglad]

I've been through your previous posts, Bakuli, and concocted the following, which you might like to take with you on Saturday - I hope it summarises your situation. The crucial point, IMO will be the proof of five years continuous UK residence (less time off for short holidays) leading up to the grant of ILR. So make sure you've got that organised neatly...

1955: BS:CUKC under section 4 of the British Nationality Act 1948, by birth in Malacca, which was a British Colony from 2 September 1858 until 30 August 1957

31 August 1957: Malacca became independent as part of the Federation of Malaya, and you became a citizen of Malaya. But the Federation of Malaya Independence Act 1957 contained no provision for loss of BS:CUKC by those connected with either Malacca or Penang, or the former Malay States, so you continued to be a BS:CUKC as well.

16 September 1963: Malaya was joined by Sabah, Sarawak and Singapore, and renamed the Federation of Malaysia. But only people who became Federal citizens on that day lost BS:CUKC - so people from Sabah, Sarawak and Singapore lost it, but people who were already Federal citizens didn't lose it. So, you retained BS:CUKC.

12 February 1974: You arrived in UK, first as a student then as a nurse, and you stayed.

27 August 1981: You were granted indefinite leave to remain. Because you had been in UK for more than five years, and were "settled" at the end of that period, you acquired the right of abode in UK under section 2(1)(c) of the Immigration Act 1971, as it was then in force.

1 January 1983: As a BS:CUKC with the right of abode in UK, you became a British citizen under section 11(1) of the British Nationality Act 1981.

Good luck!

Agree with all that, except as has been pointed out OP born in Penang, and would have been a Malayan federal citizen from birth under the provisions of the Tenth Schedule of the Federation of Malaya Agreement 1948, which was preserved in federal law by the 1957 and 1963 Constitutions. All that happened in 1957 is that the Federation of Malaya was added to s.1(3) of the BNA 1948, but of course OP was already a British subject by virtue of being a CUKC. (Gosh, what spotters we are, to be sure.)

Bakuli, seeing as you have the letter from the Home Office granting you ILR, your case is as straightforward as a 2(1)(c) IA1971 claim could be, and as long as you set out your claim as clearly as PPron has set out you should have no problem.

[penanglad]

Shouldn't make a difference, Bakuli

A Certificate of Entitlement to the Right of Abode demonstrates that the individual has already proved a claim to ROA. So if you had one, it would save the Passport Office from having to do some thinking - and the same would apply if you were able to produce the "status letter" that the Home Office have so conspicuously failed to produce, after such a long wait.

To be fair, I don't think Home Office practice is to issue a status letter without original documentation. Perhaps a letter of advice, but those are probably not treated with the same priority.

[ppron747]

Thanks for pointing out my "slip of the tongue" over Federal citizenship - I have a bit of a blind spot over it, I think, because it is one of the few territories that had its own "local" citizenship before independence...

On the "status letter" / "letter of advice" issue, I hadn't realised there was a distinction, tbh - I've seen only a few, some of which had obviously resulted from documentary evidence having been produced, and some hadn't. I don't know whether Bakuli sent documentary evidence when she asked for the letter - I never thought a letter should be necessary anyway, with such a strightforward claim...

[Bakuli]

Just got back from London after a fruitless and frustrating afternoon at the Passport Office. The counter staff was impressed by the facts I produced ( Paul's summary) and asked where I got all this information from. I told him about this forum.
My case was then immediately referred to the duty manager, who initially asked for my father's birth certificate. I told her that I have no contact with my father ( who had abandoned the family when I was a kid). She insisted that this was required but then I pointed out that if she had read the evidence I had produced, she will be aware that I am applying for a British passport in my own right as a CUKC with the right of abode. Again I had to repeat what I had written (Paul's summary). after which the Duty manager then took all my documents back to her desk to consult some other people and when she came back, she said that a certificate to the right of abode is required as evidence that I have that right. I pointed out that all the documents (letter from IND granting ILR in 1981, a Pension Forecast from DWP indicating my National Insurance contributions since 1974, a list of all my absences from the UK with reference to each individual page in my old passports, showing the dates of embarkation and arrival back to the UK) should be sufficient evidence for her to work out my "settled" status and that I had acquired the right of abode under section 2 (1) (c) of the Immigration Act 1971, as then in force.
The manager was not willing to budge from her position and continued to insist that a certficate is required. She said it was not their job to ascertain my status as a British Citizen and that I have to approach IND for that.
Another matter that she wasn't happy with was to do with my change of name. I assumed a new name back in the late 80's, dropping my surname and just retaining first names (one of which became my surname). My new name was used in every aspect of my life (bank, mortgage, Inland Revenue, etc) with the exception of my Malaysian passport. . I had brought along a Deed Poll to show that I had formalised my name change. She said that she could not be sure that the two names, ie the old one still in my Malaysian passport and the new name that I used now are the same person!!! I was gobsmacked. She had in her possession all my Malaysian passports with my photographs in it to show that I am that person and also the Deed Poll formalising the change of name from the old one to the new. I had also produced a letter from my employer at the time I first assumed the new name back in the late 80's, showing the change of name in my personnel records! All these evidence seem inadequate for her and I was rather disappointed at her seemingly lack of intelligence to work out that I am the same person! I was at the verge of telling her that if she had a logical mind, she could have worked out that I could easily have applied for the British passport in my former name and once obtained, get it changed to my new name!

I realised I wasn't getting anywhere and I could feel it was pointless carrying on as I was starting to lose my cool. The duty manager was not going to budge from her position ie, 1) I have to obtain a certificate to the Right of Abode to prove I have that entitlement, 2) Also to prove my name change further by producing something like old payslips in my former name.

Anyway, thanks a lot guys for your help and contribution although I didn't manage to 'pass' through the Passport Office. So it's back to the IND again for me, another few months of waiting! Grrrrr!

[ppron747]

If I were to post my true feelings on this sorry tale, Bakuli, I'd face a summary court martial in the moderators' forum.. Suffice it to say that I am outraged - particularly by the stupid notion that a British citizen needs a certificate of entitlement to the right of abode in order to get a British citizen passport.

Many BCs of Kenyan origin, for instance, took exactly the same route to ROA as you did, and I'll wager that very few (if any) of them were required to get a certificate of entitlement in order to prove their claim...

Having had my rant, I should say that I have been in touch only today with someone with a claim to ROA under 2(1)(c) who has just got a Certificate of Entitlement from IND in almost exactly three weeks - in contrast to the 6-8 week period advertised on the IND website.

He did it in order to avoid getting a British passport, in the hope that he would retain Malaysian citizenship. His application was actually slightly more complex than yours, because his claim to CUKC was by descent, rather than by birth.

Given that the C of E is about the only remaining bargain that the Home Office have in their shop window, at £20, I think it might be worth thinking about - details here.

Heartfelt sympathy for today's ordeal - and whatever else you decide to do, I hope you will complain formally to the Chief Executive (cc Policy Section) of the UK Identity and Passport Service.

all the best

[JAJ]

Heartfelt sympathy for today's ordeal - and whatever else you decide to do, I hope you will complain formally to the Chief Executive (cc Policy Section) of the UK Identity and Passport Service.

This isn't the first time Passport Office officials have shown themselves incapable of dealing with a nationality claim that falls outside the simplest category.

The complaints process is at:
http://www.passport.gov.uk/contact_anyprobs.asp

[Bakuli]

Thank you Paul and Jaj for your supportive and sympathetic replies.

After my experience at the UKPS, I came to the conclusion as yourself, Paul, that applying for the certificate of the Entitlement to ROA is the sensible way forward. I downloaded the application form for ROA last night and have completed it, ready to be posted to IND on monday!

I forgot to add in yeaterday's post that at one point when I was arguing my case, the duty manager said they could issue me with a BOC passport. However I declined because I maintained to her that I am a British Citizen and have the right to a British Passport.

Yes, I will be making a complaint about my experience at the UKPS because I am still so annoyed over it.

[penanglad]

Bakuli

Probably not a bad decision - see how you feel after you have gone through Heathrow a few times on a Malaysian passport with a ROA sticker - you can use the UK/EEA line. The other option of course is to try to get a status letter from the Home Office by submitting your original documentation, but I think the extra £20 for the ROA sticker is worth the extra money.

I know how you feel about British officialdom - I recently had a friend who presented a BOC passport with a "Right of Readmission" endorsement on it at the airport - the immigration officer didn't know what it was and even the senior immigration officer insisted that he needed other evidence of ILR, until he insisted that they look it up in the Immigration Directorate Instructions. This took about an hour.

I have no experience of the name change issue, but the Passport Office deals with this on a regular basis so their policy should be on the website.

[JAJ]

After my experience at the UKPS, I came to the conclusion as yourself, Paul, that applying for the certificate of the Entitlement to ROA is the sensible way forward. I downloaded the application form for ROA last night and have completed it, ready to be posted to IND on monday!

Just be careful if you are sending documents to IND that would be very difficult to replace if lost.

A courier is more secure than any Royal Mail service, but that doesn't mitigate the risk of documents being lost within the IND system or indeed on their return to you (unless you include a prepaid courier envelope and IND are willing to use it).

[Bakuli]

Hi Jaj

Thanks for the advice but I'm afraid I read your post too late to heed it. My wife has just posted my application form to IND with all my various documents (birth cert, passports, etc) via recorded delivery, Royal Mail.
Well, I can only keep my fingers crossed that'll be OK.

[Christophe]

Do let us know how you get on (not just with the documents, I mean, but with everything).