British Subject not EU citizen?

[rayd]

One of the gentlemen on this forum answered my query on another newsgroup, but didn't give me a reference which I can present to officials when I need it.

I am a British Subject under the 1981 Nationality Act with right of abode in the UK. I have a red UK passport saying that and it has 'European Union' on the front cover.

However, the IND have told me that my being a British subject and not a citizen does not entitle me to EU citizenship and that I have to get visas from EU countries before visiting them.

This is backed up by the Estonian and French embassies, who have both told me that I need a visa when visiting their countries. I twice went to Estonia this year and both times they insisted on my buying a visa.

The other part of the problem is my return to the UK. On both occasions when I returned from Estonia, I was sent down the aliens queue. Both times, at Stansted, I queued in the EU queue but was turned away by the passport/immigration officer and told to go to the other queue. There, I was told that I had to fill in a landing card, which I did.

Now, it's fine to tell me that immigration are wrong but, it's very difficult to argue with them with a security guard standing behind them.

Could someone please point me in the direction of an official directive which I can show to both embassies and UK immigration next time I go abroad.

The only thing I have been able to find on the internet says that, of the five categories of British National, only the first (UK citizen) is recognised by the EU under the Maastricht treaty. This does seem to agree with my experience.

Many thanks,

Ray D

[rayd]

I'm following up my post with the reasons why I am a British subject and not a citizen.

My grandfather was born in Norfolk in 1875 and served in the British police force. Prior to the first WW, he was sent to India as a serving member of the British police and my father was born there in 1917.

Although the family moved back to the UK, my father jopined the british army and was sent to serve in India. Whilst he and my mother were in India, I was born there in 1946. We turned to the UK in the same year.

My birth certificate is a British army one and I have the only copy as records were destroyed in 1948 when the British left India.

My father has a British passport with 'British citizen' on it. My mother was born in Kent, with both her parents born in the UK. She also had a British passport with 'British citizen'.

I naively thought I was a British citizen until I applied for a passport in 2001. The UKPA informed me by letter that, as both myself and father were born abroad, I was neither a British citizen, BOC, or BDTC. They gave my status as 'British subject with right of abode in the UK by virtue of my mother's birth in Kent'.

My passport states "The holder is a British Subject under the the British Nationality Act 1981. The holder has the right of abode in the United Kingdom'.

I have no nationality of any country.

I contacted the IND to see about becoming a British citizen and was told that I had to fill in Form AN to become naturalised. I asked about Form BOTA and was told it didn't apply to me.

I went through my MP to the Home Office and the reply came back the same from Andy Burnham MP, who was Home Office misister at the time. He sent me Form AN to fill in.

Now, I'm not too bothered about becoming a british Citizen, particularly if it's going to cost me an arm and a leg, but I am concerned about being recognised as an EU citizen/national so that I don't have to keep applying for visas.

Any help would be greatly appreciated but, as you can see from the above, I have been to all the usual places.

Many thanks,

Ray D

[Christophe]

I believe that you are right.

The UK declaration on nationality for EU purposes, which took effect from 1 January 1983 and replaced an earlier version, says that a UK National for EU purposes includes: "British citizens, British subjects under Part IV of the British Nationality Act 1981 having the right of abode in the UK, and British Overseas Territories citizens..." I can't readily find any "official" primary source of this on the web, but it is quoted in plenty of "official" secondary sources, such as the employment pages of various British government departments and the civil service pages (http://www.careers.civil-service.gov.uk ... 64&635132=).

All people with the right of abode, as evidenced either by a British citizen passport or a certificate of entitlement in another passport, are able to use the British/EU/EEA gate at UK ports of entry. Why this is not signposted I do not know. Again, I cannot readily find an official UK-based web page that states this, but it is stated on the websites of plenty of overseas British missions (e.g. from the website of the British High Commission in Australia: http://bhc.britaus.net/Visas/visadefault.asp?id=274).

I have a certificate of entitlement in my Australian passport: when the certicate is issued, it comes with an information sheet which does say that it enables me to use the passport to pass through the British passport holders' gate at UK ports of entry: I don't know if your passport would have come with a similar sheet?

Someone cleverer than I am will no doubt pop up soon!

[Christophe]

Now, I'm not too bothered about becoming a british Citizen, particularly if it's going to cost me an arm and a leg, but I am concerned about being recognised as an EU citizen/national so that I don't have to keep applying for visas.

You would also not be entitled to enter the USA on the visa waiver scheme, you could not get an ETA (electronic travel authority) to visit Australia, and you would similarly need a visa for some other, non-European countries for which British citizens do not. All of this can be a nuisance (you might say that you never travel outside Europe, but who knows what the future will bring?), so it would seem to me to be sensible for you to become a British citizen, cost notwithstanding, but that's just a personal point of view of course.

[rayd]

All people with the right of abode, as evidenced either by a British citizen passport or a certificate of entitlement in another passport, are able to use the British/EU/EEA gate at UK ports of entry. Why this is not signposted I do not know. Again, I cannot readily find an official UK-based web page that states this, but it is stated on the websites of plenty of oversease British missions (e.g. from the website of the British High Commission in Australia: http://bhc.britaus.net/Visas/visadefault.asp?id=274).

But, I've only been abroad twice on my passport and both times been turned away from the EU gate. It doesn't say British btw at Stansted.

I have a certificate of entitlement in my Australian passport: when it is issued, it comes with an information sheet which does say that it enables me to use the passport to pass through the British passport holders' gate at UK ports of entry: I don't know if your passport would have come with a similar sheet?

The only thing that came with my passport (in 2001) was a letter telling me why I wasn't a British citizen and a suggestion that I contact the HO Nationality Directorate about becoming one. That I did, but was told I had to be naturalized.

I am naturally lothe to visit other EU countries without a visa in case I'm turned away at the border for not being either a British or EU citizen. Without something concrete in my hand to show that they are wrong!

Cheers,

Ray D

[Christophe]

I am naturally lothe to visit other EU countries without a visa in case I'm turned away at the border for not being either a British or EU citizen. Without something concrete in my hand to show that they are wrong!

Yes - that's why I hope someone might come up with an "official" source for the information that you need to be armed with...

[ppron747]

One of the gentlemen on this forum answered my query on another newsgroup, but didn't give me a reference which I can present to officials when I need it......

That'll be JAJ and me.....

The Declaration is described and quoted in para 3 of Chapter "LV" in Part Two of the IND Nationality Instructions here on the IND website. That reference - and a printout of the PDF - should certainly be enough to satisfy an Immigration Officer at Stanstead.

As to whether it will satisfy the immigration authorities of another EU country, I can only say that it should. In your shoes, I think I'd be inclined to write to the Policy and Special Cases Unit at IND - India Building, Water Street, Liverpool L2 0QN - to ask them for confirmation that British subjects with the right of abode are indeed regarded as UK Nationals for EU purposes, and should therefore be exempt from requiring a visa when travelling within the European Union/European Economic Area. I can't believe that that won't do the trick...

...Someone cleverer than I am will no doubt pop up soon!

No chance!

[rayd]

The Declaration is described and quoted in para 3 of Chapter "LV" in Part Two of the IND Nationality Instructions here on the IND website. That reference - and a printout of the PDF - should certainly be enough to satisfy an Immigration Officer at Stanstead.

I didn't manage to find that particular bit as it doesn't list them by para and Chapters, but I did read the chapter about 'Right of Abode'. THat indicated that I had no RoA if I wasn't at least a commonwealth citizen on 1st Jan 1983. Which worried me - so I googled around and found the 1948 Act.

This says:

Transitional
12.—(I) A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if he possesses any of the following qualifications, that is to say
(a) that he was born within the territories comprised at the commencement of this Act in the United Kingdom and Colonies, and would have been such a citizen if section four of this Act had been in force at the time of his birth
(a) A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if at the time of his birth his father was a British subject and possessed any of the qualifications specified in the last foregoing subsection.
(3) A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a citizen of the United Kingdom and Colonies if he was born within the territory comprised at the commencement of this Act in a protectorate, protected state or United Kingdom trust territory.
(4) A person who was a British subject immediately before the date of the commencement of this Act and does not become a citizen of the United Kingdom and Colonies by virtue of any of the foregoing provisions of this section shall on that date become such a citizen unless—
(a) he is then a citizen of any country mentioned in sub-section (3) of section one of this Act wider a citizenship law having effect in that country, or a citizen of Eire ; or -
(b) he is then potentially a citizen of any country mentioned in subsection (3) of section one of this Act.

My father was a CUKC by birth and I was a British subject. As subsection 3 includes India where I was born and I wasn't a citizen of any other country, I can't see why I wasn't a CUKC by the 1948 Act and subsequently a BC under the 1981 Act.

Anything wrong in my reasoning?

Cheers,

Ray D

[penanglad]

You've got a passport which says "EUROPEAN UNION" on the front. What more do you need? Not only have you allowed yourself to be conned into paying for visas when you're a European citizen, you've even let yourself be bullied into filling out a landing card and queuing again in the foreigners' queue when entering your own country.

This is not about having the right authorities. It is about finding some backbone when you meet with idiotic officialdom and standing on your rights. As far as UK immigration control goes, you have a UK passport describing you as a British subject with the right of abode, and are exempt from all immigration control. Next time you are told to queue up somewhere else, stand your ground, point to the right of abode endorsement and ask to speak to the duty SIO if they won't give in. The same goes in other EU countries. Point at the big gold letters on the front of your passport and keep repeating "I'm a European citizen" and insist on speaking to their supervisor if they don't give in.

Remember you're British. Stay calm, be polite, but don't give in. The document linked "United Kingdom national" at the site Ppron has given you will be of some help, but it just seems to me that you've been going round inviting people to boss you around.

[penanglad]

My father was a CUKC by birth and I was a British subject. As subsection 3 includes India where I was born and I wasn't a citizen of any other country, I can't see why I wasn't a CUKC by the 1948 Act and subsequently a BC under the 1981 Act.

Your father wasn't a CUKC by birth, as he was born before 1949, he was a British subject either by birth or by descent depending on which part of India he was born in. You were similarly a born a British subject either by birth or by descent depending on where in India you were born. Your father became a CUKC in 1949 but you didn't because his father was born in the UK but yours wasn't. You weren't swept up by s. 13 because the Indian citizenship laws weren't "declared" by the Secretary of State pursuant to s. 32(8 ) because they were unduly restrictive and did not provide for Indian citizenship for all those born in India - in the view of the UK Government at the time, you ought to have been an Indian citizen rather than a UK & Colonies citizen. If you wish to become a British citizen you will need to register.

You have a UK passport which states that you are a British subject with the right of abode which is conclusive proof for the purposes of s. 3(9) of the Immigration Act 1971 that you are exempt from immigration control. Moreover, by issuing you a passport with the words "EUROPEAN UNION" on the front, the UK Passport Authority has accepted that as a British subject with the right of abode you are a United Kingdom national for Community purposes. You must realise that the UKPA issues two types of passports: "European Union" passports for European citizens and "lookalike" passports with no EU references to British passport-holders who are not European citizens.

[Marco 72]

Hi Ray,

What does your passport say under "citizenship" on the ID page?

Marco

[rayd]

Your father wasn't a CUKC by birth, as he was born before 1949, he was a British subject either by birth or by descent depending on which part of India he was born in. You were similarly a born a British subject either by birth or by descent depending on where in India you were born. Your father became a CUKC in 1949 but you didn't because his father was born in the UK but yours wasn't. You weren't swept up by s. 13 because the Indian citizenship laws weren't "declared" by the Secretary of State pursuant to s. 32(8 ) because they were unduly restrictive and did not provide for Indian citizenship for all those born in India - in the view of the UK Government at the time, you ought to have been an Indian citizen rather than a UK & Colonies citizen. If you wish to become a British citizen you will need to register.

Surely, by your reasoning, if I was born a British subject in 1946 - it was in British India by the way - I qualify under section 12 (1) (2) and (3) of the 1948 act to be a CUKC?

Also, under the IND flowchart Annex A here http://www.ind.homeoffice.gov.uk/docume ... iew=Binary I qualify as a BC under E - the grandfather?

Cheers,

Ray D

[ppron747]

Ray

From a nationality point of view, you and your family look like this:

Your grandfather was a British subject by birth in the UK. On 1.1.49, he became a citizen of the UK & Colonies (CUKC) under section 12(1)(a) of the British Nationality Act 1948. He would have acquired the right of abode (ROA) in the UK under section 2(1)(a) of the Immigration Act 1971. As a CUKC with ROA, he would now be a British citizen under section 11(1) of the British Nationality Act 1981 - and he would have that status "otherwise than by descent".

Your father was a British subject by birth in British India, when it was part of the Crown's dominions. On 1.1.49, India was an independent member of the Commonwealth. However, because his father was a CUKC under section 12(1)(a) of the BNA 1948, your father also became a CUKC. But because India was by then independent, his claim to CUKC was solely under section 12(2) of the BNA 1948. That is to say that he only became a CUKC because his father was born in the UK. He would have acquired the right of abode (ROA) in the UK under section 2(1)(b(i), as a CUKC with father who had ROA under section 2(1)(a) of the Immigration Act 1971. As a CUKC with ROA, he would now be a British citizen under section 11(1) of the British Nationality Act 1981 - but he would have that status "by descent".

You, like your father, were a British subject by birth in British India, when it was part of the Crown's dominions. You couldn't qualify as a CUKC under section 12(1)(a), because India was not part of the UK & Colonies on 1.1.49. Neither could you qualify under section 12(2), because in order to do so, you would have needed a 12(1) father. And you didn't fit 12(3) because British India was never a protectorate.

Furthermore, section 32(7) of the BNA 1948 defined someone in your position (born in India to a father born in India) as potentially a citizen of India. In the absence of a claim to CUKC under sections 12(1), 12)(2) or 12(3), this meant that you could only become a British subject without citizenship (BSWC) under section 13(1) of the BNA 1948. The theory behind this was that this was supposed to be temporary, and that you would eventually become a citizen of India, and cease being a BSWC. Alternatively, if the UK had "declared" Indian citizenship law when it eventually came into force, you would have "switched" to being a CUKC under section 13(2) if India didn't take you as a citizen. But India's citizenship law was never "declared" by the UK government, which meant that section 13(2) never came into operation so far as India was concerned. So you were left in the unfortunate position of being "temporarily" a British subject without citizenship for the last 56 years or so....

The one "good bit" is that your mother was born in the UK. And the terms "British subject" and "Commonwealth citizen" had the same meaning in law, before 1983, which means that you qualified for the right of abode in UK under section 2(1)(d) of the Immigration Act 1971, as a Commonwealth citizen with a UK-born CUKC parent.

That, basically, is how you got to where you are today. I take penanglad's point that simply standing your ground should do the trick, so far as UK authorities are concerned. I am not as convinced as he is that "the broken record technique" would work in some EU countries and I still think that a letter from the Home Office would help smooth the path. I have, incidentally, double-checked the link I gave you earlier, and it still leads to where I thought it did - the contents page of part 2 of Nationality Instructions. The link to "Chapter LV" (called "United Kingdom national") is at the bottom line of the list of chapters - I haven't counted, but I assume it's the 55th line.

Oh - and whoever told you that Form BOTA doesn't apply to you was completely wrong. You fit squarely into section A of the Guide.

[penanglad]

Surely, by your reasoning, if I was born a British subject in 1946 - it was in British India by the way - I qualify under section 12 (1) (2) and (3) of the 1948 act to be a CUKC?

Ppron has answered this

Also, under the IND flowchart Annex A here http://www.ind.homeoffice.gov.uk/docume ... iew=Binary I qualify as a BC under E - the grandfather?

The chart you linked to shows that you were a British subject on the commencement of the BNA1948, it doesn't say anything about whether you would have become a CUKC on commencement.

Bottom line is, as far as the UK and EU are concerned, you are treated exactly like a British citizen. You may want to register as a British citizen for travel to other countries such as the USA, but that is another issue entirely.

[penanglad]

You, like your father, were a British subject by birth in British India, when it was part of the Crown's dominions. You couldn't qualify as a CUKC under section 12(1)(a), because India was not part of the UK & Colonies on 1.1.49. Neither could you qualify under section 12(2), because in order to do so, you would have needed a 12(1) father. And you didn't fit 12(3) because British India was never a protectorate.

Actually, the Indian princely states were protected states and were not part of the Crown's dominions until they joined the independent Dominions of India or Pakistan. That is why I said that whether he was a British subject by birth or by descent depended on where in India he was born. The reason 12(3) doesn't apply is that by 1.1.1949 all the Indian princely states had become part of either India or Pakistan.

[ppron747]

Hmmmmmmm

Ray specified that he and his father were born in "British India" , and I was proceeding on that basis - ie that they were born in a part (or parts) of India that was (or were) not Princely States. Hence the possibility of his having been a BS "by descent" wouldn't arise.

Incidentally, while we're being forensic, I'd have to disagree with your use of the term "by descent" in the context of someone born in a princely state - section 2(1) of the British Nationality & Status of Aliens Act 1943 says

Any person born, whether before or after the commencement of this Act, in a place where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty was at the time of that person’s birth exercising jurisdiction over British subjects, shall, if at the time of his birth his father was a British subject, be deemed to be and, in the case of a person born before the commencement of this Act, always to have been, a natural-born British subject.

So to my mind, although a person born in a princely state to a British subject father would have been a British subject by virtue of his father's status as a BS, he wouldn't actually have been a BS "by descent" - he'd have been "a natural-born British subject".

...The reason 12(3) doesn't apply is that by 1.1.1949 all the Indian princely states had become part of either India or Pakistan.

I'm not actually sure that that was the case - I have a vague recollection (which I can't check in a hotel room...) that one or two of the states soldiered on alone until the 1950s. But you're absolutely right that 12(3) cannot apply - because whatever their status was, they weren't protected states so far as the UK was concerned.

Incidentally - to get even further away from the case - if it were, by some miracle, to emerge that neither Ray nor his father were born in British India, but had instead both been born in a princely state, Ray wouldn't be in the BS limbo in which he finds himself today.... His claim to BS would have arisen solely from granddad's birth in UK, and he'd have become a CUKC under section 12(4). But I expect that's too much to hope for....

[Marco 72]

I think the fact that he has a passport with "European Union" on the cover is irrelevant for EU citizenship purposes. If Span (say) started issuing passports to its stateless residents without granting them citizenship, they would still not be EU citizens, even though their passports would have "Unión Europea" on the cover.

[JAJ]

Now, I'm not too bothered about becoming a british Citizen, particularly if it's going to cost me an arm and a leg, but I am concerned about being recognised as an EU citizen/national so that I don't have to keep applying for visas.

It seems like you have been misadvised in a number of areas:

- Home Office telling you that you are not a "United Kingdom national" for EU purposes, when in fact you are.
- Home Office telling you that you need to apply for naturalisation on form AN when in fact you have access to the simpler option of registration on form BOTA (this is because of section 4 of the British Nationality Act 1981)

Without meaning any disrespect to the Home Office, I think it's fair to say that the collected wisdom of a few of us here is greater than what's typically available from ringing the IND "helpline".

All that said, they are right (based on the facts presented) when they say that you a British subject rather than a British citizen. But you can become a British citizen if you apply.

Becoming a British citizen by registration will cost you GBP188. It's up to you to decide whether that's "an arm or a leg" or not, but it's likely to be a simpler and more hassle-free option long term.

For example, as a British citizen you will be eligible for the US visa waiver scheme, while as a British subject you must obtain a visa - USD100 and a personal visit to a US Embassy or Consulate.

If you decide to go for British citizenship by registration, better to do so sooner rather than later as there is talk of a police check requirement being introduced in the near future. Not to say you'd have any problems with that, but it may be another form to fill out.

[JAJ]

I think the fact that he has a passport with "European Union" on the cover is irrelevant for EU citizenship purposes. If Span (say) started issuing passports to its stateless residents without granting them citizenship, they would still not be EU citizens, even though their passports would have "Unión Europea" on the cover.

I think in that case Spain would come under pressure not to issue passports in that format. The real example you should quote is the British "EU format" passport issued to Channel Islanders and Manxmen with an endorsement removing the right to establishment in other EU states. However such persons are still "UK nationals for EU purposes" despite the endorsement, which is now an anomaly.

[JAJ]

Bottom line is, as far as the UK and EU are concerned, you are treated exactly like a British citizen. You may want to register as a British citizen for travel to other countries such as the USA, but that is another issue entirely.

There is one exception though. As a British subject connected with India, the original poster "rayd" would automatically lose his British nationality on acquisition of any other (eg French, American, Canadian etc).

This is a little known exception to the general British rule that allows dual citizenship. And in an exception to the exception, British subjects connected with the Republic of Ireland do not lose British nationality this way.

The simple solution for the original poster (rayd) is to fix the anomaly at source and become a British citizen by registration.

[Marco 72]

I think in that case Spain would come under pressure not to issue passports in that format. The real example you should quote is the British "EU format" passport issued to Channel Islanders and Manxmen with an endorsement removing the right to establishment in other EU states. However such persons are still "UK nationals for EU purposes" despite the endorsement, which is now an anomaly.

I was actually thinking of quoting that example, but since I had never seen one of those passports I didn't want to commit myself . So a Manx person with an endorsment in his or her passport is now an EU citizen?

[rayd]

Incidentally - to get even further away from the case - if it were, by some miracle, to emerge that neither Ray nor his father were born in British India, but had instead both been born in a princely state, Ray wouldn't be in the BS limbo in which he finds himself today.... His claim to BS would have arisen solely from granddad's birth in UK, and he'd have become a CUKC under section 12(4). But I expect that's too much to hope for....

My father was born in Muzafarnagar, northern India in 1917. I was born in Poona in 1946. AFAIK, being British India, they wouldn't have been princely states.

Although I don't have my father's birth certificate - that was lost years ago and never got registered in this country - I do have a copy of his baptism certificate signed by the Superintendent of Records in the CRO in 1954.

My birth cerificate is entitled Army Form A.42B "The Registration of Births, Deaths and Marriages (Army) Act, 1879" and the "Air Force (Application of Enactments( (no 2) Order 1918". It's signed by the Officer Commander of the regiment.

My many thanks to all who have given very complete answers to my questions. I will have to think seriously about registering as a BC. Having lived in the UK since my father retired from the British Army in 1954, I haven't ever considered myself to be anything other than British until the 1981 act reared its ugly head. It wasn't until I actually needed a passport that the reality of my situation was put into print.

Does anyone know the lead time for registration at the moment? We hope to go abroad again in March and don't want to be left with my passport in the hands of the IND.

Cheers,

Ray D

[Christophe]

Does anyone know the lead time for registration at the moment? We hope to go abroad again in March and don't want to be left with my passport in the hands of the IND.

Currently the IND is quoting 1.93 months for adult registrations (see http://www.ind.homeoffice.gov.uk/applying/nationality/), although obviously this must vary, and your case would be more complicated than some. This figure is said to be as at the end of October 2006.

You might be able to send a copy of your passport (all pages, duly certified by a solicitor) rather than your passport, which would obviate the problem of travel. In any case, nationality applications aren't generally considered to be withdrawn if the applicant asks for return of passport: these two things might be questions worth contacting the IND about.

[Christophe]

Indeed, to answer my own question, further down the page that I cited just above (http://www.ind.homeoffice.gov.uk/applying/nationality/), the text says:

If you wish to apply for British citizenship and you plan to travel abroad within 12 weeks of making an application, you should not send in original passports or travel documents with your application. You may send in copies of documents certified by a solicitor. Each page of a passport must be copied.

It then goes on to give contact details should you want your passport returned urgently.

[penanglad]

Ray specified that he and his father were born in "British India" , and I was proceeding on that basis - ie that they were born in a part (or parts) of India that was (or were) not Princely States. Hence the possibility of his having been a BS "by descent" wouldn't arise.

Sorry, didn't notice the later post where he said it was definitely in British India; the original post didn't say. Muzaffarnagar was British from 1803, Poona from 1818.

Incidentally - to get even further away from the case - if it were, by some miracle, to emerge that neither Ray nor his father were born in British India, but had instead both been born in a princely state, Ray wouldn't be in the BS limbo in which he finds himself today.... His claim to BS would have arisen solely from granddad's birth in UK, and he'd have become a CUKC under section 12(4). But I expect that's too much to hope for....

That is interesting.