Am I a British Overseas Citizen???

Bakuli · Post by **Bakuli** » Sat Jun 10, 2006 5:10 pm

Hi Guys,

Need some help here to confirm my status. I was born in 1955 in Penang ( a former British Colony), Malaysia before it's independence in 1957.
From my understanding, that makes me a British Overseas Citizen.
I have been residing in the UK for over 32 years with ILR for over 20+ years.
Recently I decided to apply for British Citizenship and enquired (Home Office Nationality Helpdesk) about the procedure. I was told that I need to apply for naturalisation despite the fact that I was born in the former British colony of Penang. I am sure that the advise I got was wrong because my status should be that of a British Overseas Citizen and that I only need to apply for registration as a British Citizen and not go through the process of naturalisation.
Please help if you have some idea about whether I am in the right or wrong about my BOC status.
Thanks.

ppron747 · Post by **ppron747** » Sun Jun 11, 2006 1:32 pm

I have no doubt at all that if, as you say, you were born in Penang before Malayan / Malaysian independence, you would have been a citizen of the UK & Colonies (CUKC) at birth.

Because (and I don't understand why this was the case) the Federation of Malaya Independence Act 1957 contained no provision for loss of CUKC, you continued to be a CUKC after independence. Most people in this position, lacking the right of abode in the UK, went on to become BOCs.

Before you return to the charge with IND, exactly when did you arrive in UK, and when did you get ILR?

Bakuli · Post by **Bakuli** » Sun Jun 11, 2006 4:55 pm

Paul, thanks for the reply. It has been helpful in confirming my status.

I came to the UK on the 12th of February 1974 to commence my training as a student nurse in a NHS hospital. I qualified in 1977 and continued working for the NHS on a yearly work permit for a few years. I cannot quite remember when exactly I got my ILR, but I know it was as soon as I qualified for it. It was either in the late 70's or early 80's. My old passport with the date of my ILR is currently with IND. Sorry for being so disorganised with my record keeping!

ppron747 · Post by **ppron747** » Sun Jun 11, 2006 5:27 pm

Bakuli

Depending on whether you can prove it - or whether the Home Office have records, if you don't - I think you may well be a British citizen, and not a BOC at all...

If you were resident in UK for five years before 1 January 1983, and you had ILR by the time that five year period ended, then you would have acquired the right of abode under section 2(1)(c) of the Immigration Act 1971 (as originally in force).

When the British Nationality Act 1981 came into force on 1.1.83, section 11(1) provided that CUKCs with the right of abode became British citizens - automatically. The fact that you were presumably here on a Malaysian passport makes no difference to this - although you will, as you probably know, jeopardise your Malaysian citizenship if you avail yourself of a British passport.

If, however, you didn't get ILR until after 1.1.83, then you would have become a BOC when the 1981 Act came into force.

So dig out those old papers, and see what you can come up with! If you can prove your residence (and ILR) before 1.1.83, I see no reason why you shouldn't just apply to the Passport Office for a passport. Nothing ventured, nothing gained, and it won't cost anything if they don't think the proof is good enough - passport fees are refunded in the event of the passport not being issued.

Bakuli · Post by **Bakuli** » Sun Jun 11, 2006 5:42 pm

Paul,

Thank you so much for your knowledgeable reply.

I just need to clarify one point regarding the right of abode. Is it a requirement that ILR be held for the entire 5 years leading up to 1983 to qualify for the right of abode?

I do realise that I would have to surrender my Malaysian citizenship if I take up British Citizenship. I think after living in the UK for 32 years continuously, my roots are quite firmly embedded here in the UK and so it would not be a great loss to me.

ppron747 · Post by **ppron747** » Sun Jun 11, 2006 5:50 pm

Hi Bakuli

No - you needn't have had ILR for the whole five years - it doesn't matter why you were in UK, or what you were doing (so long as your presence was legal) as long as you were "settled" (ie had ILR) at the end of the period.

all the best

Bakuli · Post by **Bakuli** » Sun Jun 11, 2006 5:59 pm

Hi Paul,

Thank you again for your prompt reply.

I am so glad I found this forum because you have been a tremendous help with your well informed knowledge of the various Nationality Acts.

It is a relief for me that I don't have to go through the long process of applying for citizenship now that I know I became a British Citizen automatically on the 1/1/83. I will contact the IND tommorrow and request for my application fees for naturalisation back!

Many thanks once more!

Post by **JAJ** » Mon Jun 12, 2006 4:16 am

Bakuli wrote: It is a relief for me that I don't have to go through the long process of applying for citizenship now that I know I became a British Citizen automatically on the 1/1/83. I will contact the IND tommorrow and request for my application fees for naturalisation back!

You should make a point of asking the Home Office for a letter confirming your status as a British citizen. There should be no charge for this, and it will save you the hassle of answering the same questions every time you renew your British passport in future.

Had you acquired ILR on or after 1.1.83 then as a British Overseas citizen you would definitely be able to become a British citizen by registration under section 4 of the 1981 Act, as opposed to naturalisation. Registration is simpler than naturalisation (no Life in the UK Test, for example) and is also quicker to process.

Bakuli · Post by **Bakuli** » Mon Jun 12, 2006 12:20 pm

Jaj,

Thanks for your suggestion. I have just written to the Home Office as you suggested.

Thanks again everybody for all the help.

Bakuli · Post by **Bakuli** » Mon Jun 12, 2006 7:45 pm

Thought I'd let you guys know that I have just managed to find a letter from the Home Office dated 27th August 1981 stating that I had been granted ILR. That certainly makes it easier for me to prove my claim that I became a British Citizen when the BNA 1981 Act came into force on the 1/1/83.

I can't help but be amused how I started off asking for help in this forum to establish wheter I was a BOC and ended up finding out that I am already a British Citizen (thanks to you guys who contributed). I am somewhat amazed that the adviser at the Nationality Helpdesk did not tell me my rights and that I should have to seek help elsewhere to establish it.

ppron747 · Post by **ppron747** » Mon Jun 12, 2006 9:23 pm

That letter is great news, Bakuli - it would have been very irritating if it had turned out that your ILR had been granted only in 1983!!

Have you got evidence of five years residence up to 31 December 1982? Employer's letters, NI contributions, etc? If so, I see no reason why you need wait for IND to reply - which may be some time. As indicated above, you could just go straight for the passport.

Anyway, I can't wait for the next enthralling installment!

all the best

Bakuli · Post by **Bakuli** » Tue Jun 13, 2006 2:58 am

Hi Paul,

Yes I have a long list of evidence to prove my continuous stay in the UK from 1974 onwards. I worked for over 20 years with the NHS and I have NI & superanuation contribution records, payslips, letters from Inland Revenue, P60's etc to support my claim.

Do I not need to have a letter from IND to verify my claim to British Citizenship before I can apply for a British passport? Anyway, even if I don't, I still have to wait for my Malaysian passport to be sent back from IND before I can approach the Passport Office.

ppron747 · Post by **ppron747** » Tue Jun 13, 2006 7:19 am

No, you don't need a status letter in order to apply for the passport - although IND have made heavy weather of it, yours is actually a pretty straightforward case, and the Passport Office shouldn't have any difficulty in reaching the correct conclusion without help from IND.... I'm sure they're issuing passports to Malaysian BOCs all the time - the only exceptional thing about your case is the fact that you've got ROA as well...

But, as you say, they do need your passport. Probably also your Malaysian birth certificate.

Bakuli · Post by **Bakuli** » Tue Jun 13, 2006 9:51 am

I rang the IND helpdesk yesterday to cancel my application for naturalisation. Advised to write to the Nationality Support Team at Graeme House in Liverpool to do so. As for a letter to confirm my status, I have to write a separate letter to state my claim to British Citizenship and send it to Nationality Enquiries at the IND. I guess this whole affair is still going to take a good few weeks to sort out. Anyway, I am not planning to go abroad until next year, so they (the IND) can take their time!

ppron747 · Post by **ppron747** » Tue Jun 13, 2006 12:44 pm

I think the phrase to use in your "cancellation" letter is "....as I am already a British citizen, and therefore neither in need of, nor capable of, registration or naturalisation". This should enusre that they don't try to retain the fee, given that there's no statutory provision for refunds when an application is withdrawn.

Bakuli · Post by **Bakuli** » Tue Jun 13, 2006 5:52 pm

Hi Paul,

Unfortunately I had already sent off my cancellation letter to the IND before I got your advise on the choice of words to use. Just hope they will return me the fees because I did say that I was wrongly advised by their helpdesk to apply for nturalisati.

Bakuli · Post by **Bakuli** » Fri Jul 21, 2006 4:58 pm

Just received a full refund of the fees for naturalisation after a wait of around 5 weeks. I am still awaiting the reply regarding my British citizenship status. Will keep you guys posted of any other developments.

ppron747 · Post by **ppron747** » Fri Jul 21, 2006 5:24 pm

Blimey! Talk about the wheels of state grinding slowly! I hope you get the rest of this sorted out soon....

Bakuli · Post by **Bakuli** » Fri Jul 21, 2006 5:35 pm

Hi there again Paul,

Yes, it has been a frustrating wait but at least I managed to get back a full refund. I rang IND earlier today to ask about the progress of my other enquiry regarding my British Citizenship status. I was informed that the letter that I sent to IND on the 13/06/06 (over 5 weeks ago) has just been passed on to the relevant department on the 18/07/06! The person I spoke to could not give me a timescale to expect a reply. I guess I just have to wait patiently

Post by **JAJ** » Fri Jul 21, 2006 9:56 pm

Bakuli wrote:Hi there again Paul,

Yes, it has been a frustrating wait but at least I managed to get back a full refund. I rang IND earlier today to ask about the progress of my other enquiry regarding my British Citizenship status. I was informed that the letter that I sent to IND on the 13/06/06 (over 5 weeks ago) has just been passed on to the relevant department on the 18/07/06! The person I spoke to could not give me a timescale to expect a reply. I guess I just have to wait patiently

The fact they gave you a refund suggests they are ok with the idea that you've been British all along. But you really do need that letter a. to be sure you're really a British citizen, and b. to avoid the same saga every time you need to prove your citizenship.

If IND do not respond to your request in a reasonable timescale, then you can always write to your Member of Parliament and ask him or her to write to the relevant Minister.

Bakuli · Post by **Bakuli** » Sat Jul 22, 2006 12:06 am

Hi Jaj

Thank you for your input. I am quietly confident of a positive outcome but the waiting for a reply from IND is rather frustrating nevertheless. I have a feeling that I will get a response from IND within the next couple of weeks. I will let you guys know the outcome when I do.

penanglad · Post by **penanglad** » Sat Jul 22, 2006 11:19 am

Bakuli, have you considered keeping your Malaysian passport and getting a right of abode certificate in your Malaysian passport? That way you keep your Malaysian citizenship but also are exempt from UK immigration control.

Unless you are having trouble travelling on a Malaysian passport or want to work elsewhere in the EU there is no benefit to giving up your Malaysian passport for a UK one.

penanglad · Post by **penanglad** » Sat Jul 22, 2006 11:30 am

ppron747 wrote:Because (and I don't understand why this was the case) the Federation of Malaya Independence Act 1957 contained no provision for loss of CUKC, you continued to be a CUKC after independence. Most people in this position, lacking the right of abode in the UK, went on to become BOCs.

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.

For some reason Ghana was retrospectively covered by the 1958 BNA, but not Malaya. Maybe Penang and Malacca were too insignificant and could be seen as a special case. Or the 1958 Act may have been specifically requested by the Ghanaian government.

Bakuli · Post by **Bakuli** » Sat Jul 22, 2006 12:59 pm

Hi Penanglad,

Yes I am aware that I can get the right of abode and be exempt from UK immigration control and still be able to retain my Malaysian citizenship. I have considered all that and the implications of giving up my Malaysian citizenship. However I still reach the same conclusion that my allegiance now lies here in the UK, having lived here for more than 32 years. I have only lived in Malaysia for 18 years and I don't think I could ever live there again in a country that treats the non-Malays as second class citizens. I feel free here in the UK and I value the true democracy that we have in the UK. These are the reasons why I am willing to surrender my Malaysian citizenship and take up the British one.

ppron747 · Post by **ppron747** » Sat Jul 22, 2006 2:10 pm

penanglad wrote:
ppron747 wrote:Because (and I don't understand why this was the case) the Federation of Malaya Independence Act 1957 contained no provision for loss of CUKC, you continued to be a CUKC after independence. Most people in this position, lacking the right of abode in the UK, went on to become BOCs.
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.

For some reason Ghana was retrospectively covered by the 1958 BNA, but not Malaya. Maybe Penang and Malacca were too insignificant and could be seen as a special case. Or the 1958 Act may have been specifically requested by the Ghanaian government.

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?

The Ghana legislation wasn't, incidentally, retrospective (or is that retroactive?) - Ghana's citizenship law came into force on 11 May 1957, and the loss provisions introduced by the BNA 1958 didn't come into effect until 20 February 1958. So there was a period of some 9 months when people has both citizenships, and the 1958 Act doesn't seek to "unmake" that situation by removing their CUKC from the earlier date.

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Am I a British Overseas Citizen???

Am I a British Overseas Citizen???