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UKSolicitorJA
UKSolicitorJA, Solicitor
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My wifes father was born in the United Kingdom. My wife was

Resolved Question:

My wife's father was born in the United Kingdom. My wife was born in Dublin, Eire (the Republic of Ireland) in 1946. She has lived in the United Kingdom since 1948.

Is my wife a 'British Citizen by descent' under the 1948 act?
Submitted: 2 years ago.
Category: Law
Expert:  UKSolicitorJA replied 2 years ago.
Hello,

Your wife is a British Citizen by descent through her father (UK born and therefore British otherwise than by descent), under S. 2(1) of the British Nationality Act 1981:

http://www.legislation.gov.uk/ukpga/1981/61/section/2

Hope this helps
Customer: replied 2 years ago.

My wife's father was born in Dublin in 1910 when the whole of the island of Ireland was part of the United Kingdom (the United Kingdom of Great Britain and Ireland). The Irish Free State didn't come into being until 1922.


 


Would this make any difference?


 


My wife's father's father and mother were both born in Liverpool in the 1880s.

Expert:  UKSolicitorJA replied 2 years ago.

No difference as your wife's father was born in the UK (as you point out, Ireland was part of the UK before the creation of the Irish Free State in 1922).

 

All the best

Customer: replied 2 years ago.

Last one - in your reply to the first point, you mention S. 2(1) of the British Nationality Act 1981. My reading of this is that this section is only applicable to persons born after the commencement of the act. Is there something I am not seeing?

Expert:  UKSolicitorJA replied 2 years ago.
Sorry, wrong reference, it should have been S.14(1)

http://www.legislation.gov.uk/ukpga/1981/61/part/I/crossheading/supplementary
Customer: replied 2 years ago.

I am still not clear, 14(1)(b) states: subject to subsection (2), he is a person born outside the United Kingdom before commencement who became a British citizen at commencement and immediately before commencement—


(i)was a citizen of the United Kingdom and Colonies by virtue of section 5 of the 1948 Act (citizenship by descent);



However, S 5 of the 1948 act still states 'after commencement'. My wife was born before commencement. So, was my wife a citizen of the United Kingdom and Colonies by descent, because her father was a citizen of the United Kingdom and Colonies?

Expert:  UKSolicitorJA replied 2 years ago.
.
Expert:  UKSolicitorJA replied 2 years ago.

I am not sure if you have read this already, but it helps to explain the complex nature of Irish/British nationality law:

http://en.wikipedia.org/wiki/British_nationality_law_and_the_Republic_of_Ireland

Under the British Nationality Act 1948 subheading, you will see the following:

For the purpose of the 1948 legislation, the United Kingdom of Great Britain and Northern Ireland was defined based on its post-1922 borders. Hence, birth in the Republic of Ireland before 1922 was not sufficient in itself to confer British & Colonies citizenship. Persons born in the Republic of Ireland before 1949 became Citizens of Great Britain & Colonies by descent in British law on 1 January 1949 if they had a father born in the United Kingdom or a place which was a colony at that date (provided father was married to the person's mother).



Just for clarity, I would suggest that your wife apply to the Home Office to officially confirm her status by completing form NS, it costs 94 pounds:

https://contact-ukba.homeoffice.gov.uk/sitecontent/applicationforms/nationality/form_ns.pdf

and the guidance for the form appears here:

https://contact-ukba.homeoffice.gov.uk/sitecontent/applicationforms/nationality/guide_ns.pdf

 

The payment form appears here:

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/261456/nationality-fees.pdf

 

 



Hope this helps

Customer: replied 2 years ago.

Thanks for that.


 


BNA 48 s12 states:


 


British subjects before commencement of Act becoming citizens of United Kingdom and Colonies


(1)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;



s4 states:



Citizenship by birth


Subject to the provisions of this section, every person born within the United Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth :



I read this as saying that as my wife's father was born in the UK before the commencement of the act, he was a British subject by birth and he would be a CUKC in 1948 under s12 because of the alleviation under s4.



I cannot see anywhere in BNA48 anything that defines the UK post 1922.



I understand that 'citizenship by descent' can only handed down for one generation. Either my father-in-law handed down CUKC status to my wife, or, because he was born in Ireland (when part of the UK), he gained CUKC from his father who was born in Liverpool. I could understand the latter if my father-in-law had been born after 1922 as Ireland would then not be part of he UK. I do not understand how a person born in the UK to British parents looses natural nationality status. It would be the same for someone born in Cardiff or Edinburgh!



So, did BNA48 remove the British subject status from my father-in-law and hence require him to adopt CUKC by descent? If so, my wife has no case for CUKC. If it didn't, then she should have CUKC status by descent from her father.



I apologise if this is becoming protracted.

Expert:  UKSolicitorJA replied 2 years ago.
Terry,

As you probably know, British nationality law is probably the most complex in the world and the queries you raise go far beyond the scope of this Q&A website as normally a status check needs to be carried out in such cases which requires examination of documents etc.

I do believe that your wife is a British by descent and suggest that theabove application be made to the Home Office for confirmation.

Hope this clarifies
Customer: replied 2 years ago.

Thank you. Unfortunately, the problem is the Home Office (the Passport Office). When they renewed her passport last year, they said that her status as British Citizen as stated on the previous three passports, was wrong due to an error made in 1981. They say she is a British Subject with right of abode in the UK.


 


They say that her father was a British citizen by descent, not a British citizen by birth, and that he cannot pass on citizenship by descent as it has already been passed once.


 


We believe that they made a mistake by not considering the correct status of her father, and that the interpretation of the 1981 act was correct, she is a British Citizen. However, they are no entrenched and defensive so it is difficult to know what to do.


 


Anyway, thank you for your help, I am most grateful.

Expert:  UKSolicitorJA replied 2 years ago.
You are welcome.

I would suggest that you contact Philip Gamble who is a guru on British nationality law and he will be able to assist you further:

www.philipgamble.co.uk

I also believe that the Home Office are wrong.

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