Acquisition of British citizenship etc. by registration
Section 43: Minors
166.Section 43 amends section 3(2) of the BNA 1981 to remove the requirement that an application for the registration of a child under that subsection must be made within twelve months of the child’s birth. This will enable an application to be made at any time before the child’s 18th birthday.
167.Section 43(3) removes section 3(4) of the BNA 1981, which gave the Secretary of State discretion to extend the 12 month period to six years after the child’s birth, as this is no longer necessary.
168.There is also a requirement that the Secretary of State must be satisfied that the applicant is of good character – see section 41A(1) of the BNA 1981 (which is inserted by section 47).
Section 44: British Nationals (Overseas) without other citizenship
169.Section 44 amends section 4B of the BNA 1981. This adds British Nationals (Overseas) to those who are eligible to apply for registration under this section, which currently includes British Overseas citizens, British subjects and British protected persons. The amendment will allow British Nationals (Overseas) to be registered as British citizens if they do not hold any other citizenship or nationality, and have not done anything to effect the loss of another citizenship or nationality since 19 March 2009 (which is the date this change was announced).
170.Section 44(3) and (4) replace the current requirement that a person should not have lost any other citizenship or nationality after 4 July 2002, as a result of renunciation, voluntarily relinquishment, action or inaction. This is replaced with a requirement not to have done so after the “relevant day”. For British Nationals (Overseas) the “relevant day” will be 19 March 2009, for the other types of nationals covered by section 4B it will remain as 4 July 2002. These dates correspond with the dates the relevant changes were announced.
Section 45: Descent through the female line
171.Section 45 amends section 4C of the BNA 1981 to allow applicants born before 7 February 1961 to be able to register as British citizens, provided they meet the other requirements in section 4C. The amendments made by the section also widen the scope of section 4C so that it is no longer restricted to the case where the applicant would otherwise have become a CUKC under section 5 of the BNA 1948.
172.Section 4C, as inserted by section 13 of the NIAA 2002, conferred an entitlement to registration as a British citizen on persons born between 7 February 1961 and 1 January 1983 who, but for the inability (at that time) of women to pass on their citizenship, would have acquired British citizenship automatically when the BNA 1981 came into force.
173.Section 45(2) removes the 7 February 1961 cut-off point from section 4C, so that persons born before that date can apply for registration as British citizens. The requirement that the applicant must have been born before 1 January 1983 is, however, retained since sections 1(1) and 2(1) of the BNA 1981 already provide for persons born after this date to acquire citizenship by descent from their mother or father.
174.Section 45(3) inserts into section 4C of the BNA 1981 new subsections (3) to (3D). Those subsections examine whether the applicant would have become a CUKC under various provisions of the BNA 1948 if certain assumptions had been applied. Under those assumptions certain provisions are read as if they provided for citizenship to pass by descent from the applicant’s mother in the same terms as they provided for descent from the applicant’s father. The references to the applicant’s mother limit the extent of the section; an applicant must show that his or her mother had the relevant type of status (which she would have been able to transmit had the law permitted descent from mothers in the same way as fathers).
175.Subsections (3) to (3C) cover both cases where certain provisions of the BNA 1948 provided expressly for descent from a father only (see assumption A in subsection (3A)) and those cases where certain provisions of the BNA 1948 enabled an applicant to become a CUKC if the applicant had a particular nationality status immediately before commencement of the BNA 1948 and a provision of legislation prior to the BNA 1948 prevented the applicant from acquiring that status by descent from his or her mother in the same terms as it provided for descent from the applicant’s father (see assumption B in subsection (3B)).
176.Subsection (3C) clarifies that assumption B only applies to cases of automatic acquisition of citizenship, and not to provisions where the applicant’s acquisition of the nationality status depended upon an application for registration as such.
177.Subsection (3D) provides that, for the purposes of determining whether the applicant would have become a CUKC, it should not be assumed that any registration or other requirements were met, if in fact they were not. For example if, applying the assumptions, the applicant would have become a CUKC had the applicant’s birth been registered at a particular time - and it was not in fact so registered - it should not be assumed that the birth would have been registered had the assumptions applied at the relevant time.
178.Subsection (4) inserts a new subsection (5) into section 4C. For the purposes of interpreting section 5 of the BNA 1948 when applying section 4C of the BNA 1981, where a female person (that is, the applicant’s mother) became a CUKC under the provisions listed in subsection (5)(a) to (d), she should be deemed to be a CUKC by descent only (and not a CUKC otherwise than by descent). This replicates the existing position for a male person (that is, the applicant’s father) who becomes a CUKC under those same provisions.
Section 46: Children born outside UK etc. to members of the armed forces
179.Section 46 inserts new section 4D into the BNA 1981, which provides an entitlement to registration as a British citizen for children born outside the UK and qualifying territories on or after the commencement of the section to a father or mother who is a member of the armed forces who is serving outside the UK and the qualifying territories.
180.According to section 4D(3), if the applicant (“P”) is a minor on the date of application, P’s father and mother must both consent to P’s registration as a British citizen. Subsection (4) provides that, where one of P’s parents dies on or before the date of application, either parent can consent to P’s registration. Subsection (5) gives the Secretary of State discretion to waive the requirement for consent.
181.There is also a requirement that the Secretary of State must be satisfied that the applicant is of good character – see section 41A(1) of the BNA 1981 (which is inserted by section 47).
182.An applicant is not expressly excluded from the entitlement to register if, at the time of P’s birth, P’s father or mother is a British citizen serving in the armed forces outside the UK and qualifying territories, who was recruited in the UK or a qualifying territory. But, in that case, P will automatically become a British citizen by virtue of section 2(1)(b) of the BNA 1981, and will not need to apply for registration under section 4D.
Section 47: Good character requirement
183.Section 47 moves the existing requirement in section 58 of the IANA 2006 for adults or young persons applying for registration as a British citizen, a British overseas territories citizen, a British Overseas citizen or as a British subject to be of “good character” into the various different Acts which contain the relevant registration routes. The underlying requirement to be “of good character” remains unchanged.
184.Thus, subsection (1) creates a new section 41A in the BNA 1981, for registration routes contained in that Act. Subsection (2) inserts the requirement into section 1 of the Hong Kong (War Wives and Widows) Act 1996, and subsection (3) inserts the requirement into section 1 of the British Nationality (Hong Kong) Act 1997.
185.Subsections (4) and (5) make consequential changes to the existing powers to supply the Secretary of State with information relevant to the good character requirement in section 131 of the NIAA 2002 and section 40 of the UKBA 2007.