Do you qualify for a British Passport as a South African?

Below is a letter written by one of our UK Nationality partners on behalf of a client who qualified for one of the five forms of British Nationality. To protect the identity of the client, their name has been redacted but all other information is unchanged.

Summary

This client had a UK-born parent, and his son (i.e the grandchild of the UK-born grandparent) could claim British Nationality because of the parent’s residency in the UK. Click here for more information on British Nationality by Descent and British Mothers as supplied by Whatpassport.com.

The Letter to the UK Home Office

Dear Sir/Madam,

The parents of the above-named child wish to register their son as a British Citizen pursuant to Section 3(2) of the British Nationality Act 1981, as amended by sections 43 & 47 of the Borders, Citizenship and Immigration Act 2009. The purpose of this letter is to explain how our client qualifies for Registration to aid your consideration of the matter.

Section 3(2) of the British Nationality Act 1981 reads as follows;

(2) A person born outside the United Kingdom and the qualifying territories shall be entitled, on an application for his registration as a British citizen made within the period of twelve months (amended to ‘made before the child’s 18th birthday’ rather than within 12 months of the birth with section 43 of the BCI Act 2009) from the date of birth, to be registered as such a citizen if the requirements specified in subsection (3) or, in the case of a person born stateless, the requirements specified in paragraphs (a) and (b) of that subsection, are fulfilled in the case of either that person’s father or his mother (“the parent in question”).

(3) The requirements referred to in subsection (2) are–
(a) that the parent in question was a British citizen by descent at the time of the birth; AND
(b) that the father or mother of the parent in question;
(i) was a British citizen otherwise than by descent at the time of the birth of the parent in question; OR
(ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death; AND
(c) that, as regards some period of three years ending with a date not later than the date of the birth;
(i) the parent in question was in the United Kingdom or a qualifying territory at the beginning of that period; AND
(ii) the number of days on which the parent in question was absent from the United Kingdom and the qualifying territories in that period does not exceed 270.

In regard to the first section, our client’s son was born outside of the UK. He is under the age of 18 at the date of this application. Our client is not stateless and therefore the further qualifying criteria of subsection (3) applies as follows;

(a) That the parent was a British Citizen by descent at the time of his birth. Our client was born in South Africa in 1968. At the time of his birth, his father was a Citizen of the UK & Colonies and therefore he acquired the same status by section 5 of the British Nationality Act 1948. Our client later became a British Citizen in accordance with Section 11 of the British Nationality Act 1981, as he acquired the Right of Abode through his own father’s birth in the UK in 1926. Such persons are classified as British Citizens by Descent; it therefore follows that the child’s father was indeed a British Citizen by descent on the day that our client’s son was born.
(b) That the parent of our client (i.e. grandparent to the applicant) was a British Citizen otherwise than by descent at the time of his birth or would have become so on 01/01/83. He was a Citizen of the UK and Colonies by virtue of section 4 of the British Nationality Act 1948. Section 14(1) of the 1981 Nationality Act governs who became a British Citizen by descent or not. This section makes it clear that those born in the UK would not become such citizens. Our client’s father therefore became a British Citizen otherwise than by decent on 01/01/83.
(c) That the parent in question has resided in the UK for a three year period without long absences (270 days away from the UK constitutes a long absence in terms of the law in this case) from the UK.

The precise wording of the law in relation to (c) above states that the parent must be in the UK at the beginning of the three year period and not at the end of this period. We would therefore respectfully submit that even though our client left the UK before the end of the three year period, as he was only absent from the UK for an estimated 46 days up until the point he left, and he can use his remaining allowance of absent days, to take him to the end of the relevant three year period and meet the criteria in question.

Kind regards,

How do you find out if YOU qualify?

Whatpassport.com is an online UK Immigration and Nationality search. Go to the search feature on the site, complete the search and find it if you or any of your family could qualify automatically for a British Passport. The UK Nationality rules have been supplied by Philip Gamble & Partners.

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