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“Double descent” and British citizenship – for those born abroad with UK ancestry

Date posted: 25 July 2019

Ana Gonzalez, a partner in our immigration department, explains how those with UK ancestry may be entitled to apply for British citizenship when born abroad through “double descent”.

 

During my recent trip to South Africa – to run my second Comrades Marathon and meet with my South African client base – I received many enquiries about British citizenship via double descent. This is a fairly obscure area of British nationality law with the potential of facilitating citizenship to descendants of British mothers. This will be the case particularly in Commonwealth countries with close links with the UK.

 

In the 2018 case of Advocate General for Scotland v Romein  the UK Supreme Court examined historical gender discrimination issues derived from former British nationality legislation.  Before the enactment of the current British Nationality Act 1981, British women were prevented from transmitting British citizenship to children born outside the UK.  Prior to the current Act coming into force in 1983, only British fathers were able to pass on citizenship as long as the birth was registered at a British consulate within a year. These individuals became British citizens by descent.

 

The Appellant in this case, Ms Romein, was born in the US in 1978. Her father was a US citizen and her mother was a South-African born British citizen by descent. Ms Romein’s maternal grandfather had been born in the UK and was able to pass on his citizenship to Ms Romein’smother. Whilst pregnant with Ms Romein, her mother made enquiries with the British High Commission in Johannesburg to be told that she would not be able to register her child as a British citizen. For this reason, Ms Romein’s birth was not registered.

 

Changes to the nationality rules were introduced in 2003 whereby individuals born abroad to British mothers prior to 1983 could potentially be registered as British citizens. Ms Romein sought to take advantage of this change to claim British citizenship. The UKVI rejected her application on the basis that her birth had not been registered at a British consular office within a year of her birth. Ms Romein challenged this decision in the UK courts. The case went all the way to the Supreme Court who ruled in favour of Ms Romein. Following this judgement, those born outside the UK between 1949 and 1983 to a British mother can now apply to be registered as British citizens, irrespective of whether their birth was registered as a British consulate.

 

Although this was a legally complex judgement, broadly speaking the requirements to be met in these cases are as follows:

 

  1. Applicants must have been born in a foreign country. This will vary from country to country. In the South African context this means that applicants must have been born between 31 May 1962 (when South Africa left the Commonwealth and was therefore considered a foreign country) and 31 December 1982 (the day before the current nationality law came into force).
  2. The Applicant’s maternal grandfather was born in the UK;
  3. The Applicant’s father was not a British citizen;
  4. The Applicant’s mother was a British citizen at the time (either by birth or by descent)

 

Although this judgement has opened up a new avenue into British citizenship, British nationality law is complex in nature, mainly due to the fact that many applications are considered primarily on a discretionary basis.  Every case has to be argued individually on its own specific facts and merit. Nevertheless, this is a very welcome development seeking to right the wrongs caused by previously discriminatory legislation.

 

If you need advice or assistance in making a double descent application please contact our Ana Gonzalez by email at a.gonzalez@wilsonllp.co.uk or by phone on 0208 8857901.