ARCHIVED: KnowYourRightsThursday: I was born in the UK, lived in the UK all my life and I have never left… Am I British, right ?-British Citizenship for Children Part 4

Thank you for joining us again with the British Citizenship for Children series.

This series and post is fiction and is for illustrative and educational purposes only to discuss British nationality laws. Names, characters, storyline, businesses, places, events, locales, and incidents is the products of the editor’s imagination . Any resemblance to actual persons, living or dead, or actual events is purely coincidental.

We ended last week’s post meeting Kofi, Giovanni’s manager. Kofi was reminded about his immigration matter when Giovanni was explaining to him that he needs overtime to pay for his daughter’s British citizenship application. Instead of going to his house, Kofi goes to his older brother’s house, Kojo to talk about his immigration matter. Although this series is about British citizenship for Children, this post and the next two posts highlights the effects of parents not knowing the immigration status of their UK born children and the consequences. Please note, assuming a UK child born is British a common assumption and this post does not bash parents.

Kofi was born in the UK on 10 June 1983 to Ghanaian parents. He has three other siblings.

Kojo, Kofi’s older brother was born in the UK on 27 September 1982. Afia, Kofi’s older sister was born in the UK on 06 April 1979. Abena was born in the UK on 11 February 1986.

Kofi’s parents arrived in the UK on 17 March 1979 for a short visit as Kofi’s father wanted to study in the UK within the next two years. Kofi’s parents intended to stay no longer than three weeks as Kofi’s mother was pregnant with Afia at the time. Afia was due to arrive in June 1979 however Afia was born premature and was born three months earlier than her due date. Only God and a miracle allowed Afia to survive as she stayed in the hospital for 6 months while the doctors monitored her development. When the doctors discharged Afia, Kofi’s parent decided to stay in the UK despite wanting to return to Ghana but decided to prioritise Afia’s health as the local doctors knew of Afia’s difficult birth and wanted to continue to monitor Afia.

By this time, Kofi’s parents were overstayers in the UK as their visit visas had expired and Kofi’s parents and Afia were living with a church friend. A year after, their arrival, Kofi’s father visited an immigration law firm on a church friend’s recommendation to discuss their options of living in the UK lawfully. The solicitor explained that due to recent immigration changes to control immigration in the UK, it was hard to advise options. Needing to support his family, Kofi’s father managed to get a job working at the local market (although he did not have permission to work in the UK) while attending free evening French classes. Kofi’s father loved education and graduated from a top institute in Kumasi, Ghana studying business and finance and ideally wanted a different job.

Along comes Kojo, Kofi’s older brother born in 1982…

As the immigration solicitor told Kofi’s father- immigration law was changing. For the last three weeks, we have been looking at the British Nationality Act (BNA) 1981 and its application for children born in the UK after 01 January 1983 (after its commencement). But what was the law before?

Did you know that ‘British citizen’ is a new term? Well about nearly 40 years old- so kinda new. It was first mentioned in the BNA 1981. Prior 01 January 1983 (before BNA 1981 came into force-yes it took nearly two years), the BNA 1948, referred British citizens as Citizens of the United Kingdom and Colonies (CUKC) who were British subjects who were born/naturalised/registered/adopted in the UK or one of the UK colonies of the British Empire. The further reading from Part 1 details about BNA 1948 (coming into force on 01 January 1949) and CUKCs.

Many former UK colonies are part of the Commonwealth [of Nations] today. This post will not go into depth about BNA 1948 however Ghana (previously known as Ashanti) is former UK colony. Kofi’s parents were born in 1949, meaning they were born as CUKCs but as Ghana became independent on 6 March 1957, Kofi’s parent were no longer CUKCs but acquired Ghanaian citizenship as Ghana became an independent country. Ghana (and other former colonies) enacted their own citizenship laws. Only certain people were ‘excepted from loss [of CUKC status], please read the further reading from Part 1 to find out.

The key factor of being a British citizen or CUKC (prior 01 July 1962) is the right of abode- meaning you could live and work in the UK with no restrictions.

Further the commencement of Commonwealth Immigrations Act 1962, from 01 July 1962, ‘except for ‘Commonwealth citizens’ (a term which included CUKCs) who were born in the UK or who were the holders of UK passports (as opposed to British passports issued by a colonial authority), the right of entry to the UK was restricted by the provisions of the Commonwealth Immigrations Act 1962 Act’.[1] ‘Following Commonwealth Immigrations Act 1962, citizens of Commonwealth countries and certain CUKCs were subject to immigration control.[2]

Assessing whether a CUKC or Commonwealth citizen had the right of abode before 01 January 1983 (commencement of BNA 1981) can be complex, if applies this to you or a family member, I advised you seek professional, reputable immigration advice.

So guess what? Afia and Kojo were CUKCs and had the right of abode as they were born in the UK before 01 January 1983 (and after 01 January 1948), irrespective of their parents’ status at the time of their birth. On 01 January 1983, Afia and Kojo automatically became British citizen as supported by BNA 1981, s11

BNA 1981, s11(1)

(1)Subject to subsection (2), a person who immediately before commencement (01 January 1981)—

(a)was a citizen of the United Kingdom and Colonies (CUKC); and

(b)had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force,

shall at commencement (01 January 1981) become a British citizen.

As for Kofi, he missed out on being automatically British citizen under BNA 1981, s11(1) by six months! Therefore, we need to find out if Kofi was British by birth under BNA 1981, s1(1) and focus on the immigration status of his parents at the time of his birth. Having lived in the UK for over four years, Kofi’s parents were not settled in the UK and where still seeking advice regarding their immigration matter. Therefore Kofi is not British by birth under BNA 1981, s1(1).

Nevertheless, Kofi, alongside Kojo and Afia completed all their education in the UK until they were 19 years old. Kofi’s mother longed to return to Ghana, so in 1988, she returned to Ghana with Kofi’s younger sister, Abena while Kofi, his father and his older siblings stayed in the UK. The separation was extremely hard on the family and due to the sacrifices made, Kofi’s father instilled the importance of education and utilising every opportunity given.

Eventually, Kofi’s father got his immigration matter sorted and became settled in the UK as he was granted Indefinite Leave to remain (ILR) in 1994 and naturalised as a British citizen in 2000. The purpose of this posts on what basis Kofi’s father was granted ILR is not relevant. Kofi’s father started an international financial advisory business, where many of his clients were French speakers. After 1994, his mother and sister, Afia would visit the UK for short trips and Kofi’s father eventually returned to Ghana for good in 2008. Kofi’s father left the business with Kojo to run. Kofi’s father was very proud of his children and knew they would support each in the UK while he was in Ghana.

Kofi decided not to attend to university, but he got a job as a trainee mechanic. Kofi loved cars since he was a child as his father would bring home toy cars from working at the market when they were not selling.

Kofi and his family grew up thinking Kofi was British because he was born in the UK. Although, he embraced his Ghanaian roots, all he knew was life in the UK as he was born in the UK and had never left. Kofi never had a problem showing he had the right to work in the UK as he provided his full UK birth certificate and his national insurance (NI) card. Now, he is working as a manger at one of the top garages in the city. Kofi has two children, age 8 and 11. His children are British and have British passports as their mother is British citizen of Kittian descent (British by birth under BNA 1981, s1(1)). Kofi co-parents with his children’s mother and they are still friends despite their break-up five years ago.

In February 2017, Kofi’s youngest sister announced she was getting married in Ghana in June 2017. As you can imagine the whole family was excited and Kofi wanted to take his kids to Ghana with him. Kofi and Abena decided to apply for their first British passport as they had never left the UK. Kojo just renewed his passport and received his new passport within 3 weeks. Afia received her first passport within 6 weeks. In the beginning of May 2017, Kojo received a letter from the Passport Office asking for evidence of his parent’s immigration status at his birth. Confused as to why they needed this after sending his full UK birth certificate like Afia, he called his parents via WhatsApp and explained the situation. Kofi’s father explained his immigration history and unknown to Kofi he did not realise the things his parents went through. Kofi’s father advised Kofi to see an immigration solicitor quick as Abena’s wedding was in June.

Kofi had a consultation at a reputable law firm and the solicitor explained that Kofi was not British by birth under BNA 1981, s1(1). If Kofi’s father knew that Kofi was not British when he was a child, he would have been able to register Kofi as a British citizen under BNA 1981, s1(3) because Kofi’s dad was granted ILR and became settled in the UK in 1994 when Kofi was 11 years old (Read Part 3 to learn more about BNA 1981, s1(3)).

However, the solicitor explained Kofi was eligible to register as a British citizen even though he is an adult because he was born in the UK and he had spent the first ten years of his life in the UK.

BNA 1981, s1(4)

A person born in the United Kingdom after commencement (01 January 1983) who is not a British citizen by virtue of subsection [BNA s1](1), 1A or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.

Kofi must also fulfil the good requirement as he is over 10 years old. According the Home Office guidance-Guide T published March 2019, a person fulfils the good character providing ‘they have shown respect for the rights and freedoms of the UK, observe its laws and fulfilled their duties and obligations as a resident of the UK’.[3] Kofi fulfils the good requirement however we will revisit the good character in depth within the next few weeks.

You will note, Abena is not eligible to register as British citizen under BNA 1981, s1(4) because she did not spend the first ten years of her life in the UK as she went to Ghana with her mom at age 2 in 1988. In each year of the first ten years of Abena’s life, she was present in the UK for the first two years but she was absent for more than 90 days in each year in her following 8 years up to age 10.

Due to the work required to prove that Kofi was in the UK for the first ten years of his life, he knew he would not be able to go to Abena’s wedding in Ghana or take his children with him to Ghana. Also, the Home Office fees for an adult to register as British citizen was expensive and he needed time to save up due to other financial commitments.

In January 2020, he finally arranged all the documents needed and the fees and his solicitor assisted Kofi with his application which was submitted the same month. Due to the current pandemic, there has been some delays in processing immigrations applications, so Kofi has been waiting over six months on the outcome.

He arrives at his brother’s house and he talks to Kojo about how stressful the last three years have been to get the documents and money ready.

“Only if I had been born 6 months earlier” sighs Kofi. Kojo tries to help Kofi but Kojo does not understand how hard it was for Kofi not to be able to go to Ghana for Abena’s wedding or to tell his children he could not take them to Ghana or wondering if he will be fired from his job if they find out he is not British. It was a lot for Kofi.

The next afternoon, Kofi gets an email from his immigration solicitor saying his British citizenship application was successful but due to lockdown and social distancing, he will have to wait a bit longer to attend his British ceremony where he will be officially British. As Kofi is over 18 years old, he must attend a British ceremony. After his ceremony, Kofi can apply for a British passport-which will not be rejected this time.

Just thankful this ordeal is over, he wants to message his friend, Tim but he is going through some issues with his own immigration matter…

Joins us, next week Thursday where we learn more about Kofi’s friend, Tim and his immigration issues.

If you are concern about your immigration matter or your child’s immigration matter, please contact a reputable solicitors’ law firm that specialises in immigration law to find out your options.