California, US
Earlier this year, the UK Supreme Court announced a very significant judgment in the case of Romein.
British nationality cannot normally be transmitted to the second generation born outside of British territory, absent special circumstances. However the Romein judgment means that anyone born between 1949 and 1983, in a country that was not at the time in the British Commonwealth, and who has a maternal grandfather who was born in the UK, should now be able to register as a British citizen and obtain a British passport, even if they do not come to live in the UK.
Who can qualify?
The judgment now creates a route for any applicant to apply for British citizenship if they satisfy the following conditions, among other things.
- They were born outside the UK between 1 January 1949 and 31 December 1982, in a non-Commonwealth country.*
- Their maternal grandfather was born in the UK.
- Their mother was born within wedlock.
(* It is the status of the country at the time of the birth that is important. For example South Africa was outside of the Commonwealth from 31 May 1962 to 25 July 1994 inclusive so births in this period would be qualifying.)
It would additionally be a requirement that the maternal grandfather had not lost British nationality before the birth of the mother, and the mother had not lost British nationality before the birth of the applicant. In practice, however, loss of British nationality is extremely rare and only occurs if the holder has made a successful renunciation application to the UK Home Office, or has been the subject to deprivation proceedings, which historically would only occur in extraordinary cases, e.g. in cases involving national security.
Considerations
Many of those who can benefit from the Romein decision will already have the option of moving to the UK if they are coming to work. For example a qualifying applicant born in South Africa would already have the option of coming to the UK on an ancestary visa (as they would have a grandparent born in the UK), which leads to permanent residence after 5 years living and working in the UK, and British citizenship 12 months after that.
However this decision would now allow an applicant to acquire a British passport even without relocating to the UK. This could be a significant attraction, for example to a South African passport holder, as it would then be significantly easier for them to travel internationally.
Additionally, many of those who now qualify will not be Commonwealth citizens, and therefore have no ancestry visa option. For example a US national (as in Ms Romein’s case) would not qualify for an ancestry visa, but could qualify to obtain British citizenship directly, under the new judgment.
Once evidenced in a passport, British citizenship allows the holder to come and live in the UK without restriction. They can also potentially sponsor family members (spouse and children under 18) to relocate with them.
Additionally, the European Union withdrawal process looks set to result in a ‘transitional period’ under which British citizens will continue to have the option of establishing residence, along with their third-country national family members, in other European member states, up to and including 31 December 2020, and thereafter to continue residing in that member state until they have completed a qualifying five year period, at which point they can acquire permanent residence status. This effectively means that free movement rights for British citizens will continue to exist until 2021.
A key consideration for those applying is the issue of multiple nationalities; care must be taken that the applicant will not lose their existing nationality in the process. The US for example permits multiple nationalities in practice. South Africa permits multiple nationalities but an applicant over the age of 18 must first apply for permission from the Department of Home Affairs. Some other countries do not permit multiple nationality, and acquisition of British citizenship would result in loss of their other nationality.
It is also worth remembering that the ancestral connection back to the maternal grandfather in question must be fully documented, in order for the claim to be established.
Finally, the successful applicant will need to attend a local British consulate, High Commission or local authority, and give an oath or affirmation of allegiance to the Queen, which is a legal requirement. (Under British law an applicant for citizenship can be an atheist but not a republican.)
Conclusion
This judgment significantly widens the numbers of people that can now claim British citizenship. However, when compared to people moving to the UK under the immigration rules or European free movement rights, the numbers involved are likely to be relatively small.
Currently the Home Office do not appear to have updated their guidance to reflect the Supreme Court judgment and traditionally it can take a significant length of time to do this. However the judgment of the court is final and the route it creates is not discretionary; unless and until the UK government introduces a new primary legislation to reverse the effect of the judgment, any qualifying applicant who submits a valid application has an entitlement to be granted British citizenship.
For more information, please contact Alexander Finch via alexander.finch@fragomen.com or 0207 090 9282.