British citizens, British overseas territories citizens (BOTCs), British Overseas citizens (BOCs), British Subjects, British Nationals (Overseas), and British Protected Persons (BPPs) are all British nationals. Many people born in the UK, the British overseas territories, and foreign are automatically British nationals, see my Blog Post Am I Already British? But how do they prove it?
Anyone who considers that they are a British national may ask the UK Home Office if it agrees. In order to do so they must apply for a Certificate of British Nationality Status (Form NS). A person who applies to the Home Office may be asked to provide such evidence as is considered as being material to their case.
The view that the Home Office gives in reply is just that: a view. If the Home Office agrees with a person that that are already a British national, then it will issue a certificate to that effect. In so doing it is notconferring nationality, it is recognising that the person is already a British national. If it disagrees that the person is a British national, it will say so by letter, providing reasons for its view. That view may be challenged in the Courts. The question of whether a person is already a British national is question of fact and law that the Court can decide for itself at trial rather than merely conducting a judicial review as to whether the decision was irrational, unfair, or illegal.
A British national who seeks a UK passport, as well as confirmation of British nationality, must apply for British passport rather than completing Form NS.
What forms of evidence will suffice? There are no prescribed forms of evidence, despite occasional Home Office letters, guidance, and protestations to the contrary. However, the burden of proving British nationality rests on the person asserting that they are a British national. Accordingly, it is important to obtain the best evidence possible. Certified translations into English of foreign language documents will be required.
Other than personal testimony or statements, forms of evidence may include original birth certificates and marriage certificates, residence permits, travel warrants, parish records and other documents that prove (where material), date of birth, place of birth, parentage, legitimacy, identity, and so on. It may not always be possible to provide direct evidence of one or more of these matters, and it may be necessary to draw inferences from such material as is available. Copies of relevant foreign laws, with translations into English where necessary, may also be required.
Evidence from the Colonial Era
In cases where a person or one or more of their ancestors was born in a British possession in the colonial era, colonial birth certificates issued in former British possessions are very helpful, even if in poor condition.
In addition, birth certificates issued by birth registries in independent countries that were formerly British possession will add weight. For example, if a person has a colonial era birth certificate issued in the Colony of Aden, then that person may also wish to obtain a copy of a birth registry entry/birth certificate from the Republic of Yemen (where Aden is situated). Such a birth certificate should include the same reference number as appears on the colonial era birth certificate (if the original colonial birth certificate is true). A person in possession of a birth certificate from the colonial era and a birth certificate issued from the independent country is in a good position to vindicate their case.
From the colonial era, there may also be other documents such as old passports, residence permits, work-books, log books, travel permits, and so on that record details of an individual and their family members, including names, dates of birth, place of birth and so on. These are all valuable forms of evidence.
Expert Evidence of Foreign Nationality and Copies of Foreign Laws
In addition, an expert opinion on the nationality laws of a foreign country is also a good where a person asserts that they are, or more commonly are not, a national of that country. A person may wish to show that they are stateless in order to secure British nationality (see below). Foreign law is a question of a fact to be proved by skilled witnesses in UK courts. A skilled witness in foreign law can be a legal practitioner, a legal academic, or someone else with suitable expertise. The real question is are they competent to give the opinion in question.
Any expert opinion on foreign laws and administrative practices should be very careful to set out clearly the sorts of official forms which are used to obtain documents, whether they are birth certificates, certificates of nationality or passports (as the case may be), and also to state the forms of information and evidence that public authorities in foreign countries or the consular authorities of foreign countries wish to see in order to issue such documents.
The expert should annex copies of the foreign laws relied upon in their opinion. Where those laws are in a foreign language, certified English language translations should be provided.
Wherever possible, an expert should also cite by way of footnotes and references the sources of information relied upon. Anybody engaging in working with an expert on a foreign nationality law code will need to work very carefully with them in order to hone down the right questions that need to be asked to prove that a person does or does not (as the case may be) hold the nationality of that country, and to ensure that the provenance of the evidence relied upon in the opinion is identified.
If is it not possible to instruct an expert to give an opinion, it will still be necessary to get copies of any foreign laws and to provide certified English translations if they are in another language.
Proving the Provenance of a Document
It is also a good idea to obtain statements from the people who have obtained the foreign documents (birth certificates, passports, etc.) from the relevant foreign public authorities, explaining how such documents were obtained and what information and evidence was provided by them in order to obtain such documents. Often such a statement will be by the applicant themselves but sometimes it may be by the person who has acted on behalf of an applicant to obtain a document in a foreign country. For example, an Aden-born Somali based in Abu Dhabi may use a resident Yemeni national in Yemen to secure a birth certificate from the birth registry in Aden.
Proving a Person is Nota National of a Foreign Country
In addition, many people who assert that they hold a form of British nationality, or who wish to apply for a form of British nationality, may also wish to show that they are not a national of another country. This is so where a person wishes to show they have been born and/or remain Stateless and wishes to take advantage of the provisions in the British Nationality Act 1981 that reduce Statelessness through conferral of a form of British nationality.
In order to prove statelessness, they would do well to obtain a letter from the relevant public authorities of the foreign country in question to show that they do not hold the nationality of that country. Such a letter will need to be quite sophisticated if a person has travelled already on a passport of that foreign country. A passport is prime facie evidence that the holder has the nationality of the country that issued it, though like all such presumptions it may be rebutted.
If a person has been issued with a passport by a foreign country and now wishes to say they are nota national of that country under its law, they will need to obtain a letter from the public authorities of that foreign country in order to show that the authority now agrees that they are not properly a national of that country when their position is considered under its law.
Additionally, that letter will need to explain how it came to be that a passport was issued in the first place and what information and evidence was provided when the passport was first issued and/or when passports were issued subsequently.
Finally, the letter will need to state whether or not the passport, which has been issued to the person whom it is now accepted is not a national of that country, has been cancelled or voided as a result of the holder seeking confirmation they are not in fact a national of that country after all. Only the letter that contains most or all of these features will be satisfactory for the purposes of the Home Office.
Statements and Written Submissions
A person asserting that they are a British national will also need to prepare a statement setting out why they believe they are a British national, on what basis, and setting out the information and evidence upon which they propose to rely, exhibiting such evidence as they possess to the statement. The statement should deal with matters in chronological order.
It is also a good idea to include written submissions from legal advisors setting out the full case, where such submissions are cross reference to the evidence provided by way of statements, the documentary evidence exhibited to those statements, and any expert evidence.
A Decision is Made
Where the Home Office or Passport Office decline to accept a person as a British national, that is not the end of the matter. The view of the Home Office or the Passport Office about whether or not a person is automatically a British national, is only that, a view. It is not conclusive. An application for confirmation of British nationality or for a UK passport, is not analogous to situations where a form of British nationality is granted by way of naturalisation or registration. The question of whether a person is automatically already a British national is a question of what the law says not what the UK Home Office or Passport Office decides. The question of whether a person is already a British national is question of fact and law that the Court can decide for itself at trial rather than merely conducting a judicial review as to whether the decision was irrational, unfair, or illegal.