Citizenship Issues : Australian Expatriates
A multitude of immigration and citizenship issues can arise for an expatriate – particularly if their spouse is not Australian – but two recurring issues are;
- the citizenship of children born to Australian overseas, and
- the impact of dual nationality upon citizenship.
We briefly address both those issues below, and suggest that complicated matters are referred to specialist migration lawyers via the Inquiry form at the bottom of this page.
Children Born to Australians Overseas: Citizenship by Descent
A child born outside Australia may be registered as an Australian Citizen by descent up until their 25th birthday if one or both of the natural parents was an Australian Citizen at the time of the child's birth. This does not happen automatically and the parent(s) need to make an application through one of the various Australian missions, Embassies, High Commissions, Consulates or representative offices. A copy of the application form that needs to be submitted (Form 118) is available online.
A parent may apply for registration of Australian Citizenship by descent on behalf of the child before the child reaches 18 years of age. Applicants over 18 and under 25 years of age may apply in their own right and must also meet good character requirements. Under certain circumstances a person may also apply for registration by descent in their own right if they were born outside Australia between 26 January 1949 and 15 January 1974 and their parent was an Australian Citizen at the time of the person's birth and at the time of application. Applicants must also meet good character requirements. People born outside of Australia between 26th January 1949 and 15 January 1974 may be registered if at least one natural parent was Australian at time of birth and is still an Australian Citizen.
Note that children born overseas will often acquire, automatically and by right, the citizenship of the country in which they were born – and that of the other parent, if they were not Australian citizens. Dual citizenship can be very advantageous – providing access to employment and educational opportunities in other countries – but can sometimes have unintended consequences. As an example, probably less common these days, a child born in some countries may still be required to do National Service if he or she returns to that country when over a certain age and dual citizens cannot be elected to Federal Parliament in Australia.
The exact situation applying to the child will depend upon the laws applying in the country in which the expatriate is resident and the citizenship laws applying to the child’s non-Australian parent, if applicable. These should be researched since the implications can be far reaching for both children and parents many years into the future.
Dual Nationality – Australians Acquiring another Nationality - Losing Citizenship
Before 4 April 2002, Australians over 18 who applied for and were granted the citizenship of another country generally lost their Australian citizenship, as did their children under 18, unless their other parent was an Australian citizen. This was a consequence of Section 17 of the Australian Citizenship Act (1948) which provided that, except in relation to 'an act of marriage':
A person, being an Australian citizens who has attained the age of 18 years, who does any act or thing: (a) the sole or dominant purpose of which; and (b) the effect of which; is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.
On the 4 April, 2002 this provision of the Act was repealed, meaning that Australians could now retain their citizenship if they acquire the citizenship of another country after that date. The repeal did not apply retrospectively, meaning that Australian who had applied for foreign citizenship prior to that date lost their citizenship.
Those who lost their citizenship under Section 17 may apply for citizenship under what are called "resumptive provisions", the main requirements of which are:
That the person:
In addition, with effect from 1 July 2002, there has been a requirement that the applicant be of “good character”.
Due to the automatic effect of section 17, the Department of Home Affairs (DHA) does not have complete record of those who lost their Australian citizenship under this provision. As a result, errors may have been made when issuing evidence of Australian citizenship, Australian passports or in citizenship applications. This means that some individuals may currently hold an Australian passport without actually being an Australian citizen.
Every year, many individuals who apply to renew their Australian passport or apply for citizenship by descent for their children born overseas are notified by the DHA that they ceased to be an Australian citizen some years ago.
This issue has obviously existed for a number of years but has only recently achieved a high profile because of media reports in early 2023. If you believe you may have lost citizenship for the reasons described above then legal advice regarding an application to resume your Australian citizenship is strongly recommended.
If you would like to arrange professional advice please complete the Inquiry form below providing details and you will be contacted promptly. You will receive a fee quotation in advance of any advice or services being provided.