History of British nationality law

This article concerns the history of British nationality law.

Early English and British nationality law

British nationality law has its origins in medieval England. There has always been a distinction in English law between the subjects of the monarch and aliens: the monarch's subjects owed him allegiance, and included those born in his dominions (natural-born subjects) and those who later gave him their allegiance (naturalised subjects or denizens).

A summary of early English common law is provided by Sir William Blackstone, who wrote about the law in 1765-69.[1] Natural-born subjects were originally those born within the dominion of the crown. Blackstone describes how various statutes extended the rights of the children of subjects born abroad, until 'all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.'

In 1603 the crowns of England and Scotland were united in the individual of James VI and I, in what is known as the Union of the Crowns. In 1701, following some disagreement about the rules of succession to the crown, the English parliament passed the Alien Act 1705, providing that Scottish nationals would have alien status in the realm of England. However, this was superseded by the Act of Union 1707, which united the realms of England and Scotland.

When the British Empire came into existence, the dominion of the crown expanded. British subjects included not only persons within the United Kingdom but also those throughout the British Empire (the British Dominion). This included both the colonies and the self-governing Dominions, including Australia, New Zealand, South Africa, Canada and Newfoundland. Note that the "dominions" of the Crown include not only Dominions but also colonies.

Individuals born in the dominion were citizens regardless of the status of their parents: children born to visitors or foreigners acquired citizenship (see Jus soli). This reflects the rationale of natural-born citizenship: that citizenship was acquired because British-born subjects would have a ‘natural allegiance’ to the crown as a ‘debt of gratitude’ to the crown for protecting them through infancy. Therefore, citizenship by birth was perpetual and could not be, at common law, removed or revoked regardless of residency.

By the same reasoning, an ‘alien’, or foreign born resident, was seen as unable to revoke their relationship with their place of birth. Therefore, at English common law foreign-born individuals could not become citizens through any procedure or ceremony. Some exceptions to this general principle existed in the common law, to recognise the situation of children born on foreign soil to English (or British after the Act of Union 1707) subjects. The earliest exception was the children of the King's ambassadors, who acquired English citizenship even if not born in England. A later, broader, exception was enacted by the Status of Children Born Abroad Act 1350 (25 Edw. 3 Stat. 1) to allow children born abroad to two English parents to be English. Later, the British Nationality Act 1772 (13 Geo. 3 c. 21), made general provision allowing natural-born allegiance (citizenship) to be assumed if the father alone were British.

Generally then, there was no process by which a ‘foreigner’ not of British parents could become a British citizen. However, two procedures existed by which the individual could become a British subject with some of the rights of citizenship. Firstly, ‘naturalisation’ granted all the legal rights of citizenship except political rights (e.g. holding office). Naturalisation required an act of parliament be passed. Alternatively, denization allowed a person to gain the rights of citizenship other than political rights. Denization was granted by letters patent, and was granted by the monarch as an exercise of royal prerogative.

Denization was therefore an exercise of executive power, whereas naturalisation was an exercise of legislative power. An example of the latter is the granting of English nationality to the Electress Sophia of Hanover, the heir to the throne under the Act of Settlement 1701. Naturalisation occurred by the passing, in 1705, of the Sophia Naturalization Act. This act granted English nationality to the Electress and to the Protestant "issue of her body", allowing all her future descendants a claim to English nationality. In 1957 Prince Ernest Augustus of Hanover successfully claimed citizenship of the UK & Colonies under this Act. Although the Act was repealed from 1 January 1949 by the British Nationality Act 1948, some descendants can still claim citizenship based on their parent's rights under the law as it existed prior to 1949. However, the Home Office believes that the Act does not generally give claimants a right of abode in the United Kingdom. Successful claims will normally be granted to only British Overseas Citizen status unless entitled to a right of abode in the UK under the Immigration Act 1971 as in force prior to 1983.[2]

Denization remained the usual form by which foreign-born subjects swore allegiance to the crown until general naturalisation acts were passed. Naturalisation Acts were passed in 1844, 1847 and 1870. The 1870 act preserved the process of denization. However, by introducing administrative procedures for naturalising non-British subjects naturalisation became the preferred process.

The 1870 legislation also introduced the concept of renunciation of British nationality, and provided for the first time that British women who married foreign men should lose their British nationality. This was a radical break from the common law doctrine that citizenship could not be removed, renounced, or revoked.

The loss of nationality at marriage was changed with the adoption of the British Nationality and Status of Aliens Act 1914. This codified for the first time the law relating to British nationality. However, it did not mark a major change in the substantive content of the law. This was to wait until 1948.

British Nationality and Status of Aliens Act 1914

This legislation came into force on 1 January 1915. British subject status was acquired as follows:

British subject status was normally lost by:

British Nationality Act 1948

The Commonwealth Heads of Government decided in 1948 to embark on a major change in the law of nationality throughout the Commonwealth, following Canada's decision to enact its own citizenship law in 1946. Until then all Commonwealth countries, with the exception of the Irish Free State (see Irish nationality law), had a single nationality status: British subject status. It was decided at that conference that the United Kingdom and the self-governing dominions would each adopt separate national citizenships, but retain the common status of British subject.

Thus the British Nationality Act 1948 provided for a new status of Citizen of the United Kingdom and Colonies (CUKC), consisting of all those British subjects who had a close relationship (either through birth or descent) with the United Kingdom and its remaining colonies. Each other Commonwealth country did likewise, and also established its own citizenship (with the exception of Newfoundland which became part of Canada on 1 April 1949, Newfoundlanders hence becoming Canadian citizens).

The Act also provided that British subjects could be known by the alternative title Commonwealth citizen.

It was originally envisaged that all British subjects would get one (or more) of the national citizenships being drawn up under the Act, and that the remainder would be absorbed as CUKCs by the British Government. Until they acquired one or other of the national citizenships, these people continued to be British subjects without citizenship. However, some British subjects never became citizens of any Commonwealth country.

Because the nationality laws of India and Pakistan did not provide for citizenship for everyone who was born in their countries (see Indian nationality law), the British Government refused to "declare" their nationality laws for the purposes of the Act, and therefore those British subjects from these countries who did not become Indian or Pakistani citizens were never absorbed as CUKCs by the British Government. They remained British subjects without citizenship.

Due to the imminent withdrawal of the Republic of Ireland from the Commonwealth (which took effect 18 April 1949), special arrangements were made in s.2 of the Act to allow British subjects from Ireland to apply to continue to hold British subject status independently of the citizenship of any Commonwealth country.

Until 1983 the status of British subjects without citizenship was not affected by the acquisition of the citizenship of a non-Commonwealth country.

Acquisition of Citizenship of the UK & Colonies

Under the 1948 Act, CUKC status was acquired by:

Provisions for acquisition of CUKC by adoption were not included in the 1948 Act itself but were added soon after.

Requirements for Naturalisation or Registration

Citizens of Commonwealth countries, British subjects and Irish citizens were entitled to register as citizens of the UK and Colonies after one year's residence in the UK & Colonies. This period was increased to five years in 1962.

Other persons were required to apply for naturalisation after five years residence.

Citizenship by Descent

Prior to 1983, as a general rule, British nationality could be transmitted from only the father, and parents were required to be married.

Children born in Commonwealth countries or the Republic of Ireland could not normally access British nationality if the father was British by descent.

Those born in non-Commonwealth countries of second and subsequent generations born overseas could be registered as British within 12 months of birth. However, many such children did not acquire a UK Right of Abode before 1983 and hence became British Overseas citizens in 1983 rather than British citizens.

On 8 February 1979 the Home Office announced that overseas-born children of British mothers would generally be eligible for registration as UK citizens provided application was made before the child reached age 18. Many eligible children were not registered before their 18th birthday due to the fact this policy concession was poorly publicised. Hence it has been effectively reintroduced by the Nationality, Immigration and Asylum Act 2002 for those aged under 18 on the date of the original announcement.

With effect from 30 April 2003, a person born outside the UK to a British mother (who was born or naturalised in the UK) may be entitled to register as a British citizen by descent if that person was born between 8 February 1961 and 31 December 1982. However those with permanent resident status in the UK, or entitled to Right of Abode, may instead prefer to seek naturalisation as a British citizen which gives transmissible British citizenship otherwise than by descent.

Citizenship by Declaration

A person who was a British Subject on 31 December 1948, of United Kingdom & Colonies descent in the male line, and was resident in the UK & Colonies (or intending to be so resident) was entitled to acquire CUKC by declaration under s12(6) of the Act. The deadline for this was originally 31 December 1949, but was extended to 31 December 1962 by the British Nationality Act 1958.

Citizenship by Marriage

Women married to CUKCs had the right to register as CUKCs under section 6(2) of the 1948 Act.

Citizenship by Adoption

Before 1950 there was generally no provision to acquire UK citizenship by adoption:

In general a person acquiring CUKC by virtue of adoption in the UK, Channel Islands or Isle of Man, became a British citizen on 1 January 1983

Independence Acts

Many colonies became independent between 1949 and 1982. Under the independence legislation passed in the United Kingdom, a person connected with a particular colony generally lost CUKC on Independence Day if:

Persons could in some cases lose CUKC even if they had migrated to the UK. In this case, only through naturalisation or registration could they regain CUKC.

Specific exceptions to the loss of CUKC on independence included:

The only British dependent territory that gained independence after 1982 is Saint Kitts and Nevis, which became an independent Commonwealth country on 19 September 1983. British Dependent Territories citizenship was withdrawn unless there was a connection with a remaining dependent territory. Those that had acquired British citizenship before independence and became also Saint Kitts and Nevis citizens upon independence however do not lose their British citizenship. [4]

In some cases (Singapore and the Federation of Malaya), citizenship statuses were created before independence was achieved. This resulted in unusual endorsements like "British subject: citizen of the State of Singapore" in British passports.[5]

British Nationality Acts of 1958, 1964 and 1965

British Nationality Acts were passed in 1958, 1964 (twice) and 1965:

Commonwealth Immigrants Acts

In the 1960s Britain was concerned with the possible effect of large-scale immigration from its former colonies in Asia and Africa. Until the Commonwealth Immigrants Act 1962, all Commonwealth citizens could enter and stay in the United Kingdom without any restriction. The Commonwealth Immigrants Act 1962 made Citizens of the United Kingdom and Colonies (CUKCs) whose passports were not directly issued by the United Kingdom Government (i.e. passports issued by the Governor of a colony or by the Commander of a British protectorate) subject to immigration control. Those with passports issued at a British High Commission in an independent Commonwealth country or British Consulate remained free from immigration control.

The 1962 Act also increased the residence period for Commonwealth citizens (plus British subjects and Irish citizens) applying for registration as Citizens of the UK and Colonies from one year to five years.

The Commonwealth Immigrants Act 1968 sharpened the distinction between citizens of the United Kingdom and Colonies (CUKCs) who had close ties with the United Kingdom and were free to enter, and those citizens who had no such ties and were therefore subject to immigration control. Particularly in the newly independent Commonwealth countries of East Africa, the result was that there were now citizens of the United Kingdom and Colonies who had the right of residence nowhere.

Immigration Act 1971

Main article: Immigration Act 1971

The Immigration Act 1971 developed this distinction by creating the concept of patriality or right of abode. CUKCs and other Commonwealth citizens had the right of abode in the UK only if they, their husband (if female), their parents, or their grandparents were connected to the United Kingdom and Islands (the UK, the Channel Islands and the Isle of Man). This placed the UK in the rare position of denying some of its nationals entry into their country of nationality. (One consequence of this has been the inability of the United Kingdom to ratify the Fourth Protocol to the European Convention on Human Rights, which guarantees the right of abode for nationals, a right which is widely recognised in international law.)

The following people had the right of abode under the Act:

The following people did not have the right of abode simply by virtue of registration as a CUKC (but could hold it through United Kingdom descent or residence, or if a woman, marriage to a man with Right of Abode):

The reason for these limitations is that under the 1948 Act, High Commissioners in independent Commonwealth nations had the right to register persons as CUKC. This was treated for the purpose of the 1971 Act as "registration in the United Kingdom" and hence without the special limitations on Right of Abode, that status would have been held by some CUKCs with no other qualifying ties to the United Kingdom.

The most notable group over whom control was sought were the Ugandan Indians[6] who were expelled from Uganda by Idi Amin between 1968 and 1972.[7] As CUKCs who had passports issued by a British High Commissioner they were arriving in the United Kingdom in large numbers. A number of 'resettlement' options were looked at, including settling Indians on a suitable island in the dependent territories such as the Falkland Islands or Solomon Islands.[8] Lord Lester of Herne Hill, QC, has written a detailed paper, "East African Asians versus The United Kingdom: The Inside Story", setting out the difficulties faced by the group.[9][10]

However, the concept of patriality was recognised as only a temporary solution, so the British government embarked on a major reform of the law, resulting in the British Nationality Act 1981.

British Nationality Act 1981

The British Nationality Act 1981 abolished the status of CUKC, and replaced it with three new categories of citizenship on 1 January 1983:

British Citizens are those former CUKCs who had a close relation with the United Kingdom and Islands (i.e. those who possessed right of abode under the Immigration Act 1971); BOTCs are those former CUKCs with a close relationship with one of the remaining colonies, renamed Overseas Territories; while BOCs are those former CUKCs who did not qualify for either British citizenship or British Dependent Territories citizenship.

The law distinguishes between British citizen or British Overseas Territories citizen by descent and those who hold those statuses otherwise than by descent. Citizens by descent cannot automatically pass on British nationality to a child born outside the United Kingdom or its Overseas Territories (though in some situations the child can be registered as a citizen).

British Overseas citizens cannot generally pass on British Overseas citizenship, except in limited cases to avoid statelessness or other hardship.

It is possible to hold more than one of these citizenships simultaneously. In fact, since the British Overseas Territories Act 2002 granted British citizenship to all the Overseas Territories (except the Cyprus Sovereign Base Areas), most British overseas territories citizens also hold British citizenship. Additionally, a British Overseas citizen who acquires British citizenship will not lose British Overseas citizenship, although there is generally no added benefit from retaining this status.

Those Commonwealth citizens and British subject already entitled to Right of Abode under the Immigration Act 1971 retained this status provided they did not cease to be Commonwealth citizens or British subjects after 1983. However, countries that joined the Commonwealth after 1 January 1983 are exempt from this scheme. These are South Africa, Pakistan, Namibia, Cameroon and Mozambique. Those who come to the UK under this scheme may claim state benefits if they can show that they intend to make the UK their permanent home. Commonwealth citizens who have the right of abode need to apply for a certificate of entitlement if they want to enter the UK. The certificate is a sticker which is placed inside a non-British passport. After five years living in the UK, a person who has moved to the UK under the Right of Abode can apply to naturalise as British citizen and obtain a British passport.

British Subject and British Protected Person

The 1981 Act retained the category of British subject without citizenship as British subject. British subjects are mainly people from the Indian sub-continent and Ireland. It ended the use of the term for those British subjects who had one of the various national citizenships, though the term Commonwealth citizen continues to be used in that regard.

Persons who held British subject status based on connections with what is now the Republic of Ireland before 1949 remain entitled to resume that status if they wish.

The status of British subject under the 1981 Act cannot be transmitted to children, although the Home Secretary has discretion to register a child as a British subject. This discretion is very rarely exercised.

British subject status can be renounced, but cannot be resumed for any reason. British subjects (except those connected with Ireland) lose their British subject status automatically if they acquire any other nationality.

For further information on the present use of the term "British subject", see British subject.

The 1981 Act also retained another category, that of British Protected Person (BPP), which is not a form of nationality as such (BPPs were never British subjects), but a status conferred on citizens of states under British protection. It has been argued that since BPPs are not considered stateless, they must hold some form of nationality, and that nationality must be a form of British nationality.

British Protected Persons are those who had a connection with a former British Protectorate, Protected State, League of Nations mandate or United Nations trust territory. These were mainly in Asia and Africa. British Overseas Citizens, by contrast, are those who have such a relationship with former British colonies. (Protectorates, Protected States, Mandates and Trust Territories were never, legally speaking, British colonies.) A British Protected Person will lose that status upon acquiring any other nationality or citizenship.

British National (Overseas)

The Hong Kong handover resulted in yet another nationality: British National (Overseas) or BN(O). There were some 3.5 million residents of Hong Kong who held British Dependent Territories citizen (BDTC) status by virtue of their connection with Hong Kong. Another 2 million other Hong Kong residents are believed to have been eligible to apply to become BDTCs. Upon handover, they would lose this status and became solely PRC citizens. Uncertainty about the future of Hong Kong under PRC rule led to the United Kingdom creating a new category of nationality for which Hong Kong BDTCs could apply. Any Hong Kong BDTC who wished to do so was able to acquire the (non-transmissible) status of British National (Overseas).

British Citizenship Legislation for Hong Kong

The handover of Hong Kong also resulted in:

In February 2006, British authorities announced that 600 British citizenship applications of ethnic minority children of Indian descent from Hong Kong were wrongly refused. The applications dated from the period July 1997 onwards. Where the applicant in such cases confirms that he or she still wishes to receive British citizenship the decision will be reconsidered on request. No additional fee will be payable by the applicant in such cases.

Recent changes to India's Citizenship Act 1955 (see Indian nationality law) provide that Indian citizenship by descent can no longer be acquired automatically at the time of birth. This amendment will also allow some children of Indian origin born in Hong Kong after 3 December 2004 who have a British National (Overseas) or British Overseas citizen parent to automatically acquire British Overseas citizenship at birth[11] under the provisions for reducing statelessness in article 6(2) or 6(3) of the Hong Kong (British Nationality) Order 1986.[12] If they have acquired no other nationality after birth, they will be entitled to register for full British citizenship with right of abode in the UK.[13]

British Overseas Territories Act 2002

The British Overseas Territories Act 2002 changes the British Dependent Territories to British Overseas Territories, and British Dependent Territories Citizenship to British Overseas Territories Citizenship. This change is supposed to reflect the no longer "dependent" status of these territories, but may create confusion due to the close similarity between the terms "British Overseas Citizen" and "British Overseas Territories Citizen".

The Act also extends British citizenship to all British Overseas Territories Citizens the right to register as British Citizens, and thus acquire the right of abode, except those whose connection is solely with the military outposts known as the Sovereign Base Areas in Cyprus.

Until their successful claim against the British Government in the High Court over their eviction from their Territory, those connected to the British Indian Ocean Territory which houses the United States military base of Diego Garcia were to be excluded as well, but are now included. The accession of the whole island of Cyprus to the European Union would possibly have made the sole exclusion of the Sovereign Base Areas untenable, as they would become the only Cypriots (as well as the only British Overseas Territories citizens) not to have the right to live and work in the United Kingdom. However, in 2004, only the Greek part of the island was admitted, and the issue has not surfaced.

Nationality, Immigration and Asylum Act 2002

This Act created a number of changes to the law including:

British Nationals with no other citizenship

The Nationality, Immigration and Asylum Act 2002 has also granted British Overseas Citizens, British Subjects and British Protected Persons the right to register as British citizens if they have no other citizenship or nationality and have not after 4 July 2002 renounced, voluntarily relinquished or lost through action or inaction any citizenship or nationality. Previously such persons would have not had the right of abode in any country, and would have thus been de facto stateless. Despite strong resistance from Senior Officials at the Home Office,[14] the then Home Secretary, David Blunkett, said on 3 July 2002 that this would "right a historic wrong" which had left stateless tens of thousands of Asian people who had worked closely with British colonial administrations.[15] The Government of India has also issued clarifications in respect of people with these citizenships to assist with consideration of applications under the Nationality, Immigration and Asylum Act 2002.

Overseas born children of British mothers

The Act has also conferred a right to registration as a British citizen on persons born between 8 February 1961 and 31 December 1982 who, but for the inability (at that time) of women to pass on their citizenship, would have acquired British citizenship automatically when the British Nationality Act 1981 came into force. A person is entitled to registration if:

Registration under both these categories confers British citizenship by descent and hence those with permanent residence in the United Kingdom, or those with the right to take up permanent residence in the United Kingdom, may prefer to apply for naturalisation or section 4 registration instead. Both of these registration categories give British citizenship otherwise than by descent.

Deprivation of British nationality

Under amendments made by the Act, British nationals can be deprived of their citizenship if the Secretary of State is satisfied they are responsible for acts seriously prejudicial to the vital interests of the United Kingdom or an Overseas Territory. This provision applied to only dual nationals-—it is not applicable if deprivation would result in a person's statelessness.

Prior to this law, British nationals who acquired that status by birth or descent (as opposed to registration or naturalisation) could not be deprived of British nationality.

Citizenship ceremonies

All new applicants for British citizenship from 1 January 2004 who are aged 18 or over must attend a citizenship ceremony and take an Oath of Allegiance and a Pledge to the United Kingdom before their grant of British citizenship can take effect

Similar requirements are imposed on applicants for British overseas territories citizenship, with the exception that the Pledge is based on the relevant territory rather than the United Kingdom.

It is unusual for adults to acquire British Overseas citizenship or British subject status (application must be made before age 18 and is very rarely granted); however, in such a case only an Oath of Allegiance would be required.

English language requirements

From 28 July 2004, English (or Welsh or Scottish Gaelic) language requirements for naturalisation applicants were increased:

Life in the United Kingdom test

From 1 November 2005, all new applicants for naturalisation as a British citizen must (unless exempted) prove they have passed the Life in the United Kingdom test.

Neither the language nor Life in the UK test requirements apply to those seeking registration (as opposed to naturalisation) as a British citizen.

Note that passing the test is also required for anyone wishing to remain indefinitely in the UK, whether or not they apply for citizenship. E.g., a husband or wife of a British citizen will be deported if they do not pass the test in time.

Children of unmarried British fathers

With effect from 1 July 2006, children may acquire British citizenship automatically from an unmarried British father (or a British permanent resident if the child is born in the United Kingdom). Proof of paternity must be shown.

Children born to unmarried British fathers before 1 July 2006 are not included in this provision. However they can be registered as British citizens upon application to the Home Office (if not British some other way), provided the child is aged under 18 and would have been British had the father been married to the mother. However, the agreement of the mother is needed. If the mother refuses then policy is for the home office to enquire of her reasons for refusal. If her reasons are deemed unreasonable registration may still be granted. Also, the minor can apply in his own right on reaching the age of 17.

Immigration, Asylum and Nationality Act 2006

The Immigration, Asylum and Nationality Act 2006 made a number of changes to the law including:

Laws concerning immigration and naturalisation

See also

Statistics on British citizenship

Statistics on persons granted British citizenship since 1984 are available on the Home Office website (in pdf format):

2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, 1996, 1995, 1994, 1993, 1992, 1991, 1990, 1989, 1988, 1987, 1986, 1985, 1984

References

  1. ↑ "The Avalon Project : Documents in Law, History and Diplomacy". Yale.edu. Retrieved 2014-10-09.
  2. ↑
  3. ↑ "Federation of Malaya Independence Act 1957", Acts of the United Kingdom Parliament, 5 and 6 Eliz 2, 1957-07-31: Schedule 1, retrieved 2011-04-19
  4. ↑ http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/nationalityinstructions/nisec2gensec/independence?view=Binary
  5. ↑ "History of Travel Documents & Passes". ICA. Retrieved 2010-08-13.
  6. ↑ "Business Software". Asiansfromuganda.org. Retrieved 2010-08-13.
  7. ↑
  8. ↑
  9. ↑ "East African Asians Versus The United Kingdom: The Inside Story" (PDF). Retrieved 2010-08-13.
  10. ↑ "UK | UK 'did not want Ugandan Asians'". BBC News. 2003-01-01. Retrieved 2010-08-13.
  11. ↑ "British nationality - children of Indian origin born in Hong Kong". Britishcitizen.info. Retrieved 2010-08-13.
  12. ↑ "britishcitizen.info" (PDF). britishcitizen.info. Retrieved 2013-09-14.
  13. ↑
  14. ↑ "PDF Viewing archiving 300 dpi" (PDF). Retrieved 2010-08-13.
  15. ↑ "UK | UK Politics | UK to right 'immigration wrong'". BBC News. 2002-07-05. Retrieved 2010-08-13.
  16. ↑ Adam Mynott (2005-06-29). "Africa | UK waves in Kenya airport dweller". BBC News. Retrieved 2010-08-13.
  17. ↑ Brennan, Emily. "The New York Times - Breaking News, World News & Multimedia". International Herald Tribune. Retrieved 2013-09-14.
  18. ↑ Lacey, Marc (30 June 2005). "On Way to Life in Britain, With a Year's Airport Layover". The New York Times.
  19. ↑

External links