British subject

The term British subject has had a number of different legal meanings over time.

Formerly 'British subject' was used to denote de facto citizenship of the United Kingdom and the British Empire, and until 1949 was used to refer generally to any person born or naturalised in the United Kingdom or the British Empire, including the independent dominions such as Canada and Australia (but not including protectorates, e.g., the Princely States). The term had a more complex interpretation between 1949 and 1983 and the move to independence of many of the colonies, with subject status existing alongside citizenship of an individual country or colony.

Currently the term 'British subject' refers, in British nationality law, to a limited class of people defined by Part IV of the British Nationality Act 1981. Under that Act, two groups of people became "British subjects"; the first were people from the Republic of Ireland born before 1949 who already claimed subject status, and the second covered a number of people who had previously been considered "British subjects without citizenship", and were not considered citizens of any other country. This second group were predominantly residents of colonies which had become independent, but who had not become citizens of the new country. The status cannot be inherited, and is lost on the acquisition of any other citizenship; it will therefore cease to exist on the death of the last remaining subjects.

The term 'subject' is used rather than 'citizen' because in a monarchy the monarch is the source of authority in whose name all legal power in civil and military law is exercised. The people of a monarchy in former times were regarded as the monarch's subjects who were under certain obligations such as owing allegiance to, and thereby entitled to the protection of, the Crown.

Prior to 1949

Before 1949, every person born within the dominions and allegiance of the English and later British Crown was, based on common law, an English and later British subject. To be a subject required only that a person be born in any territory under the sovereignty of the Crown. The only exception in common law was that children of foreign ambassadors took the nationality of their fathers, who were immune from local jurisdiction and from duties of allegiance. From time to time, statutes were passed expanding the class of persons who held the status of subject. The medieval statute 25 Edw. III st. 2 naturalised the children of English parents born overseas.[1]

In Calvin's Case in 1608,[2] the Court of Exchequer Chamber ruled that a Scottish subject of King James VI of Scotland, who was also King of England, was by virtue of his allegiance to the King's person not an alien, but a natural-born subject under English law.

Entitlement to the status of British subject was first codified by the British Nationality and Status of Aliens Act 1914, which came into effect on 1 January 1915.[3]

Within the British Empire, the main class of people who were not British subjects were the rulers of native states formally under the protection of the British Crown, and their peoples. Many such smaller states, especially in India, were for most practical purposes administered by agents of the imperial government, but the sovereignty of all rested in their own local rulers and not in the British Crown, and all such persons are considered to have been born outside the sovereignty and allegiance of the Crown, so were (and, where these persons are still alive, still are if they have not gained another nationality or citizenship) known as British Protected Persons.[4]

Between 1947 and 1951 each of the members of the British Commonwealth of Nations created its own national citizenship (the Irish Free State had done so in 1935, but was excluded from the Commonwealth in 1949 because it declared itself a republic). In 1948, the Parliament of the United Kingdom passed the British Nationality Act 1948, which came into effect on 1 January 1949 and introduced the concept of Citizen of the United Kingdom and Colonies. The Canadian Citizenship Act 1946 came into effect on 1 January 1947. The Australian Nationality and Citizenship Act 1948 came into force on 26 January 1949. In all cases, the national citizenship co-existed with the continuing status of British subject.

1949 to 1982

From 1 January 1949, when the British Nationality Act 1948 came into force, every person who was a British subject by virtue of a connection with the United Kingdom or one of her Crown colonies (i.e. not the Dominions) became a Citizen of the United Kingdom and Colonies (CUKC).

However, CUKCs, in common with citizens of other Commonwealth countries , also retained the status of British subject. From 1949, the status of British subject was also known by the term Commonwealth citizen, and included any person who was one of the following:

In the third category were mainly people born before 1949 in the Republic of Ireland, India and Pakistan who did not acquire citizenship of their country or any other Dominion (in the case of those born in India and Pakistan), or who applied after 1949 for restoration of their British subject status (for those connected with Ireland).

Hence, from 1949 to 1982, a person born in Britain would have been a British subject and a citizen of the United Kingdom and Colonies, while someone born in Australia, would have been a British subject and a citizen of Australia.

British subjects in other parts of the Commonwealth

Between 1949 and 1982, the status of British subject was a common status held by citizens of countries throughout the Commonwealth, and many Commonwealth countries had statutes defining the term British subject in their laws, in much the same way as the status of Commonwealth citizen is now defined. In contrast, the British Nationality Act 1981 now provides that, as far as United Kingdom law is concerned, no person is a British subject except as provided by the Act.

In South Africa, South Africans ceased to be British subjects when the country became a republic outside the Commonwealth in 1961, and the Commonwealth Relations Act 1962 removed all reference to British nationality.

In Canada, Commonwealth citizen replaced the term British subject when the Citizenship Act 1977 replaced the Canadian Citizenship Act 1947. Before 1977, the term "British subject" was analogous with "Commonwealth citizen" under its 1947 Act, and as of 1970 the group of countries consisted only of Australia, Ceylon, India, New Zealand, Pakistan, South Africa, Southern Rhodesia and United Kingdom.[5] Hence a South African citizen in 1970 was a British subject under Canadian law, despite not being a British subject under British or South African laws.

New Zealand no longer defined the status of British subject when the Citizenship Act 1977 replaced the British Nationality and New Zealand Citizenship Act 1948 on 1 January 1978. However, s. 2 (Interpretation) of the Act still contains a reference in the definition of Alien to "...Commonwealth citizen (British subject)..."

In Southern Rhodesia, the unrecognised Parliament of Rhodesia purported to repeal the Citizenship of Southern Rhodesia and British Nationality Act 1963, under which Southern Rhodesian citizens were British subjects, and to enact the Citizenship of Rhodesia Act 1970, following the declaration of Rhodesia as a republic. However, pursuant to the 1963 Act and the Southern Rhodesia Act 1965 (UK), Southern Rhodesians continued to be British subjects under Southern Rhodesian law until Zimbabwe's recognised independence in 1980.

Australia retained the status of British subject until the Australian Citizenship Amendment Act 1984 removed Part II of the Nationality and Citizenship Act 1948 effective on 1 May 1987. Between 1 January 1983 and 1 May 1987 a British citizen and an Australian citizen were both British subjects under Australian law, but not under United Kingdom law.[6] The term encompassed all citizens of countries listed in the Nationality and Citizenship Act 1948. The list was based on, but was not identical with, those countries (and their colonies) that were members of the Commonwealth from time to time. The list was amended from time to time as various former colonies became independent countries, but the list in the Act was not necessarily up-to-date as far as to constitute exactly a list of countries in the Commonwealth at any given time. This definition of British subject meant that, for the purposes of Australian nationality law, citizens of countries that had become republics, such as India, were grouped as British subjects. "British subjects" ceased to be eligible to be issued with Australian passports under Australian nationality law in 1984. The voting rights of persons who were British subjects and were enrolled to vote on 25 January 1984 have been preserved.[7][8] As at June 2009, almost 163,000 voters have a "British subject" notation on the electoral roll.[9]

Unusual arrangements were made in the cases of Singapore and the Federation of Malaya. When Singapore became self-governing in 1959 (whilst remaining a British colony), the status British subject: citizen of the State of Singapore was introduced, a status that existed until the (short-lived) incorporation of Singapore within Malaysia between 1963 and 1965.[10] Similar arrangements also existed for the other states and colonies that made make up the Federation of Malaya from 1948: they too introduced citizenship statuses (which eventually became Malayan and later Malaysian citizenship) before achieving independence in 1957.

In most other Commonwealth countries, the term Commonwealth citizen was used instead of British subject.

After 1983

On 1 January 1983, upon the coming into force of the British Nationality Act 1981, every citizen of the United Kingdom and colonies became either a British citizen, British Dependent Territories citizen or British Overseas citizen.

Use of the term British subject was discontinued for all persons who fell into these categories, or who had a national citizenship of any other Commonwealth country. The category of British subjects now includes only those people formerly known as British subjects without citizenship and people born in the Republic of Ireland before 1949. In statutes passed before 1 January 1983, however, references to British subjects are interpreted as if they referred to Commonwealth citizens.

British citizens are not British subjects under the 1981 Act. The only circumstance where a person may be both a British subject and British citizen simultaneously is a case where a British subject connected with Ireland (s. 31 of the 1981 Act) acquires British citizenship by naturalisation or registration. In this case only, British subject status is not lost upon acquiring British citizenship. The status of British subject cannot now be transmitted by descent, and will become extinct with the passing of all existing British subjects.

British subjects, other than by those who obtained their status by virtue of a connection to the Republic of Ireland prior to April 1949, automatically lose their British subject status on acquiring any other nationality, including British citizenship, under section 35 of the British Nationality Act 1981.

In 2010, around 3,500 British Subject passports were issued each year, with the number steadily declining over time.[11]

Other terms

Though the term British subject now has a very restrictive statutory definition in the United Kingdom—and it would be incorrect to describe a British citizen as a British subject—the concept of a subject remains in the law, and the terms the Queen's subjects, Her Majesty's subjects, etc., remain in use in British legal discourse.[12]

The term United Kingdom national (sometimes referred to as British national), is used differently in various statutes, but most commonly means British Citizens, British Overseas Territories Citizens, British Overseas Citizens, British Nationals (Overseas), (and usually) British Subjects (as defined in the 1981 Act) and British Protected Persons. British Protected Persons are an especial grey area; they are neither Commonwealth citizens (i.e., British subjects in the old sense), nor aliens. Though they are not traditionally considered British nationals, since they are not considered stateless under international law, they must be nationals of the United Kingdom.

To cover the various classes of British nationals, new legislation currently uses the following wording:

A person who is:
(a) a British citizen, a British Overseas Territories citizen, a British National (Overseas) or a British Overseas citizen; or
(b) a person who under the British Nationality Act 1981 is a British subject; or
(c) a British protected person (within the meaning of that Act).[13]

References

  1. ↑ Sir William Blackstone, Commentaries on the Laws of England (1765–1769), ch. 10
  2. ↑ (1608) 7 Coke Report 1a, 77 ER 377
  3. ↑ http://www.britainusa.com/sections/articles_show_nt1.asp?d=1&i=41001&L1=10080&L2=41001&a=25316
  4. ↑ UK Border Agency, Who is a British protected person?
  5. ↑ Schedule I of Canadian Citizenship Act, R.S.C. 1970, c. C-19.
  6. ↑ Bagaric, Boyd, Vrachnas, Dimopoulos and Tongue, Migration and Refugee Law in Australia: Cases and Commentary, Cambridge University Press (2007) ISBN 0-521-69137-0, ISBN 978-0-521-69137-6
  7. ↑ Australian Electoral Commission website, accessed 11 March 2015
  8. ↑ section 93(1)(b)(ii) of the Commonwealth Electoral Act 1918.
  9. ↑ Sydney Morning Herald, June 24, 2009: British citizens may lose voting rights
  10. ↑ http://ica.gov.sg/page.aspx?pageid=209&secid=204
  11. ↑ Home Office statistics, 2013.
  12. ↑ R. (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2000] All ER (D) 1675 at para. 57
  13. ↑ "Archived copy". Archived from the original on 2009-10-27. Retrieved 2010-02-21. See e.g. s. 109(4), Anti-Terrorism, Crime and Security Act 2001 (c. 24)
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