British nationality law

The United Kingdom has arguably the world's most complex nationality laws, because of its former status as an imperial power.

Table of contents

1 Early British Nationality Law 2 British Nationality Act 1948 3 Immigration Act 1971 4 British Nationality Act 1981 5 British Protected Persons 6 British National (Overseas) status 7 The present position 8 Recent Changes 9 Acquisition of British Citizenship 10 Also see

Early British Nationality Law

British nationality law has its origins in mediaeval times. There had 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 the his dominions (natural-born subjects) and those who later gave him their allegiance (naturalised subjects).

When the British Empire came into existence, there remained a single category of nationality: that of British subject. British subjects included not only persons within the United Kingdom, but those throughout the British Empire, in the colonies and the self-governing dominions (Australia, New Zealand, South Africa, Canada and Newfoundland). The law on nationality was spread across many statutes, and much of it was unwritten.

This 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 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 1947. Until then all Commonwealth countries had a common citizenship: British subject status. It was decided at that conference that the United Kingdom and the self-governing dominions would each adopt separate 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.

The CUKCs and the citizens of the other Commonwealth countries retained under the 1948 act the status of British subject, for which the act also introduced the term 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. The remainder would be absorbed as CUKCs by the British Government. Until they acquired one or other of the national citizenships, or the citizenship of a foreign country, these people continued to be British subjects without citizenship. However, some British subjects never became citizens of any country, chiefly from Ireland, as a result of its withdrawal from the Commonwealth in 1949, and India and Pakistan, because the British Government refused to recognise their nationality laws, which did not provide for citizenship for everyone who was born in their countries. Thus, those who did not become Indian or Pakistani citizens were never absorbed as CUKCs by the British Government.

Immigration Act 1971

In the 1960s Britain was concerned with the threat of large scale immigration from its former colonies. Until the Commonwealth Immigration Act 1962, all Commonwealth citizens could enter and stay in the United Kingdom without any restriction. Successive acts restricted the categories who could enter freely, but those CUKCs who had passports issued by the British Government (as opposed to those issued by colonial governments) retained unrestricted access. The most notable group were the Ugandan Indians expelled by Idi Amin in 1968.

The Immigration Act 1971 created the concept of patriality or right of abode. CUKCs and other Commonwealth citizens only had the right of abode in the UK if they, their parents or their grandparents were born in the United Kingdom itself. This placed the UK in the rare position of denying some of its nationals entry into the country they are nationals of. (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 recognized in international law.)

However, this was recognized 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

This Act abolished the status of CUKC, and replaced it with three new statuses: British Citizenship, British Dependent Territories Citizenship (BDTC) and British Overseas Citizenship (BOC). British Citzens were those CUKCs who had a close relation with the United Kingdom (i.e. those who possessed right of abode); BDTCs were those with a close relationship with one of the remaining colonies, renamed Dependent Territories; while BOCs were those CUKCs that were not eligible for British Citizen status or BDTC status. This changeover occurred on the day the Act entered into force, January 1, 1983.

The act also retained the status of British subject without citizenship as British subject, while ending the use of the term for those British subjects who had national citizenship, though the term Commonwealth citizen could continue to be used in that regard.

British Protected Persons

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

British Protected Persons are those that had a connection with a former British Protectorate, Protected State, League of Nations mandate or United Nations Trust Territory. British Overseas Citizens, by contrast, are those that 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, like a British Subject, will lose that status upon acquiring any other nationality or citizenship.

British National (Overseas) status

The Hong Kong handover resulted in yet another status: British National (Overseas) (BN(O)). Chinese living in Hong Kong prior to the handover had BDTC status. At the handover they lost this status and became nationals of the People's Republic of China. Some people in Hong Kong were unhappy about losing their British nationality, and as a result the United Kingdom created a new status that Hong Kong BDTCs could apply for.

The present position

There are thus at present six different types of British national (or protected person):

• British Citizens
• British Overseas Territories Citizens (formerly British Dependent Territories Citizens)
• British Overseas Citizens
• British Subjects
• British Nationals (Overseas)
• British Protected Persons

Right of Abode, i.e. the right to enter and live in the UK freely, is only automatically held by British citizens, as well as by those other Commonwealth citizens who were patrials under the Immigration Act 1971.

For the purposes of the European Communities treaties, the nationals of the United Kingdom comprise all British citizens, British subjects with the right of abode, and British Overseas Territories citizens by virtue of a connexion with Gibraltar. These UK nationals enjoy the status of European citizen in common with nationals of other member states of the European Union.

Recent Changes

The Labour Government of Tony Blair has liberalised the nationality laws in respect of some of Britain's nationals without the right of abode.

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 gives all British Overseas Territories Citizens the right to register as British Citizens, and thus acquire the right of abode, except those whose connection is to 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 anticipated accession of the whole island of Cyprus to the European Union will almost certainly make 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.

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 do not hold and have not intentionally renounced another citizenship. Previously such persons would have not had the right of abode in any country, and would have thus been practically stateless.

The Act has also extended the right to register as a British citizen to all those born of a British mother after 1961.

Acquisition of British Citizenship

British Citizenship can be acquired in the following ways:

1. By lex solis: By birth in the United Kingdom (excluding family members of foreign diplomats or consular staff)
2. By lex sanguinis (by descent): Children of a mother with British citizenship, or legitimate children of a father with British citizenship (provided the parent did not also acquire their citizenship by descent).
3. By naturalisation
4. By registration

Person acquiring citizenship by method (2) are called citizens by descent, while citizens acquiring citizenship by methods (1), (3) or (4) are called citizens otherwise than by descent. Only citizens otherwise than by descent can pass on their citizenship to their children automatically; citizens by descent can only pass on citizenship to their children by registering them.

Registration is a simpler method of acquiring citizenship than naturalisation, but only certain people are eligible for it.

Some persons are eligible for registration as citizens automatically, but this registration must be done before their eighteenth birthday: the illegitimate children of a father with British citizenship, children not born in the UK of citizens by descent, and those born of a mother who had CUKC status prior to the entry into force of the British Nationality Act 1981.

Commonwealth citizens holding right of abode, and British nationals without the right of abode who have indefinite leave to remain in the UK, are eligible for British citizenship by registration after 5 years residence in the United Kingdom.

While the British Nationality Act 1981 provides that both fathers (if the child is legitimate) and mothers can pass on British citizenship to their children, the British Nationality Act 1948 did not allow women to pass on their citizenship. The British Nationality Act 1981 remedied this in relation to children born from 1983, but did not grant British citizenship to those deprived of CUKC status by operation of the previous British legislation. Those persons so deprived could become citizens by registration, but only before their eighteenth birthday. However, a recent change means that all children of British mothers born since 1961 are now entitled to register for British citizenship. Those who remain excluded, while not British citizens, nonetheless continue to have the right of abode in the United Kingdom if they are Commonwealth citizens.

Also see

• Britishness test