British Nationality Law

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The United Kingdom has arguably the world's most complex nationality laws; the complexity derives from its former status as a colonial power.

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 subjects of the monarch owed the monarch allegiance, and were either natural born subjects (those born in the monarch's realms), or those who later gave their allegiance to the monarch (naturalised subjects).

At this time there was a single category of nationality, as 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 (namely Australia, New Zealand, South Africa, Canada and Newfoundland). The law on nationality was spread across many statutes, and much of it was unwritten.

This was to change in 1914, 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. Up until then all Commonwealth countries had a common citizenship, British subject status. It was decided at that confrence that the United Kingdom and the self-governing dominions would each adopt separate citizenships.

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 subjects, for which the act also introduced the term "Commonwealth citizen".

The 1948 act also introduced a new form of British citizenship, "British subject without citizenship", for those who held British subject status prior to the passage of the act but did not acquire CUKC status nor the citizenship of any other Commonwealth country. They were thus granted a limited form of British nationality, to prevent them becoming [[stateless]; however if they acquired any other nationality they would automatically lose their status as British subjects without citizenship.

Immigration Act 1970

In the 1960s Britain was concerned with the threat of large scale immigration from its former colonies. Most of the citizens of its former colonies became citizens of the newly independent states formed when these colonies became independent. However, many persons who lived in one colony but came from another did not acquire the citizenship of the newly independent states. (For example, Asians who immigrated to African colonies.) These persons retained CUKC status, and were thus eligible to emigrate to the United Kingdom. In response, the Immigration Act 1971 restricted access to the United Kingdom to those CUKCs who had close relations with the United Kingdom. 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 of 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; thus 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 where those CUKC citizens 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, since renamed Dependent Territories; 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 British Government recently (Aug 2001) introduced a bill, the British Overseas Territories Bill 2001, renames "British Dependent Territories" to "British Overseas Territories"; and hence "British Dependent Territories Citizenship" to "British Overseas Territories Citizenship". This change is supposed to reflect the no longer "dependent" status of these territories. It will probably create confusion due to the close similarity between the terms "British Overseas Citizen" and "British Overseas Territories Citizen".

The act also renamed the status of "British subject without citizenship" to that of plain "British subject", and ended the use of the term "British subject" to refer to citizens of a Commonwealth country, though the term "Commonwealth citizen" could be used in that regard.

British Protected Persons

The 1981 act also introduced another status, British Protected Person. A British Protected Person is a person that is:

  • declared to be a British Protected Person by an Order in Council made under the Act, or
  • a British Protected Person by virtue of the Solomon Islands Act 1978

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 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 (BNO). 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 Hong Kong Chinese were unhappy about losing their British Nationality; so the United Kingdom created a new status that Hong Kong Chinese with BDTC status could apply for.

Thus there are at present six different types of British nationality: British subject status, British Citizenship, British Dependent Territories Citizenship, British Overseas Citizenship, British National Overseas, and British Protected Person.

Right of Abode

British nationality does not, unlike most country's nationality, imply right of residence in the United Kingdom, or right of abode. Right of abode is determined by different rules from nationality. All British Citizens have right of abode. Originally British Dependent Territories Citizens did not have right of abode either, but the Blair Government intends (has it done it yet?) to extend the right of abode to British Dependent Territories Citizens. Also, some non-British nationals have right of abode (see below). In general, British Overseas Citizens and British Nationals Overseas do not possess the right of abode.

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 counsular 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 mother did not also acquire their birth 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 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 whose mother but not father had CUKC status and where born prior to the entry into force of the British Nationality Act 1981.

Non-British nationals holding right of abode are eligible for British citizenship by registration after 5 years residence in the United Kingdom.

While the British Nationality Act 1981 provides that one is a citizen by descent if their mother has British citizenship, or if their father has British citizenship and they were born in wedlock, the British Nationality Act 1948 provided that one would be a CUKC only if one was born in wedlock to a CUKC father. Thus men could pass on their CUKC status to their children, but not women. The British Nationality Act 1981 remedied this in relation to future births, but did not grant British citizenship to those deprived of CUKC status by operation of the sexist British legislation. Those persons so deprived could become citizens by registration, but only before their eighteenth birthday. However, these people while they are not British nationals, still posess right of abode in the United Kingdom.