British nationality law
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The United Kingdom has arguably the world's most complex nationality laws, because of its former status as an imperial power.
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Early British nationality law
British nationality law has its origins in medieval 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 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 former colonies (Fiji), 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 1946. 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 (with the exception of Newfoundland which became part of Canada on 1 April 1949, Newfoundlanders hence becoming Canadian citizens).
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 (see Indian nationality law). 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 possible effect of large scale immigration from its former colonies. Until the Commonwealth Immigrants 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 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 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 recognized in international law.)
The following people had the right of abode under the Immigration Act 1971:
- A citizen of the United Kingdom and Colonies who was born, adopted, naturalised or registered in the United Kingdom.
- A citizen of the United Kingdom and Colonies who was born to, or legally adopted by, a parent who, at the time of the birth or adoption, was a citizen of the United Kingdom and Colonies born, adopted, naturalised or registered in the United Kingdom.
- A citizen of the United Kingdom and Colonies who was born to, or legally adopted by, a parent who, at the time of the birth, was a citizen of the United Kingdom and Colonies. That parent must have a parent who was a citizen of the United Kingdom and Colonies by birth, adoption, naturalisation or registration in the United Kingdom.
- A citizen of the United Kingdom and Colonies who by 1 January 1983 had been ordinarily resident in the United Kingdom for five years or more without being restricted by the immigration laws to how long he or she could stay.
- A Commonwealth citizen who was born to, or legally adopted by, a parent who, at the time of the birth or adoption, was a citizen of the United Kingdom and Colonies by birth in the United Kingdom.
- A female Commonwealth citizen or citizen of the United Kingdom and Colonies who was, or had been, the wife of a man with the right of abode.
- A citizen of the United Kingdom and Colonies who was registered in an independent Commonwealth country by the British High Commissioner.
The following people did not have the right of abode:
- A woman who was registered under section 6(2) of the British Nationality Act 1948 on or after 28 October 1971, unless she got married before that date and her husband has the right of abode.
- A minor child who was registered under section 7 of the British Nationality Act 1948 in an independent Commonwealth country by the British High Commissioner on or after 28 October 1971.
The most notable group over whom control was sought were the Ugandan Indians (http://www.asiansfromuganda.org/) who were expelled from Uganda (http://www.asiansfromuganda.org/1972/chronology/chronology.html) by Idi Amin between 1968-1972. 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 (http://www.asiansfromuganda.org/1972/secret/secret.html) such as the the Falkland Islands or Solomon Islands. The Lord Lester of Herne Hill QC has written a detailed paper, East African Asians versus The United Kingdom: The Inside Story (http://www.odysseustrust.org/lectures/221_east_african_asians-sharma.pdf), setting out the difficulties faced by the group.
However, the concept of patriality 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 British Nationality Act 1981 abolished the status of CUKC, and replaced it with three new categories of citizenship on 1 January 1983:
- British citizenship,
- British Dependent Territories citizenship (BDTC), which was renamed British Overseas Territories citizenship (BOTC) by the British Overseas Territories Act 2002 (see below) and
- British Overseas citizenship (BOC).
British Citizens are those 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 CUKCs with a close relationship with one of the remaining colonies, renamed Overseas Territories; while BOCs are those CUKCs who were not eligible for British Citizen status or BOTC status.
Every British citizen or British Overseas Territories citizen is either a British citizen or British Overseas Territories citizen by descent or a British citizen or British Overseas Territories citizen otherwise than by descent. A British citizen or British Overseas Territories citizen otherwise than by descent is a British citizen or British Overseas Territories citizen through birth, adoption, naturalisation or (in some cases) registration in the United Kingdom and Islands or its Overseas Territories. It does not matter whether the birth, adoption, naturalisation or registration took place before or after 1 January 1983.
If you become/are a British citizen or British Overseas Territories citizen otherwise than by descent you generally can pass on British nationality to any child of yours born outside the United Kingdom.
If you become/are a British citizen or British Overseas Territories citizen by descent you cannot automatically pass on British nationality to any child of yours born outside the United Kingdom or its Overseas Territories (but depending on your personal circumstances, your child may be eligible for registration).
British Overseas citizens cannot generally pass on British Overseas citizenship, except in limited cases to avoid statelessness or other hardship (i.e. British Overseas citizenship is, by definition, a by descent status).
British Subject & 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 who were born before 1949, were formerly British subjects without citizenship and did not become either citizens of the United Kingdom & Colonies or citizens of India or Pakistan. 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 British or non-British 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 the Indian sub-continent 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 Chinese citizens. Uncertainty about the future of Hong Kong under Chinese 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 National (Overseas) status was given effect by the Hong Kong (British Nationality) Order 1986 (http://www.britishcitizen.info/HKBNO1986.pdf). Article 4(1) of the Order provided that on and after 1 July 1987, there would be a new form of British nationality, the holders of which would be known as British Nationals (Overseas). Article 4(2) of the Order provided that adults and minors who had a connection to Hong Kong were entitled to make an application to become British Nationals (Overseas) by registration.
Becoming a British National (Overseas) was therefore not an automatic or involuntary process and indeed many eligible people who had the requisite connection with Hong Kong never applied to become British Nationals (Overseas). Acquisition of the new status had to be voluntary and therefore a conscious act. To make it involuntary or automatic would have been contrary to the assurances given to the Chinese government which led to the words "eligible to" being used in paragraph (a) of the United Kingdom Memorandum (http://www.info.gov.hk/trans/jd/jd6.htm) to the Sino-British Joint Declaration. Any person who failed to register as a British Nationals (Overseas) by 1 July 1997 and would thereby be rendered stateless, automatically became a British Overseas citizen under article 6(1) of the Hong Kong (British Nationality) Order 1986 (http://www.britishcitizen.info/StatelessReductionProvisions.pdf).
No person could become a British National (Overseas) automatically by being born in Hong Kong, by descent or by any involuntary means. A person was required to make an application on the prescribed form to the British authorities, and applicants only became a British National (Overseas) when their application was approved and duly registered under the authority of the Home Secretary. The deadline for applications passed in 1997.
It should be noted that the People's Republic of China (PRC) Government does not recognise British National (Overseas) or British citizen passports (http://www.immd.gov.hk/ehtml/chnnationality_2.htm) issued to former Hong Kong British Dependent Territories citizens. Chinese citizens who hold British National (Overseas) or British citizen passports use home-visit permits (http://www.chinatravel1.com/zhengjian/gangao.htm) (in Chinese) issued by the Chinese Government. Taiwan, also known as Republic of China, however, fully recognises British citizens but not British Nationals (Overseas) (http://www.mac.gov.tw/big5/twhkmc/faq/hmqa.htm) (in Chinese). British citizen passport holders from both the United Kingdom and Hong Kong enjoy 30-day visa-free access (http://www.boca.gov.tw/%7Eboca2000/en/exempte.htm), and Taiwan stamps their passports as they do for Britons from the United Kingdom. The Taiwanese Government does not stamp British National (Overseas) passports, an act which would imply that Taiwan recognized the the British nationality of British Nationals (Overseas), even though British National (Overseas) passport holders enjoy 14-day landing-visa access (http://www.immigration.gov.tw/aspcode/show_menu22.asp?url_disno=19) (in Chinese). British Nationals (Overseas) are not eligible to participate in the United States Visa Waiver program (http://travel.state.gov/visa/temp/without/without_1990.html), and require a visa to visit the United States.
For more information about the nationality issues of Hong Kong people, please refer to Hong Kong Politics (http://en.wikipedia.org/wiki/Politics_of_Hong_Kong#Nationality_and_citizenship)
British Nationality (Hong Kong) Act 1990
After the Tiananmen Square protests of 1989, many people in Hong Kong began to fear for their future post-1997. Emigration was rampant and a brain-drain was beginning to affect the economy of Hong Kong. To stem the drain, people urged the British Government to grant full British citizenship to all Hong Kong BDTCs - but this request was never accepted. However, in view of Britain's special obligation to Hong Kong as the one dependent territory whose people were unable to exercise the fundamental right of self-determination, it was considered necessary to devise a scheme to enable some of the population to obtain British citizenship to maintain confidence in Hong Kong and to counteract the effects of the emigration of many of its most talented residents. The United Kingdom made provision to grant citizenship to 50,000 families whose presence was important to the future of Hong Kong under the British Nationality Act (Hong Kong) 1990 (http://www.hmso.gov.uk/acts/acts1990/Ukpga_19900034_en_1.htm). Under the Act, the Home Secretary was required to register as a British citizen any person recommended by the Governor of Hong Kong (as well as the applicant's spouse and minor children). No person can be registered under the Act after 30 June 1997.
British Nationality (Hong Kong) Act 1997
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The ethnic minorities campaigned to be granted full British citizenship. (http://www.journalism.sfsu.edu/www/pubs/prism/nov95/03.html) In response to expressions of concern in both Houses of Parliament as far as back as the late 1980s, representations by the Hong Kong Legislative Council, the Governor of Hong Kong and the Foreign Secretary, the Prime Minister discussed the issue with the Home Secretary during the week of 27-31 January 1997. The Home Secretary appeared to be in a minority in the Cabinet in resisting the grant of British citizenship to the group, and the Prime Minister suggested that the Cabinet might need to resolve the issue. The Home Secretary agreed to consider the matter over the weekend. On 4 February 1997, the Home Secretary announced in Parliament (http://www.publications.parliament.uk/pa/cm199697/cmhansrd/vo970204/text/70204w07.htm#70204w07.html_sbhd7) that provision would be made to grant full British citizenship (with the right of abode in the UK) to the solely British ethnic minorities of Hong Kong. It was acknowledged that their nationality status would be uncertain after 30 June 1997 (http://www.publications.parliament.uk/pa/ld199697/ldhansrd/vo970204/text/70204w02.htm#70204w02_sbhd3). The subsequently enacted British Nationality (Hong Kong) Act 1997 (http://www.hmso.gov.uk/acts/acts1997/1997020.htm) gives them an entitlement to acquire full British citizenship by making an application to register for that status after 1 July 1997.
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 7 January 2004 who have a British National (Overseas) or British Overseas citizen parent to automatically acquire British Overseas citizenship (http://www.britishcitizen.info/) at birth (see www.britishcitizen.info) under the provisions for reducing statelessness in article 6(2) or 6(3) of the Hong Kong (British Nationality) Order 1986 (http://www.britishcitizen.info/StatelessReductionProvisions.pdf). If they have acquired no other nationality after birth, they will be entitled to register for full British citizenship (http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds04/text/41220w04.htm#column_WA123) with right of abode in the UK.
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 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 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.
Those persons who held British Overseas Territories citizenship on 21 May 2002 (except those solely connected with the Sovereign Base Areas) automatically acquired British citizenship on that date if they did not already possess it. Most people from Gibraltar and the Falkland Islands already held full British citizenship under earlier legislation.
Nationality, Immigration and Asylum Act 2002
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. The then Home Secretary, David Blunkett, said on 3 July 2004 that this would "right a historic wrong" (http://www.asiansfromuganda.org/new/passport.html) which had left stateless tens of thousands of Asian people who had worked closely with British colonial administrations. 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.
The Act has also conferred a right to registration as a British citizen on persons born between 7 February 1961 and 1 January 1983 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:
- the person was born after 7 February 1961 but before 1 January 1983
- the person was born to a mother who was a citizen of the United Kingdom and Colonies at the time and the person would have been a citizen of the United Kingdom and Colonies by descent if it had been possible for women to pass on citizenship of the United Kingdom and Colonies to their children in the same way as men could; and
- had the person been a citizen of the United Kingdom and Colonies, they would have had the right of abode in the United Kingdom under the Immigration Act 1971 and would have become a British citizen on 1 January 1983.
Dual Nationality & Dual Citizenship
In general there is no restriction, in United Kingdom law, on a British national being a citizen of another country as well. So, if a British national acquires another nationality, they will not automatically lose British nationality. Similarly, a person does not need to give up any other nationality when they become British. (Different rules apply in the cases of British protected persons and certain British subjects. A person who is a British subject otherwise than by connection with the Republic of Ireland will lose that status on acquiring any other nationality or citizenship. Similarly, a British protected person will no longer be a British protected person on acquiring any other nationality or citizenship.)
Many other countries, however, do not allow dual nationality (see Multiple citizenship). If you have British nationality, and are also a national of a country which does not allow dual nationality, the authorities of that country may either regard you as having lost that nationality or may refuse to recognise your British nationality. If you are a British national, and you acquire the nationality of a country which does not allow dual nationality, you may be required by the other country to renounce (give up) your British nationality.
Under international law, a State may not give diplomatic protection to one of its nationals in a country whose citizenship that person also holds. For example, if you are British and have another nationality, for example, American, and are visiting the United States, a British Consul in the United States cannot give you diplomatic help.
Acquisition & Loss of British Citizenship
British Citizenship can be acquired in the following ways:
- lex solis: By birth in the United Kingdom to a parent who is a British citizen at the time of the birth, or to a parent who is settled in the United Kingdom (in either case, if the relevant parent is the father, the parents must be married). Before 1983, birth in the UK was sufficient to confer British nationality irrespective of the status of parents, with an exception only for children of diplomats and enemy aliens.
- lex sanguinis: By descent if one of the parents is a British citizen otherwise than by descent (for example by birth, adoption, registration or naturalisation in the United Kingdom)
- By naturalisation
- By registration
- By adoption
Leaflets and advice (http://www.ind.homeoffice.gov.uk/ind/en/home/applying/british_nationality/advice_about_nationality.html?) which give information about how British citizenship and other kinds of British nationality can be held, applied for or renounced are available from the Home Office Immigration and Nationality Directorate. Information is also available on provisions for reducing statelessness (http://www.ind.homeoffice.gov.uk/ind/en/home/applying/british_nationality/advice_about_nationality/bn5_-_provisions_for.html).
Persons acquiring citizenship by method (2) are called citizens by descent, while citizens acquiring citizenship by methods (1), (3) or (5) are called citizens otherwise than by descent. British citizens by registration, method (4), may be either, depending on the circumstances. 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. British nationals (other than British citizens) who have indefinite leave to remain in the UK or right of abode, are eligible for British citizenship by registration after 5 years residence in the United Kingdom.
Some children persons are eligible for registration as citizens as a matter of entitlement or policy, but this registration must be applied for before their eighteenth birthday, or earlier in some cases, e.g. illegitimate children of a British citizen father, or children not born in the UK to some British citizens by descent.
All categories of British nationality can be renounced by a declaration made to the Secretary of State for the Home Department. A person ceases to be a British national on the date that the declaration of renunciation is registered by the Home Secretary. If a declaration is registered in the expectation of acquiring another citizenship, but one is not acquired within 6 months of the registration, it does not take effect and you are considered to have remained a British national. Renunciations made to other authorities are invalid: e.g., a general renunciation made upon taking up U.S. citizenship. Furthermore, there are provisions for the resumption of British nationality renounced for the purpose of gaining another citizenship. This can generally only be done once.
British subjects (other than British subjects by virtue of a connection with British Ireland) and British protected persons will lose their British nationality upon acquiring any other form of nationality, whether British, Commonwealth or foreign.
British subjects, British Overseas citizens and British Nationals (Overseas) cannot under any circumstances resume their British nationality after renunciation.
Under amendments made by the recent Nationality, Immigration and Asylum Act 2002, 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 only applies to dual nationals - it is not applicable if deprivation would result in a person's statelessness.
United Kingdom passports (British passports)
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A digital United Kingdom passport was introduced on 5 October 1998. The technology captures a digital image of the photograph, signature, incorporates laser engraving and reproduces these onto the personal details page of the passport. The passport is burgundy coloured, machine-readable, and has 32 or 48 pages.
At present holders of the following forms of British nationality can apply for a British passport:
- British citizens (GBR)
- British Overseas Territories citizens (formerly British Dependent Territories citizens) (GBD)
- British Overseas citizens (GBO)
- British Subjects (GBS)
- British Protected Persons (GBP)
- British Nationals (Overseas) (GBN)
The three-character codes appearing after each type of nationality above are the ISO/IEC 7501-1 machine readable passport alpha-3 country codes of such British passports.
No British national has a legal right to be issued a British passport, except for British Nationals (Overseas) who have an entitlement to hold a British passport under article 4(2) of the Hong Kong (British Nationality) Order 1986 (http://www.britishcitizen.info/HKBNO1986.pdf). All British passports are therefore issued at the discretion of the Secretary of State under Royal Prerogative, with the exception of those held by British Nationals (Overseas).
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 some British subjects and 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 Overseas Territories citizens by virtue of a connection with Gibraltar and British subjects with right of abode in the UK (mainly, but not exclusively, those connected with the Republic of Ireland before 1949).
These UK nationals enjoy the status of European citizen in common with nationals of other member states of the European Union.