British Nationality Act 1981

The Act reclassified Citizenship of the United Kingdom and Colonies (CUKC) into three categories:

• British citizenship
• British Dependent Territories citizenship (BDTC); and
• British Overseas citizenship.

In 1968, with the passage of the Commonwealth Immigrants Act 1968 to modify the wording of the Commonwealth Immigrants Act 1962, some CUKCs were stripped of the Right of Abode in the United Kingdom. The Act sought to restore once again the link between citizenship and right of abode by providing that British citizenship—held by those with a close connection with either the United Kingdom or with the Crown Dependencies (that is to say, the Isle of Man and the Channel Islands), or both—would automatically carry a right of abode in the UK. The other categories of British nationality would not hold such status based on nationality, although in some cases would do so under the immigration laws.

Whilst in opposition in 1977, the Conservative Party asked Edward Gardner to chair a study group to provide advice on changes to the nationality laws. The resultant Green paper, "Who Do We Think We Are?", was published in 1980 and its threefold definition of nationality formed the basis for the Government's legislation. Originally the paper proposed just two categories of British nationality, British citizenship and British Overseas citizenship. However, the British Dependent Territory governments successfully lobbied for an additional category of nationality, which would cater for those with close connections to any of the British territories.

The Act also modified the application of jus soli in British nationality. Prior to the Act coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to CUKC status. After the Act came into force, it was necessary for at least one parent of a United Kingdom-born child to be a British citizen, a British Dependent Territories citizen or "settled" in the United Kingdom or a colony (a permanent resident).

Even following the coming into force of the Act, the vast majority of children born in the United Kingdom or colonies still acquire British nationality at birth. Special provisions are made for non-British UK-born children to acquire British citizenship in certain circumstances.

Under section 11(1) of the Act, a CUKC must have had the right of abode under the Immigration Act 1971, as it existed on 31 December 1982, to become a British citizen on 1 January 1983 automatically under the standard CUKC transition at commencement route of the Act.[2][3]

Section 39 of the Act then went on to modify the right of abode section of the 1971 measure, eliminating confusing wording as to whether right of abode could be obtained through a grandparent who was a CUKC from outside the UK.[2][3]

Some people born in the UK after 1983 may have been incorrectly told they were not eligible for a British passport, if their mother had been born in a Commonwealth country (e.g. Canada, or Australia) to a British-born grandparent, but later returned to the UK. In this case, the parent would have retained right of abode from the grandparent, meaning they were already settled at the time of the child's birth (irrespective of whether they themselves were British nationals).

The Act made a variety of other changes to the law:

• Mothers as well as fathers were allowed to pass on British nationality to their (UK born) children. However, until 2006, British parents of children born outside the UK (or in the UK to a non-British mother [lower-alpha 1]) had to be married.[4]
• The term Commonwealth citizen was used to replace British subject. Under the Act, the term British subject was restricted to certain persons holding British nationality through connections with British India or the Republic of Ireland before 1949.
• Right of Abode could no longer be acquired by non-British citizens. A limited number of Commonwealth citizens holding Right of Abode were allowed to retain it (for example, those born before 1983 to a British parent in a Commonwealth country which had not left, or had membership suspended since then).
• The rights of Commonwealth and Irish citizens to become British citizens by registration were removed and instead they were to be expected to apply for naturalisation if they wanted to acquire British citizenship. Irish citizens, however, who were, or claim British subject nationality retain their right to acquire British citizenship nationality through registration.[5]
• Special provision was made for persons from Gibraltar to acquire British citizenship. Since 2002, this mainly relates to EU nationals who have acquired Overseas Territory Citizen status to live in Gibraltar.
• Foreign spouses were treated equally under the law. Wives of British men could no longer acquire British nationality purely by marriage and husbands of British women were afforded the right to acquire British nationality on equal terms.[6]
• British Crown Colonies were renamed British Dependent Territories (subsequently amended to British Overseas Territories)
• The Channel Islands and the Isle of Man, references to which had been construed as references to colonies under the British Nationality Act 1948,[7] were now to be construed as being part of the United Kingdom for nationality purposes.[8]

In some cases, transitional arrangements were made that preserved certain aspects of the old legislation. Most of these expired on 31 December 1987, five years after the Act came into force.

The Commonwealth Immigrants Act 1968 made a number of changes to the Commonwealth Immigrants Act 1962, beginning with amending the definition of to whom the Act applied. By comparison:

Commonwealth Immigrants Act 1962:

PART I

CONTROL OF IMMIGRATION

1.-(1) The provisions of this Part of this Act shall have effect for controlling the immigration into the United Kingdom of Commonwealth citizens to whom this section applies.

• (2) This section applies to any Commonwealth citizen not being-
  • (a) a person born in the United Kingdom :
  • (b) a person who holds a United Kingdom passport and is a citizen of the United Kingdom and Colonies, or who holds such a passport issued in the United Kingdom or the Republic of Ireland; or (c) a person included in the passport of another person who is excepted under paragraph (a) or paragraph (b) of this subsection.

(3) In this section "passport" means a current passport; and "United Kingdom passport" means a passport issued to the holder by the Government of the United Kingdom, not being a passport so issued on behalf of the Government of any part of the Commonwealth outside the United Kingdom.

(4) This Part of this Act applies to British protected persons and citizens of the Republic of Ireland as it applies to Commonwealth citizens, and references therein to Commonwealth citizens, and to Commonwealth citizens to whom this section applies, shall be construed accordingly.

Commonwealth Immigrants Act 1968:

1. In section 1 of the principal Act (application of Part I), in subsection (2)(b) after the words "citizen of the United Kingdom and Colonies" there shall be inserted the words "and fulfils the condition specified in subsection (2A) of this section", and after subsection (2) there shall be inserted the following subsection:-

• "(2A) The condition referred to in subsection (2)(b) of this section, in relation to a person, is that he, or at least one of his parents or grandparents,-
  • (a) was born in the United Kingdom, or
  • (b) is or was a person naturalised in the United Kingdom, or
  • (c) became a citizen of the United Kingdom and colonies by virtue of being adopted in the United Kingdom, or
  • (d) became such a citizen by being registered under Part II of the British Nationality Act 1948 or under the British Nationality Act 1964, either in the United kingdom or in a country which, on the date on which he was so registered, was one of the countries mentioned in section 1(3) of the said Act of 1948 as it had effect on that date".

The stripping of birth rights from Bermudians by the British Government in 1968 and 1971, and the change of their citizenship in 1983, actually violated the rights granted them by Royal charters at the founding of the colony. Bermuda (fully The Somers Isles or Islands of Bermuda) had been settled by the London Company (which had been in occupation of the archipelago since the 1609 wreck of the Sea Venture) in 1612, when it received its Third Royal Charter from King James I, amending the boundaries of the First Colony of Virginia far enough across the Atlantic to include Bermuda. The citizenship rights guaranteed to settlers by King James I in the original Royal Charter of 10 April 1606, thereby applied to Bermudians:[9][10][11][12]

Alsoe wee doe, for us, our heires and successors, declare by theise presentes that all and everie the parsons being our subjects which shall dwell and inhabit within everie or anie of the saide severall Colonies and plantacions and everie of theire children which shall happen to be borne within the limitts and precincts of the said severall Colonies and plantacions shall have and enjoy all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande or anie other of our saide dominions.

[13]

These rights were confirmed in the Royal Charter granted to the London Company's spin-off, the Company of the City of London for the Plantacion of The Somers Isles, in 1615 on Bermuda being separated from Virginia:

And wee doe for vs our heires and successors declare by these Pnts, that all and euery persons being our subjects which shall goe and inhabite wthin the said Somer Ilandes and every of their children and posterity which shall happen to bee borne within the limits thereof shall haue and enjoy all libertyes franchesies and immunities of free denizens and natural subjectes within any of our dominions to all intents and purposes, as if they had beene abiding and borne wthin this our Kingdome of England or in any other of our Dominions

[14]

Bermuda is not the only territory whose citizenship rights were laid down in a Royal Charter. In regards to St. Helena, Lord Beaumont of Whitley in the House of Lords debate on the British Overseas Territories Bill on 10 July 2001,[15] stated:

Citizenship was granted irrevocably by Charles I. It was taken away by Parliament because of growing opposition to immigration at the time.