History of British nationality law

British nationality law has its origins in medieval England. There has 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 or denizens).

A summary of early English common law is provided by Sir William Blackstone, who wrote about the law in 1765–69.[1] Natural-born subjects were originally those born within the dominion of the crown (jus soli). Blackstone describes how various statutes extended the rights of the children of subjects born abroad, until "all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain."

In 1603 the crowns of England and Scotland were united in the individual of James VI and I, in what is known as the Union of the Crowns. In 1701, following some disagreement about the rules of succession to the crown, the English parliament passed the Alien Act 1705, providing that Scottish nationals would have alien status in the realm of England. However, this was superseded by the Act of Union 1707, which united the realms of England and Scotland.

When the British Empire came into existence, the dominion of the crown expanded. British subjects included not only persons within the United Kingdom but also those throughout the British Empire (the British Dominion). This included both the more dependent Colonies such as Jamaica, Hong Kong and Fiji, as well as the self-governing Dominions, including the Australian colonies, New Zealand, South Africa, Canada and Newfoundland.

Individuals born in the dominion were citizens regardless of the status of their parents: children born to visitors or foreigners acquired citizenship (see Jus soli). This reflects the rationale of natural-born citizenship: that citizenship was acquired because British-born subjects would have a 'natural allegiance' to the Crown as a 'debt of gratitude' to the Crown for protecting them through infancy. Therefore, citizenship by birth was perpetual and could not be, at common law, removed or revoked regardless of residency.

By the same reasoning, an 'alien', or foreign born resident, was seen as unable to revoke their relationship with their place of birth. Therefore, at English common law foreign-born individuals could not become citizens through any procedure or ceremony. Some exceptions to this general principle existed in the common law, to recognise the situation of children born on foreign soil to English (or British after the Act of Union 1707) subjects. The earliest exception was the children of the King's ambassadors, who acquired English citizenship even if not born in England. A later, broader, exception was enacted by the Status of Children Born Abroad Act 1350 (25 Edw. 3. Stat. 1) to allow children born abroad to two English parents to be English. Later, the British Nationality Act 1772 (13 Geo. 3. c. 21), made general provision allowing natural-born allegiance (citizenship) to be assumed if the father alone were British.

Generally then, there was no process by which a 'foreigner' not of British parents could become a British citizen. However, two procedures existed by which the individual could become a British subject with some of the rights of citizenship. Firstly, 'naturalisation' granted all the legal rights of citizenship except political rights (e.g. holding office). Naturalisation required an act of parliament be passed. Alternatively, denization allowed a person to gain the rights of citizenship other than political rights. Denization was granted by letters patent, and was granted by the monarch as an exercise of royal prerogative.

Denization was therefore an exercise of executive power, whereas naturalisation was an exercise of legislative power. An example of the latter is the granting of English nationality to the Electress Sophia of Hanover, the heir to the throne under the Act of Settlement 1701. Naturalisation occurred by the passing, in 1705, of the Sophia Naturalization Act. This act granted English nationality to the Electress and to the Protestant "issue of her body", allowing all her future descendants a claim to English nationality. In 1957 Prince Ernest Augustus of Hanover successfully claimed citizenship of the UK & Colonies under this Act. Although the Act was repealed from 1 January 1949 by the British Nationality Act 1948, some descendants can still claim citizenship based on their parent's rights under the law as it existed prior to 1949. However, the Home Office believes that the Act does not generally give claimants a right of abode in the United Kingdom. Successful claims will normally be granted to only British Overseas Citizen status unless entitled to a right of abode in the UK under the Immigration Act 1971 as in force prior to 1983.[2]

Naturalization Act 1870
Act of Parliament
Parliament of the United Kingdom
Long title	An Act to amend the Law relating to the legal condition of Aliens and British Subjects.
Citation	33 & 34 Vict. c. 14
Dates
Royal assent	12 May 1870
Other legislation
Repeals/revokes	Naturalisation and Restoration of Blood Act 1609 Aliens Act 1698 Naturalization Act 1739 Aliens Act 1746 Naturalization Act 1772 Naturalization Act 1774 Natural-born Children of Aliens Act 1776 Naturalization and Restoration of Blood Act 1825 Aliens Act 1844
Text of statute as originally enacted

Denization remained the usual form by which foreign-born subjects swore allegiance to the crown until general naturalisation acts were passed. Naturalisation Acts were passed in 1844, 1847 and 1870. The 1870 act preserved the process of denization. However, by introducing administrative procedures for naturalising non-British subjects naturalisation became the preferred process.

The 1870 legislation also introduced the concept of renunciation of British nationality, and provided for the first time that British women who married foreign men should lose their British nationality. This was a radical break from the common law doctrine that citizenship could not be removed, renounced, or revoked.

The loss of nationality at marriage was 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 and Status of Aliens Act 1914

Act of Parliament
Parliament of the United Kingdom
Long title	An Act to consolidate and amend the Enactments relating to British Nationality and the Status of Aliens.
Citation	4 & 5 Geo. 5. c. 17
Dates
Royal assent	7 August 1914
Commencement	1 January 1915
Other legislation
Repeals/revokes	Foreign Protestants (Naturalization) Act 1708 British Nationality Act 1730 British Nationality Act 1772 Naturalization Act Act 1870 Naturalization Oath Act 1870 Naturalization Act 1895
Amended by	British Nationality Act 1948 Statute Law Revision Act 1927
Status: Partially repealed
Text of statute as originally enacted
Text of the Status of Aliens Act 1914 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

This legislation came into force on 1 January 1915 as 4 & 5 Geo. 5. c. 17.[3] British subject status was acquired as follows:

• birth within His Majesty's dominions
• naturalisation in the United Kingdom or a part of His Majesty's dominions which had adopted Imperial naturalisation criteria
• descent through the legitimate male line (child born outside His Majesty's dominions to a British subject father). This was limited to one generation although further legislation in 1922 allowed subsequent generations born overseas to be registered as British subjects within one year of birth.
• foreign women who married British subject men
• former British subjects who had lost British subject status on marriage or through a parent's loss of status could resume it in specific circumstances (e.g. if a woman became widowed, or children immediately upon turning 21).

British subject status was normally lost by:

• naturalisation in a foreign state
• in the case of a woman, upon marriage to a foreign man. Prior to 1933, British subject status was lost even if the woman did not acquire her husband's nationality.
• a child of a father who lost British subject status, provided the child also had the father's new nationality.
• renunciation.

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, with the exception of the Irish Free State (see Irish nationality law), had a single nationality status: British subject status. It was decided at that conference that the United Kingdom and the self-governing dominions would each adopt separate national citizenships, but retain the common status of British subject.

The British Nationality Act 1948 marked the first time that married British women gained independent nationality, regardless of the citizenship of their spouses.[4] It 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 Act also provided that British subjects could be known by the alternative title 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, and that the remainder would be absorbed as CUKCs by the British Government. Until they acquired one or other of the national citizenships, these people continued to be British subjects without citizenship. However, some British subjects never became citizens of any Commonwealth country.

Because the nationality laws of India and Pakistan did not provide for citizenship for everyone who was born in their countries , the British Government refused to "declare" their nationality laws for the purposes of the Act, and therefore those British subjects from these countries who did not become Indian or Pakistani citizens were never absorbed as CUKCs by the British Government. They remained British subjects without citizenship.

Due to the imminent withdrawal of the Republic of Ireland from the Commonwealth (which took effect 18 April 1949), special arrangements were made in s.2 of the Act to allow British subjects from Ireland to apply to continue to hold British subject status independently of the citizenship of any Commonwealth country.

Until 1983 the status of British subjects without citizenship was not affected by the acquisition of the citizenship of a non-Commonwealth country.

The Ireland Act 1949 clarified the citizenship status of the British subjects and citizens and former subjects on the Republic of Ireland, and the application of the British Nationality Act 1948 to people born there.[11]

In addition, under section 5 of the act, a person who was born in the territory of the future Republic of Ireland as a British subject, but who did not receive Irish citizenship under the Ireland Act's interpretation of either the 1922 Irish constitution or the 1935 Irish Nationality and Citizenship Act (because he or she was no longer domiciled in the Republic on the day the constitution came into force and was not permanently resident there on the day of the 1935 law's enactment and was not otherwise registered as an Irish citizen) was deemed to be a Citizen of the United Kingdom and Colonies.[11][12]

As such, the act has important implications for many of those emigrants who left Ireland before 1922 and some of their descendants in the Irish diaspora, some of whom may both be registrable for Irish citizenship and have a claim to British citizenship,[13] through either automatic citizenship or citizenship by registration. In some cases, their descendants may have a claim to British citizenship when the right to Irish citizenship has been lost because of the failure of previous generations to register births at the local Irish consulate.[13]

Many colonies became independent between 1949 and 1983. Under the independence legislation passed in the United Kingdom, a person connected with a particular colony generally lost CUKC on a specified date (which was normally that particular colony's date of attaining independence) if:

• they had acquired, or would acquire, citizenship of that country upon or after independence; and
• they did not have specified bloodline connections to the UK itself or a place which remained a colony (e.g., having a parent or a grandparent born in the UK or a place that remained a colony)

Therefore, it was possible for CUKCs to lose the status even if they had migrated to the UK and acquired the right of abode. Only through naturalisation or registration could they regain CUKC (and the right of abode in some cases).

Specific exceptions to the loss of CUKC on independence included:[14]

• persons from the Malayan states of Penang and Malacca who, because of the wording of Federation of Malaya Independence Act 1957, did not lose CUKC at independence on 31 August 1957, as the law only provided for "the Malay States" for nationality purposes, whereas Penang and Malacca, at the time, were parts of the Straits Settlement.[15] These persons, together with those born between 31 August 1957 and 31 December 1982 with a CUKC father, form the largest group of British Overseas citizens today. Most also hold Malaysian citizenship.
• CUKCs connected with South Yemen normally lost their CUKC status on 14 August 1968. However, those ordinarily residing in the UK, a colony or another protectorate on or before that date were exempted from the loss.
• CUKCs from Cyprus retained CUKC if habitually resident elsewhere in the Commonwealth (except Cyprus) immediately before 16 August 1960. These people would become British Overseas Citizens after 1983 if they did not acquire the right of abode.
• In 1981 the Independence Acts dealing with Belize and Antigua/Barbuda exempted persons who had acquired a Right of abode in the UK from loss of CUKC. Such persons would have become British citizens in 1983 due to their Right of abode status.

The only British dependent territory that gained independence after 1982 is Saint Kitts and Nevis, which became an independent Commonwealth country on 19 September 1983. British Dependent Territories citizenship was withdrawn unless there was a connection with a remaining dependent territory. Those that had acquired British citizenship before independence and became also Saint Kitts and Nevis citizens upon independence, however, would no longer lose their British citizenship.[16]

In some cases (Singapore and the Federation of Malaya), citizenship statuses were created before independence was achieved. This resulted in unusual endorsements like "British subject: citizen of the State of Singapore" in British passports.[17] Indeed, treaties signed by the United Kingdom around this time[18][19] reveal the existence of at least the following citizenship statuses:

• British Subject
• British Subject, Citizen of the United Kingdom and Colonies
• British Subject, Citizen of the United Kingdom, Islands and Colonies
• British Subject, Citizen of the United Kingdom, Associated States and Colonies
• British Subject, Citizen of the State of Singapore
• British Subject, Citizen of the Federation of Rhodesia and Nyasaland

British Nationality Acts were passed in 1958, 1964 (twice) and 1965:

• The British Nationality Act 1958 legislation dealt with Rhodesia, Ghana independence and reinstating temporarily some lapsed transitional registration entitlements
• The British Nationality Act 1964 provided for resumption of CUKC where it was renounced to obtain another Commonwealth citizenship. It was no longer possible for a renunciation of CUKC to take effect if the person did not have another nationality.
• The British Nationality (No 2) Act 1964 provided for British mothers to transmit CUKC status in cases of statelessness of an overseas born child. It also repealed section 20(4) of the 1948 legislation which allowed naturalised CUKCs resident for more than seven years outside the UK & Colonies to be deprived of CUKC in certain circumstances.
• The British Nationality Act 1965 made provision for women married to British subjects without citizenship to acquire British subject status by registration

Until the Commonwealth Immigrants Act 1962, all Commonwealth citizens could enter and stay in the United Kingdom without any restriction. The Commonwealth Immigrants Act 1962 made Citizens of the United Kingdom and Colonies (CUKCs) whose passports were not directly issued by the United Kingdom Government (i.e. passports issued by the Governor of a colony or by the Commander of a British protectorate) subject to immigration control. Those with passports issued at a British High Commission in an independent Commonwealth country or British Consulate remained free from immigration control.

The 1962 Act also increased the residence period for Commonwealth citizens (plus British subjects and Irish citizens) applying for registration as Citizens of the UK and Colonies from one year to five years.

The Commonwealth Immigrants Act 1968 sharpened the distinction between citizens of the United Kingdom and Colonies (CUKCs) who had close ties with the United Kingdom and were free to enter, and those citizens who had no such ties and were therefore subject to immigration control. Particularly in the newly independent Commonwealth countries of East Africa, the result was that there were now citizens of the United Kingdom and Colonies who had no right of residence anywhere.

The Immigration Act 1971 developed this distinction by creating the concept of patriality or right of abode. CUKCs and other Commonwealth citizens had the right of abode in the UK only if they, their husband (if female), 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 recognised in international law.)

Prior to 1983. the following people had the right of abode under the Act:[20]

• 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 (all conditions of stay must have been removed prior to the end of the 5-year period).
• 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 Act did not specifically mention the status of former CUKCs who were holding right of abode in the UK and who lost their CUKC status solely because their own country's independence, although it was implied that if the person had no claim to right of abode as a Commonwealth citizen, then these persons would no longer have right of abode unless they have reacquired their CUKC status.

The following people did not have the right of abode simply by virtue of registration as a CUKC (but could hold it through United Kingdom descent or residence, or if a woman, marriage to a man with 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 reason for these limitations is that under the 1948 Act, High Commissioners in independent Commonwealth nations had the right to register persons as CUKC. This was treated for the purpose of the 1971 Act as "registration in the United Kingdom" and hence without the special limitations on Right of Abode, that status would have been held by some CUKCs with no other qualifying ties to the United Kingdom.

The most notable group over whom control was sought were the Ugandan Indians[21] who were expelled from Uganda by Idi Amin in 1972.[22] 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 such as the Falkland Islands or Solomon Islands.[23] Lord Lester of Herne Hill, QC, has written a detailed paper, "East African Asians versus The United Kingdom: The Inside Story", setting out the difficulties faced by the group.[24][25]

However, the concept of patriality was recognised as only a temporary solution, so the British government embarked on a major reform of the law, resulting in the British Nationality Act 1981.

The 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 former 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 former CUKCs with a close relationship with one of the remaining colonies, renamed Overseas Territories; while BOCs are those former CUKCs who did not qualify for either British citizenship or British Dependent Territories citizenship.

The law distinguishes between British citizen or British Overseas Territories citizen by descent and those who hold those statuses otherwise than by descent. Citizens by descent cannot automatically pass on British nationality to a child born outside the United Kingdom or its Overseas Territories (though in some situations the child can be registered as a citizen).

British Overseas citizens cannot generally pass on British Overseas citizenship, except in limited cases to avoid statelessness or other hardship.

It is possible to hold more than one of these citizenships simultaneously. In fact, since the British Overseas Territories Act 2002 granted British citizenship to all the Overseas Territories (except the Cyprus Sovereign Base Areas), most British overseas territories citizens also hold British citizenship. Additionally, a British Overseas citizen who acquires British citizenship will not lose British Overseas citizenship, although there is generally no added benefit from retaining this status.

Those Commonwealth citizens and British subject already entitled to Right of Abode under the Immigration Act 1971 retained this status provided they did not cease to be Commonwealth citizens or British subjects after 1983. However, countries that joined the Commonwealth after 1 January 1983 are exempt from this scheme. These are South Africa, Pakistan, Namibia, Cameroon and Mozambique. Those who come to the UK under this scheme may claim state benefits if they can show that they intend to make the UK their permanent home. Commonwealth citizens who have the right of abode need to apply for a certificate of entitlement if they want to enter the UK. The certificate is a sticker which is placed inside a non-British passport. After five years living in the UK, a person who has moved to the UK under the Right of Abode can apply to naturalise as British citizen and obtain a British passport.

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 extends British citizenship to all British Overseas Territories Citizens the right to register as British Citizens, and thus acquire the right of abode, except those whose connection is solely with the military outposts known as the Sovereign Base Areas in Cyprus.

A distinction of terminology is made between British Overseas Territories Citizens born before 1 January 1983, introduction of British Dependent Territories, Citizenship, who would previously have been Citizens of the United Kingdom and Colonies, and those born after, and therefore who had not ever held right to freely enter and remain in the UK before 2002 (unless they also separately qualified as British Citizens or had "right to remain" stamped into their passports, to which they were entitled after five years legal residence in the UK).

• Those persons who held British Overseas Territories citizenship (BOTC) 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, or had the right to register as British.
• Persons who acquire BOTC after 21 May 2002 and do not already have British citizenship (mainly those naturalised as BOTCs after that date) may register as British citizens if they wish under s4A of the 1981 Act.

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.

This Act created a number of changes to the law including:

The Immigration, Asylum and Nationality Act 2006 made a number of changes to the law including:

• allowing the Secretary of State to deprive a British national of his or her nationality on the basis of it being "conducive to the public good". This is a less stringent test than the requirement of the 2002 Act and came into force on 16 June 2006.
• allowing Right of Abode to be revoked on the same basis
• introducing a good character requirements for all acquisitions of British citizenship, with the exception of section 4B registration, registration on the grounds of statelessness and cases where the applicant is under 10 years old. This came into force on 4 December 2006.

• Citizen Information Project
• British nationality law and the Republic of Ireland
• British subject
• British nationality law
• Immigration to the United Kingdom
• Life in the United Kingdom test
• Multiple citizenship

• Emily Lau’s letter to former Foreign Secretary Robin Cook (1999), in which she urged the UK to include Hong Kong in its offer to extend British citizenship to colonial citizens
• Home Office Nationality Instructions (British nationality policy and background notes)
• British Nationality Acts: 1981, 1965, 1964, 1958, 1948, 1772, 1730
• report with an appendix summarizing the history of British nationality law
• Statistics on persons granted British citizenship since 1984 are available on the Home Office website (in pdf format): e.g. 1984