British nationality law
The United Kingdom has arguably the world's most complex nationality laws, because of 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).
When the British Empire came into existence, there remained a single category of nationality: 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 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.
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 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 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, which is not a form of nationality as such, but a status conferred to citizens of states under British protection. 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 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.
Right of Abode
Thus there are at present six different types of British nationality: British Citizenship, British Dependent Territories Citizenship (now known as British Overseas Territories Citizenship), British Overseas Citizenship, British subject status, British Nationality (Overseas), and British Protected Person status.
Right of Abode, i.e. the right to enter and live in the UK freely, is only held by British citizens, and by those Commonwealth citizens who were patrials under the Immigration Act 1971.
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 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 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 victory over 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.
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 British citizenship to all those born of a British mother after 1961.
Acquisition of British Citizenship
British Citizenship can be acquired in the following ways:
- By lex solis: By birth in the United Kingdom (excluding family members of foreign diplomats or counsular staff)
- 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).
- By naturalisation
- 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 whose mother but not father had CUKC status and where born 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 one is a citizen by descent if one's mother has British citizenship, or if one's 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 children born from 1983 (now backdated to 1961), 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, while these people are not British nationals, if Commonwealth citizens they will have the right of abode in the United Kingdom.