History of British nationality law

History of United Kingdom citizenship and related concepts
This article concerns the history of British nationality law.

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. 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.

Citizens of Commonwealth countries, British subjects and Irish citizens were entitled to register as citizens of the UK and Colonies after one year's residence in the UK & Colonies. This period was increased to five years in 1973. Other persons were required to apply for naturalisation after five years residence.

Prior to 1983, as a general rule, British nationality could be transmitted from only the father, and parents were required to be married. Children born in Commonwealth countries or the Republic of Ireland could not normally access British nationality if the father was British by descent. Those born in non Commonwealth countries of second and subsequent generations born overseas could be registered as British within 12 months of birth. However, many such children did not acquire a Right of Abode in the UK before 1983 and hence became British Overseas citizens in 1983 rather than British citizens. In the face of various concerns over gender equality, human rights, and treaty obligations, Parliament moved to act on these situations. on the section's approach, while also covering numerous additional and less common situations, and adding a good character requirement. Registration through this method is performed with Form UKM. After approval, the registrant must attend a citizenship ceremony. Since 2010, there is no longer an application fee (of £540). Applicants do however still have to pay £80 for the citizenship ceremony. From 6 April 2015, a child born out of wedlock before 1 July 2006 to a British father is entitled to register as a British citizen by descent under the Immigration Act 2014 using form UKF. Such child must also meet character requirements, pay relevant processing fees and attend a citizenship ceremony. However, if the applicant has a claim to register as a British citizen under other clauses of the British Nationality Act 1981, or has already acquired British citizenship after being legitimised, the application will be refused. Those with permanent resident status in the UK, or entitled to Right of Abode, may instead prefer to seek naturalisation as a British citizen which gives transmissible British citizenship otherwise than by descent.

A person who was a British Subject on 31 December 1948, of United Kingdom & Colonies descent in the male line, and was resident in the UK & Colonies (or intending to be so resident) was entitled to acquire CUKC by declaration under s12(6) of the Act. The deadline for this was originally 31 December 1949, but was extended to 31 December 1962 by the British Nationality Act 1958.

Women married to CUKCs had the right to register as CUKCs under section 6(2) of the 1948 Act.

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 1981 Act retained the category of British subject without citizenship as British subject. British subjects are mainly people from the Indian sub continent and Ireland. 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 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 Asia 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.

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 solely Chinese nationals. 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).

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.

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. Despite strong resistance from Senior Officials at the Home Office, the then Home Secretary, David Blunkett, said on 3 July 2002 that this would "right a historic wrong" 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. Sanjay Shah, a British Overseas citizen passport holder, spent 13 months living in the duty free section of Nairobi's Jomo Kenyatta International Airport, petitioning for full British citizenship. This was granted on the grounds that he had already given up his former Kenyan citizenship.

Under amendments made by the Act, 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 applied to only dual nationals —it is not applicable if deprivation would result in a person's statelessness. Prior to this law, British nationals who acquired that status by birth or descent (as opposed to registration or naturalisation) could not be deprived of British nationality.

With effect from 1 July 2006, children may acquire British citizenship automatically from an unmarried British father (or a British permanent resident if the child is born in the United Kingdom). Proof of paternity must be shown. Children born to unmarried British fathers before 1 July 2006 are not included in this provision. However they can be registered as British citizens upon application to the Home Office (if not British some other way), provided the child is aged under 18 and would have been British had the father been married to the mother. However, the agreement of the mother is needed. If the mother refuses then policy is for the home office to enquire of her reasons for refusal. If her reasons are deemed unreasonable registration may still be granted. Also, the minor can apply in their own right on reaching the age of 17. As of 6 April 2015, a person over 18 years of age who was born out of wedlock before 1 July 2006 to a British father is entitled to register as a British citizen by descent under the Immigration Act 2014 using form UKF. Such child must also meet character requirements, pay relevant processing fees and attend a citizenship ceremony. However, if the applicant has a claim to register as a British citizen under other clauses of the British Nationality Act 1981, or has already acquired British citizenship after being legitimised, the application will be refused.