British Nationality Law - History

History

English law and Scots law have always distinguished between the Monarch's subjects and aliens. Until 1914 British nationality law was uncodified. The British Nationality and Status of Aliens Act 1914 codified existing common law and statute, with a few minor changes.

With the development of the modern British Commonwealth of Nations in the 20th century, some deemed the single Imperial status of British subject as increasingly inadequate to deal with the realities of a Commonwealth with independent member states. In 1948, the Commonwealth Heads of Government agreed that each member would adopt a national citizenship, but that the existing status of the British subject would continue as a common status held by all Commonwealth citizens.

The British Nationality Act 1948 established the status of Citizen of the United Kingdom and Colonies (CUKC), the national citizenship of the United Kingdom and those places that were still British colonies on 1 January 1949, when the 1948 Act came into force. However, until the early 1960s there was little difference, if any, in United Kingdom law between the rights of CUKCs and other British subjects, all of whom had the right at any time to enter and live in the United Kingdom.

Independence Acts passed when the various remaining colonies were granted independence also contained nationality provisions. In general, these provisions withdrew the status of CUKC from anyone who became citizens of the newly independent country, unless one had a connection with the UK or a remaining colony (e.g. through birth in the UK). Exceptions were sometimes made in cases where the colonies did not become independent. (Notable cases include Penang and Malacca, which were made part of the Federation of Malaya; and Hong Kong, which became part of the People's Republic of China. CUKC status was not withdrawn from CUKCs from Penang and Malacca, and a new British nationality status was created for Hong Kong.)

Between 1962 and 1971, as a result of fears about increasing immigration by Commonwealth citizens from Asia and Africa, the United Kingdom gradually tightened controls on immigration by British subjects from other parts of the Commonwealth. The Immigration Act 1971 introduced the concept of patriality, by which only British subjects with sufficiently strong links to the British Islands (i.e. the United Kingdom, the Channel Islands and the Isle of Man) had right of abode, the right to live and work in the United Kingdom and Islands.

Although there have been several amendments to the 1971 Act in the intervening years, the principal British nationality law today is the British Nationality Act 1981, which established the current system of multiple categories of British nationality, viz. British citizens, British Overseas Territories citizens, British Overseas citizens, British Nationals (Overseas), British subjects and British protected persons. Only British citizenship and certain commonwealth citizens have the automatic right of abode in the United Kingdom.

The 1981 Act also ceased to recognise Commonwealth citizens as British subjects. There remain only two categories of people who are still British subjects: some people (formerly known as British subjects without citizenship) who originally acquired British nationality through a connection with former British India, and also a number of people connected with the Republic of Ireland before 1949 who have made a declaration to retain British nationality. Those British subjects connected with former British India lose British nationality if they acquire any other.

In spite of the fact that BNA 1981 repealed most of the provisions of BNA 1948 and the nationality clauses in subsequent independence acts, the acquisition of new categories of British nationality created by BNA 1981 was often dependent on one's nationality status prior to 1 Jan 1983, the date BNA 1981 came into effect. This therefore means that many of the original provisions of BNA 1948 and subsequent independence acts are still relevant today. Not taking into account of this subtlety might lead one to the erroneous conclusion, for example, that BNA 1981's repeal of the nationality clauses in the Kenya Independence Act of 1963 restored British nationality to those who lost their CUKC status as a result of Kenya's independence in 1963. This is one of the reasons for the complexity of British nationality law; in complicated cases, determining one's British nationality status or lack thereof requires an examination of several nationality acts in their original form.