History of British Nationality Law - Early English and British Nationality Law

Early English and 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 (her) allegiance, and included those born in his (her) dominions (natural-born subjects) and those who later gave him (her) 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. Natural-born subjects were born within the dominion of the crown. 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 colonies and the self-governing Dominions, including Australia, New Zealand, South Africa, Canada and Newfoundland. Note that the "dominions" of the Crown include not only Dominions but also colonies.

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 (and after the Act of Union 1707, British) 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.

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.