History of British Nationality Law - Immigration Act 1971

Immigration Act 1971

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.)

The following people had the right of abode under the Act:

• 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 without being restricted by the immigration laws to how long he or she could stay.
• 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 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 who were expelled from Uganda by Idi Amin between 1968 and 1972. 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. 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.

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.