British Nationality Act 1981

The British Nationality Act 1981 (c.61) is an Act of the Parliament of the United Kingdom concerning British nationality since 1 January 1983.

History

In the mid-1970s the British Government decided to update the nationality code, which had been significantly amended since the British Nationality Act 1948 came into force on 1 January 1949. In 1977, a Green Paper was produced by the Labour government outlining options for reform of the nationality code. This was followed in 1980 by a White Paper by the Conservative government that closely followed the Labour proposals. William Whitelaw, the Home Secretary under Prime Minister Margaret Thatcher, was the chief author. The British Nationality Act 1981 received Royal Assent on 30 October 1981 and came into force on 1 January 1983. Both major parties were in agreement on the new law.[1]

Subsequently, the British Nationality Act has been significantly amended, including:

Objectives of the Act

The Act had a number of purposes.

Reclassification of United Kingdom and Colonies citizenship

The Act reclassified Citizenship of the United Kingdom and Colonies (CUKC) into three categories:

Since 1962, with the passage of the Commonwealth Immigrants Act 1962, not all CUKCs had the Right of Abode in the United Kingdom. The Act sought to restore once again the link between citizenship and right of abode by providing that British citizenship—held by those with a close connection with either the United Kingdom or with the Crown Dependencies (that is to say, the Isle of Man and the Channel Islands), or both—would automatically carry a right of abode in the UK. The other categories of British nationality would not hold such status based on nationality, although in some cases would do so under the immigration laws.

Whilst in opposition in 1977, the Conservative Party asked Edward Gardner to chair a study group to provide advice on changes to the nationality laws. The resultant Green paper, "Who Do We Think We Are?", was published in 1980 and its threefold definition of nationality formed the basis for the Government's legislation. Originally the paper proposed just two categories of British nationality, British citizenship and British Overseas citizenship. However, the British Dependent Territory governments successfully lobbied for an additional category of nationality, which would cater for those with close connections to any of the British territories.

Modification of jus soli

The Act also modified the application of jus soli in British nationality. Prior to the Act coming into force, any person born in the United Kingdom or a colony (with limited exceptions such as children of diplomats and enemy aliens) was entitled to CUKC status. After the Act came into force, it was necessary for at least one parent of a United Kingdom-born child to be a British citizen, a British Dependent Territories citizen or "settled" in the United Kingdom or a colony (a permanent resident).

Even following the coming into force of the Act, the vast majority of children born in the United Kingdom or colonies still acquire British nationality at birth. Special provisions are made for non-British UK born children to acquire British citizenship in certain circumstances.

Other changes

The Act made a variety of other changes to the law:

  • Mothers as well as fathers were allowed to pass on British citizenship to their children.
  • The term Commonwealth citizen was used to replace British subject. Under the Act, the term British subject was restricted to certain persons holding British nationality through connections with British India or the Republic of Ireland before 1949.
  • Right of Abode could no longer be acquired by non-British citizens. A limited number of Commonwealth citizens holding Right of Abode were allowed to retain it.
  • The rights of Commonwealth and Irish citizens to become British citizens by registration were removed and instead they were to be expected to apply for naturalisation if they wanted to acquire British citizenship. Irish citizens, however, who were, or claim British subject nationality retain their right to acquire British citizenship nationality through registration.[2]
  • Special provision was made for persons from Gibraltar to acquire British citizenship.
  • Women married to British men could no longer acquire British citizenship purely by marriage.
  • British Crown Colonies were renamed British Dependent Territories (subsequently amended to British Overseas Territories)
  • The Channel Islands and the Isle of Man, references to which had been construed as references to colonies under the British Nationality Act 1948,[3] were now to be construed as being part of the United Kingdom for nationality purposes.[4]

In some cases, transitional arrangements were made that preserved certain aspects of the old legislation. Most of these expired on 31 December 1987, five years after the Act came into force.

Criticisms

Critics argued that one of the main political motivations behind the new law was to deny most Hong Kong-born ethnic Chinese the right of residency in the United Kingdom in the time preceding the Sino-British Joint Declaration in 1984 and later the handover of Hong Kong (then the largest British colony), to the People's Republic of China in 1997. However, persons from Hong Kong had lost the automatic right to live in the United Kingdom in 1962, and the Act did not change the substance of that fact. See British nationality law and Hong Kong.

After the Falklands war, full British citizenship was granted to the Falkland Islanders by the British Nationality (Falkland Islands) Act 1983.

Other criticisms were levelled at the time at the removal of the automatic right to citizenship by birth in the United Kingdom. However, because UK-born children of permanent residents are automatically British, the number of non-British children born in the United Kingdom is relatively small. Special provisions made in the Act (for those who do not have another nationality and for those who lived a long time in the United Kingdom) meant there is little pressure for any change to the current law. Similar legislation has been enacted in Australia (1986), the Republic of Ireland (2004) and New Zealand (2005).

See also

References

  1. ^ Randall Hansen (2000). Citizenship and Immigration in Postwar Britain. Oxford UP. pp. 207–8.
  2. ^ Laurie Fransman, British Nationality Law (1997) p 238.
  3. ^ British Nationality Act 1948: "References in this Act to colonies shall be construed as including references to the Channel Islands and the Isle of Man"
  4. ^ British Nationality Act 1981, section 50(1): "In this Act, unless the context otherwise requires—" ... "“the United Kingdom” means Great Britain, Northern Ireland and the Islands, taken together"

External links

Belonger status

Belonger status is a legal classification normally associated with British Overseas Territories. It refers to people who have close ties to a specific territory, normally by birth or ancestry. The requirements for belonger status, and the rights that it confers, vary from territory to territory.

British Nationality (Falkland Islands) Act 1983

The British Nationality (Falkland Islands) Act 1983 (1983 c. 6) is an Act of Parliament passed by the Parliament of the United Kingdom on 28 March 1983. The purpose of the Act was to grant British citizenship to residents of the Falkland Islands, a British Overseas Territory in the South Atlantic.

Under the British Nationality Act 1981, a resident of the Falkland Islands was classed as a British Dependent Territories citizen unless they also had a connection with the United Kingdom (UK) itself (such as through having a UK-born parent or grandparent). British Dependent Territories citizens were restricted in their right to enter and stay in the UK. The new Act conferred full British citizenship on the residents of the Falkland Islands, giving them more preferential status than that of other BDTCs, including BDTCs of Gibraltar (whose British citizenship must be voluntarily applied for). The 1983 Act had retrospective effect from 1 January 1983, the date on which the 1981 Act had come into effect.

The 1983 Act was passed mainly in response to the Falklands War, which was fought between the United Kingdom and Argentina over the sovereignty of the islands. The United Kingdom maintained that it would stand by the principle of self-determination of allowing the Falkland Islanders to decide their own destiny. It had been argued that the British Nationality Act 1981 had indicated British reluctance to hold the islands, as the residents were not legally full British citizens, and after the war ended in victory for the British, the 1983 Act was passed to clarify the United Kingdom's commitment to the islands.

The Act has been largely superseded by the British Overseas Territories Act 2002, which granted full British citizenship to BDTCs of most remaining British overseas territories.

British Nationality (Hong Kong) Selection Scheme

The British Nationality (Hong Kong) Selection Scheme, usually known in Hong Kong as simply the British Nationality Selection Scheme (BNSS), was a process whereby the Governor of Hong Kong, by Order of Queen Elizabeth II of the United Kingdom in the British Privy Council, invited certain classes of people, who were permanent residents of Hong Kong with the right of abode, under the Hong Kong Immigration Ordinance, Chapter 115 (L.N. 62 of 1972; originally L.N. 55 of 1971), and who were also considered British nationals under Parts II, III and IV and Part V, Section 38, of the British Nationality Act 1981, Chapter 61, but were not British citizens (with the right of abode in the United Kingdom) under Part I, Sections 1 and 2, of the 1981 Act, to apply to be considered and then be selected to become registered as British citizens under the British Nationality (Hong Kong) Act 1990, Chapter 34, by the British Home Secretary, under the advice and the recommendation of the Governor with the consent of the British Foreign Secretary.

The scheme allowed at least 50,000 persons, and their spouses and children, to become British citizens by means of registration under the 1990 Act.

British nationals who were permanent residents of Hong Kong with the right of abode, who also met certain eligibility criteria, could apply to be selected to become registered as British citizens, under Section 1(1) of the 1990 Act, during two three-month periods:

1 December 1990 to 28 February 1991

3 January 1994 to 31 March 1994The Governor and the Government of Hong Kong retained the power to invite, accept, process and approve applications after 31 March 1994. However, no person could be registered by the British Home Secretary as a British citizen under that Section of the 1990 Act after 30 June 1997.

Spouses and children of those who were granted British citizenship under Section 1(1) could apply for registration under Section 1(4) of the Act. All applications from spouses and children for registration under S. 1(4) were required to be made on or before 31 December 1996.

British Nationality Act 1948

The British Nationality Act 1948 was an Act of the Parliament of the United Kingdom that created the status of "Citizen of the United Kingdom and Colonies" (CUKC) as the national citizenship of the United Kingdom and its colonies.

The Act, which came into effect on 1 January 1949, was passed in consequence of the 1947 Commonwealth conference on nationality and citizenship, which had agreed that each of the Commonwealth member states would legislate for its own citizenship, distinct from the shared status of "Commonwealth citizen" (formerly known as "British subject"). Similar legislation was also passed in most of the other Commonwealth countries.

The Act formed the basis of the United Kingdom's nationality law until the British Nationality Act 1981 came into force in 1983.

British Overseas Territories Act 2002

The British Overseas Territories Act 2002 (c.8) is an Act of the Parliament of the United Kingdom which superseded parts of the British Nationality Act 1981. It makes legal provision for the renaming of the British Dependent Territories as British Overseas Territories, and the renaming of associated citizenship.

As a result of the act, all who were British Overseas Territories citizens (apart from those solely connected with the Cyprus Sovereign Base Areas) immediately prior to 21 May 2002 automatically became full British citizens on that date (previously full British citizenship was either automatically accorded or granted without conditions on request only to people from Gibraltar and the Falkland Islands).

The law was enacted five years after the end of British sovereignty over Hong Kong, whose population had been vastly greater than all other British Dependent Territories put together.

The qualifying territories for the purposes of the 2002 Act include the British Indian Ocean Territory (BIOT) and the British Antarctic Territory. At the time, there was discussion as to whether either of these territories should be treated as qualifying territories for the purposes of the Act, when neither have a permanent population and in the case of the British Antarctic Territory there are competing territorial claims that are held in abeyance.

Although it is not normally possible under either territory's immigration laws to acquire British Overseas Territories citizenship (BOTC) by naturalisation in that territory, the former inhabitants of the BIOT still hold BOTC by virtue of their birth, or a parent's birth, in that territory.

Although it was possible for BOTCs to voluntarily acquire British citizenship under the previous provisions of British Nationality Act 1981 through section 4 registration by meeting UK residency and good character requirements prior to 2002, the enactment of the 2002 act means that every BOTC who was not already a British citizen on enactment day automatically acquired that status without satisfying residency and character requirements. This, effectively, means that BOTCs are in a unique position of simultaneously holding two forms of British nationality. The only exception to this are for those connected solely with the sovereign military bases in Cyprus, and those who acquired BOTC status voluntarily (i.e., through naturalization) after 21 May 2002.

This has allowed residents of British Overseas Territories to apply for and travel on a separate British passport describing them as a British citizen, to reside in the UK permanently without being subject to UK immigration control, to join the British armed forces and police forces, and to exercise rights under the Human Rights Act. Although not explicitly stated, the act also granted them EU citizenship through UK's membership in the European Union, which (until UK's withdrawal from the EU is finalized) means that BOTCs with British citizen passports are afforded all rights accorded to EU citizens in any EU country.

South Georgia and the South Sandwich Islands was included in the scope of the Act mainly due to its former association with the Falkland Islands. The 2002 Act is similar in scope to the British Nationality (Falkland Islands) Act 1983 and repealed some of that Act (without affecting the validity of any acquisition of British citizenship under that legislation).

Those naturalizing as British overseas territories citizens after 21 May 2002 may submit an application to be registered as British citizens under section 4A of the 1981 Act, subject only to good character requirements. However, the application must be made voluntarily. Hence, it is still theoretically possible for a person to hold only BOTC status but not British citizenship after 2002, if they had never filed such an application or their application is refused by the UK government.

While BOTCs of all the Overseas Territories (except the Sovereign Base Areas) are now either British citizens or eligible to acquire British citizenship (and therefore gain right of abode in the UK by virtue of being a British citizen), British citizens visiting Overseas Territories are still subject to local immigration controls and are, in most cases, given limited leave to remain by the territory's immigration officers.

British Overseas Territories citizen

The status of British Overseas Territories citizen (BOTC) relates to persons holding British nationality by virtue of a connection with a British Overseas Territory (BOT). Nearly all BOTCs are also British citizens as a result of the changes made to British nationality law in 2002.

British Overseas citizen

In British nationality law, the status of British Overseas citizen (BOC) is one of several categories of British national. A British Overseas citizen does not have an automatic right to live in the United Kingdom.

British national

British national, occasionally United Kingdom national, is a class of persons. The exact composition of the class differs in various United Kingdom Acts of Parliament, most commonly among:

British Citizen

British National (Overseas)

British Overseas Citizen

British Overseas Territories Citizen

British Protected Person

British Subject (as defined in the British Nationality Act 1981)In some other Acts, e.g. the Atomic Energy Act 1989, "United Kingdom national" does not include British subjects and British protected persons.

Except for British Protected Persons, all the above are also Commonwealth citizens. British Protected Persons, like Irish citizens, are in a unique category in that they are neither Commonwealth citizens (British subjects in the pre-1981 definition) nor aliens.

British nationality law

British nationality law is the law of the United Kingdom which concerns citizenship and other categories of British nationality. The law is complex due to the United Kingdom's historical status as an imperial power.

British nationality law and Hong Kong

British nationality law as it pertains to Hong Kong has been unusual ever since Hong Kong became a British colony in 1842. From its beginning as a sparsely populated trading port to today's cosmopolitan international financial centre and world city of over seven million people, the territory has attracted refugees, immigrants and expatriates alike searching for a new life.

Citizenship matters were complicated by the fact that British nationality law treated those born in Hong Kong as British subjects (although they did not enjoy full rights and citizenship), while the People's Republic of China did not recognise Hong Kongers with Chinese ancestry as British. The main legal rationale for the Chinese position was that recognising these people as British could be seen as tacit acceptance of a series of treaties which China considers "unequal" – including the ones which ceded the Hong Kong Island, the Kowloon Peninsula and the land between the Kowloon Peninsula and the Sham Chun River and neighbouring islands (i. e. the New Territories) to the UK. The main political reason was to prevent the vast majority of Hong Kong residents from having any recourse to British assistance (e.g. by claiming consular assistance or protection under an external treaty) after the handover of Hong Kong.

British nationality law and the Republic of Ireland

This article is about British nationality law in respect of citizens of Ireland. The latter is referred to in British nationality law as the "Republic of Ireland" and was previously referred to as "Eire" (sic) between 1937 and 1949 and as the Irish Free State between 1922 and 1937. (This article does not discuss Irish nationality law).

British passport (Gibraltar)

The Gibraltar passport is a British passport issued to British Citizens and British Overseas Territory Citizens who live in, or have a connection (for example by birth) with Gibraltar.

As a result of the British Nationality Act 1981, Gibraltarians were made British Overseas Territories citizens by default, but could apply for registration as a British Citizen ("an entitlement that cannot be refused") under section 5 of the Act. They are considered British citizens for EU purposes making them full citizens of the European Union with all consequential rights and entitlements. Under The British Overseas Territories Act (2002) all British Overseas Territories Citizens have the right to register as British Citizens.Gibraltarn passports are issued by the Passport Office of the Gibraltar Civil Status and Registration Office. Since 2005, passports issued in Gibraltar have been biometric.

Gibraltarians travelling within the European Union, EEA and Switzerland are entitled to use a Gibraltar identity card instead of a Gibraltar passport as a travel document.

British protected person

A British protected person (BPP) is a member of a class of certain persons under the British Nationality Act 1981 associated with former protected states, protectorates, mandated and trust territories under British control. The inhabitants of these former states or territories were never automatically entitled because of their birthplace to become British subjects or citizens, but were given the status of British protected person instead. (A few of those born in such areas might have claims to other classes of British nationality; for example, one based on the status of their parents.)

Although British protected persons are British nationals, they are subject to immigration control in the United Kingdom and BPP status is no longer associated with the right to live anywhere.British protected persons are not Commonwealth citizens in British nationality law; they do not have full civil rights in the United Kingdom. However, BPPs, like Commonwealth citizens and Irish citizens, are not considered aliens in the United Kingdom.

British subject

The term British subject has had a number of different legal meanings over time. Currently the term 'British subject' refers, in British nationality law, to a limited class of different people defined by Part IV of the British Nationality Act 1981. Under that Act, two groups of people became "British subjects"; the first were people from the Republic of Ireland born before 1949 who already claimed subject status, and the second covered a number of people who had previously been considered "British subjects without citizenship", and were not considered citizens of any other country. This second group were predominantly residents of colonies which had become independent, but who had not become citizens of the new country. The status cannot be inherited, and is lost on the acquisition of any other citizenship; it will therefore cease to exist on the death of the last remaining subjects.

Formerly 'British subject' was used to denote de facto citizenship of the United Kingdom and the British Empire, and until 1949 was used to refer generally to any person born or naturalised in the United Kingdom or the British Empire, including the independent dominions such as Canada and Australia (but not including protectorates, e.g., the Princely states, who had their own separate citizenship status). The term had a more complex interpretation between 1949 and 1983 and the move to independence of many of the colonies, with subject status existing alongside citizenship of an individual country or colony.

The term 'subject' is used rather than 'citizen' because in a monarchy the monarch is the source of authority in whose name all legal power in civil and military law is exercised. The people of a monarchy in former times were regarded as the monarch's subjects who were under certain obligations such as owing allegiance to, and thereby entitled to the protection of, the Crown.

Commonwealth citizen

In general, a Commonwealth citizen is a citizen of a member state of the Commonwealth of Nations. This designation is given legal effect in the nationality laws of some Commonwealth countries, and Commonwealth citizens may enjoy some privileges in the United Kingdom and, less commonly, other member states. Each Commonwealth country determines what special rights, if any, are accorded to citizens of other Commonwealth countries. The status is most significant in British law and has little effect in many other Commonwealth countries, such as Australia.

In British nationality law, a Commonwealth citizen is a person who is either a British citizen, Indian citizen, British Overseas citizen, British subject, British National (Overseas) or a national of a country listed in Schedule 3 of the British Nationality Act 1981 (see below). Under the law, British protected persons are not Commonwealth citizens. The list of countries in Schedule 3 at any time may not accurately reflect the countries actually within the Commonwealth at that time. For example, when Fiji left the Commonwealth in 1987 and 1990, its name was not removed from Schedule 3. This may have happened because the British Government at the time wished to avoid the consequences of Fijian citizens in the United Kingdom suddenly losing the benefits of Commonwealth citizenship.

In the United Kingdom, Commonwealth citizens (together with Irish citizens and British protected persons) are in law considered not to be "foreign" or "aliens", although British protected persons do not have all the civic rights that are enjoyed by Commonwealth and Irish citizens. This reasoning has not carried over to some other Commonwealth countries – for example, in the High Court of Australia case of Sue v Hill, other Commonwealth countries were held to be foreign powers, while in Nolan v Minister for Immigration and Ethnic Affairs, the nationals of other Commonwealth realms were held to be 'aliens'. In the United Kingdom, Commonwealth and Irish citizens enjoy the same civic rights as British citizens, namely:

the right to vote in all elections (i.e., parliamentary, local, referendum and European elections) as long as they have registered to vote (they must possess valid leave to enter/remain or not require such leave on the date of their electoral registration application).

the right, unless otherwise disqualified, to stand for election to the British House of Commons as long as they possess indefinite leave to remain or do not require leave under the Immigration Act 1971 to enter or remain in the UK.

the right, if a qualifying peer or bishop, to sit in the House of Lords.

eligibility to hold public office (e.g., as a judge, magistrate, minister, police constable, member of the armed forces, etc.).The disabilities of Commonwealth citizens who are not British citizens are few but, in the case of immigration control, very important. Commonwealth citizens (including British nationals who are not British citizens) who do not have the right of abode are subject to immigration control, including control on the right to work and carry out business. In addition, Commonwealth citizens who are not British citizens may not be engaged in certain sensitive occupations, e.g., in the Foreign and Commonwealth Office, in the intelligence services, and some positions within the armed forces.

Nevertheless, under the United Kingdom's immigration arrangements Commonwealth citizens enjoy certain advantages:

Commonwealth citizens born before 1 January 1983 may by virtue of having a parent born in the United Kingdom and Islands have the right of abode therein – such persons are exempt from all immigration control.

Commonwealth citizens with a grandparent born in the United Kingdom and Islands may be admitted for up to five years on this basis, and thereafter be granted indefinite leave to remain.

Commonwealth citizens between the ages of 18 and 30 were eligible to be admitted for a "working holiday" for up to two years. This has since been replaced with the more restrictive Youth Mobility Scheme (now open only to youth of Australia, Canada, Japan, New Zealand, and Monaco).

Commonwealth citizens, unlike other non-European Economic Area nationals, may not be required to register with the police while living in the United Kingdom.

Gibraltarians in the United Kingdom

Gibraltarians in the United Kingdom may be Gibraltarian-born immigrants to the United Kingdom or their British-born descendents. Gibraltar is a British overseas territory therefore it allows individuals born there the right of abode in the United Kingdom. They hold British Overseas Territory Citizenship but may apply for registration as a British citizen (an entitlement that cannot be refused) under section 5 of the British Nationality Act 1981 and are considered United Kingdom nationals for European Union purposes with all consequential rights and entitlements.

History of British nationality law

This article concerns the history of British nationality law.

Self-governing colony

In the British Empire, a self-governing colony was a colony with an elected government in which elected rulers were able to make most decisions without referring to the colonial power with nominal control of the colony. Most self-governing colonies had responsible government.

Self-governing colonies for the most part have no formal authority over constitutional matters such the monarchy and the constitutional relationship with Britain. The Judicial Committee of the Privy Council, in London, serves as the ultimate avenue of appeal in matters of law and justice.

Colonies have sometimes been referred to as "self-governing" in situations where the executive has been under the control of neither the imperial government nor a local legislature elected by universal suffrage, but by a local oligarchy state. In most cases such control has been exercised by an elite class from a settler community.

Special Immigration Appeals Commission

The Special Immigration Appeals Commission (also known by the acronym SIAC) is a superior court of record in the United Kingdom established by the Special Immigration Appeals Commission Act 1997 that deals with appeals from persons deported by the Home Secretary under various statutory powers, and usually related to matters of national security. SIAC also hears persons deprived of British citizenship under the British Nationality Act 1981 as amended by Section 4 of the Nationality, Immigration and Asylum Act 2002.An appellant is represented to the Commission by a special advocate who is a person vetted by the Security Service with controversy surrounding the use of secret evidence which only the judges and special advocates have access to.It previously had the power to certify a person as an international terrorist under Part 4 of the Anti-terrorism, Crime and Security Act 2001 until this was repealed by the Prevention of Terrorism Act 2005.

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