The Legal 500

British nationality law is more complex than the equivalent laws of many other countries. It recognises a variety of British nationalities, each conferring different rights. This is mainly due to the history of the British Empire, and the rights that citizens of its colonies and territories have acquired as a result of colonial expansion.

A brief history
Prior to the British Nationality and Status of Aliens Act 1914, the UK had no nationality law. The Act, which came into force on 1 January 1915, granted the common status of British subject upon those persons who had specified connections with the Crown's dominions. British subjects included not only persons within the UK, but also those in the British colonies and self-governing dominions (Australia, New Zealand, South Africa, Canada and Newfoundland). This status was held by people born within the Crown's dominions, or naturalised in the UK and by the first generation born elsewhere, but only through legitimate descent in the male line.

Prior to 1933, a British woman who married a non-British subject automatically lost her British subject status on marriage. From 1933 onwards, she lost it only if she acquired her husband's nationality. Conversely, an alien woman who married a British citizen automatically became a British citizen on marriage. The nationality of minor children was tied to their father or widowed mother, and they gained or lost British subject status accordingly.

British Nationality Act 1948
The Commonwealth heads of government decided to enact a major change in the law of nationality throughout the Commonwealth, as a result of Canada's decision to enact its own citizenship law in 1947. It was decided that the dominions would each adopt their separate citizenships, but retain the common status of British subject.

The Act provided a new status of 'Citizen of the UK and Colonies' (CUKC), which included all those British subjects who had a relationship with the UK and its remaining colonies through birth or descent. There was no longer any restriction on the holding of dual nationality, and adult aliens could acquire British subject/CUKC status by naturalisation, but Commonwealth citizens and minor children were eligible in certain circumstances to acquire it by registration.

It was originally envisaged that all British subjects would be awarded one or more of the national citizenships drawn up under the Act, but until they acquired such a citizenship they would remain British subjects without citizenship. These included persons connected with the Republic of Ireland and with the self-governing dominions that had not yet enacted their own citizenship laws.

Over the years, most of the remaining colonies acquired independence within the Commonwealth, resulting in their inhabitants ceasing to be CUKCs on independence day, unless they possessed specified connections with the UK or with a place which remained a colony.

 

Immigration Act 1971
During the 1960s, Britain was concerned about the possible effect of large-scale immigration to the UK from the former colonies. Prior to the Commonwealth Immigration Act 1963, all Commonwealth citizens could enter and stay in the UK freely. Further acts restricted the categories of people who could enter with no restrictions, but those CUKCs who still had passports issued by the British government, as opposed to colonial governments, retained rights of access to the UK.

The Immigration Act 1971 created the definitions of patriality or right of abode. CUKCs and other Commonwealth citizens only had the right of abode in the UK if they, their parents or grandparents were born in the UK and islands (the Channel Islands and Isle of Man). This created a situation whereby the UK was denying some of its nationals entry into their country of nationality. Consequently, a major reform of the law took place, resulting in the British Nationality Act 1981.

British Nationality Act 1981
The Act, which came into force on 1 January 1983, replaced citizenship of the UK and colonies with three separate citizenships:

A) British citizenship for persons who had the right of abode in the UK, ie could live in, leave and re-enter the UK freely under the Immigration Act 1971;

B) British Dependent Territories' Citizenship (BDTC) for those connected by birth or descent with a dependent territory; and

C) British Overseas Citizenship for those who did not belong to A or B.

Individuals who fall within A or B may be entitled to registration as full British citizens on completion of five years' residence in the UK. Women married to British citizens are no longer entitled to registration, but spouses of either sex can apply for naturalisation after three years' residence in the UK. Citizenship can be passed through either the male or the female line, except in the case of an illegitimate child, where it can only be acquired through the mother.

Since 1 January 1983, it has been possible to acquire British citizenship automatically:

• by birth to a parent who is either a British citizen or settled in the UK, under UK immigration law;
• by adoption in the UK by a British citizen parent;
• by birth outside the UK to a parent who is a British citizen 'otherwise than by descent'; and
• by birth outside the UK to a British citizen parent in Crown, Designated or European Community service.

Hong Kong (British Nationality) Order 1986
The handover of Hong Kong to the Chinese resulted in a further status: British National Overseas (BNO). Prior to the handover, most individuals had BDTC and would have become nationals of the People's Republic of China. However, many were unhappy about this, which resulted in the UK creating the new status that could be applied for by British Dependent Territories' citizens who had a connection to Hong Kong by registration. This was not an automatic process and many eligible people never applied to become BNOs.

Following the handover to China, there remained a group of BNOs in Hong Kong who were non-Chinese ethnic minorities. They were primarily of Indian and Pakistani descent and were not entitled to Chinese nationality. They had the ability to become BNOs, but did not have right of abode in the UK. They therefore had the right of abode in China, but were not entitled to the nationality of the country in which they lived. Conversely, they had British nationality, but did not have the right of abode in the UK.

British Nationality (Hong Kong) Act 1997
After much consultation, the UK government agreed to make it possible for the British ethnic minorities of Hong Kong to register for full British citizenship with the right of abode in the UK.

Home Office statistics state that 175 persons of non-Chinese ethnic origin were granted British citizenship in 2003. This brought the total of grants under the Act to 4,520 since 1997.

British Overseas Territories Act 2002
This Act made certain changes to the British Nationality Act 1981. Since 26 February 2002, the dependent territories have officially been known as 'British Overseas Territories' and British Dependent Territories' citizens have been known as 'British Overseas Territories' citizens' (BOTCs).

A further change took place on 21 May 2002. A BOTC (with the exception of those who gained their citizenship by virtue of a connection with the Sovereign Base Areas of Akrotiri and Dhekelia, within Cyprus) automatically became a British citizen on this date. BOTCs whose citizenship is only by connection with the Sovereign Base Areas of Cyprus, or who have previously ceased to be a British citizen, as a result of a declaration or renunciation, may apply to register as a British citizen at the discretion of the Home Secretary.

The British overseas territories are currently:

Anguilla
Bermuda
British Antarctic Territory
British Indian Ocean Territory
Cayman Islands
Falkland Islands
Gibraltar
Montserrat
Pitcairn, Henderson, Ducie and Oeno Islands
St Helena and Dependencies
South Georgia and the South Sandwich Islands
The Sovereign Base Areas of Akrotiri and Dhekelia
Turks and Caicos Islands
Virgin Islands

Nationality, immigration and Asylum Act 2002
Section 1 of this Act requires an individual to have 'sufficient knowledge' of life in the UK, ostensibly relating to language and society. The language test is not required for spouses of British citizens.

English language requirement
The new regulations came into force on 28 July 2004. They require applicants for naturalisation to possess sufficient knowledge of the English language and demonstrate that they meet this requirement. There is discretion to waive the requirement if it would be unreasonable to expect the applicant to fulfil it because of age, or physical or mental condition.

The requirement has been split into various sections:

• Applicants who already speak good English and have obtained an educational qualification that could only have been obtained by someone who speaks good English, eg a GCSE, A-Level or degree qualification from a UK educational institution or another English-speaking country. Qualifications obtained from a non-English-speaking country may also be accepted if it can be demonstrated that the course was instructed in English.
• Native English speakers who do not have a qualification, as described above, are required to produce a document from a person designated by the government to certify that their language skills are equivalent to the average native speaker of English. Designated persons include notaries, solicitors and a suitably trained English-language practitioner.
• Applicants who are learning English as a second language have to show the level they have reached in their learning. The acceptable standard is English Speakers of Other Languages at entry level 3.

Citizenship ceremonies
Under the Nationality, Immigration and Asylum Act 2002, successful applicants whose applications were lodged after 1 January 2004 and are aged 18 or older are expected to attend citizenship ceremonies.

The heart of the citizenship ceremony involves prospective citizens making an oath/affirmation to the Queen and a pledge of loyalty to the UK.

These ceremonies are held in the applicant's local community at a designated venue. Upon approval of their application, the applicant receives a letter from the Home Office inviting them to a citizenship ceremony. Here, applicants make an oath or affirmation to the Queen and a pledge of loyalty to the UK, upon which they receive their citizenship certificate.

Family members whose applications were decided by the Home Office at the same time will normally be able to attend a ceremony together. Children who are included within a family application will also receive a ceremony invitation. They do not have to attend, and should they choose not to their certificates will be given to their parents. A child who has applied for registration independently will not be invited to a citizenship ceremony and will receive their citizenship directly once the application has been approved.

Finally, the Act abolishes the distinctions between legitimate and illegitimate children - children born to a British father outside of marriage are now entitled to British nationality. Also, the Act enables British citizenship to be acquired by certain British nationals resident overseas who were living abroad during decolonisation (British Overseas Citizens, British Protected Persons and British subjects).

Acquisition of British Nationality
The latest available statistics on British citizenship are from the calendar year 2003.

• The number of applications increased by 21% in 2003 to 139,315, compared to 2002 when 115,500 applications were received. This was a much higher increase than in previous years. However, the number of successful applications rose by only 3%.
• 44% of applications were granted on the basis of residence, 30% following marriage to a British citizen and nearly 24% were minor children.
• Citizens of countries in Asia and Africa accounted for 40% and 32% respectively of total applications.
• 53% of all grants of British citizenship were to people aged between 25 and 44.
• 9,100 refusals were made, of which 47% were on the grounds of residence and 21% as a result of delays in replying to enquiries.

The Research, Development and Statistics of the Home Office and National Statistics have also carried out research into the 'take-up' rate of citizenship among eligible overseas nationals living in the UK.

• In 2002, 61% of overseas-born people who had been in the UK for six years or more were British citizens. This rate varied with region of birth and increased with time spent in the UK prior to obtaining citizenship.
• People born in developed countries, such as Australia, New Zealand, the US and EU states, were less likely to become British citizens than those born in developing countries in Africa, Asia and the Middle East.
• The longer a person remained in the UK the more likely they were to have gained British citizenship. 32% of people who had been in the UK for between six and ten years in 2002 were British, compared to 71% of those who had been in the UK for over 20 years.
• People born in the Irish Republic were unlikely to become British citizens - only 2% of those who had lived in the UK for between six and ten years and 24% of those who had lived in the UK for over 20 years were British citizens.

Dual nationality
In general, in UK law there is no restriction on a British national being a citizen of another country. An individual who acquires another nationality will not lose their British nationality, and, similarly, an applicant for British citizenship is not required to relinquish any other nationality to become British.

Many other countries do not allow their nationals to hold dual nationality and may either regard the applicant as having lost their nationality, or refuse to acknowledge the new nationality. This may not be a matter of concern for nationals from less-developed countries, but may be to nationals of more-developed countries. However, a number of these, such as Australia, the US and Canada, now permit dual citizenship.

Written by Julie Speed
E-mail: julie.speed@magrath.co.uk
Tel: 020 7495 3003

For more information please visit www.magrath.co.uk.