British Nationality and Right of Abode 7 CHAPTER 2 British Nationality and Right of Abode 2.1 Introduction 7 2.2 British citizenship 7 2.3 Commonwealth citizens with right of abode 15 2.4 Historical background 16 2.5 Summary of British Citizenship 18 2.1 INTRODUCTION The law relating to nationality or citizenship forms the background to immigration law because a person s right to live in the country of his choice often depends on his nationality. This is true in UK law, in that a British citizen has a right to live in the UK. There are two categories of people who have a statutory right of abode in the UK : all British citizens (see 2.2) and certain Commonwealth citizens (see 2.3). A person with the right of abode can freely enter the UK (ie he is not subject to immigration controls (see 1.4 and Chapter 3)). Moreover, he cannot be excluded from the UK (ie he cannot be removed or deported (see Chapter 10)). Nationals of the EEA do not have the right of abode, although they currently have a right of entry to and residence in the UK under EU law (see Chapter 4). 2.2 BRITISH CITIZENSHIP British nationality law has changed considerably over the last century. For an historical analysis, see 2.4. The BNA 1981 was implemented on 1 January 1983, thereby creating the nationality of British citizenship. The starting points for determining whether a person is a British citizen or not is to ask two questions: was he born before 1983 or after 1982; and was he born in the UK or elsewhere? There is a summary of the key requirements at Appendix 6. 2.2.1 People born in the UK before 1983 A person is a British citizen if, before 1983 (ie, up to and including 31 December 1982), he was born in the UK. 2.2.2 People born outside the UK before 1983 A person is a British citizen if, before 1983, he was born outside the UK and: (c) his father was born in the UK; or his father was registered or naturalised (see 2.2.6.1 and 2.2.7) as a British citizen in the UK before the child s birth (if a father becomes British after the child s birth, this does not retrospectively make the child British); and his parents were married, or subsequently marry in a country where that marriage operates to legitimise the child.
8 Immigration Law So, before 1983, a father could pass on his British citizenship acquired in the UK only to his legitimate child. An illegitimate child could not inherit British citizenship through his father. EAMPLES 1. Joshua was born in 1962 in the UK. He is therefore a British citizen (see 2.2.1). In 1980 he married Grace (who is not a British citizen). In 1981 their daughter, Sophie, was born outside the UK. Sophie is a British citizen as her father was born in the UK and married to her mother at the time of Sophie s birth. 2. Harry was born in 1961 in the UK. He is therefore a British citizen (see 2.2.1). In 1979 he started a relationship with Lynda (who is not a British citizen). In 1981 their son, Michael, was born outside the UK. In 1982 Harry and Lynda married in a country where their marriage operated to legitimise Michael who thereby became a British citizen. 3. James was born in 1960 in the UK. He is therefore a British citizen (see 2.2.1). In 1978 he started a relationship with Lilly (who is not a British citizen). In 1981 their daughter, Katie, was born outside the UK. James and Lilly never marry. Katie is not a British citizen on these facts. Before 1983, a mother could not pass on her British citizenship acquired by her birth, registration or naturalisation in the UK to any child born outside the UK. However, in those circumstances, the Home Office allowed for the child to be registered as British, and this is now possible pursuant to BNA 1981, s 4C (see 2.2.6). EAMPLE Ruby was born in 1959 in the UK. She is therefore a British citizen (see 2.2.1). In 1980 she married Gary (who is not a British citizen). In 1982 their son, Simon, was born outside the UK. Although Ruby is a British citizen at the time of her son s birth, she cannot pass that citizenship on to him. However, she could have applied to register him as a British citizen whilst he was a child, or he may do so as an adult: see 2.2.6. 2.2.3 People born in the UK after 1982 A person is a British citizen if, after 1982 (ie, from and including 1 January 1983), he was born in the UK and at the time of his birth either of his parents was: a British citizen; or settled in the UK. (As to settled status, see 1.4.5 and 3.8. Note that for these purposes a Commonwealth citizen with the right of abode (see 2.3) is treated as settled.) Note that until the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) came into force on 1 July 2006, a parent in this context did not include a father of a child who was not married to the child s mother. However, the BNA 1981, as amended by the NIAA 2002, provides at s 50(9A) that from 1 July 2006 a child s father is: (c) the husband, at the time of the child s birth, of the woman who gives birth to the child (and remember that if the parents subsequently marry that may operate to legitimise the child); or where a person is treated as the father of the child under s 28 of the Human Fertilisation and Embryology Act 1990, that person; or where neither paragraph nor applies, any person who is proven to be the natural father by the production of such evidence (eg a birth certificate, DNA test report or court order) as may satisfy the Secretary of State on this point. This means that subject to satisfying (c) above, an illegitimate person born in the UK on or after 1 July 2006 is a British citizen if his father was either a British citizen or settled at that
British Nationality and Right of Abode 9 time. What if an illegitimate person can meet these requirements but he was born in the UK before July 2006? In these circumstances the person may apply to register as a British citizen under s 4G of the BNA 1981 (when he will have to satisfy the Secretary of State that he is of good character). EAMPLES 1. Evie was born in 1965 in the UK. She is therefore a British citizen (see 2.2.1). In 1990 she gave birth to her daughter, Charlotte, in the UK. Charlotte is a British citizen as her mother was a British citizen at the time of Charlotte s birth. 2. Chloe was born outside the UK in 1967 as a visa national. In 1970 she entered the UK with her family for the purposes of settlement. She had indefinite leave to remain in the UK when she gave birth to her son, Lewis, in 1987 in the UK. Lewis is a British citizen as his mother was settled in the UK at the time of his birth. 3. John was born in 1970 in the UK. He is therefore a British citizen (see 2.2.1). In 1995 he married Helen (who is not a British citizen). In 1997 their daughter, Sally, was born in the UK. Sally is a British citizen as her father was a British citizen and married to her mother at the time of Sally s birth. 4. Oliver was born outside the UK in 1980 as a visa national. In 1992 he entered the UK with his family for the purposes of settlement. He had indefinite leave to remain in the UK when his girlfriend, Jessica, gave birth to his son, Alfie, in 2008 in the UK. Jessica had limited leave to remain in the UK at that point in time. Alfie is a British citizen if Oliver and Jessica subsequently marry in a country where their marriage operates to legitimise him; or if the Secretary of State accepts evidence that Oliver is his father. 5. What if, in Example 4, Alfie had been born before 1 July 2006? In those circumstances Alfie could be registered as a British citizen at the discretion of the Secretary of State. See further 2.2.6. Note that if, at any time after his birth but before he reaches 18, either of his parents becomes a British citizen or settled in the UK, he may be able to register as a British citizen (see 2.2.6.1). 2.2.4 People born outside the UK after 1982 A person is a British citizen if, after 1982, he is born outside the UK, and: his father or mother was a British citizen otherwise than by descent by birth in the UK (see 2.2.5); or his father or mother was a British citizen otherwise than by descent (see 2.2.5), having been registered or naturalised (see 2.2.6.1 and 2.2.7) as a British citizen in the UK before the child s birth (if either parent becomes British after the child s birth, this does not retrospectively make the child British). As noted at 2.2.3, until the NIAA 2002 came into force on 1 July 2006, a parent in this context did not include a father of a child who was not married to the child s mother. This means that subject to satisfying condition (c) of s 50(9A) of the BNA 1981 (2.2.3), an illegitimate person born outside the UK on or after 1 July 2006 is a British citizen if his father was a British citizen otherwise than by descent (see 2.2.5), or registered or naturalised as a British citizen before the child s birth. What if an illegitimate person can meet these requirements but he was born outside the UK before July 2006? In these circumstances he may apply to register as a British citizen under s 4G of the BNA 1981 (when he will have to satisfy the Secretary of State that he is of good character).
10 Immigration Law EAMPLES 1. Amelia was born in 1970 in the UK. She is therefore a British citizen otherwise than by descent (see 2.2.5.1). In 1990 she gave birth to her son, Charles, outside the UK. Charles is a British citizen (by descent: see 2.2.5.2) as his mother was a British citizen otherwise than by descent at the time of Charles s birth. 2. Benjamin was born in 1972 in the UK. He is therefore a British citizen otherwise than by descent (see 2.2.5.1). In 1997 he married Adela, a visa national. In 1999 their daughter, Ramona, was born outside the UK. Ramona is a British citizen (by descent: 2.2.5.2) as her father was a British citizen otherwise than by descent and married to her mother at the time of Ramona s birth. 3. Ethan was born in the UK in 1980. He is therefore a British citizen otherwise than by descent (see 2.2.5.1). In 2007 his girlfriend, Alice, gave birth to his son, Zach, outside the UK. Alice is a visa national. Zach is a British citizen by descent (see 2.2.5.2) if Ethan and Alice subsequently marry in a country where their marriage operates to legitimise him; or if the Secretary of State accepts evidence that Ethan is his father. 2.2.5 British citizenship: what about subsequent generations? 2.2.5.1 British citizen otherwise than by descent A person who acquires British citizenship by birth in the UK (see 2.2.1 and 2.2.3), or as a child by registration in the UK (see 2.2.6.1) or as an adult by naturalisation in the UK (see 2.2.7), is classified as a British citizen otherwise than by descent. This means he can automatically pass on British citizenship to a child born outside the UK in the circumstances described at 2.2.2 and 2.2.4 above. 2.2.5.2 British citizen by descent Where a person is born outside the UK (see 2.2.2 and 2.2.4) and acquires British citizenship only because one or both of his parents is a British citizen, he is classified as a British citizen by descent. This means that he cannot automatically pass on British citizenship to any child who is also born abroad. However, some second-generation children can be registered abroad at the British consulate as British citizens (by descent) if: (c) one of the parents is a British citizen by descent; and the British parent has a parent who is or was British otherwise than by descent; and the British parent had at some time before the child s birth lived in the UK for a continuous period of three years, not being absent for more than 270 days in that period. In addition an applicant aged 10 or over will have to satisfy the Secretary of State that he is of good character (see 2.2.7.1(f )). In these circumstances a child is registered as a British citizen by descent the registration takes place outside the UK and is based not on any residence in the UK by the child but by his British parent in the past before the child s birth. What if and are met but not (c)? It will be possible to register the child in the UK as a British citizen if during his childhood his father and mother come and live in the UK with him for a continuous period of three years and are not absent during that time for more than 270 days. Note that the requirement is that both parents live in the UK unless one of them is dead or the couple have divorced. In addition an applicant aged 10 or over will have to satisfy the Secretary of State that he is of good character (see 2.2.7.1(f )). In these circumstances a child is registered as a British citizen otherwise than by descent because the registration takes place in the UK and is based on the family s residence in the UK.
British Nationality and Right of Abode 11 EAMPLE James was born in Germany in 1975. His father, Larry, was born in London, England in 1945. Larry had married James s mother in 1965. In 1990, James married Steffi, a German national. In 2005, their son, Thomas, was born in Germany. Larry was born before 1983 in the UK and is therefore a British citizen otherwise than by descent. His son, James, was born outside the UK before 1983 and is therefore British by descent. Thomas can be registered as a British citizen by descent if James has lived in the UK at some time for a continuous period of three years before Thomas s birth. What if James has not lived in the UK for the requisite period before Thomas s birth or, alternatively, the family are just about to move to the UK to live there permanently? If James, Steffi and Thomas all come to live in the UK whilst Thomas is still a child, and do so for a continuous period of three years, Thomas may be registered as a British citizen otherwise than by descent. Can a British citizen by descent apply for naturalisation as a British citizen (see 2.2.7) in order that his children born abroad automatically become British citizens? No, held the Court of Appeal in the case of R v Secretary of State for the Home Department, ex p Azad Ullah [2001] INLR 74. 2.2.6 Registration as a British citizen 2.2.6.1 Child born in the UK after 1982 A child can apply to register as a British citizen, pursuant to s 1(3) and (4) of the BNA 1981, if he was born in the UK after 1982 and, after his birth: one of his parents becomes a British citizen or settled in the UK (see 3.8) before he is 18; or he remains in the UK for the first 10 years of his life and is not absent for more than 90 days each year during that period. By s 1(7), a longer period of absence may be acceptable. In addition, an applicant aged 10 or over will have to satisfy the Secretary of State that he is of good character (see 2.2.7.1(f )). Such a person is a British citizen otherwise than by descent (see 2.2.5). 2.2.6.2 Child born outside the UK before 1983 As we saw at 2.2.2, a British mother could not before 1983 transmit her British citizenship acquired in the UK to her child born outside the UK. However, by concession, the Home Office did allow such a child to be registered as British (by descent), provided the application was made before the child reached 18. What if no such registration occurred, given that the concession, by its very nature, expired at the end of 2000? Section 4C of the BNA 1981 now gives a right to such a person born before 1 January 1983 to apply to register as a British citizen. An applicant under s 4C has to satisfy the Secretary of State that he is of good character (see 2.2.7.1(f )) before being registered. Such a person is a British citizen by descent (see 2.2.5). 2.2.7 Naturalisation If a foreign national adult living in the UK has settled status (see 1.4.5 and 3.8), he may wish to apply to become a British citizen (otherwise than by descent) by a process known as naturalisation. Under s 6 of the BNA 1981, the Home Secretary has a discretion to grant a certificate of naturalisation to any person aged 18 or over who is not a British citizen. The grant of British citizenship under s 6 is not a fundamental human right: R v Secretary of State for the Home Department, ex p Al Fayed [2001] Imm AR 134 and R (AHK) v Secretary of State for the Home Department [2009] EWCA Civ 287. As Blake J stated at first instance in AHK (in a judgment
12 Immigration Law entitled MH v Secretary of State for the Home Department [2008] EWHC 2525, at [41]), In general terms no claimant [under s 6] has a right to British citizenship, but only a right to have an application fairly considered under the statutory scheme. The requirements are slightly different, depending on whether or not the applicant is married to or in a civil partnership with a British citizen at the time the application is made. Broadly, those requirements are as follows. 2.2.7.1 If the applicant is married to, or in a civil partnership with, a British citizen The applicant: (c) (d) (e) must be settled (see 3.8) at the time of the application; must have been living in the UK legally for at least three years continuously before making the application; must have been physically present in the UK on the date three years before the application is made. The start of the qualifying period of three years is the day after the corresponding application date. So, for example, if the application is received by the Home Office on 5 January 2014, the three-year qualifying period starts on 6 January 2011; must not have been absent for more than 270 days in total during the three-year qualifying period, and not more than 90 days in the year immediately before the application. The Home Office has indicated that it will normally disregard 30 days and 10 days respectively over these limits, provided all the other requirements are met. If the absences are greater than that, see the Home Office guidance, Naturalisation Booklet The Requirements on the Home Office website (see 1.2.8). What is the purpose of this residence requirement? Home Office guidance is that it allows an applicant to demonstrate close links with, and commitment to, the UK, and enables the Home Secretary to assess the strength of that commitment as well as the applicant s suitability on the other grounds; must have (i) sufficient knowledge of the English language and (ii) sufficient knowledge about life in the UK. How can an applicant demonstrate this? The answer is to be found in the British Nationality (General) Regulations 2003 (SI 2003/548, as amended), reg 5A. Broadly, the requirements are that the applicant: (i) demonstrates knowledge of the English language by: (A) possessing a Home Office approved qualification or passing a Home Office prescribed test as specified in Sch 2A to the 2003 Regulations; or (B) possessing a degree which the Home Office accepts was taught in English (see 7.4.3.3); or (C) having met this requirement when making an earlier, successful application for indefinite leave to remain (see 3.8.7); or (D) satisfying the Secretary of State that he is a national of a Home Office designated majority English speaking country (see the list of relevant nationalities at 7.4.3.2); (ii) demonstrates knowledge about life in the UK by passing the test known as the Life in the UK Test administered by a Home Office approved educational institution. What is the Life in the UK Test? The test has to be taken on a computer and consists of 24 questions, such as: where is the Prime Minister s official home in London, and is it true or false that UK citizens can vote in an election at the age of 18? It is based on the Government handbook, Life in the United Kingdom: A Guide for New Residents. It can be taken only at an official testing centre. Note that in Wales and Scotland the test can be taken in Welsh or Scottish Gaelic, as appropriate. Full details are on the website, www.lifeintheuktest.ukba.homeoffice.gov.uk.
British Nationality and Right of Abode 13 In what circumstances will the Home Office waive these requirements? If the applicant is suffering from a long-term illness or disability that severely restricts his ability to learn English or prepare for the Life in the UK test, or has a mental condition and is not able to speak or learn the relevant language. What other physical conditions may prevent an applicant from meeting the requirement? The Home Secretary will consider how the condition would stop the applicant from taking the Life in the UK test or learning English, for example, if the applicant is deaf or without speech or has a speech impediment which limits his ability to communicate in the relevant language. Life in the UK test centres and many colleges can cater for a variety of disabilities, such as blindness. An applicant may be able to do the test even if he produces evidence of a disability. If an applicant claims to have a physical or mental condition, he must provide original and current medical evidence from a medical practitioner. This must state the condition, and explain why it is unreasonable to expect the applicant to take the Life in the UK test or learn English; and (f ) must show good character. This requirement is not defined in the BNA 1981. In R (Thamby) v Secretary of State for the Home Department [2011] EWHC 1763 Parker J stated, at [41]: It is a term capable of carrying a range of meanings, and requires an exercise in evaluation to apply it. It is established that this means that the proper approach of the courts to considering the standard of good character adopted by the Secretary of State and the application of the concept in a particular case is to ask whether the standard and its application were such as could reasonably be adopted in the circumstances: ex p Al Fayed [2001] Imm AR 134, [41] (Nourse LJ), [93] (Kennedy LJ) and [97] (Rix LJ). It is open to the Secretary of State, so long as she acts rationally, to adopt a high standard of good character, and one higher than other reasonable decision-makers might have adopted: ex p Al Fayed at [41] (Nourse LJ). The applicant must disclose on the application form details of all criminal convictions both within and outside the UK. These include road traffic offences. The onus is on the applicant to establish his good character (R (on the application of DA (Iran)) v Secretary of State for the Home Department [2014] EWCA Civ 654). So what convictions affect an application? Table 2.1 gives examples of sentences, along with the relevant sentence-based threshold. In calculating the threshold, it is the prison sentence that counts, not the time served. Note that a suspended sentence counts as if it were a non-custodial sentence unless that sentence is subsequently activated. Table 2.1 Criminality requirement Sentence Impact on nationality application 4 years or more imprisonment Application should be refused, regardless of when the conviction occurred Between 12 months and 4 years Application should be refused unless 15 years imprisonment have passed since the end of the sentence Up to 12 months imprisonment Application should be refused unless 10 years have passed since the end of the sentence. A non-custodial sentence or other out of Application should be refused if the conviction court disposal occurred in the last 3 years. 2.2.7.2 If the applicant is neither married to, nor in a civil partnership with, a British citizen The applicant: must have been settled (see 3.8) for at least one year before the application; must have been living in the UK legally for five years continuously before making the application;
14 Immigration Law (c) must have been physically present in the UK on the date five years before the application is received by the Home Office; (d) must not have been absent for more than 450 days in total during the five-year qualifying period, and not more than 90 days in the year immediately before the application is made (see 2.2.7.1(d) for Home Office policy where this is exceeded); (e) must have sufficient knowledge of the English language and sufficient knowledge about life in the UK (see 2.2.7.1(e)); (f ) must show good character (see 2.2.7.1(f )); and (g) must show an intention to live in the UK. Home Office guidance is that this requirement is usually met if the applicant s stated intention is to have his home or, if more than one, his principal home in the UK. Factors affecting this will include whether a home here (owned or rented) has already been established and the reason for any past or intended future absences. 2.2.7.3 EEA nationals Certain EEA nationals are treated as settled for the purposes of naturalisation: 3.8.9. Note the effect of reg 7 of the British Nationality (General) (Amendment No 3) Regulations 2015 (SI 2015/1806). This provides that when applying for naturalisation, an EEA national relying on their EU right of permanent residence in the UK must provide a valid permanent residence card or document certifying permanent residence (see Chapter 4). 2.2.8 Formalities for registration and naturalisation These are governed by the BNA 1981 and the British Nationality (General) Regulations 2003 (SI 2003/548). In particular, applicants of full age are required to make an oath of allegiance and pledge. The latter states that the person will respect the rights and freedoms of the UK and will uphold its democratic values, observe its laws, and fulfil the duties and obligations of citizenship. 2.2.9 Deprivation of citizenship obtained by registration or naturalisation This is governed by s 40 of the BNA 1981 and the British Nationality (General) Regulations 2003 (SI 2003/548). The Secretary of State may by order deprive a person of his British citizenship status if satisfied that it would be conducive to the public good. Home Office guidance is that this can be done in cases involving national security, terrorism, serious organised crime, war crimes and unacceptable behaviour such as preaching jihad. The Secretary of State may also by order deprive a person of his British citizenship status where it was obtained by registration or naturalisation, if satisfied that such was obtained by means of fraud, false representation or concealment of a material fact. But note that naturalisation obtained by fraudulent impersonation is null and void (R (on the application of Hysaj) v Secretary of State for the Home Department [2015] EWCA Civ 1195). The Secretary of State may not normally make either of the above orders if it would make a person stateless, unless he reasonably believes that the person can acquire another nationality or citizenship: see Al-Jedda v Secretary of State for the Home Department [2010] EWCA Civ 212. The Court held that the burden is on the appellant to show on the balance of probabilities that he will become stateless. See also B2 v Secretary of State for the Home Department [2013] EWCA Civ 616 and Pham v Secretary of State for the Home Department [2015] UKSC 19 for discussion of the meaning of statelessness under the BNA 1981. The exception to the normal rule is where the Secretary of State is satisfied that the deprivation is conducive to the public good because the person has conducted himself in a manner seriously prejudicial to the vital interests of the UK. Before making a deprivation order the Secretary of State must give the person concerned written notice specifying that a decision has been made to make the order and the reasons for it. The notice must also advise the person of his right to appeal (see Chapter 11). Does the fact
British Nationality and Right of Abode 15 that the person has to conduct his appeal from outside the UK render the exclusion decision procedurally unfair? No, held the Court of Appeal in GI v Secretary of State for the Home Department [2012] EWCA Civ 867. On appeal, the Tribunal has to ask itself does the evidence in the case establish that citizenship was obtained by fraud? If it does then it has to answer the question do the other circumstances of the case point to discretionary deprival? See Arusha and Demushi (deprivation of citizenship delay) [2012] UKUT 80 (IAC). 2.3 COMMONWEALTH CITIZENS WITH RIGHT OF ABODE There are two categories of Commonwealth citizens who have the right of abode in the UK, ie the right to enter the UK without being subject to immigration controls (see 1.4 and Chapter 3). There is a list of Commonwealth countries in Appendix 9. 2.3.1 Parental link The first category concerns those Commonwealth citizens with a parental link to the UK. The requirements are that: the person was a Commonwealth citizen on 31 December 1982, and continues to be such; and either parent was born in the UK. Parent in this context includes the mother, but not the father, of an illegitimate child. EAMPLE Bill was born in New Zealand in 1979. His mother, Ada, was born in London, England. His father was a citizen of New Zealand. Assuming that Bill is a citizen of New Zealand under that country s nationality laws and so remained, Bill was a Commonwealth citizen on 31 December 1982. Bill cannot be a British citizen by descent as his father was not British and, before 1983, mothers could not pass on their citizenship (see 2.2.2). However, as a Commonwealth citizen, he has the right of abode in the UK by virtue of his mother s birth in the UK. Query if Ada registered him as British in these circumstances before he reached 18 or, if she failed to do so, whether he can now apply (see 2.2.6.2). 2.3.2 Acquired by marriage The second category concerns those Commonwealth citizen women who acquired the right of abode by marriage. The requirements are that: the woman was a Commonwealth citizen on 31 December 1982 and continues to be such; and on or before 31 December 1982, she married a man who at the time of the marriage was either: (i) born, registered or naturalised in the UK, or (ii) was a Commonwealth citizen with a right of abode through a parental link (see 2.3.1). Note that any subsequent divorce or the death of the husband does not affect her status. EAMPLES 1. Anna was a citizen of Barbados on 31 December 1982 and continues to be such. In 1980 she married Frank. He had been born in the UK in 1960. Anna acquired the right of abode in the UK by marrying Frank.
16 Immigration Law 2. Barbara was a citizen of Fiji on 31 December 1982 and continues to be such. In 1975 she married Luke. He had been born in Fiji in 1955 and was a Fijian national. His mother had been born in the UK. Provided Barbara can produce evidence that Luke was a Commonwealth citizen with the right of abode by his parental link (see 2.3.1), she acquired the right of abode by marrying him. There is no requirement that Luke must have obtained his own certificate evidencing his right of abode. 2.3.3 Certificate of entitlement A Commonwealth citizen with the right of abode will travel under his or her own country s passport. Before travelling to the UK for the first time, he or she should apply to the British High Commission for a certificate showing that right of abode. To get the certificate in the first category, the applicant will need to produce: (c) (d) evidence of being a Commonwealth citizen on 31 December 1982 and that he remains a Commonwealth citizen; his own full birth certificate naming the appropriate parent; the appropriate parent s full UK birth certificate; and if claiming through the father, the parent s marriage certificate or evidence of relationship. A check should always be made to see if the applicant can claim British citizenship (see 2.2.2). To get the certificate in the second category, the applicant will need to produce: (c) evidence of being a Commonwealth citizen on 31 December 1982 and that she remains a Commonwealth citizen; her marriage certificate; and evidence that her husband was either British by birth, registration or naturalisation in the UK (eg his UK birth, registration or naturalisation certificate), or a Commonwealth citizen with his own right of abode (as above). 2.3.4 Excluded Commonwealth nationals It is important to note that as Cameroon, Mozambique, Namibia, Pakistan and South Africa were not members of the Commonwealth on 31 December 1982, nationals of those countries cannot take advantage of the above provisions. 2.3.5 Deprivation of right of abode Section 2A of the IA 1971 gives the Secretary of State power to remove this right of abode if it is conducive to the public good to remove or exclude the Commonwealth citizen from the UK. There is a similar power for deprivation of British citizenship (see 2.2.9). There is a right of appeal to the IAC or, if issues of national security arise, to the Special Immigration Appeals Commission (see Chapter 11). 2.3.6 Flow diagram: summary We have seen that before 1983 some Commonwealth citizens acquired the right of abode in the UK. The requirements are summarised in the flow diagram at Appendix 10. 2.4 HISTORICAL BACKGROUND One of the difficulties in understanding the law in this area is that a person s citizenship may change over time. Someone born in the UK in 1940 would have had the status of British subject at common law. Under the British Nationality Act 1948, he would have become a citizen of the UK and colonies (CUKC). Under the BNA 1981, he would become a British
British Nationality and Right of Abode 17 citizen. The problem is that his current citizenship status is defined in the legislation in terms of his earlier status. Thus, it is necessary to know a little of the history of citizenship law in particular, three major developments, illustrated in the diagram that follows. 1948 CUKCs 1962 71 PATRIALS 1981 BRITISH CITIZENS NON-PATRIALS BOTCs BOCs BRITISH SUBJECTS The terms used in the diagram have the broad meanings set out in 2.4.1 to 2.4.7 below. 2.4.1 British subjects Before 1948, anyone who owed allegiance to the Crown, regardless of the Crown territory in which he was born. 2.4.2 CUKCs After 1948, anyone connected with the UK or a Crown colony (such as Hong Kong). 2.4.3 Commonwealth citizens After 1948, anyone having citizenship of an independent Commonwealth country, according to the law of that country. Independent Commonwealth countries included the former Dominions (eg Canada, Australia, New Zealand) and also former colonies (eg Jamaica) when they gained independence. On independence, existing citizens who were CUKCs might lose that status by becoming citizens of the newly independent Commonwealth country. The current list of countries whose citizens are Commonwealth citizens is given in Appendix 9. In addition, anyone who has British citizenship, British overseas territories citizenship or British overseas citizenship (see 2.4.5 to 2.4.7 below) is also a Commonwealth citizen. 2.4.4 Patrials OTHER COMMONWEALTH CITIZENS Anyone who under the IA 1971 had the right of abode in the UK. Until 1962, Commonwealth citizens and CUKCs could enter the UK freely. From that year, controls were introduced which were finally enacted in the 1971 Act. The controls extended to both CUKCs and Commonwealth citizens, but CUKCs and Commonwealth citizens who had a close connection with the UK were recognised as patrials, having the right of abode. 2.4.5 British citizens Anyone who at 1 January 1983 was a CUKC with right of abode in the UK, and anyone who acquired British citizenship after that date (eg by birth in the UK, see 2.2.1). British citizenship and the following categories of citizenship were created by BNA 1981. 2.4.6 British overseas territories citizens (BOTCs) PATRIALS NON-PATRIALS Anyone who at 1 January 1983 was a non-patrial CUKC, with a close connection with a colony, together with those later becoming BOTCs (eg by birth in the colony). The list of British
18 Immigration Law overseas territories is given in Appendix 11 to this book. By the Overseas Territories Act 2002, all BOTCs were granted British citizenship. 2.4.7 British overseas citizens (BOCs) Anyone who at 1 January 1983 was a non-patrial CUKC, but without a close connection with a colony. This category included CUKCs living in a colony which gained independence, who did not acquire citizenship of the newly independent country (eg those of Asian origin in former colonies in East Africa). This list is not exhaustive. There are other minor categories such as British protected persons, British nationals (overseas) and British subjects under the 1981 Act. The following other major categories of citizens were unaffected by these changes in UK law. 2.4.8 Irish citizens Citizens of the Republic of Ireland. They were not Commonwealth citizens under the British Nationality Act 1948. They are not subject to immigration controls (see 3.9, Common Travel Area), but may be liable to deportation (see Chapter 10). 2.4.9 Aliens Broadly, anyone who does not fall into the above categories. Immigration controls were introduced for aliens in 1905. They do not have the right of abode. However, UK law does permit dual nationality, so that someone who lacks the right of abode as an alien, may nevertheless have it if he can also claim British citizenship. 2.5 SUMMARY OF BRITISH CITIZENSHIP A summary of British citizenship is set out in Table 2.2 below. Table 2.2 Summary of British Citizenship Born in the UK before 1983 Born in the UK after 1982 and either parent a British citizen or settled in the UK. Born in the UK after 1982 and subsequently either parent becomes a British citizen or settled in the UK before applicant is 18. Born in the UK after 1982 and remains in the UK for the first 10 years of life, and is not absent for more than 90 days each year during that period. Born outside UK before 1983 and father born, registered or naturalised in the UK and married to mother (or parents subsequently marry in a country where that marriage operates to legitimise the child). Born outside UK before 1983 and mother born, registered or naturalised in the UK and registered child before reached 18 (or registers subsequently). Born outside UK after 1982 and either parent a British citizen otherwise than by descent British citizen otherwise than by descent British citizen by descent
British Nationality and Right of Abode 19 Born outside UK after 1982 and one parent a British citizen by descent; and the British parent has a parent who is or was British otherwise than by descent; and the British parent had at some time before the child s birth lived in the UK for a continuous period of three years, not being absent for more than 270 days in that period. Born outside UK after 1982 and one parent a British citizen by descent; and the British parent has a parent who is or was British otherwise than by descent; and the family lives in the UK during applicant s childhood for a continuous period of three years and is not absent during that time for more than 270 days. Naturalised in UK British citizen otherwise than by descent British citizen by descent
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