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British Nationality Act 1981

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British Nationality Act 1981
Act of Parliament
Parliament of the United Kingdom
Long titleAn Act to make fresh provision about citizenship and nationality, and to amend the Immigration Act 1971 as regards the right of abode in the United Kingdom.
Citation1981 c. 61
Introduced byWilliam Whitelaw, Home Secretary
Territorial extent 
Dates
Royal assent30 October 1981
Commencement1 January 1983
Other legislation
Amends
Amended legislation
Repeals/revokes
Amended by
Amending legislation
Status: Amended
Text of statute as originally enacted
Revised text of statute as amended

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

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Further information: History of British nationality law

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

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Reclassification of United Kingdom and Colonies citizenship

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

In 1968, with the passage of the Commonwealth Immigrants Act 1968 to modify the wording of the Commonwealth Immigrants Act 1962, some CUKCs were stripped of 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

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The Act also modified the application of jus soli (“right of soil”, ie. place of birth) as defining 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.

Relation to Immigration Act 1971

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Further information: Immigration Act 1971

Under section 11(1) of the Act, a CUKC must have had the right of abode under the Immigration Act 1971, as it existed on 31 December 1982, to become a British citizen on 1 January 1983 automatically under the standard CUKC transition at commencement route of the Act.[2][3]

Section 39 of the Act then went on to modify the right of abode section of the 1971 measure, eliminating confusing wording as to whether right of abode could be obtained through a grandparent who was a CUKC from outside the UK.[2][3]

Some people born in the UK after 1983 may have been incorrectly told they were not eligible for a British passport, if their mother had been born in a Commonwealth country (e.g. Canada, or Australia) to a British-born grandparent, but later returned to the UK.[citation needed] In this case, the parent would have retained right of abode from the grandparent, meaning they were already settled at the time of the child's birth (irrespective of whether they themselves were British nationals).

Other changes

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

  • Mothers as well as fathers were allowed to pass on British nationality to their (UK born) children. However, until 2006, British parents of children born outside the UK (or in the UK to a non-British mother[a]) had to be married.[4]
  • 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 (for example, those born before 1983 to a British parent in a Commonwealth country which had not left, or had membership suspended since then).
  • 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.[5]
  • Special provision was made for persons from Gibraltar to acquire British citizenship. Since 2002, this mainly relates to EU nationals who have acquired Overseas Territory Citizen status to live in Gibraltar.
  • Foreign spouses were treated equally under the law. Wives of British men could no longer acquire British nationality purely by marriage and husbands of British women were afforded the right to acquire British nationality on equal terms.[6]
  • 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,[7] were now to be construed as being part of the United Kingdom for nationality purposes.[8]

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.

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Commonwealth Immigrants Act 1962 & 1968

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The Commonwealth Immigrants Act 1968 made a number of changes to the Commonwealth Immigrants Act 1962, beginning with amending the definition of to whom the Act applied. By comparison:

Commonwealth Immigrants Act 1962:

PART I

CONTROL OF IMMIGRATION

1.-(1) The provisions of this Part of this Act shall have effect for controlling the immigration into the United Kingdom of Commonwealth citizens to whom this section applies.

  • (2) This section applies to any Commonwealth citizen not being-
    • (a) a person born in the United Kingdom :
    • (b) a person who holds a United Kingdom passport and is a citizen of the United Kingdom and Colonies, or who holds such a passport issued in the United Kingdom or the Republic of Ireland; or (c) a person included in the passport of another person who is excepted under paragraph (a) or paragraph (b) of this subsection.

(3) In this section "passport" means a current passport; and "United Kingdom passport" means a passport issued to the holder by the Government of the United Kingdom, not being a passport so issued on behalf of the Government of any part of the Commonwealth outside the United Kingdom.

(4) This Part of this Act applies to British protected persons and citizens of the Republic of Ireland as it applies to Commonwealth citizens, and references therein to Commonwealth citizens, and to Commonwealth citizens to whom this section applies, shall be construed accordingly.

Commonwealth Immigrants Act 1968:

1. In section 1 of the principal Act (application of Part I), in subsection (2)(b) after the words "citizen of the United Kingdom and Colonies" there shall be inserted the words "and fulfils the condition specified in subsection (2A) of this section", and after subsection (2) there shall be inserted the following subsection:-

  • "(2A) The condition referred to in subsection (2)(b) of this section, in relation to a person, is that he, or at least one of his parents or grandparents,-
    • (a) was born in the United Kingdom, or
    • (b) is or was a person naturalised in the United Kingdom, or
    • (c) became a citizen of the United Kingdom and colonies by virtue of being adopted in the United Kingdom, or
    • (d) became such a citizen by being registered under Part II of the British Nationality Act 1948 or under the British Nationality Act 1964, either in the United kingdom or in a country which, on the date on which he was so registered, was one of the countries mentioned in section 1(3) of the said Act of 1948 as it had effect on that date".

The stripping of birth rights from Bermudians by the British Government in 1968 and 1971, and the change of their citizenship in 1983, actually violated the rights granted them by Royal charters at the founding of the colony. Bermuda (fully The Somers Isles or Islands of Bermuda) had been settled by the London Company (which had been in occupation of the archipelago since the 1609 wreck of the Sea Venture) in 1612, when it received its Third Royal Charter from King James I, amending the boundaries of the First Colony of Virginia far enough across the Atlantic to include Bermuda. The citizenship rights guaranteed to settlers by King James I in the original Royal Charter of 10 April 1606, thereby applied to Bermudians:[9][10][11][12]

Alsoe wee doe, for us, our heires and successors, declare by theise presentes that all and everie the parsons being our subjects which shall dwell and inhabit within everie or anie of the saide severall Colonies and plantacions and everie of theire children which shall happen to be borne within the limitts and precincts of the said severall Colonies and plantacions shall have and enjoy all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande or anie other of our saide dominions.

[13]

These rights were confirmed in the Royal Charter granted to the London Company's spin-off, the Company of the City of London for the Plantacion of The Somers Isles, in 1615 on Bermuda being separated from Virginia:

And wee doe for vs our heires and successors declare by these Pnts, that all and euery persons being our subjects which shall goe and inhabite wthin the said Somer Ilandes and every of their children and posterity which shall happen to bee borne within the limits thereof shall haue and enjoy all libertyes franchesies and immunities of free denizens and natural subjectes within any of our dominions to all intents and purposes, as if they had beene abiding and borne wthin this our Kingdome of England or in any other of our Dominions

[14]

Bermuda is not the only territory whose citizenship rights were laid down in a Royal Charter. In regards to St. Helena, Lord Beaumont of Whitley in the House of Lords debate on the British Overseas Territories Bill on 10 July 2001,[15] stated:

Citizenship was granted irrevocably by Charles I. It was taken away by Parliament because of growing opposition to immigration at the time.

After the Act

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After the Falklands War, full British citizenship was granted to the Falkland Islanders by the British Nationality (Falkland Islands) Act 1983. Gibraltarians were also permitted to retain full British citizenship.

Criticism

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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 years preceding the Sino-British Joint Declaration in 1984, and later the handover of Hong Kong (then the largest British colony by population) to the People's Republic of China in 1997.

However, CUKCs from Hong Kong had lost their right of abode in the United Kingdom in 1968, unless they were already resident in the United Kingdom before the Commonwealth Immigrants Act. This decision would eventually be reversed in 2021.

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) means there is little pressure for any change to the current law.[citation needed] Similar legislation was later enacted in Australia (1986), the Republic of Ireland (2004) and New Zealand (2005).

See also

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References

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  1. ^ Randall Hansen (2000). Citizenship and Immigration in Postwar Britain. Oxford UP. pp. 207–8. ISBN 978-0-19-158301-8.
  2. ^ a b "The Secretary of State for the Home Department v JZ (Zambia)". [2016] EWCA Civ 116 Case No: C5/2014/3293. England and Wales Court of Appeal. 2 February 2016. paras. 15-19. Archived from the original on 7 July 2019. Retrieved 7 July 2019.{{cite web}}: CS1 maint: others (link)
  3. ^ a b "The Secretary of State for the Home Department v Ize-laymu". [2016] EWCA Civ 118, [2016] Imm AR 771. England and Wales Court of Appeal. 1 March 2016. paras. 17-18 – via Casemine.com.{{cite web}}: CS1 maint: others (link)
  4. ^ Fransman, Laurie (2011). Fransman's British Nationality Law (3rd ed.). Haywards Heath, West Sussex: Bloomsbury Professional. ISBN 978-1-84592-095-1.: 284 
  5. ^ Laurie Fransman, British Nationality Law (1997) p 238.
  6. ^ Fransman, Laurie (2011). Fransman's British Nationality Law (3rd ed.). Haywards Heath, West Sussex: Bloomsbury Professional. ISBN 978-1-84592-095-1.: 53 
  7. ^ 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"
  8. ^ 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"
  9. ^ Exec. Order No. 1 (April 10, 1601; in English) King of England
  10. ^ "No. 1: First Charter of Virginia". originalsources.com. Western Standard Publishing Company. Retrieved 11 September 2021.
  11. ^ "No. 2: Second Charter of Virginia". originalsources.com. Western Standard Publishing Company. Retrieved 11 September 2021.
  12. ^ "No. 3: Third Charter of Virginia". originalsources.com. Western Standard Publishing Company. Retrieved 11 September 2021.
  13. ^ THE THREE CHARTERS OF THE VIRGINIA COMPANY OF LONDON: THE FIRST CHARTER April 10, 1606, with an introduction by Samuel M. Bemiss, President, Virginia Historical Society. Virginia 350th Anniversary Celebration Corporation, Williamsburg, Virginia 1957, Gutenberg.org
  14. ^ Letters Patent of King James I, 1615. Memorials of the Discovery and Early Settlement of The Bermudas or Somers Islands, Volume 1, by Lieutenant-General Sir John Henry Lefroy, Royal Artillery, Governor and Commander-in-Chief of Bermuda 1871–1877. The Bermuda Memorials Edition, 1981. The Bermuda Historical Society and The Bermuda National Trust (First Edition, London, 1877)
  15. ^ "British Overseas Territories Bill [H.L.] (Hansard, 10 July 2001)". Parliamentary Debates (Hansard). 10 July 2001. Retrieved 8 January 2021.
  1. ^ if the mother did not have settled status
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