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British Overseas citizens and Historical Prejudice: The Need to Amend the Nationality and Borders Bill
By: Adrian Berry
Barrister, Garden Court Chambers, London.
Nationality and Citizenship Law
Introduction There are people who would be British Overseas citizens (BOCs) today but for historical unfairness in the law, an act or omission of a public authority, or other exceptional circumstances.
In a welcome development, Clause 7 of the Nationality and Borders Bill attempts to rectify the position for those who would be British citizens or British overseas territories citizens (BOTCs) today but for historical unfairness in the law, an act or omission of a public authority, or other exceptional circumstances. But it does nothing for people would be BOCs today. This is wrong. Those who would be BOCs today should not be excluded from the proposed remedy. They suffered from historical unfairness just as much as those who would be British citizens or BOTCs today.
Prior to 1983 Prior to 1983, there was one substantive class of British nationals: Citizens of the United Kingdom and Colonies (CUKCs). When the British Nationality Act 1981 came into force on 1 January 1983, CUKCs were divided and re-classified into three classes: (i) British citizens (connected to the UK), (ii) British Dependant Territories citizens/now BOTCs (connected to the remaining British overseas territories, such as the Falkland Islands and Gibraltar), and (iii) BOCs (connected to former British colonies). BOCs are British nationals but have no right to come to the UK itself.
The Home Office acknowledges that past unfairness in British nationality law includes the where men and women were unable to pass on citizenship equally (sex discrimination), and where unmarried fathers could not pass on citizenship (discrimination for being born to unmarried parents), see the Explanatory Notes to the Nationality and Borders Bill, para 119. The Home Office makes that acknowledgment where such persons would be British citizens or BOTCs today. But many persons who would be BOCs today suffered this prejudice as well.
The Usefulness of British Overseas citizenship As a result of British overseas expansion and later decolonisation, there are pockets of BOCs around the world, for example in people of South Asian heritage in Kenya, people of Chinese heritage in Malaysia, people of British heritage in South Africa, and people of Lebanese heritage in anglophone west Africa (e.g. Sierra Leone). In respect of all of them, the UK acknowledges and asserts that they should continue to be able to benefit from British nationality. When the category of BOC was created under the British Nationality Act 1981, it give effect to the fact that BOCs were British nationals and should remain so. But the newly created status gave them no home or right of abode in the UK or any other remaining British territory. That itself was a scandal that has led to litigation and condemnation. But there remain benefits to holding the status.
Although BOCs have no right to come to the UK or a remaining British overseas territory, the status still has real value. It enables a person to seek and use a UK-issued BOC passport. Possession of such a passport enables a person (i) to seek UK consular assistance in third countries; (ii) to seek residence and permission to work in third counties under local rules, something that may be useful where the passport of another nationality they hold is considered unreliable; and (iii) where their children are born stateless, to benefit from UK laws that reduce statelessness.
The pockets of BOCs that remain around the world makes active use of the status. For example, many persons of Somali heritage but born in Aden (Yemen) when it was a British colony, rely of their BOC status as they have been shut out from access to Yemeni nationality. Their BOC passports enable them to obtain lawful residence and permission to work in many Gulf states. It also enables them to secure visas to study in other countries.
The Home Office proposal The Home Office proposal in Clause 7 helps those affected by historical unfairness in British nationality law, an act or omission of a public authority, or other exceptional circumstances to become British citizens or BOTCs.
The problem with the Home Office proposal Potential BOCs will have suffered just has much from such historical unfairness in British nationality law, acts or omissions of public authorities, and other exceptional circumstances as those who are would now be British citizens and BOTCs. All these classes of British nationals were CUKCs prior to the British Nationality Act 1981 and all suffered from the same problems. Potential BOCs too need help.
How to fix the problem? Clause 7 should be supplemented to provide registration as a BOC on the same basis as it enables registration a British citizen or as a BOTC.
The Clause should be amended as follows:
Insert – (3A) After section 23, insert—
“23A Acquisition by registration: special circumstances
(1) If an application is made for a person of full age and capacity (“P”) to be registered as a British overseas citizen, the Secretary of State may cause P to be registered as such a citizen if, in the Secretary of State’s opinion, P would have been, or would have been able to become, a British overseas citizen but for—
(a) historical legislative unfairness,
(b) an act or omission of a public authority, or
(c) exceptional circumstances relating to P.
(2) For the purposes of subsection (1)(a), “historical legislative unfairness” includes circumstances where P would have become, or would not have ceased to be, a British subject, a citizen of the United Kingdom and Colonies, or a British overseas citizen, if an Act of Parliament or subordinate legislation (within the meaning of the Interpretation Act 1978) had, for the purposes of determining a person’s nationality status—
(a) treated males and females equally,
(b) treated children of unmarried couples in the same way as children of married couples, or
(3) In subsection (1)(b), “public authority” means any public authority within the meaning of section 6 of the Human Rights Act 1998, other than a court or tribunal.
(4) In considering whether to grant an application under this section, the Secretary of State may take into account whether the applicant is of good character.”