Supplementary memorandum submitted by
the Joint Council for the Welfare of Immigrants
The Joint Council for the Welfare of Immigrants
is an independent, voluntary organisation working in the field
of immigration, asylum and nationality law and policy. Established
in 1967, JCWI provides legally aided immigration advice to migrants
and actively lobbies and campaigns for changes in immigration
and asylum law and practice. Its mission is to eliminate discrimination
in this sphere and to promote the rights of migrants within a
human rights framework.
This is a supplementary submission prepared
in the light of the session before the Joint Committee on Human
Rights of the 04.11.08. It deals exclusively with (i) the new
risks the draft Bill generates for British citizens (ii) the position
of British nationals other than British citizens.
1. The British Government's idea of citizenship
and nationality appears to be at variance with the meaning assigned
to it by other nations on the international plane. Elsewhere,
the citizen/national belongs to a particular state, has rights
and duties which derive from belonging, and has a protected, entrenched,
constitutional status. However imperfectly this pattern is followed,
in some places, the basic standard laid down in Article 12 of
the 1966 International Covenant on Civil and Political Rights
requiring that "No one shall be arbitrarily deprived of the
right to enter his own country" is widely respected. From
1962 onwards however British Governments have systematically denied
the rights of certain groups of British nationals to enter or
remain in the United Kingdom. The present Government continues
to do so, and it is possible that the Draft (Partial) Immigration
and Citizenship Bill will extend exclusion to new groups of nationals.
2. The origins of the above problem lie in the
British Nationality Act (BNA) 1948, which called the existing
status of British subjecthood the nationality of the empire, and
then superimposed it on to a "Citizenship of the United Kingdom
and Colonies" (CUKCs) which had no rights attached to it,
outside its rules on transmission. Other countries, both inside
and outside the Commonwealth, regarded the separate citizenships
of independent Commonwealth countries as nationalities. But inside
the UK, British subjecthood still had attached to it rights associated
3. The BNA 1948 had made the terms "British
Subject" and Commonwealth citizens' interchangeable in law.
Most people in the UK did not recognise this. When hostility to
so called "coloured migration" grew in the late 1950's
that hostility was expressed as concerning "Commonwealth
citizens". This confusion made it possible for the Government
in 1962 to legislate for immigration controls over Commonwealth
citizens in a manner which placed some CUKC's under control while
others (mainly in or from the UK) were not. Citizens of the independent
Commonwealth countries were placed in the same controlled category
as colonials; the Government openly used administrative means
to facilitate entry from the old, white Dominions, while strictly
limiting "coloureds". Thus began the process, continuous
to this day of subordinating nationality/citizenship law to immigration
4. It is a striking feature of the Draft partial
Immigration and Citizenship Bill 2008 that it deals almost exclusively
with immigration matters concerning control after entry; detention,
expulsion and offences. Moreover, the Bills opening clauses indicate
a potential reduction in existing citizenship rights. The only
citizenship right defined in the 1981 Act was the right of abode,
and this was shared with certain citizens of other Commonwealth
countries. But right of abode has disappeared, to be replaced
by "immigration permission."
5. Immigration permission is not a right at
all. It may be granted by the Secretary of State by order to groups
or to individuals.
The opening clauses of the Bill begin with "A British citizen
is free to enter and leave, and to stay in, the United Kingdom"
but immediately qualify this with "That is subject to any
requirements or restrictions imposed by or by virtue of this Act
or any other enactment."
The burden of proof is on an applicant who claims to be British
citizen to prove the assertion by means of a valid UK passport
describing him or her as a British citizen or by a valid identity
6. It should be evident from the above that
there is room in these provisions for some bureaucratic manipulation.
Also, given existing powers to deprive some persons of citizenship,
there is a real risk that a new group of British nationals denied
entry and stay here, will join the excluded groups created by
7. The 1962 Commonwealth Immigrants Act had
excluded colonial CUKCs from the UK but had left them a home each
in his own colony. The 1968 Commonwealth Immigrants Act was far
more alarming; It deprived CUKCs in independent Commonwealth countries
of a right of entry and stay here unless they had acquired their
status trough birth, adoption, registration or naturalisation
in the UK itself or had a parent or grandparent who so qualified.
This effectively excluded CUKCs of Asian origin or descent from
the UK, who had become CUKC's because of birth etc in a colony.
The people particularly affected were the East African Asians
who believed that they had been guaranteed UK entry if placed
under any disabilities when their countries of residence became
independent. Their numbers were variously estimated. They became
effectively stateless and many suffered great hardship, for example
through denial of employment and education for their children.
Those who sought to enter the UK were turned back, only to be
turned back again in East Africa. After being shuttled back and
forth some were imprisoned on arrival in the UK but eventually
released and allowed to stay as no other country was bound to
accept them. Some were admitted by Canada, some went to India
as a supposedly temporary expedient and waited for entry vouchers
to the UK which seldom came; some wandered in European countries,
sleeping on beaches or on park benches. Their case was ruled admissible
by the European Commission on Human Rights, but never proceeded
to the Court of Human Rights. There were no three classes of CUKC,
each with different rights from the others.
8. The Immigration Act 1971, which united immigration
controls over aliens and Commonwealth citizens/British subjects
alike created the concept of the right of abode or partiality.
Its definition was excessively complicated, but essentially it
meant that CUKCs with a UK connection, together with several million
citizens of Commonwealth countries with that connection were free
from immigration control, but all other CUKCs and persons from
other countries were subject to it. The existing groups of CUKCs
were re-named in the subsequent 1981 British Nationality Act as
British citizens (partial CUKCs), British Dependant Territories
citizens (colonial CUKCs) and British Overseas Citizens (non-partial
CUKCs no longer legally connected to any colony). All these continued
to have the same rights, or lack of rights as before. All could
still apply for British passports but these were of little use
9. The numbers of BOCs in the world (in African
countries, Malaysia and elsewhere) could never be determined with
accuracy. The Government's estimates have been consistently higher
than those of independent varied observers- not only for BOCs
but for other British nationals excluded from the UK: British
Protected Persons, non- partial British Subjects without citizenship
of any Commonwealth country, and British Nationals (Overseas).
The British subjects concerned were people in India, Pakistan
and Sri Lanka who failed to obtain those countries' citizenships
at independence. Transmission of the status was very limited.
(Partial BSs are mostly Irish descent or else people of UK descent
from the sub-continent.) BPPs, very numerous in the early twentieth
century, originated from the protectorates, protected states,
mandated and trust territories: these have almost all disappeared.
10. As to who these people are, their numbers
and their whereabouts, we can be sure that most, but not all,
BOCs are of non- European descent. There must be some of UK descent
too remote to qualify for the right of abode in Latin America,
some from families of Syrian traders who settled in West Africa,
and a variety of others scattered widely. But of these many have
dual citizenship, having gained nationalities in their countries
of residence. The latter are not vulnerable like those who are
BOCs only, and they do not have the right to register as
British citizens which was granted to all other BOCs everywhere
by 2002 by the Nationality, Immigration and Asylum Act 2002. (BPPs
and BSs were given a right to register in the same Act) But much
damage had already been done and some remains. Many holders of
these forms of nationality (mainly of Indian descent) may not
know of their BOC status and therefore obviously do not apply.
The total numbers have dwindled as British policy intended then
to do because of close limits on transmission. There are probably
a few thousand altogether.
11. So far, there had been a continuing policy
line whether the British Government had been Labour or Conservative:
the emphasis had always been on restriction of British nationality
in order to reduce the number of British nationals outside the
UK and thus to reduce future sources of immigration. By far the
most populous and economically important British colony was Hong
Kong, which was due to return to China in 1997. All ethnic Chinese
there were already Chinese nationals under Chinese law, but there
were tens of thousands of others who, or whose ancestors, had
been admitted under British rule, and to whom China saw no obligation.
In agreement with the Chinese Government, the UK abolished the
BDTC status for everyone in Hong Kong with effect in 1997. Some
became BOCs. The non-Chinese, whether British citizens or aliens,
became BOCs. At the same time the status of British National (Overseas)
was created: holders resident in Hong Kong could apply for British
passports but these would not give them UK right of abode. They
could be used to apply for British consular services and protection
when in third countries. This provision was intended to facilitate
business travel. BN(O)s were not given the right to register as
British Citizens at the same time as the excluded groups in 2002.
Those who were physically outside Hong Kong in 1997 have no right
to live in the Hong Kong Special Administrative Region under Chinese
12. Under the Draft Bill, EEA nationals possess
more rights than the excluded groups. They can enter, stay and
work in the UK, and are eligible for many benefits here. Moreover,
the excluded groups have none of the rights of British citizens
to movement and employment in other EEA countries. The contrast
13. Clearly, the series of laws on nationality
and immigration in the second half of the twentieth century had
a racially discriminatory effect. During recent years there have
been some liberalising changes to correct sex discrimination and
the disadvantages of birth outside of wedlock, but the only correction
to racial differences has been the British Overseas Territories
Act 2002 (apart, that is, from some minor measures of limited
effected dealing with Hong Kong).
14. The British Overseas Territories Act 2002
(BOTA) transformed BDTCs into British Overseas Territories Citizens
and gave them all British citizenship as well. This domestic double
nationality applies to the remaining colonies as they were in
2002: all small islands or island groups except for Gibraltar.
Gibraltarians were already either British citizens or possessed
or effective right of abode, and held EEA movement rights under
a Declaration to the EEC which the UK had been made in 1982. Falkland
Islanders had been made British citizens in 1981 by an Act of
Parliament passed after the Falklands War with Argentina.
15. The BOTA did not, however correct the situation
of yet another excluded group which has received little attention.
Persons born in colonial territories have, since 1983, depended
for their British nationality (BDTC status and then BOTC status)
on having parents who were themselves either British or, more
commonly, settled under local immigration law at the time of the
birth. The immigration laws of these territories vary widely,
some being very restrictive indeed. It is thus possible for a
person born in such a territory not to have been born a BDTC or
a British citizen: the child must either have the nationality
of a foreign parent or be stateless.
16. The same problem has affected UK born children
since 1983 under the British Nationality Act 1981. Before then,
the simple ius soli rule had ensured that every child born (or
found in infancy) in the UK was automatically fully British. Since
1983 the child must have one parent who is a British citizen or
"settled" under immigration law: otherwise the child
takes the nationality of a parent when the parent's country provides
for this or is born stateless within a territory. There have been
at least a few hundred stateless deaths a year, but numbers are
not accurately known, since only those applying for registration
17. Perhaps one of the most worrying features
of the Draft Bill is the abolition of the right of abode in favour
if "immigration permission". There could surely be no
more striking instance of the primacy of immigration law over
nationality law. A British citizen is to be free to enter and
leave, and stay in the UK subject to "any requirements or
restrictions imposed or by virtue of this Act or any other enactment".
Given the existing provisions on expulsion intended chiefly to
deal with suspected terrorists who have been convicted of no offence,
and likely future extensions of executive powers, this provision-
which removes the only statutory right of citizenship defined
in nationality legislation opens up frightening possibilities.
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