British subject

The term "British subject" has several different meanings depending on the time period. Before 1949, it referred to almost all subjects of the British Empire (including the United Kingdom, Dominions, and colonies, but excluding protectorates and protected states). Between 1949 and 1983, the term was synonymous with Commonwealth citizen. Currently, it refers to people possessing a class of British nationality largely granted under limited circumstances to those connected with Ireland or British India born before 1949. Individuals with this nationality are British nationals and Commonwealth citizens, but not British citizens.

The status under the current definition does not automatically grant the holder right of abode in the United Kingdom but most British subjects do have this entitlement. About 32,400 British subjects hold active British passports with this status and enjoy consular protection when travelling abroad; fewer than 800 do not have right of abode in the UK.

Nationals of this class without right of abode are subject to immigration controls when entering the UK. If they hold no other citizenship, British subjects without right of abode in the UK are effectively stateless, as they are not guaranteed the right to enter the country in which they are nationals.

Background

Development from feudal allegiance

See also: History of British nationality law § Early English and British nationality law, and History of citizenship § Great Britain

Before the concept of nationality was codified in legislation, inhabitants of English communities owed allegiance to their feudal lords, who were themselves vassals of the monarch. This system of loyalty, indirectly owed to the monarch personally, developed into a general establishment of subjecthood to the Crown.^[1] Calvin's Case in 1608 established the principle of jus soli, that all those who were born within Crown dominions were natural-born subjects.^[2] After the Acts of Union 1707, English and Scottish subjects became British subjects.^[1][3] Natural-born subjects were considered to owe perpetual allegiance to the Crown,^[4] and could not voluntarily renounce British subject status until 1870, when it was first permitted.^[5]

Prior to 1708, foreigners could only be naturalised through Acts of Parliament. Although procedures were created after this point for aliens to become subjects, personalised naturalising legislation continued to be enacted until 1975. Additionally, the monarch could personally make any individual a subject by royal prerogative.^[6] By this method, a foreigner became a denizen – although they were no longer considered an alien, they could not pass subject status to their children by descent and were barred from Crown service and public office.^[4] This mechanism was no longer used after 1873.^[7]

Until the mid-19th century, it was unclear whether nationality regulations in Great Britain (the United Kingdom from 1801) were applicable elsewhere in the Empire. Individual colonies had each developed their own procedures and requirements for naturalisation, granting subject status at the discretion of those local governments.^[8] In 1847, Parliament formalised a clear distinction between subjects who were naturalised in the UK and those who became British subjects in other territories. Individuals naturalised in the UK were deemed to have received the status by imperial naturalisation, which was valid throughout the Empire. Those naturalised in a colony were said to have gone through local naturalisation and were given subject status valid only within the relevant territory.^[6] However, when travelling outside of the Empire, British subjects who were locally naturalised in a colony were still entitled to imperial protection.^[9]

British subject status was codified in statute law for the first time by the British Nationality and Status of Aliens Act 1914, which formalised the status as a common nationality among the United Kingdom, its colonies, and the self-governing Dominions. Dominions that adopted this Act as part of their own nationality laws (Australia, Canada, Ireland, Newfoundland, New Zealand, and South Africa) were authorised to grant subject status to aliens by imperial naturalisation.^[10]

During this time, British subject status was the principal form of British nationality.^[3] There were certain territories that came under British jurisdiction but were not formally incorporated as Crown territory proper. These included protectorates, protected states, League of Nations mandates, and United Nations trust territories. Because they were foreign lands, birth in one of these areas did not automatically confer British subject status. Instead, most people associated with these territories were designated as British protected persons.^[11]

Transition to Commonwealth citizenship

See also: British Nationality Act 1948 and Commonwealth citizen

Following the First World War, the Dominions developed distinct national identities. Britain formally recognised this at the 1926 Imperial Conference, jointly issuing the Balfour Declaration with all the Dominion heads of government, which stated that the United Kingdom and Dominions were autonomous and equal to each other within the British Commonwealth of Nations. Legislative independence of the Dominions was given legal effect after passage and ratification of the Statute of Westminster 1931.^[12] Diverging developments in Dominion nationality laws, as well as growing assertions of local national identity separate from that of Britain and the Empire, culminated with the creation of Canadian citizenship in 1946.^[13] Combined with the approaching independence of India and Pakistan in 1947, nationality law reform was necessary at this point to address ideas that were incompatible with the previous system.^[14]

The British Nationality Act 1948 redefined British subject as any citizen of the United Kingdom, its colonies, or other Commonwealth countries. Commonwealth citizen was first defined in this Act to have the same meaning.^[15] This alternative term was necessary to retain a number of newly independent countries in the Commonwealth that wished to become republics rather than preserve the monarch as head of state.^[16] The change in naming also indicated a shift in the base theory to this aspect of British nationality; allegiance to the Crown was no longer a requirement to possess British subject status and the common status would be maintained by voluntary agreement among the various members of the Commonwealth.^[17]

British subject/Commonwealth citizen status co-existed with the citizenships of each Commonwealth country. A person born in Australia would be both an Australian citizen and a British subject.^[18] British subjects under the previous meaning who held that status on 1 January 1949 because of a connection with the United Kingdom or a remaining colony became Citizens of the United Kingdom and Colonies (CUKC). CUKC status was the principal form of British nationality during this period of time.^[19]

There was also a category of people called British subjects without citizenship (BSWC). Irish citizens who fulfilled certain requirements could file formal claims with the Home Secretary to remain British subjects under this definition. Additionally, those who did not qualify for CUKC status or citizenship in other Commonwealth countries, or were connected with a country that had not yet defined citizenship laws, would transitionally remain British subjects in this group.^[20]

All British subjects initially held an automatic right to settle in the United Kingdom,^[21] though non-white immigration into the United Kingdom was systemically discouraged.^[22] This entitlement was part of a wider initiative to preserve close relationships with certain Dominions and colonies (Australia, Canada, New Zealand, South Africa, and Southern Rhodesia) and to moderate nationalist attitudes within the Commonwealth.^[23] It was thought that only a limited number of non-white colonial migrants would ever seek to settle in the UK.^[24] However, strong economic conditions in Britain after the Second World War attracted an unprecedented wave of colonial migration. In response to growing anti-immigration sentiment,^[25] Parliament imposed immigration controls on subjects originating from outside the British Islands with the Commonwealth Immigrants Act 1962.^[26] The Immigration Act 1971 relaxed controls on patrials, subjects whose parents or grandparents were born in the United Kingdom,^[27] and gave effective preferential treatment to Commonwealth citizens from white-majority countries.^[28]

Outside of the United Kingdom, British subjects already did not have an automatic right to settle. Australia, Canada, New Zealand, and South Africa had immigration restrictions in place for British subjects from outside their jurisdictions targeted at non-white migrants since the late 19th century.^[29] After 1949, non-local British subjects under the new definition who were resident in these independent Commonwealth countries continued to retain certain privileges. This included eligibility to vote in elections, for preferred paths to citizenship, and for welfare benefits. British subjects were eligible to vote in New Zealand until 1975^[30] and Australia until 1984 (though subjects on the electoral roll in that year are still eligible).^[31] In Canada, voting eligibility was revoked at the federal level in 1975, but not fully phased out in provinces until 2006.^[32]

Because each country now defined British subject in separate pieces of legislation and these definitions were not always updated or kept at parity, individuals could have been British subjects in one country at a given time but not another. For example, a South African citizen in 1967 would have been considered a British subject in Canada, but not the United Kingdom or South Africa. The country was included in the list of Commonwealth nations in Canadian law,^[33] despite South Africa having left the Commonwealth in 1961 and not rejoining it until 1994.^[34]

Redefinition as residual nationality class

See also: British Nationality Act 1981

By the 1980s, most colonies of the British Empire had become independent. Parliament updated nationality law to reflect the more modest geographical boundaries of the United Kingdom.^[35] The British Nationality Act 1981 recategorised CUKCs into different nationality groups based on patriality and birthplace. CUKCs with the right of abode in the United Kingdom or those closely connected with the UK, Channel Islands, or Isle of Man became British citizens while those connected with a remaining colony became British Dependent Territories citizens (later renamed British Overseas Territories citizens). Those who could not be reclassified into either of these statuses and who were no longer associated with a British territory became British Overseas citizens.^[36]

While all nationals under those categories continue to be Commonwealth citizens, the definition of British subject was limited to its present meaning. It currently only includes the category of people previously called British subjects without citizenship as well as women who married such persons and registered for the status. The term is no longer synonymous with Commonwealth citizen. British citizens are not British subjects as defined by the 1981 Act.^[36]

In other Commonwealth countries that still retained it, British subject status under the previous definition was progressively abolished. The status remained in law in South Africa until 1961,^[37] Canada until 1977,^[38] New Zealand until 1977,^[39] and Australia until 1987.^[18]

Though the British government has never conceded to suggestions that its policies and legislation concerning nationality were discriminatory or racist, Parliament has since revised nationality law to correct remaining cases of statelessness caused by deprivation of the right to settle in the UK after 1962. The Nationality, Immigration and Asylum Act 2002 granted British subjects who do not hold and have not lost an alternative nationality the right to register as British citizens.^[40]

Acquisition and loss

See also: British nationality law and British nationality law and the Republic of Ireland

Naturalisation as a British subject is not possible. It is expected that British subjects will obtain citizenship in the country they reside in and that the number of active status holders will eventually dwindle until there are none.^[41] It is currently only possible to transfer British subject status by descent if an individual born to a British subject parent would otherwise be stateless.^[42] The status was granted in 1949 to British subjects who did not become CUKCs or citizens of any other Commonwealth country or the Republic of Ireland. Irish citizens born before 1949 may make formal claims at any time to retain status as British subjects based on: Crown service in the UK, passports or certificates of entitlement describing holders as British subjects, or proof of other associations with the UK or any former British territory. Women married to British subjects were also able to register for the status before 1983.^[43] Virtually all other individuals with this status hold it by virtue of their own, or their father's, birth in former British India.^[44]

British subjects automatically lose the status if they acquire any other nationality, including other British nationality classes, unless they possess the status through a connection with Ireland. It can also be voluntarily relinquished by a declaration made to the Home Secretary, provided that an individual already possesses or intends to acquire another nationality. British subjects may be stripped of the status if it was fraudulently acquired. There is no path to restore British subject status once lost.^[45]

Rights and privileges

British subjects who do not have right of abode in the United Kingdom are exempted from obtaining a visa or entry certificate when visiting the UK for less than six months.^[46] When travelling in other countries, they may seek British consular protection.^[47] British subjects are not considered foreign nationals when residing in the UK and are entitled to certain rights as Commonwealth citizens.^[36] These include exemption from registration with local police,^[48] voting eligibility in UK elections,^[49] and the ability to enlist in the British Armed Forces.^[50] British subjects are also eligible to serve in all Civil Service posts,^[51] be granted British honours, receive peerages, and sit in the House of Lords.^[36] If given indefinite leave to remain (ILR), they are eligible to stand for election to the House of Commons^[52] and local government.^[53][54][55] British subjects only have right of abode in the UK if they were born to at least one British subject parent who themself was born in the UK or, if they are female, were married to a person with right of abode before 1983.^[56] Almost every person who still retains British subject status has UK right of abode. About 32,400 people hold active British passports with the status, and fewer than 800 do not have right of abode.^[57]

All British subjects may become British citizens by registration, rather than naturalisation, after residing in the United Kingdom for more than five years and possessing either right of abode or ILR for more than one year. Registration in this way confers citizenship otherwise than by descent, meaning that children born outside of the UK to those successfully registered will be British citizens by descent.^[44] British subjects with right of abode may also register for citizenship without residence requirements by virtue of their birth to a parent born in the UK. Applicants who successfully register in this way become British citizens by descent and cannot pass citizenship to their children born outside of the UK.^[58] Individuals who become British citizens would automatically lose British subject status if they are not connected with Ireland. Otherwise, British subjects may also be British citizens simultaneously.^[44] British subjects who do not hold and have not lost any other nationality on or after 4 July 2002 are entitled to register as British citizens.^[59]

Restrictions

In a case before Court of Justice of the European Union, it was argued by one of the parties that British subjects who hold no other nationality are de facto stateless because they do not have a right to enter the country that claims them as nationals.^[60] The Nationality, Immigration and Asylum Act 2002 allowed these individuals to register as British citizens, after which statelessness was generally resolved for people who were solely British subjects.^[59]

United Kingdom

See also: Right of abode in the United Kingdom

British subjects without right of abode are subject to immigration controls when entering the United Kingdom.^[47] They are required to pay an immigration health surcharge to access National Health Service benefits when residing in the UK for longer than six months^[61] and do not qualify for most welfare programmes.^[62]

European Union

Before the United Kingdom withdrew from the European Union on 31 January 2020, full British citizens and British subjects with right of abode in the UK were European Union citizens.^[63] British subjects without right of abode in the UK were not EU citizens and did not enjoy freedom of movement in other EU countries.^[64] They were,^[65] and continue to be, exempted from obtaining visas when visiting the Schengen Area.^[63]

References

Citations

1. Historical background information on nationality, p. 5.
2. Price 1997, pp. 77–78.
3. Re Canavan [2017] HCA 45, at para. 116.
4. Blackstone 1765.
5. Historical background information on nationality, pp. 8–9.
6. Historical background information on nationality, p. 8.
7. Historical background information on nationality, p. 9.
8. Karatani 2003, pp. 55–56.
9. Karatani 2003, p. 56.
10. Historical background information on nationality, p. 10.
11. "Protectorates and Protected States" (PDF). Retrieved 1 April 2019.
12. Karatani 2003, pp. 86–88.
13. Karatani 2003, pp. 114–115.
14. Karatani 2003, pp. 122–126.
15. British Nationality Act 1948.
16. Weis 1979, p. 17.
17. Karatani 2003, pp. 116–118.
18. Thwaites, Rayner (2017). "Report on Citizenship Law: Australia" (PDF). European University Institute. p. 2. (PDF) from the original on 4 April 2019. Retrieved 3 April 2019.
19. Re Canavan [2017] HCA 45, at para. 101.
20. Weis 1979, p. 18.
21. McKay 2008.
22. Hansen 1999, p. 90.
23. Hansen 1999, pp. 76–77.
24. Hansen 1999, pp. 87–89.
25. Hansen 1999, pp. 94–95.
26. Evans 1972, p. 508.
27. Evans 1972, p. 509.
28. Paul 1997, p. 181.
29. Huttenback 1973, pp. 116, 120, 132.
30. McMillan 2017, p. 31.
31. Chappell, Chesterman & Hill 2009, p. 98.
32. Maas, Willem (July 2015). Access to electoral rights: Canada (PDF) (Report). European University Institute. pp. 13–14. (PDF) from the original on 28 July 2018. Retrieved 5 April 2019.
33. Banks 1967, pp. 190–191.
34. Turner 2008, p. 45.
35. Paul 1997, pp. 182–183.
36. British Nationality Act 1981.
37. Hobden, Christine (2018). "Report on Citizenship Law: South Africa" (PDF). European University Institute. p. 2. Retrieved 7 April 2019.
38. "Government officials were aware of arcane law that stripped Canadians born abroad of citizenship". National Post. 10 October 2016. Retrieved 7 April 2019.
39. McMillan, Kate; Hood, Anna (2016). "Report on Citizenship Law: New Zealand" (PDF). European University Institute. p. 7. (PDF) from the original on 24 April 2018. Retrieved 7 April 2019.
40. Sawyer, Caroline; Wray, Helena (2014). "Country Report: United Kingdom" (PDF). European University Institute. pp. 8–10. (PDF) from the original on 15 December 2017. Retrieved 28 May 2019.
41. Hansen 2000, p. 219.
42. INPD Letter on British subjects, at para. 19
43. "British subjects" (PDF). 1.0. Home Office. 14 July 2017. pp. 4–6. (PDF) from the original on 3 April 2019. Retrieved 3 April 2019.
44. "Guide B(OTA): Registration as a British citizen" (PDF). Home Office. March 2019. (PDF) from the original on 28 March 2019. Retrieved 29 March 2019.
45. "Nationality policy: renunciation of all types of British nationality" (PDF). 3.0. Home Office. 30 January 2018. (PDF) from the original on 8 January 2019. Retrieved 8 January 2019.
46. Foreign Office Letter on Visa Requirements for British Nationals.
47. "Types of British nationality: British subject". gov.uk. Government of the United Kingdom. from the original on 3 February 2019. Retrieved 3 April 2019.
48. "UK visas and registering with the police". gov.uk. Government of the United Kingdom. from the original on 1 January 2019. Retrieved 2 April 2019.
49. Representation of the People Act 1983.
50. "Nationality". British Army. from the original on 3 April 2019. Retrieved 2 April 2019.
51. "Civil Service Nationality Rules" (PDF). Cabinet Office. November 2007. p. 5. (PDF) from the original on 21 August 2018. Retrieved 2 April 2019.
52. "How can I stand in an election?". Parliament of the United Kingdom. from the original on 7 February 2019. Retrieved 6 April 2019.
53. "Guidance for candidates and agents: Part 1 of 6 – Can you stand for election?" (PDF). Local elections in England and Wales. Electoral Commission. January 2019. p. 3. (PDF) from the original on 2 January 2019. Retrieved 6 April 2019.
54. "Guidance for candidates and agents: Part 1 of 6 – Can you stand for election?" (PDF). Local council elections in Scotland. Electoral Commission. April 2017. p. 3. (PDF) from the original on 8 March 2017. Retrieved 6 April 2019.
55. . Electoral Commission for Northern Ireland. 2019. p. 10. Archived from the original on 7 April 2019. Retrieved 6 April 2019.
56. Evans 1972, p. 511.
57. FOI Letter on Passports.
58. "Prove you have right of abode in the UK: Commonwealth citizens". gov.uk. Government of the United Kingdom. from the original on 14 April 2020. Retrieved 9 May 2020.
59. Nationality, Immigration and Asylum Act 2002.
60. Kaur [2001] C-192/99, at para. 17
61. "UK announces health surcharge". gov.uk. Government of the United Kingdom. 27 March 2015. from the original on 11 December 2018. Retrieved 8 January 2018.
62. Immigration and Asylum Act 1999.
63. Regulation (EU) No 2019/592.
64. Kaur [2001] C-192/99, at para. 19–27
65. Regulation (EU) No 2018/1806 Annex II.

Sources

Legislation and case law

• Re Canavan [2017] HCA 45 (27 October 2017), High Court (Australia)
• Regulation (EU) No 2018/1806 of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement
• Regulation (EU) No 2019/592 of 10 April 2019 amending Regulation (EU) 2018/1806 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, as regards the withdrawal of the United Kingdom from the Union
• The Queen v. Secretary of State for the Home Department, ex parte: Manjit Kaur [2001] EUECJ C-192/99, Case C-192/99, European Court of Justice
• "British Nationality Act 1948", legislation.gov.uk, The National Archives, 1948 c. 56
• "British Nationality Act 1981", legislation.gov.uk, The National Archives, 1981 c. 61
• "Immigration and Asylum Act 1999: Section 115", legislation.gov.uk, The National Archives, 1999 c. 33 (s. 115)
• "Nationality, Immigration and Asylum Act 2002: Section 12", legislation.gov.uk, The National Archives, 2002 c. 41 (s. 12)
• "Representation of the People Act 1983: Section 4", legislation.gov.uk, The National Archives, 1983 c. 2 (s. 4)

Correspondence

• "British Overseas citizens – Nationality, Immigration and Asylum Bill" (PDF). Letter to Beverley Hughes and the Home Secretary. Director, Immigration and Nationality Policy Directorate. 19 June 2002. Retrieved 21 February 2019.{{cite press release}}: CS1 maint: others (link)
• Richard Cooke (13 February 2007). "Letter to the Clerk of the Committee from the Parliamentary Relations and Devolution Team, Foreign and Commonwealth Office". Letter to Select Committee on Foreign Affairs. Retrieved 3 April 2019.
• Smith, T (11 February 2020). "Freedom of Information Request" (PDF). Letter to Luke Lo. HM Passport Office. (PDF) from the original on 27 February 2020. Retrieved 29 February 2020.

Publications

• Banks, Margaret (1967). "The Franchise in Britain and Canada". The University of Toronto Law Journal. 17 (1): 187–194. doi:10.2307/825368. JSTOR 825368.
• Blackstone, William (1765). "Of the People, Whether Aliens, Denizens, or Natives". Commentaries on the Laws of England. Vol. 1. OCLC 747740286.
• Chappell, Louise; Chesterman, John; Hill, Lisa (2009). The Politics of Human Rights in Australia. Cambridge University Press. ISBN 978-0-521-70774-9.
• Evans, J. M. (1972). "Immigration Act 1971". The Modern Law Review. 35 (5): 508–524. doi:10.1111/j.1468-2230.1972.tb02363.x. JSTOR 1094478.
• Hansen, Randall (2000). Citizenship and Immigration in Post-war Britain. Oxford University Press. ISBN 0-19-924054-X.
• Hansen, Randall (1999). "The Politics of Citizenship in 1940s Britain: The British Nationality Act". Twentieth Century British History. 10 (1): 67–95. doi:10.1093/tcbh/10.1.67.
• Huttenback, R.A. (November 1973). "The British Empire as a "White Man's Country" – Racial Attitudes and Immigration Legislation in the Colonies of White Settlement". Journal of British Studies. 13 (1): 108–137. doi:10.1086/385652. JSTOR 175372. S2CID 143685923.
• Karatani, Rieko (2003). Defining British Citizenship: Empire, Commonwealth and Modern Britain. Frank Cass Publishers. ISBN 0-7146-8298-5.
• McKay, James (2008). "The Passage of the 1962 Commonwealth Immigrants Act, a Case-Study of Backbench Power". Observatoire de la Société Britannique (6): 89–108. doi:10.4000/osb.433.
• McMillan, Kate (2017). "Fairness and the borders around political community". In Hall, David (ed.). Fair Borders?: Migration Policy in the Twenty-First Century. Bridget Williams Books. doi:10.7810/9780947518851. hdl:10289/11427. ISBN 9780947518851.
• Paul, Kathleen (1997). Whitewashing Britain: Race and Citizenship in the Postwar Era. Cornell University Press. ISBN 978-0-8014-8440-7.
• Price, Polly J. (1997). "Natural Law and Birthright Citizenship in Calvin's Case (1608)". Yale Journal of Law & the Humanities. 9 (1): 73–145. SSRN 3157386.
• Turner, Barry (2008). Turner, Barry (ed.). The Statesman's Yearbook 2009: The Politics, Cultures and Economies of the World. Macmillan Publishers. doi:10.1007/978-1-349-74027-7. ISBN 978-1-4039-9278-9.
• Weis, Paul (1979). Nationality and Statelessness in International Law (2nd ed.). Sijthoff & Noordhoff. ISBN 90-286-0329-8.

Government reports

• Historical background information on nationality (PDF) (Report). 1.0. Home Office. 21 July 2017. Retrieved 3 April 2019.