British Nationality Act 1981: Difference between revisions
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|citation = 1981 c. 61 |
|citation = 1981 c. 61 |
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|year = 1981 |
|year = 1981 |
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|statute_book_chapter= 1981 c. 61 |
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|introduced_by = [[William Whitelaw, 1st Viscount Whitelaw|William Whitelaw]], [[Home Secretary]] |
|introduced_by = [[William Whitelaw, 1st Viscount Whitelaw|William Whitelaw]], [[Home Secretary]] |
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|territorial_extent = {{ublist|[[United Kingdom]]|[[Crown |
|territorial_extent = {{ublist|[[United Kingdom]]|[[Crown Dependencies]]|[[British Overseas Territories]]}} |
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|royal_assent = 30 October 1981 |
|royal_assent = 30 October 1981 |
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|commencement = 1 January 1983 |
|commencement = 1 January 1983 |
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|repeal_date= |
|repeal_date= |
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|amends = {{Collapsible list |
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| ⚫ | |||
|framestyle=border:none; padding:0; <!--Hides borders and improves row spacing--> |
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| ⚫ | |title={{small|Amended legislation}}|[[Act of Settlement 1701]]|[[Burma Independence Act 1947]]|[[British Nationality Act 1948]]|[[Ireland Act 1949]]|[[Visiting Forces Act 1952]]|[[Ghana Independence Act 1957]]|[[Federation of Malaya Independence Act 1957]]|[[Adoption Act 1958]]|[[Cyprus Act 1960]]|[[Nigeria Independence Act 1960]]|[[Sierra Leone Independence Act 1961]]|[[Tanganyika Independence Act 1961]]|[[Civil Aviation (Euro-control) Act 1962]]|[[Commonwealth Immigrants Act 1962]]|[[South Africa Act 1962]]|[[Jamaica Independence Act 1962]]|[[Trinidad and Tobago Independence Act 1962]]|[[Uganda Independence Act 1962]]|[[Malaysia Act 1963]]|[[Kenya Independence Act 1963]]|[[Zanzibar Act 1963]]|[[International Headquarters and Defence Organisations Act 1964]]|[[Adoption Act 1964]]|[[Zambia Independence Act 1964]]|[[Diplomatic Privileges Act 1964]]|[[Malta Independence Act 1964]]|[[Gambia Independence Act 1964]]|[[Guyana Independence Act 1966]]|[[Botswana Independence Act 1966]]|[[Lesotho Independence Act 1966]]|[[Singapore Act 1966]]|[[Barbados Independence Act 1966]]|[[West Indies Act 1967]]|[[Aden, Perim and Kuria Muria Islands Act 1967]]|[[Mauritius Independence Act 1968]]|[[Consular Relations Act 1968]]|[[Adoption Act 1968]]|[[Swaziland Independence Act 1968]]|[[Hovercraft Act 1968]]|[[Tanzania Act 1969]]|[[Family Law Reform Act 1969]]|[[Tonga Act 1970]]|[[Fiji Independence Act 1970]]|[[Tribunals and Inquiries Act 1971]]|[[Immigration Act 1971]]|[[Sri Lanka Republic Act 1972]]|[[Bahamas Independence Act 1973]]|[[Pakistan Act 1973]]|[[Bangladesh Act 1973]]|[[Malta Republic Act 1975]]|[[Children Act 1975]]|[[Seychelles Act 1976]]|[[Adoption Act 1976]]|[[Trinidad and Tobago Republic Act 1976]]|[[Solomon Islands Act 1978]]|[[Tuvalu Act 1978]]|[[Judicature (Northern Ireland) Act 1978]]|[[Adoption (Scotland) Act 1978]]|[[Interpretation Act 1978]]|[[Kiribati Act 1979]]|[[Zimbabwe Act 1979]]|[[Papua New Guinea, Western Samoa and Nauru (Miscellaneous Provisions) Act 1980]]|[[New Hebrides Act 1980]]|[[Belize Act 1981]]}} |
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|replaces = {{ubl|[[British Nationality Act 1958]]|[[British Nationality Act 1964]]|[[British Nationality (No. 2) Act 1964]]|[[British Nationality Act 1965]]|[[Newfoundland (Consequential Provisions) Act 1950]]}} |
|replaces = {{ubl|[[British Nationality Act 1958]]|[[British Nationality Act 1964]]|[[British Nationality (No. 2) Act 1964]]|[[British Nationality Act 1965]]|[[Newfoundland (Consequential Provisions) Act 1950]]}} |
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|amendments = {{Collapsible list |
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| ⚫ | |||
|framestyle=border:none; padding:0; <!--Hides borders and improves row spacing--> |
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| ⚫ | |title={{small|Amending legislation}}|[[British Nationality (Falkland Islands) Act 1983]]|[[British Overseas Territories Act 2002]]|[[Borders, Citizenship and Immigration Act 2009]]|[[Adoption (Intercountry Aspects) Act 1999]]|[[Nationality Immigration and Asylum Act 2002]]|Immigration (European Economic Area) Regulations 2006|[[Adoption and Children Act 2002]]|Human Fertilisation and Embryology (Parental Orders) Regulations 2018|Human Fertilisation and Embryology (Parental Orders) Regulations 2010|Treaty of Lisbon (Changes in Terminology) Order 2011|[[Civil Partnership Act 2004]]|[[Immigration, Asylum and Nationality Act 2006]]|[[Immigration Act 2014]]|Hong Kong (British Nationality) Order 1986|[[British Nationality (Hong Kong) Act 1997]]|[[Hong Kong (War Wives and Widows) Act 1996]]|Hong Kong (British Nationality) Order 1986|Immigration (Isle of Man) Order 2008|[[British Nationality (Hong Kong) Act 1990]]|Transfer of Functions of the Asylum and Immigration Tribunal Order 2010|[[Asylum and Immigration (Treatment of Claimants, etc.) Act 2004]]|Legislative Reform (Overseas Registration of Births and Deaths) Order 2014|British Nationality Act 1981 (Remedial) Order 2019|[[Criminal Justice Act 1982]]|[[Criminal Procedure (Scotland) Act 1975]]|Fines and Penalties (Northern Ireland) Order 1984|Government of Wales Act 2006 (Consequential Modifications, Transitional Provisions and Saving) Order 2009|Civil Partnership (Opposite-sex Couples) Regulations 2019|[[Human Fertilisation and Embryology Act 2008]]|British Nationality Act 1981 (Commencement) Order 1982|[[Statute Law (Repeals) Act 1995]]|[[Citizenship (Armed Forces) Act 2014]]|Mental Health Act 1983|Saint Christopher and Nevis Modification of Enactments Order 1983|British Nationality (Brunei) Order 1983|British Nationality (The Gambia) Order 2015|British Nationality (The Gambia) Order 2018|British Nationality (Maldives) Order 2017|British Nationality (Pakistan) Order 1989|British Nationality (Rwanda) Order 2010|British Nationality (South Africa) Order 1994|British Nationality (Namibia) Order 1990|Citizenship Oath and Pledge (Welsh Language) Order 2007|British Nationality Act 1981 (Amendment of Schedule 6) Order 2009|British Nationality Act 1981 (Amendment of Schedule 6) Order 2001|[[Electoral Administration Act 2006]]|[[Aviation Security Act 1982]]|[[Civil Aviation Act 1982]]|[[National Health Service (Consequential Provisions) Act 2006]]}} |
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|related_legislation= |
|related_legislation= |
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|repealing_legislation= |
|repealing_legislation= |
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The '''British Nationality Act 1981 '''(c.61) is<!-- The past tense is not used in the English language for legislation which has not been or not yet been repealed in its entirety. --> an [[ |
The '''British Nationality Act 1981 '''(c. 61) is<!-- The past tense is not used in the English language for legislation which has not been or not yet been repealed in its entirety. --> an [[act of the Parliament of the United Kingdom]] concerning [[British nationality]] since 1 January 1983. |
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==History== |
==History== |
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* [[Immigration, Asylum and Nationality Act 2006]] |
* [[Immigration, Asylum and Nationality Act 2006]] |
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* [[Borders, Citizenship and Immigration Act 2009]] |
* [[Borders, Citizenship and Immigration Act 2009]] |
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* [[Citizenship (Armed Forces) Act 2014]] |
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* [[Nationality and Borders Act 2022]] |
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* British Nationality (Regularisation of Past Practice) Act 2023 |
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* British Nationality (Irish Citizens) Act 2024 |
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==Objectives of the Act== |
==Objectives of the Act== |
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The Act also modified the application of ''[[jus soli]]'' in 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 residency|permanent resident]]). |
The Act also modified the application of ''[[jus soli]]'' in 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 residency|permanent resident]]). |
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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 |
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. |
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===Relation to Immigration Act 1971=== |
===Relation to Immigration Act 1971=== |
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{{Further|Immigration Act 1971}} |
{{Further|Immigration Act 1971}} |
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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.<ref name=JZ>{{cite web |title=The Secretary of State for the Home Department v JZ (Zambia) |url=https://webs.um.es/mariajose.marin1/miwiki/doku.php?id=corpus_testing_site&rev=1461852484 |publisher=[[England and Wales Court of Appeal]] |others=[2016] EWCA Civ 116 Case No: C5/2014/3293 |at=paras. 15-19 |date=2 February 2016}}</ref><ref name=Ize-laymu>{{cite web |title=The Secretary of State for the Home Department v Ize-laymu |url=https://www.casemine.com/judgement/uk/5b2897d82c94e06b9e19c38b |publisher=[[England and Wales Court of Appeal]] |via=Casemine.com |others=[2016] EWCA Civ 118, [2016] Imm AR 771 |at=paras. 17-18 |date=1 March 2016}}</ref> |
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.<ref name=JZ>{{cite web |title=The Secretary of State for the Home Department v JZ (Zambia) |url=https://webs.um.es/mariajose.marin1/miwiki/doku.php?id=corpus_testing_site&rev=1461852484 |publisher=[[England and Wales Court of Appeal]] |others=[2016] EWCA Civ 116 Case No: C5/2014/3293 |at=paras. 15-19 |date=2 February 2016 |access-date=7 July 2019 |archive-date=7 July 2019 |archive-url=https://web.archive.org/web/20190707202256/https://webs.um.es/mariajose.marin1/miwiki/doku.php%3Fid%3Dcorpus_testing_site%26rev%3D1461852484 |url-status=dead }}</ref><ref name=Ize-laymu>{{cite web |title=The Secretary of State for the Home Department v Ize-laymu |url=https://www.casemine.com/judgement/uk/5b2897d82c94e06b9e19c38b |publisher=[[England and Wales Court of Appeal]] |via=Casemine.com |others=[2016] EWCA Civ 118, [2016] Imm AR 771 |at=paras. 17-18 |date=1 March 2016}}</ref> |
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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.<ref name=JZ /><ref name=Ize-laymu /> |
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.<ref name=JZ /><ref name=Ize-laymu /> |
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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.{{cn|date=July 2023}} 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). |
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===Other changes=== |
===Other changes=== |
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The Act made a variety of other changes to the law: |
The Act made a variety of other changes to the law: |
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* Mothers as well as fathers were allowed to pass on British nationality to their children.<ref>{{cite book |last1=Fransman |first1=Laurie |title=Fransman's British Nationality Law |date=2011 |publisher=[[Bloomsbury Professional]] |location=Haywards Heath, West Sussex |isbn=978-1-84592-095-1 |edition=3rd}}{{Rp|284}}</ref> |
* 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 {{efn|if the mother did not have settled status}}) had to be [[Legitimacy (family law)|married]].<ref>{{cite book |last1=Fransman |first1=Laurie |title=Fransman's British Nationality Law |date=2011 |publisher=[[Bloomsbury Professional]] |location=Haywards Heath, West Sussex |isbn=978-1-84592-095-1 |edition=3rd}}{{Rp|284}}</ref> |
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* 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. |
* 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. |
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* [[Right of Abode (United Kingdom)|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. |
* [[Right of Abode (United Kingdom)|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 [[Commonwealth_citizen#Acquisition_and_loss|not left, or had membership suspended]] since then). |
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* 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.<ref>Laurie Fransman, ''British Nationality Law'' (1997) p 238.</ref> |
* 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.<ref>Laurie Fransman, ''British Nationality Law'' (1997) p 238.</ref> |
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* Special provision was made for persons from [[Gibraltar]] to acquire British citizenship. |
* Special provision was made for persons from [[Gibraltar]] to acquire British citizenship. [[BOTA 2002|Since 2002]], this mainly relates to EU nationals who have acquired [[Overseas Territory Citizen]] status to live in Gibraltar. |
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* 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.<ref>{{cite book |last1=Fransman |first1=Laurie |title=Fransman's British Nationality Law |date=2011 |publisher=[[Bloomsbury Professional]] |location=Haywards Heath, West Sussex |isbn=978-1-84592-095-1 |edition=3rd}}{{Rp|53}}</ref> |
* 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.<ref>{{cite book |last1=Fransman |first1=Laurie |title=Fransman's British Nationality Law |date=2011 |publisher=[[Bloomsbury Professional]] |location=Haywards Heath, West Sussex |isbn=978-1-84592-095-1 |edition=3rd}}{{Rp|53}}</ref> |
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* British Crown Colonies were renamed ''British Dependent Territories'' (subsequently amended to ''British Overseas Territories'') |
* British Crown Colonies were renamed ''British Dependent Territories'' (subsequently amended to ''British Overseas Territories'') |
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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. |
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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==Legal principles== |
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==Criticisms== |
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===Commonwealth Immigrants Act 1962 & 1968=== |
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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 |
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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: |
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: |
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'''Commonwealth Immigrants Act 1962''': |
'''Commonwealth Immigrants Act 1962''': |
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{{ |
{{quote|PART I |
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CONTROL OF IMMIGRATION |
CONTROL OF IMMIGRATION |
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'''Commonwealth Immigrants Act 1968''': |
'''Commonwealth Immigrants Act 1968''': |
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{{ |
{{quote|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:- |
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* "(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,- |
* "(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,- |
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{{blockquote|''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''}}<ref>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 of Bermuda|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)</ref> |
{{blockquote|''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''}}<ref>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 of Bermuda|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)</ref> |
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Bermuda is not the only territory whose citizenship rights were laid down in a Royal Charter. In regards to [[Saint Helena|St. Helena]], Lord Beaumont of Whitley in the [[House of Lords]] debate on the ''British Overseas Territories Bill'' on 10 July 2001,<ref>{{Cite web|url= |
Bermuda is not the only territory whose citizenship rights were laid down in a Royal Charter. In regards to [[Saint Helena|St. Helena]], Lord Beaumont of Whitley in the [[House of Lords]] debate on the ''British Overseas Territories Bill'' on 10 July 2001,<ref>{{Cite web|url=https://api.parliament.uk/historic-hansard/lords/2001/jul/10/british-overseas-territories-bill-hl|title=British Overseas Territories Bill [H.L.] (Hansard, 10 July 2001)|website=[[Hansard|Parliamentary Debates (Hansard)]] |date=10 July 2001|access-date=8 January 2021}}</ref> stated: |
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{{blockquote|Citizenship was granted irrevocably by Charles I. It was taken away by Parliament because of growing opposition to immigration at the time.}} |
{{blockquote|Citizenship was granted irrevocably by Charles I. It was taken away by Parliament because of growing opposition to immigration at the time.}} |
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| ⚫ | |||
==After the Act== |
==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. |
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. |
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== 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. |
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However, CUKCs from Hong Kong had lost their right of abode in the United Kingdom [[Commonwealth Immigrants Act 1968|in 1968]], unless they were already resident in the United Kingdom before the Commonwealth Immigrants Act. This decision would eventually be [[British_National_(Overseas)_passport#Use_in_the_United_Kingdom|reversed in 2021]]. |
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| ⚫ | 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|date=June 2020}} Similar legislation was later enacted in [[Australian nationality law|Australia (1986)]], the [[Irish nationality law|Republic of Ireland (2004)]] and [[New Zealand nationality law|New Zealand (2005)]]. |
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==See also== |
==See also== |
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* [[British nationality law]] |
* [[British nationality law]] |
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* [[History of British nationality law]] |
* [[History of British nationality law]] |
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* [[Zola Budd]] |
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==References== |
==References== |
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{{Reflist}} |
{{Reflist}} |
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{{notelist}} |
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==External links== |
==External links== |
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*{{wikisource-inline|single=true}} |
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* {{UK-LEG|title=British Nationality Act 1981}} (Note that this website does not always include the most recent amendments: see warning on website.) |
* {{UK-LEG|title=British Nationality Act 1981}} (Note that this website does not always include the most recent amendments: see warning on website.) |
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Latest revision as of 22:41, 16 September 2024
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
[edit]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:
- British Nationality (Falkland Islands) Act 1983
- Hong Kong Act 1985 and Hong Kong (British Nationality) Order 1986
- British Nationality (Hong Kong) Act 1990, which introduced the British Nationality Selection Scheme
- Hong Kong (War Wives and Widows) Act 1996
- British Nationality (Hong Kong) Act 1997
- Adoption (Intercountry Aspects) Act 1999
- British Overseas Territories Act 2002
- Nationality, Immigration and Asylum Act 2002
- Immigration, Asylum and Nationality Act 2006
- Borders, Citizenship and Immigration Act 2009
- Citizenship (Armed Forces) Act 2014
- Nationality and Borders Act 2022
- British Nationality (Regularisation of Past Practice) Act 2023
- British Nationality (Irish Citizens) Act 2024
Objectives of the Act
[edit]Reclassification of United Kingdom and Colonies citizenship
[edit]The Act reclassified Citizenship of the United Kingdom and Colonies (CUKC) into three categories:
- British citizenship
- British Dependent Territories citizenship (BDTC); and
- British Overseas citizenship.
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
[edit]The Act also modified the application of jus soli in 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
[edit]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
[edit]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.
Legal principles
[edit]Commonwealth Immigrants Act 1962 & 1968
[edit]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.
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
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
[edit]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
[edit]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
[edit]References
[edit]- ^ Randall Hansen (2000). Citizenship and Immigration in Postwar Britain. Oxford UP. pp. 207–8. ISBN 978-0-19-158301-8.
- ^ 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) - ^ 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) - ^ Fransman, Laurie (2011). Fransman's British Nationality Law (3rd ed.). Haywards Heath, West Sussex: Bloomsbury Professional. ISBN 978-1-84592-095-1.: 284
- ^ Laurie Fransman, British Nationality Law (1997) p 238.
- ^ Fransman, Laurie (2011). Fransman's British Nationality Law (3rd ed.). Haywards Heath, West Sussex: Bloomsbury Professional. ISBN 978-1-84592-095-1.: 53
- ^ 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"
- ^ 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"
- ^ Exec. Order No. 1 (April 10, 1601; in English) King of England
- ^ "No. 1: First Charter of Virginia". originalsources.com. Western Standard Publishing Company. Retrieved 11 September 2021.
- ^ "No. 2: Second Charter of Virginia". originalsources.com. Western Standard Publishing Company. Retrieved 11 September 2021.
- ^ "No. 3: Third Charter of Virginia". originalsources.com. Western Standard Publishing Company. Retrieved 11 September 2021.
- ^ 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
- ^ 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)
- ^ "British Overseas Territories Bill [H.L.] (Hansard, 10 July 2001)". Parliamentary Debates (Hansard). 10 July 2001. Retrieved 8 January 2021.
- ^ if the mother did not have settled status
External links
[edit]
The full text of British Nationality Act 1981 at Wikisource- Text of the British Nationality Act 1981 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk. (Note that this website does not always include the most recent amendments: see warning on website.)
