Written evidence from GlobalBritons (NBB0026)

Failing to Deal with Historical Racial Discrimination
Embedded in British Nationality Law

Introduction

1. GlobalBritons is an organization established to advocate equal citizenship rights for British nationals without the right of abode in the United Kingdom (UK), who are currently treated as second-class citizens by the British state. This submission is made in response to the Committee’s call for evidence on the Nationality and Borders Bill.

Background

2. The UK does not accord the right to live in the UK to all its nationals. In general, only British citizens have the right of abode in the UK, while British Overseas citizens (BOCs), British Nationals (Overseas) (BN(O)s), British subjects and British protected persons—known as ‘residual’ British nationals, because the legislative intention is that they will die out over time—do not.[1]
3. There are several fundamental international human rights principles that are relevant to this matter:

• Article 15 of the Universal Declaration on Human Rights (UDHR) provides that ‘[e]veryone has the right to a nationality’ and that ‘[n]o one shall be arbitrarily deprived of his nationality…’;
• Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country’; and
• Article 3(2) of Protocol 4 to the European Convention on Human Rights (ECHR Protocol 4) provides that ‘[n]o one shall be deprived of the right to enter the territory of the State of which he is a national’.

4. Because of discriminatory provisions in British immigration and nationality law, the UK has entered a reservation to Article 12(4) of the ICCPR and has signed but not ratified ECHR Protocol 4. As a signatory to ECHR Protocol 4, the UK is obliged to refrain from any act that would defeat the object and purpose of the Protocol.[2]
5. Nevertheless, since signing ECHR Protocol 4 in 1963, the UK has repeatedly passed legislation that has hacked away at the rights of British nationals deemed to be ‘non-patrial’. Most famously, amidst popular hysteria whipped up against ‘coloured’ immigration of East African Asians fleeing racial discrimination in Kenya, the UK passed the Commonwealth Immigrants Act 1968, which imposed immigration control on citizens of the UK & Colonies (CUKCs) with UK passports who were not born, adopted or naturalized in the UK and did not have a parent or grandparent so connected. This was later held by the European Court of Human Rights to amount to racially-motivated degrading treatment contrary to Article 3 of the ECHR,[3] yet the denial of the right of abode to a subset of British nationals based on similar principles remains the basis of the current Immigration Act 1971 (IA 1971).
6. Subsequent legislation has further cemented the second-class status of ‘non-patrial’ British nationals. The British Nationality Act 1981 (BNA 1981) abolished the status of CUKC and divided existing CUKCs into British citizens, British Dependent Territories citizens (BDTCs) and BOCs, depending on whether they had the right of abode in the UK, in a Dependent Territory or in neither. The BNA 1981 also repealed a provision of the IA 1971 whereby CUKCs without the right of abode automatically gained the right of abode upon attaining settled status / indefinite leave to remain (ILR) and having five years’ residence in the UK.[4]
7. The BNA 1981 and the British Nationality (Falklands Islands) Act 1983 also gave citizenship rights to British nationals from two British territories with largely white European/settler populations (i.e., Gibraltar and the Falkland Islands),[5] while arbitrarily denying them to largely non-white BDTCs and residual British nationals from other parts of the world. Commonwealth citizens with a grandparent born in the UK have also had a pathway to British citizenship through the UK Ancestry visa, while most residual British nationals, until the introduction of the recent BN(O) visa, have had no similar pathway to British citizenship.
8. The continued second-class status of residual British nationals is not only contrary to international human rights law, but also demeans the concept of British nationality and Her Majesty’s name, which is invoked at the front of every UK passport held by such nationals.

Statelessness and recent reforms

9. Residual British nationals are not technically stateless, because they hold a form of British nationality. However, as they do not have the right to live in the UK or anywhere else, residual British nationals who do not have citizenship / right of abode in another country are de facto stateless. Per Teh’s case, they are also stateless for the purpose of the Immigration Rules.[6]
10. In 2002, the Home Office estimated that there were 3.3 million BN(O)s, mainly in Hong Kong, and a further 300,000 other residual British nationals, around half of whom were believed to have no other citizenship/nationality.[7] In order to address the issue of de facto statelessness, those residual British nationals with no other citizenship/nationality as of 4 July 2002 were given the right to register as British citizens.[8] However, residual British nationals who for whatever reason lost or gave up their other citizenship/nationality after the relevant date are not eligible for British citizenship under this provision. It is estimated that there are currently more than 1,000 de facto stateless British nationals stuck in limbo in the UK, unable to live and work legally in the UK and unable to be deported anywhere else.[9]
11. On 31 January 2021, following the Chinese government’s imposition of a National Security Law in Hong Kong, the Home Office opened a new pathway to citizenship for 3 million BN(O)s and their dependants by means of a five-year visa leading to ILR and citizenship. However, the remainder of residual British nationals (mostly BOCs) still have no pathway to ILR/citizenship. Other former pathways to British citizenship, such as the Special Voucher Scheme for British nationals connected to East Africa, and concessions granting immediate ILR to residual British nationals granted entry to the UK on work permits or as persons of independent means, were abolished in 2002.

The Nationality and Borders Bill

12. GlobalBritons understands that the present Nationality and Borders Bill is not a comprehensive revision of the British Nationality Act 1981, and is appreciative of having been given the opportunity to participate in a consultation session prior to publication of the Bill. However, we are disappointed that no specific provisions have been included in the published Bill that deal with historical discrimination faced by residual British nationals and the de facto statelessness suffered by some.
13. While we welcome the new discretion of the Secretary of State (inserted by clause 7) to register persons of full age as British citizens, we do not feel that it is wide enough to assist residual British nationals except in exceptional individual circumstances.
14. While we also welcome the new discretion of the Secretary of State (inserted by clause 8) to waive the requirement that British overseas territories citizens and residual British nationals applying for registration as British citizens be physically present in the UK on the day five years before the date of application, we feel that this is mere tinkering at the edges of the existing over-specific residence requirements in section 4 of the BNA 1981.

‘Do these reforms adequately address any remaining areas of unjustified discrimination in British nationality law?’

15. GlobalBritons believes that the Government has failed to apply its mind to how it can address the historical racial discrimination faced by residual British nationals that is embedded in British immigration and nationality law. Fundamentally, we believe that the UK should accord citizenship and the right of abode in the UK to all British nationals, which would allow the UK to withdraw its reservation to Article 12(4) of the ICCPR and to ratify ECHR Protocol 4.
16. We understand that the Government takes the view that residual British nationals should seek to build their lives as citizens of the independent Commonwealth countries where many of them live, and should not look to the UK for a right of residence. However, this does not deal with the fact that many residual British nationals do in fact migrate to the UK due to hardships, including racial discrimination, faced at home, and that many have renounced or lost the citizenship or nationality of their other country.
17. The ongoing discrimination faced by residual British nationals is primarily a distinction of immigration law. British citizens currently have the right of abode in the UK, while residual British nationals in general do not. The Secretary of State does, however, have the discretion to grant residual British nationals the right to live and work in the UK (as she has done recently for 3 million BN(O)s following the enactment of the Hong Kong National Security Law). The Secretary of State could similarly grant the right to live and work in the UK to de facto stateless BOCs currently in limbo in the UK. This could be either for a fixed period leading to ILR (as was done for BN(O)s) or as an immediate grant of ILR (as is now being done for various Afghan refugees).
18. As far as nationality law is concerned, however, the Secretary of State is currently constrained by the stringent residence requirements contained in section 4 of the BNA 1981, which require not less than five years residence in the UK (with not more than 450 days’ absences), the last twelve months of which must be with settled status (with not more than 90 days’ absences), before a residual British national can be registered as a British citizen. This mirrors the requirements for the naturalization of foreign nationals under Schedule 1 to the BNA 1981. However, we would note the crucial distinction that at least for British nationals born before 1983—and unlike foreign nationals applying for naturalization—becoming a citizen of the UK is the restoration of a citizenship status that they previously enjoyed and that was unjustly taken away from them when the BNA 1981 came into force in 1983.
19. In our view, the over-stringent residence requirements in section 4 of the BNA 1981 unduly restrict the ability of a future Secretary of State to shorten the pathway to citizenship for residual British nationals such as BN(O)s and BOCs, and unnecessarily complicates and increases the cost of such a pathway.

Conclusion

20. We therefore recommend that—

(1)         a new section 5A be inserted into the BNA 1981 to grant a right to registration as a British citizen to every residual British national;[10] and

(2)         section 4 of the BNA 1981 be amended to grant a right to registration as a British citizen to every residual British national who has the right of abode or who has been granted settlement/ILR in the UK.[11]

10/09/2021