This article concerns the history of British nationality law.
Early English and British nationality law
British nationality law has its origins in medieval England. There has always been a distinction in English law between the subjects of the monarch and aliens: the monarch's subjects owed him allegiance, and included those born in his dominions (natural-born subjects) and those who later gave him their allegiance (naturalised subjects or denizens).
A summary of early English common law is provided by Sir William Blackstone, who wrote about the law in 1765–1769. Natural-born subjects were originally those born within the dominion of the crown (). Blackstone describes how various statutes extended the rights of the children of subjects born abroad, until "all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain."
In 1603 the crowns of England and Scotland were united in the individual of James VI and I, in what is known as the Union of the Crowns. In 1701, following some disagreement about the rules of succession to the crown, the English parliament passed the Alien Act 1705 (3 & 4 Ann. c. 6), providing that Scottish nationals would have alien status in the realm of England. However, this was superseded by the Act of Union 1707, which united the realms of England and Scotland.
When the British Empire came into existence, the reach of the crown expanded. British subjects included not only persons within the United Kingdom but also those throughout the British Empire. This included both the more dependent colonies such as Jamaica, Hong Kong and Fiji, as well as the self-governing colonies and dominions, including the Australian colonies, New Zealand, South Africa, Canada and Newfoundland.
Individuals born in the dominion were citizens regardless of the status of their parents: children born to visitors or foreigners acquired citizenship (see ). This reflects the rationale of natural-born citizenship: that citizenship was acquired because British-born subjects would have a 'natural allegiance' to the Crown as a 'debt of gratitude' to the Crown for protecting them through infancy. Therefore, citizenship by birth was perpetual and could not be, at common law, removed or revoked regardless of residency.
By the same reasoning, an 'alien', or foreign-born resident, was seen as unable to revoke their relationship with their place of birth. Therefore, at English common law foreign-born individuals could not become citizens through any procedure or ceremony. Some exceptions to this general principle existed in the common law, to recognise the situation of children born on foreign soil to English (or British after the Act of Union 1707) subjects. The earliest exception was the children of the king's ambassadors, who became subjects of the king even if not born in England. A later, broader, exception was enacted by the Status of Children Born Abroad Act 1350 (25 Edw. 3. Stat. 1) to allow children born abroad to two parents who were subjects to be subjects (extended to Scots born after the union of the crowns by Calvin's Case). Later, the British Nationality Act 1772 (13 Geo. 3. c. 21) made general provision allowing natural-born allegiance (citizenship) to be assumed if the father alone were British.
Generally then, there was no process by which a 'foreigner' not of British parents could become a British citizen. However, two procedures existed by which the individual could become a British subject with some of the rights of citizenship. Firstly, 'naturalisation' granted all the legal rights of citizenship and required an act of parliament be passed. Alternatively, denization allowed a person to gain the rights of citizenship other than political rights. Denization was granted by letters patent, and was granted by the monarch as an exercise of royal prerogative.
Denization was therefore an exercise of executive power, whereas naturalisation was an exercise of legislative power. An example of the latter is the granting of English nationality to the Electress Sophia of Hanover, the heir to the throne under the Act of Settlement 1701 (12 & 13 Will. 3. c. 2). Naturalisation occurred by the passing of the Sophia Naturalization Act 1705 (4 & 5 Ann. c. 16). This act granted English nationality to the electress and to the Protestant "issue of her body", allowing all her future descendants a claim to English nationality. In 1957 Prince Ernest Augustus of Hanover successfully claimed citizenship of the UK and Colonies under this act."Hanover (Electress Sophia of)". Home Office. Although the act was repealed from 1 January 1949 by the British Nationality Act 1948, some descendants can still claim citizenship based on their parent's rights under the law as it existed prior to 1949. However, the Home Office believes that the act does not generally give claimants a right of abode in the United Kingdom. Successful claims will normally be granted to only those with British Overseas Citizen status unless entitled to a right of abode in the UK under the Immigration Act 1971 (c. 77) as in force prior to 1983.
Denization remained the usual form by which foreign-born subjects swore allegiance to the Crown until general naturalisation acts were passed. Naturalisation Acts were passed in 1844, 1847 and 1870. The Naturalization Act 1870 (33 & 34 Vict. c. 14) preserved the process of denization. However, by introducing administrative procedures for naturalising non-British subjects naturalisation became the preferred process.
The Naturalization Act 1870 also introduced the concept of renunciation of British nationality, and provided for the first time that British women who married foreign men should lose their British nationality. This was a radical break from the common law doctrine that citizenship could not be removed, renounced, or revoked.
The loss of nationality at marriage was changed with the adoption of the British Nationality and Status of Aliens Act 1914 (4 & 5 Geo. 5. c. 17). This codified for the first time the law relating to British nationality. However, it did not mark a major change in the substantive content of the law. This was to wait until 1948.
British Nationality and Status of Aliens Act 1914 The British Nationality and Status of Aliens Act 1914 (4 & 5 Geo. 5. c. 17) came into force on 1 January 1915. British subject status was acquired as follows:
birth within His Majesty's dominions naturalisation in the United Kingdom or a part of His Majesty's dominions which had adopted Imperial naturalisation criteria descent through the legitimate male line (child born outside His Majesty's dominions to a British subject father). This was limited to one generation although further legislation in 1922 allowed subsequent generations born overseas to be registered as British subjects within one year of birth. foreign women who married British subject men former British subjects who had lost British subject status on marriage or through a parent's loss of status could resume it in specific circumstances (e.g. if a woman became widowed, or children immediately upon turning 21).
British subject status was normally lost by: naturalisation in a foreign state in the case of a woman, upon marriage to a foreign man. Prior to 1933, British subject status was lost even if the woman did not acquire her husband's nationality. a child of a father who lost British subject status, provided the child also had the father's new nationality. renunciation.
British Nationality Act 1948
The Commonwealth Heads of Government decided in 1948 to embark on a major change in the law of nationality throughout the Commonwealth, following Canada's decision to enact its own citizenship law in 1946. Until then all Commonwealth countries, with the exception of the Irish Free State (see Irish nationality law), had a single nationality status: British subject status. It was decided at that conference that the United Kingdom and the self-governing dominions would each adopt separate national citizenships, but retain the common status of British subject.
The British Nationality Act 1948 (11 & 12 Geo. 6. c. 56) marked the first time that married British women gained independent nationality, regardless of the citizenship of their spouses. It provided for a new status of Citizen of the United Kingdom and Colonies (CUKC), consisting of all those British subjects who had a close relationship (either through birth or descent) with the United Kingdom and its remaining colonies. Each other Commonwealth country did likewise, and also established its own citizenship (with the exception of Newfoundland which became part of Canada on 31 March 1949, Newfoundlanders hence becoming Canadian citizens).
The Act also provided that British subjects could be known by the alternative title Commonwealth citizen.
It was originally envisaged that all British subjects would get one (or more) of the national citizenships being drawn up under the Act, and that the remainder would be absorbed as CUKCs by the British Government. Until they acquired one or other of the national citizenships, these people continued to be British subjects without citizenship. However, some British subjects never became citizens of any Commonwealth country.
Because the nationality laws of India and Pakistan did not provide for citizenship for everyone who was born in their countries, the British Government refused to "declare" their nationality laws for the purposes of the Act, and therefore those British subjects from these countries who did not become Indian or Pakistani citizens were never absorbed as CUKCs by the British Government. They remained British subjects without citizenship.
Due to the imminent withdrawal of the Republic of Ireland from the Commonwealth (which took effect 18 April 1949), special arrangements were made in s.2 of the Act to allow British subjects from Ireland to apply to continue to hold British subject status independently of the citizenship of any Commonwealth country.
Until 1983 the status of British subjects without citizenship was not affected by the acquisition of the citizenship of a non-Commonwealth country.
Acquisition of Citizenship of the UK and Colonies
Under the 1948 Act, CUKC status was acquired by:
birth in the UK or a colony (which does not include birth in the Dominions or children of 'enemy aliens' and diplomats). The immigration status of the parents was irrelevant. naturalisation or registration in the UK or a colony or protectorate legitimate descent from a CUKC father for children born elsewhere. Only the first generation acquired British nationality automatically. Second and subsequent generations could do so only if born outside the Commonwealth (or Ireland) and registered within 12 months of birth or if the father was in Crown Service. incorporation of territory (no persons ever acquired CUKC this way from 1949) declaration marriage
Provisions for acquisition of CUKC by adoption were not included in the 1948 Act itself but were added soon after.
Requirements for Naturalisation or Registration
Citizens of Commonwealth countries, British subjects and Irish citizens were entitled to register as citizens of the UK and Colonies after one year's residence in the UK & Colonies. This period was increased to five years in 1973.
Other persons were required to apply for naturalisation after five years residence.
Citizenship by Descent
Prior to 1983, as a general rule, British nationality could be transmitted from only the father, and parents were required to be married.