LEGISLATION

DOIhttp://doi.org/10.1111/j.1468-2230.1982.tb02476.x
AuthorCharles Blake
Date01 March 1982
Published date01 March 1982
LEGISLATION
CITIZENSHIP,
LAW
AND
THE
STATE:
THE
BRITISH NATIONALITY ACT 1981
NOBODY would doubt that, by 1981, British Nationality Law was
in need of reform. The problem was where to begin. The notion of
nationality as
"
belonging to
"
or as constituting a
"
genuine link
with
"
a State is attractive to governments which can instantly find
an easy solution to that problem by looking at existing immigration
legislation. Here may be found legislative statements of who may
come and go without control, who may enter subject
to
controls
(and what those controls are) and who may be expelled and in what
circumstances. By this approach any reform of nationality law
can avoid an inquiry into what else
"
belonging
"
might mean for
a post-imperial power.
A
lack of debate
on
principle and purpose
is characteristic of British public life. The events leading up to and
parliamentary debates upon the British Nationality Bill reflected
this fact. For the Government matters were quite simple. The chief
problem about existing nationality law was that it provided no clear
statement as to who had the right of unrestricted entry.
As such a right was determined by patriality (an obscure archaism
resurrected by and for immigration legislation)
l
the simplest way
and perhaps the only way forward was to bring nationality law
into line with immigration law. The opposition had at first decried
and then operated with more or less enthusiasm the machinery
of
the 1971 Immigration Act. It was embarrassed by its own Green
Paper which also described the problem as discordance between
immigration and nationality law.
It
endeavoured to discover a new
policy as the Bill moved slowly through Parliament and may have
partly succeeded in finding The Bill aroused little or no
popular interest probably because it will affect only a relatively small
number of people living in this country. The most notable feature
of the legislative passage of the Bill was the absence of discussion
about what a nation is, what the British nation
is
(as opposed to
the English, Welsh, Scottish nations and semi-nation
of
Northern
Ireland) and how citizenship might differ from nationality.
The
Legal
Background
The British Nationality Act 1948 was part of a complex supra-
national scheme agreed between the then small number of
Com-
s.
2,
Immigration Act 1971.
a
Consider the operation
of
the rules
for
the admission
of
husbands and fiancbs.
At
first, harsh restrictions were imposed which were relaxed in 1975 but tightened
again in 1977 to control marriages
of
convenience.
3
British Nalionalily Law: Discussion
of
possible chunges,
Cmnd. 6195 (1977).
For
comment, see Outer Circle Policy Unit,
"
Nationality Law
"
(1980) and Justice
Report,
British Nafionalify
(1980).
4
Labour Party National Executive Committee statement,
"
British Nationality
Law:
1981."
179
180
THE MODERN
LAW
REVIEW
[Vol.
45
monwealth states. Each state was to have its own nationality laws
but each would recognise nationals of other member states as
British subjects
(with the alternative of
Commonwealth
Citizen
for those states that had accepted the Crown as head of
the Commonwealth only rather than
as
head of state). These
nationals would not be regarded as aliens in the laws of each state
although separate immigration laws might limit their entry. Indeed
the United Kingdom was amongst the last Commonwealth states
to impose immigration control on other Commonwealth nationals.
And even though most of the colonies practised some form of
immigration control those whose connection lay with the United
Kingdom and its dependencies had free entry into the United
Kingdom until
1968.
In that year entry controls were imposed on
most
C.U.K.Cs.
whose citizenship was acquired by
a
connection
with a former colony. The independence and subsequent citizen-
ship legislation of and for former colonies usually but not in every
case5 ensures that citizenship of the new state would be acquired
by all who were living on its territory at the time. That it usually
would was foreseen by the framers of the
1948
Act for in turn
these new citizenships would (if the state concerned joined the
Commonwealth) ensure that the individuals concerned remained
British subjects.
For
those who did not acquire the citizenship of
an independent Commonwealth state in
1948
(because some such
states had not yet enacted citizenship laws
of
their own) an intended
transitional and non-transmissible status
of
British subject with-
out citizenship” was devisedSe This has endured for far longer
than was intended because when India and Pakistan enacted citizen-
ship laws in
1950
and
1951
they did not grant citizenship to many
people who the British Government expected to see absorbed in
such
a
way. Special arrangements were made for certain citizens
of
Eire to remain British subjects if they had that status before
Eire left the Commonwealth in
1949.
It was easy for
a
Common-
wealth citizen to become
a
C.U.K.C. after
12
months residence in
the United Kingdom. The principle of acquisition of such citizen-
ship
by
birth was recognised
(jus
soli).
However, the scheme had its
less satisfactory features. Citizenship by descent could pass in-
definitely (provided that simple formalities were completed and the
birth occurred in
a
foreign and not Commonwealth state) but
patrilineally only. Foreign women could acquire citizenship by
registration on marriage but foreign males could not do likewise
and had to undergo naturalisation through
a
procedure requiring
five years’ residence, intention to live here,
a
good character and
the passing of a language test. This was the standard pattern for all
naturalisations and whilst as generous as most other states in the
5
The Belize Act
1981
allows
C.U.K.Cs.
from
Belize settled here
to
retain their
status. This was a direct
result
of
the British Nationality Act (hereafter B.N.A.)
1981. Special provisions were made
for
Asians when East African territories became
independent.
6
s.
13.
B.N.A. 1948.

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