Immigration, Asylum and Nationality Law, Vol 34, No 2, 2020
British citizens at the Act’s commencement;1 and it provided for certain people among future
generations to be made British citizens at their birth.2
Parliament, however, recognised that the provisions for automatic acquisition were
inadequate. There were more people among the current generation whose connection to
the UK demanded recognition of their right to British citizenship; and there would be more
people among future generations with such a connection.The means to address this inadequacy
provided by the Act were the rights it provided to registration of British citizenship. The
intention – made clear in the parliamentary debates as the British Nationality Bill (hereafter
referred to as ‘the Bill’) made its way to royal assent – was to ensure that all people with
the requisite connection were recognised as British citizens subject to the formality of their
making an application to register. It was expressly recognised that any failure to achieve that
recognition would do individual and social harm; and would damage race relations. Nearly four
decades later, it is apparent that intention has not been achieved. Among the causes of that is the
underlying intention of the registration under the Act has become forgotten or overlooked at
the Home Office, and more widely, permitting the introduction of law, policy and practice that
has increasingly undermined and frustrated that intention.
The exposure of the Windrush scandal in the period leading up to and following April 20183
and the ruling of the High Court in R (Project for the Registration of Children as British Citizens,
O & A) v Secretary of State for the Home Department4 (hereafter referred to as PRCBC, O & A) in
December 2019 provide suitable occasion for review of what has gone wrong and how it may
and should be repaired. This article aims to provide that. It begins in Section A with an analysis
of the relevant provisions of the Act which provide for British citizenship to reveal the statutory
intention. In Section B, it then addresses discrete developments since the Act’s commencement
that expose how and why that intention has not been met. These developments are addressed
under discrete subheadings. The concluding Section C brings all of this together with some
concise observations concerning the opportunity to reassert Parliament’s original intention.
A. British citizenship and connection
The British Nationality Act 1948 had established ‘British subject’ as the nationality of all citizens
of the United Kingdom and Colonies and all citizens of those Commonwealth countries,
specified in the Act, that had formerly been colonies.5 All British subjects were Commonwealth
citizens and vice versa; and all had the right to enter and settle in the UK. However, when that
right was exercised, including in response to invitations of employment in various public services
such as the newly established National Health Service, by an increasing number of black and
Asian British subjects, successive governments sought to curtail that right. A prime motivation
for the Commonwealth Immigrants Acts 1962 and 1968, and Immigration Act 1971, was the
desire of successive administrations to restrict the entry of black and Asian people to the UK.6
1
2
3
4
5
6
Section 11, British Nationality Act 1981.
Sections 1(1) and 2(1), British Nationality 1981 1981, which respectively apply to persons born in the UK and persons
born outside the UK.
On 16 April 2018, then Home Secretary, Rt Hon Amber Rudd, gave an apology in answer to an urgent question from
Rt Hon David Lammy for the wrong Home Office treatment of Commonwealth citizens, long settled in the UK
from the Caribbean, as people without permission to be in the country.
[2019] EWHC 3536 (Admin).
Section 1, British Nationality Act 1948.
This is discussed, for example, in the submission of Amnesty International UK to the Home Office Windrush Lessons
Learned Review.
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