Immigration, Asylum and Nationality Law, Vol 34, No 2, 2020
to acquire British citizenship. The more one thinks about that fundamental point … the
more doubtful it becomes as to what is the rationale in terms of principle for saying that
everybody born here should be a British citizen, even if the person is merely born here,
goes away after a few weeks and spends the next years or decades of life in some remote
part of the world.’10
This still left the many people born in the UK to parents, neither of whom were British citizens
or settled, who stay and grow up in this country.
For people born outside the UK, s 2(1)(a) provides for British citizenship to be acquired
at birth if one or other parent is a British citizen so long as that parent is not a British citizen
by descent. Section 14 sets out an exhaustive list of circumstances in which a person is a British
citizen by descent, each of which relate to people born outside the UK. The broad intention
is to prevent the passing on of British citizenship across successive generations born outside
the UK. This starting point also left out many people, who would grow up connected to the
country, such as people whose parents – although born elsewhere – had themselves retained a
close connection by taking up UK residence.
As can be seen, these various starting points exclude many people from British citizenship,
despite their having a similarly close connection to the UK as those included. More was
needed, therefore, to make comprehensive provision for citizenship on the basis of connection
to the UK. The means adopted to achieve that was the provision in the Act of several rights to
registration as a British citizen. Whereas it is always necessary to consider each such provision
discretely in assessing whether it is fulfilled by any particular individual, doing so without more
is to disconnect each provision from the others and thereby from the overall statutory purpose.
Over time, a relatively complex set of rights for establishing a shared connection to the UK
that requires recognition by citizenship may become, in the minds of those responsible for its
maintenance, little more than a disparate collection of individual rights.
Commonwealth citizens settled in the UK
One group of people clearly connected to the UK were the many British subjects who had
settled in the UK from elsewhere in the Commonwealth. Many such people had experienced
significant change to their British nationality over the post-War period and to the rights
that nationality gave them.11 As former colonies secured their independence, many people
had ceased to be citizens of the United Kingdom and Colonies but remained British subjects
and Commonwealth citizens; and many other people from territories that had yet to secure
independence, who had remained citizens of the United Kingdom and Colonies, had nonetheless
had restrictions on their rights to enter and stay in the UK introduced by the Commonwealth
Immigrants Acts 1962 and 1968. On 1 January 1973, the Immigration Act 1971 introduced the
concept of patriality (the right of abode) by which some citizens of the United Kingdom and
Colonies retained unfettered rights of entry and stay in the UK and some did not.
The Commonwealth Immigrants Acts and the Immigration Act 1971 had provided
statutory schemes whereby British subjects who had settled in the UK could register as citizens
10
11
Hansard HC, 3 June 1981: Col 980.
See eg Robin M White, ‘The Nationality and Immigration Status of the “Windrush Generation” and the Perils of
Lawful Presence in a “Hostile Environment”’ (2019) 33 IANL 218.
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