Caroline Sawyer, Helena Wray 2.5 Nationality and racism: the East African Asians case The impact of the apparent ‘immigration’ changes contained in the Commonwealth Immigrants Act 1968 on the construction and operation of the law of British nationality cannot be overstated, as their restatement in subsequent legislation including the British Nationality Act 1981 underlines. British people had historically been defined essentially by geography rather than descent, and that geography had been defined by the extent of political sovereignty under the Empire. After the Second World War, the boundaries of political sovereignty withdrew to the islands of the UK, but it was not easy to abandon responsibility for the British people outside those islands. In particular, the ‘patriality’ rule effectively meant that people from expatriate British communities, and their descendants, were still treated as British, whereas others were not, and the dividing line was effectively that of race. Broadly, white British Africans could come to the UK; black and Asian British Africans could not.22 The European Commission of Human Rights found that the British policies were racist and thus in breach of the ECHR, but, by dealing separately with the particular people who had brought the claim, the UK was able to avoid the risk of adverse findings in the European Court proper.23 The UK Government never accepted the implication that British nationality law was racist, (Department of Constitutional Affairs 2004: 208) although reforms in the mid-2000s recognised and partially remedied the historical injustices. Amendments to the British Nationality Act 1981 in the Nationality, Immigration and Asylum Act 2002 permitted those British Overseas Citizens, British subjects and British Protected Persons who do not have an alternative citizenship and who have not voluntarily relinquished another nationality to register as British citizens. The British Overseas Territories Act 2002 converted most of those who were British Dependent Territories Citizens as at May 21st 2002 (the date of commencement of the Act) into British citizens. The exception was those claiming a connection through the British sovereign bases of Akrotiri and Dhekelia in Cyprus. It has been suggested that this is in accordance with the UK’s promise not to use the bases for civilian purposes, or because of fears that asylum seekers and other migrants in the Mediterranean area would be encouraged to use the bases to establish rights to come to the UK. Changes to nationality are always the likely consequence of decolonisation. The criticisms of the UK are firstly, that it abandoned overseas communities to whom commitments had been made or who were still governed from Britain and who had no alternative substantive nationality; secondly, that decisions about whom to accept and whom to reject were made on the basis of race; and, thirdly, that this was not openly acknowledged but achieved indirectly through immigration measures that cut across rather than complemented nationality laws and which then informed new hierarchical nationality laws which awarded unwanted citizens a nationality that did not fulfil a basic functional criterion, i.e. access to the territory. This was exacerbated by the loss of ius solis for some of those born on the territory. The worst injustices have now been remedied although their consequences continue to reverberate with disputes occasionally arising, for example, as to the entitlement to register. 22 Commenting on the provisions for resumption of British citizenship in the British Nationality Act 1964, which sought satisfaction of a ‘qualifying condition of connection with the United Kingdom’ or its colonies or protectorates, the European Commission of Human Rights (the then admissibility stage) remarked that ‘this condition would normally be fulfilled by the so-called ‘white settlers’, but not by the members of the Asian communities in East Africa’. East African Asians vs. UK (1973) [1981] 3 EHRR 76, para 202. On the ‘hidden agenda’ of the 1964 Act, see further Dummett (2005:566). 23 Case ref 10 RSCAS/EUDO-CIT-CR 2014/1 - © 2014 Authors