The concept of UK citizenship is fundamental to the question of rights of residence and freedom of movement of the individual. An individual’s right to enter and remain in a country depends upon his or her status. Under international law no state may deny entry to its own nationals where they are not entitled to enter or remain in other states.
However, subject to international obligations, states may by law determine which non-nationals may enter and remain within their territory, and may remove those who enter and remain unlawfully. In recent decades the increasing number of refugees and other migrants have required new laws to regulate entry and entitlement to remain. In this chapter a broad overview of the law relating to citizenship, immigration asylum and extradition is given.
British citizenship may be acquired by birth, adoption, descent, registration or naturalization.
Birth Citizenship in UK:-
A legitimate child born in the United Kingdom, one of whose parents is a British citizen or is settled in the United Kingdom at the time of its birth assumes British citizenship. A child born outside marriage acquires citizenship through his or her mother, unless the child is legitimated by the subsequent marriage of his or her parents. Prior to the British Nationality Act 1981, any person (with minor exceptions) born in the United Kingdom became a British citizen,
The Nationality, Immigration and Asylum Act 2002, section 9, now removes from nationality legislation the distinctions between legitimate and illegitimate children and repeals section 47 of the 1981 Act. The 2002 Act inserts a new definition of father into section 50 of the 1981 Act, stipulating that a father is either the husband at the time of the child’s birth of the woman who gives birth to the child, a person who is treated as a father under the Human Fertilization and Embryology Act 1990 or, where neither of those categories apply, any person who satisfies the prescribed requirements as to proof of paternity.
Adoption and legitimization:-
A child adopted by a British citizen becomes a British citizen from the date of the adoption order. Where the adopters are married, the child becomes a British citizen provided that one of the adoptive parents is a citizen.
A child born outside the United Kingdom becomes a citizen if one of his or her parents is a British citizen, provided that that parent has not also acquired citizenship through descent. Where the child is born to a parent who acquired citizenship through descent, the child will only acquire citizenship if the parent is an employee of the Crown, or other designated services.
After a period of residence in the United Kingdom, a person may acquire citizenship through registration. Children born in the United Kingdom who are not automatically entitled to citizenship through birth, have a right to be registered as citizens at the age of ten, provided that the child has not been absent from the United Kingdom for more than 90 days in each of the first ten years. A child is also entitled to registration if one of his or her parents acquires citizenship of becomes settled in the United Kingdom during his or her minority.
British Dependent Territories citizens, British Overseas citizens and British Protected Persons resident for five years in the United Kingdom are also entitled to registration. The Home Secretary has a general discretion to register any child as a British citizen. Under the Immigration, Asylum and Nationality Act 2006, section 58, applicants for nationality by registration must satisfy the Secretary of State that they are of good character.
Naturalization as a British citizen is regulated by section 6 of and Schedules 1 and 5 to the British Nationality Act 1981. A five year residence period is a precondition for applying for naturalization, which is granted at the discretion of the Home Secretary.
The Home Secretary, in deciding whether to grant naturalization, must be satisfied that the applicant is of good character, has a command of the English, Welsh or Gaelic language, and intends to have his or her principal residence in the United Kingdom, unless employed in a designated form of employment as specified in the Act.
Naturalization may also confer citizenship on the spouse of a British citizen. Section 42 of the British Nationality Act 1981 provides that no certificate of naturalization may be granted unless the applicant has made the necessary oath and pledge. Schedule 5 to the Act requires those attaining citizenship to swear an oath of allegiance and pledge loyalty to the United Kingdom, upholding its democratic values and obeying its laws.
The Nationality, Immigration and Asylum Act 2002 lays down further requirements in relation to acquiring citizenship through naturalization. In the attempt to encourage assimilation of members of ethnic minority communities into British life, the Act amends the British Nationality Act 1981 and provides for citizenship ceremonies and a pledge of allegiance. The Act further requires that the applicant has sufficient knowledge about life in the United Kingdom.
British Overseas Territories Citizenship
Part II of the 1981 British Nationality Act, as amended by the British Overseas Territories Act 2002, governs Overseas Territories citizenship. A person may acquire citizenship through birth, adoption, descent, registration as a minor or naturalization, concepts which follow the same formula as that discussed above. Section 3 of the Act confers British citizenship on any person who was a British overseas territories citizen immediately before section 3 of the 2002 Act came into force.
Every person who is a British citizen, British overseas territories citizen or British subject, or a subject in a country listed in Schedule 3, has the status of a Commonwealth citizen.
Deprivation of Citizenship:-
The British Nationality Act 1981, as amended, provides for the deprivation of citizenship and for a right of appeal against a decision to deprive a person of his or her citizenship. Section 40(1) of the 1981 Act now provides that those liable to deprivation are British citizens, British Overseas Territories citizens, British Overseas citizens, British Nationals (Overseas), British subject, and British protected persons. The grounds on which citizenship may be deprived are that:
,.. the Secretary of State is satisfied that deprivation is conducive to the public good.
Furthermore, a person may be depraved of citizenship status if the Secretary of State is satisfied that the registration of naturalization was obtained by means of (a) fraud, (b) false representation, or (c) concealment of a material fact. A person may not be deprived of citizenship under section 40(2) if this would make him or her stateless. The Secretary of State does not have the power to deprive a person of British citizenship based on acts done before that person became a British citizen: R (Hicks) Secretary of Sate for the Home Department (2005).
The claimant, who was entitled to registration, had been detained by US authorities at Guantanamo Bay following allegations that he had given active support to and been involved in activities with Al-Quaeda The Home Secretary did not have power to deprive the claimant of a citizenship and the argument based on public policy could not succeed.
There is a right of appeal against a deprivation order to an adjudicator, and a right of appeal for both parties to appeal co a tribunal from the adjudicator on a paint of law. A further appeal, on a point of law, hes to the Court of Appeal or the Court of Season (if the adjudicator’s decision was in Scotland). The right of appeal docs not apply where the Secretary of State has certified that his decision was reached on information which should not be disclosed on the basis of national security, in the interests of relations with another country or otherwise in the public interest.
The Immigration, Asylum and Nationality Act 2006 provides for the deprivation of rights of abode. Section 57 confers on the Home Secretary the power to remove a right of abode where such a right derives from possession of citizenship of another Commonwealth country and it conducive to the public good to remove or exclude the person from the United Kingdom.
European Union Citizenship
The Treaty on European Union 1992, as amended by the Treaty on European Union 1997, confers Union citizenship on the citizens of all Member States. Freedom of movement and sights of establishment are a central feature of the European Union. The elimination of border controls between Member States further extends the freedom of movement for persons within the territorial boundaries of the European Union. It has been agreed, however, that the United Kingdom may retain its border controls.
In addition to rights of residence, every citizen of the Union has the right to stand as a candidate and to vote in municipal elections in the Member State in which he or she resides, and to stand as a candidate and vote in elections for the European Parliament. Union citizens are entitled to protection from the diplomatic or consular authorities of any Member State. Citizens of the Union have the right to petition the European Parliament under Article 194 of the Treaty, and have the right also to apply to the European Union Ombudsman under Article 195.
Rights of Entry and Residence
Rights of entry and residence are inextricably linked to the question of citizenship. The United Nations International Covenant on Civil and Political Rights, to which the United Kingdom is a party, provides that No one shall be arbitrarily deprived of the right to enter his own country. The United Kingdom entered a reservation in respect of this broadly phrased right under international law, by which it reserved the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as it deems necessary.
Establishing the Right to Enter
The holding of a valid EU passport identifying that person as a British citizen or as a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom, or travel document of a European Union Member State entitles the holder to entry. Passports are issued under the royal prerogative through the Passport Agency. The case of R v Secretary of State for Foreign and Commonwealth Affairs expatriate Everett (1989) established that the decision to revoke or refuse a passport is subject to judicial review. Passports are only issued once the Passport Agency is satisfied as to the accuracy of the application and supporting documentation. Section 3 of the Immigration Act 1971 provides:
… When any question arises under this Act whether or not a person is a British citizen . . . it shall lie on the person asserting it to prove that he is.
The holding of a passport, however, is not conclusive proof of the right to enter. Where g passport has been obtained as a result of fraud or theft, an immigration officer who suspects that this is the case is entitled to require that the passport holder substantiate his or her claim to be the legitimate holder of the passport. In these situations, therefore, the burden of proof as to identity rests with the passport holder.
However, where the Passport Agency has indisputably issued a passport to the holder, albeit one of a limited duration, the question arises should a dispute occur over the matter as to where the burden of proof lies over the issue of the validity of that passport and the right of its holder to enter.