Today marks the 75th anniversary of the disembarking of the passengers on board the ship the HMT Empire Windrush at Tilbury docks on 22 June 1948. Even now, five years after the Windrush scandal broke, many well-informed and well-intentioned journalists, writers and policy-makers do not really grasp the true legal position of those who have become known as the Windrush generation.

It is commonplace to ascribe the legal status of the Windrush generation to the British Nationality Act 1948, which is often said to have changed their status or granted them new rights. There is a germ of truth here but at heart it is incorrect. A recent otherwise good article in The Times falls repeatedly into this trap, for example.

The problem is that a person who thinks the British Nationality Act 1948 changed the rights of British subjects outside the United Kingdom then will not understand why the later legislation of the 1960s and 1970s was so controversial. As with all history, it is genuinely very hard to put ourselves in the shoes of people at the time and to understand how they saw things. Arguably, the job is actually harder because it is such recent history. It is a world with which we think we are familiar. We tend to assume that they thought as we do, and indeed as they themselves did later. Some of the people we’re talking about are still alive today, after all.

Did the British Nationality Act 1948 change the status of the Windrush generation?

When the Empire Windrush arrived at Tilbury docks on 21 June 1948 — the passengers disembarked the next day — the British Nationality Act 1948 had not even passed parliament. It was passed on 30 July 1948. Even then it did not have immediate legal effect. It came into force on 1 January 1949. So it cannot have determined or changed the status of those who arrived on the Empire Windrush itself.

But it did determine the status of those who followed in future years.

Nevertheless, we can immediately see that the contents or effect of the British Nationality Act 1948 cannot have been determinative of the right to enter or live in the United Kingdom. At least some of the Windrush generation entered under previous laws.

The British Nationality Act 1948 was very important indeed in legal and constitutional terms and its effect and structure is critical to understanding of later legislation. I’ll come back to that. But at the time the 1948 Act passed parliament and then entered into force, it changed virtually nothing in practice.

For any resident of any country in the Commonwealth, their legal status before 1 January 1949 was that of a British subject. When the new Act took effect, their status was still that of a British subject. The British Nationality Act 1948 did not change their status, nor did it change their rights as British subjects in any way.

What were the entry and residence rights of the Windrush generation?

The entry and residence rights of the Windrush generation were until 1962 the same as any other British subject. So the question is, what were the entry and residence rights of a British subject?

Prior to the British Nationality Act 1948, the statute which determined who was or was not a British subject was the British Nationality and Status of Aliens Act 1914, which had then been amended by subsequent legislation. Before that, British subject status was largely a matter of common law.

It may seem strange, but the statutes were silent on the rights of British subjects. That continues to be the case today: the British Nationality Act 1981, which determines our nationality status now, is also silent on the rights of British citizens. All British nationality statutes have ever done is say who is or is not a British national.

Today, the Immigration Act 1971 states at section 1 that a person with the ‘right of abode’ — a right held mainly but not exclusively by British citizens — shall:

‘be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person’

Before that, there was no statutory ‘right of abode’ or similar. But in a case called DPP v Bhagwan [1972] AC 60 in 1969 about alleged illegal entry by British subjects, Lord Diplock held in the House of Lords that a British subject

‘had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain here as long as he liked.’

This is arguably not quite correct as it was more of a freedom than a right, given that aliens (meaning everyone not a British subject) had historically also been free to enter and live in the United Kingdom. As the legislation of the twentieth century was to show, it was a freedom that could be curtailed for aliens and subjects alike.

What did the British Nationality Act 1948 do?

We’ve seen what the 1948 legislation didn’t do. It didn’t change the status or rights of British subjects. So what was the point of it and what did it do?

This seems sort of absurd today, but the British Nationality Act 1948 was passed because Canada, an independent country within the Commonwealth, decided to adopt its own citizenship laws. This created a legal and constitutional problem, because Canadian citizens were British subjects. They were British subjects because of British law, not Canadian law. But what would happen when a person became a Canadian citizen under Canadian law but not a British subject under British law?

It wasn’t just about Canada, though, because it was clear that other Commonwealth countries would also adopt their own citizenship laws in future.

Previously, a British subject was a British subject because they were born in the Crown’s dominions and allegiance. This was the common law position, dating right back to Calvin’s Case of 1608 and beyond. When British nationality law was first codified in 1914, the position was unchanged. Section 1 of the British Nationality and Status of Aliens Act 1914 began by saying that a natural-born British subject was

‘Any person born within His Majesty’s dominions and allegiance’

His Majesty’s dominions and allegiance was the entire empire, later known as the Commonwealth. There were also some additional rules on inheriting British subject status from one’s parents or grandparents if born outside the crown’s dominions and allegiance.

The British Nationality Act 1948 fundamentally changed how British subject status was conferred. Instead of it being derived from a person’s place of birth and a direct relationship of allegiance to the crown, it was to be derived from the citizenship laws of the individual countries of the Commonwealth.

This was a massive constitutional shift. It would no longer be the British Parliament determining directly who was or was not a British subject. Now who was or was not a British subject would effectively be decided by the legislatures of independent Commonwealth countries. The role of the British Parliament would merely be to recognise those laws and confer British subject status on the citizens of those countries.

How about Citizenship of the United Kingdom and Colonies?

So, the whole scheme of the British Nationality Act 1948 was to make all citizens of Commonwealth countries British subjects. Indeed, section 1 of the Act said

‘the expression “British subject” and the expression “Commonwealth citizen” shall have the same meaning’.

British subject status was the primary British nationality law status under this legislation and was understood to be so by the legislators of the day. Over the course of the 1960s, though, the evocative term ‘British subjects’ was dropped in public discourse in favour of ‘Commonwealth citizens’. It is easy but wrong to think of ‘Commonwealth citizens’ as people from outside the United Kingdom, which is perhaps why the terminology shifted.

In order to make the nationality scheme work, each entity within the Commonwealth needed its own citizenship laws. At the time, the Commonwealth consisted of, broadly, the United Kingdom itself, a large number of colonies, mainly by then in Africa and the Caribbean, and a smaller number of independent countries. The independent countries would pass their own citizenship laws. How about the United Kingdom and the various colonies?

Legislators decided to group together the United Kingdom and the colonies rather than to try and create separate citizenships for them all. It would have been open to parliament to create different citizenships but it would have been very complex and there was not seen to be any need. They would all have a common citizenship, known as Citizenship of the United Kingdom and Colonies. This was considered to be their collective legal gateway to British subject status. Having established the primary status and overall scheme of British nationality in Part I, the British Nationality Act 1948 then goes on in Part II to establish the local rules for who would or would not be a Citizen of the United Kingdom and Colonies.

It is common to consider this new status of Citizens of the United Kingdom and Colonies as the ‘main’ status under the British Nationality Act 1948. This is wrong. It is not how legislators saw it at the time. The mistake arises, I think, because British subject status sounds archaic and CUKC status became more important later on. It may also seem absurd, in hindsight, that the principle form of British nationality — the principle means by which membership of a nation state is defined — could be held by hundreds of millions of citizens of countries that were independent from the United Kingdom. The error here is regarding the United Kingdom as a nation state. It wasn’t. It was an empire. Or, at least, it had been an empire and it was still regarded as an empire by legislators even into the early 1960s. The transition from empire to nation state required redefinition of its membership, which was a painful process.

As historian Randall Hansen argues, the scheme of the 1948 legislation created massive path dependency for later legislators. Parliament was stuck with the 1948 legislation because it would have blown up what remained of the Commonwealth to amend it at a time that the Commonwealth was genuinely very important to legislators. The path dependency came mainly from the primary British nationality law status being that of the British subject and from the decision to group residents of the United Kingdom with residents of the colonies. Preventing the entry of British subjects to their country of nationality would always have been legally and morally controversial. But when a government eventually decided to restrict movement to the United Kingdom itself, there was no status available to use to specify who would have the right of residence.

Returning to the Windrush generation, all of them were British subjects. As such, they were free to enter and reside in the United Kingdom. Some of them were also Citizens of the United Kingdom and Colonies, at least until their original country of residence achieved independence. At that point they would remain a British subject but normally cease being a Citizen of the United Kingdom and Colonies and instead be a citizen of their independent Commonwealth country.

When did British subjects lose their right of entry?

The first legislation to curtail the right of entry for some British subjects was the Commonwealth Immigrants Act 1962. I’ve written in detail about this before. Up until then, all British subjects — from whichever Commonwealth entity they derived their status — were free to enter and reside in the United Kingdom. They had been free to do so before the British Nationality Act 1948 and they continued to be free to do so after the British Nationality Act 1948.

Legislators were looking for a way to limit what they called ‘coloured immigration’. They were clear about this in private, but in public they were more circumspect. The technical problem they faced was that there wasn’t an easy way to apply immigration control to all ‘coloured immigrants’ without an explicit colour bar.

One way forward might have been to take away the right of entry and residence from all British subjects who were not Citizens of the United Kingdom and Colonies. That would have prevented migration from Ghana, India, Pakistan, Sri Lanka and Tanzania, for example, because they were all independent Commonwealth countries by the time the Commonwealth Immigrants Act 1962 became law.

But there were still many major colonies that had not yet achieved independence, including Hong Kong, Jamaica, Kenya and Trinidad and Tobago. Their residents were still Citizens of the United Kingdom and Colonies and would still be free to enter and reside. Many colonies would achieve independence over the next decade, but that was not clear to all British legislators in 1962 and, besides, they wanted to stop immigration right now.

So, the British parliament did remove the right of entry to Britain from British subjects as a class. This legislation marked the functional death of British subject status. Parliament also also went further, though. The entry of many Citizens of the United Kingdom and Colonies was restricted, based on which governing authority had issued a person’s CUKC passport. If the passport was issued by the UK authorities the person was free to enter. If the passport was issued by a colonial authority, the person was subject to control.

Further controls followed with the Commonwealth Immigrants Act 1968, which for the first time differentiated British subjects by the place of birth of their ancestors. This prevented the entry of the East African Asians, who had retained CUKC status and whose passports were issued by the UK authorities because their countries of residence had become independent.

After that, the Immigration Act 1971 effectively abolished the distinction between British subjects and aliens, subjecting all of them to the same regime of immigration control.

So what happened to the Windrush generation?

The story of the Windrush generation is one of the loss of rights.

They started as British subjects with a common law right of entry and residence in the United Kingdom the same as any British subject. The British Nationality Act 1948 did not change that. But it did create multiple sub-classes of citizenship which became constitutive of British subjecthood. One of these sub-classes was Citizenship of the United Kingdom and Colonies.

As their original countries of residence achieved independence, the Windrush generation remained British subjects. In 1962, legislation was passed that prevented many British subjects and even many Citizens of the United Kingdom and Colonies from entering the United Kingdom. This was strengthened in 1968.

By 1971, the British government felt that British subject status had lost its significance and abolished many of the remaining practical differences between British subjects and aliens. Previously, the immigration legislation had restricted rights of entry but not rights of residence as such. Once a person was inside the United Kingdom, they might have committed a criminal offence on entry and they might even potentially be subject to deportation. But they did not require permission to reside. One of the major innovations of the Immigration Act 1971 was the introduction of the concept of ‘leave’, meaning permission to enter and also permission to reside. A person who was inside the United Kingdom and did not possess this ‘leave’ would (usually) be committing an ongoing criminal offence and could be removed from the country.

Introducing this new system meant that everyone — or almost everyone — in the United Kingdom needed to be granted leave. There were basically two ways to do this.

One was to get everyone to register or apply. This would mean the government would have records of everyone with leave but it would also mean that those who did not apply would become illegally resident.

The other was to pass a law conferring leave automatically on existing residents without issuing documents. This would make sure everyone was lawfully resident but it would mean the government did not have individual records of everyone with leave.

Back then, the government chose the second option. It was considered more important not to illegalise people than to have records of them. After Brexit, the government chose the first option. It was considered more important to have records of some people than to avoid illegalising others. An unknown number of EU citizens who did not apply under the EU settlement scheme are now therefore living in the United Kingdom unlawfully.

This is why some people who entered the United Kingdom before the Immigration Act 1971 came into force on 1 January 1973 lacked legal proof of their status. They were lawfully resident according to that legislation but they had never needed to apply for proof. When the hostile environment laws started to bite, which require proof of status to access employment, housing, welfare benefits, the NHS and more, nobody really remembered what had happened and why.

Eventually, British subject status itself was abolished by the British Nationality Act 1981. Citizenship of the United Kingdom and Colonies was replaced by three new forms of status: British citizenship, British Dependent Territories Citizenship (later renamed British Overseas Territories Citizenship) and British Overseas Citizenship. Of these three new forms of British nationality, only British citizens would have the right of abode.

The Windrush generation had entered the United Kingdom as British subjects. While they were living here, most had become citizens of independent Commonwealth countries when those countries became independent. They were legally resident all that time, confirmed by the Immigration Act 1971, but they had no proof. Their British subject status was eventually taken away by the 1981 Act.

Today, everyone seems to have forgotten the power and significance of what it meant to be a British subject. We have also collectively therefore forgotten how controversial it was to take away the right of entry and residence from British subjects. After all, we would normally expect a national of a country to be able to enter and reside in that country.

Selected further reading:

Dummett, A. and Nichol, A. (1990) Subjects, Citizens, Aliens and Others: Nationality and immigration law, London: Weidenfeld and Nicholson.

Gentleman, A. (2019) The Windrush Betrayal: Exposing the hostile environment, London: Guardian Faber.

Hansen, R. (2000) Citizenship and Immigration in Post-War Britain, Oxford: Oxford University Press.

Vincenzi, C. (1985) ‘Aliens and the judicial review of immigration law’, Judicial Review 93.