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Australian supreme court considers British Overseas Citizenship basically worthless


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Just catching up on the Australian High Court (their Supreme Court) case on the ban on dual citizenship for holders of public office. If you have not been following it, the Australian constitution bans dual citizens from holding public office. The nationality laws of many countries, including the UK, automatically confer citizenship on people whether they like it or not. Although it is possible to renounce such citizenships, that is an active step which must be taken.

Several Australian Members of Parliament and Senators have discovered that they hold citizenships of other countries – Australia is basically a country full of immigrants, after all – and the Australian High Court has found that they cannot continue to hold office.

In doing so, the court remarked on how utterly useless one of several lesser forms of British nationality actually is:

To observe that British overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it, is not to conclude that it is a relationship which for the purposes of s 44(i) renders the BOC a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of “citizen” is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s 44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom.

Senator Xenophon, who holds British Overseas Citizenship, got to hold onto his seat as a consequence.

Good to see my colleague Laurie Fransman QC getting a prominent mention. If you’d like to know more about the basics of British nationality law, check out the introduction to nationality course for members.

Source: Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (27 October 2017)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.