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It is time for a new British Citizenship Act for the post-Brexit era


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We live in what some have called ‘multi-status Britain’, a country in which discrimination is baked into a social, economic and racial hierarchy based on different forms of legal status. With British citizenship, other forms of British nationality, indefinite leave to remain, permanent residence, the five year route to settlement, the ten year route and more, there are a bewildering range of different forms of status. Each has their own rules on acquisition, different sets of rights attached to them and a different place in the social and economic hierarchy.

This is not abstract for those who live it. Some will, unlike their supposed peers, face deportation if they break the law. Others will see members of their family or community deported and know this is not a risk faced by other families or communities. Those with more insecure forms of status will face sometimes direct and sometimes subtle economic hardship and penalties. And they face different levels of strain on their personal and family lives.

It is impossible for people to feel equal when they literally are not, according to our laws.

Changing the law is certainly not enough. But it would be a good start and it would remove one of the barriers to safe, secure and equal communities. There are two key, related sets of laws I propose should be reformed. The first are British nationality laws, and I address that here in this blog post. The other is the suite of hostile environment laws which encourage citizen-on-citizen discriminatory checking of immigration status. I’ll turn to that in a future blog post.

Reform of British nationality law is overdue

As they stand, British nationality laws divide communities and undermine the social bonds between residents of the United Kingdom. These nationality laws are too complex, too exclusionary of people who are British in every way except under the law and, ultimately, too lacking in content and meaning. There are no rights that are currently exclusively attached to British citizenship. British citizen status is an empty vessel, barely more than a form of revocable immigration status. An incoming, reforming government can and should give British citizenship some real meaning in the post-Brexit era.

Is British nationality law fit for purpose?

It depends what one thinks it is supposed to achieve. In my view, nationality law should meet these pretty basic five criteria:

  1. Nationality law should be clear
  2. Citizenship should be non discriminatory
  3. Citizens should have durable rights
  4. Children with a close connection to the country should automatically acquire citizenship
  5. Long term residents should be encouraged and enabled to take up citizenship.

Over the last century, the British state has fundamentally reviewed its nationality laws every few decades, in 1914, 1948 and 1981. Piecemeal reforms since 2002 have patched some holes in British nationality law but other changes have created new, socially damaging gaps. Too many children are excluded from citizenship by complex laws on citizenship acquisition and sky-high fees. Some who are born British and live their whole lives in this country face the medieval punishment of banishment rather than a more appropriate court trial for their alleged crimes. A complex web of varieties of British nationality which label some people as “British” but give them no right to live in Britain have no place in the modern world. Meanwhile, the right to vote is not linked to citizenship or are obligations like serving on a jury.

And don’t get me started on the chaotic state of the British Nationality Act itself. It was a mess the moment it was passed by Parliament in 1981. Successive changes have made it far, far worse, with amendments to the amendments to the amendments. The document that tells us who “us” is should be as simple as possible and should at least be comprehensible. The current law spectacularly fails that test.

A new British Citizenship Act offers a chance to change all that.

Citizenship not nationality

Existing law is set out in the British Nationality Act 1981. This should be replaced with a new British Citizenship Act. The word ‘citizenship’ is a resonant one imbued with more meaning than mere ‘nationality’. Citizenship is about rights, responsibilities, belonging and participation. Nationality is merely a formal status.

A reforming Labour government could take the opportunity to formally attach rights to citizenship for the first time. Gordon Brown’s recent constitutional reform paper proposes exactly this type of reform:

There should be new, constitutionally protected social rights – like the right to health care for all based on need, not ability to pay – that reflect the current shared understanding of the minimum standards and public services that a British citizen should be guaranteed.

There is no need to stop there. The right to vote, the right of entry and residence, the right to a fair trial, the right to diplomatic assistance and the right to equal treatment free from discrimination could all be explicitly protected through citizenship. The old statutory right for citizens to be joined by family members — abolished only in 1988 — could be restored. At the moment, British citizens are treated the same as settled migrants when it comes to their right to family life. This would also encourage settled migrants to fully integrate as equal citizens.

As Gordon Brown’s report recognises, there are many ways the such rights might be expressed in law, some of which are primarily symbolic. A difficult and potentially controversial balance needs to be struck to ensure that any such rights are meaningful, realistic, durable and progressive.

One possibility might be to embed the rights set out in the European Convention on Human Rights into the new British Citizenship Act. The protections currently set out in the Human Rights Act could be replaced and enhanced. Some rights expressed in the new legislation could be applicable to all people within the jurisdiction and some specifically to British citizens. Done right, this would protect the rights of all and enhance the rights of British citizens.

Obligations of citizenship 

Perhaps more controversially, the obligations of citizenship could be spelled out, such as the duty to serve on a jury, the duty to pay taxes and the obligation of loyalty to the state. 

The rules on citizenship deprivation could and should be considerably tightened. The ‘conducive to the public good’ test which has been in place since 2006 is completely inappropriate for something so weighty and serious as stripping a person of the citizenship they have held since birth. Stripping a person of their citizenship should be reserved as the ultimate sanction for crimes against the state itself but there is increasing evidence that the power is being used in cases of simple (but serious) criminal conduct like sex offences and human trafficking.

Reform of citizenship law could also include reform of treason law. A treason charge in a court of law is a more appropriate state response to disloyalty by citizens than denaturalisation. The current law is defunct. It dates to 1351 and the last prosecution under the principal treason offence was in 1946.

Citizenship acquisition

Too many children born in the UK are denied full, equal status as citizens. The exclusionary nature of current laws serves to create a class of permanent residents with lesser status who are excluded from full civic participation. This can even be hereditary; if a person who lacks permanent status themselves has children, those children will not be born British and may never become British.

Birthright citizenship could and should be restored, so that those born in the United Kingdom are automatically born British. This was an ancient, historic right but it was abolished in 1981. The consequences have been divisive to families and communities and sometimes disastrous for individuals, with some facing deportation later in life despite being born in the United Kingdom and living their whole lives here. The reform would not only be hugely beneficial to children born in the country but would also enable significant simplification of the underlying legislation.

Enabling a route to optional retrospective acquisition of citizenship would also be a significant benefit to the children of EU citizens born before Brexit. Some have had their citizenship cast into doubt by a recent High Court ruling and many others will miss out on British citizenship because of the cost and the complexity of the law and the failure of legislators to adapt British nationality law to the automatic nature of permanent residence under EU law.

The criteria for naturalisation and registration could and should be re-thought. For example, the three year route to naturalisation for spouses and partners of British citizens should be revived. The good character test could be replaced with a more objective measure. 

The fee charged to register a child born in the UK is currently over £1,000, putting this beyond the reach of many families. And those who can afford it are financially penalised and disadvantaged for registering their children as British, which is absurd. A right to citizenship should be established. The sale and purchase of British citizenship should be prohibited. The charging of profit-making fees for citizenship could thus be ended.

Re-unification of British nationality status

British nationality could be reunified in a single status. At the moment there are six different forms of British nationality. These types of status were created in 1981 in order to prevent those who had previously been British subjects from being able to relocate to the UK. Times have moved on. 

Hong Kong has returned to China. A visa route has already been opened to British Nationals (Overseas) from Hong Kong, albeit they are currently being charged very considerable fees. Labour already introduced reforms in 2002 to enable British Overseas Territories citizens to easy become British citizens. British Overseas Nationals with no other nationality can already register as British citizens if they choose.

It is time to end the colonial legacies of British nationality law and recreate a single, equal status.

So, I propose:

  • Pass a new British Citizenship Act fit for the post-Brexit era
  • Promote integration and pride by incorporating key citizenship rights into citizenship laws for the first time
  • Solidify our social bonds by setting out the obligations of citizenship in law and reforming citizenship deprivation and treason laws
  • Re-establish a single, inclusive citizenship status
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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.