Chapter 3

3.1.1 Nature of nationality and its development

The government has legislated to produce a highly conditional and quasi-contractual reworking of British citizenship. The provisions form Part 2 of the Borders, Citizenship and Immigration Act, which received Royal Assent on 20th July 2009.

As under the British Nationality Act, the 2009 Act gives a quicker route to citizenship for spouses and registered partners of British citizens. Acquiring citizenship in all cases is tied to proposed new categorizations of forms of immigration leave. These are to be known as: temporary residence, probationary citizenship and British citizenship/permanent residence. Citizenship can only be obtained after the requisite period of ‘qualifying temporary residence’. ‘Qualifying temporary residence’ is defined as limited leave to enter or remain in the UK, granted for a purpose specified by the Secretary of State as one which will qualify a person for probationary citizenship. The Secretary of State may thus specify that such leave will apply to workers under Tiers 1 and 2 of the points-based system (as has been indicated).

Citizenship is earned in the new system. Where the applicant can meet the ‘activity conditions’, obtaining citizenship will require 3 or 5 years lawful residence as now. All the existing conditions are retained. Where they cannot meet the activity condition, a further two years of lawful residence are required. The activity condition is met by being able to demonstrate an active contribution to the community, for instance by voluntary work. English language testing will take place at the stage between temporary residence and probationary citizenship. A custodial sentence is a bar to progressing to British citizenship. Permanent residence (equivalent to the current indefinite leave to remain) is treated as parallel to citizenship. So a person with another nationality who does not wish to acquire British nationality will take an extra two years to acquire indefinite leave.

Lord Goldsmith’s review: ‘Citizenship: Our Common Bond’, was published in 2008 and is a wide-ranging document. It reviews the history of the UK’s nationality law and considers how a new structure of nationality law could be used as an instrument of social change. It addresses a new area by considering what the benefits are of citizenship.

3.3.1.4 Chagossians

The government’s further appeal was successful in the House of Lords by a 3:2 majority (R(on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61). The government argued that either Chagossians had no right of abode in the Chagos Islands, or if they did, its removal could not be challenged because of the Colonial Laws Validity Act 1865. This provided that legislation affecting a colony could not be challenged by reason of repugnancy to a fundamental principle of English law (such as the common law right of abode), only if it was repugnant to a statute. Their Lordships differed on the effect of the Act, but agreed that it did not prevent judicial review of the prerogative order of 2004 on usual judicial review principles. On application of those principles, Lords Hoffmann, Rodger and Carswell held that it was legitimate for the government to take into account the cost of repopulating the islands and the USA’s desire not to have people living so close (100 miles+) to Diego Garcia. They also held that the Foreign Secretary’s press release after Bancoult I and the making of the 2000 Order permitting return to the Chagossians did not amount to a legitimate expectation that their right would be honoured.

Lords Bingham and Mance held that the Order was irrational in that no good reason had been shown for making it. Security was clearly not a concern in 2000 nor during the remaining period of the feasibility study up to 2002. An earlier court judgment had already established that the government had no obligation to fund resettlement, so to remove the right of abode in order to avoid cost was irrational. The Foreign Secretary’s press statement and the 2000 Order did amount to a representation leading to a legitimate expectation that their right would be maintained.

3.3.2 British Overseas Citizens

The tribunal in JB and others (children of former BOC – limits of NH) India[2008] UKAIT 00059 made it clear that NH would not be followed in all cases of over age children of former BOCs. Article 8 had to be applied to the actual situation, and the ‘historic wrong’ referred to in NH would not create an Article 8 right of itself.

3.8 Challenging nationality decisions

The Special Immigration Appeals Commission in Al-Jedda v SSHD [2008] UKSIAC 66/08 followed previous authority in holding that an appeal against deprivation of nationality was not a matter of a civil right within the autonomous meaning of Article 6 ECHR and so did not attract the protection of that article.

Reading List:

Border and Immigration Agency, The Path to Citizenship: next steps in reforming the immigration system, February 2008.
Dummett, A. ‘Changes to Citizenship’ (2008) Journal of Immigration Asylum and Nationality Law, Vol.22 no.3 pp. 213 -217
Lord Goldsmith QC, Citizenship: Our Common Bond
Majid, H. ‘Protecting the Right to have Rights: the Case of section 56 of the Immigration Asylum and Nationality Act 2006’, (2008) Journal of Immigration Asylum and Nationality Law, Vol.22 no.1 pp. 27-44.

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