by Colin Yeo;
30 ‘The effectiveness and impact of immigration detention casework’, HM Inspectorate of Prisons and the Independent Chief Inspector of Borders and Immigration, 2012, paragraph 4.6.
31 ‘Growing concerns about “incompetent” legal advice for immigration detainees’, The Justice Gap, 30 May 2019.
32 ‘The immigration detainees held in prisons rather than detention centres’, Free Movement, 21 January 2020.
33 Figures provided by Bail for Immigration Detainees via a Freedom of Information request.
34 Stephen Shaw, ‘Review into the welfare in detention of vulnerable persons’, 14 January 2016, available at: https://www.gov.uk/government/publications/review-into-the-welfare-in-detention-of-vulnerable-persons
35 Mark Harper, Hansard, House of Commons debate, 5 September 2013, vol. 567, col. 584.
36 ‘Man died in immigration detention after staff “dismissed” stroke as sign he had taken spice’, The Independent, 12 November 2019.
37 ‘Report on an unannounced inspection of Heathrow Immigration Removal Centre Harmondsworth site’, HM Chief Inspector of Prisons, 13 March 2018.
38 Stephen Shaw, ‘Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons’, July 2018.
39 ‘Immigration detention: Fourteenth Report of Session 2017–19’, Home Affairs Committee, 12 March 2019.
40 Mohammed v The Home Office [2017] EWHC 2809 (QB).
41 Chapter 12 in ‘Fairer, Faster and Firmer: A modern approach to immigration and asylum’, Home Office, 1999.
42 ‘Secure Borders, Safe Haven: Integration with Diversity in Modern Britain’, Home Office, 2002, paragraph 4.73.
43 ‘Blunkett tells asylum seekers to go home’, Daily Telegraph, 18 September 2002.
44 Speech by Tony Blair to Labour Party conference on 16 September 2004, available at: http://www.britishpoliticalspeech.org/speech-archive.htm?speech=183
45 ‘Thirty-fourth report: Returning Failed Asylum Applicants’, Public Accounts Committee, 14 March 2006.
46 ‘Quarterly Immigration Statistics’, Home Office, September 2019.
47 Shaw, ‘Assessment of government progress in implementing the report on the welfare in detention of vulnerable persons’, 2018, p. 8.
48 ‘How the US built the world’s largest immigrant detention system’, The Guardian, 24 September 2019.
CHAPTER 12
CITIZENSHIP, NATIONALITY AND INTEGRATION
We have considered all aspects of immigration policy; it is now time to turn to the issue of citizenship. After a person has migrated to the United Kingdom, under what circumstances do she and her family become British? And what does it mean to be ‘British’ anyway? For a lawyer like me, a superficial answer to this last question is easy. A British citizen is a person on whom that status has been conferred, either automatically by law or by administrative action exercised under the British Nationality Act 1981. But once we start really thinking about this, things get very complicated very quickly, because there are other forms of legal status that either are or were also considered ‘British’.
Firstly, we can look to the past and how the meaning of ‘British’ has changed in law over the last century. Working backwards from the present, there was no such thing, legally, as a ‘British citizen’ before the 1981 Act came into effect on 1 January 1983. There was such a thing as a ‘British subject’, but this status applied to every single citizen of a Commonwealth country around the globe – some 600 million souls. The principal nationality and citizenship status for residents of the United Kingdom specifically was that of a ‘citizen of the United Kingdom and Colonies’. This status was the creation of the British Nationality Act 1948 and if a person had talked about ‘British citizens’ or ‘the British’ at that time, this was the closest thing there was in nationality law terms. But, as the very title suggests, it was a status held not just by residents of the United Kingdom but also by residents of the colonies. As we saw in Chapter 1, from the time of the Commonwealth Immigrants Act 1962, many people in possession of this citizenship who had not been born in the UK did not actually have the right to live in the country of which they were nominally considered citizens. Going further back in history, before the 1948 Act came into force the only form of British legal status was that of the British subject. This ancient common law status applied to all, or at least most, residents of the British Empire.
So, until the 1981 Act, it made no sense in legal terms to use the word ‘British’ to describe residents of Great Britain; all the available legal meanings of ‘British’ described a far, far wider group of people.
To confuse matters further, there are other forms of British legal status, aside from British citizenship, that still exist today. The 1981 Act also established two further forms of British nationality: British dependent territory citizenship and British overseas citizenship. And there are still other residual forms of British nationality as well, from other statutes and common law: British nationals overseas, British protected persons and British subjects. These British nationals generally live outside of Britain because none of these forms of nationality or status actually imbue the holder with a right to live here – a feature we might expect to be rather closely linked with ‘Britishness’.
There is no central register of the holders of any of these forms of British nationality, so nobody knows exactly how many there are of each. A passport is evidence of nationality but does not confer it; or, to put it another way, some people holding British nationality will have passports to prove it, but by no means will all of them. At the end of 2015, the Home Office reported that there were 48,821,200 British citizen passports in circulation.1 In comparison, the total population of the United Kingdom is something like sixty-five million, and we also know that some of those passport holders live outside the United Kingdom. One of the reasons for the difference between the number of passport holders and the number of residents is the fact that there are many British citizens who do not have passports.2 They may be children whose parents have not yet applied for their passport or adults who have never had cause to apply, perhaps because they have never travelled abroad, for example. The total number of British passports issued to the other types of British national noted above was 210,700 in 2015, the majority of which were given to British nationals overseas in Hong Kong.
LONG-TERM RESIDENTS WITHOUT CITIZENSHIP
So far, we have only considered ‘Britishness’ in narrow, purely legal terms. As the Windrush scandal of 2018 highlighted, though, there are many long-term, lawful residents of the United Kingdom who would be thought of by most as British and as ‘citizens’ in the wider colloquial sense. They may well also think of themselves as British, despite in fact now not being so – at least in the eyes of the law. To complicate things further, they may well have arrived at a time when they were actually considered British subjects (and perhaps even citizens of the United Kingdom and Colonies). In 2018, the researchers at Migration Observatory estimated that there were around 57,000 such long-term resident Commonwealth nationals in this position, who had entered the UK before 1971 but had not acquired British citizenship.3 These residents would normally possess a status formally called Indefinite Leave to Remain (‘ILR’ is the acronym beloved of lawyers and officials) but also variously referred to as settled status, settlement or permanent residence. There are also an unknown number of other residents who have arrived from all over the world since 1971 and who have been granted settlement, but without acquiring British citizenship. For example, those EU citizens living in the UK who apply for it are being granted settled status under the EU Settlement Scheme, meaning they will have secure residency after Brexit. It is not the same as British citizenship or nationality, though.
Those who have been living in the United Kingdom for a long time may not have any current, up-to-date proof of their status. Their passport, into which a stamp or sticker vignette was placed as proof, may have expired or been lost and a new one not issu
ed, for example. If they were resident before 1 January 1973, they may never have been issued with a proof of their status in the first place, as back then it was conferred on them automatically by law, without the need for documentary proof. This is why some members of the Windrush generation were denied employment, benefits, healthcare and threatened with deportation from around 2014 onwards: new laws meant they needed proof for the first time and they could not persuade the Home Office to issue them with it.
Then there are other non-citizen residents who were born in the UK or moved here at an early age and who have lived here all their lives. Automatic birth-right citizenship for anyone born in Britain was scrapped by the British Nationality Act 1981 with effect from 1 January 1983. Whether a child born in Britain is a British citizen now depends on the status of their parents at the time of their birth, or the actions of their parents since. As a result, many children in this position lack any kind of lawful status at all. This matters little while they are at school and they may not realise that they are different to their friends until their teenage years. Then, some find they cannot go on school trips abroad. Others only find out when it comes to applying to university, because they have no proof that they are a ‘home student’ who is exempt from the high fees that foreign students are required to pay. As we saw in Chapter 10, some end up being deported to countries in which they have never set foot or of which they have no memory at all. They seem British and sound British, their cultural reference points are all British and all their experiences and friends are British, yet they are unable to get a job, rent a property, open a bank account, claim benefits or local authority assistance, drive, marry or vote. The numbers are significant and will only grow over time, unless something is done.
In early 2020, a study by the Institute of Community Research and Development at the University of Wolverhampton estimated that there were 215,000 children living in the United Kingdom without immigration status, half of whom were born in the country.4 Some may be able to secure some form of status, but it can be prohibitively expensive – and they often have no means to pay lawyers or application fees – and tortuous. The application fee for a child born in Britain and resident for the first ten years of her life to register as a British citizen was, at the time of writing, £1,012. This is simply unaffordable to many families. To rub salt in the wound, the cost to the Home Office of processing each application is only £372; the difference is essentially profit, used to fund other aspects of the citizenship and immigration system. In 1983, when it was first introduced, the fee was £35. Even in cases where parents are aware that an application can be made for their children, those on low incomes either cannot afford the modern fee at all or have to choose which of their children to register. What are those children who are effectively excluded from citizenship by these fees supposed to do? They are unlikely to leave Britain, their home country, voluntarily because they would have no right of re-entry and they know no other country. Instead, they face the vulnerable, exploited, destitute lives on the margins of British society.
RIGHTS AND RESPONSIBILITIES
Perhaps surprisingly, there is almost no right or responsibility set out in law that is unique to British citizens over British nationals and long-term residents. Instead, we see huge overlap between these different forms of status.
If we start with the right to live and work long-term in the United Kingdom, the ‘right of abode’ was created by the Immigration Act 1971 and is an exemption from immigration control, meaning an immigration officer must only let into the country a person who can prove they possess this status. British citizens have this right, but so too do some Commonwealth citizens and their family members. Other groups have similar but legally slightly different rights: EU citizens will also be exempted from UK immigration control until the end of the Brexit transition period; Irish citizens have the right to live freely in the United Kingdom; and there are hundreds of thousands of long-term UK residents with a form of permanent residence called indefinite leave to remain.
We might expect the rights to vote and to stand in elections to be restricted to citizens alone, but in fact the Representation of the People Act 1983 also confers these rights on settled Commonwealth and Irish citizens. Prior to Brexit, EU citizens had the right to vote in local elections. There are no welfare benefits that are specifically restricted to citizens alone. Abroad, the British government can offer its citizens help in the form of diplomatic protection and consular assistance. Both are discretionary rather than as of right – the government is not required to do anything by law – and both are provided to all types of British national, not just British citizens. Consular assistance is also provided to Commonwealth citizens whose government is not represented in that country.
The same picture emerges if we look at what might be thought to be the responsibilities of citizenship. The obligation to serve on juries is the only potential shared, performative obligation of citizenship. It is tied to the right to vote in local and general elections, meaning that UK-based Commonwealth and Irish citizens (and EU citizens prior to Brexit) are also obliged to perform jury service. There is no longer a clear legal obligation of loyalty that applies to British citizens or nationals. Treason laws still technically exist on the statute book, but the Treason Act 1351 is widely considered unenforceable in its antiquated state. Prosecutions for treason have been virtually unknown since the Second World War, despite the issues of loyalty that have been thrown up by British citizens travelling abroad to fight as enemy combatants over the past twenty years. Even the power to strip British citizens of their status as citizens and exile them abroad is expressed in exactly the same language as the test for deporting foreign nationals: whether it is ‘conducive to the public good’.
For completeness, there was until recently one right that was genuinely unique to British citizens. Only British citizens, and not other types of British nationals or other long-term residents of the United Kingdom, qualified as citizens of the European Union. The right of free movement attached to this status enabled British citizens to travel, work, study and live anywhere in the European Union without applying for visas. As a result of Brexit, British citizens lost this status on 31 January 2020, although free movement rights are due to continue until the completion of the transition period at the end of 2020.
In a healthy democracy, long-term residents become citizens. Without citizenship, most will not have the right to vote, they will be vulnerable to deportation, which is damaging to the fabric of their family and community, and perhaps more importantly, they will lack ‘belonging’. As American legal academic Hiroshi Motomura writes, ‘Democracy is impaired by having a large group of marginalised residents who are governed but cannot acquire a voice in governing.’ He argues that the less it means to be a citizen, the more other forms of belonging will emerge, ‘many of them more parochial and less cosmopolitan or democratic, and more closely tied to the exclusionary workings of race, ethnicity and class’.5 In the United Kingdom, the similarities between citizenship and permanent residence mean that there is little incentive for permanent residents to naturalise. In fact, the fee acts as a significant disincentive. This is particularly true for Commonwealth and Irish citizens, who as noted above have the right to vote in parliamentary elections. While it would be retrograde to start removing long-held rights from long-term residents, there is a case for making citizenship an attainable and more attractive proposition in order to encourage more widespread adoption.
BECOMING BRITISH
There are essentially three ways to become British: by birth, by descent and by application. There are also some routes to acquiring citizenship that are a blend of these. The rules for each route can be complex and not everyone we would hope or expect to have acquired citizenship actually does so. What follows is not a full explanation of all the routes to becoming British but is an outline of those main paths.
A child born in the United Kingdom will automatically be born a British citizen if at least on
e of their parents is settled – meaning that they are in possession of indefinite leave to remain, permanent residence, the right of abode or British citizenship – at the time of their birth. No application needs to be made and no fee is payable. If or when such a child wants or needs a British passport as proof of their citizenship, they can apply for the passport and send in proof that they qualify. Before the British Nationality Act 1981 came into force, the simple fact of being born in the UK was sufficient to make the child British (or, more accurately, a citizen of the United Kingdom and Colonies possessing the right of abode).
There are two other principal routes by which a child born in the United Kingdom can become British after birth. One is where the child lives continuously in the country for the first ten years of her life and then makes an application for registration as a British citizen. The other is where at least one of the child’s parents becomes settled in the UK after the child’s birth, and an application for registration is made. Neither of these routes is automatic, though. If the application is not made, the child does not become British. A fee must also be paid. And at the time of writing, the fee was £1,012.
All three of these routes include exceptions or gaps that mean not all children living long-term in the United Kingdom will become British. The requirement that one of the parents holds a certain form of immigration status means that not all children born in the UK are British, for example. This was clearly the intention at the time that the British Nationality Act 1981 was passed. However, the two additional routes – living here for ten years continuously or a parent becoming settled – were intended to confer British citizenship on children who would remain in the United Kingdom for a long time.
Neither route has been effective; at the time of writing there are estimated to be over 100,000 children born and living in the UK with insecure status.6 The reasons for this are partly that parents do not know or understand that an application can be or has to be made, partly the complexity of the application process and partly the affordability of the fee. Families on low incomes literally cannot afford for their children to become British. And many of these families are from ethnic minorities. Insecure status, and the severe social and economic disadvantages that go with that, has unfortunately become generational.