Britain, Brexit and Hong Kong: the problems of UK nationality law

At the end of May, Boris Johnson announced that the UK would offer a “path to citizenship” for holders of British national (overseas) passports – BN(O)s – if Beijing persisted in its plan to impose a repressive new national security law on Hong Kong. On 1 July, after Beijing passed the law, the foreign secretary, Dominic Raab, made good on the promise, announcing that BN(O)s would be admitted to the UK for five years, following which they could receive ‘indefinite leave to remain’ (ILR – permanent resident status), and full British citizenship a year later.

But what is this strange, parenthetical nationality that until recently conferred almost no rights except a passport? How is it that people can be British nationals without being allowed to live in Britain?

UK nationality law is suffering from a colonial hangover

At the start of the 20th century, British nationality law was simple: anyone born in the British empire was a British subject, and any British subject had the right to live in Britain. As the empire evolved into a Commonwealth, the newly independent states created their own nationalities. But until the passage of the Commonwealth Immigrants Act 1962, the basic principle that any ‘citizen of the United Kingdom and Colonies’ (CUKC) had the right of free entry to the ‘mother country’ remained intact.

Then, through a series of acts between 1962 and 1971, this right was narrowed down to almost nothing. The peculiar category of ‘patrials’ was created: not wanting to admit that it was depriving CUKCs of their citizenship, the UK government invented a new status – not technically a nationality – reserved for those who had at least one UK-born grandparent. Only patrials would have the right to live in the UK. Naturally, almost all of them were white. The purpose of the acts – passed by both Conservative and Labour governments – was nakedly racist and was recognised as such at the time.

Finally, in 1981, the Thatcher government dropped the charade and withdrew British citizenship from the inhabitants of the few remaining colonial territories, including Hong Kong. The former patrials became British citizens: everyone else was relegated to a variety of strange new statuses, none of which conferred any right to live in the UK.

We are still living with this profusion of British nationalities. We may be British citizens (BCs), British overseas citizens (BOCs), British overseas territories citizens (BOTCs), British subjects without citizenship (BSs), British protected persons (BPPs) or British nationals (overseas) (BN(O)s). Confusingly, almost all BOTCs are also BCs and so have the right to live in the UK, as do most BSs (Irish citizens who were living in the UK when Ireland became a republic in 1949). BOCs, however, do not: they include certain Malaysians of Chinese descent, as well as Germans who happen to be descended from the Electress of Hanover and so qualify under the Sophia Naturalisation Act 1705 (provided they are Protestant). In short, British nationality law is a mess.

The rights of UK residents are also deeply confused

In most countries, rights of residence and political participation are tied to citizenship. In the UK this is only partially true. British citizens have the right to live and vote in the UK. European citizens can also live in the UK – at least until the end of 2020 – but cannot vote in general elections. Commonwealth citizens can vote if they live in the UK on an election day, but their ‘citizenship’ does not confer any automatic right to come and live in the UK at all. The same is true of BOTCs, BOCs, BSs and BN(O)s – but not BPPs, who have neither the right of abode nor the vote.

Anyone who has the vote can serve as a civil servant. This has been a boon for the Department for International Trade: the teams negotiating new trade deals with Australia and New Zealand are filled with highly competent Australians and New Zealanders (who will, of course, be asked to leave when their visas run out). It must be a source of regret that it cannot legally recruit Americans to its US team in the same way.

Regardless of their citizenship status, people may have various kinds of residence rights. Some lucky people have ILR; others’ ‘leave to remain’ is limited to durations from days to years. EU citizens are now busy acquiring ‘settled status’ or, for those who haven’t yet spent five years in the UK, ‘pre-settled status’. It remains to be seen what verbal concoction the Home Office will come up with to describe the residence status of Hong Kongers who take up Raab’s offer.

Brexit and the Hong Kong situation are a golden opportunity to tidy up this mess

In 2009, the Labour attorney general Lord Goldsmith published a review of British citizenship. He argued for the elimination of the residual categories of British nationality and the reconstruction of nationality and residence law on a simple, three-part basis. British citizens would have full rights of residence and political participation; British ‘associate citizens’ would have the right to live in the UK but not to vote; anyone else in the UK or its overseas territories would be a temporary resident and would be expected eventually to leave.

The main obstacles to this radical and attractive simplification were the EU and Hong Kong. EU citizens’ rights of free movement meant that they could not be required either to leave or to take citizenship. The government’s commitment under the 1984 Sino-British Joint Declaration not to allow Hong Kongers to come to the UK meant that BN(O)s – of whom there are almost three million, far more than any of the other residual nationality classes – could not be folded into the structure.

Both of these objections are now much diminished. Britain’s exit from the EU requires the government to reconstruct the law on immigration and residence, as it is currently doing through the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The decision to grant automatic residence rights to Hong Kongers has already upgraded BN(O) status to something close to Goldsmith’s proposed associate citizenship. There has never been a better opportunity to tidy up Britain’s muddled nationality law – or to purge it of the stain of racism. The government should take it.