Persistent legal inequalities and the colonial association of modern British citizenship

Devyani Prabhat[1]

Holding modern British citizenship has legal benefits such as being free from immigration control. In the Pham case [2018] EWCA Civ 2064, Arden LJ pronounced that: ‘The right to nationality is an important and weighty right. It is properly described as the right to have other rights, such as the right to reside in the country of residence and to consular protection and so on.’ The other side of this picture is that British citizenship is politically contingent and has operated in an unequal manner over time. Different categories of people have had differential access to it, both in the past and in contemporary times.

My article, ‘Unequal citizenship and subjecthood: a rose by any other name ...?’ (published in Northern Ireland Legal Quarterly 71(2): 175–191) questions the pivotal role of contemporary British citizenship through a long historical lens. It focuses on the acquisition, holding and loss of citizenship as critical points in the lifecycle of citizenship to identify the legal inequalities that persist in citizenship from the days of empire and subjecthood.

Understanding subjecthood, and its close links with citizenship, reveals citizenship for what it is; a potential relationship of the promise of rights which is contingent on ongoing struggles for rights rather than a taken-for-granted set of rights.

This can be illustrated through examples such as the persistence of legal inequalities in the many reformulations of who can enter and who can reside in the UK. Instead of a clear territorial decolonisation at the end of empire, immigration and nationality laws have created demographic changes within the UK through a process of successive and cumulative exclusion. It is a process which is reminiscent of ‘reverse decolonisation’ where people who could freely arrive are rendered susceptible to deportation and expulsion. Contextually placing subjecthood and citizenship in various backdrops, it is possible to identify similarities such as the promise of rights, the indeterminacy of form, a pragmatic policy-linked categorical operation, and a strong role in demographic control.

These new categories carried over the dominion-versus-colony divide, as they also gave preference to those who were ethnically similar to the white British population. People from former dominions with their white settler populations were more likely to have parents or grandparents born within the UK because of having ethnic links to the white majority British population. They could readily establish patriality. Non-patrials resided mainly in the former colonies, which were ethnically different, and so were usually not able to prove such a link. As a result, they were automatically eliminated from future migration. Under this differential treatment, aggravated racial divisions were created in the UK and culminated in the hostile environment towards migrants and their progeny. Eventually, it led to a renewed emphasis on a loyalty and allegiance model of citizenship for migrants and migrant-citizens which is exemplified in the development of cancellation laws.

An example of the differential operation of cancellation laws is currently playing out in UK courts. British citizen Shamima Begum, who left the UK as a 15-year-old schoolgirl for Syria in 2015, had her British citizenship removed and is currently challenging this cancellation of citizenship. Ms Begum was a British citizen from birth. The Court of Appeal ruled on 16 July 2020 that Ms Begum should be allowed back so that she can effectively challenge the removal of her British citizenship, but this decision was appealed to the Supreme Court. Ms Begum’s case raises important questions about who can be stripped of citizenship rights and how this is carried out. It underlines a disturbing trend in cancellation of citizenship where people with migrant backgrounds (naturalised citizens or second-generation citizens) or people with migrant connections (multiple-nationalities) tend to be the ones who are stripped of citizenship. In the context of migration to the UK having been historically in the context of empire, there are colonial overtones to this kind of loss of citizenship for reasons of failure of allegiance. The ethnic minority people affected by the loss of British citizenship today are the progeny of those who migrated from the erstwhile empire or its subsequent form in the Commonwealth and who were greeted with racist exclusion. In terms of how citizenship operates, cancellation of citizenship demonstrates that people are able to lose citizenship without even being present in the country and without any criminal charge or judicial determination of the order to deprive them.

Continued legal inequalities such as exclusion from British citizenship of children born out of wedlock to British fathers in overseas territories in certain periods of time exemplify the piecemeal nature of reform in nationality and immigration laws.[2] The political contingency of British citizenship has also become apparent in the hostile environment policies, and the uncertainty in the lives of other long-term residents has also increased as access to citizenship was tightened through the requirement of longer periods of residence. New language and citizenship tests were introduced in 2002 and later toughened to introduce greater difficulty. Another hurdle has been the cost of making a naturalisation application, which has increased sharply from £575 in 2008 to £1330 in 2020.[3] All of these measures have served to create a significant population of settled residents without citizenship who are permanently subject to immigration control. The lack of a declaratory system for settled status for EU nationals in the context of the Brexit legal transition has added to these numbers in limbo, as EU nationals undergo administrative processes to secure their residence rights. If they do not apply through the specified process, they risk having no regular legal status overnight from 1 July 2021. 

As evident from the prominent examples above, there are legal inequalities built into every aspect of modern British citizenship law: its acquisition, its holding, and its loss. Such legal inequalities can be traced back to British citizenship’s close connections with subjecthood and are unlikely to cease to exist unless there is a radical reconceptualisation of citizenship.

 

[1]           Professor of Law, University of Bristol Law School: devyani.prabhat@bristol.ac.uk.

[2]           For instance, see ‘Nationality policy: children of unmarried parents’ (2019) Home Office.

[3]           Home Office Policy Paper on Immigration and Nationality Fees: updated 26 January 2021.