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British Nationality Law British Nationality Law Laurie Fransman ofthe Middle Temple, Barrister Butterworths London, Edinburgh & Dublin 1998 Contents Preface v Table of UK legislation xxvii Table of European Communities legislation xliii Table of international Conventions xlvii Table of other Community material xlix Table of Commonwealth and other legislation li Table of cases lvü PARTI NATIONALITY IN EUROPE AT STATE, UNION AND INTERNATIONAL LEVELS Chapter 1 Nationality as distinct from citizenship and the roles of the member states, the European Union and the Council of Europe 3 1.1 Nationality v citizenship 3 1.2 Nationality in the sovereign states, European Union and Council of Europe 5 1.2.1 Brief Statement on the competence of the states, the Union and the Council of Europe in nationality matters 5 1.2.2 The nationality laws of the member states 5 1.2.3 The Union's incompetence in nationality matters 6 1.2.4 Distinguishing the Union and the Council of Europe — the major European source of relevant international law 7 1.3 The place of the European Union and Union citizenship in a discussion on nationality 9 1.3.1 Two reasons Union citizenship cannot be excluded 9 1.3.2 The greater framework 11 1.3.3 Issues arising from vertical and horizontal relationships 11 1.3.4 The Commonwealth experience distinguished 13 1.3.5 Union citizenship as the origin of a future European nationality 14 1 -3.6 The issues to be examined further: the bridge to chapter 2 15 viü Contents Chapter 2 The European Union and Union citizenship 17 2.1 Origins of the European Union 17 2.1.1 1951-1957: the establishment of the original three supranational Comrnunities 17 2.1.2 Developments after 1957, including the Single European Act 18 2.2 Establishment of the Union and Union citizenship: the Treaty of Maastricht (or TEU) and Treaty of Amsterdam 20 2.2.1 A 'Union ... founded on the ... Communities' 20 2.2.2 The EEC becomes the EC, incorporating Union citizenship 24 2.3 Free movement rights in Community law 27 2.3.1 'Workers', 'establishment' and 'services' 27 2.3.2 Scope: 'domestic personal', 'international personal', 'territorial' 28 2.3.3 The broadening of the free movement rights - up to and including article 8a, EC Treaty 29 2.4 The Union Citizens entitled to move and reside freely 31 2.4.1 The three stages to identifying a 'Union Citizen' simpliciter 31 2.4.2 Every Union Citizen having 'the right to move and reside freely': the international personal scope of the article 8a right 33 2.4.3 Whether a national is only a 'Union Citizen' within article 8a if within its personal scope 35 2.4.4 Union Citizens 'from' Europe and abroad; who defines it, what it means and the disparity between theory and practice 36 2.4.5 Catalogue of nationals of the member states 39 2.5 The 'territory' within which Union Citizens are entitled to move and reside freely under article 8a, EC Treaty 47 2.5.1 'Territory' of a State: the purpose of the enquiry and general comments on extent 47 2.5.2 Article 227 in brief 50 2.5.3 The countries to which the Treaty applies (art 227(1)) 50 2.5.4 The non-European dependencies of the member states (art 227(2)-(3)) 51 2.5.5 The European dependencies of the member states (art227(4)-(5)) 67 2.5.6 Disputed territories, decolonisation and United Nations' interests 69 2.5.7 Conclusions and füll catalogue of states and territories 70 Catalogue of states and territories 70 Chapter 3 International materials, principles and policies 81 3.1 A selection, not comprehensive Statement, of international law and related matters 81 Contents ix 3.2 Major principles and policies concerning nationality 81 3.2.1 Nationality is in the state's 'reserved domain' 81 3.2.2 The right to nationality and related matters 83 3.2.3 The right of abode: a national's right to enter, depart from, and move and reside freely within his own country 84 3.2.4 Acquisition through genuine connection? Jus soli and jus sanguinis, changing civil Status, investment programmes, representation in international competition, etc 86 3.2.5 Multiple (or dual) nationality 88 3.2.6 Executive discretion and judicial control 92 3.2.7 Non-discrimination 92 3.3 Council of Europe resolutions and recommendations concerning nationality 93 3.3.1 The effect of Strasbourg resolutions and recommendations 93 3.3.2 Acquisition by refugees of the nationality of their country of residence 93 3.3.3 The nationality of spouses of different nationalities 96 3.3.4 The equality of the parents of legitimate children 97 3.3.5 Migrants in the member states 97 3.3.6 Preventing statelessness at birth 98 3.3.7 'Mixed marriages' (ie parents of different European nationalities) 99 3.4 Treaty law concerning nationality 100 3.4.1 Introduction 100 3.4.2 Chronological catalogue of treaty provisions relating to nationality 101 PART II PERSONAL STATUS IN BRITISH NATIONALITY LAW—BRITISH SUBJECTS TO BRITISH CITIZENS SECTION A BRITISH NATIONALITY LAW PRIOR TO 1983 Chapter 4 Introduction: preliminary concepts and 'status tracing' 129 4.1 The evolutionary nature of British nationality law: the need toknow 129 4.1.1 Prior to 1915 129 4.1.2 1915 to 1948, inclusive 129 4.1.3 1949 to 1982, inclusive 129 4.1.4 Since 1983 130 4.2 How much of the old law must one know? 130 4.3 'Acquisition rules' (including jus soli and jus sanguinis) and 'loss rules' 130 x Contents 4.3.1 Acquisition rules 131 4.3.2 Loss rules 131 4.4 Automatic (ex lege) and non-automatic (by entitlement or discretionary) processes 131 4.5 Re-classification at midnight on 31 December 1948 and 31 December 1982 132 4.6 Retrospective and non-retrospective provisions 132 4.7 Status tracing 132 Example 1 133 Example 2 134 Chapter 5 The law prior to 1915: the Statute De natis ultra mare (1350) to the Naturalization Acts (1870-1895)) 153 5.1 Allegiance—the beginning of nationality 153 5.2 The nationality categories—British subjects, protected persons and aliens 154 5.3 Acquisition of British subject Status: birth 154 5.4 Acquisition of British subject Status: descent 154 5.5 Acquisition of British subject Status: naturalisation (including wives and minors) and endenisation 157 5.5.1 Naturalisation 158 5.5.2 Endenisation 162 5.6 Acquisition of British subject Status: annexation 165 5.7 Loss of British subject Status 166 5.7.1 Loss generally 166 5.7.2 Wives 167 5.7.3 Minors 167 5.8 Resumptionof British subject Status 168 5.9 The emergence of protected persons and places 168 5.10 On the eveof the 1914 Act 169 Chapter 6 The law between 1914 and 1949 170 6.1 The Statutes and their general purpose 170 6.2 Acquisition of British subject Status: birth 171 6.2.1 Birth within dominions and allegiance 171 6.2.2 Birth on British ship 171 6.2.3 Birth in a protected place 171 6.3 Acquisition of British subject Status: descent 172 6.3.1 Section l(l)(b)(i): the child of a British subject by birth 173 6.3.2 Section l(l)(b)(ü): the child of a naturalised British subject 173 6.3.3 Section l(l)(b)(iii): the child of a British subject by annexation 174 6.3.4 Section l(l)(b)(iv): the child of a British subject (by descent) in Crown Service 174 6.3.5 Section l(l)(b)(v): the child of a British subject • by descent 175 Contents xi 6.4 Acquisition of British subject Status: naturalisation 176 6.4.1 Aliens generally 176 6.4.2 Wives 177 6.4.3 Minors 178 6.5 Acquisition of British subject Status: annexation 179 6.6 Loss of British subject Status 179 6.6.1 Loss generally 179 6.6.2 Wives 180 6.6.3 Minors 181 6.7 Resumption of British subject Status 184 6.8 British Protected Persons 184 6.9 On the eve of the 1948 Act 184 Chapter 7 The law between 1948 and 1983: introduction and the re-classification of British subjects 186 7.1 Schemeof the British Nationality Act 1948 186 7.2 The equivalent of the BNA 1948 in each of the original s 1(3) Commonwealth countries 187 7.3 Categories of British nationality as of 1 January 1949 188 7.4 The automatic re-classification of British subjects on 1 January 1949 and the ascertainment of who held the Status immediately prior 190 7.4.1 Wives who through marriage had ceased to be British subjects 191 7.4.2 Children who by failing to make a declaration had ceased to be British subjects by descent 191 7.4.3 Children who by automatically taking the nationality of their parents had ceased to be British subjects 191 7.4.4 Registering pre-1949 births on or after 1 January 1949 192 7.4.5 Pre-1949 naturalisation applications still outstanding on 1 January 1949 193 7.5 The pre-1949 British subjects who were re-classified as British subjects without citizenship (ie potential s 1(3) Citizens under s 32(7)) 193 7.6 Why British subject without citizenship Status continued to exist despite its planned obsolescence 197 Summary of 7.5 and 7.6 200 7.7 The pre-1949 British subjects re-classified as CUKCs 200 7.7.1 Birth in the UK and Colonies: s 12(l)(a) 201 7.7.2 Naturalisation in the UK and Colonies: s 12(l)(b) 201 7.7.3 Annexation of territory included in the UK and Colonies: s 12(l)(c) 202 7.7.4 Descent from the UK and Colonies: s 12(2) 202 7.7.5 Birth in certain protected places: s 12(3) 202 7.7.6 The 'tidying-up loose ends' provision: s 12(4) 203 7.7.7 Marriage to a man who 'belonged' to the UK and Colonies: s 12(5) 205 7.7.8 Transitional registration provisions: s 12(6) and (7) 206 7.7.9 Reclassification under s 13(2) 206 xii Contents Chapter 8 The law between 1948 and 1983: the acquisition and loss rules 207 8.1 The rules and the Statutes 207 8.2 Acquisition of citizenship of the UK and colonies: birth and adoption 207 8.3 Acquisition of citizenship of the UK and Colonies: descent 209 8.3.1 The general
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