British Overseas Territories citizen

A British Overseas Territories citizen (BOTC), formerly called British Dependent Territories citizen (BDTC), is a member of a class of British nationality granted to people connected with one or more of the British Overseas Territories (previously designated British colonies). This category was created to differentiate between British nationals with strong ties to the United Kingdom and those connected only with an overseas territory (other than Gibraltar or the Falkland Islands), both of which groups had shared Citizenship of the United Kingdom and Colonies (CUKC) before 1 January, 1983. The primary right of citizenship, that of abode in the United Kingdom, had been involuntarily taken away from colonial CUKCs by 1968 and 1971 Acts of Parliament, unless they retained it through a qualifying connection with the United Kingdom. Under the British Nationality Act 1981, which went into effect on 1 January, 1983, colonial CUKCs (other than Gibraltarians and Falkland Islanders) without a qualifying connection to the United Kingdom became British Overseas Territories citizens, a citizenship which did not include right of abode anywhere; not even in the territories in which they were born (CUKCs born in the United Kingdom, Gibraltar, the Falkland Islands, or the Crown Dependencies of the Channel Islands and the Isle of Man all became British Citizens, with right of abode in the United Kingdom). Those with British Overseas Territories citizenship remained British nationals (subject to British sovereignty), but not British citizens. As the United Kingdom is a Commonwealth Realm, all British Nationals, including BDTCs, remained Commonwealth citizens, though free movement by citizens of other Commonwealth countries into the United Kingdom had ended with the Commonwealth Immigrants Act 1962 (the British Overseas Territories are not members of the Commonwealth in their own rights, as it is a community of independent nations, one of which is the United Kingdom).

BOTC status does not give the holder right of abode in the United Kingdom but since 2002, almost all BOTCs simultaneously hold British citizenship, except for those connected only with the territory of Akrotiri and Dhekelia. Nationals of this class who are not also full citizens are subject to immigration controls when entering the UK. About 63,000 BOTCs hold active British passports with this status and enjoy consular protection when travelling abroad.[1]

Background

All natural-born subjects of the Crown previously held the unrestricted right of free movement in any part of the British Empire.[2] As different areas of the empire gained legislative power from London, these territories gradually enacted their own laws governing entry and residence rights. At the same time, a common imperial nationality was maintained (British subject status) so that those "belonging" to one territory would not be considered aliens in another.[3] Although colonies that had not become independent Dominions remained under British sovereignty, they also had an accepted right to determine local immigration policy.[4] The British Nationality Act 1948 categorised subjects from the United Kingdom and its remaining overseas territories as Citizens of the United Kingdom and Colonies (CUKCs).[5]

All CUKCs initially held the right to enter and live in the UK,[6] although non-white immigration was systemically discouraged.[7] Immigration from the colonies and other Commonwealth countries was gradually restricted by Parliament from 1962 to 1971 amid decolonisation, when British subjects originating from outside of the British Islands first had immigration controls imposed on them when entering the UK.[8]

The Commonwealth Immigrants Act 1962, which resulted from racist anger at the increasing number of people of colour migrating from the colonies and Commonwealth countries, raised barriers to the immigration of Commonwealth citizens. It did, at least, ensure that certain colonials would remain Citizens of the United Kingdom and Colonies if their colonies chose independence. This was primarily for the benefit of ethnic-Indians in African colonies, such as Kenya, to ensure they would not be left stateless in case they were denied the citizenship of the newly independent countries. Thereafter, many ethnic-Indians from African colonies began to move to the United Kingdom, resulting in the rapid passing of the Commonwealth Immigration Act 1968, which removed the rights of free entry to, and abode and work in, the United Kingdom from those British Subjects, including Citizens of the United Kingdom and Colonies in the remaining colonies, who were not born in the United Kingdom.

The Immigration Act 1971 introduced the concept of patriality, by which only British subjects (i.e. CUKCs and Commonwealth citizens) with sufficiently strong links to the British Islands (e.g. being born in the islands or having a parent or a grandparent who was born there) had right of abode, meaning they were exempt from immigration control and had the right to enter, live and work in the islands. The act, therefore, had de facto created two types of CUKCs: those with right of abode in the UK, and those without right of abode in the UK (who might or might not have right of abode in a Crown colony or another country). Despite differences in immigration status being created, there was no de jure difference between the two in a nationality context, as the 1948 Act still specified one tier of citizenship throughout the UK and its colonies. This changed in 1983, when the 1948 Act was replaced by a multi-tier nationality system.

The current principal British nationality law in force, since 1 January 1983, is the British Nationality Act 1981, which established the system of multiple categories of British nationality. To date, six tiers were created: British citizens, British Overseas Territories citizens, British Overseas citizens, British Nationals (Overseas), British subjects, and British protected persons. Only British citizens and certain Commonwealth citizens have the automatic right of abode in the UK, with the latter holding residual rights they had prior to 1983.

The stripping of birth rights from at least some of the colonial CUKCs in 1968 and 1971, and the change of their citizenships in 1983, actually violated the rights granted them by Royal Charters at the founding of the colonies. Bermuda (fully The Somers Isles or Islands of Bermuda), by example, had been settled by the London Company (which had been in occupation of the archipelago since the 1609 wreck of the Sea Venture) in 1612, when it received its Third Royal Charter from King James I, amending the boundaries of the First Colony of Virginia far enough across the Atlantic to include Bermuda. The citizenship rights guaranteed to settlers by King James I in the original Royal Charter of the 10 April, 1606, thereby applied to Bermudians:

Alsoe wee doe, for us, our heires and successors, declare by theise presentes that all and everie the parsons being our subjects which shall dwell and inhabit within everie or anie of the saide severall Colonies and plantacions and everie of theire children which shall happen to be borne within the limitts and precincts of the said severall Colonies and plantacions shall have and enjoy all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande or anie other of our saide dominions.

[9]

These rights were confirmed in the Royal Charter granted to the London Company's spin-off, the Company of the City of London for the Plantacion of The Somers Isles, in 1615 on Bermuda being separated from Virginia:

And wee doe for vs our heires and successors declare by these Pnts, that all and euery persons being our subjects which shall goe and inhabite wthin the said Somer Ilandes and every of their children and posterity which shall happen to bee borne within the limits thereof shall haue and enjoy all libertyes franchesies and immunities of free denizens and natural subjectes within any of our dominions to all intents and purposes, as if they had beene abiding and borne wthin this our Kingdome of England or in any other of our Dominions

[10]

In regards to former CUCKs of St. Helena, Lord Beaumont of Whitley in the House of Lords debate on the British Overseas Territories Bill on the 10 July, 2001, stated:

Citizenship was granted irrevocably by Charles I. It was taken away, quite wrongly, by Parliament in surrender to the largely racist opposition to immigration at the time.[11].

Aside from different categories of a nationality, the 1981 Act also ceased to recognise Commonwealth citizens as British subjects. There remain only two categories of people who are still British subjects: those (formerly known as British subjects without citizenship) who acquired British nationality through a connection with former British India, and those connected with the Republic of Ireland before 1949 who have made a declaration to retain British nationality. British subjects connected with former British India lose British nationality if they acquire another citizenship.

Conversely, CUKCs did not have automatic right of abode in the colonies.[12] After passage of the British Nationality Act 1981, CUKCs were reclassified into different nationality groups based on their ancestry and birthplace: CUKCs with right of abode in the United Kingdom or who were closely connected with the UK, Channel Islands, or Isle of Man became British citizens while those connected with a remaining colony became British Dependent Territories citizens (BDTCs).[13] Right of abode in the territories is dependent on possession of belonger status, regardless of which type of British citizenship is possessed.[14]

The results of the Acts of 1968, 1971, and 1981 were the cause of much anger in the negatively-affected British Dependent Territories, as the colonies were renamed. Detrimentally stripping away birthrights from colonials was cause enough for this anger, but observing that Gibraltar and the Falkland Islands retained full British Citizenship emphasised the racist ideology that underlay these changes. In wealthy and self-reliant Bermuda, which had absorbed considerable immigration from the United Kingdom since the 1940s despite having its own immigration controls (of the 71,176 persons estimated to reside in Bermuda in 2018, 30% were not born in Bermuda, of which those born in the United Kingdom are the largest demographic group). As this immigration has been sustained for decades (the 1950 census showed 2,718 residents who had been born in the United Kingdom, out of a population of about 30,000), a substantial portion of the 70% who were born in Bermuda have parents or grandparents born in the United Kingdom.

The majority of Bermudians who retained right of abode in the United Kingdom after 1 January, 1983, were, however, white (with whites making up a third of the population). Very few of Bermuda's majority blacks (whose actual ancestry is any mixture of European, African, and Native American) retained right of abode in the United Kingdom through a forebear born in the United Kingdom.[15] Although after the 1 January, 1983, any BDTC who legally resided in the United Kingdom for five years (generally with a student's visa or a work permit) was entitled to have leave to remain entered into his or her passport, this was an avenue that few blacks could utilise, as not many could afford to study in the United Kingdom (especially given the extortionate university fees to which they were subject, whereas many white colonials with the right of abode in the United Kingdom paid only a fraction of the tuition), and fewer still were able to obtain a work permit. This situation was especially infuriating to black Bermudians given the number of whites from the United Kingdom working in well-paid jobs in Bermuda's financial sector (of Bermuda's total workforce of 38,947 persons in 2005, 11,223 (29%) were non-Bermudians),[16] in which marginalised blacks are under-represented, who also have had the effect of driving up housing costs to the particular detriment of low-paid blacks (the Government of Bermuda's 2009 employment survey showed the median annual income for blacks for the year 2007-8 was $50,539, and for whites was $71,607, with white Bermudian clerks earning $8,000 a year more than black Bermudian clerks, and black Bermudian senior officials and managers earning $73,242 compared to $91,846 for white Bermudian senior officials and managers; the racial disparity was also observed among expatriate workers, with white non-Bermudian senior officials and managers earning $47,000 more than black non-Bermudian senior officials and managers),[17][18]

Debate over full citizenship rights

At the time of nationality reclassification in 1983, the largest group of BDTCs (2.5 million people) was associated with Hong Kong.[19] The deprivation of full passports and nationality rights for colonial residents was criticized for effectively codifying ethnicity as the deciding factor in determining what rights British subjects were entitled to, an impression confirmed by exceptions granted to the majority white residents of Gibraltar and – after the Falklands War – the Falkland Islands.[20][21] The British government was particularly unwilling to grant full citizenship and immigration rights to Hongkongers,[20] fearing a mass migration to the UK after the transfer of sovereignty to China in 1997.[22]

In the remaining dependent territories, the majority of white residents maintained access to full citizenship while this was denied to non-white belongers. Territorial residents resented this treatment, because although Britain bore ultimate responsibility for their homes as the sovereign power, it did not treat them more favourably than travellers from foreign countries.[23][24][25]

Restoration of citizenship

Almost five years after Hong Kong was transferred to China, Parliament restored access to full British citizenship and right of abode in the United Kingdom to virtually all British Dependent Territories citizens.[26] The sole exception to this was for those living in Akrotiri and Dhekelia, which were excluded due to their status as military bases as specified in the treaty establishing Cyprus.[27] Any person who was a BDTC before 21 May 2002[28] automatically became a British citizen on that date,[29] and children born after that date to BDTCs also automatically acquire full citizenship.[30] Additionally, the Act renamed the status British Overseas Territories citizenship, mirroring the name change for the territories themselves as well.[27][31]

Acquisition and loss

British Overseas Territories citizens may originate from any of the 14 territories (shown in red).

There are four ways to acquire British Overseas Territories citizenship: by birth, adoption, descent, or naturalisation.

Individuals born in a territory automatically receive BOTC status if at least one parent is a BOTC or has belonger status. Children born to British citizen parents who are not settled in an overseas territory are not BOTCs at birth. Parents do not necessarily need to be connected with the same overseas territory to pass on BOTC status.[32] Alternatively, a child born in an overseas territory may be registered as a BOTC if either parent becomes a BOTC or settles in any overseas territory subsequent to birth. A child who lives in the same territory until age 10 and is not absent for more than 90 days in each year is also entitled to registration as a BOTC.[33] Furthermore, an adopted child automatically become a BOTC on the effective day of adoption if either parent is a BOTC or has belonger status. In all cases that an individual is a British Overseas Territories citizen at birth or adoption within the territories, that person is a BOTC otherwise than by descent.[32]

Individuals born outside of the territories are BOTCs by descent if either parent is a BOTC otherwise than by descent. Unmarried fathers cannot automatically pass on BOTC status, and it would be necessary for them to register children as BOTCs. If a parent is a BOTC by descent, additional requirements apply to register children as BOTCs. Parents serving in Crown service who have children abroad are exempted from these circumstances, and their children would be BOTCs otherwise than by descent, as if they had been born on their home territory.[33]

Foreigners and non-BOTC British nationals may naturalise as British Overseas Territories citizens after residing in a territory for more than five years and possessing belonger status or permanent residency for more than one year. The residency requirement is reduced to three years if an applicant is married to a BOTC. All applicants for naturalisation and registration are normally considered by the governor of the relevant territory, but the Home Secretary retains discretionary authority to grant BOTC status.[34] Since 2004, BOTC applicants aged 18 or older are required to take an oath of allegiance to the Sovereign and loyalty pledge to the relevant territory during their citizenship ceremonies.[35]

British Overseas Territories citizenship can be relinquished by a declaration made to the governor of the connected territory, provided that a person already possesses or intends to acquire another nationality.[36] BOTC status can be deprived if it was fraudulently acquired[37] or if an individual is solely connected with a territory that becomes independent and that person gains the new country's citizenship. The last territory to have done so is Saint Kitts and Nevis in 1983.[38] BDTCs connected with Hong Kong also had their status removed at the transfer of sovereignty in 1997, but were able to register for British National (Overseas) status before the handover.[39]

Rights and privileges

British Overseas Territories citizens are exempted from obtaining a visa or entry certificate when visiting the United Kingdom for less than six months.[40] They are eligible to apply for two-year working holiday visas and do not face annual quotas or sponsorship requirements.[41] When travelling in other countries, they may seek British consular protection.[42] BOTCs are not considered foreign nationals when residing in the UK and are entitled to certain rights as Commonwealth citizens. These include exemption from registration with local police,[43] voting eligibility in UK elections,[44] and the ability to enlist in the British Armed Forces.[45] British Overseas Territories citizens are also eligible to serve in non-reserved Civil Service posts,[46] be granted British honours, receive peerages, and sit in the House of Lords.[13] If given indefinite leave to remain (ILR), they are eligible to stand for election to the House of Commons[47] and local government.[48][49][50]

All British Overseas Territories citizens other than those solely connected with Akrotiri and Dhekelia became British citizens on 21 May 2002, and children born on qualified overseas territories to British citizens since that date are both BOTCs and British citizens otherwise than by descent. Prior to 2002, only BOTCs from Gibraltar and the Falkland Islands were given unrestricted access to citizenship. BOTCs naturalised after that date may also become British citizens by registration at the discretion of the Home Secretary.[51] Becoming a British citizen has no effect on BOTC status; BOTCs may also simultaneously be British citizens.[52]

Restrictions

British Overseas Territories

Although British Overseas Territories citizenship is granted to individuals who are closely connected to particular territories, each territory maintains separate immigration policies and different requirements for conferring belonger status. BOTC status by itself does not grant its holders right of abode or the right to work in any of the territories[53] and confers no entitlements other than the right to apply for a BOTC passport.[54] Consequently, there are circumstances in which BOTCs do not have right of abode in the territory that they derive their citizenship from.[14] BOTCs who are part of this group and have no other nationality are de facto stateless because they are deprived of the right to enter the country that claims them as nationals.[55] Additionally, both BOTCs and full British citizens who are not belongers of a given territory may not vote or stand for public office in that jurisdiction.[56]

United Kingdom

British Overseas Territories citizens are subject to immigration controls and have neither the right of abode or the right to work in the United Kingdom.[42] BOTCs other than Gibraltarians are also required to pay a "health surcharge" to access National Health Service benefits when residing in the UK for longer than six months[57] and do not qualify for most welfare programmes.[58] However, since 2002, almost all BOTCs are also British citizens and have UK right of abode.[59] When exercising that right and entering the UK for a period of more than six months, they must travel with British citizen passports or other valid passports endorsed with a certificate of entitlement for right of abode.[60]

European Union

Before the United Kingdom withdrew from the European Union on 31 January 2020, full British citizens were European Union citizens.[61] Most British Overseas Territories citizens were not EU citizens and did not enjoy freedom of movement in other EU countries. They were,[62] and continue to be, exempted from obtaining visas when visiting the Schengen Area.[61] Gibraltar was the sole exception to this; BOTCs connected to that territory were also EU citizens and did have freedom of movement within the EU.[63]

References

Citations

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  3. ^ The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 27.
  4. ^ The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 29.
  5. ^ The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 32.
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  61. ^ a b Regulation (EU) No 2019/592.
  62. ^ Regulation (EU) No 2018/1806 Annex II.
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