You would be forgiven for thinking there are some special rights or privileges attached to being a British citizen. Politicians are fond of telling us how great it is to be British and how it is a privilege not a right. Our government charges foreign nationals a small fortune to become British citizens in anticipation of the assumed benefits of that hallowed status. Government policy has been, since the British Nationality Act 1981 first created British citizens, to keep the number of British citizens small.
How citizenship is defined and what rights and responsibilities are attached to citizenship tells us a lot about a nation or polity. These are basic questions of political philosophy and the basis of democracy, after all. Literally, who are “we”?
What is a British citizen?
For a lawyer, this is an easy question to answer. British citizenship is a legal status defined by the British Nationality Act 1981 and a “British citizen” is a person on whom that status has been conferred, either automatically by law or by administrative action exercised under the Act.
The British Nationality Act 1981 also creates other forms of British national as well; British citizenship is only one form of British nationality.
As the Windrush scandal has highlighted, there are many long term lawful residents of the United Kingdom who might be expected to be British citizens — and who often themselves thought they were — who in fact were not. These long term residents would be considered to be “citizens” in the wider colloquial sense, often arrived in the UK as citizens at the time and continue to have the right to vote in general elections (see below). There is a disconnect between popular understanding of citizenship and the law.
The same issue arises with EU citizens resident in the UK. One of the reasons they and others feel that they have been badly let down by since the Brexit referendum was called is the fact they moved to the UK as of right as citizens of the European Union counted for nothing under UK electoral law. EU citizens, apart from Cypriot, Irish and Maltese nationals, did not have the right to vote in the referendum.
Nationality not citizenship
The underlying reason for this disjunct between the law and popular expectation is that the United Kingdom has nationality laws but not citizenship laws. In legal terms, British citizenship has become little more than a revocable immigration status, as highlighted by the rise in citizenship stripping on ever widening grounds. Aside from the long standing policy to limit the numbers, there is no coherent citizenship policy on what ought to be really fundamental questions for any polity: why is citizenship important, what are the rights of citizens, who should be entitled to be a citizen, who should be encouraged to be a citizen and who should have their citizenship taken away?
With one notable and soon to be lost exception, there is not a single right and not one responsibility that is unique to British citizens. We can go through all the rights and responsibilities we might associate with citizenship: the right to live in a country, to vote, to stand in elections, to work, to claim benefits, to be joined by family members, to hold a British passport, to serve on juries or even to be loyal to the state.
The one exception that is genuinely unique to British citizens compared to other residents of the United Kingdom and other holders of different forms of British nationality is that British citizens are also citizens of the European Union, a status that carries with it the right of free movement across all 28 member states. That right will be lost with Brexit.
There was a review of citizenship by Lord Goldsmith QC back in 2008 on which this blog post draws. As a result, in 2009, substantial and controversial reforms were made to the British Nationality Act 1981 with a view to implementing a considered (but controversial) citizenship policy. The changes were never implemented and in 2010 Theresa May as Home Secretary announced the new government would not implement them. The reforms were never removed from the statute book, though, and in theory could one day be resurrected.
Right of abode
The right to live in the United Kingdom free from immigration controls is called the “right of abode“. This is defined at section 2 of the Immigration Act 1971. It is the right to “live in, and to come and go into and from, the United Kingdom without let or hindrance”. The right of abode only exists at all because a series of legislative measures in the 1960s and 70s were introduced to restrict movement to the United Kingdom of British subjects, a status which extended (whether they liked it or not) to citizens of independent Commonwealth counties and Citizens of the United Kingdom and Colonies. Prior to that, the right of a British subject to live in Britain was so obvious and embedded in common law that it did not need stating in statute.
In the indirect fashion typical of British legislative drafting on immigration and nationality law, the right of abode also by negative inference includes the right to “live, work and settle” in the United Kingdom because those without the right of abode can only do these things with permission.
British citizens are the main group who possess the right of abode, but some Commonwealth citizens also possess it. Further, some British citizens can have this right to live in their own country taken away from them (see below).
For completeness, qualified EU citizens and their family members also currently possess an exemption from immigration control by virtue of section 7 of the Immigration Act 1988, but that will be removed after Brexit.
Right to vote and stand in elections
Who does and does not have the rights to vote and to stand in general elections for Parliament is determined by the Representation of the People Act 1983. Sections 1(1) and 4 confer these rights on Commonwealth citizens if they are resident, have leave to enter or remain in the UK or do not require such leave, as well as resident Irish citizens.
Other lawful settled residents such as holders of indefinite leave to remain and settled status do not have the right to vote in general elections, although EU citizens do have the right to vote in local elections.
The electorate for referendums is based on the electorate for general elections, meaning that EU citizens had no say in the decision whether to remain in or leave the EU in 2016, nor would they have a say in the now unlikely possibility of a new referendum. That is, unless they naturalise as British citizens, which some tens of thousands subsequently have.
The current situation — offering the right to vote to some residents who are not citizens but not others — makes no sense and is discriminatory. There is a rational case for limiting voting rights to citizens only or to expanding it to all permanent residents, but it is hard to see any justification for maintaining the status quo.
The obligation to serve on a jury to try one’s peers is not a “right” as such but it is commonly understood to be one of the obligations of citizenship. The rules on who is obliged to perform jury service when asked are similar to those applying to the right to vote but come from a different legal source: the Juries Act 1974. Section 1 provides that “every person” is qualified to serve as a juror, as long as he or she is registered to vote in local or general elections, aged between 18 and 75 and has been ordinarily resident in the United Kingdom for any period of five years since turning 13.
There is another, rather obscure, exception. Section 8 of the Alien Restriction (Amendment) Act 1919 remains in force and provides that:
No alien shall sit upon a jury in any judicial or other proceedings if challenged by any party to such proceedings.
Oddly, this only applies if raised by one of the parties. The term “alien” is defined at section 50 of the British Nationality Act 1981 for the purpose of that Act only as “a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland”. In common law, an alien is any individual who is not a British subject. In statutory terms, British subjects are virtually extinct today. I doubt the issue has arisen, but I imagine a court today would interpret that as being any of the different types of British national.
Social safety net
There is no easy reference point for determining which residents of the United Kingdom are entitled to access the social safety net and which are not. In any event, though, the right to claim benefits and access the NHS is certainly not confined to citizens only. Nor should it be.
Full guide to the requirements and process for naturalising as a British citizen, including where the Home Office will show flexibility and where not. Case studies included throughout.View Now
It seems almost unarguable to me that at the very least all taxpayers should be entitled to access some benefits. They are paying into the central pot, after all, and unless one sees non citizen taxpayers as some sort of servant class or cash cow to be exploited it is only fair that they should be able to make claims when they need to. There is, though, an argument that access to benefits should be stepped in some way so that full access to all benefits is not immediately made available to those who are not citizens.
As an aside, present government policy does in fact treat migrants as a servant class and cash cow, for example by double taxing them with sky high immigration fees and the Immigration Health Surcharge.
There is a similarly compelling case for extending at least some aspects of the social safety net to non citizens who are not taxpayers. For example, it is all very well to say that unauthorised migrants should not remain in the United Kingdom but the fact is that they do. There is no evidence to suggest that the concept of “self deportation” that motivates the hostile environment actually works. If there is no social safety net at all for such people and they are forced to exist without the protection of the law, they will live in destitution, they will be exploited and they and their children will remain in an illegal underclass.
Treason and loyalty
It might be expected that citizens would have imposed on them some sort of duty of loyalty. Arguably, a state is an extension of its citizens, its first duty is to protect its citizens and citizens who are disloyal should be punished or expelled. The degree of disloyalty needed for such action might be expected to be high given the severity of the sanction.
There are laws of treason in the United Kingdom, but they are so ancient and outdated that they are widely considered to be defunct and unenforceable today.
There is an argument that treason laws should be reformed so that those British citizens who show some defined high level of disloyalty in their actions should face the particular opprobrium of a treason trial. The idea has recurred several times in recent years, with the right wing think tank Policy Exchange publishing a paper on the subject in 2018.
The idea of enforcing treason laws is one that makes me uncomfortable, but I recognise that there is a rational case to be made. I also have in mind that this might be preferable to large scale citizenship stripping, which is what we are seeing instead at the moment (see below).
There are also strong counter arguments. As Jonathan Hall QC has argued, the level of publicity this would attract might prove attractive and the law might be counter productive. Charles Falconer QC has argued that the concept of treason is a rightly outdated one because total loyalty to the state is no longer required.
British citizens can be and regularly are stripped of their citizenship status. This can occur when citizenship is acquired by deception or on the grounds that depriving a person of their citizenship is “conducive to the public good”. That is a very low test for exiling a citizen; the wording is actually the same as for the test for deporting a foreign national. One might have thought that citizens were better protected from banishment than foreign nationals, but it is not so.
The power of citizenship deprivation can be used against any British citizen, as long as he or she will not become stateless as a result. This means that even those born as British citizens within the UK can be stripped of their status. Because of the protection against statelessness, though, the power can generally only be used against British citizens who have at least one foreign parent, as such British citizens will often have inherited his or her parent’s nationality depending on the nationality laws of the country in question.
So, there is almost nothing uniquely special about British citizenship, at least in legal terms. Even the power to have citizenship taken away is expressed in the same terms as the power for taking away the residence rights of foreign nationals.
This is not to say any of this is a bad thing; there is a very strong case for extending the rights and responsibilities of citizens to permanent and perhaps other residents. Doing so inevitably makes citizenship itself less “special”, though, and reinforces the notion that British citizenship is just a form of immigration status for some residents of the United Kingdom.