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Windrush: learning about history, learning from history
Credit: Imperial War Museum via Wikimedia Commons

Windrush: learning about history, learning from history

Recommendation 6 – The Home Office should: a) devise, implement and review a comprehensive learning and development programme which makes sure all its existing and new staff learn about the history of the UK and its relationship with the rest of the world, including Britain’s colonial history, the history of inward and outward migration and the history of black Britons. This programme should be developed in partnership with academic experts in historical migration and should include the findings of this review, and its ethnographic research, to understand the impact of the department’s decisions; b) publish an annual return confirming how many staff, managers and senior civil servants have completed the programme.

— Windrush Lessons Learned Review, March 2020

Wendy Williams’s recommendation is about educating the Home Office. If the Home Office is to learn it is a safe bet that those affected, those representing those affected before the Home Office, courts and tribunals, and all those advocating must be involved in teaching them. But what do we know about “Britain’s colonial history” and its relationship to our immigration and nationality laws today?

During the period of empire, many people throughout the world were, as a matter of UK law, “British subjects” regarded as owing allegiance to the Crown. This article looks at how the number of British subjects grew as the empire grew, and at who retained their status as “Citizens of the UK and Colonies” when independent States emerged from the empire, whether within or outside the Commonwealth.

Building an empire: annexation

Change of nationality because a country became part of the British empire is described as in nationality law as “acquisition by annexation”. “Annexation” is an antiseptic term that covers conquest, occupation or cession and it is the opposite of independence. The nationality status associated with empire was that of “British subject”. The governing principle was allegiance: those within the Crown’s dominions and allegiance were subjects.

Each annexation is different, but in broad terms, under the common law, subjects by annexation were in theory differentiated from subjects by birth, because they were unable to transmit their subject status to their children. In practice, however, this was of little moment, because those born within the Crown’s dominions and allegiance were born British subjects, so the children of subjects by annexations so born were “natural born British subjects” in any event. The distinction was only relevant when the child was born in a foreign country. And in practice the law on this distinction appears largely to have been disregarded.

In any event, the distinction between “natural born” British subjects and British subjects by annexation in terms of transmission to children was only relevant to men. Women, natural born or not, could not transmit their British nationality to children born outside the Crown’s dominions and allegiance, with the exception of the descendants of Sophia of Hanover (to provide for successors to Queen Anne).

The British Nationality and Status of Aliens Act 1914

The British Nationality and Status of Aliens Act 1914, in force from 1 January 1915, continued to provide that birth within the Crown’s dominions and allegiance conferred British subject status. It also attempted to extend this to British protectorates, protected States or places where the Crown exercised extra-territorial jurisdiction, but the drafting was muddled. This was sorted out with retrospective effect by the British Nationality and Status of Aliens Act 1943, so it need not trouble us now. And indeed the 1943 Act was retrospective to all dates, including pre 1915. 

Under the British Nationality and Status of Aliens Act, as amended in 1918, with retrospective effect back to 1 January 1915, how a father had acquired his British subject status, whether by annexation or birth, was no longer relevant. The first generation born overseas were British subjects whether the father was British by birth or by annexation. This did not apply to protectorates, protected States, or mandated trust territories which were not treated as “annexed” territories. There was also some provision for transmission to the second generation born overseas and beyond.

During the period from 1 January 1915, territories continued to be “annexed” to the empire.

The British Nationality Act 1948

The “Dominions” — originally Australia, Canada, Newfoundland, New Zealand and South Africa, and later the Irish Free State — acquired a measure of independence within the empire. But they were not given control of their nationality laws. Their citizens were British subjects and their own citizenships “local citizenships”: regarded by Britain as relevant only within each dominion and not on the international plane. 

The Dominions may have controlled only their “local citizenships” but this control allowed them to pass racially discriminatory immigration legislation from the late nineteenth to early twentieth century. While British subjects had long been forced to move around the empire, as slaves and as indentured labourers, those who moved under their own steam could move freely within the empire. The Dominions, especially South Africa, challenged this with their “Whites only” policies.

The Imperial conference of 1921 passed a resolution on equality of citizenship for British subjects with a single dissent, that of General Smuts for South Africa. But as Mrinalini Sinha describes, Churchill, then Colonial Secretary, came close to supporting Smuts, and in 1922 repudiated the resolution. In 1923 General Smuts submitted a memorandum to that year’s Imperial conference describing as a “misconception” “the assumption that all subjects of the King are equal”. He pitted the rights of nations against the rights of British subjects. 

The Dominions wanted more than “local citizenships”. The Irish Free State, subsequently Ireland, chafed against the notion that its citizenship was relevant only within its borders and indeed ignored it with its Nationality and Citizenship Act 1935. The UK, in turn, ignored this purported repeal of the British Nationality and Status of Aliens Act 1914. But when Canada passed its Canadian Citizenship Act 1946, the issue was no longer to be ignored and the British Nationality Act 1948 was the result.

With the exception of Ireland, which left the Commonwealth, the citizens of the Dominions named above, together with those of Ceylon, India, Pakistan and Southern Rhodesia, were regarded as “Commonwealth citizens”.  The term “Commonwealth citizens” was made synonymous with “British subjects”. Each of those countries was now free to make their own rules as to who were their citizens, who they admitted and who they excluded. Henceforth Australians were Australians, Canadians were Canadians etc.

The status uniting the citizens of countries that remained subject to British rule was “Citizen of the UK and Colonies”. This was, for those who held it, the equal status throughout the remaining empire that had been envisaged in 1921. Included in that remaining empire and the concept of Citizenship of the UK and Colonies were the likes of Jamaica, Barbados, Trinidad & Tobago, Saint Lucia, Grenada and Dominica.

As Akala writes:

No one explained that our grandparents were not immigrants, that they were literally British citizens – many of them Second World War veterans – with British passports to match!

Had Akala written “they were literally citizens of the UK and Colonies” it is likely that many of his readers would have missed his point. To many 21st century readers, that the citizenship was called “Citizenship of the UK and Colonies” masks what happened, because of the pressure that has subsequently been placed on the “and”. But “Citizen of the UK and Colonies” were the words on the passport of every person in the UK, where today those passports would read “British citizen”, as well as in different parts of the British empire. This was the case from 1 January 1949, when the British Nationality Act 1948 came into force, until 1 January 1983, when the British Nationality Act 1981 came into force — and indeed beyond, for a passport issued in 1982 was valid until 1992.

One result of this, as Akala records in the quotation above, is that there were no legal bars to free movement throughout the UK and colonies, a cohort that no longer included the Dominions.

The Commonwealth Immigration Acts

In 1962 and then in 1968 the Commonwealth Immigration Acts ripped from Citizens of the UK and Colonies, what, in any other country, would be seen as intrinsic to a nationality: the right to enter and remain in your country, styled for these purposes the “right of abode”. Akala again:

hundreds of millions of British citizens were stripped of their citizenship and the freedom of movement that a British passport gave them, simply because they were not white.

The Commonwealth Immigrants Acts bore down on the “and” in “UK and Colonies”. It effectively divided the subjects/citizens of the empire-going- on-Commonwealth into those “of the UK” and those “of the Colonies” — those who could enter and remain in the UK freely and those subject to UK immigration control.

Independence

Both prior and subsequent to the Commonwealth Immigrants Acts, people were losing their citizenship of the UK and Colonies and becoming subject to immigration control within other parts of the empire as a side effect of a desired outcome: independence. Independence creates new States and more States means more borders.

Like each annexation, each independence settlement is different. But, in broad terms, the picture was that a person lost their Citizenship of the UK and Colonies and gained citizenship of the newly independent country.

Not every Citizen of the UK and Colonies qualified for citizenship of the newly independent country. For example, many African countries enacted a “double ius soli” principle” whereby to be a citizen on independence a person had to be born in the country and their father also had to have been born in the country.  This excluded, inter alia, many people who had moved, or been moved, from one part of empire to the other, such as the many East African Asians.

It was not uncommon to find, in UK statutes addressing the independence of a former annexed State, provision for those with a father or grandfather born in a place that remained within the empire on the date of independence to retain their Citizenship of the UK and Colonies.

Take Jamaica for example. Jamaica’s independence constitution only provided for those born or descended from a person born in the former colony of Jamaica (defined to exclude the Cayman Islands and the Turks and Caicos islands) as citizens. Those who had naturalised or registered in Jamaica were excluded; therefore they retained their citizenship of the UK and Colonies. It was also provided by the UK in the Jamaica Independence Act 1962 that those who, or whose father or paternal grandfather was born, naturalised or registered in a place which, on independence day, remained with the UK and Colonies or became a British subject by annexation of such a place, retained Citizenship of the UK and Colonies. Similar provision was made for those born within a place which remained a protectorate (excluding the protectorates of Northern Rhodesia and Nyasaland).  

As was not uncommon in these independence settlements, no woman ceased to be a Citizen of the UK and Colonies unless her husband did so.  This is a measure that helps to protect against statelessness as these women could have lost any other nationality on marriage. In the Caribbean, where people from different islands married, it can mean that whether the woman remained a Citizen of the UK and Colonies will depend on which country gained independence first: a Jamaican woman married to a man from Dominica may be in a different position from a Dominican woman married to a Jamaican man.

A woman whose husband lost his status as a Citizen of the UK and Colonies on independence lost her ability to register as a Citizen of the UK and Colonies as his wife.

Those who were made subject to immigration control by the Commonwealth Immigrants Acts of 1962 and 1968 were those whose countries had not become independent, but remained within the UK and Colonies on those dates, or who had hung on to their Citizenship of the UK and Colonies on the independence of the country in which they lived.

The British Overseas Territories

The British Overseas Territories were previously called British Dependent Territories and before that called colonies. The change in name reflected their changing relationship with the UK. British Overseas Territories citizenship is governed by the British Nationality Act 1981. Its holders are now entitled to British citizenship. But in a nice touch, this does not work in reverse and British citizens are not entitled to the status of the territories unless they meet the onerous requirements that all non-nationals have to meet, and are subject to the immigration controls of the territories. I hope to explore this further in a subsequent article.

Hong Kong was a British colony, then a British Dependent Territory, but never an Overseas Territory as it ceased to be a British Dependent Territory before the passage of the British Overseas Territories Act 2002. The arrangements as to who retained which forms of British nationality on 1 July 1997 were tailor-made and those arrangements are being tested by the new security law but, at the time of writing, it appears that the UK government will seek an immigration rather than a citizenship solution.

Effect on today’s world

The Windrush generation includes people who travelled to the UK as Citizens of the UK and Colonies and whose countries gained independence while they were in the UK. It also includes people whose status was changed by the Commonwealth Immigrants Acts.

While transitional provisions aimed to protect them, for many caught up in the hostile environment the problem was proving that they benefited from the transitional provisions. It is a problem the UK is arguably in the process of recreating for EU nationals even before it has implemented the recommendation of the National Audit Office’s report and of Wendy Williams’s review that it identify those affected to date and put right any detriment detected, looking beyond the Caribbean to the wider Commonwealth. 

Accounts of empire see the effects of ideas of racial superiority intertwine with economic exploitation to produce slavery and indenture despite a common allegiance of exploiter, enslaved and indentured. As independent States proliferate, so do borders and so do immigration controls, but what is consistent is the persistence of racism and economic exploitation. If you have read this far you are perhaps persuaded that we need to understand the history of those structures to dismantle them, and need to get behind recommendation six of the Windrush review.

Alison Harvey

Alison Harvey is a barrister at No 5 chambers. She accepts both instructions from solicitors and direct access work. She regularly trains and lectures. She is Chair of Trustees at Kalayaan. She is a contributor to Fransman's British Nationality Law and to Macdonald's Immigration Law and Practice. A former General Secretary and then Legal Director of the Immigration Law Practitioners' Association, she has specialised in immigration, asylum, nationality, free movement and human rights for over 20 years, representing individuals and working on policy and legislation in both the the UK and overseas.

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