Deficient Policy and Practice for the Protection

Ostensibly an act about nationality, not immigration, any nationality reform in Britain had to be driven by the logic of immigration law and policy, and thus perpetuate the spell that it had set out to exorcize. This is most evident in the act's key provision, the breaking up of the composite 'citizenship of the United Kingdom and Colonies' into three separate citizenships: British Citizenship, British Dependent Territory Citizenship, and British Overseas Citizenship. British citizenship incorporated and replaced the old notion of patriality, conferring the right of abode.

Importantly, the category of Commonwealth patrials, decried by many as racist, was phased out. While softened by generous transition rules (former patrials retained the right of abode over their lifetime), this meant in principle the end of ethnic priority immigration for the descendants of British settlers. The two other citizenships, which comprise the non-patrials of old, are 'citizenship' only in name, because they are not related to a state-like entity and do not confer a right of abode anywhere.

But the government acknowledged certain 'moral and constitutional responsibilities' to the members of its former and existing colonies—which would soon become relevant in the case of Hong Kong. No clean slate could be had through legislative fiat, and the shadow of empire continues to hover over British citizenship law. Understandably, because it would lead the reform ad absurdum, the government refused the category of British national as an umbrella for the three citizenships, arguing also that this 'would . . . raise expectations which . . . could not be realized' (Jones, Trevor 1996).

But the old umbrella notion of Commonwealth citizen was strangely retained, and some legal commentators have pointed out that under international law the British dependent territory and overseas citizens are still nationals with legitimate entry and protection claims. The influence of immigration concerns on the redefinition of citizenship is also visible in the partial abolishment of jus soli, the single most contested aspect of the 1981 British Nationality Act.

Originally a feudal principle to make the product of the soil the property of the lord, jus soli had conferred automatic citizenship on all persons born in the UK, and thus had helped to integrate new immigrants. But now it stood in the way of both the ethnic redefinition of Britishness via 'belonging' and effective immigration control. Regarding the former, the government argued that in an age of intensified movement and communication the mere accident of birth on territory should not confer the precious good of citizenship: 'It is increasingly the case that children are born while their parents are here temporarily.

The present arrangements lead to significant numbers of people acquiring the right of abode here although they have no real ties with this country’. But the true animus of restricting jus soli was effective immigration control. Once endowed with citizen children, non-citizen parents who had entered illegally or overstayed might be more difficult to deport.

As the House of Commons Standing Committee put it maliciously, 'one of the various international courts whose jurisdiction we have accepted . . . might find . . . that it was wrong to remove the parents of a patrial child (FitzGerald, Marian 1986). The possibility that domestic courts might protect family rights was obviously ruled out from the start. Both ethnic-membership and immigration-control considerations led to a restricted jus soli law, according to which only children born to parents with British citizenship or settled in the UK could become British citizens at birth. Enoch Powell celebrated the 1981 British Nationality Act as finally declaring Britain a nation. This is misguided.

The exigencies of immigration continue to 'wag the nationality tail'. The British citizenship created in 1981 confers only one right, the right of abode, and thus is little more than a transposition of immigration law. Even political rights, like the right to vote, are still attached to the common law concept of British subject. As a legal observer notes, the nationality reform aroused little public interest, and it did not spark a debate over the meaning of Britishness in a postimperial age (Blake, 1982 : 179).

Such evasiveness may be faithful to the general lack of debate on principle and purpose in British public life. But the question of who belongs still lingers, and the dilemma of British immigration policy remains unresolved.

Reference: Amnesty International (UK) (1991), 'United Kingdom: Deficient Policy and Practice for the Protection of Asylum Seekers'. London: mimeograph. Asante, Molefi Kete (1992), 'Multiculturalism: An Exchange', in Paul Berman (ed. ), Debating P. C.