Five principles for a new British Citizenship Act

In this post Brexit era, it is past time to replace the British Nationality Act 1981

Photo by Caspar Rae on Unsplash

Many of us aspire to live in a more equal society which is as free as possible from impermissible forms of discrimination. Opinions differ on what ‘equal’ really means. Equality of opportunity? Equality of outcomes? Where lies the right balance between these different approaches? There’s plenty of room for rational disagreement on these difficult questions.

But pretty much everyone can agree that equality of legal status is a prerequisite for progress towards equality. If people are graded in some way, with some having more or different legal rights than others, then this is a fundamentally unequal society. If these legal gradations are linked to impermissible discrimination based on sex, race, disability and so on then this is even worse.

Perhaps some forms of discrimination are acceptable in some circumstances, though. Newcomers to a society should always be treated with respect and humanity. But it is surely permissible for them to be treated differently to existing residents when they first arrive. They might not be granted immediate access to welfare benefits, for example. If so, for how long? Can they ever achieve equality? Should they? If so, what might that journey or process look like? Is it a shared responsibility or one that is borne more by the newcomer or the society concerned? And how about their children?

The race riots over the summer show just how alive some of these questions are. Some take the view that asylum seekers, immigrants and Muslims can and should never achieve equality or integration. It is therefore vital to unpick what forms of status and discrimination already exist and think about how persistent they might be.

The role of citizenship

There are assumptions underpinning this article. I assume that citizenship is full “belonger” status in society. That all citizens should be equal. That newcomers should, over time, be able to achieve genuine equality with the members of the society they join, and therefore should be able to become citizens. I assume that the children of newcomers should be equal to the children of existing citizens.

It follows that it is acceptable to discriminate between citizens and non-citizens. Citizens should have some rights that non-citizens do not. This should include full security of status, the right to vote and societal rights like equal access to services and welfare benefits.

I’m playing a bit fast and loose with the term “equal” here, clearly. As a minimum, though, equality must mean equality of legal status and legal rights.

Multi-status Britain

As things stand, the reality is that we live in what some have called ‘multi-status Britain’. Impermissible forms of discrimination are baked into a hierarchy based on different forms of legal status.

With British citizenship, other forms of British nationality, indefinite leave to remain, permanent residence, pre-settled status, the five year route to settlement, the ten year route and more, there are a bewildering range of different forms of legal status. Each has their own rules on acquisition, different sets of rights attached to them and a different place in the social and economic hierarchy.

And, as I’ve discussed previously, some of these supposedly unitary forms of status conceal internal gradations. Some British citizens are more equal than others. This is even generational: the children of some newcomers have different and worse status than the children of existing citizens. I’ll come back to this point in a moment.

This is not abstract for those who live it. Some young people will, unlike friends they considered to be their peers who behave in an identical manner, face deportation if they break the law. Others will see members of their family or community deported and know this is not a risk faced by other families or communities. Those with more insecure forms of status will face sometimes direct and sometimes subtle economic hardship and penalties. And they face different levels of strain on their personal and family lives, sometimes with profound social and personal consequences.

In short, it is impossible for people to feel or be equal when they literally are not, according to our laws.

Changing the law is certainly not enough to achieve an equal society. But it would be a good start. It would remove one of the barriers to safe, secure and equal communities.

There are three related sets of laws I propose should be reformed.

The first are British nationality laws, and I address that here in this article.

The second is the suite of hostile environment laws which encourage citizen-on-citizen discriminatory checking of immigration status. I’ll maybe turn to that in a future article.

The third is the profusion of forms of status short of citizenship. Is it really a good idea to have some families on a five-year track to settlement and others on a ten-year track? Deportation laws exist to protect ‘the public’ but is ‘the public’ too narrowly conceived on the current model, so as to exclude the families and communities adversely affected by deportation? Do our different forms of status help or hinder the integration of those newcomers who will stay long term? Should there be a more consolidated and thought-through journey towards either departure or citizenship, albeit probably with some variations? I think you can guess my short answers to these questions from my framing but I’m not going to explore them in detail now.

Reform of British nationality law is overdue

Over the last century or so, the British state has fundamentally reviewed its nationality laws every few decades, in 1914, 1948 and 1981. Considerable consultation and prior thought was put into the reforms of 1914 and 1981. The reforms of 1948 were rushed. Piecemeal reforms since 2002 have patched some holes in British nationality law but other changes have created new, socially damaging gaps.

During the era of the empire then commonwealth, British subject status was a very, very large and amorphous umbrella group which included essentially all residents of the colonies and the dominions. It was only in 1962 that attempts were made to start carving out an identifiably ‘British’ category of person.

During membership of the European Economic Community and its successors, beginning in 1973, free movement rules meant that the United Kingdom government had limited control over the entry and residence rights of European citizens.

Following Brexit, the United Kingdom is, for almost the first time in its history, free to define its own membership. In this post-Brexit era we can, if we now choose, say who “we” are.

Is British nationality law fit for purpose?

In my view, nationality law should meet these pretty basic five criteria:

1. Nationality law should be clear

2. Citizenship should be non discriminatory both in acquisition and content

3. Citizens should have durable rights

4. Children with a close connection to the country should automatically acquire citizenship

5. Long term residents should be encouraged and enabled to take up citizenship.

The British Nationality Act was already a mess the moment it was passed by Parliament in 1981. Successive changes have made it far, far worse. Amendments have been made to the amendments to the amendments. The document that tells us who “us” is should be as simple as possible and should at least be comprehensible. The current law spectacularly fails that test.

People who are essentially alike — they are long-term resident and meaningfully integrated into the community — currently turn out to have different rights and can be treated very differently by their co-citizens and by the state. Pass rates for the current citizenship test vary massively by nationality. The very high fees that must be paid to acquire citizenship mean that wider socio-economic inequalities are likely to influence who applies, further embedding those inequalities. Hostile environment laws and deputized immigration controls in everyday life mean that those perceived as foreign are disproportionately subject to existential challenge by officials and their co-citizens about their right of residence and participation in society.

Citizenship is too easy to take away. The test is simply whether it is, in the opinion of the Home Secretary, conducive to the public good to do so. That’s it. The practical exercise of the power to take it away illustrates the dangers of parliament delegating excessive discretion here. Where there is discretion there is always a risk of discrimination. And almost all those to have been deprived of their citizenship have been Muslim and from ethnic minorities.

Too many children are excluded from citizenship by complex laws on citizenship acquisition and sky-high fees. They depend on their parents having the right sort of status and making the right sort of very expensive, complex application on their behalf. Some who are born British and live their whole lives in this country face the medieval punishment of banishment rather than a more appropriate court trial for their alleged crimes.

Finally, there is little incentive to take up British citizenship. Some long term residents are citizens with voting rights and (fairly) secure status and some are not. Sometimes this is by choice. A long term resident may have chosen to keep their original nationality for understandable personal reasons, particularly if their country of origin does not permit dual nationality. But too often it is through accident. And sometimes through discrimination. Perhaps it should be no surprise. Why should they pay the sky-high naturalisation fee when there is little material return for it? There are no rights that are currently exclusively attached to British citizenship. In legal terms, British citizen status is an empty vessel, barely more than a form of revocable immigration status. The right to vote is not linked to citizenship, nor are obligations like serving on a jury.

Our nationality laws are too complex, too exclusionary of people who are British in every way except under the law and, ultimately, too lacking in content and meaning.

A new British Citizenship Act would offer a chance to change all that.

Citizenship not nationality

Existing law is set out in the British Nationality Act 1981. The time has come to replace this with a new British Citizenship Act.

The word ‘citizenship’ is a resonant one imbued with more meaning than mere ‘nationality’. Citizenship is about rights, responsibilities, belonging and participation. Nationality is merely a formal status.

A reforming Labour government could take the opportunity to formally attach rights to citizenship for the first time. Gordon Brown’s constitutional reform paper proposed exactly this type of reform in 2023:

There should be new, constitutionally protected social rights – like the right to health care for all based on need, not ability to pay – that reflect the current shared understanding of the minimum standards and public services that a British citizen should be guaranteed.

There is no need to stop there. The right to vote, the right of entry and residence (called the right of abode), the right to a fair trial, the right to diplomatic assistance and the right to equal treatment free from discrimination could all be explicitly protected through citizenship. The old statutory right for citizens to be joined by family members — abolished only in 1988 — could be restored. At the moment, British citizens are treated the same as settled migrants when it comes to their right to family life. There is no incentive there to take up citizenship.

Reform could gently encourage settled migrants to fully integrate as equal citizens.

As Gordon Brown’s report recognises, there are many ways the such rights might be expressed in law, some of which are primarily symbolic. A difficult and potentially controversial balance needs to be struck to ensure that any such rights are meaningful, realistic, durable and progressive.

One possibility might be to embed the rights set out in the European Convention on Human Rights into the new British Citizenship Act. The protections currently set out in the Human Rights Act could be replaced and enhanced. Some rights expressed in the new legislation could be applicable to all people within the jurisdiction and some specifically to British citizens. Done right, this would protect the rights of all and enhance the rights of British citizens.

This might help to encourage the take-up of British citizenship. An alternative would be to downgrade the rights of long term residents. We’ve actually seen that happen quietly over the last 20 years with the strengthened power of deportation. Personally, I think that’s the wrong way forward. I’d rather see rights being strengthened and clearly stated for British citizens. This should be accompanied by removal of the existing barriers to taking up citizenship, such as the sky-high application fees.

Obligations of citizenship 

Perhaps more controversially, the obligations of citizenship could be spelled out, such as the duty to serve on a jury, the duty to pay taxes and the obligation of loyalty to the state. 

The rules on citizenship deprivation could and should be considerably tightened. The ‘conducive to the public good’ test which has been in place since 2006 is completely inappropriate for something so weighty and serious as stripping a person of the citizenship they have held since birth. Stripping a person of their citizenship should be reserved as the ultimate sanction for crimes against the state itself. There is increasing evidence that the power is being used in cases of simple criminal conduct like sex offences and human trafficking. These are obviously very serious matters. But they are not civic offences against the state.

And it has not gone unnoticed that either all or the vast majority of those deprived of their citizenship are ethnic minorities. A situation has been allowed to develop whereby a British citizen can be stripped of their status because of who their parent is. If the parent — or even grandparent, potentially — came from abroad and naturalised as British, there is a chance their children (or grandchildren) can have their citizenship taken from them, despite being born in the UK to British citizen parents. Meanwhile, a child descended from a long line of British citizens with no connection to another country is safe. Face it, this is just what unreconstructed racists would want. It is incredible and disgraceful. The two-tier nature of British citizenship really needs to be reformed. Security of citizenship status should be enjoyed equally by all citizens. Even more so their descendants.

Reform of citizenship law could also include reform of treason law. A treason charge in a court of law might well be a more appropriate state response to disloyalty by citizens than denaturalisation. The current law is defunct. It dates to 1351 and the last prosecution under the principal treason offence was in 1946. The Law Commission is currently reviewing treason laws, I think, and if so the eventual report should be carefully considered.

Citizenship acquisition

Too many children born in the UK are denied full, equal status as citizens. The exclusionary nature of current laws serves to create a class of permanent residents with lesser status who are excluded from full civic participation. This can even be hereditary; if a person who lacks permanent status themselves has children, those children will not be born British and may never become British.

Birthright citizenship could and should be restored, so that those born in the United Kingdom are automatically born British. This was an ancient, historic right but it was abolished in 1981. The consequences have been divisive to families and communities and sometimes disastrous for individuals, with some facing deportation later in life despite being born in the United Kingdom and living their whole lives here. The reform would not only be hugely beneficial to children born in the country but would also enable significant simplification of the underlying legislation.

Failing that, reforms should be introduced to ensure that children born in the United Kingdom and who remain here can easily register as British. At the very least the high fees and the good character test should not apply in such cases.

Enabling a route to optional retrospective acquisition of citizenship would also be a significant benefit to the children of EU citizens born before Brexit. As things stand, many will miss out on British citizenship because of the cost and the complexity of the law and the failure of legislators to adapt British nationality law to the automatic and often undocumented nature of permanent residence under EU law.

The criteria for naturalisation and registration could and should be re-thought. For example, the three year route to naturalisation for spouses and partners of British citizens should be revived. The good character test should apply in naturalisation cases only, not registration, and could be replaced with a more objective measure. 

The fee charged to register a child born in the UK is currently over £1,000, putting this beyond the reach of many families. And those who can afford it are financially penalised and disadvantaged for registering their children as British, which is absurd. A right to citizenship should be established. The sale and purchase of British citizenship should be prohibited. The charging of profit-making fees for citizenship could thus be ended.

So, I propose:

• Pass a new British Citizenship Act fit for the post-Brexit era

• Promote integration and pride by incorporating key citizenship rights into citizenship laws for the first time

• Solidify our social bonds by setting out the obligations of citizenship in law and reforming citizenship deprivation and treason laws

• Re-establish a single, inclusive citizenship status.