How the British Nationality Act 1981 laid the foundations for a stateless population within Britain's borders

Michaela:   Welcome to “Who do we think we are?”, a podcast exploring some of the forgotten stories of British citizenship.

I am your host, Michaela Benson, a sociologist specialising in citizenship, migration and belonging, and professor in public sociology at Lancaster University.

Join me over the course of the series as I debunk the taken-for-granted understandings of citizenship and explore how thinking differently about citizenship helps us to make sense of some of the most pressing issues of our times.

Imogen: You can effectively be born here and live here all your life, but not find out you are not a citizen until you perhaps apply for a passport or some other legal status.

So what we are seeing is a huge explosion of different categories of people who are discovering that they are not citizens of Britain even though they may have lived here for their whole life. 

Michaela: That was today’s guest, Imogen Tyler, Professor of Sociology at Lancaster University, talking about a probably lesser-known dimension of British nationality law: the fact that birth in the United Kingdom is not an automatic entitlement to British citizenship.

This right—commonly referred to as birthright citizenship or jus soli—was amended through the British Nationality Act of 1981.

So, when this Act came into effect, only those for whom one parent was a British citizen or settled in the UK would be automatically eligible for citizenship.

We’ll hear more from Imogen later.

I wonder if you just did a double-take.

Yes, you heard me right—British citizenship is not automatically acquired by all those born in the UK and hasn’t been since 1983, when the British Nationality Act was first enacted.

This shift was intimately tied to the other changes introduced through this landmark piece of legislation.

Just a reminder, the British Nationality Act of 1981 mapped British citizenship exclusively onto the borders of the United Kingdom for the first time.

If my grandmother had not been married to my grandfather, this piece of legislation would have recast her as a British Dependent Territories Citizen, attesting to her residence in Hong Kong, but offering significantly fewer rights that my grandfather was entitled to, just by virtue of his birth in the United Kingdom.

Just pause to think about that.

In previous episodes, we’ve explored how the immigration reforms in the 1960s and ‘70s started to limit the rights of citizens from Britain’s colonies, and in particular, their rights to settlement in the UK.

The British Nationality Act of 1981 closed the loopholes that had created citizens who could also be considered as migrants.

It meant that all those with citizenship of the colonies were reclassified with new statuses that offered significantly fewer rights and protections than those offered to British citizens.

And with it, it cast as non-citizens those who might be born in the UK to parents born elsewhere and who were not deemed as “settled”.

In this respect, we start to see the emergence of an undocumented and stateless population in the making.

In this episode of “Who Do We Think We Are?”, we’ll be looking more closely at the British Nationality Act of 1981.

In particular, we’ll examine how this introduced a distinctly British citizenship, which was exclusive to those whose parents had been born in the United Kingdom or who were considered settled in the UK.

And we’ll be hearing more from Imogen about how the provisions laid out in this new legislation excluded racialised others by design, laying the foundations for the exercise of state violence through immigration control, with which we are so familiar today.

But before that, let’s head back into the archive with George to hear more about birthright citizenship and the concerns raised by the proposed British Nationality Bill in a Letter to the Editor published in The Times on the 15th of January 1981.

George: What really stood out for me in the letter was the following paragraph:

“There are a number of points which will need to be examined when the Bill is in committee.

“One change, which should definitely be made, is in the proposal that children born in the United Kingdom should not automatically become British citizens: one parent would have to be either a British citizen or settled in the United Kingdom.

“There are a number of objections to such a change.

“It would risk creating a new class of stateless persons; it would create confusion and possible distress because a person might not find out for many years that he was not a citizen with a right to a passport; and it is unnecessary because the number of people who would be deprived of citizenship by this provision cannot be large.”

Coming from a country where citizenship has always been strictly linked to ancestry, I was not so familiar with birthright citizenship.

However, what really triggered my curiosity was how Britain went from a birthright system to an in-between situation, which introduced the idea that ancestry matters for the purposes of keeping people out—where birthright can only be realised if paired with ancestry.

Michaela: The author of the letter to the editor was remarkably prescient in his concerns.

And I think that George raises a really important point there about how the new provisions, which were in time introduced, were something of a halfway house.

In today’s explainer, I’m going to be exploring the British Nationality Act of 1981 in a little bit more detail.

Now, it’s important that we talk about this legislation because, albeit with a few amendments to account for events that have happened in the meantime, is the legislation that we still work with in Britain today.

It set the stage for the creation of British citizenship and was very much framed by that transition of Britain from an empire to a nation-state.

The Act itself repealed its predecessor, the British Nationality Act of 1948, and constructed a political community that mapped onto the territorial borders of the United Kingdom.

In this way, it was drawn up to update nationality law with the requirements of immigration law that had already been brought in over the course of the 1960s and ‘70s.

At the core of this reworking of nationality law was the ambition of the government to update citizenship laws through the development of new legal statuses distinguishing between citizens of the UK and those of its remaining colonies and territories.

The Act then goes on to consider the implications of such changes for other areas of nationality law.

Now, the new provisions laid out in the Act attested to the nationality of those in Britain’s remaining colonies and territories, and indeed, to their right to abode in those places.

But importantly, that Act also made clear that they had no right of abode in the UK.

I think it’s particularly telling that the cartoon accompanying the announcement of this new act, published in The Times—a newspaper ordinarily aligned with the Conservative agenda—depicts a man sitting at his piano belting out ‘Britannia rule the waves; 1st class citizens never, never shall be slaves’; pointing out that, actually, this created a stratification of citizens.

The Labour Party and Civil Rights groups had already called out the bill on the grounds that it was racist, over-complicated and difficult for people to understand.

But, I want to turn now to the consequences that this had for other areas of Nationality legislation.

This new legislation was also notable in removing the automatic right to birthright citizenship.

What this meant was that only those who were born to a parent who was a British citizen or settled in the UK had this entitlement through birth.

For those whose status was more transitory or temporary—including students for example—any children born to them in the UK would not be eligible for citizenship or, importantly, the right to abode in Britain.

This change was a kind of halfway house between citizenship by descent and citizenship by birth, and it this that would have profound impacts for those who unwittingly fell between the gaps of its provisions—those born in the UK to parents who were neither citizens nor settled populations.

One of the more celebrated aspects of the Bill was its removal of sexual discrimination.

It seems slightly unbelievable that until this act, citizenship could not be passed from mother to child, only from father to child.

BNA 1981 introduced legislation which permitted citizenship acquisition through either parent.

And in this way, it was upheld by some of its proponents as a great liberalizer.

Now, why does this matter?

Let’s hear a little more from Imogen about how the removal of birthright citizenship disturbs commonplace understandings of British citizenship as progressive and liberal.

Imogen: When we think about citizenship, our normative way of thinking about it would be as something that is quite progressive, something that gives in a way or something within a liberal framework that gives rights to people, and that people have these fundamental rights that are protected in law and protected in a constitution.

I suppose when I was thinking about the relationship to Britain is because we don’t have that written constitution, that founding constitution, then when citizenship starts to appear in law, or in legal and parliamentary statutes, and in debates about those statutes, it really appears not in a progressive context; it starts to appear in relationship to borders and migration. 

Michaela: That’s really helpful—thank you very much.

And the other point I wanted to hear you elaborate on a little bit more is this idea of design, how are you using the word “design” in that kind of argument, which is an argument about where we are at the moment in respect to nationality law, which is different to what you just described; is this idea of it having been deliberately designed to fail particular populations?

Imogen: So, as Britain becomes, in a way, a nation-state, citizenship starts to emerge and that citizenship starts to be designed in relationship to that post-imperial context as a way to exclude rights from certain populations within the wider empire.

So, I am thinking about design here as how citizenship isn’t being designed as something that is bestowing people with rights and responsibilities in a progressive way—it is very much being designed to limit or de-limit who can access rights.

Michaela:   That is the kind of darker side of British citizenship that people don’t often know about or really appreciate because of those kind of limited histories.

Imogen: If you didn’t know anything, which probably I didn’t once upon a time—I didn’t know very much at all about this—then I think you come across the term citizenship and you assume that it has a much much longer history in the context of Britain.

Michaela: I suppose, kind of fast-forwarding, I wonder why you think this is important?

Imogen: Citizenship in the sense that I am discussing it in this article is an extremely live issue.

We are seeing a retraction and a narrowing, and a more and more exclusive design of citizenship, and of course race and racism plays a central role in that design and those retrospective ways, and that is being applied to what we might call national minorities or to former imperial subjects.

Michaela: I think that is a really useful summary of why it is so significant at this point in time.

And so, I wondered if you wanted to talk about the two examples in the article that you use; how you use those to kind of present this argument about being designed to fail?

Imogen: So the story that really I came across through some empirical work that I was doing with some colleagues around asylum seekers was really kind of illustrated this for me, and it was a story of a woman that I called Sonia who told me her story, and she was a West African woman who came to Britain as a teenager and stayed here for a while as a teenager, and then became pregnant and decided to return to a third country where she had family and friends who could support her.

As she is trying to leave Britain—so she is in Britain illegally because she hasn’t got a passport or leave to remain here—so she tries to leave Britain with a false passport and she is on a coach going through Dover probably, leaving Britain, and she gets apprehended by the Border Police at Dover (the British Police) because she is trying to leave on a false passport.

So she’s about 18 years old at this point.

She is apprehended in immigration detention, and even though she is heavily pregnant and a vulnerable young person, she is given a 6-month jail sentence to an adult prison.

So she is put in a British women’s prison and the court also recommends that she is deported immediately after she serves her sentence.

So, Sonia gives birth in a prison—in a British prison—and then she is taken after six months to an immigration detention centre.

And she’s kept there and, basically, her mental health and her physical health and her child’s physical health seriously deteriorates.

She gets involved in hunger strikes at Yarlswood with other mothers who are detained there who are protesting at the impact of detention specifically on their babies and children.

And she finally gets bail, out of detention, with the help of some organisations outside.

So now, this baby is about 1 [year old] and when I meet her—this is a few years later—she is living in a city in the North of England with this baby who is now a toddler, and a new baby called Sam.

So there’s something about her story that I just find so striking because whatever way we start to think about Sonia’s story from, it is a story about how the design of British citizenship, particularly from 1981 onwards, specifically is there to exclude specific post-colonial and migrant populations from protections in quite unbelievably Draconian ways, and almost at any cost.

So if we turn from Sonia to Mary—her baby who was born in Holloway—Mary is born in Britain, she is born in London, but because the 1981 Act has abolished the rights of birth citizenship she is born stateless.

So she doesn’t have the citizenship of anywhere.

If she had been born here a couple of decades earlier she would have automatically been granted citizenship.

Doing this work with Sonia and meeting her and her children, hearing her story, but also with other asylum seekers and organisations that I met doing that empirical work, just really illustrated for me what the material and human impacts of the narrowing or design of British citizenship in the second half of the 20th century was.

Michaela: I think that is really helpful in terms of illustrating, that kind of closing circle that the British Nationality Act of 1981 actually was.

I think that that kind of removal of birthright citizenship is something that strangely, despite the fact it happened 40 years ago, people appear not to be aware of.

Imogen: Yeah, and I suppose I want to tell that story to bring that home, particularly about this baby, who I call Mary, who is born here, that taxpayers are paying £2,000 a week to keep her and her teenage mother in a private profit immigration detention centre.

It is just astounding, the profit-making side, I guess, of citizenship.

I think we cannot understand how citizenship is being designed to fail people but also how it is being designed to create markets.

So it is very important to understand citizenship design as part of the global immigration industry, in terms of, you know, increasingly a kind of “pay for citizenship” model.

Who can pay and who can’t?

Who earns enough and who doesn’t?

We have really fully marketized citizenship now. 

Michaela:   It is really pernicious, isn’t it?

But it does point to the wider shifts in the global political economy as well and how it functions, how this particular issue about British citizenship not being quite what it seems sits within that broader framework of bordering and creating value on very inhumane terms.

I don’t know if that is the right way of putting it, but the kind of financialisation, I suppose, of the border in that respect, that is the shift that you are talking about there.

Imogen: Yeah, and I think when we talk about citizenship we all assume we are talking about the same thing, and we still have attached to it quite a liberal and progressive understanding.

We are not talking about that kind of social citizenship that is about equality and political solidarity—this is quite a different understanding of citizenship that emerges if we actually start to look at citizenship and its design legally, and the practices that are associated with that regressive design.

Michaela:   For me, Imogen’s reflections powerfully demonstrate that changes in nationality law were not benign.

They had very real and devastating consequences for people at the sharp end of Britain’s immigration control, in ways that continue to shape our present.

One of the takeaway points from this episode, and others in the series, is that we can’t really talk about citizenship in Britain without also considering immigration control.

For me, the story of Sonia and her children really brings this home.

When the British Nationality Act of 1981 was introduced, campaigners, activists and, indeed, some politicians and parliamentarians warned that the removal of birthright citizenship would have social as well as legal consequences.

But these went largely unheeded.

As the Letter to the Editor that George uncovered in the archive predicted, it would be decades later that these social consequences, in respect to the acquisition of citizenship, would start to come to light.

For those of you interested in finding out more, I’ve put together a list of resources in today’s episode notes, including links to Imogen’s great work on citizenship.

But before we close, let’s have a think about why this matters today.

To my mind, looking back at the British Nationality Act of 1981 afresh, and the changes that this brought, shows how the stage for the Hostile Environment was set decades ago.

Imogen first published her work on citizenship in 2010, and in the case that she relates we get a glimpse of what has now become more familiar to us through the Windrush deportation scandal.

Since her article was published, with the emergence and consolidation of what we might refer to as a global citizenship-migration regime, an increasing number of people have been found lacking under the conditional terms of British citizenship as laid out in the British Nationality Act.

We might want to ask ourselves then how British citizenship is caught up in the production and perpetuation of global inequalities?