What can the development of immigration legislation tell us about citizenship in Britain?

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.

Devyani: Citizenship was not really defined in British Immigration and Nationality Laws for a very long time, in terms of the country.

So, it wasn’t about the UK as such and the reason is very much historical, it’s based on the British empire and its relationship with colonies and former colonies, and at each stage of the Immigration and Nationality Laws we see certain elements being added in without actually describing who is a citizen or defining who is a citizen.

But with time we see changes coming in.

Michaela: That was my guest on today’s episode, Professor Devyani Prabhat, Professor in Law at the University of Bristol whose specialism lies in immigration and nationality law.

She reminded us how recently the understandings of British citizenship—that we take for granted today—were written into law, and we’ll be hearing more from her shortly.

But I wanted to start by revisiting the story of my grandparents.

My grandmother, born in Hong Kong in 1928, shared the same status as my grandfather, born in Wiltshire, the other side of the Empire: they were both “British subjects”.

In 1948, in the wake of the Second World War, when they both 20, the introduction of the British Nationality Act would see them both granted a new status as Citizens of the United Kingdom and Colonies.

Elsewhere in the empire, in the newly independent Commonwealth countries where local citizenship laws were ready to be enacted, the British Nationality Act of 1948 recategorised British subjects as Citizens of Independent Commonwealth Countries.

But Hong Kong had emerged from the Japanese occupation to resume its status as a British colony, and there was no clear plan laid out for any future independence.

In 1948, citizens of Hong Kong then, just as others from across the empire, including those who had recently disembarked from the HMT Empire Windrush at Tilbury Docks, shared through their status as Citizens of the UK and Colonies the uninhibited right to enter and settle in the UK.

But this was to be short-lived.

Over the next few decades, a series of changes would happen.

Citizens like my grandfather—born in the United Kingdom—would maintain their rights to move to and settle in Britain’s remaining colonies, while those like my grandmother—born in the colonies—would find their movements increasingly circumscribed and their rights to settlement in the UK legislated against through immigration law.

Today’s episode focuses precisely on this process, where those labelled “citizens” found themselves recast as migrants at the borders of the United Kingdom.

We'll be travelling back in time to 1948, the year the first British Nationality Act was introduced.

And exploring what happened next, and how it set the stage for contemporary questions of citizenship, identity and belonging in Britain.

I’ll give you a whirlwind tour of how this piece of legislation came about and how its emergence was caught up in Britain’s transformation from empire to nation-state.

And we’ll be hearing more from Devyani Prabhat about the immigration laws introduced in the 1960s and ‘70s, and their relationship to later changes to the nationality law.

Why does this matter? Keep listening to find out.

For today’s episode, George went back into the archives to find out how the new British Nationality Bill was announced.

Let’s hear more from him about what he found.

George: Announcing the introduction of the British Nationality Bill in the House of Lords in February 1948, the parliamentary correspondent for The Times reported this under the headline “Bill that affects all the Empire”.

Let me read a small extract:

“Its main purpose is to provide a new method of giving effect to the principle that the people of each self-governing country within the British Commonwealth have both a particular status as citizens of their own country and common status as members of the wider association of people comprising the Commonwealth.

“For the people of the United Kingdom and the Colonies there is to be established a common citizenship.”

The article also highlights that the bill was prompted by the moves in Canada to grant Canadian citizenship and the special provisions that were being put in place to accommodate the complexities of the British-Irish relationship.

Another thing that stood out to me was a further paragraph about provisions to halt the previous fact that women would lose their British nationality on marrying an “alien”.

I think it is important to highlight how the initial provisions laid out in the British Nationality and Status of Aliens Act of 1914 were discriminatory towards women.

This shows how policymakers and governments were thinking only of men when designing nationality laws, and how a married woman's citizenship status would derive only from her husband.

I find myself wondering how such discriminations continue today in overlooked ways.

Michaela: We’ll return to the question of citizenship and gender in a later episode, but for now, let’s talk a bit more about the background to the introduction of this bill that became the British Nationality Act of 1948.

Post-World War II, the development of the British Nationality Act 1948 formalised a legal distinction between citizenship of the UK and colonies, and those of independent commonwealth countries.

You’ll remember that prior to this, across the British Empire, people shared a common status as “British subjects”.

This new distinction hinged precisely on the question of who Britain had continuing responsibility towards, and took place in the context of decolonisation—the process by which some of Britain’s former territories were becoming independent, and establishing their own governments.

This process of becoming independent involved drawing boundaries around newly independent state formations, deciding on where the borders were going to be located.

But it also entailed drawing boundaries around who these governments and states were for, whose interests they acted in, and who they had responsibility for.

In other words, they were drawing boundaries around a political community.

This necessarily also meant naming who was not part of that community.

I want to stress here that the move towards independence had actually been hotly debated at the Imperial Conferences—the periodic gatherings of representatives of the colonies and dominions of the British Empire.

And, that establishment of local citizenships was clearly at odds with the provisions that had been laid out in this imagining of a shared subjecthood that had been in place until then.

But ultimately, the call for local citizenships had won out.

So, what we can see is that citizenship was intimately tied to independence struggles of former territories across the British Empire.

In several cases, this had been preceded by decades of local government efforts to control who could enter territories.

The White Australia policy, running from 1901 to 1949, is one such example: provisions brought in to restrict Asian migration, predominantly those of Chinese origin, while privileging those migrating from the United Kingdom.

From the outset then, the establishment of citizenships has been caught up in questions of “who belongs?”.

But, what is also clear is that this is a process that necessarily excludes others.

It is these processes of exclusion that have brought us to the understandings of migration and citizenship that are commonplace in contemporary British society.

And as I discuss with Devyani in more detail, this is a process that has entrenched racism within the legal structures of British nationality and immigration law.

I want you to hold that in your mind as we think a little bit further about the story of British citizenship.

But first, let’s hear from Devyani about what citizenship is in law.

Devyani: There is a lot of confusion about what citizenship means legally because every country has got the right to decide who belongs to them, in terms of membership, but international law puts some limits on who can be a non-citizen; so let me explain this.

So, everybody on earth has a right to nationality but they do not have a right to any specific nationality; it could be anationality but not of a particular country.

So, international law cannot dictate that a specific country has to give its nationality to someone, however countries have signed up to conventions, which prevent them from stripping people of nationality or making them without any nationality; so they should not become what is called “stateless”.

So I think international law, rather than defining what is citizenship for each country, just puts the limits on what you can do to people in terms of removing citizenship or rendering them stateless.

Michaela: It is obviously not straightforward and I think already you have demonstrated exactly how complicated things are.

I’m just going to precis what you just said; I think what you are saying is that basically international law judges that you cannot remove somebody’s nationality—everybody has to have a nationality by international law—and so, you can’t put people in a position where they are stateless, essentially, and that’s then what guides that international law.

Devyani: Absolutely, but also in terms of saying somebody is your “national”; there are some key cases in international law that a country has asserted “this is my national” and therefore another country has to treat this person in a specific way, and the courts have looked into whether those considerations were genuine considerations—is there an actual link with this country?

So, it is not just about countries saying “this is my national” or not—there are some meaningful connections that will still be looked at as almost evidence of that relationship.

So, there is a lot of discretion about who is your member, but it is not totally within individual nation-state control as well.

Michaela: Listening to you, what I'm thinking is that that also means, by international law, there isn’t really a sense of what the content of citizenship should be, as in like the rights or entitlements that a state should provide to its citizens(?)

Devyani: Again, there is a sort of respect for national and domestic laws, and what nation-states set out in their so-called social and political contract with their own members.

So, international law will not say, for instance, that people will have to be given X amount of rights, or they have to be given basic minimum wage or something like that, if they are citizens.

But, if your citizens in your country do not have some basic political rights, that will be a violation of various international conventions.

Michaela: That’s really helpful, and I wonder if we could move from this kind of consideration of how citizenship sits in international law to thinking about a very specific case and thinking about British citizenship.

And I wondered if you could first start by kind of saying a little bit about how citizenship is positioned within British law, essentially?

Because I think it’s not idiosyncratic exactly, but there are some things about it, which are quite important, I think, for understanding the development and evolution of British citizenship.

Devyani: It is actually really interesting—the British situation—because citizenship was not really defined in British Immigration and Nationality Laws for a very long time, in terms of the country.

So, it wasn’t about the UK as such and the reason is very much historical, it’s based on the British empire and its relationship with colonies and former colonies, and at each stage of the Immigration and Nationality Laws we see certain elements being added in without actually describing who is a citizen or defining who is a citizen.

Michaela: It would be really helpful to discuss it concretely through the British Nationality Act of 1948.

Devyani: So, what we see in the 1948 Act is really an attempt to provide a special link to the former colonial subjects and to maintain the “world-leading” position within the erstwhile Empire of being special to a lot of people.

So, the way they do that in the 1948 Act is to then leave the door open for a lot of people from the erstwhile colonies to come, if they should desire it, to the UK, and it had no restrictions on who can come and how long they can stay and what rights they would have if they came in.

But at the same time, there was active recruitment of labour, like people to come in and work in industries and farms, etc. in the post-war Britain context; so “Come and build back Britain together” was a motto and there were recruitment posters, etc.

It is almost like there was a call but it wasn’t meant to be so many people responding to the call.

So, a lot of people travelled because of the 1948 British Nationality Act, and immediately there was an outpouring of political sentiment against it, and we see a backlash—a really racist backlash—against people coming in: we have the incident of the Windrush, the actual ship that came in at this time and then other ships like it, and racism as a result of that.

So in the next few decades, what we see is a successive number of immigration and nationality acts which then try to restrict what the 1948 Act did, but in a manner that it will affect prospective people.

But, prospectively, whoever has to come has to show that there are special links, and then you get names for it such as “patrial links” or “true-blood links”; you have to show that there is some connection with the UK and then you will be allowed to come in.

And there was no automatic right of abode—that is right to live here—attached to those kinds of relationships.

So, obviously, it resulted in a lot of confusion; we see decades of confusion on who can come in, who can stay—it was a system of what is called now a “Declaratory System” that the law simply said that they didn’t have to do anything to secure their position, they could come in and they were there; prospectively, this is what others had to do.

And this whole situation, then, resulted in a mess about who is actually British, who actually gets to reside, etc.

Michaela: I really like the way in which you describe this, kind of the dynamism of the development of the law, in some ways, and what it was responding to in terms of things that were happening.

And I kind of get this picture from what you have said—I think you have described it very beautifully—you know, bringing in all of these things as a way of patching up some of the holes that were starting to emerge because of what they have done before until, of course, you get to the British Nationality Act of 1981.

So what happens, what is the British Nationality Act of 1981?

Perhaps you could start by describing that; how you would introduce that to somebody who had never heard of it?

Devyani: So, the DIY efforts, almost, that were going on for this long, which failed to elevate the situation, meant that finally there was the need to have a definite of a statute, which would then connect the right of abode—that is the right to come and reside here—with the actual territory of the UK, rather than simply through links elsewhere, or through historical reasons or whatever.

So, attach it to the territory.

So, in some ways, the British Nationality Act 1981, for the first time, attaches these rights firmly to being a member of the UK.

But on the other hand, this Act is notable for removing the Birthright Citizenship, which is that prior to this Act, if you were born in the UK, it didn’t matter who your parents were; if you were born within the territory you were born British.

And the 1981 Act removed that and what it did was, now, not only you had to be territorially having a link, you had to have a parent who has either British citizenship or has a settled status—that is they have some kind of permanent status here.

So, the parents' immigration status now starts mattering.

So, this Act, which is meant to kind of tidy up the issues of patriality and right of abode and subjecthood, remove all that and create a clear cut—“This is who a citizen is”—is also responsible for removing the right to Birthright Citizenship, which makes a lot of children more vulnerable and not having secure legal status.

I would introduce it as a statute that was there to patch up the earlier DIY efforts which were failing, but which creates its own issues and challenges which we are currently still dealing with.

Michaela: I have a fascination with this, from a position of not really having a good grasp of how citizenship law functions in other countries, and I wondered if you have any reflections on the extent to which Britain is exceptional with this kind of citizenship mess, I suppose?

Devyani: The whole manner in which legal categories are manipulated to create these issues of special links like patriality and blood links through that, and then the right to abode—whether it is really there or not—I think this kind of “legal creativity”, if you will, in terms of categories of the previous statues that you see here in the context of Empire, and the need to kind of keep former colonies in a special relationship, even after it’s over, in terms of migration; I think that kind of a situation is quite unique here.

There will be some parts of the world where you will have special relationships with—like Algeria and France, for instance, and in Germany and Turkey there are some issues like that—but with this many numbers of countries as were involved in the British Empire and then the emerging Commonwealth, and the differences that have happened out of that, I think that makes the British situation quite unique, in terms of that.

Michaela: We’ve just heard from Devyani about how the road to our contemporary understandings of citizenship, and how they’re legislated for in law, has been quite long and drawn out.

And it hasn’t always been as clear-cut as people might imagine.

In fact, immigration law was brought in to patch up some of the “holes” that were emerging in earlier changes that were made to people’s legal statuses.

We can’t really understand this without taking into account Britain’s quite unique history.

I think that this conversation with Devyani makes really clear how the formation of ideas of British citizenship that we might take for granted today were shaped by decolonisation ongoing across the British Empire.

But it also points to a contradiction.

After the Second World War, the United Kingdom had a significant labour shortage.

It actively recruited people from around the Empire to come and work in the United Kingdom: the free movement into the UK, of Citizens of the UK and Colonies, made it relatively straightforward.

But on the ground, the reception was less than welcoming.

And in turn, a series of reforms in immigration law were triggered to try and restrict these migrations, but which were at odds with the assumed shared status of citizenship granted by the British Nationality Act of 1948.

These laws were first introduced through the Commonwealth Immigrants Act of 1962, which introduced immigration controls for those seeking to enter Britain from the Commonwealth, including those sharing the status as Citizens of the UK and Colonies.

But, let’s have a quick think about why this matters in the present day.

It’s really clear that the changes to people’s statuses, brought in by these reforms, is still reverberating, most notably in devastation caused to the lives of those at the heart of the Windrush deportation scandal.

We’ll be talking more about the Windrush deportation scandal in a later episode, but I’ll also pop some suggestions into the episode notes for further resources where you can find out more, including some really interesting pieces from Devyani about how this sits in the longer history of citizenship and nationality legislation in Britain.

As the borders went up between the UK and remaining colonies, citizens, including those originating in Hong Kong, were transformed into migrants.

The movements of labour from around the empire to the UK, that had been so vital to post-war recovery, became circumscribed for the first time in British law.

This was just a few short years after my Grandfather had travelled to Hong Kong with his regiment of the Royal Artillery.

When he left active service a few years later, he chose to try his luck as a civilian in the colony, meeting and marrying my Grandmother, with whom he had a shared citizenship status.

But, this was not the end of their story, or indeed, the story of British citizenship and its relationship to immigration.

We’ll be hearing much much more in coming episodes.

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