3.1.4 British nationality in transition: restructuring the Empire

British nationality historically included everyone born in the Empire (3.1.3), but after WW2 the British Nationality Act 1948 recognised a distinction between the mainland UK and Commonwealth countries (3.1.4). That distinction began to be material in the 1960s, when restrictions on the right to enter and live in the UK – the “right of abode” - were imposed on those whose Britishness was Commonwealth-based. Those restrictions were embodied in the provisions of the Immigration Act 1971 (3.1.5). British nationals born or adopted, or whose parent or grandparent was born or adopted, in the UK automatically had the right of abode, but others were classified as “immigrants”. The East African Asians case (3.1.5) remains the major legal challenge to the exclusion from the UK of Commonwealth British nationals. In 1983, the British Nationality Act 1981 also removed the jus soli, or automatic citizenship for those born in the UK.

In 2018, there arose a major political challenge to the exclusion of Commonwealth British nationals from the right of abode in the UK, often referred to as the “Windrush” affair. The Empire Windrush was a ship on which the most famous cohort of migrant workers was brought to Britain from the Caribbean in 1948. Those workers, and many who came after them, answered a need for labour to rebuild post-war Britain (3.1.5). Many settled in Britain, and were also followed later by other family members. Having arrived as British nationals, the nationality position of the “Windrush” migrants became more complex as their countries of origin became independent, and UK legislation was implemented. However, the vast majority of those who had settled from Commonwealth countries had settled status, which for many purposes and for many years was, in daily life, indistinguishable from British nationality. Moreover, before the changes of political stance towards non-UK British nationals which began in the 1960s, and towards non-nationals which began to bite in the last decade of the twentieth century, often the lack of formal papers was overlooked even by the Home Office in issuing documents and passports.

The political introduction of a “hostile environment” for irregular immigrants, first instigated by Theresa May as Home Secretary in 2012 (2.5.1), however meant that even long-established Caribbean migrant workers, and those claiming British nationality through them, began to be refused British passports or the right to live or work in the UK, and some were deported. Media publicity about individual cases, beginning in late 2017, led to public sympathy and outrage for the group as a whole. In April 2018, a former Home Office worker revealed that, again while Theresa May was Home Secretary, the Home Office had destroyed many of the landing card records that would have enabled individuals to show when they first arrived in Britain and so to claim status. Shortly after that, the Home Secretary Amber Rudd apologised for the way the migrants had been treated and promised them citizenship, but then resigned when her part in implementing the “hostile environment” came to light.

In December 2017 and January 2018, an open letter by MPs, academics and campaigners and a Home Affairs Select Committee report both expressed concern about the effects of the “hostile environment” policy, but in April 2018 Theresa May confirmed that it remained in place, and declined to meet with leaders from Caribbean countries to discuss the issue at the Commonwealth Heads of Government meeting. From March 2018 onwards, questions were asked in Parliament about the Windrush affair and individual cases were followed up, with questions about how many people were previously wrongfully detained and deported, sums paid in compensation, and those given status. Many victims of the Windrush affair were made destitute and remain so. The Home Affairs Select Committee and others continue to express concern about the way the Home Office has dealt with the issue both in the past and at present.