Loving the Alien: the British Protected Person (BPP) prior to the British Nationality Act 1948

In the colonial era there were imperial territories not part of the Crown’s dominions, or considered to be British possessions in English law, but which were, internationally speaking, under the protection (i.e. control) of the British Crown. Examples include the Indian Princely States, not part of Her Majesty’s dominions in British India but nonetheless territories of a native prince or chief under Her Majesty’s suzerainty); the Malay States and North Borneo (all now part of Malaysia); and Zanzibar (now part of Tanzania). Such states had a recognised internal political structure and came to be known as Protected States.

Other examples include Bechuanaland (now Botswana), Sierra Leone, Northern Rhodesia (now Zambia), and the Solomon Islands. Such territories were considered to lack an internal structure and came to be known as protectorates.

At common law territories ‘enjoying’ British protection were foreign, being outside the Crown’s dominions; by statute they were not considered British possessions, see the Interpretation Act 1889. British jurisdiction over such territories came to be regulated by the Foreign Jurisdiction Act 1890, an Act that consolidated the laws relating to the exercise of Her Majesty’s jurisdiction outside of her dominions. Thus in foreign countries where by treaty, capitulation, grant, usage, sufferance and other lawful means, Her Majesty exercised jurisdiction, the 1890 Act provided that it was lawful for her to exercise any jurisdiction she had there in the same manner as if she had acquired the territory by cession or conquest. By the same Act, jurisdiction was also extended over British subjects in countries considered to be without regular governments.

Persons belonging to Protected States or to protectorates were known as British protected persons. Such protection was afforded by Royal Prerogative.  A person whose father was born in British India but who was herself born in an Indian Princely State would have been a British subject in respect of the former and a British protected person in respect of the latter. At least some British Indian Empire passports, issued by the (British) Government of India, described the bearer as either a British subject or a British protected person, without electing one or the other.

After the First World War, there were territories subject to British jurisdiction under a mandate from the League of Nations. One such example was Palestine (comprised of territory previously part of the former Ottoman empire), in respect of which the UK made provision for ‘Palestinian citizenship’ by laws known as Orders in Council, see the Palestinian Citizenship Orders 1925 to 1941. These Orders were said to be made under powers found in the Foreign Jurisdiction Act 1890 or otherwise vested in the Crown. Palestinian citizens were British protected persons when traveling outside Palestine. Other examples of territories subject to British jurisdiction under a mandate from the League of Nations were Transjordan (now Jordan) and Tanganyika (now part of Tanzania). Persons belonging to such territories were British protected persons.

In Protected States and Indian Princely States, protection was afforded to those who were subjects of the ruler of that state by law or custom, or as decided administratively under principles that would have been embodied in law, had there been one. In respect of Anglo-Egyptian Sudan, protection was only afforded to persons holding Sudanese (as opposed to Egyptian) passports.

In protectorates, where there was considered to be no native ruler, the mode of acquisition as to whom could claim British protection was, initially, determined administratively by the Crown but came to be determined by legislation in the form of the British Protected Persons Order in Council 1934, an Order made under powers found in the Foreign Jurisdiction Act 1890 or otherwise. For example, the 1934 Order provided that a person belonged to one of the territories specified where born in the territory and where not at birth a British subject or a national of some other state under its law.

Most British protected persons acquired their status by virtue of their connection to a Protected State, protectorate, Indian Princely State, British mandate from the League of Nations, or a UK administered United Nations trust territory. However, there were, additionally, some other bases for affording British protected person status:

  • There were persons granted British protected persons status on an individual basis by the Secretary of State for Foreign Affairs;
  • There were persons granted local naturalisation as British subjects within a particular Dominion or colony, or in British India, who were granted passports as British protected persons when travelling outside that territory;
  • There were persons wrongly recognised as British subjects who, on discovery of the error, were treated as British protected persons to avoid hardship; and
  • In places where the Crown exercised extra-territorial jurisdiction and protection over British subjects there was a practice of granting protection to certain aliens who worked for British Consular posts and even for British companies.

At common law, a British protected person was an alien. However in international law, British protected persons, like British subjects, were a class of British nationals with a legal attachment to the Crown, entitling the Crown to exercise protection over them as a matter of discretion.

When travelling on a British passport outside of the UK, British possessions, and territories under British protection, a British protected person enjoyed British protection as against foreign powers. In practice this meant that the Crown had the right to exercise diplomatic protection in respect of the British protected person concerned.

It may be said that a passport application, to the authorities of a territory to which a person belongs, is a request for protection when travelling outside that territory. If the application is granted and a passport is issued, and if the holder travels outside the jurisdiction of the issuing authority, it does not create a right to protection but it does create a right to seek protection.

As regards relationships between states, a passport is also a promise to the state that admits its holder that the state that issued it will take that person back, if the receiving state wishes to expel her. States owe an obligation to each other to take back their own nationals. By way of illustration, Paul Weiss has noted it in the context of persons deprived of the nationality of a state while outside it:

‘The good faith of State which has admitted an alien on the assumption that the State of his nationality is under an obligation to receive him back would be deceived if by subsequent denationalisation this duty were to be extinguished.’

(P. Weiss, Nationality and Statelessness in International Law, 2nd edition, 1979, p. 55.)

Thus, although British protected persons were aliens in domestic law, on the plane of international law they were British nationals. As regards British protected persons who held British passports and who were outside territory subject to British jurisdiction, British authorities had the right to exercise protection over them. At the same time the use of British protected persons passports to enter foreign states outwith British jurisdiction, engaged the obligations of British authorities to those states.

Under the British Nationality Act 1948, statutory provision was made to regulate British protected persons; persons holding statutory British protected persons status were stated not to be aliens. However, notwithstanding the introduction of a statutory class of British protected persons, there remained persons who were British protected persons by Royal Prerogative.

 

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