British Subjects from India and Pakistan: An enduring status to avoid Statelessness

Introduction

There are people alive today who were associated with British India in the colonial era and who are British subjects without any other form of citizenship. In other words, they are British subjects without British citizenship, Indian citizenship. Pakistani citizenship, or any other form of nationality or citizenship. Moreover, British Subject status is capable of transmission to subsequent generations who would be otherwise Stateless. How has this come to be and what are the consequential effects of holding British subject status?

The birth of India and Pakistan

In the colonial era, when all of India was still controlled by Britain, it was divided into the provinces of British India (i.e. Crown possessions ruled directly) and Princely States over which Britain exercised paramount control (i.e. ruled indirectly through local rulers). People belonging to British India were British subjects by virtue of birth within the Crowns dominions. Those born in Princely States were British protected persons (aliens who owed allegiance to their local ruler but who were ‘protected’ by Britain as well).

India and Pakistan became independent on 15 August 1947. At that time neither country enacted a new nationality law. Prior to independence persons from British India were British subjects and in the early years after independence persons from India and Pakistan remained British subjects, albeit ones by reference to the now self-governing Dominions of India or Pakistan (as the case may be). India did not begin to provide for its own citizenship laws until 1950; Pakistan until 1951. Both India and Pakistan retained King George VI as head of state on independence and did not become republics until later.

British nationality law in the era of decolonisation

Under the British Nationality Act 1948 (‘the 1948 Act’) (in force from 1 January 1949) British nationality law was reorganised to take account of countries becoming independent as self-governing Dominions. From the Statute of Westminster 1931 onwards, countries such as Canada, Australia, and New Zealand had been free to make their own laws without interference from the Westminster Parliament. By the Indian Independence Act 1947, both India and Pakistan achieved the same status.

Under the 1948 Act people who were to have the citizenship of independent and Commonwealth countries continued to be treated under UK law as British subjects. ‘British subject’ was no longer a substantive status but was an overarching term to include Citizens of the United Kingdom and Colonies (‘CUKCs’) as well as citizens of independent Commonwealth countries. The 1948 Act worked on the assumption that citizenships laws of newly independent Commonwealth countries would be enacted and further that they would be recognised under United Kingdom law (indeed Canada had already enacted a citizenship law prior to 1949). But those assumptions were not sustained when it came to the independence of India and Pakistan. As already noted, on independence India and Pakistan did not immediately enact new citizenship laws. Moreover, even when they did, those laws were not recognised in UK law for important nationality purposes, leading to the perpetuation of a class of British subjects from India and Pakistan who were without citizenship.

As noted, under the 1948 Act British subject status was acquired by virtue of holding citizenship either of the United Kingdom and Colonies or of an independent Commonwealth country. To reflect the new reality the term ‘British subject’ was made interchangeable with the term ‘Commonwealth citizen’. Thus from 1949 onwards CUKCs and the citizens of independent Commonwealth countries had the status of British subject in common but were in fact citizens of different countries.

However, a number of pre-1949 British subjects did not become CUKCs or citizens of independence Commonwealth countries. Under the 1948 Act they remained British subjects without citizenship.  In particular, certain persons from India and Pakistan fell into this trap.

India made citizenship provision in the Constitution of India (26 January 1950). That provision was further supplemented by the Citizenship Act of 1955. But India did not provide for all persons who were associated with India to acquire Indian citizenship. In the result some people remained British subjects without citizenship. Pakistan made citizenship provision in its Pakistan Citizenship Act 1951 and in the Pakistan Citizenship (Amendment) Act 1952. But Pakistan did not provide for all persons who were associated with Pakistan to acquire Pakistani citizenship. In the result some people remained British subjects without citizenship.

The broken system for turning British subjects without Citizenship into Citizens of the United Kingdom and Colonies

Under the 1948 Act potential citizens of an independent Commonwealth country who had yet to acquire the citizenship of that country remained British subjects without citizenship. The 1948 Act identified persons who were potentially citizens of an independent Commonwealth country by reference to birth, descent, the annexation of territory, and naturalisation.

As regards British subjects left without citizenship, the 1948 Act made provision to ensure that if a British subject did not end up becoming a citizen of an independent Commonwealth country but had been considered under the 1948 Act  to be a potential citizen of such a country, then when that country’s citizenship law came into force, that person would become a CUKC in default and thus have a meaningful citizenship and a home in the world (in the UK and remaining colonies).

However, for that to happen, the UK had to recognise the citizenship law of the newly independent country. If the UK did not do so, and the person did not become a citizen of that newly independent country, then the person did not acquire Citizenship of the United Kingdom and Colonies and remained a British Subject without citizenship. In that way certain persons who did not acquire the citizenship of India or of Pakistan (as the case may be) remained British Subjects without citizenship.

The status of a British Subject without citizenship was meant to be temporary. The plan was it would die out when every British subject was at least a CUKC or a citizen of an independent Commonwealth country.  But because Indian citizenship law and Pakistan citizenship law did not provide for certain persons associated with those countries to become its citizens, some persons from India and Pakistan remained British Subjects without citizenship. Such persons were not given a home in the world by being made CUKCs because the UK chose not to recognise the citizenship laws of India or Pakistan in its own nationality law, the 1948 Act.

In order for India and Pakistan’s new citizenship laws to have been recognised in UK law, they would have to have fallen within the scope of being defined as a ‘citizenship law for the purposes of the 1948 Act. The latter provided that a ‘citizenship law’ in respect of any Commonwealth country is an enactment of the legislature of that country declared by order of the Secretary of State made by statutory instrument at the request of the government of that country to be an enactment making provision for citizenship.

Such citizenship orders were made in the UK in recognition of the independent citizenship laws of Canada, Australia, New Zealand, South Africa, Ceylon (Sri Lanka), and other counties. However, no orders were made in respect of India or Pakistan. As those countries’ new citizenship laws were not ‘citizenship laws’ for the purposes of the 1948 Act, British subjects who were connected to those countries as potential citizens of those countries, did not acquire citizenship of the United Kingdom and Colonies in default of not picking up the citizenship of India or of  Pakistan (as the case may be). Under the 1948 Act they remained British subjects without citizenship.

Some British subjects from India or Pakistan may have the right of abode in the UK under the Immigration Act 1971. But for most, British subject status will provide a nationality that allows the person to seek a UK-issued British subject passport, and consular and diplomatic assistance, but which does not provide a right to enter and reside in the UK. For such persons, the status is limited use. That said, travelling on a UK passport, even a British subject one, is not without its advantages in foreign countries. It may enable a person to enter a foreign country visa-free and it may ease a person’s path to work of study permission in that country (depending on that foreign country’s visa and immigration rules), as compared to being a Stateless Person.

British subjects without Citizenship were able to register as Citizens of the United Kingdom and Colonies

Under the 1948 Act, a person who was a British subject without citizenship was treated as a citizen of an independent Commonwealth country for the purposes of registering as a CUKC. That provision, taken together with the provision for citizens of an independent Commonwealth country to register as CUKCs, enabled many British subjects without citizenship to register as CUKCs. Many persons from British India, lived in British East Africa (Kenya, Uganda, etc.) in the colonial era. Many, including those who were British subjects without citizenship, registered as CUKCs, either in a British colony or British protectorate (or equivalent), or at the British High Commission in a newly independent Commonwealth country. A person who registered as a CUKC at a British High Commission in an independent Commonwealth country acquired the right of abode in the United Kingdom under the Immigration Act 1971 and would be a British citizen today.

British subjects today – Avoiding Statelessness

Under British Nationality Act 1981 (‘the 1981 Act’) (in force from 1 January 1983) people who were ‘British subjects without citizenship’ were reclassified simply as ‘British subjects’. Thereafter, provision is made for the minor child of a British subject on application to be registered as a British subject at discretion.  In practice this wide discretion is cut down by a policy as to when discretion may be exercised. As regards the child of a British subject who is born and remains Stateless, she may be registered by the Secretary of State. A registration application will normally be granted where at least one parent is a British subject and the child has no other nationality or citizenship and is facing genuine difficulties.

The 1981 Act also makes further provision to avoid Statelessness in subsequent generations, by providing for a child of a British subject to acquire British nationality in the form of British subject status, see Schedule 2 to the 1981 Act which gives effect to provisions of the 1961 UN Convention on the Reduction of Statelessness.

Schedule 2 of the 1981 Act provides a rule for the automatic acquisition of British subject status by a person born in the UK or a British overseas territory to a British subject parent, where she is otherwise Stateless at birth.

Additionally, provision is made for the child of a British subject born outside the UK and the British overseas territories but who is thereafter in the UK or a British overseas territory at the beginning of a three-year period ending on the date of application (subject to permitted absences), to register as a British subject.

Finally, British subjects, otherwise stateless, upon satisfaction of necessary conditions, are entitled to apply for registration as British citizens under Section 4B of the 1981 Act. For British subjects without the right of abode in the UK who are otherwise Stateless this is a very useful provision as it gives them a home in the world, the United Kingdom.

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