|British & Commonwealth
|Commonwealth nationality laws|
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||This article possibly contains original research. (November 2008)|
In British nationality law and the nationality laws of other Commonwealth jurisdictions, the term British subject has at different times had different meanings. The current definition of the term British subject under British nationality law is contained in the British Nationality Act 1981.
Prior to 1949
Before 1949, every person born within the dominions and allegiance of the English and later British Crown was, based on common law, an English or British subject. To be a subject required only that a person be born in any territory under the sovereignty of the Crown. The only exception in common law was that children of foreign ambassadors took the nationality of their fathers, who were immune from local jurisdiction and from duties of allegiance. From time to time, statutes were passed expanding the class of persons who held the status of subject, e.g. the statute 25 Edw. III st. 2 that naturalised the children of English parents born overseas.
In Calvin's Case in 1608, the Court of Exchequer Chamber ruled that a Scottish subject of King James VI of Scotland, who was also King of England, was by virtue of his allegiance to the King's person not an alien, but a natural-born subject under English law.
Within the British Empire, the main class of people who were not British subjects were the rulers of native states formally under the protection of the British Crown, and their peoples. Many such smaller states, especially in India, were for most practical purposes administered by the imperial government, but the sovereignty of all rested in their rulers and not in the British Crown, and all such persons are considered to have been born outside the sovereignty and allegiance of the Crown, so were (and, where these persons are still alive, still are) known as British Protected Persons.
Between 1947 and 1951 each of the various existing members of the British Commonwealth of Nations created its own national citizenship (the Irish Free State had done so in 1935, but left the Commonwealth in 1949). In 1948, the Parliament of the United Kingdom passed the British Nationality Act 1948, which came into effect on 1 January 1949 and introduced the concept of Citizenship of the UK & Colonies.
1949 to 1982
From 1 January 1949, when the British Nationality Act 1948 came into force, every person who was a British subject by virtue of a connection with the United Kingdom or one of her Crown colonies (i.e. not the Dominions) became a Citizen of the United Kingdom and Colonies (CUKC).
However, CUKCs, in common with citizens of other Commonwealth countries, also retained the status of British subject. From 1949, the status of British subject was also known by the term Commonwealth citizen, and included any person who was one of the following:
- A citizen of the United Kingdom and Colonies
- A citizen of any other Commonwealth country
- One of a limited number of British subjects without citizenship
In the third category were mainly people born before 1949 in the Republic of Ireland, India and Pakistan who did not acquire citizenship of their country or any other Dominion (in the case of those born in India and Pakistan), or who applied after 1949 for restoration of their British subject status (for those connected with Ireland).
Hence, from 1949 to 1982, a person born in England would have been a British subject and a citizen of the United Kingdom and Colonies, while someone born in Australia, would have been a British subject and a citizen of Australia.
British subjects in other parts of the Commonwealth
Between 1949 and 1982, the status of British subject was a common status held by citizens of countries throughout the Commonwealth, and many Commonwealth countries had statutes defining the term British subject in their laws, in much the same way as the status of Commonwealth citizen is now defined. In contrast, the British Nationality Act 1981 now provides that, as far as United Kingdom law is concerned, no person is a British subject except as provided by the Act.
In South Africa, South Africans ceased to be British subjects when the country became a republic outside the Commonwealth in 1961, and the Commonwealth Relations Act 1962 removed all reference to British nationality.
In Canada, Commonwealth citizen replaced the British subject when the Citizenship Act 1977 replaced the Canadian Citizenship Act 1947.
New Zealand no longer defined the status of British subject when the Citizenship Act 1977 replaced the British Nationality and New Zealand Citizenship Act 1948 on 1 January 1978. However, s. 2 (Interpretation) of the Act still contains a reference in the definition of Alien to "...Commonwealth citizen (British subject)..."
In Southern Rhodesia, the unrecognised Parliament of Rhodesia purported to repeal the Citizenship of Southern Rhodesia and British Nationality Act 1963, under which Southern Rhodesian citizens were British subjects, and to enact the Citizenship of Rhodesia Act 1970, following the declaration of Rhodesia as a republic. However, pursuant to the 1963 Act and the Southern Rhodesia Act 1965 (UK), Southern Rhodesians continued to be British subjects under Southern Rhodesian law until Zimbabwe's recognised independence in 1980.
Australian law retained the status of British subject until the Australian Citizenship Amendment Act 1984 removed Part II of the Nationality and Citizenship Act 1948 on 1 May 1987. Hence between 1 January 1983 and 1 May 1987 a British citizen and an Australian citizen were both British subjects under Australian law, but not under United Kingdom law. The term encompassed all citizens of countries included in the list contained in the Nationality and Citizenship Act 1948. The list of countries was based on, but was not identical with, those countries (and their colonies) that were members of the Commonwealth from time to time. The list was amended from time to time as various former colonies became independent countries, but the list in the Act was not necessarily up-to-date as far as to constitute exactly a list of countries in the Commonwealth at any given time. This definition of British subject meant that, for the purposes of Australian nationality law, citizens of countries that had become republics, such as India, were grouped as British subjects.
Unusual arrangements were made in the cases of Singapore and the Federation of Malaya. When Singapore became self-governing in 1959 (whilst remaining a British colony), the status British subject: citizen of the State of Singapore was introduced, a status that existed until the (short-lived) incorporation of Singapore within Malaysia between 1963 and 1965. Similar arrangements also existed for the other states and colonies that made make up the Federation of Malaya from 1948: they too introduced citizenship statuses (which eventually became Malayan and later Malaysian citizenship) before achieving independence in 1957.
In most other Commonwealth countries, the term Commonwealth citizen was used instead of British subject.
On 1 January 1983, upon the coming into force of the British Nationality Act 1981, every Citizen of the United Kingdom and Colonies became either a British Citizen, British Dependent Territories Citizen or British Overseas Citizen.
Use of the term British subject was discontinued for all persons who fell into these categories, or who had a national citizenship of any other part of the Commonwealth. The category of British subjects now includes only those people formerly known as British subjects without citizenship and people born in Ireland before 1949. In statutes passed before 1 January 1983, however, references to British subjects are interpreted as if they referred to Commonwealth citizens.
British Citizens are not British Subjects under the 1981 Act. The only circumstance where a person may be both a British Subject and British citizen simultaneously is a case where a British Subject connected with Ireland (s. 31 of the 1981 Act) acquires British citizenship by naturalisation or registration. In this case only, British Subject status is not lost upon acquiring British citizenship. The status of British Subject cannot now be transmitted by descent, and will become extinct when all existing British Subjects are dead.
British Subjects, other than by those who obtained their status by virtue of a connection to the Republic of Ireland prior to 1949, automatically lose their British Subject status on acquiring any other nationality, including British citizenship, under section 35 of the British Nationality Act 1981.
Though the term British subject now has a very restrictive statutory definition in the United Kingdom—and it would be incorrect to describe a British citizen as a British subject—the concept of a subject remains in the law, and the terms the Queen's subjects, Her Majesty's subjects, etc., remain in use in British legal discourse.
The term United Kingdom national (sometimes referred to as British national), is used differently in various statutes, but most commonly means British Citizens, British Overseas Territories Citizens, British Overseas Citizens, British Nationals (Overseas), (and usually) British Subjects (as defined in the 1981 Act) and British Protected Persons. British Protected Persons are an especial grey area; they are neither Commonwealth citizens (i.e., British subjects in the old sense), nor aliens. Though they are not traditionally considered British nationals, since they are not considered stateless under international law, they must be nationals of the United Kingdom.
To cover the various classes of British nationals, new legislation currently uses the following wording:
- A person who is:
- (a) a British citizen, a British Overseas Territories citizen, a British National (Overseas) or a British Overseas citizen; or
- (b) a person who under the British Nationality Act 1981 is a British subject; or
- (c) a British protected person (within the meaning of that Act).
- Sir William Blackstone, Commentaries on the Laws of England (1765–1769), ch. 10
- (1608) 7 Coke Report 1a, 77 ER 377
- UK Border Agency, Who is a British protected person?
- Bagaric, Boyd, Vrachnas, Dimopoulos and Tongue, Migration and Refugee Law in Australia: Cases and Commentary, Cambridge University Press (2007) ISBN 0-521-69137-0, ISBN 978-0-521-69137-6
- R. (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs  All ER (D) 1675 at para. 57
-  See e.g. s. 109(4), Anti-Terrorism, Crime and Security Act 2001 (c. 24)
- Passport of British Subjects in PRADO (The Council of the European Union Public Register of Travel and Identity Documents Online