TNAG-0901-FCO40-1111-Implications-for-Hong-Kong-of-changes-in-British-nationality-1979 — Page 130

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THE NEED FOR REFORM

The function of a nationality law is to define a nation. It is to identify and to express in legal terms the political, social, genealogical, linguistic and residential links that connect a people ruled by a common legislature and represented in international affairs by a common Lovernment. Our present law fails to discharge this function with serious consequences. Chief among these is that Parliament has difficulty in controlling immigration without excluding from these islands hundreds of thousands of those who possess its nationality.

THE PRESENT SYSTEM

'U.K. Nationality'

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The United Kingdom's nationality law does not create any category of

"United Kingdom nationals". Rather it assigns certain statuses to a number of groups of persons, not necessarily mutually exclusive, in a manner which often derives from historical antecedents. The various classes include "British subjects without citizenship", and "British protected persons" as well as British subjects and Commonwealth citizens.

Kone of these categories are sufficiently close to a "nationality" of the United Kingdom to be used as its synonym. So when it becomes necessary to define this country's nationals for the purposes of international commerce or treaties the matter must be left to commercial or diplomatic practice or must be settled by the adoption of a particular definition for the purpose like the contentious formula adopted in connection with the EEC Treaty. The absence of an acceptable definition of the Kingdom's nationality has given rise to serious proble.as for domestic policy. One criterion applies to determine whether an individual is sufficiently connected with the Kingdom to vote in elections, another to determine whether he may serve in the armed forces; another to determine whether he may be engaged in the diplomatic service, and so on. For the purposes of insigration control Parliament has found it necessary to establish the new title to describe those who belong to the United Kingdom - "patrials".

The criticism is not only that the statuses created by our nationality law fail to coincide with a "nationality" in a sense acceptable for nonal international relations or domestic policy: the criteria by which our current law determines whether an individual is entitled to any of the existing citizenships, subjecthoods or other statuses are often technical and anomalous.

Our code of nationality is based upon the British Nationality Act 1948, as amended and suppliemented by the British Protectorates, Protected States and Protected Persons Order ly4y; the British Nationality Acts 1958, 164, 1964 (No.2) and 1965; the Commonwealth Immigrants Act 1962; the British Nationality Regulations lyбy, the Immigration Act 1971 and thirty odd statutes concerned with the grant of independence to forer dependencies. Some of the terms and effects of those statutes can be understood only in the light of common law rules traceable at least to a case decided in the reign of King James I. From these sources we derive a "system" in which no one is designated by law as a national of the United Kingdom, and in which the term "British. subject" means a person who is a c.tizen of the United Kingdon and Colonies or