British nationality and right of abode – complexity

It is often truly said that Britain’s imperial history has produced a highly complex scheme of British nationality. It comes in different “grades”, of which British citizenship is by far the best. The question sometimes arises “am I a British citizen?”, and the answer is not always easy to identify. Another, similar but different, question may also come up: “do I have the right of abode in the UK?”

Mr Murugason was confronted with these issues, and his case reached the High Court. His father had been born in 1948 in Penang, which is part of the modern state of Malaysia. At the time his father was born Penang – like other parts of what is now Malaysia – was a British possession. 

He was thus born a British subject – an ancient term that goes back centuries. When the British Nationality Act 1948 came into effect on 1 January 1949 he became a Citizen of the UK and Colonies (“CUKC” as it is often referred to). 

Malaysia gained independence from Britain in 1957. What would normally happen in such a situation is that a CUKC would lose their CUKC status, and would instead become a citizen of the newly-independent country. However, because of some unusual concession or arrangement, people from Penang like Mr Murugason Senior were allowed to keep their CUKC status. 

So so far so good: his CUKC status survived independence. Mr Murugason Junior was born in 1972 and he was also born a CUKC, a status he inherited from his father. 

On this basis Mr Murugason Junior thought that he might be a British citizen. But the Home Office said No, and Mr Murugason challenged the decision by way of Judicial Review. 

The problem or issue was a provision of the Immigration Act 1971, which limited some but not other CUKCs’ entitlement to the “right of abode” ie the right to enter, leave and live in the UK without restriction.

This is the tricky bit. It limited this entitlement to those who had been:

“Born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either —

(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands”

If Mr Murugason Junior had acquired the right of abode, then well and good. If he had the right of abode he presumably would also in any case be a British citizen, because a CUKC who holds right of abode would typically be entitled to that as well. 

But how to read the law correctly? Mr M Senior did not hold CUKC status by way of birth in the UK. But Mr M Junior said (or his lawyers did) that it did not matter because the words “had that citizenship by his birth, adoption, naturalisation” are separate from the words “or (except as mentioned below) registration in the United Kingdom or in any of the Islands”and should be considered separately and by themselves. So if his father had CUKC status by his birth (which he did) then that was enough and there was no requirement for the birth to have been in the UK. The requirement concerning the UK only related to registration, or so it was argued.

A rather contrived understanding you might think? Well, unfortunately, the High Court thought so. As the Court pointed out, this argument would have been a bit stronger if there were a comma between “naturalisation” and “or”, and thus more obviously separate the two items, but there was not. And they had some other reasons as well, and the case was unsuccessful. To be fair, it was surely a weak claim.

In any event, some of these situations with British citizenship/right of abode are very difficult and complicated. If you have any such matters and you want reliable advice we at GSN Immigration will do our best to help you. 

Oliver Westmoreland

Senior Immigration Lawyer