British Overseas Territories citizen

The status of British Overseas Territories citizen (BOTC) relates to persons holding British nationality by virtue of a connection with a British Overseas Territory (BOT). Nearly all BOTCs are also British citizens as a result of the changes made to British nationality law in 2002.

British Nationality Act 1981

Three black Hong Kong BDTC passports, issued prior to its replacement by the machine-readable passports in 1990.

The British Nationality Act 1981 came into force on 1 January 1983, and divided Citizens of the United Kingdom and Colonies (CUKCs) into three categories:[1]

British citizens
CUKCs with the right of abode in the United Kingdom and Islands (i.e. the United Kingdom, the Channel Islands and the Isle of Man) by virtue of a close connection therewith, e.g. by birth or descent from a person born in the United Kingdom & Islands, became British citizens.
British Dependent Territories citizens
CUKCs with a connection with one of the United Kingdom's colonies, at the same time redesignated as Dependent Territories, became British Dependent Territories citizens (BDTCs). A connection with a colony is defined as:[2]
  • acquiring CUKC status by birth, naturalisation or registration in a colony
  • being born to a CUKC father who acquired his status by birth, naturalisation or registration in a colony
  • if a CUKC woman, marrying a man who acquired CUKC status by birth, naturalisation or registration in a colony
It was possible for a person to acquire British citizenship and BDTC at the same time. For example, a person born in Bermuda before 1983 with a parent born in the United Kingdom would have acquired both nationalities. A woman born in the UK who married a man born in Gibraltar would acquire both as well.
British Overseas citizens
All other CUKCs became British Overseas citizens.

There are categories of British national other than these three, but these consist of persons who were not CUKCs before 1983.

British Overseas Territories Act 2002

The year left between the passing of the British Nationality Act 1981 on 30 October 1981 and its going into force on 1 January 1983 was intended to allow the local governments of the colonies to lodge complaints, but few colonials were aware of the pending change and the only colony which protested was the Falkland Islands, which was permitted to retain full British Citizenship.

All other colonials not already resident in the UK or the Crown Dependencies lost the rights of abode and work in the UK when the Act went into force. This caused anger in the affected colonies as the Act, which resulted from the desire to prevent ethnic-Chinese people in Hong Kong with UK and Colonies Citizenship from migrating to the UK prior to the planned 1997 hand-over of the colony to China, was seen as racist, especially as those colonials in affected colonies who possessed a qualifying connection to the UK sufficient to retain either British citizenship or a right to remain (in the UK) notification in their BDTC passports were usually white. The former colonials also objected to being described as dependent, especially in Bermuda, which had been self-reliant virtually since 1612, and largely self-governed since 1620. This resentment was exacerbated when full British citizenship was returned to Gibraltarians, ensuring that those from territories perceived as having negligible non-white populations retained free movement into the UK, with rights of abode and work, as did many of the whites in the remaining coloured colonies. Most non-whites in those remaining territories, by contrast, could only enter the UK as short-term visitors (with a date stamped in their passports by which they must exit) or with difficult-to-obtain entry clearances.

Conservative Party back-benchers hinted in the years following 1983 that the undeclared intent of the British Government was to revert to a single British Citizenship for UK and the territories following the hand-over of Hong Kong, but it will now never be known if the Conservative government would have done so as it had been replaced by Tony Blair's Labour Party government in 1997. Labour had insisted that the territories had been treated badly by the previous Government, and had made a single British Citizenship, restoring rights of free movement, abode, and work in the UK to BDT Citizens, part of the party's election manifesto. A white paper addressing the issue, titled Partnership for Progress and Prosperity: Britain and the Overseas Territories, was produced in 1999.[3] This did not, however, have a high enough priority for Labour to table a Bill before its first term in Government ended. Although Labour was re-elected in 2001, it was again slow to act on its promise to the territories. The House of Lords, in which sat many former Governors of territories who felt the matter more pressing, consequently tabled and passed its own Bill then sent it down to the House of Commons to be confirmed, the reverse of the normal procedure. Thus enacted, the Bill became the British Overseas Territories Act 2002.[4][5][6][7][8]

Although Labour had promised to restore a single British citizenship for the UK and territories, as CUKC had existed before 1983, on 26 February 2002, British Dependent Territories Citizenship (BDTC) was instead renamed British Overseas Territories citizenship (BOTC) and retained as the default citizenship for the territories, although most British Overseas Territories citizens gained full British citizenship on that day, hence right of abode in the UK was restored to all BOTCs, although BOTCs who do not use their British citizen passports to enter the UK would need to comply with UK's visa policy.[9]

Belonger status

British Overseas Territories citizenship is a 'citizenship' covering all the Overseas Territories. Individual overseas territories do not have their own legal nationality status. However they retain the right to make their own immigration laws and award Belonger status, and holding BOTC does not in itself give a right to reside in a British Overseas territory. This depends on a territory's immigration laws. Thus, some BOTCs have no right to live in any overseas territory.

Similarly, it is possible to have Belonger status in a territory without necessarily being a BOTC, depending on the law of that territory. Depending on the territories' laws, most non-British citizens who acquire this status will need to normally become naturalised BOTCs, while British citizens (or Commonwealth citizens) have the option to do so if they wish.

An example of this is Bermuda's Bermudian status, which serves as the territory's de facto citizenship. Bermudian status can be indicated on either a BOTC or British citizen passport by a rubber stamp, and it is that stamp which indicates to Bermudian immigration officers that the passport's holder is Bermudian. It is consequently not necessary for Bermudians to hold both a BDTC and a British citizen passport concurrently, as either one is sufficient for entry (providing it bears the Bermudian status stamp) into Bermuda as a person with Bermudian status.

Acquisition of British Overseas Territories citizenship

The acquisition of BOTC status generally mirrors the acquisition rules of British citizenship with some differences, which are listed below.

Birth in a British Overseas Territory

From 1 January 1983 onwards, a person born in an Overseas Territory is a BOTC otherwise than by descent if one of the person's parents is a BOTC or settled in an Overseas Territory.[1]

  • only one parent must meet this requirement, either the father or the mother.
  • if only the father meets this requirement, the parents must be married. If the parents marry subsequent to the birth the child may acquire BOTC at that point. Failing that, it is possible for the child to be registered as a BOTC under s17(1) of the 1981 Act which deals with discretionary registration of minors.
  • Settled implies ordinarily resident without a time limit (holding belonger status, permanent residency or similar status).
  • The parent does not have to be a BOTC connected with the same territory as the child's birth, or settled in the same territory. For example, a child born in the Falkland Islands to a parent who is a BOTC from St Helena will automatically be a BOTC by birth. However such a child will not necessarily have Belonger status in either the Falkland Islands or St Helena unless permitted by the territory immigration laws.

Having a parent who is a British citizen without settled status is not sufficient in itself for the child to be a BOTC at birth.

Registration entitlements for minors

A child born in an Overseas Territory may be entitled to registration as a BOTC if:[1]

  • subsequent to the birth, one of the parents becomes a BOTC or settled in any Overseas Territory (not necessarily the same one). Application must be made before age 18.
  • the child lives in the same territory until age 10 and is not absent for more than 90 days in each year. This is a lifetime registration entitlement.

Adoption

A child who is adopted under the Hague Adoption Convention automatically becomes a BOTC on the day the adoption takes effect if one of the adoptive parents is a BOTC or settled in a BOT.[1]

BOTC by descent

A person born outside the Overseas Territories on or after 1 January 1983 will automatically acquire BOTC by descent if either parent is a BOTC otherwise than by descent at the time of the birth. For example, a person born to BOTC parents in the UK is a BOTC by descent because the UK is not a part of BOT. However, the person is a British citizen otherwise than by descent if one of his parents is also a British citizen.[1]

  • only one parent needs to be a BOTC otherwise than by descent – either the father or the mother.
  • an unmarried father cannot pass on BOTC automatically. Although if the parents marry subsequent to the birth the child normally will become a BOTC at that point if legitimated by the marriage and the father was eligible to pass on BOTC. Otherwise, it is possible to apply for the child to be registered as a BOTC.
  • where the parent is a BOTC by descent, additional requirements apply. In the most common scenario, normally the parent is expected to have lived in an Overseas Territory for three years and apply for the child to be registered as a British citizen within 12 months of the birth.
  • Children born overseas to parents on Crown Service under the government of an Overseas Territory are normally granted BOTC otherwise than by descent. In other words, their status is the same as it would have been had they been born in their home Territory.
  • In exceptional cases, the Home Secretary or Governor of a Territory may register a child of BOTC by descent as a BOTC under discretionary provisions, for example, if the child is stateless.

BOTC through naturalisation

The requirements for naturalisation as a BOTC depend on whether one is married to a BOTC or not.

For those not married to a BOTC the requirements are:[10]

  • five years legal residence in the relevant territory
  • permission to live in that territory indefinitely must have been held for 12 months or more
  • the applicant must intend to continue to live in that territory or work elsewhere for the territory government or a corporation or association established in that territory
  • be absent for less than 90 days per year (450 days in total) from the territory.

For those married to a BOTC the applicant must:[10]

  • be permitted to live indefinitely in the territory at the time of application
  • have lived legally in that territory for three years
  • be absent for less than 90 days per year (270 days in total) from the territory.

All applicants for naturalisation must be of "good character", meet specified English competence standards or equivalent in any other language recognised for official purposes in that territory, and have not breached immigration laws of the territory in the 5-year or 3-year period before naturalisation. While the Home Secretary retains the ultimate power, naturalisation is normally at the discretion of the Governor of the BOT.[11]

It is possible for an application to be approved even if the applicant has been absent from the territory for more than 90 days per year depending on the reason for the excess absence(s).[12] For example, applications submitted in the Cayman Islands may be approved if absences were 'for an extensive period for educational/medical purposes',[13]

Unlike rules for acquiring British citizenship, there are no special provisions for persons holding other classes of British nationality wishing to voluntarily acquire BOTC status. All other classes of British nationals must apply for naturalisation as no provisions exist in the law for their registration. In contrast, persons holding other classes of British nationality are able to become British citizens by registration, with slightly different requirements than naturalization.

Access to British citizenship

Between 1 January 1983 and 20 May 2002, only BDTCs from the Falkland Islands and Gibraltar had non-restricted access to British citizenship. Falkland Islanders' automatic access to British citizenship was secured by the British Nationality (Falkland Islands) Act 1983, while Gibraltarians were entitled to be registered as British citizens upon request without conditions under section 5 of the 1981 Act due to Gibraltar's membership in the European Communities.

On 21 May 2002, any BOTC connected with the remaining British Overseas Territories (including Gibraltarians) other than Akrotiri and Dhekelia who was not already a British citizen automatically acquired British citizenship otherwise than by descent on that day, however a person who acquired BOTC status by descent would also become a British citizen by descent.[14]

Children born to such persons after 21 May 2002 would automatically acquire British citizenship otherwise than by descent at birth if they were born in the UK or on a British Overseas Territory, while those who were born outside the UK or a British Overseas Territory would receive British citizenship and British Overseas Territory citizenship by descent if one of their parents is a British citizen and British Overseas Territories citizen otherwise than by descent.[15] Generally speaking, British citizens and BOTCs by descent cannot pass down either citizenship to their offspring if they were born outside the UK or a BOT.[16]

BOTCs who are solely connected with Akrotiri and Dhekelia are not eligible for British citizenship under the 2002 amendment, and would, in theory, continue to face immigration restrictions in the UK unless they also hold citizenship of an EU or EFTA member state. In practice, however, most, if not all, of these BOTCs already hold Cypriot citizenship, and as EU/EFTA citizens they are already exempt from immigration control when entering the UK.

British citizenship by birth in an Overseas Territory

Persons born in a British Overseas Territory after 21 May 2002 automatically acquire British citizenship otherwise than by descent (even if they do not acquire BOTC), so long as one parent is a British citizen or settled in the UK or that territory.[15]

Between 1 January 1983 and 20 May 2002, this provision was only applicable to the Falkland Islands.

Registration as a British citizen

Those who voluntarily acquired BOTC status after 21 May 2002 (i.e., through naturalisation or youth registration) may also voluntarily apply to become British citizens through one of the following routes:

Section 4A registration

A BOTC is eligible to apply for registration as a British citizen based on his status as a BOTC under s4A of the British Nationality Act 1981 (in force from 21 May 2002) provided:[17]

Registration is discretionary but will not normally be refused unless there is a specific reason.

This option confers British citizenship otherwise than by descent and hence children born subsequently outside the United Kingdom and the BOTs will normally have British citizenship by descent.

Residence in the United Kingdom

  • After 5 years residence in the United Kingdom, Channel Islands or Isle of Man, and holding Indefinite Leave to Remain (ILR) or its equivalent for at least 12 months, a BOTC may apply for registration as a British citizen under section 4 of the British Nationality Act 1981 or naturalisation under section 6 for those solely connected with the Sovereign Base Areas of Cyprus.
  • If married to a British citizen, it is possible to apply for naturalisation as a British citizen after 3 years residence in the United Kingdom provided ILR is held on the day of application.

This confers British citizenship otherwise than by descent.

Since the introduction of section 4A, however, section 4 registration is no longer of interest to any BOTC, as BOTCs solely connected with the Sovereign Base Areas of Cyprus cannot be registered as British citizens and must apply for naturalisation instead.[17][18]

Section 5 registration

BOTCs by connection with Gibraltar may also apply for registration as a British citizen under section 5 of the 1981 Act. Unlike section 4A registration:[19]

  • this is an entitlement and cannot be refused
  • persons who have previously renounced British citizenship are eligible

This confers British citizenship by descent.

This section was previously used by Gibraltarians as they, unlike Falkland Islanders, were not automatically granted British citizenship. However, it became largely unused since the British Overseas Territories Act 2002 came into force, as all Gibraltarians who did not make an application to become British citizens before the Act was in force automatically acquired British citizenship as a result. Section 5 also differentiates with section 4A, as registering under s5 confers citizenship by descent while s4A confers citizenship otherwise than by descent.

Citizenship ceremonies

With effect from 1 January 2004, all new applicants for BOTC by naturalisation or registration who are aged 18 or over must attend a citizenship ceremony and take an Oath of Allegiance to the Queen and a Pledge to the relevant Territory.

  • This requirement also applies to British citizens seeking to acquire BOTC
  • BOTCs by naturalisation after 21 May 2002 who apply for registration as a British citizen (e.g. under s4A of the 1981 Act) must attend a second citizenship ceremony to give a Pledge to the United Kingdom.

Loss of BOTC

BOTC can be lost involuntarily through

  • deprivation under conditions similar to those for British citizens
  • independence of the territory concerned

The provisions for renunciation and resumption of BOTC mirror those for British citizenship.

Acquisition of a foreign citizenship does not cause loss of BOTC, however it may cause loss of Belonger status depending on the laws of the territory concerned.

Independence

The most recent British Dependent Territory to have become independent is St. Christopher and Nevis; St Christopher (aka St Kitts) and Nevis became an independent Commonwealth country on 19 September 1983. British citizenship was not lost by anyone who became a citizen of the country on that date, but British Dependent Territories citizenship was lost for those persons, unless there was a connection with a remaining dependent territory.[20]

  • BDTCs connected solely with St. Christopher and Nevis generally lost BDTC on 19 September 1983 unless they retained ties to another Dependent Territory.
  • Those who did not acquire St. Christopher and Nevis citizenship at independence retained BDTC status which was renamed in 2002 as BOTC.

Hong Kong

BDTCs solely connected with Hong Kong lost that status on 1 July 1997 upon transfer of sovereignty to the People's Republic of China.

  • The status of British National (Overseas) was made available before 1997 to allow Hong Kong BDTCs to opt to retain a form of British nationality.
  • Those who were not Chinese nationals (or any other nationality) and who had not registered as British Nationals (Overseas) became British Overseas citizens on 1 July 1997.

To close a possible loophole created in British Overseas Territories Act 2002, which made provision to substitute the wording of "British Dependent Territories" with "British Overseas Territories" in British Nationality Act 1981 among other new provisions, further clarification was made. Article 14 of the subsequent Nationality, Immigration and Asylum Act 2002, stated specifically that a person may not be registered as a British overseas territories citizen under a provision of the British Nationality Act 1981 by virtue of a connection with Hong Kong.[21]

Future independence acts

Most of the British Overseas Territories do not wish to become independent or have no civilian population.

However, independence is under discussion in some territories, most notably Bermuda.

  • It is likely that future legislation for loss of BOTC would mirror the 1983 provisions relating to St Christopher and Nevis.
  • The British Government has informally indicated (in the context of discussions on the potential impact of independence in Bermuda) that in the event of independence, it would be likely that legislation would be passed to remove both British citizenship and BOTC from persons becoming Bermuda citizens who did not have specific ties to the UK or another Overseas Territory.

Delegation of registration and naturalisation authority

Although powers to register or naturalise a person as a BOTC are vested in the Home Secretary, these powers are generally delegated to the Governors of Overseas Territories under s43 of the British Nationality Act 1981.

Only in exceptional cases will the Home Office in the United Kingdom register or naturalise a person as a BOTC, and in such instances the Governor of the relevant territory will be informed.

Normally applications for BOTC that are received directly by the Home Office (e.g. from persons in the United Kingdom) are referred to the Governor of the relevant territory for consideration.

Comparison with France

Unlike the UK, France has only one category of nationality, and all citizens of French overseas dependencies are full French citizens, regardless of whether they were born in Metropolitan France or in one of the dependencies. Persons born in one of France's ex-colonies when they were administered by France could become French citizens under certain circumstances.

See also

References

  1. 1 2 3 4 5 "British Nationality Act 1981". www.legislation.gov.uk.
  2. ↑ "AUTOMATIC ACQUISITION – PERSONS BORN BEFORE 1 JANUARY 1983" (PDF). www.gov.uk.
  3. ↑ Partnership for Progress and Prosperity: Britain and the Overseas Territories. PDF
  4. ↑ HANSARD: British Overseas Territories Bill (H.L.). House of Lords Debate. 10 July, 2001. Volume 626. cc1014-37
  5. ↑ HANSARD: British Overseas Territories Bill (Lords) House of Commons Debate. 22 November, 2001. Volume 375. cc477-546
  6. ↑ "The British who are not British and the immigration policies that are not: The case of Hong Kong". Applied Geography. 15 (3): 245–265. 1 July 1995. doi:10.1016/0143-6228(95)00009-S – via www.sciencedirect.com.
  7. ↑ The British Nationality Act. Marxist-Leninist Journal. Volume 2, Number 2. April, 1982.
  8. ↑ "British immigration policy, race relations, and national identity crisis". jimmyatkinson.com. 27 September 2012.
  9. ↑ "Bermudians Visiting the UK & Europe - bda london office". bdalondonoffice.co.uk.
  10. 1 2 "British Nationality Act 1981". www.legislation.gov.uk.
  11. ↑ "CHAPTER 34: NATURALISATION AT DISCRETION" (PDF). www.gov.uk.
  12. ↑ [https://gov.tc/immigration/botc Government of the Turks and Caicos Islands Ministry of Home Affairs and Public Safety: BOTC]
  13. ↑ "Cayman Islands Government: Application for Naturalisation as a British Overseas Territories Citizen – Section 18(1) (Grounds of Residence)" (PDF). www.gov.ky.
  14. ↑ "British Overseas Territories Act 2002". www.legislation.gov.uk.
  15. 1 2 "British Nationality Act 1981". www.legislation.gov.uk.
  16. ↑ "BRITISH CITIZENSHIP – CHILDREN BORN OUTSIDE THE UNITED KINGDOM SINCE 1 JANUARY 1983" (PDF). www.gov.uk.
  17. 1 2 "REGISTRATION OF BRITISH NATIONALS" (PDF). www.gov.uk.
  18. ↑ "Register as a British citizen". www.gov.uk.
  19. ↑ "REGISTRATION BY ENTITLEMENT OF BRITISH OVERSEAS TERRITORIES CITIZENS WHO ARE UNITED KINGDOM NATIONALS FOR EUROPEAN COMMUNITY PURPOSES" (PDF). www.gov.uk.
  20. ↑ "Independence" (PDF). www.gov.uk.
  21. ↑ "Nationality, Immigration and Asylum Act 2002". www.legislation.gov.uk.
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