British Overseas Territories citizen

A British Overseas Territories citizen (BOTC), formerly called British Dependent Territories citizen (BDTC), is a member of a class of British nationality granted to people connected with one or more of the British Overseas Territories. This category was created to differentiate between British nationals with strong ties to the United Kingdom and those connected only with an overseas territory. Individuals with this nationality are British nationals and Commonwealth citizens, but not British citizens.

Not to be confused with British Overseas citizen.

British citizenship and
nationality law
Introduction
Nationality classes
See also
Relevant legislation

This status does not give the holder right of abode in the United Kingdom but since 2002, almost all BOTCs simultaneously hold British citizenship, except for those connected only with the territory of Akrotiri and Dhekelia. Nationals of this class who are not also full citizens are subject to immigration controls when entering the UK. About 63,000 BOTCs hold active British passports with this status and enjoy consular protection when travelling abroad.[1]

Background
Main article: British Nationality Act 1981

All natural-born subjects of the Crown previously held the unrestricted right of free movement in any part of the British Empire.[2] As different areas of the empire gained legislative power from London, these territories gradually enacted their own laws governing entry and residence rights. At the same time, a common imperial nationality was maintained (British subject status) so that those "belonging" to one territory would not be considered aliens in another.[3] Although colonies that had not become independent Dominions remained under British sovereignty, they also had an accepted right to determine local immigration policy.[4] The British Nationality Act 1948 categorised subjects from the United Kingdom and its remaining overseas territories as Citizens of the United Kingdom and Colonies (CUKCs).[5]

All CUKCs initially held the right to enter and live in the UK,[6] although non-white immigration was systemically discouraged.[7] Immigration from the colonies and other Commonwealth countries was gradually restricted by Parliament from 1962 to 1971 amid decolonisation, when British subjects originating from outside of the British Islands first had immigration controls imposed on them when entering the UK.[8] Conversely, CUKCs did not have automatic right of abode in the colonies.[9] After passage of the British Nationality Act 1981, CUKCs were reclassified into different nationality groups based on their ancestry and birthplace: CUKCs with right of abode in the United Kingdom or were closely connected with the UK, Channel Islands, or Isle of Man became British citizens while those connected with a remaining colony became British Dependent Territories citizens (BDTCs).[10] Right of abode in the territories is dependent on possession of belonger status.[11]

Debate over full citizenship rights

At the time of nationality reclassification in 1983, the largest group of BDTCs (2.5 million people) was associated with Hong Kong.[12] The deprivation of full passports and nationality rights for colonial residents was criticized for effectively codifying ethnicity as the deciding factor in determining what rights British subjects were entitled to, an impression confirmed by exceptions granted to the majority white residents of Gibraltar and – after the Falklands War – the Falkland Islands.[13][14] The British government was particularly unwilling to grant full citizenship and immigration rights to Hongkongers,[13] fearing a mass migration to the UK after the transfer of sovereignty to China in 1997.[15]

In the remaining dependent territories, the majority of white residents maintained access to full citizenship while this was denied to non-white belongers. Territorial residents resented this treatment, because although Britain bore ultimate responsibility for their homes as the sovereign power, it did not treat them more favourably than travellers from foreign countries.[16][17][18]

Restoration of citizenship
See also: British Overseas Territories Act 2002

Almost five years after Hong Kong was transferred to China, Parliament restored access to full British citizenship and right of abode in the United Kingdom to virtually all British Dependent Territories citizens.[19] The sole exception to this was for those living in Akrotiri and Dhekelia, which were excluded due to their status as military bases as specified in the treaty establishing Cyprus.[20] Any person who was a BDTC before 21 May 2002[21] automatically became a British citizen on that date,[22] and children born after that date to BDTCs also automatically acquire full citizenship.[23] Additionally, the Act renamed the status British Overseas Territories citizenship, mirroring the name change for the territories themselves as well.[20][24]

Acquisition and loss
Main article: British nationality law
British Overseas Territories citizens may originate from any of the 14 territories (shown in red).

There are four ways to acquire British Overseas Territories citizenship: by birth, adoption, descent, or naturalisation.

Individuals born in a territory automatically receive BOTC status if at least one parent is a BOTC or has belonger status. Children born to British citizen parents who are not settled in an overseas territory are not BOTCs at birth. Parents do not necessarily need to be connected with the same overseas territory to pass on BOTC status.[25] Alternatively, a child born in an overseas territory may be registered as a BOTC if either parent becomes a BOTC or settles in any overseas territory subsequent to birth. A child who lives in the same territory until age 10 and is not absent for more than 90 days in each year is also entitled to registration as a BOTC.[26] Furthermore, an adopted child automatically become a BOTC on the effective day of adoption if either parent is a BOTC or has belonger status. In all cases that an individual is a British Overseas Territories citizen at birth or adoption within the territories, that person is a BOTC otherwise than by descent.[25]

Individuals born outside of the territories are BOTCs by descent if either parent is a BOTC otherwise than by descent. Unmarried fathers cannot automatically pass on BOTC status, and it would be necessary for them to register children as BOTCs. If a parent is a BOTC by descent, additional requirements apply to register children as BOTCs. Parents serving in Crown service who have children abroad are exempted from these circumstances, and their children would be BOTCs otherwise than by descent, as if they had been born on their home territory.[26]

Foreigners and non-BOTC British nationals may naturalise as British Overseas Territories citizens after residing in a territory for more than five years and possessing belonger status or permanent residency for more than one year. The residency requirement is reduced to three years if an applicant is married to a BOTC. All applicants for naturalisation and registration are normally considered by the governor of the relevant territory, but the Home Secretary retains discretionary authority to grant BOTC status.[27] Since 2004, BOTC applicants aged 18 or older are required to take an oath of allegiance to the Sovereign and loyalty pledge to the relevant territory during their citizenship ceremonies.[28]

British Overseas Territories citizenship can be relinquished by a declaration made to the governor of the connected territory, provided that a person already possesses or intends to acquire another nationality.[29] BOTC status can be deprived if it was fraudulently acquired[30] or if an individual is solely connected with a territory that becomes independent and that person gains the new country's citizenship. The last territory to have done so is Saint Kitts and Nevis in 1983.[31] BDTCs connected with Hong Kong also had their status removed at the transfer of sovereignty in 1997, but were able to register for British National (Overseas) status before the handover.[32]

Rights and privileges

British Overseas Territories citizens are exempted from obtaining a visa or entry certificate when visiting the United Kingdom for less than six months.[33] They are eligible to apply for two-year working holiday visas and do not face annual quotas or sponsorship requirements.[34] When travelling in other countries, they may seek British consular protection.[35] BOTCs are not considered foreign nationals when residing in the UK and are entitled to certain rights as Commonwealth citizens. These include exemption from registration with local police,[36] voting eligibility in UK elections,[37] and the ability to enlist in the British Armed Forces.[38] British Overseas Territories citizens are also eligible to serve in non-reserved Civil Service posts,[39] be granted British honours, receive peerages, and sit in the House of Lords.[10] If given indefinite leave to remain (ILR), they are eligible to stand for election to the House of Commons[40] and local government.[41][42][43]

All British Overseas Territories citizens other than those solely connected with Akrotiri and Dhekelia became British citizens on 21 May 2002, and children born on qualified overseas territories to British citizens since that date are both BOTCs and British citizens otherwise than by descent. Prior to 2002, only BOTCs from Gibraltar and the Falkland Islands were given unrestricted access to citizenship. BOTCs naturalised after that date may also become British citizens by registration at the discretion of the Home Secretary.[44] Becoming a British citizen has no effect on BOTC status; BOTCs may also simultaneously be British citizens.[45]

Restrictions
See also: Visa requirements for British Overseas Territories citizens

British Overseas Territories
See also: Belonger status

Although British Overseas Territories citizenship is granted to individuals who are closely connected to particular territories, each territory maintains separate immigration policies and different requirements for conferring belonger status. BOTC status by itself does not grant its holders right of abode or the right to work in any of the territories[46] and confers no entitlements other than the right to apply for a BOTC passport.[47] Consequently, there are circumstances in which BOTCs do not have right of abode in the territory that they derive their citizenship from.[11] BOTCs who are part of this group and have no other nationality are de facto stateless because they are deprived of the right to enter the country that claims them as nationals.[48] Additionally, both BOTCs and full British citizens who are not belongers of a given territory may not vote or stand for public office in that jurisdiction.[49]

United Kingdom
See also: Right of abode in the United Kingdom

British Overseas Territories citizens are subject to immigration controls and have neither the right of abode or the right to work in the United Kingdom.[35] BOTCs other than Gibraltarians are also required to pay a "health surcharge" to access National Health Service benefits when residing in the UK for longer than six months[50] and do not qualify for most welfare programmes.[51] However, since 2002, almost all BOTCs are also British citizens and have UK right of abode.[52] When exercising that right and entering the UK for a period of more than six months, they must travel with British citizen passports or other valid passports endorsed with a certificate of entitlement for right of abode.[53]

European Union

Before the United Kingdom withdrew from the European Union on 31 January 2020, full British citizens were European Union citizens.[54] Most British Overseas Territories citizens were not EU citizens and did not enjoy freedom of movement in other EU countries. They were,[55] and continue to be, exempted from obtaining visas when visiting the Schengen Area.[54] Gibraltar was the sole exception to this; BOTCs connected to that territory were also EU citizens and did have freedom of movement within the EU.[56]

References

Citations
  1. Smith, T (11 February 2020). "Freedom of Information Request" (PDF). Letter to Luke Lo. HM Passport Office. Archived (PDF) from the original on 27 February 2020. Retrieved 29 February 2020.
  2. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 26.
  3. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 27.
  4. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 29.
  5. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 32.
  6. Hansen 1999, p. 71.
  7. Hansen 1999, p. 90.
  8. Evans 1972.
  9. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 35.
  10. British Nationality Act 1981.
  11. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 44.
  12. Blake 1982, p. 190.
  13. Dixon 1983, p. 163.
  14. Lord Wyatt of Weeford, "Hong Kong: British Passports Proposal", col. 863.
  15. Jim Marshall, "British Overseas Territories Bill", col. 495.
  16. Richard Spring, "British Overseas Territories Bill", col. 487.
  17. Michael Trend, "British Overseas Territories Bill", col. 523.
  18. Lord Waddington, "The Dependent Territories", col. 904.
  19. Richard Spring, "British Overseas Territories Bill", col. 483.
  20. Ben Bradshaw, "British Overseas Territories Bill", col. 479.
  21. The British Overseas Territories Act 2002 (Commencement) Order 2002.
  22. British Overseas Territories Act 2002, s. 3.
  23. British Overseas Territories Act 2002, s. 5.
  24. British Overseas Territories Act 2002, s. 2.
  25. "Automatic acquisition: BOTC" (PDF). 1.0. Home Office. 14 July 2017. pp. 8–9. Archived (PDF) from the original on 6 March 2019. Retrieved 4 March 2019.
  26. "Registration as a BOTC: children" (PDF). 1.0. Home Office. 14 July 2017. Archived (PDF) from the original on 6 March 2019. Retrieved 4 March 2019.
  27. "Naturalisation as a BOTC at discretion" (PDF). 1.0. Home Office. 14 July 2017. Archived (PDF) from the original on 6 March 2019. Retrieved 5 March 2019.
  28. "Oath of allegiance and pledge of loyalty" (PDF). UK Visas and Immigration. 17 December 2007. Archived (PDF) from the original on 6 March 2019. Retrieved 5 March 2019.
  29. "Guide RN: Declaration of Renunciation" (PDF). Home Office. December 2015. Archived (PDF) from the original on 24 April 2018. Retrieved 4 March 2019.
  30. "Deprivation and nullity of British citizenship" (PDF). UK Visas and Immigration. 27 July 2017. Archived (PDF) from the original on 6 March 2019. Retrieved 4 March 2019.
  31. "Independence" (PDF). UK Visas and Immigration. 27 July 2017. Archived (PDF) from the original on 25 July 2019. Retrieved 4 March 2019.
  32. "Historical background information on nationality" (PDF). 1.0. Home Office. 21 July 2017. Archived (PDF) from the original on 29 December 2018. Retrieved 4 March 2019.
  33. "Check if you need a UK visa". gov.uk. Government of the United Kingdom. Retrieved 14 January 2020.
  34. "Youth Mobility Scheme visa (Tier 5)". gov.uk. Government of the United Kingdom. Archived from the original on 25 April 2017. Retrieved 8 January 2019.
  35. "Types of British nationality: British overseas territories citizen". gov.uk. Government of the United Kingdom. Archived from the original on 9 December 2019. Retrieved 14 January 2020.
  36. "UK visas and registering with the police". gov.uk. Government of the United Kingdom. Archived from the original on 1 January 2019. Retrieved 2 April 2019.
  37. Representation of the People Act 1983.
  38. "Nationality". British Army. Archived from the original on 3 April 2019. Retrieved 2 April 2019.
  39. "Civil Service Nationality Rules" (PDF). Cabinet Office. November 2007. p. 5. Archived (PDF) from the original on 21 August 2018. Retrieved 2 April 2019.
  40. "How can I stand in an election?". Parliament of the United Kingdom. Archived from the original on 7 February 2019. Retrieved 6 April 2019.
  41. "Guidance for candidates and agents: Part 1 of 6 – Can you stand for election?" (PDF). Local elections in England and Wales. Electoral Commission. January 2020. p. 3. Retrieved 14 January 2020.
  42. "Guidance for candidates and agents: Part 1 of 6 – Can you stand for election?" (PDF). Local council elections in Scotland. Electoral Commission. April 2017. p. 3. Archived (PDF) from the original on 8 March 2017. Retrieved 6 April 2019.
  43. "Guide for Candidates and Agents: Local Council Elections". Electoral Commission for Northern Ireland. 2 May 2019. p. 10. Retrieved 14 January 2020.
  44. "Registration as British citizen: other British nationals" (PDF). 2.0. Home Office. 17 December 2018. Archived (PDF) from the original on 6 March 2019. Retrieved 5 March 2019.
  45. "Guide B(OTA): Registration as a British citizen" (PDF). Home Office. March 2019. p. 4. Archived (PDF) from the original on 28 March 2019. Retrieved 29 March 2019.
  46. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 42.
  47. "Naturalisation (BOTC)". Government of the Turks and Caicos Islands. Retrieved 14 January 2020.
  48. Kaur [2001] C-192/99, at para. 17.
  49. House of Commons Foreign Affairs Committee Fifteenth Report 2019.
  50. "UK announces health surcharge". gov.uk. Government of the United Kingdom. 27 March 2015. Archived from the original on 11 December 2018. Retrieved 8 January 2018.
  51. Immigration and Asylum Act 1999.
  52. The Minister of Home Affairs and another v. Barbosa [2019] UKPC 41, at para. 43.
  53. "Bermudians Visiting the UK & Europe". Government of Bermuda. Archived from the original on 18 January 2017. Retrieved 17 January 2017.
  54. Regulation (EU) No 2019/592.
  55. Regulation (EU) No 2018/1806 Annex II.
  56. Foreign and Commonwealth Office Parliamentary Relations and Devolution Team (13 February 2007). "Foreign Affairs: Written Evidence - Letter to the Clerk of the Committee from the Parliamentary Relations and Devolution Team, Foreign and Commonwealth Office". Letter to Clerk of the Select Committee on Foreign Affairs. Archived from the original on 14 October 2018. Retrieved 5 March 2019.

Sources

Legislation and case law

Publications

Parliamentary debates
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