The nationality and borders bill has been widely condemned as the continuation of a decade-long, Conservative-led immigration regime set on demonstrating that the UK is “tough on immigration”. It has been dubbed the “hostile environment” policy.
During its passage through the House of Lords, peers attempted to strip out some of the bill’s most contentious measures. But many of the proposed amendments have now been rejected by the House of Commons.
The bill is now in parliamentary ping-pong – batted back to the Lords for its response to the Commons proposed changes. This is part of the process where the wording of the final bill is approved before it can be granted Royal Assent and become law.
Clause 9 returns
Some of the Lords amendments struck at the heart of bill, calling for the removal of the two most controversial issues: the extension of the deprivation powers of the Home Secretary so that they can remove citizenship from people without notice – the so-called Clause 9 – and new prohibitions on those entering the UK without prior authorisation to claim asylum.
But when the amended bill was brought back to the Commons for consideration, these major amendments were overturned. Clause 9 and the criminalisation of those entering the UK as refugees without prior authorisation looks set to become law.
These two issues have been incredibly divisive and have grabbed much of the attention around this controversial bill. But there are a set of other proposed changes that relate to Britain’s relationship with its former overseas citizens that have largely escaped notice.
The Hong Kong visa
The Hong Kong BN(O) visa is the bespoke route introduced on January 31 2021 to facilitate the migration and settlement in the UK of those seeking to leave Hong Kong in the wake of China’s imposition of national security law. This route rests on the applicant being eligible for British Nationals (Overseas) status – the status awarded to the people of Hong Kong when sovereignty was handed to China in 1997.
The latest statistics show that in 2021, 97,057 visas were granted to people through this scheme. The original limits on this visa meant that those born after 1997 could only take advantage of this route as “dependants” of their BN(O) parents. This meant that in order to move to the UK through this route they would have to move with their parents.
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But subsequent amendments to the bill mean those with a BN(O) parent will be eligible to apply for the scheme independently of their parents. This is notable because previously many of the students and young people involved in political protests in Hong Kong fell out of the scope of the visa.
The routes available to them to enter the UK independently were limited to the youth mobility scheme (a time-limited visa that explicitly prohibits a right to settlement) and applying for asylum. The amendment means that this is no longer necessary. This move has been welcomed by campaigners and the government has confirmed it will enact these changes by October.
Children denied citizenship
Citizens of the 14 remaining British overseas territories are eligible for British Overseas Territories Citizenship (BOTC). This status was first introduced in 1981, when it did not permit the right to live and work in the UK. Its holders had to apply for visas to enter and settle. But because of changes introduced in 2002 through the British Overseas Territories Act, those holding this status are now able to register for full British citizenship, which includes the right to live and work in the UK.
But this right to citizenship did not extend to the children of these citizens – specifically those born outside British territories to unmarried BOTC parents. In other words, they have been denied the right to the nationality of their British parent. This discrimination on the grounds of their parents’ marital status at the time of their birth exists to this day. It disproportionately impacts British people of colour.
Clause 1 of the bill addresses this. It commits the government to reforming the nationality legislation so children born abroad and outside of marriage to BOTC fathers can inherit the status of their parents, which would also entitle them to register as British citizens. This clause will make the world of difference to this group of people.
Chagos Islanders
The case of the Chagos Islanders adds further complexity to this story of children denied the right to British nationality by descent. Between 1967 and 1972, the entire population of the Chagos Archipelago was displaced to Mauritius and the Seychelles to make way for a joint UK-US military base on Diego Garcia.
The process included excising the archipelago from the control of Mauritius, at the time a British colony, to create the British Indian Ocean Territory (BIOT). The BIOT remains one of Britain’s 14 remaining overseas territories, along with Gibraltar and the Falklands. At this time, the Chagos Islanders are citizens in British nationality law.
But the descendants of forcibly displaced Chagos Islanders were denied this status – BOTC status was only available to those born on the islands and the first generation born off-island. It could not be passed on to future generations. Their case is unique because they were granted no right of return to British territories.
The amendment that would permit direct descendants of those from the Chagos Islands to inherit their parents’ status was defeated in the Commons in November 2021. However, a later version of this amendment was introduced by Labour’s Baroness Lister when the bill reached the House of Lords. The Lords voted in favour and while the government found this amendment “technically deficient”, it has made clear its commitment to offering a new route to British nationality for these descendants.
These changes and amendments will make a huge difference for some of these communities. They are the provisions that seem to sweeten a deal that is otherwise set to introduce increasingly exclusionary measures aimed at controlling who can come to the UK and on what terms.
Michaela Benson received funding from the British Academy MD19\190055 for her research into Britain's relationship with its overseas citizens. She is also a currently funded by the ESRC ES/V004530/1 for the project 'Rebordering Britain and Britons after Brexit'.