The Court of Justice of the EU and nationality law: Kaur

Having discussed the Micheletti case last week, it is time to move to the second case in our three-part series on EU Member State nationality under EU law. Kaur was a complex case handed down by the Court of Justice of the European Union against the backdrop of the many different statuses that exist under British law. The different types of British nationality are explained on the UK government’s website, but the following overview is based on Fransman's British Nationality Law – the definitive work on the subject.

· British citizenship: the primary nationality category. Includes the right of abode in the UK;

· British overseas territories citizenship (previously British Dependent Territories citizenship: BDTC): applying to those with a sufficient connection to any British overseas territories, and coexisting with British citizenship. Also see our post on non-sovereign British territories in the Caribbean;

· British Overseas Citizenship: a disappearing category mainly applying to pre-1983 Citizens of the United Kingdom and Colonies (CUKCs) who were not reclassified as British citizens of BDTCs. This was the status that was at stake in the Kaur case;

· British National (Overseas) status: another disappearing category, applying to certain former BDTCs who acquired that citizenship by virtue of a connection with Hong Kong;

· British subject status: another disappearing residual category of various pre-1983 British subjects;

· British protected person status: also disappearing. Historically a category of alienage, not British nationality, but pragmatically treated as if a British nationality status;

· Commonwealth citizens: this remains a category within British nationality law and applies to all citizens of Commonwealth countries and anyone with British nationality status (excluding BPP status).

The Kaur judgment addressed the validity of British declarations which defined who was British for Community purposes. Ms Kaur, a person of Asian origin, was born in Kenya in 1948 when Kenya was a British colony. (Kenya would become independent in 1963.) As a result, she acquired the status of ‘citizen of the United Kingdom and Colonies’ (‘CUKC’) under the British Nationality Act of 1948. This status did not distinguish between British people who were UK-based and those who were not. Many Asians who were settled in East African countries retained this status despite these countries becoming independent in the 1960s.

They deliberately did not acquire the nationality of the newly independent States, but retained their status of ‘CUKC’ because they had been assured they would retain the right to enter and remain in the UK (‘the right of abode’). Yet, when the UK was confronted with a strong increase in the number of Asians who moved from East Africa to the UK in the late 1960s, the Commonwealth Immigrants Act 1968 provided that from then onwards ‘a British subject was free from immigration control only if he, or at least one of his parents or grandparents, was born, adopted, registered or naturalized in the United Kingdom’.

The UK’s effort to keep these persons out had the effect that this particular group of Asians in East Africa is the largest group of British nationals not having the right of abode anywhere in the world. Although still being citizens of the UK and Colonies, they were effectively without citizenship. Due to these law reforms Ms Kaur had lost her right of abode in the UK in 1968. She also did not possess ‘patriality’ (i.e. an ancestral connection to the UK), a condition subsequently imposed in the 1971 Immigration Act; only British subjects with patriality had a right of abode in the UK and were exempt from immigration control.

On 1 January 1973, at the same moment the 1971 Act came into force, the UK acceded to the European Economic Community. A declaration was added to the Accession Treaty which stated that only those with a right of abode in the UK were to be regarded as British nationals for the purposes of Community law.

In 1981, a new British Nationality Act was drafted which distinguished five different statuses: British citizens, British Dependent Territories citizens, British Overseas citizens, British subjects and British protected persons. In practice this meant that ‘citizens of the UK and colonies’ who met the condition of patriality became British citizens. ‘Citizens of the UK and colonies’ who lived, for example, in Gibraltar and the Falkland Islands became British Dependent Territories citizens. Following the British Overseas Territories Act 2002 this group, which is now referred to as British Overseas Territories Citizens, has full access to British citizenship. Ms Kaur, however, became a British Overseas citizen under the 1981 Act. This group did not have the right of abode in the UK.

The amended Nationality Act also made the UK decide to issue a new declaration on who were to be regarded as British nationals for the purposes of Community law. The latter declaration of 1982 replaced the one of 1972 but was of the same tenor. Ms Kaur, a British Overseas citizen not having the right of abode in the UK, applied for leave to remain in the UK after several temporary periods of residence there. This application was refused, but the High Court, to which she turned for judicial review of the decision, asked the CJEU for a preliminary ruling.

Ms Kaur claimed that British law infringed fundamental rights by depriving British nationals in a situation as herself of the right to enter the territory of which they were nationals, or of rendering them effectively stateless. She referred to Micheletti when claiming that a State can only define the concept of national if it has due regard to Community law. This implied, in her view, the observance of fundamental rights. In addition, she disputed the relevance of the British declarations. The UK and others took the view that, under international law, each State alone can determine the categories of persons that it regards as its nationals. The UK also stressed the importance of its declarations in the light of its colonial past.

The Court upheld the validity of the British practice to define, in the light of its colonial past, several categories of British citizens and to confer differing rights on these categories according to their varying ties to the UK. As for the 1972 and 1982 declarations, the Court held that these did not have the effect of depriving anyone of rights under Community law. Rather, these rights had never arisen in the first place. The national court was thus told to refer to the 1982 declaration in determining whether a person was a British citizen for the purposes of Community law.

Author: Dr. Olivier Vonk