JCWI’S Citizenship Review submissions
About the Joint Council for the Welfare of Immigrants
The Joint Council for the Welfare of Immigrants is an independent, voluntary
organisation working in the field of immigration, asylum and nationality law and policy.
Established in 1967, JCWI provides legally aided immigration advice to migrants and
actively lobbies and campaigns for changes in immigration and asylum law and practice.
Its mission is to eliminate discrimination in this sphere and to promote the welfare of
migrants within a human rights framework.
Introduction and overview
JCWI welcomes this opportunity to participate in this review. This paper deals with the
issues raised by the terms of reference for the Citizenship Review from the perspective of
JCWI’s expertise in nationality, human rights, and immigration law.
Our paper is structured in the following way. In part one we identify the principles that
we believe nationality laws, and therefore British citizenship should be grounded in. We
assert that nationality laws should be constructed within a human rights framework and
should reflect a commitment to the establishment of one single nationality, democratic
inclusion and ‘migrant stake holding’. We believe that through the application of this
framework migrants will not only be encouraged to apply for naturalisation as a result of
enhanced rights protection, but that such an approach can fulfil the Government’s
primary objective of attaining ‘social cohesion’ and the establishment of a more active
sense of citizenship through engendering greater societal participation by migrants.
In part two we apply the above principles, together with our expertise on nationality to
identify the basic legal rights and responsibilities that should be associated with British
citizenship. We identify these as a. the right of abode, b. the guarantee of life long
citizenship (save for in cases of fraud or threats to the vital interests of the state), c. the
right to diplomatic protection, d. the right to consular protection, e. the right to a passport,
f. the unrestricted right to participate in national life and g. the duty of allegiance and
civic responsibility. Many of these rights do not presently attach to British citizenship.
In part three we consider the difference between the different categories of nationality.
1
We note that the denial of the right of abode to those categories other than British citizens
is not compatible with human rights standards, specifically Article 3 of Protocol 4. We
recommend the restoration of the right of abode for the categories concerned. In the
event that this is considered to be unpersuasive on the basis of ‘floodgates’ arguments we
suggest a registration system which could provide the Government with a mechanism
through which to regulate numbers.
In part four we focus on the naturalisation process. We argue that the Government’s
present approach to the attainment of social cohesion through the use of the naturalisation
process is unlikely so succeed because it is based on a series of incorrect assumptions.
We believe that it is instead likely to generate excluded and ‘failed citizens’ as well as
discouraging migrants from applying for naturalisation. This is not only problematic from
the point of view of social cohesion, but also from the point of democratic legitimacy as
large numbers of migrants will remain outside of British democracy.
We go on to argue that if the Government is to achieve social cohesion it will need to
engender a true sense of belonging in migrants. We posit that this can only be achieved if
(i) there is a genuine acceptance that the responsibility for social cohesion is shared by
migrants, the state and the wider community, (ii) the myth of a homogenous British
identity and set of values is dislodged from political discourse, (iii) migrants are provided
with institutional and cultural recognition and (iv) migrants are actively encouraged to
participate in all societal institutions. One of the key societal institutions is democracy.
As British citizens are one of the few categories of individual who are able to vote and
participate in democracy we believe that nationality laws must be framed so that they are
compatible with the above principles and are sufficiently easy for ordinary migrants to
fulfil quickly and easily.
We go on to make a series of recommendations about current naturalisation laws and
future policy initiatives on the basis of our principles. Specifically we recommend (i) the
establishment of a right to naturalisation where the criteria the Government enact are
fulfilled; (ii) a reduction in naturalisation/indefinite leave to remain (ILR) fees together
with the availability of free test texts; (iii) the modification of English language testing so
that it is; confined to basic conversational skills, made more flexible in the way
knowledge can be evidenced and in its overall operation through the extension of
exemptions for those individuals with a ‘subjective claim to nationality’; (iv) the
abolition of societal knowledge testing; (v) the introduction of a statutory definition of
‘good character’; (vi) the introduction of measures to facilitate access to naturalisation for
those individuals with a subjective claim to nationality; (vii) the inclusion of residence
periods of EEA nationals and their families in EU member states for the purpose of
residence requirements and (viii) the establishment of a statutory right of review to the
Administrative Court in relation to naturalisation decisions.
2
In relation to future proposals on naturalisation, we argue that the Government’s
proposals on foreign national prisoners contained within part 12 of the Criminal Justice
and Immigration Bill together with those relating to good character outlined by the Home
Secretary are inconsistent with the standards sets out in the common standards contained
1997 European Convention on Nationality. They should in our view therefore be
scrapped. As to any proposed points based system for naturalisation, we assert that whilst
we do not object to the establishment of such a system per se, we believe that it must be
grounded within the principles identified above, and must be capable of fulfilment by
ordinary migrants. We adopt our previous criticisms of the current requirements in so far
as they would be applicable to the points based system and explain why the accrual of
points for wealth and volunteering are problematic from the perspective of equality,
democracy and fulfilment by ordinary migrants.
1. General principles governing the construction of British Citizenship
and nationality laws in the UK
The four principles that we believe nationality laws in the UK should be grounded are as
follows1:
1.Nationality laws should be constructed within a human rights framework and
should therefore embody the principles of; respect for rule of law, dignity,
proportionality, and a commitment to equality
The above principles are reflected within a number of international human rights
instruments. The key standards can be found within:




The European Convention on Human Rights including Protocol 4;2
The 1997 European Convention on Nationality;3
The 1948 Universal Declaration of Human Rights;3
The 1961 Convention on the Reduction of Statelessness.5
1. See Baubock, Rayner and Bernhard Perchining ‘Evaluation and recommendations’ in Baubock et al (eds) Acquisition and Loss of
Nationality Volume 1: Comparative Analyses Policies and Trends in 15 European Countries’ Amsterdam: Amsterdam University
Press , 2006 p.431-476 for principles 1, 3 and 4.
2. The UK has signed, collaborated in drafting and pleaded but not ratified Protocol 4 of ECHR. We recommend that it should.
3. The UK has neither signed nor ratified the 1997 European Convention on Nationality. We recommend that it should.
4. Adopted on 10.12.48 by the UN General Assembly.
5. The UK signed, and ratified this convention on 29.03.66.
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2. There should be a commitment to the establishment of a single nationality
By way of extension of the above principles JCWI are committed to the establishment of
one single nationality with a corresponding set of equal rights and duties for its holders.
3. Nationality laws should display a commitment to democratic inclusion
JCWI believe in the principle of democratic inclusion. This requires that all long term
immigrants and their descendants should have genuine access to nationality and therefore
British citizenship with a view to ultimately securing meaningful participation in British
society.
4. Nationality and related laws should reflect a principle of stake holding
In view of globalisation and the extensive migratory movements that routinely take place
in this day and age, JCWI believe in a principle of ‘stake holding’. Stake holding
acknowledges that migrants as well as their countries of origin have a legitimate interest
in retaining legal and political ties across international borders.
2. The Substantive content of British citizenship
The Governance of Great Britain Green Paper appears to deal with two separate but
related issues.6 Firstly it seems to deal specifically with rights and duties that should
attach to British nationality, specifically ‘British citizenship’. Secondly it deals with the
question of a British Bill of Rights. In relation to the second issue, it is unclear precisely
what is meant by a ‘British Bill of Rights’, what is meant by the ‘duties’ referred to, or
precisely to whom this is intended to apply. These matters would therefore need to be
clarified before JCWI could comment upon any aspect of them.
In relation to the first issue, which is undoubtedly linked to the second, from the
perspective of our associated principles and our understanding of the nature of
nationality, we believe that the following rights (in addition to those under EC law and
the HRA 1998) and duties should attach to British Citizenship.7
6. See Ch. 4 ‘Britain’s future: the citizen and state’ in CM 7170 ‘Governance of Britain’. There is some ambiguity about precisely
what the paper means and whether it s treating citizenship as a political concept or as a status. We are assuming that whilst it may
also intend to deal with it as a political concept that it also deals with it as a status as it specifically refers to those who ‘receive
citizenship’ at para.186 and discusses the changes that have been made to nationality laws.
7. This formulation is broadly drawn from British Nationality the Report of a Working Party Justice, London 1980 p.4.
4
1. The right of abode
JCWI believe that the Government should not be permitted to expel either directly or
indirectly through for example ‘constructive removal’ any British citizen. Similarly the
state should not be permitted to deprive any national of the right to enter the UK. 8 Whilst
the technical right in law to some extent exists9, in fact research shows that British citizen
children are, and have regularly been constructively (and possibly forcibly) removed
from the UK. This practice typically occurs in circumstances where the British citizen
child has a foreign, and British citizen or resident parent who no longer wants either the
partner or child and will not support their residence in the UK and (i) the foreign parent is
removed from the UK (as there is no provision in law to require that the parent is granted
leave; the child is also obviously expelled informally as there is no one to care for them
in the UK) or (ii) the British citizen child cannot support itself, and therefore continue to
reside in the UK (due to the operation of the welfare system which treats British children
as adjuncts of their foreign parents who are excluded from such support).10
The above is problematic. Put simply, it leads to a situation where certain British citizen
children do not possess the right of abode and the same entitlement as British children
with two British parents to be brought up in the UK. The effect of our recommendation
would therefore bring the UK into line with the standards referred to above and embodied
within Article 3 of Protocol 4. 11
2. The guarantee of life long British citizenship (save for in cases of fraud or threats
to the vital interests of the state)
JCWI believe that the Government should guarantee life long citizenship to British
citizens save for in cases of fraudulent acquisition of British Citizenship,11or in cases
where it is established that a citizen represents a threat to the vital interests of the State
and they would not, as a result of deprivation of nationality be made stateless.12 In the
latter case, the state should still be precluded from expelling a national.13
8. This reflects Article 3 of Protocol 4 of the 1950 European Convention on Human Rights. Article 3(1) of the Fourth Protocol of the
European Convention on Human Rights, provides that “No one shall be expelled, by means of individual or of a collective measure,
from the territory of the State of which he is a national.” Article 3(2) provides “No one shall be deprived of the right to enter the
territory of the State of which he is a national”.
9. See S.1-2 Immigration Act 1971.
10.Sawyer Caroline ‘Not Every Child Matters: the UK’s Expulsion of British Citizens’ The International Journal of Children’s Rights
Vol.14 p157-185, 2006.
11. British legislation presently permits the deprivation of nationality in circumstances where (i)this was acquired by registration or
naturalisation using fraud, false representations or concealing material facts; and (ii) in cases of dual nationals where such action is
considered to be ‘conducive to the public good’. This is fined by reference to the Government’s list of unacceptable behaviours. See
S. 40 of the British Nationality Act 1981, as amended by section 40A of the Nationality Immigration and Asylum Act, and most
recently, s 56 of the IANA 2006.
12. Our views are based on the requirements contained within Art.7(d) and Article 7(b) European Convention on Nationality 1997.
13. See footnote 8. The textual debates leading up to Article 3 and Protocol 4 establish that there was general agreement that states
should be forbidden from depriving a national of their nationality for the purpose of expulsion. For a discussion on this see Mole, N
‘Multiple Nationality and the European Convention on Human Rights’ paper delivered at the 2 nd European Conference on Nationality,
Strasbourg
8-9
October
2001
available
at
http://www.coe.int/t/e/legal_affairs/legal_cooperation/foreigners_and_citizens/nationality/conferences/Conference%202%20(2001)Pr
oceedings.pdf p.138.
5
We note with great concern that the Government took a conscious decision in enacting
section 56 of the Immigration, Asylum and Nationality Act 2006 to depart from the
previous ‘vital interests test’ which appears in Article 7 of the European Convention on
Nationality, and to also depart from the standards contained within Article 3 of Protocol
4 of ECHR. We would recommend that the Government reconsider this in the context of
its deliberations on the rights attaching to British citizenship. Certainly from the
perspective of the Government’s objective of securing social cohesion, active citizenship
and the generation of a sense of membership, this is problematic because it creates in law
a form of second class citizenship and in so doing communicates to its recipients that
they are not true members of British society.
3. The right to diplomatic protection
Given that nationality denotes a ‘legal bond between a person and a State…’14, given our
principle of commitment to human dignity, and in view of the level and extent of
migration in today’s globalised world, JCWI believes that there should be a legal duty
on the state to exercise diplomatic protection.15 This should be an enforceable right and
apply in circumstances where (i) this is requested (ii) individuals are not able to bring a
claim before a competent tribunal or court and (iii) the injury to which the claim relates
results from a grave breach of a jus cogens norm attributable to another State. 16 The
state should only be relieved of such an obligation in limited circumstances.17
4. The right to Consular Protection
The above rationale extends to the provision of consular protection.18 Specifically JCWI
believe that the Government should guarantee a set of legally enforceable consular rights
available to nationals abroad.19 We would suggest, partially in line with current British
14.See Article 2 of the 1997 European Convention on Nationality.
15. Diplomatic protection is defined in Article 3 of the Vienna Convention on Diplomatic Relations 1961 as 'the protection by a
diplomatic mission in the receiving state [of] the interests of the sending State and of its nationals, within the limits permitted by
international law’ with its exercise be regarded as a discretionary right. British policy in relation to its provision was set out at para 98
of the court's judgment in R (on the application of Abassi and another) v Secretary of State for Foreign and Commonwealth Affairs
[2002] EWCA Civ 1598 U.K.H.R.R. 76(CA (Civ Div)) It was described as being predicated upon a ‘clear acceptance …of a role in
relation to protecting the rights of British Citizens abroad, where there is evidence of miscarriage or denial of justice…’ . ‘…[which]
can be said to give rise to a legitimate ‘expectation of every citizen' that, if subjected abroad to a violation of a fundamental right [or a
miscarriage of justice], the British Government will not simply wash their hands of the matter and abandon him to his fate’ .
16. JCWI’s formulation is based upon the recommendations of Professor John Duggard, Special Rapporteur on diplomatic protection
for the International Law Commission. Specifically see what was draft Article 4 (1) of First Report on Diplomatic protection (2000)
available at http://untreaty.un.org/ilc/sessions/52/52sess.htm
17. John Duggard recommended that the state should only be relieved of such an obligation where the exercise of this would a.
endanger the overriding interest of the state and/or its people (b) Another state exercises diplomatic protection on behalf of the Citizen
(c) the injured person does not have effective and dominant nationality of the UK.
18.Consular protection refers to the support and assistance provided by consulates to their nationals abroad when they require
assistance. The 1963 Vienna Convention largely leaves the provision of such assistance to the discretion of states.
19. As above we would suggest that the state should only be relieved of such an obligation where the exercise of this would a.
endanger the overriding interest of the state and/or its people (b) Another state exercises this responsibility on behalf of the person (c)
the citizen does not have effective and dominant nationality of the UK.
6
policy,20 and the implications that flow from the 1963 Vienna Convention the following:
 The right to communicate with consular officials;
 The right upon request to a visit from consular officials subject to the laws of the
receiving state and subject to consular staff safety;
 The right to a replacement passport;
 The right to information about the local legal system and details of interpreters;
 The right to expect the Government to make representations to authorities in the
event that such individuals are not treated in accordance with international human
rights standards subject to limited exceptions referred to above in the context of
diplomatic protection.21
5. The right to a passport
The internationally recognised right to leave any country, including an individuals own
country22 together with the right of abode requires in practical terms that British citizens
should be entitled to a passport. Presently this right does not exist and the matter
continues to remain one of prerogative power. JCWI believes that this stance is
increasingly difficult to justify and arguably contrary to requirements in EC law.23 It
should also be noted that the existence of this prerogative power in so far as it relates to
British Citizens is anomalous given that British Nationals Overseas who possess no right
of abode, possess a right to a passport.
6. The unrestricted right to participate in full national life
British citizenship should of course bring with it parity of civic rights and obligations
such as jury service, equal franchise, and the right to stand for election to public office
7. Duty of allegiance and civic responsibility
Applying the principles identified above, JCWI believe that that all British Citizens
should possess a duty of allegiance and civic responsibility.
20. British policy is set out in Support for British nationals abroad: A guide Foreign and Commonwealth Office Publications available
at www.fco.gov.uk/Files/kfile/consularfullguide,2.pdf.The policy is to assist British nationals, and dual British nationals when
traveling on their passports. See p.5, 22, and 23 for further details.
21. British policy is to ‘consider approaching the local authorities if [individuals are not treated in line with internationally accepted
standards’ Support for British nationals abroad: A guide Foreign and Commonwealth Office Publications available at
www.fco.gov.uk/Files/kfile/consularfullguide,2.pdf p.23.
22. See Article 12 (2) International Covenant on Civil and Political Rights (1966).
23. See Article 4 (2) of Directive 2004/58/EC which provides a right of exit. Specifically this provides that ‘Member States shall,
acting in accordance with their laws, issue to their own nationals, and renew an identity card or passport stating their nationality’.
7
3. The differences between the different categories of British
nationality24
There are presently six categories of British nationality. These are as follows; British
Citizens, British Overseas Citizens, British Subjects, British Protected Persons, British
Nationals (Overseas) and British Overseas Territories Citizens.25
Under domestic law, British nationals, other than British citizens, do not enjoy the
automatic right of abode under section 2(1) of the Immigration Act 1971. The right of
abode confers freedom to live in and to come and go from the United Kingdom.
In the light of the above British nationals other than British citizens do not enjoy the basic
rights and entitlements, consistent with holding the nationality of a country, as provided
for in the international human rights instruments governing nationality law. Specifically
the law of the United Kingdom is not in conformity with standards contained within
Article 3(2) of the Fourth Protocol of the European Convention on Human Rights.26
We therefore recommend that the right of abode should be restored to the aforementioned
classes of British nationality. Without wishing to rehearse historic debates, the list of
classes of British nationality reflects choices by Government and Parliament to continue
to recognise groups of persons as belonging to Britain. Otherwise, in the context of the
post-war independence movement, the nationality of these groups of persons would have
become the domestic legislative preserve of independent Commonwealth states. Those
classes of British nationality, other than British citizenship, now existing, reflect choices
already made by Government and Parliament. The continuing sense of belonging to
Britain, occasioned by these choices, is reflected in the long list of criminal offences that
can be committed overseas, over which English courts have jurisdiction to charge British
nationals as opposed to other third country nationals.
JCWI believes that the continuing arguments against aligning British nationality with the
contemporary international human rights framework are wholly unpersuasive. It is to be
recalled that the numbers of persons who might exercise the right of abode are not
significant, not least when measured against EEA nationals and their family members
(including those from the eastern European states) who have, may exercise, or have
exercised the right to reside in the UK. In particular there can be no British Subjects from
Eire (now the Republic of Ireland) who would gain as they already have the right to
reside. Thereafter, British Subjects from territories that now form India and Pakistan are a
statistically negligible group. The same is true for British Overseas Citizens from Penang
and Malacca. In respect of British Overseas Citizens from east African countries, the
restoration of the right of abode would have the added benefit of contributing to the
24. The content for this section has been drafted by Adrian Berry, barrister, Garden Court Chambers, London.
25. The effect of the British Overseas Territories Act 2002 has been noted in respect of British Overseas Territories Citizens.
26. See Article 3(2) of Protocol 4 referred to above at footnote 8. Other international treaties such as the International Convention on
the Elimination of All Forms of Racial Discrimination (Article 5) also refer to the right to enter and leave one’s country as a civil
right.
8
social integration of those so-called east African Asians already settled in the UK. The
same is also true for British Protected Persons from Africa and elsewhere. For British
Nationals (Overseas), the restoration of the right of abode would settle the lives of
persons, not usually ethnically Chinese, who have been left without a place to which they
belong. Finally, the restoration of the right of abode to British Overseas Territories
citizens would remove the distinction between those who became British citizens on 21
May 2002 (and their descendants) and those who acquire British Overseas Territories
citizenship thereafter.
More generally, maintenance of the status quo is simply not conducive from the point of
view of social cohesion and engendering a true sense of belonging in the UK. It should
after all be noted that those who hold British nationality, other than British citizenship,
belong to ethnic and cultural groups of people who have their analogue among persons
settled in the UK who have become British citizens. For every entrepreneurial so-called
east African Asian who has become a business success story in the UK since the 1970s,
there is a British Overseas citizen overseas who forms part of his or her social and
cultural world. The restoration of the right of abode to these classes of British
nationality, and the righting of a historical wrong, sends a signal to those British citizens
drawn from the same ethnic and cultural groups in the UK, that belonging to Britain,
means equal entitlement to live and work in the UK for all those who are British. It
makes a positive contribution to promoting a model of citizenship that promotes social
cohesion in the context of recognising the trans-national circumstances in which these
classes of British nationals find themselves.
If the Government was not persuaded to simply restore the right of abode to these British
nationals but saw some force in the arguments in favour of doing so, it could create a
means by which British nationals could register for the right of abode by entitlement.
Thus, those who wished to exercise the right of abode could do so while those who
wished to forgo the right need do nothing. In addition, such a mechanism for registration
could be the subject either (a) of primary legislation repealable by order of the Secretary
of State, or (b) of secondary legislation. In such a way the Secretary of State could
monitor the numbers of persons exercising the right to register the right of abode and
could take steps to control numbers in the very unlikely event that excessive numbers of
British nationals emerged and sought the right of abode. In ordinary language, this would
provide a safeguard against ‘floodgates’ being breached. However we should emphasize
that we believe that the right of abode should be restored to the above categorises of
individual.
9
4. Naturalisation
In this section we consider the route to naturalisation for migrants as this was the focus of
the recent seminar held by Lord Goldsmith.27 We address this issue in the context of
current and future policy developments. We first look at the use of the naturalisation
process to achieve Government aims, and then make specific recommendations in
relation to existing naturalisation laws and future policy initiatives on the basis of our
principles identified above.
(i)The Government’s approach to social cohesion and the naturalisation process
There appears to be a perception by the Government that the values of migrants are at
variance with those espoused in liberal democracies. Migrants are increasingly
constructed in political discourse as threats to British national identity, and therefore to
the attainment of ‘social cohesion’.28 It is felt that that multicultural approaches to
immigration have failed, and whilst not directly stated, the Government appears to have
taken the view that the fundamental problem lies with migrants themselves.29
Viewed in the above light, Government policy has hitherto been constructed in a way that
focuses exclusively on changing migrant behaviour with a view to attaining social
cohesion and integration/assimilation. The contemporary obsession with nationality laws
and the naturalisation process is a reflection of this wider view. It is hoped that through
tinkering with naturalisation requirements the Government can socially engineer a
migrant behaviour with a view to establishing a new breed of integrated migrant citizen
who is committed to British language, liberal value systems, and British culture.
JCWI believe that the above perception, diagnosis of the problem, and therefore the
prescribed solution are seriously flawed. Firstly, whilst some migrants, may in the same
way as native citizens possess values that are inconsistent with liberal values a substantial
number do subscribe broadly to these value systems. Secondly, the lack of social
cohesion or integration cannot simply be reduced to the failure of migrants themselves, as
cohesion/integration is a two way process involving both migrants and the host
community. Thirdly, it is naïve to assume that enacting nationality and residence laws
which employ compulsion (i.e. compulsory testing, ceremonies and the imposition of
various stringent compulsory requirements) will be effective in attaining cohesion or
integration. Indeed at best, this is likely to achieve a very cosmetic cohesion and at worst
is likely to result in the very antithesis of what is essentially being sought here due to the
resulting exclusion of many individuals who are simply unable to fulfil the increasingly
exacting requirements.30
27. Seminar held in London on 09.11.07.
28. See comments in Byrne, Liam and Kelly, Ruth , A Common Place, Fabian society pamphlet at p8-16.
29. See Vasta, Ellie Accommodating diversity: why current critiques of multiculturalism miss the point, Centre on Migration Policy
and Society, Working Paper No. 53, Oxford University 2007 at p.3.
30. See current naturalisation test results for certain communities such as Bangladeshis, Afghans, Somalis etc referred to below.
10
JCWI believe that if the Government is genuinely committed to ‘social cohesion’ and
integration, it will need to engender in migrants a true sense of belonging and
membership in British society. This can only emerge if (i) it is accepted that the
responsibility for this lies not just with migrants but with the state and the wider
community, (ii) the myth of a homogenous static ‘British identity’ which brings with it
the associated myth of a homogenous static set of British values is dislodged from the
Government’s political discourse and it is acknowledged that both of these are, and
always have been fluid. (iii) migrants are provided with social and institutional cultural
recognition and (iv) migrants are actively encouraged to participate in all societal
institutions (this can be done in various ways including through eliminating
institutionalised discrimination for example).31
One of the key societal institutions is democracy. As British citizens are one of the few
categories of individual who are able to vote and stand for national elections, and
therefore fully participate in British democracy we believe that naturalisation laws should
be framed in a way that is sufficiently easy for ordinary migrants to fulfil quickly. To
do otherwise will simply create disincentives to naturalise, and result in the creation of
categories of excluded ‘failed citizens’. This in turn is not in the interests of ‘cohesion’,
plugging the economic and social integration deficits necessary for cohesion32, or for that
matter democratic legitimacy.
(ii) JCWI’s recommendations in relation to existing and future law and policy on
naturalisation
On the basis of our principles identified above, we have the following recommendations
to make:
1. There should be a right to naturalisation upon fulfilment of the naturalisation
criteria
Naturalisation is presently at the discretion of the Home Secretary33. As such, an
individual fulfilling all of the necessary legal requirements including the ‘good character
test’ may still have their application refused. JCWI believe that the principle of rule of
law requires that this anomaly is rectified, and that upon fulfilment of whatever legal
criteria the state enacts including for example good character tests, this should be
sufficient to provide an individual with an enforceable right to naturalisation.
31. Vasta, Ellie Accommodating diversity: why current critiques of multiculturalism miss the point, Centre on Migration Policy and
Society, Working Paper No. 53, Oxford University 2007 at p.25-35.
32. Indeed research in fact also establishes that that non naturalisation of foreign nationals actually often reinforces existing social and
economic integration deficits. See Baubock, Rayner and Bernhard Perchining ‘Evaluation and recommendations’ in Baubock et al
(eds) Acquisition and Loss of Nationality Volume 1: Comparative Analyses Policies and Trends in 15 European Countries’
Amsterdam: Amsterdam University Press , 2006.
33. Naturalisation is currently a discretionary power under S.6 of British Nationality Act 1981.
11
2.The current fees for naturalisation (and ILR) should be reduced and the text on
which any test is based should be available free of charge
The current fee for naturalisation lies between £665.00-£745.00.34 Many of our clients
complain that whilst they fulfil the legal requirements for naturalisation they are
precluded from securing it due to a lack of lack of funds resulting from low wages or
unemployment. This is problematic from the from the point of view of the principle of
rule of law and its embodiment within the European Convention on Nationality which
specifically requires fees to be set at a ‘reasonable level.’35
JCWI also notes that the fees scheme operates very rigidly and does not make any
allowance for special categories of individual who possess a subjective claim to
nationality such as spouses of British citizens, refugees or those born in the territory who
have resided here lawfully. The European Convention on Nationality specifically
recognises their unique position and requires that states ‘facilitate acquisition of
nationality’ for these and other categories.36 Its Explanatory Report refers to fees as one
possible means for achieving this. 37
3.Language testing for naturalisation and (ILR) should be modified to require only
a basic ability to communicate with other citizens in English and should be applied
flexibly
JCWI recognise that linguistic skills not only empower migrants but are an important
resource for both integration and participation of migrants both in democracy and society
more generally. Accordingly we support the proposition that migrants should learn
English and that their efforts should be adequately supported by the state. We have some
reservations as to whether the imposition of a specific compulsory requirement for the
purpose of naturalisation is the most effective way to achieve this. However if the
Government feel that it is, JCWI believe that it is important that such ‘testing’ should not
to operate as a disincentive to apply for naturalisation, nor end up creating excluded
classes of ‘failed citizens’, nor conflict with our principle of equality.
We are aware from our personal casework experience that a number of individuals do not
in fact even apply for naturalisation because of the language testing requirements.
Further, the ‘life in the UK’ test results show that the test does have exclusionary
tendencies for certain communities. They also show that it is also problematic from the
point of view of our principle of commitment to equality.
34. The fee for naturalisation for a single individual is £655.00 and £735.00 for an application by husband and wife. The text on
which the present test is based costs £9.99. The fee for indefinite leave to remain is £750.00 and £950.00 for the premium service.
35. See Article 13 (1) European Convention on Nationality 1997.
36. Article 6(4) European Convention on Nationality 1997 requires that naturalisation should be facilitated for spouses of its nationals;
children of one of its nationals, falling under the exception of Article 6, paragraph 1, sub-paragraph a; children one of whose parents
acquires or has acquired its nationality; children adopted by one of its nationals; persons who were born on its territory and reside
there lawfully and habitually; persons who are lawfully and habitually resident on its territory for a period of time beginning before
the age of 18, that period to be determined by the internal law of the State Party concerned; stateless persons and recognised refugees
lawfully and habitually resident on its territory.
37. See p.9 Explanatory Report to the European Convention on Nationality.
12
Test results38 for example reveal that approximately 52 % of Bangladeshis, 53% of
Afghans, 47% of Iraqis, 53 % Sri Lankans and 55% of Turkish nationals failed the
‘knowledge of language and life in the UK’ test. There are also a number of other
countries with low pass rates draw also from the African subcontinent. Whilst it may be
asserted that these failures are confined to only a small number of nationalities, the
important point to note is that a large number of test applicants are drawn from those
nationalities. For example 19, 696 out of a total of 345,904 tests were taken by Afghan
nationals, 8,1888 were taken by Bangladeshis, 13,136 were taken by Iraqis, 14,077 were
taken by Sri Lankans, 11,001 were taken by those from Turkey. Collectively these
countries account for 66,098 applications.
The better performers in these tests are often taken from those countries with lower
numbers of applicants. For example American Samoa, Comoros East Timor, Gibraltar ,
Liechtenstein, Malta, San Marino, the former USSR and Surinam all have 100% pass
rates but in fact collectively account for 59 out of the 345, 904 test results. Many of the
European states also tend to have extremely high pass rates, as do countries such as
Canada, Australia and the USA which also have relatively low numbers of individuals
sitting the tests. There are of course a variety of reasons accounting for the above,
including the availability of education in countries of origin, poverty, national languages
etc. However the upshot of the above is that this testing has disproportionate effects on
certain communities, and therefore on their ability to naturalise and secure the enhanced
rights protection naturalisation affords.
Accordingly in the light of the above we recommend the following:

The level of testing should be confined to basic conversational skills
Testing should be set at a basic level and confined to basic conversational
skills. This is not presently the case. A number of teachers who teach English
as a foreign language have contacted JCWI and expressed concern at the fact
that students who possess a sound conversational ability are simply not in a
position to take and pass the test given the level at which testing is set, and in
particular, the requirement for written skills.

The means of testing should be flexible
There should be flexibility in relation to the fulfilment of linguistic
requirements. This flexibility will encourage ordinary migrants to learn the
language in a way that is most compatible with their commitments,
circumstances and abilities. It should therefore be possible to fulfil the
requirements through any of the following; (a) attendance at classes, (b)
recognised certificate, (c) interview or (d) audio/written/on line testing.
38. Second Annual Report of the Advisory Board on Naturalisation and Integration April 2007-October 2007 p. 30-41.
13

There should be exemptions from testing
We believe that there should be exemptions from testing for four classes
of individual:
(i)
Existing classes who through age, or physical or mental
illness would struggle with the requirements;
(ii)
In line with the European Convention, those classes of
individual who posses a subjective claim nationality e.g.
spouses, people born in the territory who reside there
lawfully and habitually.39 We also believe that this should be
available to those individuals who are lawfully present and
have very lengthy periods of residence. 40
(iii)
Those individuals possessing any form of British nationality
other than British citizenship;
(iv)
Cases which display exceptional circumstances. 41
-

There should be adequate state support for the acquisition of language
skills
Migrants must be meaningfully supported in their efforts to learn English
language. As such, it is important that ample resources are committed to the
provision of language courses for migrants, and that employers are
incentivised to allow staff time off from work to attend classes and sit exams.
Without these safeguards certain categories of individual i.e. those who are
employed and work lengthy hours, or those employed with child care
responsibilities are unlikely as a result of their circumstances to be in a
position to learn.
4. Societal Knowledge testing (for naturalisation and indefinite leave to remain)
should be scrapped
Whilst language skills are an important prerequisite for integration and the creation of
common bonds, this is less obviously the case with societal knowledge testing. Indeed
the knowledge contained within these tests is not even shared amongst native citizens.
Whilst practical information about British institutions and ways of life may be included
in preparatory courses for naturalisation, in exactly the same way that it is currently
included in the national curriculum, JCWI do not believe that the absence of this
.
39. See Article 6(4) of the 1997 European Convention on Nationality
40-41 These are not in themselves classes of individual under the European Convention for whom naturalisation should be
facilitated. however the same subjective claim to nationality in the case of the former exists.
14
knowledge should lead to the exclusion of applicants from naturalisation and the
attendant rights that flow from it. Our concerns in relation to the exclusionary nature of
such tests are also applicable here. If however such testing is to continue, JCWI would
recommend:





Reference material should be made available to applicants free of charge;
The Government should provide funding to enable test preparation classes;
There should be the same flexibility in the way in which the test requirements
are fulfilled;
Employers should be required/incentivised to implement work based training
schemes and to allow employees to take time off to attend classes and sit
exams.
There should be exemptions based on the ‘subjective claim for nationality.’41
5. The Good Character requirement
JCWI believe that consistency with the principle of rule of law requires that the term
‘good character’ should be defined with precision. As it stands, the application of this
requirement leads to confusion and uncertainty on the part of applicants. Accordingly
JCWI recommends that there should be a clear statutory definition of the term. We
would suggest that the good character test should be fulfilled by applicants save for in
circumstances where individuals have (i) either been charged and convicted of a serious
unspent crime; or (ii) in circumstances where imperative grounds of public security exist
which mean that an individual should not be treated as possessing good character.42
In line with the European Convention on Nationality43 and our principle of democratic
inclusion, we believe that no long term resident within the territory should be excluded
altogether from the possibility of securing naturalisation, and as such, we would suggest
that the legislation clearly sets out graded waiting periods in circumstances where (i)
applies. Those individuals who possess a subjective link to the UK such as children born
or raised in the UK should however have unconditional access to naturalisation regardless
of the commission of any offences in the light of the approach of the European
Convention on Nationality. 44
41. See Article 6(4) of the 1997 European Convention on Nationality.
42. We have taken the wording from Article 28 of Directive 2004/38/EC which deals with expulsions.
43. Article 6(3) of the 1997 European Convention of Nationality – i.e. no one lawfully and habitually resident in the territory.
44. See Article 6(4) of the 1997 European Convention on Nationality.
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6. There should be facilitated access to British citizenship for categories of
individual who have a subjective claim to nationality
Currently British nationality laws only facilitate and provide preferential treatment in
relation to naturalisation for spouses or those who are in a civil partnership with a British
citizen. The European Convention on Nationality requires states to facilitate in its internal
law the acquisition of nationality not just for spouses but for other categories.45
Consideration should therefore be given to reducing the residence requirement to three
years for all of these categories of individual.
7. Residence periods in member states for European nationals and their family
members should be taken into account for the purpose of residence requirements
JCWI believe that exercising one’s freedom of movement within the European Union
should not diminish an individual’s opportunity to acquire the nationality of a particular
state. As such, in line with our principle of democratic inclusion and stake holding we
would recommend that periods of residence in other European countries are taken into
account in calculating the residence requirements for naturalisation. This could be done
in various ways. Less weight for example could be given to time spent residing in other
countries e.g. only half of that time could be counted.
8.There should be an adequate review mechanism in relation to naturalisation
decisions
The principle of rule of law requires that there should be an appropriate check on the
exercise of executive power. In a modern age as Lord Bingham points out 46, this means
unimpeded access to a court. Accordingly JCWI recommends that naturalisation
decisions should attract a right of statutory review to the Administrative Court. This
review mechanism should empower the court to decide for itself whether or not the
criteria for naturalisation have been met. It could be limited by the imposition of a
requirement on the applicant to obtain permission of the court to proceed with a full
review, which in turn would only be granted in circumstances where an individual is able
to establish the existence of a material error of law.47
45. Article 6(4) European Convention on Nationality 1997
46. Sir David Williams lecture on The Rule of Law
47. It would function in a similar way to judicial review.
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9. Part 12 of the Criminal Justice and Immigration Bill should be scrapped and the
proposals in relation to the clear period policy should be reconsidered
There are two salient proposals. Firstly part 12 of the Criminal Justice and Immigration
Bill introduces a status for those deemed to be ‘foreign national criminals’ together with
their family members. The status is indefinite and its effect is to preclude its recipients
from settling or indeed acquiring British Citizenship for the entirety of its duration.
Secondly it is proposed to abolish the longstanding ‘clear period policy’ that allows
foreign nationals with unspent convictions to become British. This in effect ‘means that
such individuals will ‘normally’ be refused citizenship on good character grounds.’ 48
In relation to the first proposal JCWI believes that Part 12 is problematic from the point
of the principle of democratic inclusion as it could effectively exclude thousands of
individuals from ever being in a position to vote, and from therefore ever participating in
national life for offences such as graffiti and theft. It is also inconsistent with the
standards contained within the European Convention on Nationality which specifically
require state parties to ‘provide in [their] internal law the possibility of naturalisation of
persons lawfully and habitually resident on [their] territory…’.49 Furthermore as Part 12
does not differentiate between categories of migrant, it is hardly consistent with the
requirement to grant certain categories of migrant with a subjective claim to nationality
facilitated access to nationality under the Convention50. At a minimum, these categories
should be exempted from the provisions. The same considerations also apply to the
second proposal, save of course that fewer numbers will be affected.
2. Any points based system for naturalisation should be grounded in the principles
referred to in part 1 of this paper
There is little detail about how this might operate, and as such is difficult to comment
meaningfully upon the proposal. Byrne and Kelly explain this system as one where
‘credits could be awarded for behaviour which shows commitment to Britain’.51 Credits
could therefore accrue for performance in language tests, demonstrating knowledge of
life in the UK, undertaking civic and voluntary work, and for those individuals who
proved to be a success in the labour market ‘demonstrated by high wages and therefore
larger tax payments’.52
JCWI do not in principle necessarily oppose the establishment of a points based system
as such, but we do believe that any system should be based upon the principles identified
above and must also be sufficiently easy for ordinary immigrants to fulfil in order to
secure easy access to nationality. Our comments in relation to language, and societal
48. This was announced at Home Secretary Jackie Smith’s speech ‘Shared protections, shared values: Next steps on migration at the
London School of Economics on 5 December 2007.
49. See Article 6(3) 1997 European Convention on Nationality. As the presence of such individuals is authorised by the state it is
arguably ‘lawful’ residence and therefore inconsistent with the relevant standard.
50. See Article 6(4) of the 1997 European Convention.
51. Kelly, Ruth and Byrne, Liam A Common Place, Fabian Society, 2007 p.35
52. Kelly, Ruth and Byrne, Liam A Common Place, Fabian Society, 2007 p.35
17
testing apply equally to any points based system.53In accordance our principles identified
above, JCWI would be deeply concerned by the proposition that the absence of wealth
should militate against an applicant for naturalisation. It is to be recalled that ultimately
the ability to participate fully in national life attaches to British citizenship through the
franchise. The accrual of points for wealth effectively resurrects a kind of regressive 19 th
century democracy where the franchise is directly linked to sex, wealth and property
ownership. Given for example that it is well established that women in the British labour
market on average earn 27% less than men, this requirement would ultimately be
problematic from the point of view of our principle of equality. 54
We also have some reservations about the introduction of points for volunteering. Whilst
this appears to be an innocuous enough and ostensibly positive requirement, it in fact
possess the potential to militate against many ordinary migrants, is unlikely to reflect the
value that many people bring to society, and is likely to be inconsistent with the principle
of equality. For example, the single mother of three on a low income would clearly
struggle in finding the time to volunteer. Ironically enough however she would be
making an extremely valid contribution to society through her employment and through
rearing the future labour force. The requirement would also be problematic for the elderly
and the disabled.
5. Incentivising long term resident to become British Citizens
(i) Why some migrants naturalise and others do not
There are a range of reasons that long term migrants do not naturalise. In many cases
naturalisation is seen as a complicated, costly and thus an unattractive proposition. In
other cases naturalisation will automatically lead to a loss of a migrant’s original
nationality. This may have serious repercussions for them in terms of their right of entry
to their original country of origin, property ownership, political rights and the ability to
retain familial and other ties in their countries of origin. In other cases where individuals
secure leave in the UK as a result of human rights abuses in their countries of origin, they
do not naturalise as they view residence in the UK as a temporary measure, and
ultimately hope to return to their countries of origin. There are also cases in which
individuals consider nationality to be integral to their identity and psychological make up.
As such they retain their original nationality as opposed to naturalising as British. In the
case of European nationals, many chose not to naturalise due to the extensive set of rights
that attach under EU law to their status.
53. For which see above.
54. Reported in BBC news on line at http://news.bbc.co.uk/1/hi/business/4195852.stm
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Conversely, in our experience there are a variety of reasons that migrants chose to
naturalise in the UK. These include:






Greater residential stability;
The acquisition of free movement rights within the EU;
The greater propensity to travel globally resulting from the possession of a
British passport;
The attainment of political rights;
The acquisition of a sense of membership and new identity;
The perceived protection they believe they will receive from the UK.
(ii) The Government’s proposals
The Green paper discuses the use of citizenship as a mechanism to bind, and create a
more cohesive British society. There is a suggestion the Government seek to encourage
and incentivise migrants to naturalise so long as this is done on its terms. There are of
course three none mutually exclusive ways in which this can be done:

Rights can be withdrawn from non naturalised migrants. Withdrawing rights to
public funds, unlimited access to employment, and even voting rights could be
one way of achieving this;55

A more extensive set of rights could attach to British citizenship through for
example a bill of rights that would only be applicable to British Citizens or
through simply attaching a more extensive set of rights to British Citizenship
status;

The naturalisation process could be simplified, made easy to fulfil by ordinary
migrants and consistent with our principles identified above.
(a) Withdrawing rights from non naturalised migrants
Whilst accepting that such an approach would no doubt encourage some ‘long term’
migrants to naturalise, JCWI would be deeply concerned by the prospect of any
withdrawal of rights from non naturalised migrants for the following reasons:
 It is likely to intensify the structural disadvantages that migrants encounter as a
result of alienage, and in so doing potentially damage social cohesion. As the
eminent Professors Marshall, and Morris note in their studies on both class and
immigration status:
55. Commonwealth citizens and Irish Citizens have the right to vote in British elections
19
‘status differences are legitimate provided they do not cut too deep, but occur
with a population united in a single civilisation. The extension of basic rights
and the struggle for a genuinely multicultural society are part of a process of
creating that single civilisation’.56
 It is likely to be harmful from the point of view of integration. Research shows
that employment rights and other social rights that are often attached to quasi
citizen status positively facilitate integration of migrants57;
 It would potentially conflict with our principle of stake holding as migrants would
indirectly be forced to abandon their nationalities due to the operation of
nationality laws in their countries. It could, if operating retrospectively also
conflict with the principle of rule of law given the expectations at the time of
receipt of the status
(b) Extending rights that are available to British Citizens
We have set out, on the basis of our expertise and knowledge of nationality and human
rights and international law some of the enhanced protections that we believe should
attach to British citizenship. This in our view is likely to incentivise individuals to apply
for naturalisation, particularly in the light of what we know about the reasons that
individuals chose to naturalise. Whilst we would certainly not oppose the attachment of
further rights to British citizenship through status or a bill of rights, and whilst we would
accept the proposition that this is would at least to some extent act as a further incentive
to naturalise, our concerns outlined above relating to acute status differences and their
ramifications for social cohesion also apply.
(c)Simplifying the naturalisation process so that it is easy to fulfil for ordinary
migrants and consistent with our principles.
In our experience derived from over 40 years of work, and contact with migrants, the
most effective way to encourage naturalisation for long term migrants would be to enact
fair laws that make it relatively quick and easy for migrants to fulfil the necessary
requirements. Put simply this could be done through grounding the naturalisation process
in the principles that we have suggested earlier in this paper.
________________________________________________
56. Morris Lydia, The control of rights the rights of workers asylum seekers under managed migration, A discussion paper
Immigration Rights Project (2004) p. 24.
57.Groenendijk, Kees The status of quasi- citizenship in the EU member states: Why some states have ‘almost citizens’ in Baubock,
Rainer et al Acquisition and Loss of Nationality Volume 1: Comparative Analyses Policies and Trends in 15 European Countries’
Amesterdam: Amesterdam University Press, 2006, p.428.
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