Annex A – British nationality law: subjects, citizens and protected persons
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English law has always distinguished between the Monarch’s subjects and aliens.19 Until 1914 British nationality law was uncodified. The British Nationality and Status of Aliens Act 1914 codified existing common law and statute. Before 1949 birth within the Crown’s dominions20 automatically conferred British subject status.21
British subject status
The British Nationality and Status of Aliens Act 1914 came into force on 1 January 1915. British subject status was acquired in a variety of ways, including through:
- birth within His Majesty’s dominions;
- naturalisation in the United Kingdom or a part of His Majesty’s dominions which had adopted Imperial naturalisation criteria; and
- descent through the legitimate male line. (This was limited to one generation, although further legislation in 1922 allowed subsequent generations born overseas to be registered as British subjects within one year of birth.)
Under section 2 of the British Nationality and Status of Aliens Act 1943, a person born in a place where, at the time of their birth, the Crown was exercising jurisdiction over British subjects, was deemed to be (and always to have been) a natural-born British subject, if at the time of their birth their father was a British subject.
The British Nationality Act 194822 provided for a new status of ‘Citizen of the United Kingdom and Colonies’ (CUKC), consisting of all those British subjects who had a close relationship (either through birth or descent) with the UK and its colonies. Under this Act, CUKC status was acquired through:
- birth in the UK or a colony (except for the children of ‘enemy aliens’ and diplomats);
- naturalisation or registration in the UK or a colony or protectorate; and
- legitimate descent from a CUKC father for children born elsewhere.
British protected person status
British protected person (BPP) status is not traditionally considered a form of British nationality. The term ‘British protected person’ emerged during the 1800s as a result of extending imperial protection to people and places outside the Crown’s dominions. Persons indigenous to a protectorate, and subjects of the local ruler in a protected state, became known as BPPs. At that time this status was conferred under the Royal Prerogative.23
Section 32(1) of the British Nationality Act 1948 put BPP status on a statutory footing and that Act also gave the Home Secretary authority to define, by Order-in-Council, who should be BPPs. The 1949 British Protectorates, Protected States and Protected Persons Order did not confer statutory BPP status on all those who had previously been recognised as BPPs. The status of BPP by Royal Prerogative continued to exist (and in some circumstances, may still be conferred), alongside the new statutory status, with the Crown continuing to accept international responsibility for those who had BPP status by Royal Prerogative.
The Crown’s dominions
Certain parts of the British Empire were under British protection but did not become part of the Crown’s dominions. These included:
- protected states;
- protectorates;
- mandated territories – for which Britain was given administrative responsibility by the League of Nations; and
- trust territories – similar to mandated territories, under the responsibility of the United Nations after 1945.
Protected states and protectorates
Protected states were places in which there was a properly organised internal government and Britain controlled only the state’s external affairs. Protectorates were protected territories in which there was no properly organised internal government, and Britain controlled not only external matters (such as the protectorate’s defence and foreign relations), but also established an internal administration. The extent of the Crown’s involvement in a protectorate was similar to its involvement in a colony but the territories concerned were not brought formally within the Crown’s dominions.
Birth in a protectorate or protected state: subjects and citizens
As protectorates and protected states were ‘foreign’ soil, birth in such a place could not, in general, confer British subject status (before 1949) or CUKC status (from 1949).
Most people connected with protectorates and protected states did not acquire British subject status, although there were some exceptions; for example, persons born in a protectorate and some protected states with a British subject father were British subjects by birth.24 And, governors of protectorates and some protected states had the right to register or naturalise persons as CUKCs by virtue of a connection to that protectorate or protected state.25
In Motala and another v Attorney-General [1991] 3 WLR 903 the Lords held that:
‘A person born in a British Protectorate was a British protected person by reason of s.32(1) British Nationality Act 1948 read in conjunction with s.9(1)(a) British Protectorates, Protected States and Protected Persons Order in Council 1940 SI.140. That status differed from that of a citizen of the UK and Colonies but one status added nothing to the other and it did not follow that one status was inconsistent with the other. Persons could be both citizens by descent and protected persons by birth.’
Britain’s relationship with Malaysia
Britain has a long-standing relationship with Malaysia. Under the Treaty of Federation of July 1895, the Federated Malay States of Perak, Selangor, Pahang and Negeri Sembilan placed themselves under British protection and became known as the Protected Malay States, to be administered by the British Government.
Until 1946 the administration of the Malay Peninsula under British rule was split amongst the British colony (the Straits settlements – Penang, Malacca and Singapore); the Federated Malay States, with central administration in Kuala Lumpar; and the five unfederated Malay states (Johor, Kedah, Kelantan, Perlis and Terengganu), each a separate British protected state.
The British Protectorates, Protected States and Protected Persons Order 1949/140 formally identified the Malay states of Johor, Pahang, Negeri Sembilan, Selangor, Perak and Kedah as protected states. The Crown did not exercise extra-territorial jurisdiction26 over these Malay states27 (except during the period 1 April 1946 to 31 January 1948). On 31 August 1957 the Malay states ceased to be protected states.28
- Under UK law, the term ‘alien’ is defined by exclusion: any individual who is neither a British citizen, nor a member of any one of several non-citizen ‘privileged’ groups in the UK, is considered an alien. The term ‘alien’ itself is ordinarily used to refer to a foreign national present in the UK.
- The term ‘Crown’s dominions’ referred to all territories over which the British Crown had sovereignty or ‘dominion’. All of the states and territories of the Empire came within the Crown’s dominions excluding foreign states, whether protected or not, protectorates, mandated/trust territories.
- Section 1(1)(a) of the British Nationality and Status of Aliens Act 1914. See the UK Border Agency website nationality instructions section for further information.
- Until 1948 all Commonwealth countries, with the exception of the Irish Free State, had a single nationality status: ‘British subject’. It was decided that the UK and the self-governing dominions would each adopt separate national citizenships, but retain the common status of British subject.
- The Royal Prerogative is a body of customary authority, privilege, and immunity, recognised in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the King or Queen alone.
- Section 2(1) of the British Nationality and Status of Aliens Act 1943.
- Sections 8 and 10 of the British Nationality Act 1948.
- The legal ability of a government to exercise authority beyond its normal boundaries.
- There is dispute between the Foreign and Commonwealth Office and the UK Border Agency about this point. We have taken the dates for when the Crown exercised extra-territorial jurisdiction over the Malay States from the UK Border Agency website.
- See the UK Border Agency website section on protectorates and protected states for further information.
