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British Overseas Nationals and the Australian Dual Citizenship Crisis
| Alexander Finch

British Overseas Nationals and the Australian Dual Citizenship Crisis

Nick Xenophon, a crossbench Australian senator, is referring himself to the Australian High Court after it was revealed he may be a British Overseas citizen...

Nick Xenophon, a crossbench Australian senator, is referring himself to the Australian High Court after it was revealed he may be a British Overseas citizen, an obscure form of British nationality which gives limited rights.
The issue is the Australian Constitution which prevents senators from holding dual citizenship.  Section 44 provides that:
…any person who -
(i.) is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power…
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Mr. Xenophon’s case is the most recent of several in which Australian senators have been revealed as potentially holding other nationalities. To a nationality lawyer, the explanations given look familiar. Read a recent article discussing this citizenship crisis here.
It is often assumed that if you have never held a British passport or applied for any form of British nationality, you cannot be a British national. Other misconceptions are that you will lose British nationality by failing to renew your passport, or by naturalising in another country.  In fact, none of these will be sufficient to shake off British nationality, if acquired.
For example, a person born in Australia whose father was born in the UK before 1983, will almost invariably be a British citizen today.  The only exceptions would be if, at the time of the father’s birth in the UK, their father was a foreign diplomat, or if there had ever been formal deprivation proceedings (extremely rare) against the father or the person, or if they had made a formal declaration of renunciation which had been accepted and registered by the UK Home Office.  As a matter of British nationality law, then, they would be a British citizen even if any of the following were true:
  • the UK-born father’s stay in the UK had been short or precarious
  • the UK-born father never held a British passport and/or never knew he was or might be a British citizen
  • the UK-born father had fought in a war against the UK (assuming no deprivation proceedings took place)
  • the Australian-born person never held a British passport and/or never knew they were or might be a British citizen
  • the Australian-born person naturalised in another country
  • the Australian-born person formally and publicly renounced any other nationality or allegiance (except where that renunciation was made to the UK Home Office and formally registered)
Mr. Xenophon has stated that his nationality status, that of a British Overseas citizen, gives no right to vote or live in the UK.  That is correct. For the purposes of section 44 of the Constitution, it would appear to be enough that he is a “subject or a citizen” of the UK.
British Overseas citizens are British nationals and are entitled to hold a British passport. This allows them to access diplomatic and consular protection from British overseas posts. They do not have right of abode, however, and will require a visa in order to live and work in the UK.  They are legally subject to administrative removal or deportation from the UK under the same conditions as other foreign nationals.  British Overseas citizens enjoy some minor immigration advantages; for example, if they are once granted indefinite leave to remain in the UK, they may be readmitted to that status under paragraph 17 of the Immigration Rules regardless of how long they have been away (normally the status is lost after two years’ absence).  But in most respects a British Overseas citizen is in just the same position as someone who is an Australian citizen only.
As to the right to vote, a British Overseas citizen residing in Australia would not, in general, have the right to vote unless they reside in the UK and hold valid leave to remain (a visa).  In this respect, they are again in the same position as Australian citizens.
Some British nationality scenarios for Australians of British descent
A person born outside the UK (e.g. Australia) from 1983 onwards whose mother or father (subject to the laws on legitimacy) was born in the UK will be a British citizen today.
Two complications that sometimes arise relate to (1) those born before 1983 to UK-born mothers and (2) those deriving a claim through their UK-born father where the parents were not married at the time of the birth.
1.For births outside the UK prior to 1983, British nationality could only descend automatically through the male line.  Thus, a person born in Australia before 1983 whose mother was born in the UK, and whose father was not, will not be a British citizen unless they have made a formal application to the UK Home Office to register as a British citizen. They will not actually acquire the nationality until the date of their citizenship ceremony, at which they will give an oath or affirmation of allegiance.  Assuming they are an Australian and therefore a Commonwealth citizen, they will have the “right of abode” through their mother, however, this is not a nationality but an immigration status and would not appear to engage section 44 of the Constitution. 
2. For births taking place in Australia before 1 July 2006, where the biological father (born in the UK) was not married to the mother at the time of the birth, the nationality status of the child can sometimes be unclear and can depend on the question of the biological father’s domicile at the time of the birth.  The biological father can be treated as the father if (inter alia) in the law of the place of his domicile at the time of the birth, post-birth marriage of the natural parents served to legitimate the child.  This requires looking both at the domicile of the biological father, and the date of abolition of the concept of legitimacy in local jurisdictions.
An individual can hold British nationality without ever having held a British passport.  In most cases, once British nationality is held, it is never lost. Hence there may be a large number of British nationals who are unaware of their status.  You can obtain some basic information from the UK government website here. For more complex cases you may need to consult a legal adviser.