Chagos Nationality Bill and its Impact on British Nationality Law and Immigration

In January Henry Smith MP, the Conservative member for Crawley, presented the British Indian Ocean Territory (Citizenship) Bill 2018 – a private Member’s Bill that, if passed, would allow anyone that can prove that they are descended from a person born on the Chagos (known in UK law as the British Indian Ocean Territory) to register as a British overseas territories citizen.  Fragomen has worked pro bono with the UK Chagos Support Association and Henry Smith MP in bringing forward this legislation, originally drafted by Immigration Law Practitioners’ Association (ILPA). The Bill has passed first reading and is now scheduled for a second reading on 16 March 2018, this Friday.

Historical Background

Mauritius, Reunion and the Chagos Archipelago were settled by the French, but Mauritius and the Chagos were acquired by the British as a result of the Napoleonic wars.  The Chagos remained British territory and in 1949 came within the UK and Colonies as part of Mauritius colony. The Chagos is strategically located right in the centre of the Indian Ocean and in the 1960s the US was eyeing it as a potential future base, both to project a strike capability in the region, and as a convenient stopping point for Indian Ocean traffic.  The British and American governments discussed detaching the Chagos from the remainder of Mauritius with a view to constructing a US base on the largest of the islands, Diego Garcia.

In leaked British documents from the time, it was made clear between the parties that "[i]t would be unacceptable to both the British and the American defence authorities if facilities of the kind proposed were in any way to be subject to the political control of a newly emergent independent state (Mauritius is expected to become independent some time after 1966)…”. The US requested in January 1965 that “detachment proceedings should include the entire Chagos archipelago, primarily in the interest of security, but also to have other sites in this archipelago available for future contingencies.”

The detachment of the Chagos from Mauritius colony (to form the “British Indian Ocean Territory”) took place in November 1965.  This action by the UK was in direct violation of paragraph 6 of Resolution No 1514 (of December 14, 1960) which prohibited the dismemberment of territories prior to decolonisation, and which provides, “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”

As part of this effort, the Chagos islands were stripped of their existing inhabitants.  Estimates vary, but this appears to have been about 1,000 Chagossian people.  The separation of the Chagos from Mauritius colony was effected by the British Indian Ocean Territories Order 1965.  The Order created the office of Commissioner of the British Indian Ocean Territory (BIOT – aka. the Chagos) and conferred upon him power to “make laws for the peace, order and good government of the Territory.”  Under a purported exercise of such a power, the Commissioner for the BIOT made the Immigration Ordinance 1971, which provided that “no person shall enter the Territory or, being in the Territory, shall be present or remain in the Territory, unless he is in possession of a permit …[issued by an Immigration Officer]”.

The removal of the indigenous population took place mainly to Mauritius and the Seychelles.  The Chagossians were not allowed to return, and never have been except recently for some closely supervised visits.

British Nationality Effects

At this point we turn to the effects of these events from the point of view of British nationality law and immigration control.  What would be the British nationality status, over time and today, of a person born on the Chagos?

When the exile began in 1968, those born on the Chagos would have been citizens of the United Kingdom and Colonies (CUKCs).  The UK and Colonies was the legal superentity created in 1949, comprising the UK and its remaining colonies, which had not yet achieved independence.

Already from March 1968, the Commonwealth Immigrants Act 1968 would have subjected a person born on the Chagos to UK immigration control, meaning that they would have been prevented from residing in the UK without a visa in the same way as if they were foreign nationals.  This continued under the Immigration Act 1971, as a Chagossian would not have had the right of abode (a qualifying connection to the UK).

In 1983, those born on the Chagos were reclassified as British dependent territories citizens (BDTCs), being CUKCs with no right of abode but with a qualifying connection to a remaining British territory.  Ordinarily, BDTC status would be associated with the right to reside in the British territory concerned, but in the case of the Chagossians the 1971 ordinance remained in force, so that they had no associated immigration rights.

When BDTC status was created in 1983, the majority of people holding that status were the some 3 million inhabitants of Hong Kong.  Following the handing back of Hong Kong in 1997, the remaining BDTC population was then reduced from 3.2 million people to approximately 200,000 people in the remaining British dependent territories.  At that point, and more than 34 years after the coming into force of the Commonwealth Immigrants Act 1968, the UK government felt comfortable to allow access to British citizenship (and thus freedom from UK immigration control) to the remaining BDTC populations, and thus was enacted the British Overseas Territories Act 2002.  This had the effect that any BDTC alive on 1 May 2002 would on that date become a British Overseas Territories citizen (BOTC), and a British citizen, the latter status giving the right of abode in the UK, and thus freedom from UK immigration control.  At this point, a person born on the Chagos would have been legally able to come to the UK (had they wished to) in reliance on their British citizenship.

New Generations

The passage of time has brought the birth of new generations of Chagossians. The children of those born on the Chagos will today have both BOTC and British citizenship.  But the grandchildren of those born on the Chagos will in general not, since British nationality only descends (save for special circumstances) to the first generation born outside of British territory.  To take a typical example, if a person born on the Chagos had gone to Mauritius, and their children and grandchildren were born in Mauritius, then the grandchildren would be citizens of Mauritius only; they would not have any form of British nationality.

It is argued that this is unfair.  The wish of the Chagossians to remain living on the Chagos, and therefore the opportunity of the intervening generations to have been born on British territory, was historically frustrated by the Immigration Ordinance 1971.  This ordinance was found by the Divisional Court (Laws LJ and Gibbs J) to have been illegal, as ultra vires a power to legislate for the “peace, order and good government” of the BIOT (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067).

The Bill would go some way to solving this, by allowing the grandchild in this situation to now register as a British Overseas Territories citizen.  This is the primary status they would have had anyway, had they been allowed to remain in situ on the islands, and not been prevented from residing there by the unlawful ordinance.

The UK government has so far not indicated whether it supports the Bill.  It remains to be seen whether the government whip will this week object at the Second Reading, or will allow the Bill to proceed to committee stage.