British nationality claims: The Case of the East African Asians

How the claim arises (see update here)

There is a large population of South Asians in East Africa. Their presence there dates back to the time of the British Empire when large numbers of South Asian workers were brought to East Africa by the British. Today, Kenyan Asians number 100,000. Tanzania and Uganda are reported to have Asian populations of 90,000 each.

At the time of independence of the East African countries, the nationality arrangements were such that most Asians became citizens of the newly independent country in which they were living.

However, a significant number of Asians did not, and instead retained citizenship of the UK and colonies.

After the independence of Kenya, the Africanisation programme of the Kenyan authorities resulted in the persecution of the Asian community. Large numbers of Asians with British passports began to migrate to the UK. In 1968, this migration resulted in an Act of Parliament of the UK that still remains a stain on the reputation of the UK. Lord Lester of Herne Hill QC, a celebrated barrister who represented a number of East African Asians in their fight against the UK government before the European Court of Human Rights, describes the events in 1968 as follows:

After a highly effective populist campaign led by Enoch Powell MP and Duncan Sandys MP to deprive the British Asians of their right to enter the UK, the Wilson Government introduced emergency legislation – the Commonwealth Immigrants Act 1968 – and drove it through all its parliamentary stages in three tumultuous days and nights … Upon its face, the 1968 Act was merely applying a familiar set of qualifications for the acquisition of UK citizenship to UK immigration law; but, as members of all political parties, the press and the general public recognised at the time, the real purpose of this provision was to deprive the British Asians of their right of entry on racial grounds. A group of British citizens, temporary in public office, successfully used their legislative majority to abridge the basic rights and freedoms of another group of British citizens, because of their colour and ethnic origins. And because the Westminster Parliament was all-powerful under the British constitution with unbridled legislative powers, British courts could not strike down this obnoxious and unsightly measure.

The East African Asians’ case

The discrimination set out above lead to the East African Asians’ case (East African Asians v UK4403/70 [1973] ECHR 2, 14 December 1973) in the European Court of Human Rights where the court found that the UK had acted incompatibly with Articles 3 (freedom from torture, inhuman and degrading treatment), 5 (right to liberty), 8 (the right to respect for private and family life) and 14 (prohibition on discrimination) of the European Convention on Human Rights.

Special Quota Voucher Scheme

To appease the widespread criticism of the racially discriminatory measures in the 1968 Act, the UK government introduced the “Special Quota Voucher Scheme” (SQVS). The scheme discriminated on the basis of gender as only heads of households could apply to become a voucher holder. Married women could only qualify as voucher holders in select circumstances; e.g. if the husband was incapacitated or dead. There were long waiting times, of 5 years or more, for the grant of a SQVS.

On 5th March 2002, in order to avoid an impending legal challenge to the SQVS, the UK government withdrew the scheme. Later that year, the UK government announced that it would be enacting legislation to enable those that were not now able to apply for a SQVS to register as British Citizens. That legislation is now in force- section 4B of the British Nationality Act 1981.

The government withdrew the scheme without consultation rather than amending it to include married women. The government was fully aware that the withdrawal of the scheme would effect many thousands of people (it estimated the number of people eligible for a voucher in East Africa alone to be 30,000- 40,000- that does not take account of the number of people eligible for vouchers elsewhere, particularly India where there are large numbers of such persons, and further, does not take account of the family members of these people who would have been eligible to join them under the scheme). Nevertheless, in a calculated move, it deliberately withdrew the scheme without any consultation or notice in order to ensure that these people did not make any applications for vouchers when the withdrawal of the scheme was announced.

British Overseas Citizens and British Protected Persons currently in East Africa

Under section 26 of the British Nationality Act 1981, the nationality status of those East African Asians that had retained their British citizenship was changed to the status of “British Overseas Citizens” (BOC) or “British Protected Person” (BPP).

Many Asians living in East Africa today are in possession of Kenyan or Tanzanian passports, but are actually BOCs or BPPs. This is because they attained their British nationality status by birth or registration before independence, and did not lose that status at independence. For various reasons, they came into possession of Kenyan or Tanzanian passports, and have in fact lived and travelled as citizens of Kenya/ Tanzania. However, the reality is that they remain British citizens. Many people who are British citizens do not know of their claims to British nationality.

However, the British nationality status of BOC and BPP that East African Asians will hold does not entitle them to live in the UK. In order to benefit form the right to live in the UK, it is necessary to register as a British Citizen under section 4B of the BNA 1981. But two conditions must be satisfied here. The first condition is that you must prove that you do not have any other nationality because the British Home Secretary must be satisfied that the person in question does not have any other citizenship or nationality apart from being a BOC. The other condition is that the Home Secretary must also be satisfied that the applicant has has not voluntarily relinquished or lost through action or inaction any citizenship or nationality that they might have held after 4th July 2002.

Extreme case: Sanjai Shah

Sanjai Shah had lived his entire life in Kenya as a Kenyan citizen. He had a Kenyan passport and considered himslef a Kenyan citizen. He never knew that he had a claim to British nationality. When he discovered that he was entitled to a BOC passport, he applied for it and then used it to travel to the UK in 2004. However, the BOC passport does not entitle you to live in the UK. UK Immigration officials did not believe that he only wanted to visit the UK, and suspected that he intended to remain in the UK permanently. They refused him entry and sent him back to Kenya. He then staged a 13 month protest living in Kenya’s International Airport between arrivals and immigration control.

In order to be eligible to register as a full British Citizen under section 4B of the BNA 1981, Sanjai had to prove that he had not had any other nationality apart from his BOC status. He argued with the British High Commission that although he had a Kenyan passport for many years, he had never been a Kenyan citizen as Kenyan law did not allow for dual citizenship. Eventually the British High Commission accepted his argument and in July 2005 allowed him to register as a British Citizen.

Changes to Kenya’s Constitution

At present Kenya’s constitution is being revised to include an allowance for dual citizenship. The proposed constitution was officially published on 6 May 2010 and it will be subject to a referendum on 4 August 2010. If the proposed changes are approved in the referendum then Kenyans will have the right to dual citizenship. For the implications of the proposed changes please see the entry Kenyan Constitutional Reform: Potential Problems in Nationality/Citizenship Matters.

Benefits of British Nationality/Citizenship

Acquiring British citizenship brings with it many opportunities and benefits. The most obvious is the ability to settle in the UK, and the extensive financial and social support that British citizens can be eligible for both in the UK and abroad. Access to the Free National Health Service, and eligibility for social benefits such as housing, and income support is highly valuable. The children of British Citizens have access to high quality free education at primary and secondary school, as well as reduced fees for University and the possibility of grants to assist with the costs of higher education. Citizenship also enables individuals to take advantage of the benefits of being European Union (EU) citizens, such as ease of travel and residence throughout the EU, and the opportunity to work in other EU countries.

A report produced under the direction of the former Attorney-General of England and Wales made the following findings in relation to British citizenship:

The British passport has instant and universal credibility. Respondents from all over the world said that they were treated with more respect by officials at passport control. Even those with European Union passports said that the British passport meant significantly less bureaucracy and an easier passage through customs. Some respondents said that their own nation’s passports created suspicion and were virtually worthless … [t]he British passport also had value here in the UK, enabling much smoother transactions with banks, landlords and other crucial services. Immigration papers and stamps in foreign passports created confusion at best and suspicion at worst, making even long-term British residents feel excluded. The British passport was an unambiguous document in terms of status but also a powerful statement of self-identity.

British Citizens can bring their spouses and children under the age of 18 years to live and settle with them in the UK. In addition, because of the special historical context for East African Asians, even children over the age of 18 can join their parents in the UK for settlement.

East African Asian British Nationality cases: how we can help you

We specialise in all aspects of immigration and nationality law. We have dealt with numerous nationality cases from East Africa successfully by obtaining British passports for our clients. Many of our clients were unaware of their claim to British nationality before they came to us. The process of obtaining your British passport can be difficult as often the British authorities require you to produce documents that you do not have to establish your claim. We have experience in successfully dealing with such difficulties, and will be able to guide you through the entire process.

We have assisted others in bringing their adult children to join them in the UK. With our wealth of experience in this field we remain committed to representing our clients by providing them with the results which make a difference not only in the East African British nationality saga but in all other aspects of immigration law.

Contact us today for a free assessment of your case.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, British Overseas Citizens, Citizenship and Nationality, Constitution, East African Asians, Kenya and tagged , , , , . Bookmark the permalink.

3 Responses to British nationality claims: The Case of the East African Asians

  1. British Nationality rules were always. gender biased because women were never till 2002 allowed to give their nationality to their children and this was also restricted to women who were born or registered or naturalized in the UK. A BOC could pass on his nationality to his children but women could not. Between the Kenyan law passed in 1982 and the British stopping the BOC fathers, many children became stateless and are in a limbo till date.

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