Kenyan constitutional reform: potential problems in Africa’s Asian British citizenship maze

Kenyan BOC claims

It is entirely possible that Kenyan Asians who were persecuted in Kenya and discriminated against at home in the UK (which denied them their rightful entry into the UK through perverse legislation such as the Commonwealth Immigrants Act 1968) will be faced with the sharp end of the stick yet again. This time around an ostensibly empowering legal amendment is responsible for delivering a fatal blow to the already stampeded status which the Home Secretary affords to British Overseas Citizens (BOC).

The Proposed Constitution of Kenya 2010 includes measures which deal with dual citizenship.

If Kenya allows its nationals dual citizenship then Kenyan Asians with potential British citizenship will be no longer be in a position to claim their right in an adequate manner. If the planned referendum of 4th August 2010 is accepted by the Kenyan electorate, then Kenyan Asians with a right to British nationality as BOC under section 26 of the British Nationality Act 1981 will awaken to discover that their claim to British Nationality is much diluted as a consequence of Kenya allowing dual nationality.

However, if the Kenyan electorate rejects the proposed constitutional amendment then things will remain the same. But the real question for a BOC in Kenya is whether or not to take a gamble on the result of the approaching referendum? Given some of the unfortunate colonial history in this context the astute would prudently advise “no”. And any sound advice would emphasise that applying for British citizenship urgently before 4th August 2010 is the smartest move that a Kenyan Asian with such a claim can do.

The British nationality status of BOC that Kenyan Asians 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. If by virtue of the proposed constitutional amendment Kenya begins to allow dual citizenship to its nationals then this will make it impossible for Kenyan Asians to register as full British citizens because they will now be able to retain their Kenyan citizenship which will impede their ability to register as British citizens.

It would be a good idea for applicants with a potential British Overseas Citizenship claim to make it as soon as possible. Such British nationality matters ought to be resolved urgently before dual citizenship is allowed in Kenya. However, if the rules in relation to the birth of a parent or grandparent in are satisfied by East African Asian applicants then they should qualify for BOC status.

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

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

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