Not all British nationals fall within the scope of the United Kingdom’s EU Withdrawal Agreement. On joining the European Economic Community (EEC) in 1973 the UK specified which of its nationals were to benefit from European law. Notwithstanding the reclassification and re-branding of the classes of British nationality since then, the specification of British nationals who benefit from (what is now) EU law, and thus who are EU citizens, has remained the same. On the UK leaving the EU, it is those persons who rights fall within the scope of the Withdrawal Agreement. Who are they?
The UK has six classes of British nationality, of which the class of British citizens form by far the most numerous class. But there are others: British overseas territories citizens (BOTCs), British Overseas citizens (BOCs), British Nationals (Overseas), British subjects (BSs) and British Protected Persons (BPPs).
Only British citizens have the automatic right of abode in the UK itself, so that they can come and go freely from the UK. The other classes possess British nationality, so that they may seek a British passport, UK consular assistance, or UK diplomatic assistance, etc. But they do not have rights in respect of the UK, so that they may come and go freely, work and reside, by virtue of possessing British nationality status.
As regards British subjects, some may possess a UK right of abode as a result of satisfying the conditions for its acquisition prescribed in UK immigration law: they are many of those British subjects born in (what is now) the Republic of Ireland prior to 1949, together with a limited number of those British subjects from the area of former British India who did not acquire the citizenship of India or Pakistan when those counties enacted their post-independence citizenship laws.
The Withdrawal Agreement: Who is a UK national?
By the Withdrawal Agreement (article 2):
“United Kingdom national” means a national of the United Kingdom, as defined in the New Declaration by the Government of the United Kingdom of Great Britain and Northern Ireland of 31 December 1982 on the definition of the term “nationals” together with Declaration No 63 annexed to the Final Act of the intergovernmental conference which adopted the Treaty of Lisbon
In practice this means:
- British citizens
- British subjects (BSs) with the right of abode in the UK
- British overseas territories citizens (BOTCs) who acquire such citizenship from a connection with Gibraltar.
As regards Gibraltar, on 21 May 2002, by the British Overseas Territories Act 2002, British citizenship was conferred on BOTCs. That Act also made provision in relation to the British overseas territories for persons so connected to a territory to acquire British citizenship by birth or adoption, or by descent, on the same basis as is provided for in relation to the United Kingdom by existing UK legislation. Thus, in practice, most BOTCs from Gibraltar are also British citizens. Those Gibraltar BOTCs that are not also British citizens tend to be those that have naturalised or registered as BOTCs in Gibraltar but who have not (yet) thereafter taken the further step of seeking to register as British citizens.
Who is not a UK national?
Those British nationals who do not have EU rights as UK nationals are:
- Those British overseas territories citizens (BOTCs), who did not acquire that status by virtue of a Gibraltar connection, and who are not also British citizens
- British subjects (BSs) without a UK right of abode (some from pre-1949 Ireland, and some from what is now India or Pakistan, but who have not acquired citizenship of the country in question)
- British Overseas citizens (BOCs)
- British Nationals (Overseas) (BN(O)s) (from Hong Kong)
- British Protected Persons (BPPs)
British citizens from the Channel Islands and the Isle of Man
Since the UK joined the EEC (now the EU) in 1973, British citizens from the Channel Islands and the Isle of Man have not automatically benefited from freedom of movement, see the Third Protocol of the Final Act of the 1972 UK Accession Treaty. However, such persons could benefit from free movement rights where, at any time, ordinarily resident in the UK for five years. Once such rights are acquired, they cannot be lost. Thus, during the time EU law applies in the UK, a British citizen from the Isle of Man who moved to the UK to study nursing and then takes work in a London hospital, where a UK resident for five years, acquires EU free movement rights. Such rights, once acquired, cannot be lost, even if returns to reside in the Isle of Man. However, a Manxman who retires to Spain after a lifetime of work in the Isle of Man does not acquire such rights.
British citizens who are Channel Islanders or Manx men and women are EU citizens but do not enjoy automatic free movement rights. As regards the operation of the Withdrawal Agreement, Article 3 provides:
1.Unless otherwise provided in this Agreement or in Union law made applicable by this Agreement, any reference in this Agreement to the United Kingdom or its territory shall be understood as referring to:
(c) The Channel Islands and the Isle of Man, to the extent that Union law was applicable to them before the date of entry into force of this Agreement;
In the result, it appears that British citizens who are Channel Islanders or Manx men or women may by the Withdrawal Agreement only preserve such rights as regards their status as EU citizens, as they had prior to the coming into force of that Agreement.