How the Chagossians were granted the ability to register as British.

All direct descendants of people born on the Chagos Islands will be entitled to British Overseas Territories citizenship (BOTC) as well as British citizenship (if they wish to have it), as per a registration provision included in the Nationality and Borders Bill which returns to the House of Lords later today.

The background

The Chagos Islands were once administered by Britain as part of the colony of Mauritius but were later detached and designated as British Indian Ocean Territory. The UK thereby granted their use to the US government for military purposes. Today the islands have a US military base (and an alleged CIA black site) as well as a nominal British presence.

The British Indian Ocean Territory was designated as a UK colony in British nationality law until 1982 when it became designated as a British dependent territory. This changed again in 2002, when it was reclassified into a British overseas territory. As a result, the islanders and their descendants would be both BOTCs and British citizens had they simply remained residents in Chagos. However, the islanders were forcefully deported to Mauritius and Seychelles between 1967 and 1973 in order to make way for the American military base. In 2002 the UK granted citizenship (and hence residency rights) to all BOTCs, and many islanders relocated to Britain.

The islanders had however in the meantime married citizens of Mauritius and Seychelles and over the years they had children, grandchildren, and great-grandchildren. While the first generation born outside the British Indian Ocean Territory inherited BOTC from their Chagossian parents, later generations could not. This created a family reunion problem: some grandchildren and great-grandchildren of those born on the islands had difficulty even getting visas to come to the UK, and of course so did their spouses.

The Chagos amendment

In 2018 the MP for Crawley Henry Smith introduced a Private Members Bill which would have given access to BOTC for Chagossian descendants. Although the government indicated that it would consider the matter, a series of logistics roadblocks regarding parliamentary bill schedules and scope prevented the Bill from ever being discussed and adopted.

The matter reappeared in Parliament as a result of a consultation on the “New Plan for Immigration” (which included a chapter entitled “Ending anomalies and delivering fairness in British nationality law”) in March 2021. Henry Smith MP this time introduced an amendment in the resulting Nationality and Borders Bill which was asking for both BOTC and British citizenship for Chagossian descendants. The government opposed this on the ground that it would create a “precedent” by detaching access to British nationality from residence in the UK. The amendment was voted down at report stage on 7 December 2021 with the government whipping against.

The government’s objection on the basis of setting a potential precedent seemed irrational, as the Chagos Islands case is unique: No other group of British nationals had been involuntarily excluded by the UK government from living in the very territory from which their British nationality derived. There was an obvious moral basis for varying the principle (applicable in the majority of cases) that British nationality does not pass to the second generation born outside British territory.

Baroness Ruth Lister subsequently re-introduced the amendment, this time with a five-year time limit for registration, in the House of Lords. The amendment was debated at the beginning of the first day of Lords’ report stage and peer from all parties rose to speak in favour.

The government minister was however still opposed and invited Baroness Lister to withdraw her amendment rather than taking it to a vote. The Baroness knew that if the amendment were voted down at this point, it could not be re-introduced, but refused to back down. The Baroness won the division by 237 to 154 and the Chagos amendment became part of the Bill.

While the government could easily whip against the new clause — as it ultimately did with almost all the changes to the Bill inserted by the Lords – the Home Minister eventually agreed that a citizenship pathway for Chagossians would indeed be possible. The new clause was re-drafted as a government amendment, meaning it would receive the backing of the Commons and become law when the Bill would finish its passage and receive Royal Assent.

What does the new clause do?

The new section 17I of the British Nationality Act 1981 will give a five-year period for adult Chagossians to register as BOTCs if they wish. They will then be able to register as British citizens under the new section 4K. Those registering will need to show that they are descended from a person born in the British Indian Ocean Territory.

The resulting British nationality will now be granted “otherwise than by descent” meaning that the descendants of people who register will themselves be British nationals, regardless of their place of birth. The immigration minister confirms that the applications will be free of charge (most likely the citizenship ceremony fee of £80 will still be payable).

Qualifying children alive on the day of commencement, or born within the subsequent five years, will have until their 23rd birthday to register. This prevents the split treatment of siblings; otherwise, those born to qualifying applicants after the amendment but before their parent registers would have a different status from those born after the registration.

Conclusions

In immigration law, bad laws very often pass, while good ones fail. Why did this one succeed? It is hard to know, but I offer some tentative conclusions.

First, the Chagossians were unfairly prejudiced by the law as it stood and knew it. They demanded this change determinedly and persistently over many years. Community organisers were able, over a significant time frame, to provide journalists and parliamentarians with clear briefings and compelling individual case studies of those who would be affected and were prepared to tell their stories in public.

Second, they were mostly concentrated in a single constituency. Had the same scale of problem been spread across hundreds of constituencies, it would have been difficult to gain the attention of a single legislator, and there would have been no consistent voice in the Commons.

Third, it was right. There was never a principled objection to granting Chagossians and their descendant’s access to British nationality once the concern over indefinite transmission was addressed. This led to a phenomenon in which people in powerful institutions (news agencies, parliament, government) facilitated the amendment behind the scenes. In both Houses, members were able to put the case powerfully. Ultimately it is an example of what philosophers would term the causal efficacy of the moral.

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