Chapter 3 - Right of abode

3.1	What is the Right of Abode
3.2	Who has the Right of Abode
3.3	Proof of the Right of Abode
3.4	To whom are certificates of entitlement issued
3.5	Confirmation of right of abode document
3.6	Certificates of patriality
3.7	Passport endorsements relating to right of abode
3.8	Issuing a certificate of entitlement
3.9	Cancellation of certificates of entitlement
3.10	Certificates of entitlement for dual nationals
3.11	Persons from former British colonies
3.12	The effect of renunciation of British citizenship
3.13	Restriction on exercise of right of abode in some cases
3.14	Deprivation of right of abode

Annexes

3.1	Examples of right of abode refusals
3.2	Explanatory leaflet for certificates of entitlement
3.3	Notification pro-forma of certificates of entitlement issued to a child of a polygamous marriage who benefits from the Legitimacy Act 1976

Chapter 3 - Right of abode

3.1 - What is the right of abode
Section 1(1) of the Immigration Act 1971 gives exemption from immigration control on persons with the right of abode in the UK, subject to proof of that right. It therefore follows that applications for a Certificate of Entitlement are not covered under the Statutory Instrument 2006 No 1743 - The Immigration (Provision of Physical Data) Regulations 2006 regarding Entry Clearance. We must not therefore collect biometrics from any such applicant.

The right of abode is a statutory right which a person either has or does not have, depending on whether the conditions in section 2 of the 1971 Act are satisfied (subject to possible exercise of the power to remove the right of abode in s.2A of the 1971 Act). No action by or on behalf of a Minister (including the issue of a passport or certificate of entitlement) can operate so as to confer the right of abode on any person (Christodoulido - v - SSHD [1985] Imm AR 179).

3.2 - Who has the right of abode
Section 2 of the Act, as amended by Section 39(2) of the British Nationality Act 1981 (BNA 1981) defines the categories of people who currently have the right of abode - i.e:

• British citizens; and
• Commonwealth citizens who had the right of abode before 1 January 1983 and who have not, since then, ceased to be Commonwealth citizens.

Basis of claim	Who qualified before 1.1.1983 Section 2 of 1971 Act	Who qualified after 1.1.1983 Section 2 of the 1971 Act, as amended by s.39(2) of the BNA 81
1. A CUKC who was born, adopted, naturalised or registered in the UK or Islands	2(1)(a)	2(1)(a)
2. A CUKC born to or adopted by a parent who at the time of the persons birth or adoption had right of abode under s.2(1)(a) of the 1971 Act	2(1)(b)(i)	2(1)(a)
3. A CUKC born to or adopted by a parent who, at the time of the persons birth had right of abode under s.2(1)(b)(i)	2(1)(b)(ii)	2(1)(a)
4. A CUKC who was ordinarily resident in the UK for any continuous period of 5 years before 31 December 1982 (time spent subject to immigration conditions can be included but the conditions must have been removed before completion of the 5 years)	2(1)(c)	2(1)(a)
5. A Commonwealth citizen (not a CUKC) with a parent/adoptive parent who, at the time of the person's birth/adoption, was a CUKC by birth in the United Kingdom	2(1)(d)	2(1)(b)
6. a) A female Commonwealth citizen who is, or has been, married to a man with right of abode at any time before 31 December 1982 b) A CUKC woman who is, or has been, married to a man with right of abode at any time before 31 December 1982	2(2) 2(2)	2(1)(b) 2(1)(a)

2(1)(a) - for British citizens
2(1)(b) - for Commonwealth citizens who had ROA before 1.1.1983, provided they had not ceased to be a Commonwealth citizen at any time.

NB. The re-admission of Pakistan and South Africa to the Commonwealth in 1989 and 1994 respectively did not have the effect of reviving any claims by their nationals to right of abode in the UK. The only way to acquire right of abode since 1 January 1983 has been by becoming a British citizen.

The only way in which a person can acquire the right of abode after January 1983 is by becoming a British citizen

Definitions

• "CUKC" stands for a "citizen of the United Kingdom and Colonies"
• "CUKC" in relation to a time before 1 January 1949, means a British subject (so, if the claimant was then a British subject, residence in the UK before 1.1.49 will count for the purposes of s.2(1)(c))
• "Registration" does not include registration under s.6(2) of the BNA 1948 by virtue of a marriage which took place on or after 28 October 1971 (though a woman who was so registered may have had the right of abode under s.2(2))
• "Registration in the United Kingdom" includes registration in an independent Commonwealth country (including South Africa before 1 January 1966 and Pakistan before 1 September 1973) by the British High Commissioner, except in the case of children registered under s.7 of the BNA on or after 28 October 1971(though such children may have had the right of abode under s.2(1)(b)(i) or (ii)
• "United Kingdom" means, England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man. It also includes what is now the Republic of Ireland at a time when it formed part of the United Kingdom (i.e. before 31 March 1922)
• "Parent" includes the mother, but not the father, of an illegitimate child. It also includes the adoptive parents of a legally adopted child (see below)
• "Adopted" means legally adopted (i.e. adopted by order of a United Kingdom court or in any country listed in the Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973

3.3 - Proof of right of abode
Under Section 3(9) of the 1971 Act, as amended by the Immigration, Asylum and Nationality Act 2006, a person claiming right of abode in the UK must prove it by presenting either:

• a United Kingdom passport or an ID Card issued under the Identity Cards Act 2006 describing the person as a British citizen; or
• a United Kingdom passport or an ID Card issued under the Identity Cards Act 2006 describing the person as a British subject with the right of abode in the United Kingdom; or
• a certificate of entitlement to the right of abode

This superseded earlier legislation which allowed the production of other documentation in some cases.

3.4 - To whom are certificates of entitlement issued
You may issue a certificate of entitlement in the passport of persons who qualify under the following provisions:

• Those who qualified by becoming British Citizens on or after 1 January 1983 and who apply for a certificate of entitlement to be inserted in a non-British passport;
  NB. Certificates of entitlement are not to be issued:
  • in a non-British passpor if the person holds a current British citizen passport
  • in a British citizen passport
• Commonwealth citizens who did not become British citizens on 1 January 1983 but had the right of abode immediately before that date and retained their right of abode after that date.

Procedure
Applications for certificates of entitlement should be determined in accordance with the Immigration (Certificate of Entitlement to the Right of Abode in the United Kingdom) Regulations 2006 which provide that:

• The application must be made to:
  • the UK Border Agency, if the applicant is in the UK
  • the Lieutenant-Governor, if the applicant is in the Islands
  • the Governor, if the applicant is in a British overseas territory
  • an entry clearance officer, if the applicant is elsewhere
• Applications must be accompanied by the applicant's own valid passport or travel document, 2 photographs of the applicant taken no more than 6 months prior to the date of the application, and relevant supporting documentation
• A certificate of entitlement is to be issued by means of being affixed to the passport or travel document of the applicant - a passport will be suitable for this purpose only if:
  • it relates to the applicant, and
  • it has not been altered otherwise than by or with the permission of the authority who issued it, and
  • it was not obtained by deception

Fees
The fee for an application for a certificate of entitlement is:

• £205 (if the application is made outside of the United Kingdom)
• £135 (if the application is made in the United Kingdom)

Each request for a certificate of entitlement - even a request for replacement of a previous certificate that has ceased to have effect - should be treated as a new application requiring payment of the appropriate fee.

Referrals
The UK Border Agency of the Home Office in Liverpool are responsible for all right of abode casework and policy. Referrals and requests for advice on certificates of entitlement and related issues should be sent to the following address:-

UK Border Agency
Nationality General Enquiries Team
PO Box 306
Liverpool
L2 0QN

Telephone: 0845 010 5200
Email: nationalityenquiries@ind.homeoffice.gsi.gov.uk

In particular, cases which involve an applicant whose right of abode rests on a parent who has been legally deprived of British citizenship should be referred. This also applies in cases where the parent of such an applicant has renounced British citizenship and it cannot be confirmed from the Posts’ records that the date of such renunciation is later than the applicant’s birth.

Refusals
Examples of wordings to be used for refusal of a Certificate of Entitlement are given in Annex 3.1.

Appeals
Any person who is refused a certificate of entitlement has a right of appeal against the refusal, regardless of why the application is refused.

There is no right of appeal against the revocation of a certificate of entitlement. Refusal form GV51(LRA) should be suitably amended and used.

3.5 - Confirmation of right of abode document
This non-statutory document was issued, for a brief period before commencement of the Immigration Act 1988, to dual nationals whose British citizenship gave them a claim to right of abode but who had opted to travel on non-British passports. It is no longer issued.

3.6 - Certificates of patriality
Certificates of entitlement replaced certificates of patriality with effect from 1 January 1983.

Under section 39(8) of the British Nationality Act 1981, a certificate of patriality issued under the 1971 Act and in force before 1 January 1983 is regarded as a certificate of entitlement unless the holder ceased to have the right of abode in the meantime, e.g. through renunciation, or independence legislation.

3.7 - Passport endorsements relating to right of abode
A British passport issued after 1 January 1983 containing the description “A British citizen” means that the holder has right of abode in the UK.

British passports may be issued in the UK to those whose right of abode is awaiting verification. The passport will contain the endorsement 'The holders’ status under the Immigration Act 1971 has not yet been determined’.

Other British passports, e.g. those issued to British Overseas citizens and British subjects may contain other types of endorsement. These are shown in Appendix 11 of Consular DSP Volume 2 Part 1 (Passports).

3.8 - Issuing an entry clearance vignette or a certificate of entitlement
Chapter 6.6 contains guidance on how to issue an entry clearance vignette or a certificate of entitlement. Example of a certificate of entitlement:

 

After issue, a copy of the leaflet ‘Certificates of Entitlement’, (text at Annex 3.2) should be placed inside the passport. It should also be given to persons already in possession of certificates of patriality or entitlement who make enquiries about right of abode. The leaflet can be produced locally.

A person to whom a certificate of entitlement is issued should be informed that on arrival in the UK he/she is free to pass through the immigration channel signposted ‘United Kingdom passports or EEA Nationals’.

Children of a polygamous marriage
The children of a polygamous marriage may be British citizens through the provisions of the Legitimacy Act 1976 if their father was domiciled in England or Wales at the time of the polygamous marriage. Instructions on assessing this are given in Consular Volume 7 Part 1 (Effect of Section 1 of the Legitimacy Act 1976).

If you issue a Certificate of Entitlement to a person under these provisions, you should notify the UK Passport Agency using the form at Annex 3.3.

When more than one person is named in the passport
You should not issue a single certificate of entitlement in a passport which contains details of more than one person unless they all have right of abode under the same section of the Act.

Where persons entered on the same passport have the right of abode under different parts of the Act, a separate certificate should be issued in respect of each of them.

If there is any possibility of ambiguity, you should indicate on the same page as the certificates of entitlement the person or persons in respect of whom the certificate is issued. This is particularly appropriate where the holder of the passport has the right of abode but the children included in it do not.

3.9 - Cancellation of certificates of entitlement
A person will be ineligible for a certificate of entitlement if he or she:

• does not have the right of abode in the UK (see Paragraph 3.2 above); or
• has a current United Kingdom passport or an ID card issued under the Identity Cards Act 2006 describing the person as a British citizen; or
• has a current United Kingdom passport or an ID card issued under the Identity Cards Act 2006 describing the person as a British subject with the right of abode in the United Kingdom; or
• is a person whose right of abode is restricted under section 2 of the Immigration Act 1988 (see 3.13 below); or
• is deprived of his or her right of abode by order under section 2A of the Immigration Act 1971 (see 3.14 below)

A certificate of entitlement issued on or after 21 December 2006 may be revoked by any Home Office official (including an official in the Identity and Passports Service), any immigration officer, any consular officer or any entry clearance officer where it is discovered that the holder is no longer eligible for it. There is no right of appeal against such a cancellation.

A certificate of entitlement (whether issued before or after 21 December 2006) will otherwise cease to have effect on the expiry of the passport or travel document to which it is affixed.

3.10 - Certificates of entitlement for dual nationals
With the exception of persons described in 3.9 above, British (or Commonwealth) nationals with the right of abode who are also foreign nationals may, if they wish, have a certificate of entitlement inserted in their foreign passport. NB. A certificate of entitlement cannot be issued if the person already holds a current British citizen passport.

If, after a certificate of entitlement has been inserted in a passport, the holder wishes to have one inserted in another passport, an application will need to be made for a new certificate to be issued (i.e. it is no longer possible for certificates of entitlement to be transferred into replacement passports).

3.11 - Persons from former British colonies
A person could have the right of abode under section 2(1)(a), (b) or (c) immediately prior to 1 January 1983 only if he or she was then a citizen of the UK and Colonies (CUKC).

Citizens of former British colonies which have become independent may still hold pre-independence passports describing them as CUKCs, but entitlement to this status may have been lost on independence - i.e. if they lost CUKC status and did not have the right of abode on the basis of their Commonwealth citizenship. Consular Volume 7 gives details of changes in citizenship status at the time of independence of specified countries.

Exceptions to the rule
If a married woman lost her CUKC status on independence, she may still have a claim to the right of abode under Section 2(2) of the Act if, as a Commonwealth citizen, she has at any time been married to a person who, at the time of the marriage, had the right of abode.

3.12 - The effect of renunciation of British citizenship
Persons who renounced CUKC before 1 January 1983 in order to retain or acquire citizenship of a Commonwealth country may have had right of abode on 31 December 1982 under section 2(1)(d) or 2(2). Provided they have remained a Commonwealth citizen since then, that right will have been preserved by the new s.2(1)(b).

A person who renounces British citizenship on or after 1 January 1983 loses any claim to right of abode and becomes subject to immigration control unless they continue to qualify under s.2(1)(b> by virtue of having some other form of Commonwealth citizenship.

3.13 - Restriction on exercise of right of abode in some cases
Section 2 of the Immigration Act 1988 provides that a woman who acquired the right of abode through marriage before 1983 (i.e. by virtue of s.2(2) of the 1971 Act, as then in force) may not enter the UK in exercise of that right, or be granted a certificate of entitlement, if either:

• another living wife or widow of the same man is or has at any time since her marriage been in the UK otherwise than as a visitor, an illegal entrant or on temporary admission, or,
• another living wife or widow of the same man has been granted a certificate of entitlement or entry clearance on account of her marriage

The restrictions do not prevent a wife who entered the UK in that capacity before 1 August 1988 from returning to this country, or from being issued with a certificate of entitlement or entry clearance enabling her to do so, irrespective of the presence here of other wives. Nor do they apply to a wife who has been in the UK at any time since her marriage if she was then the only wife to have entered, or been cleared for entry to, the UK.

So long as a woman is prevented under s.2 from entering the UK or obtaining a certificate of entitlement, she is subject to the provisions of the 1971 Act in the same way as a person who does not have the right of abode in the United Kingdom (s.2(3)).

NB. When reading the above, ‘another living wife or widow’ does not include a divorcée.

3.14 - Deprivation of right of abode
Under s.2A of the Immigration Act 1971, as inserted by s.57 of the Immigration, Asylum and Nationality Act 2006, a person who has right of abode on the basis of Commonwealth (but not British) citizenship – i.e. under s.2(1)(b) of the 1971 Act as amended- may be deprived of that right “if the Secretary of State thinks it would be conducive to the public good for the person to be excluded or removed from the United Kingdom”.

A person against whom a deprivation order is made will have a right of appeal to the Asylum and Immigration Appeal Tribunal or, where sensitive information might otherwise be disclosed in the course of the appeal, to the Special Immigration Appeals Commission. Subject to the outcome of any such appeal, an order made under s.2A of the 1971 Act remains in force until revoked by the Secretary of State.

Cases in which there may be a possibility of deprivation of right of abode should be referred to the Nationality Policy Team, UK Border Agency, Liverpool.