Wherein I am not a British Overseas Citizen

By: | Post date: October 28, 2017 | Comments: 4 Comments
Posted in categories: Australia

So, we’ve had a little constitutional crisis here. The Australian Constitution disqualifies people from running for parliament if they have allegiance to another country, as part of its eligibility conditions.

44. Any person who –

(i.) Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power: or

(v.) Has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons:
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

In fact, an MP was in trouble just recently for 44v, having shares in a shopping centre that included a post office.

I have no problem with the probity conditions of the Australian Constitution, or the fact that the High Court ruled on it strictly.

  • An MP is meant to be immune from external influence, pecuniary or governmental.
  • The fact that there are lobbyists now that there weren’t in 1900 does not mean the principle should be diluted.
  • The fact that dual citizenship is much more commonplace now than back then does not mean the principle should be diluted. If you want to run for parliament, you can good and renounce your dual citizenship. Explicitly. On paper. As grown-up parties (Labor, but clearly not the Nationals or the Greens) already insist you do. Like the opinion piece in The Australian said today: this isn’t about “the vibe”, we aren’t meant to be mind-readers about how a pollie feels, when they run for office. And I applaud it for scolding the government it politically aligns with, for trying to subvert the constitution.
  • The fact that a New Zealander or Canadian in 1900 were not subject to 44i in 1900 does not mean the principle should be diluted. In fact, I’m insulted by the suggestion that, if a Greek would be caught by 44i in 1900, a New Zealander should be let off the hook now because he would have been part of the Empire then. I don’t care if the constitution framers would have waved through Fellow Britons and block The Swarthy or The Non-Whites; the principle of foreign influence still holds.
  • The fact that the rest of the Commonwealth isn’t as strict about MPs having allegiance to their country does not mean the principle should be diluted. They want to be slack about it, that’s their problem.
  • The fact that the US doesn’t impose restrictions on dual citizenship on Congress impresses me even less. This is the country that from its inception blocked its citizens from foreign titles, and its own president from being foreign born. If they didn’t extend those restrictions to Congress, that’s an inconsistency, not a model to emulate.

My particular interest, above the fact that this country has even more political turmoil than the recent norm, was piqued by the peculiar status of Nick Xenophon, and the bizarro semi-citizenship he unwittingly acquired from his father Theo Xenophou, as a British Overseas Citizen.

  • This is not a hellenisteukontos post, but I do have to comment on the surname. Cyprus, now as in Arcado-Cypriot days, is renowned for its archaism, and Ancient Greek names and surnames are popular there. So people can be surnamed Xenophon. But they are surnamed Xenophon *in the vernacular*; and in the vernacular, there is no third declension. Surnames formed from proper names in Cyprus are in the genitive: the surname Nicholas in Greek is Nikolaou, a normal second declension genitive. Theo was also surnamed with a normal second declension genitive: Xenophou, not the expected Xenophontos. Of course both Xenophou and Xenophontos would have caused confusion in English, among anyone who had heard of Xenophon. Just as my uncles and father anglicised Nikolaou to Nicholas, Nick anglicised it to the nominative Xenophon.

My understanding was that Nick Xenophon did make steps to try and renounce it in time, and was ignored by the British High Commission. (In which case, thanks a bunch, British High Commission; and I doubt pollies are going to take silence as an answer here in the future. But any answers Xenophon would have gotten from the British High Commission, he would also have gotten from the Wikipedia article.)

However, the High Court ruling didn’t rely on that, so much (pity), as the fact that British Overseas Citizenship is so pointless, it would not act as an incentive for an MP to do anything contrary to the interests of Australia. Wikipedia again:

Because the status of British Overseas Citizen is not associated with the right to live or work anywhere in the world, it is often considered a useless citizenship (unless the holder has no other nationality, in which case he or she may register as a British Citizen). However, there are some minor benefits to having British Overseas Citizenship.

Some of these rights are common to all Commonwealth citizens (i.e. British Overseas Citizens with another form of Commonwealth citizenship already have these rights):

  • Right to vote in the UK if resident in the UK.

Meh.

Other rights are specific only to British Overseas Citizens but not to Commonwealth citizens (holders of some other classes of British nationality may also qualify for some of these rights):

  • Acquiring British Citizenship is simpler and cheaper (registration instead of naturalization), although residency requirements are the same as for other nationalities.
  • Indefinite Leave to Remain is valid for life, regardless of time spent outside the United Kingdom.
  • Ability to hold certain jobs and offices in the UK that are restricted to British Nationals (although positions restricted to British Citizens remain off-limits).
  • Ability to benefit from the Youth Mobility Scheme with no quotas.
  • Ability to claim personal exemptions on UK income if considered non-resident for UK tax purposes. (Prior to 6 Apr 2010 this was available to all Commonwealth Citizens).
  • Consular protection from the UK government if outside the UK and travelling on a British passport.
  • Visa-free access to the UK for visits up to 6 months, if travelling on a BOC passport. (Many other nationalities, commonwealth and non-commonwealth, also have this benefit.)

… Meh.

Xenophon’s story is not my own story (as I thought for ten panicked minutes, because goddamnit, I don’t want to be a Pom); but it is in fact the story of at least one of my cousins. It’s the story of the messy conflict between imperial subjecthood, and national citizenship.

So let me share, drawing on Wikipedia: British Subject.

My uncle George came to Australia from Cyprus in 1947. In Cyprus, he was a British subject. When he arrived in Australia, he was a British subject. And so was everybody in Australia. Both were part of the British Empire.

(And if anyone tells you about the brave ANZACs of Gallipoli forging Australian identity, point out to them that the flag they fought under was the Union Jack, as part of the British Army. My high school still had a Union Jack draped over its War Memorial in the 1980s. As I’ve read somewhere, it was much easier to conscript the ANZACs into Australian nation-building mythology, once the actual original ANZACs started dying off.)

In 1949, everybody in Australia became an Australian citizen, as well as a British subject. My uncles and my father left behind in Cyprus became “Citizens of the United Kingdom and Colonies (CUKC)” (as well as British subjects), because Cyprus was not a Dominion like Australia, but a Crown colony. (They’ve called those remaining British Overseas Territories since 2002.)

My uncle George was not born in Australia, and as far as I can tell, he remained a CUKC rather than becoming an Australian Citizen.

In 1959, my uncle George had his first child, Nick, in Australia. Nick Xenophon was also born in Australia to a Cypriot father in 1959. Birth in Australia will have conferred to both of them Australian citizenship. Yet as the High Court has confirmed, birth to a Cypriot father also conferred to both of them CUKC status.

In 1960, Cyprus became independent, and my uncles and aunts in Cyprus changed automatically from being British subjects, to being Cypriot citizens. That also applied to my father, who only left Cyprus for Australia in 1966.

But any Cypriots that left for other parts of the British Empire (or the Commonwealth, if you accept that fig leaf) did not change automatically to anything. They left as British subjects to other countries that had British subjects, and they remained British subjects. And that seems to have applied to all my uncle George’s other children, born between 1959 and 1968: “citizens of countries that had become republics, such as India, were grouped as British subjects.”

Australia abolished the notion of British subject in 1987, though it has kept it retrospectively on the electoral roll. In 1981, meanwhile, Britain cleaned up the citizenship status of its former colonials, by splitting up CUKCs into British citizens (e.g. born in Britain or descended from someone who was); British Overseas Territories citizens (if you were still connected to a colony in 1983); and British Overseas citizens.

British Overseas Citizens was a catch-all for everyone else, who hadn’t sought out their newly independent country’s citizenship:

British Overseas citizenship is a residual category of British nationality, in that there is very little provision for the acquisition of British Overseas citizenship after 1983; and with the passage of time the category will become extinct.

As British Overseas citizenship is a “mop-up” category for CUKCs who did not acquire British citizenship or BOTC in 1983, there are many ways in which someone may have acquired that status.

These include:

  • persons holding CUKC by connection with a former colony or protectorate who did not acquire that country’s citizenship on independence. This applied particularly to some former colonies, such as Kenya, that did not grant citizenship to all CUKCs born or naturalised in that colony.
    • So people that became stateless in their own country on independence. Ouch.
  • persons who retained CUKC on independence of their colony based on a connection to another colony which subsequently became independent before 1983
    • So colonials who moved to another colony, so they didn’t get citizenship when either colony became independent. Again, ouch.
  • British subjects born before 1949 who did not acquire citizenship of any Dominion (Australia, Canada, India, Pakistan, Ceylon, South Africa), Ireland or Southern Rhodesia when these countries introduced citizenship laws, and were not connected in any way with India or Pakistan.
    • And I guess at the time, noone was strongly motivated to, because everybody was part of the British Empire. That might have been the case for my uncle George and Nick Xenophon’s dad. Except…
  • minor children who acquired CUKC by registration at the British High Commission in an independent Commonwealth country on or after 28 October 1971
  • persons who were allowed to retain their CUKC statuses even though they acquired the citizenship of a newly independent Commonwealth country (see Penang and Malacca and Cyprus immediately below)… Persons resident in any area of the Commonwealth (excluding Cyprus) immediately before 16 August 1960 retained CUKC even if they acquired Cypriot citizenship.

… Bingo. Even if my uncle George and Theo Xenophou sought out Cypriot citizenship after independence, the UK still made them CUKC (and now British Overseas Citizens), by virtue of them residing elsewhere in the Empire at the time. And in fact, even if Nick Xenophon and my cousin Nick have Australian citizenship, by virtue of being born in Australia—they still got to be British Overseas Citizens, because their fathers were colonials who migrated within the Empire.

George’s other children born after Cypriot independence, Perry, Steve and Mary—seem to have been British subjects under Australian law, regardless. The same would apply to my uncle Chris’ children Nick and Irene, as Chris had moved to Australia in 1953. But they don’t seem to have ended up as British Overseas Citizens. Australia being a Dominion seems to have safeguarded them from acquiring CUKC status as far as Britain was concerned, after 1960. (Had my uncles moved to Mauritius or the Bahamas, on the other hand, their children would still have ended up BOCs.)

It’s messy, but really, the mess is not the fault of those who drew up the British Nationality Act of 1981 (although British Overseas Citizenship really is an insultingly nothing kind of citizenship.) They were doing cleanup after the demise of the Empire, and mopping up the former colonials whose citizenship was up in the air because they were out of town at the time. The mess was inevitable, in transition from an imperial notion of being a British Subject anywhere where the map was coloured in red, to when those parts of the map in red becoming nations of their own.

At any rate, my father was a Cypriot citizen when he got here, so I have no eligibility to being a British Overseas Citizen, and that’s fine by me.

OTOH, it turns out that I am eligible for Cypriot citizenship, through jus sanguinis (mpf): per Acquisition of Citizenship due to Cypriot Origins, application type M123. I’d have thought that eligibility for Cypriot citizenship means I don’t have Cypriot citizenship right now; but if I ever do consider a career in Australian politics, form M130 to renounce Cypriot Citizenship would be something I’d want to look at.

4 Comments

  • John Cowan says:

    Well.

    First of all, the U.S. Constitution prevents members of the executive branch (which does not include Congress) from accepting foreign titles and other emoluments. That’s a very limited way of preventing corruption of a type common to many republics at the time. The attempt to make U.S. citizens at large subject to the same restrictions by constitutional amendment failed, as almost all of the five of us who have given a moment’s thought to the Titles of Nobility Amendment agree that it should.

    Second, it’s the restriction of the Presidency to native-borns that looks weird and anomalous to us now, not the generally laissez-faire attitude to dual nationality. We have needed that, by the way, since the beginning. The U.S. fought a war, which we lost, against the ancestor of your Queen, who refused to accept the principle that American citizens by naturalization were no longer British subjects, even though he had personally accepted by treaty the fact that British subjects in America as of 1783 were subjects no more. After all, they were called subjects because they were subjected — they couldn’t throw off their allegiance unless their monarch agreed, as by the aforesaid treaty. If the U.S. had prevented such dual nationals from becoming members of our legislatures, immigrant districts would go unrepresented. (It has always been a strong convention that the representative of a district must reside in the district, and it’s hard to be elected if you are seen as an incomer.)

    • opoudjis says:

      Not seeing why abjuring dual citizenship post-facto is prohibitive, although yes, it is an anomaly world-wide.

      Wikipedia isn’t helping me: why was https://en.wikipedia.org/wiki/Titles_of_Nobility_Amendment bad?

      • John Cowan says:

        Aussies can do what they want, I’m just talking about why prohibiting dual nationality doesn’t work for us given a regime in which nationality has been historically involuntary. (You’ll note that the Queen signed off on the 1948 Act, though perhaps she didn’t agree with it.)

        The problem with the ToNA is that it makes American citizenship dependent on the acts of other countries. What’s to prevent some foreign land from making everyone in New York City a duke, and therefore not a citizen any more? The fact that some Leonard Casley somewhere in the world has appointed me His Grace the Duke of 13 East 3rd Street #2A shouldn’t interfere with my right to vote. (Note the wording “accept, claim, receive or retain”; if the third verb had been omitted, it wouldn’t be quite so problematic.) This isn’t entirely absurd: the 8th through 11th Barons Fairfax of Cameron were American citizens by birth,. Indeed, the 10th Lord was a member of the California legislature, almost surely not knowing he was the 10th Lord.

        Mark Shoulson says that the rules on wine being kosher or not are similarly perverse. The ingredients of wine are all kosher, no problem there. But wine that has been handled (before bottling) by non-Jews is treyf because it may have been offered to idols. (Nemmind that Christians and Muslims aren’t idolaters, and Hindus and Buddhists aren’t really either.) That essentially makes a non-Jewish opinion about whether idols actually contain gods controlling of Jewish behavior. Similarly, a foreign governmental act shouldn’t control the status of American citizens.

        (Speaking of Leonard Casley, how does this letter from Buckingham Palace hit you in the eye? No, it’s not a forgery.)

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