Introduction

In response to a freedom of information (FOI) request (MOD FOI 2018/08369 dated 14 August 2019), the Ministry of Defence stated the media was (by implication) incorrectly stating those wanting to join the British Army were being described as “Foreign Nationals rather than Commonwealth citizens.”

But what is the difference between a foreign national and a Commonwealth citizen, if any?

EEA or Non-EEA

In its ‘Victims of Crimes Committed by Non-British Citizens (Foreign Nationals)‘ guidance, updated on 01 December 2023, the Home Office does not distinguish between Commonwealth citizens and foreign nationals – it does mention non-European Economic Area (EEA) nationals, European Economic Area (EEA) nationals, and Swiss citizens and their family members.

However, other Home Office guidance does outline that “Certain individuals from Commonwealth countries, who are not British citizens, also have the right of abode in the UK.” (see below).

Legislation

• Immigration Act 1971:
  • Section 1(1) of the Act exempts from immigration control persons who have the right of abode in the UK, if they can prove that they have the right of abode.
  • This means that they do not need to obtain the permission of an immigration officer to enter the UK, and may live and work without restriction.
  • Biometrics cannot be collected from such an applicant.
  • The right of abode is a statutory right, which a person either has or does not have, depending on whether they meet the conditions in section 2(1) of the Act.
  • Under s.2A of the Act, the right of abode can be taken away.
  • The Minister (or officials working on their behalf) cannot confer the right of abode on any person – for example, merely by issuing a passport or certificate of entitlement (Christodoulido – v – SSHD [1985] Imm AR 179).
• British Nationality Act 1981:
  • Section 2(1) of the 1971 Act, as amended by s.39(2) of the1981 Act, defines the two categories of people who currently have the right of abode:
    • British citizens; and
    • Commonwealth citizens who had the right of abode immediately before 01 January 1983 and who have not, since then, ceased to be Commonwealth citizens.

Types of British Nationality

Did you know there are 6 different types of British nationality? To be honest, I did not (they are a legacy of the British Empire). The six types include:

Type of Nationality	Outline
British Citizenship	1. You can live and work in the UK free of any immigration controls if you are a British citizen. 2. You can also get a UK passport. 3. You do not necessarily get British citizenship if you were born in the UK.
British Overseas Territories Citizen	1. British overseas territories citizenship was called ‘British dependent territories citizenship’ before 26 February 2002. 2. There are two specific dates regarding this type of nationality 01 January 1983 and 21 May 2002 (read the linked page as too many criteria to list here). 3. Certain qualifying territories give automatic British citizenship (subject to criteria). 4. An individual will also be a British citizen if they were born outside the UK or in a British overseas territory to a parent who is a British citizen in their own right. 5. Can become a British citizen (subject to certain criteria). 6. Can hold a British passport.
British Overseas Citizen	1. This appears to relate to citizens of Hong Kong, those who would otherwise be stateless, and certain others. 2. Can become a British citizen (subject to certain criteria). 3. Can hold a British passport.
British Subject	1. Until 1949, nearly everyone with a close connection to the United Kingdom was called a ‘British subject’. 2. All citizens of Commonwealth countries were collectively referred to as ‘British subjects’ until January 1983. However, this was not an official status for most of them. 3. Since 1983, very few people have qualified as British subjects. 4. Can hold a British passport. 5. Since 01 January 1983 anyone gaining citizenship of any other country cannot be a British subject, unless they’re also a citizen of Ireland. 6. You may be able to register as a British citizen in very limited circumstances if you meet certain conditions.
British National (Overseas)	1. Someone who was a British overseas territories citizen by connection with Hong Kong was able to register as a British national (overseas) before 01 July 1997. 2. British overseas territories citizens from Hong Kong who did not register as British nationals (overseas) and had no other nationality or citizenship on 30 June 1997 became British overseas citizens on 01 July 1997. 3. Can hold a British passport. 4. Are subject to immigration controls and do not have the automatic right to live or work in the UK. 5. Are not considered a UK national by the European Union (EU). 5. Can become a British citizen (subject to certain criteria).
British Protected Person	1. You would have become a British protected person on 01 January 1983 if you: a) Were a citizen or national of Brunei b) Were already a British protected person c) Would otherwise have been born stateless (without a country) in the UK or an overseas territory because, when you were born, one of your parents was a British protected person 2. In most cases you would have lost your British protected person status if: a) You gained any other nationality or citizenship. b) The territory you were connected with became independent and you became a citizen of that country. 3. Can hold a British passport. 4. Are subject to immigration controls and do not have the automatic right to live or work in the UK. 5. Are not considered a UK national by the European Union (EU). 6. You may be able to register as a British citizen in very limited circumstances if you meet certain conditions.

Dual Citizenship

• Dual citizenship (also known as dual nationality) is allowed in the UK.
• This means you can be a British citizen and also a citizen of other countries.
• You do not need to apply for dual citizenship.
• You can apply for foreign citizenship and keep your British citizenship.

What is the Commonwealth?

The Commonwealth describes itself as:

“a voluntary association of 56 independent and equal countries.

It is home to 2.5 billion people, and includes both advanced economies and developing countries. 33 of our members are small states, including many island nations.

Our member governments have agreed to shared goals like development, democracy and peace. Our values and principles are expressed in the Commonwealth Charter.

The Commonwealth’s roots go back to the British Empire. But today any country can join the modern Commonwealth. The last two countries to join the Commonwealth were Gabon and Togo in 2022.“

The Commonwealth does not use the term ‘Commonwealth citizen’.

Is There Such a Thing as a Commonwealth Citizen?

Short answer: yes.

However, it appears tied to the ‘right of abode’ (as outlined by Richard Chambers; immigration barristers) which is an immigration status which means a person is free to live in, work in, enter and leave the UK without being subject to immigration controls. A person with the right of abode does not need a visa to enter the UK and there are no limits on the length of time they can spend in the UK.

Section 1(1) of the Immigration Act 1971 states the only hindrances those with the right of abode may face are those that are required to “enable their right to be established or as may be otherwise lawfully imposed on any person”. For example, you may be asked to show your passport containing proof you have the right of abode when entering the UK and refused entry to the UK if unable to provide this.

Right of Abode

All British citizens have the right of abode in the UK. 

Certain individuals from Commonwealth countries, who are not British citizens, also have the right of abode in the UK. These are citizens from Commonwealth countries who are able to prove they had the right of abode in the UK on 31 December 1982 and have not ceased to be Commonwealth citizens since then. Section 2 (1) (b) of the Immigration Act 1971 (as amended by section 39(2) of the British Nationality Act 1981) and Home Office Guidance entitled Nationality: right of abode (currently version 7.0, updated on 10 May 2023) sets out the requirements a Commonwealth citizen must meet in order to have the right of abode in the UK.

You must:

• Be a Commonwealth citizen with a parent or adoptive parent who, at the time of the your birth or adoption, was a citizen of the UK and Colonies (CUKC) by birth in the UK;
• OR
• Be a female Commonwealth citizen who is, or has been, married to a man with the right of abode at any time before 31 December 1982;
• AND
• have not ceased to be a Commonwealth citizen at any time since then.

What Counts as a ‘Commonwealth Citizen’ for the Purpose of the Right of Abode?

For a list of Commonwealth countries, see Schedule 3 of the British Nationality Act 1981. Even if a Commonwealth country is currently listed in Schedule 3 of the British Nationality Act 1981, if a Commonwealth country was not part of the Commonwealth on 31 December 1982 or it left the Commonwealth after 31 December 1982, then individuals from that Commonwealth country will not have the right of abode, even if they meet the other requirements for the right of abode outlined above.

Leave and Rejoin

For example, whilst Pakistan and South Africa are currently Commonwealth countries, as they left the Commonwealth in 1972 and 1961 respectively, and only rejoined the Commonwealth in 1989 and 1994, rejoining did not have the effect of reviving any claims by their nationals to right of abode in the UK. Therefore, citizens of Pakistan and South Africa cannot have the right of abode in the UK by virtue of belonging to a Commonwealth country, unless they are British citizens or citizens of another eligible Commonwealth country.

The Gambia withdrew from the Commonwealth in 2013. The Gambia was removed from the list of Commonwealth countries in schedule 3 of the British Nationality Act 1981 on 12 November 2015, and the Republic of Maldives on 12 May 2017. As such their nationals cannot have a right of abode in the UK, unless they also have British citizenship or another Commonwealth citizenship. (The Gambia re-joined the Commonwealth on 22 June 2018, and the Republic of Maldives on 02 June 2021. This does not, however, give their nationals a right of abode in the UK, as they have not remained Commonwealth citizens since before the 1981 Act came into force.)

Exception to the Rule

However, there are some exceptions. For example, Zimbabwe withdrew from the Commonwealth in 2003, but for nationality purposes they still remain on the list of Commonwealth countries at Schedule 3 of the British Nationality Act 1981. Therefore, nationals from Zimbabwe can still have the right of abode in the UK as Commonwealth citizens, as long as they satisfy the other requirements for the right of abode mentioned further above.

Does a Lack of Right of Abode Stop Individuals Joining the British Army?

No. As noted in the above FOI, individuals from a range of Commonwealth countries have joined the British Army, including:

• Bangladesh.
• Cameroon.
• Fiji.
• Dominican Republic.
• Ghana.
• Grenada.
• India.
• Jamaica.
• Malawi.
• Nigeria.
• Pakistan.
• Sierra Leone.
• South Africa.
• St Lucia.
• Trinidad and Tobago.
• Saint Vincent and the Grenadines.
• Zimbabwe.

Summary

From a UK perspective, a Commonwealth citizen is person with a right of abode in the UK who is a citizen of a Commonwealth country that meets certain criteria. A person without the right of abode is classed as a foreign national (regardless of their country of residence).

From the Commonwealth’s perspective a Commonwealth citizen is a person who is a citizen of a Commonwealth country regardless of their right of abode in the UK.