NATIONALITY or citizenship is the link between a person and a state recognised internationally. It does not indicate a person’s ethnic origin but it binds him or her to a country and its political system. Consistently with customary international law and the principles of law generally recognised with regard to nationality, constitutional laws normally determine who is recognised as a citizen, leaving no room for discretion and no possibility of discrimination.
The history and content of nationality law is often revealing about the nature of a state in the sensitive area of who it accepts as belonging to it as a nation. Anyone wishing to study Britain’s retreat from empire would do well to study British nationality laws from 1914 onwards.
As Britain disengaged from empire, so her nationality laws changed to reflect her retreat. From the pomp of imperial laws such as the British Nationality and Status of Aliens Act 1914 to the pragmatism of the British Nationality Acts 1948 and 1981, the legislative trajectory provides a fascinating insight into Britain as the sun began to descend on the British empire and the British Raj.
Under the British Nationality Act 1948, citizens of the Commonwealth retained their status as British subjects but acquired a national citizenship on becoming independent. Thus, when India became independent, Indians retained their umbrella status as British subjects but also became citizens of India. Being a British subject was not, however, a status devoid of content. It carried important rights to live and work in Britain, including employment in Crown service, and the right to vote in national elections.
As for people in Britain and the rest of the empire, they remained British subjects and became citizens of the UK and Colonies. The scheme was such that, as colonies got their independence, people retained their status as British subjects and acquired the national citizenship of the country gaining independence. However, although the UK did not gain independence herself, her people acquired citizenship of the UK and Colonies – now British citizenship – instead of the status of natural-born British subjects.
So, when Cyprus became independent in 1960, persons of Cypriot origin became citizens of the Republic of Cyprus. Some had previously been Ottoman citizens but on 5 November 1914 Britain declared war on the Ottoman Empire and annexed Cyprus, whereupon all Ottoman citizens ordinarily resident in Cyprus became British subjects by annexation. In 1925 Cyprus was declared a Crown Colony and in 1948 persons of Cypriot origin became citizens of the UK and Colonies as Cyprus was then still a colony.
The scheme of the Cyprus independence legislation concerning citizenship was to make it part of treaty law as well as part of Cyprus’ constitution, which means it cannot be suspended or changed unilaterally under the doctrine of necessity. Annex D forms an integral part of the 1960 treaty concerning the establishment of the Republic of Cyprus. Basically, it provides for the automatic acquisition of citizenship by all persons born in Cyprus before independence or descended in the male line from Cypriots ordinarily resident in Cyprus at any time during 5 years before independence on 16 August 1960.
All other persons of Cypriot origin not ordinarily resident in Cyprus were entitled to citizenship on application, provided the grant of Cypriot citizenship kept a ratio of 4 to 1 as between the two core communities.
By article 198 of the Cyprus Constitution, pending a law incorporating Annex D, the rights to citizenship contained in Annex D were given constitutional force.
As for those born after 1960, a person became a citizen if his father – and after 1999 his mother – was a citizen of the republic at the time of his birth.
In other words, all rights to citizenship acquired under Annex D or by birth after commencement to a father who was a citizen of the Republic of Cyprus were preserved under the constitution.
Laws have been passed since 1960 but they cannot detract from the basic rights given under treaty and the constitution and in so far as they do detract they are repugnant or, to give the term it Latin tag, they are ultra vires the Cyprus constitution.
Denial of citizenship to the children of persons of Cypriot origin is in breach of treaty law, the law of the constitution, the EU Charter on fundamental rights, EU citizenship rights, the UN Convention on the Rights of the Child and the plethora non-discrimination provisions provided in all those laws.
The procedure known as naturalisation is how non-citizens acquire citizenship by choice. There is nothing much to say about acquisition by naturalisation except that recently Cypriot citizenship is being granted with relative ease in the healthy pursuit of financial gain. Nothing wrong with that since many member states are engaged in such activities – Luxemburg tops the list and although Cyprus is a close third after Sweden, she is in good company.
If done abusively, however, the European Union may in the end indirectly curtail the right of member states to grant citizenship. It would not be easy to change the treaty that provides that every citizen of a member state is automatically a citizen of the EU, with all the rights that European Union citizenship confers – particularly the right of freedom of movement within the EU – but as we all know the EU always finds a way to get its way. Citizenship of any EU state is an extremely valuable commodity at a time of very strict immigration control across the whole of Europe and member states will be called to account if they continue granting citizenship incontinently.
At the other end, with Brexit looming large many British citizens are seeking ways of retaining freedom of movement within the EU after Britain leaves, despite the eccentric decision of the majority to quit the EU. For example, some people have discovered that their Irish descent is not just a charming bit of family history or the source of their gift of the gab but a basis for acquiring Irish citizenship to retain their status as EU citizens.
As for Northern Ireland the situation is very Irish, in that under Irish law all persons born in the island of Ireland are entitled to citizenship of Eire which means that after Brexit there is at least going to be freedom of movement of persons with Irish passports between Eire and Northern Ireland.
Many British citizens of Cypriot origin will also discover that their connection with Cyprus is not just a bit of Mediterranean exoticism but a way of having their Brexit cake and eating it; as indeed the Brexit Bulldog, David Davies, is seeking to achieve for the rest of Britain.
Time was when having a British passport inscribed with the mildly pompous ‘Her Britannic Majesty’s Secretary of State requests and requires in the name of Her Majesty all those to whom it may concern to allow the bearer to pass freely without let or hindrance’ was preferable to the banal passport of Republic of Cyprus which is in similar terms but with no references to Her Britannic Majesty. Not any more. These days many British citizens with Cypriot ancestry and their spouses will no doubt claim Cypriot citizenship in order to retain their rights as EU citizens to move freely within the EU.
For this and many other reasons every person of Cypriot origin must, on proof of such origin, be entitled as of right to citizenship of the Republic of Cyprus – no ifs no buts. The republic has a strategic interest to wean the Turkish Cypriot community off its dependence on Turkey – particularly under the present regime – and there is no better way of doing so than making them feel they belong to the republic.
Alper Ali Riza is a queen’s counsel and a judge in the UK