Right of Abode in the UK for Commonwealth Citizens

In this post we look at some of the most frequently asked questions about the right of abode in the UK for Commonwealth citizens. This post covers: what the right of abode is, how to find out if you have the right of abode in the UK if you are a Commonwealth citizen and how to prove you have it.

What is the right of abode?

The right of abode 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.

To read about the history of the right of abode, read the section on ‘Nationality Law and (De)Colonisation’ in this post on our Knowledge Centre.

Who has the right of abode in the UK?

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, Version 5.0, published on  27 November 2019, 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 further above.

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.

However, there are some exceptions. For example, Zimbabwe and The Gambia withdrew from the Commonwealth in 2003 and 2013 respectively, 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 and The Gambia 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.

Who is a citizen of the UK and Colonies (CUKC)?

The ‘UK and Colonies’ refers to the UK and countries Britain colonised. From 1 January 1949 to 31 December 1982, the main form of citizenship was citizenship to the UK and Colonies and people were called ‘citizens of the UK and Colonies’. Citizens of the UK and Colonies who had the right of abode on 31 December 1982 automatically became British citizens under the British Nationality Act 1981. UK Visas and Immigration Guidance entitled Nationality Instructions (UK and Colonies), published on 17 December 2007, lists the countries which are considered to have been part of the ‘UK and Colonies’ at various points in time. 

The Home Office has published a flowchart  on the GOV.UK website to help people assess whether a citizen of the UK and Colonies had the right of abode on 31 December 1982. This may be used to assess whether your parent, adoptive parent or partner had the right of abode on 31 December 1982. If a Citizen of the United Kingdom and Colonies did have the right of abode on 31 December 1982, then they are already a British citizen and therefore have the right of abode in the UK.

In reality, not many citizens from Commonwealth countries will have the right of abode in the UK due to the requirement that their parent must have been a Citizen of the United Kingdom and Colonies and that the parent must have been born in the UK. For this reason and as explained in the Windrush Lessons Learned Review, Independent Review by Wendy Williams, published on 19 March 2020, people from “old” Commonwealth countries such as Canada or New Zealand are more likely to meet the requirements of the right of abode, as opposed to people from “new” Commonwealth countries.

Right of abode for individuals from the Windrush generation

It is possible some individuals from the Windrush generation may meet the requirements of the right of abode in the UK. However, the UK Government has a separate application process for these individuals known as the ‘Windrush scheme’. The Government advises people eligible under the Windrush Scheme to apply for the Windrush Scheme as opposed to applying for a certificate of entitlement to prove you have the right of abode in the UK (more on the certificate of entitlement further below).

How do I prove I have the right of abode in the UK?

If you are a British citizen, your British passport describing you as a British citizen is evidence that you have the right of abode in the UK.

The Home Office’s Guidance entitled, ‘Nationality: right of abode’, Version 5.0, published on 27 November 2019, confirms two other ways to prove you have the right of abode in the UK: 

• a UK passport describing you as a ‘British subject’ with right to abode in the UK; 
• a certificate of entitlement, which is a vignette (or sticker) fixed inside your passport or travel document.
  

How do I apply for a certificate of entitlement?

You can apply for a certificate of entitlement on the GOV.UK website. You can apply using an online form or by completing Form ROA. Form ROA is only available to those applying within the UK.

If you are applying for the certificate from outside the UK, you must apply using the online form. 

Once your passport expires or travel document expires, you will need to apply for a new certificate of entitlement.

What evidence does the application for a certificate of entitlement require?

Home Office Guidance entitled, ‘Right of Abode (RoA) – Applying for a certificate of entitlement to the right of abode’, published in March 2019, states that you will need to provide the following with your application for a certificate of entitlement:

• Your valid passport or travel document;
• Two photographs of you taken no more than 6 months before the date of your application;
• And specific evidence to show how you obtained the right of abode in the UK. The specific evidence required for your application depends on your individual circumstances. Pages 9-12 of the Home Office Guidance and this Schedule in the Immigration (Certificate of Entitlement to Right of Abode in the United Kingdom) Regulations 2006 lists the additional documents you will need to provide with your certificate of entitlement application, depending on the way in which you gained the right of abode in the UK.

How much does the application for a certificate of entitlement cost?

At the time of writing, the application for a certificate of entitlement costs £372 if you are applying within the UK and £388 if applying from outside the UK. 

How long will it take to process my application for a certificate of entitlement?

For applications for a certificate of entitlement made within the UK, the Home Office has not provided an indication as to how long this will take. 

For certificate of entitlement applications made outside the UK, UK Visas and Immigration Guidance entitled Visa decision waiting times: applications outside the UK, published on 10 December 2019, says you should receive a decision on your application for a certificate of entitlement 3 weeks after you attend your appointment at the visa application centre. 

Does the right of abode expire?

If you do have the right of abode in the UK, this will not ‘expire’ and your certificate of entitlement cannot ‘expire’. However, your certificate of entitlement will no longer be valid if your passport or travel document expires. If your passport or travel document containing your certificate of entitlement expires, you will need to obtain a new passport or travel document and apply for the certificate of entitlement again so it can be fixed inside your new passport or travel document.

Whilst the right of abode cannot expire, it is possible you can have your right of abode revoked, restricted or taken away from you completely. This can happen in the following circumstances:

• if it is established that you do not have a right of abode in the UK, or
• you have another passport with a valid certificate of entitlement; or 
• you are polygamously married to a man with the right of abode and another wife has already been issued with a certificate of entitlement, or 
• an order has been made to deprive you of your right of abode.

Contact our Immigration Barristers 

For expert advice and assistance on the right of abode in the UK for Commonwealth citizens and certificate of entitlement applications, contact our British nationality barristers on 0203 617 9173 or complete our enquiry form below.