Independence, dual citizenship, and some routes to status regularisation in the UK
(As a Keynote speaker at the Gambian Association Coventry 22/2/2014 Independence
Celebration) – By Lamin J Darboe
Independence
If it was of widespread importance, perhaps controversial, and of an international character, actually and potentially, there is a good chance it is in the United Nations Charter (UN Charter), if only tangentially, or a Resolution of the General Assembly would have dealt with it in some way. Self determination, popularly known as “independence”, is still hugely important to the UN system. This is by no means accidental considering the vast number of today’s UN member states were under colonial rule as of Charter signing in San Francisco, 26 June 1945. Although there were 51 original members as far as Charter signing was concerned, the actual originators of the UN were the principal countries ranged in existential military struggles against Nazi Germany, and Imperial Japan, in different theatres of what came to be known as the Second World War. Those countries, comprising eighty percent of the permanent membership of the UN Security Council were the United States of America (USA), the United Kingdom (UK), the Soviet Union (now Russia), and China. The fifth member, France, was overrun by the Nazi military machine.
Over the years, and as new member states joined either out of conflict, or peaceful severance of ‘external’ colonial ties, the membership of the UN increased, and with South Sudan, admitted in July 2011, the organisation’s membership now stands at 193. We shall not digress into South Sudan’s unfortunate state of affairs but suffice to remind ourselves that independence is about dignity, about saying I am good enough to manage my own affairs, about saying I can self-determine, about a sincere commitment to enlarging national and personal freedom. It is a simple and understandable notion, but a notion that nevertheless generated bitterly violent resistance from the coloniser, and no wonder the UN Charter walked gingerly around decolonisation.
From timid and uncertain beginnings in the UN Charter, the doctrine of self-determination has evolved into one of the most dominant themes of international public life within a generation of 1945. The international climate was conducive to the phenomenal growth of a concept that underwent a sea change from the narrow contours arguably envisaged by the UN Charter. Notwithstanding that the major colonial states of France, and the UK, were on the side of the victorious powers, the Second World War ushered in a bipolar international system with the preeminent centres of global power and influence located in Washington and Moscow. As neither country possessed colonial territories in the conventional sense, they were ill-disposed toward the disproportionate advantage – if only diplomatically – available to France and the UK consequent upon those countries far flung colonial possessions.
Another advantage for the dependent territories was the ideological competition between the USA, and the Soviet Union, and how this played out in their search for client states across the world. “Thus self-determination was transformed from the Wilsonian conception of self-government for oppressed minorities within Europe in the aftermath of the First World War, to being the norm that changed the course of the history of the twentieth century by setting free, the annexed lands of Africa and Asia”.[1] Even considering the uncertain and ill-defined contours of self-determination as understood by different actors, international public life of the day was akin to a dependent territories’ market in so far as the global ideological undercurrents, intersecting with the strong yearning for freedom, acted to decisively undermined colonialism. As a phenomenon of international life, colonialism was, for all practical purposes, in its death throes in the post-war era.
In contrast to its development over time, the international legal basis of self-determination was not as clear-cut as events tend to suggest. As far as references in the Charter to self-determination, it appears that the term was used in connection with the rights of states: In both Article 1(2) and Article 55, the context seems to be rights of the peoples of one state to be protected from interference by other states or governments. We cannot ignore the coupling of ‘self-determination’ with ‘equal rights’ – and it was equal rights of states that was being provided for, not of individuals. The concept of self-determination did not then, originally, seem to refer to a right of dependent peoples to be independent ….[2].
Indeed the two other pertinent sections of the Charter did not mention self-determination at all. At Article 73, the Charter merely refers to ‘self-government’, and at Article 76, it talks about self-government, or independence. However viewed, the climate as of 1945 did not envisage self-determination in the manner it developed post-Charter. In the context of the UN, the doctrine of self-determination presented a fundamental dilemma. Even if there was no legal obligation on the colonizer to grant self-determination to the colonized, the yearnings for freedom, as expressed in incessant demands for independence, could not be wished away. One way or the other, the issue would have to be confronted if potentially widespread and serious threats to international peace and stability were to be avoided. In light of the paucity of authoritative pronouncements on self-determination in the UN Charter, and considering that some of the colonizers insisted on asserting sovereignty over territories where their influence was waning, regardless the resolve of the freedom fighters to see their back, this was an area that promised major threats to international peace and security.
With the Charter’s timidity vis-à-vis the issue of self-determination for territories under colonial rule, the UN General Assembly (UNGA) stepped into the vacuum and initiated some solid steps in addressing this vexed issue. “Since 1945, resolutions passed by UNGA have attributed a wider scope to the right of self-determination, and have brought about major changes in international law”.[3] The parting shot was fired in Resolution 1514, the “Declaration on the granting of independence to colonial countries and people”. It should be emphasized that by this time, as recognized by Resolution 1514, “a large number of dependent territories” were already independent. It was also recognized in the text of the Resolution that a denial of self-determination to colonial peoples “constitutes a serious threat to world peace”. Consequently, it called on colonizers to take immediate steps to bring full independence to colonial territories.[4] With this Resolution, a “political principle of uncertain applications had begun to function as a quasi-legal principle”.[5] More critically, Resolution 1514 “included self-determination as a fundamental human right, bringing it within the scope of the Universal Declaration of Human Rights 1948, by linking it to issues of discrimination”.[6]
Within twenty four hours[7] of Resolution 1514, another resolution was passed by the same body on the matter of colonial territories. Entitled “Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under 73e of the Charter”, Resolution 1541 focused on the international obligation – under Principle IV – placed on colonial countries “to transmit information under Article 73(e) of the Charter in respect of such territories whose peoples have not yet attained a full measure of self-government”.[8] This resolution was directed at Portugal in its insistence that “the ‘overseas territories’ it ruled were sovereign Portuguese territory and not colonies”, thereby exempting itself from the reporting requirement under the Charter.[9] Suffice to say that the Portuguese position was contradicted by both the letter and spirit of the Resolution 1541.[10] Herein the reason why liberation struggles in Portugal’s African dominions were particularly violent.
Unreasonable though its attitude, Portugal was by no means unique, and this meant that the struggle for independence turned quite brutal in some territories of virtually all colonising countries, with the result that freedom fighters were killed, maimed, imprisoned, and exiled. But there was no question freedom was the wave of the future, and country by country, Africa freed itself from the yoke of colonial domination. In a relatively peaceful environment, The Gambia entered the ranks of ‘independent’ states on 18 February 1965. I hastened to add that though widely accepted, this official date of 18 February 1965 as Gambia’s ‘independence day’ is compellingly contested by thinkers like Madi Jobarteh, and Halifa Sallah. In their view, 18 February was part of a journey that was completed with the attainment of republican status on 24 April 1970. Reminding us of Gambia’s continuing subservience to the UK, Halifa points out that “Section 62 of the 1965 Constitution states that “The Executive Authority of the Gambia is vested in Her Majesty “, whereas Section 32 of the same document states that “There shall be a Parliament which shall consist of Her Majesty and the House of Representatives”. In other words, pending legislation must have the Royal Accent to become law. Some independence!
Argued Madi:
… while we gained our so-called ‘independence’ in 1965, the country still had to go for
two referendums to ask people whether they prefer to be an independent republic, i.e. a
nation in which power resides with the people directly which they exercise directly through
their elected representatives, or remain a colonial baggage. The first referendum failed
to achieve the required majority. Five years later a second referendum was held on the
same question on 22 April 1970, the two-thirds majority required was obtained hence
the country was declared a republic on 24 April 1970 and Jawara assumed the
presidency, marking the end of colonialism in the Gambia. Those who know would recall
that in Ghana just as in many states, the colonialists granted Ghana internal self-rule status
in 1951 and Kwame Nkrumah assumed the position of Prime Minster following elections
in which his party, CPP won overwhelmingly. However he never relented, but intensified
the struggle until 6 March 1957 when they gained independence as a republic. Ever
since Ghana continues to observe March 6 as Independence Day. It should have
been a similar story in the Gambia as well, rather for 45 years Gambians gleefully
celebrate 18 February as Independence Day unabated. When will this be corrected?
I wish to call on Gambians to make calls to the National Assembly to make the
necessary changes in our statutes, for we cannot continue to celebrate our oppression
and exploitation on a false notion of freedom. Where are the historians? Where is
the University of the Gambia? Where are our intellectuals? Where are the people with
the knowledge and tools of research and analysis? February 18 may only be termed as
the day the Union Jack was lowered in Banjul with a big celebration, but certainly not
the day we gained independence. The Gambia’s Independence Day is 24 April 1970…
For present purposes, the fundamental point to note is that The Gambia is no longer a British colony. The debate on actual date of sovereignty will continue and it is not beyond the realm of possibility that a future government may decide that 24 April 1970 was indeed The Gambia’s real independence as it was on this date of republicanism that all administrative relationships with the UK were permanently severed. As you ponder the significance of independence, I urge that you consider the topical issues of Ukraine, South Sudan, and the Central African Republic, and the struggle for the soul of these ‘independent’ countries. I am told today is an apolitical event, but I suggest you research the state of public life in The Gambia and decide for yourself whether there is any distinction between ‘external’ and internal aggression. Would you replace one oppressor with another on the illogical grounds that one is foreign, and the other indigenous? What does your answer say about Gambia’s independence in relation to the seminal questions of personal freedom and dignity!
Dual citizenship
Although a child may be born in the UK and never actually visited The Gambia, he or she is nevertheless entitled to automatic Gambian citizenship under certain circumstances. According to Section 10 of the 1997 Constitution of the Republic of The Gambia (the Constitution), “A person born outside The Gambia after the coming into force of this Constitution shall be a citizen of The Gambia by descent if at the time of his or her birth either of his or her parents is a citizen of The Gambia otherwise than by virtue of this section or any comparable provision of any earlier Constitution”.
By a 2001 Constitutional amendment, Section 12A (1) expressly authorises dual citizenship for Gambians by stating that “A citizen of The Gambia who acquires the citizenship of another country may, if he or she so desires, retain his or her citizenship of The Gambia”. It must be noted that dual citizenship is nevertheless proscribed for registered or naturalised Gambians but the Constitution leaves no doubt whatsoever that citizens by birth or descent are not afflicted with this infirmity. At Section 13(4), it states that “Nothing in this or any other provision of this Constitution or any other law shall be construed as depriving, or authorising any person or authority to deprive, any citizen of The Gambia by birth or descent of his or her citizenship of The Gambia whether on account of such citizen holding the citizenship or nationality of some other country or for any other cause”. As the UK also permits dual nationality, there are no issues for children born in this country to Gambian parents in acquiring the citizenship of both countries.
Some routes to status regularisation in the UK
On immigration and nationality, some of the children in this gathering are British nationals consequent on the immigration status of their parents either at, or since their birth. Any child born to a settled parent, i.e., a parent with either Indefinite Leave to Remain, or British Citizenship, is entitled to register as a British citizen, or in some cases to apply directly for a British passport without going through any registration formalities. Even children whose parents are categorised as “illegal immigrants” are entitled to register as British citizens upon reaching the age of 10 years provided they were born in the UK and lived here for the first ten years of their lives.
Citizenship though is at the high end of immigration and nationality rules, and I am reliably informed that some here are more concerned with basic leave to remain in the UK. There may be children here whose immigration status remains in limbo due to the immigration status of their parents. If either parent has even limited leave, absent exceptional circumstances, a biological or adopted child is usually protected pursuant to the family life prong of Article 8 of the European Conventional on Human Rights (Article 8 ECHR) as incorporated into UK law by the Human Rights Act 1998 (HRA 1998). Where the information herein may be significant is in circumstances where neither parent has legal status in the UK. In a situation like that, a child will have no status except where her own rights are triggered under the private life prong of the immigration Rules since 09 July 2012.
In Section GEN. 1.1 of Appendix FM of the Immigration Rules, the SSHD states:
… in considering applications under this route, it reflects how, under Article 8 of the Human Rights Convention, the balance will be struck between the right to respect for private and family life and the legitimate aims of protecting national security, public safety and the economic well-being of the UK; the prevention of disorder and crime; the protection of health or morals; and the protection of the rights and freedoms of others. The SSHD also undertakes to “safeguard and promote the welfare of children in the UK”, presumably irrespective of their immigration or nationality status.
Since 09 July 2012, paragraph 276ADE of the Immigration Rules sets out the criteria the government would expect a person to fulfil in order to establish a right to remain in the UK on the basis of their private life.
“Private life
Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE. The requirements to be met by an applicant for leave to remain on the
grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
***(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK;*** or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.
Leave to remain on the grounds of private life in the UK
276BE. Limited leave to remain on the grounds of private life in the UK may be
granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE are met …”
As stipulated in 276ADE (i) of the Immigration Rules, a suitability requirement must also be met.
“Section S-LTR: Suitability-leave to remain
S-LTR.1.1. The applicant will be refused limited leave to remain on grounds of suitability if any of paragraphs S-LTR.1.2. to 1.7. apply.
S-LTR.1.2. The applicant is at the date of application the subject of a deportation order.
S-LTR.1.3. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for at least 4 years.
S-LTR.1.4. The presence of the applicant in the UK is not conducive to the public good because they have been convicted of an offence for which they have been sentenced to imprisonment for less than 4 years but at least 12 months.
S-LTR.1.5. The presence of the applicant in the UK is not conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law.
S-LTR.1.6. The presence of the applicant in the UK is not conducive to the public good because their conduct (including convictions which do not fall within paragraphs S-LTR.1.3. to 1.5.), character, associations, or other reasons, make it undesirable to allow them to remain in the UK.
S-LTR.1.7. The applicant has failed without reasonable excuse to comply with a requirement to-
(a) attend an interview;
(b) provide information;
(c) provide physical data; or
(d) undergo a medical examination or provide a medical report”
Section EX: Exception
“EX.1. This paragraph applies if
(a) (i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application; and
(ii) it would not be reasonable to expect the child to leave the UK; or …”
Even if the SSHD’s interference is in accordance with the law, the question remains as to whether it is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the UK, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. As applied to individuals, immigrations matters can be quite fact sensitive and the Rules must be applied to the personal circumstances of those concerned. Even where the Immigration Rules are of no help because none of the specific time specifications fits the circumstances of a particular case, the courts are free to apply the Article 8 ECHR regime by way of determining the proportionality of the SSHD’s decision to remove. Legal consultation is generally advised but when complications are encountered, consultation must be regarded as required.
Conclusion
Overall, I am pleased to be invited to this Coventry celebration of Gambia’s 49 ‘independence’, not to impart any new knowledge necessarily, but to socialise with fellow native citizens on this occasion of national freedom, if only at a basic level, from British colonialism. Just don’t tell Madi, and Halifa! What I say here must be seen as merely skeletal as the topics canvassed are quite extensive. I hope that today’s discussion provides an opportunity especially for the children to undertake further research in the topics discussed.
Lamin J Darbo
Coventry, 22 February 2014
[1] Joshua Castellion, International Law and Self-Determination (Dordrech: Martinus Nijhoff, 2000), at 21
[2] Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), at 112
[3] Peter Malanczuk, Akehurst’s Modern Introduction to International Law (Abingdon: Routledge, 1997), at 327
[4] Resolution 1514 “… in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the people of those territories, without any condition or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence …”
[5] Joshua Castellion, International Law and Self-Determination, at 22
[6] Ibid, at 23
[7] Rosalyn Higgins, Problems and Process: International Law and How We Use It, at 114
[8] Joshua Castellion, International Law and Self-Determination, at 27
[9] Ibid, at 27
[10] Resolution 1541, at Principle IV, says that “prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it.