The Unheard Voices: Right of Abode and CUKC Status Loss During Mauritian Independence

Mauritius’ independence from the British Empire on March 12, 1968, is often hailed as a triumph of self-rule. However, alongside this achievement lies an overlooked aspect of independence that continues to affect Mauritians to this day: the loss of their Citizen of the United Kingdom and Colonies (CUKC) status. This status, which once granted Mauritians not just the opportunity for work and mobility, but a birthright to access the United Kingdom, was revoked without their explicit consent. This article critically examines the consequences of this loss and argues for the restoration of the rights that were unjustly stripped away.

The British Nationality Act 1948: Rights Beyond Mobility

The British Nationality Act of 1948 established CUKC status, which conferred British nationality to colonial subjects, including Mauritians. This status was more than just a legal designation—it granted Mauritians the right of abode in the United Kingdom, effectively making the UK an extension of their homeland. It is crucial to understand that CUKC status was not merely about access to work or mobility; it was a birthright tied to the identity of those born on British colonial soil.

When the Immigration Act of 1971 came into force, it created a two-tier system, distinguishing between patrials—those with an automatic right of abode in the UK—and non-patrials, who were primarily from non-white Commonwealth countries, including Mauritius. The majority of Mauritians, as non-patrials, lost their automatic right to enter and live in the UK, even though they had been born British subjects on British territory.

Section 20 of the Mauritius Constitution: A Critical Analysis

Section 20 of the Mauritius Constitution, implemented upon independence in 1968, is key to understanding the transition from British to Mauritian citizenship. It automatically made Mauritians citizens of the newly independent nation, regardless of their individual wishes. Subsection 20(3) specifically addresses the status of those born outside Mauritius to parents who were CUKCs:

“Every person who, having been born outside Mauritius, was on 11 March 1968 a citizen of the United Kingdom and Colonies, if either of his parents became, or would but for his death have become, a citizen of Mauritius by virtue of subsection (1) or subsection (2), became a citizen of Mauritius on 12 March 1968.”

This provision extends Mauritian citizenship to descendants of CUKC parents who had passed away prior to independence but would have otherwise become Mauritian citizens. While this ensures that children of deceased CUKCs become citizens of Mauritius, it creates a significant issue: these children lose their ability to claim British nationality by descent. Once the deceased CUKC parent’s nationality is severed by Mauritian citizenship laws, there is no longer a legal link to British nationality. This is an important consequence for Mauritians born outside of Mauritius who, had they retained CUKC status, could have passed their British nationality to their own descendants.

This raises an important ethical question: Was this legal change, which effectively broke the chain of descent for British nationality, a fair consequence of independence, or did it deprive individuals of their birthright to British citizenship simply because their parent passed away before independence?

The Amennee Bhairoo v. Secretary of State for the Home Department Case: A Quest for Justice

The case of Amennee Bhairoo v. Secretary of State for the Home Department (IA/03887/2015) provides critical insights into the struggle for the recognition of lost rights by former colonial subjects. In this case, Mrs. Amennee Bhairoo, a Mauritian national, appealed for recognition of her rights as a former CUKC, arguing that she had been unjustly deprived of the associated privileges of British nationality.

The tribunal initially allowed the appeal, raising important questions about the treatment of former colonial subjects under the British Nationality Act and their right to retain or reclaim British nationality. However, in a later ruling, the tribunal ultimately denied the appeal. This outcome highlights the difficulty faced by former CUKCs in reclaiming their lost nationality and rights, despite legitimate arguments based on their colonial status.

The case underscores the complexity of these legal claims and the reluctance of the UK government to restore rights to those who were once British subjects. While the case did not result in a favorable outcome for Mrs. Bhairoo, it brought to light significant issues around the loss of CUKC status, particularly for individuals from non-white Commonwealth countries, such as Mauritius.

A Breach of Trust and Disproportionate Impact on Non-White Commonwealth Citizens

The Immigration Act of 1971 divided Commonwealth citizens into patrials and non-patrials, a classification that was inherently biased against non-white former colonies. The fact that many white Commonwealth citizens were able to retain their right of abode in the UK, while most non-white citizens, including Mauritians, were stripped of theirs, suggests a racial and colonial bias in the post-independence immigration policies of the UK.

This breach of trust is evident in how the transition to independence was handled. Mauritians were not given a choice in retaining their CUKC status. Independence negotiators like Sir Seewoosagur Ramgoolam focused predominantly on achieving political sovereignty and economic independence. While these goals were undoubtedly important, the negotiators overlooked the personal and legal ramifications of losing British nationality, leaving generations of Mauritians without the rights they were entitled to as former subjects of British colonial rule.

Would the Mauritian population have voted for independence had they been fully informed of the loss of their right of abode and access to the UK? This is a question that still lingers, and one that highlights the lack of transparency in the independence process.

The Chagossians: A Case Study in Injustice and Restoration

The case of the Chagossians, who were forcibly removed from their homeland by the British government, offers an illuminating parallel. Chagossians, despite being displaced, retained the right to register for British citizenship—a right that is still available to them today. The International Court of Justice (ICJ) and the United Nations have both ruled that the UK does not have sovereignty over the Chagos Archipelago and that Mauritius should hold sovereignty.

If Chagossians, as former colonial subjects, can retain a pathway to British citizenship, why shouldn’t all former CUKCs, including Mauritians, be entitled to the same? The restoration of CUKC rights to Mauritians would be an equitable solution to an injustice that was never rectified.

The Impact on Future Generations: A Right That Should Be Restored

The loss of CUKC status continues to affect not just those who lived through independence but also their descendants. Had Mauritians retained their CUKC status, the younger generation today would benefit from access to the UK for education, employment, and mobility. This is not just about opportunities—it is about reclaiming a birthright that was unjustly taken from their parents and grandparents.

Restoring the rights of those who lost their CUKC status, or granting it to their children, would empower the younger generation with the opportunities that their ancestors were denied. It is time to correct this historical wrong, not just for the sake of legal justice, but for the sake of future generations.

Recommendations for Restoring Rights

To address this historical injustice, the following steps should be considered:

1. Restoration of Citizenship Rights: The UK government should create a legal pathway for the restoration of CUKC rights to Mauritians who lost their status due to independence, similar to the provisions made for Chagossians.
2. Dual Nationality: Mauritians who can trace their ancestry to those who held CUKC status should be offered the right to dual nationality, allowing them and their descendants to access the opportunities their ancestors were denied.
3. Legal Challenges in International Courts: The Mauritian government and civil society should consider pursuing legal challenges in international courts, arguing that the loss of CUKC status was a violation of international law, particularly in light of the racial discrimination inherent in the 1971 Immigration Act.
4. Diplomatic Engagement: The Mauritian government should engage with the UK diplomatically to negotiate the restoration of rights for former CUKCs, using international forums to advocate for justice.

Conclusion: A Call for Justice and Dignity

As Mauritius reflects on its path to independence, it is crucial to address the forgotten consequences of this transition. The loss of CUKC status was not just an administrative change; it was a deprivation of birthrights that continues to impact Mauritians today. The restoration of these rights is not only a matter of legal redress—it is a matter of justice and dignity.

By reclaiming these rights, we can ensure that future generations of Mauritians have the opportunities and access that were unjustly taken from their ancestors. The time has come to correct this historical wrong and restore the dignity that was lost.

Written by C.S RUPEAR