Mohammad Sarwar’s recent decision to renounce British citizenship in order to take office as Governor of Punjab province in his native Pakistan is another remarkable step in the career of a man who was the first Muslim Member of Parliament, and the first to take the oaths on the Koran. References to Mr Sarwar’s renunciation of his British citizenship suggests that he did not rely on the fact, but it is a little known point of British nationality law that members of Commonwealth countries who have the right of residence in the UK are eligible for election to the Commons – currently under section 18 of the Electoral Administration Act 2006.
That provision ultimately derives from the ancient principle of British citizenship, that those born within the dominions (including colonies) of the monarch have rights of citizenship, including eligibility for parliament. Traditionally, people who were naturalised subjects, however (naturalization was by individual Act of Parliament before the full elaboration of citizenship law), did not acquire full rights – although people born abroad to English parents, under a statute of 1351 (De Natis Ultra Mare, or the Status of Children Born Abroad Act) did. The famous 1608 case of the Post-nati (also known as Calvin’s case), considered this principle in respect of a person born to Scottish parents in Scotland: did he become an English subject after the king of Scotland became the king of England in 1603? The answer was yes – any Scottish person born after 1603 was a subject of the king, and therefore entitled to the rights and privileges of English-born subjects of the king, though this did not apply to people born before 1603.
This would have made them eligible for election to the House of Commons. And as Andrew Thrush reveals in his Introductory Survey to the 1604-29 section of the History of Parliament, MPs in the Jacobean Parliaments were very worried by the idea of an influx of Scots MPs into the Westminster Parliament. Oddly, however, as it seems contrary to the legal principle stated in the case of the post-nati, it was naturalised Scots, born before 1603, who were the first to take seats at Westminster: see ‘Membership‘. The first to sit was John Murray. Were there are any MPs elected before the 1603 union who were only naturalised English subjects? I can only say that we haven’t come across any at the moment.
Perhaps the decision of the Commons not to object to the credentials of pre-nati Scots is just another instance of the point made by Andrew Thrush in his Introductory Survey – the tendency of the Commons to ignore their own rules when it suited them in individual cases. After the Act of Settlement of 1700, however, there could be no ambiguity. The Act was the result of debates in the Commons in March 1700, connected to the need to make provision for the preservation of a Protestant succession in the event of the death of the childless William III and to protect further the rights and liberties of the people – its provisions on qualification for civil and military office clearly imply some criticism of the king’s reliance on his Dutch associates and advisers. The Act’s statement of the law in respect of eligibility for parliament seems, though, to be in line with the 1608 judgement:
no person born out of the kingdoms of England Scotland or Ireland or the dominions thereunto belonging (although he be … made a denizen (except such as are born of English parents) shall be capable to be of the privy councill or a member of either House of Parliament or to enjoy any office or place of trust either civill or military or to have any grant of lands tenements or hereditaments from the Crown to himself or to any other or others in trust for him.
With birth within the dominions of the King the principle governing citizenship, there were plenty of people born in pre-independence America, Canada, Australia and other colonies, and children of people born elsewhere who would become members of the UK Parliament throughout its subsequent history. They include the descendants of French Huguenots, and there are many many examples of people born in the colonies being MPs: see for example the 1754-90 survey sections on West Indians and North Americans.