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British Citizenship for Children of EEA Nationals

Under the British Nationality Act 1981, those born in the UK will be a British citizen if at the time of their birth either parent is a British citizen or settled in the UK or a qualifying territory. The question of whether a child of an EEA national in the UK would be automatically British therefore hinges on whether that EEA national would be considered ‘settled’ in the UK. This can be a complex question, as is apparent from the High Court’s recent considerations in R (on the application of Roehrig) v Secretary of State for the Home Department [2023] EWHC 31 (Admin) and the resulting implications for the Secretary of State’s consideration of citizenship claims.

Who is considered ‘settled’?

Section 50(1) of the British Nationality Act 1981 states that the definition of ‘settled’ must be construed in accordance with sections 50(2) to (4) of the Act. These sections provide that a person will generally be considered to be ‘settled’ if they are ordinarily resident in the UK and not subject under the immigration laws to any restriction on the period for which they may remain. 

This article will focus on a discussion of the recent case of Roehrig which raises significant questions in respect of the citizenship of children born to EEA nationals in the UK before 30 April 2006, and the impact of this on the Home Office’s consideration of such cases.

Children born after 30 April 2006

The current position is perhaps most straightforward (legally, though perhaps not evidentially) for children born after 30 April 2006.  Following the commencement of the The Immigration (European Economic Area) Regulations 2006, only those who had acquired a right of permanent residence in line with these regulations (and subsequently the 2016 regulations) would be considered settled in the UK. Under Regulation 15 of the 2006 regulations, an EEA national will acquire a right of permanent residence after 5 years residing in the UK in accordance with the regulations, and evidence of this may need to be provided in the case of an individual born after 2006 and prior to 2020, when their parents would have been required to make an application under the EU Settlement Scheme in any case.

Children born before 30 April 2006 

Prior to 2 October 2000, the Secretary of State had operated on the basis that EU citizens resident in the United Kingdom under European Union law were resident in the UK without any restriction on the period for which they could remain in the UK. The Home Office’s guidance on acquisition of citizenship stated that for those born in the UK between 1 January 1983 and 2 October 2000, an applicant will be automatically British if at least one parent was both a citizen of the EU or EEA at the time, and living in the UK exercising free movement rights. 

However, the Secretary of State considered there to be a fundamental difference following the commencement of the 2000 Regulations and the revocation of the relevant provisions of the 1994 Order. After this time, the Secretary of State was required to issue a residence permit valid for at least 5 years to a qualified person,  provided they made the relevant application and to apply for that to be endorsed as showing permission to remain indefinitely. The Secretary of State’s guidance therefore took a different approach, stating that:

Most children of EU or EEA citizens born between 2 October 2000 and 29 April 2006 are not automatically British citizens.

You’re automatically a British citizen if when you were born all of the following applied to at least one of your parents:

  • they had citizenship of a country that was in the EU or the EEA at the time
  • they lived in the UK
  • they had ‘indefinite leave to remain’ (ILR), ‘right of abode’ or ‘right of re-admission’

The case of Roehrig

The Claimant in this case was in the second category, born on 20 October 2000. The Claimant’s mother (M) had arrived in the UK in 1995. The Claimant was born in the UK on 20 October 2000. From 2 October 2000, and at the time of the Claimant’s birth, M was entitled, under the 2000 Regulations and Rule 255 of the Immigration Rules, to apply for a residence permit and to apply for that to be endorsed as showing her permission to remain in the UK indefinitely. However, she had not made such an application or received such an endorsement. 

The High Court considered whether M was settled within the meaning of the British Nationality Act 1981 in two parts. The first question was whether she was subject to a restriction under the immigration laws. The second was whether that restriction was a restriction on the period for which she might remain in the UK.

The first question amounted to a consideration of whether the 2000 Regulations should be considered ‘immigration laws’ for purposes similar to the 1971 Act. The Court answered this question in the affirmative. The Claimant had argued that this was not the case because the 2000 Regulations were giving domestic effect to a right of free movement derived from EU law (and therefore that this was their purpose, and not a purpose that was similar to the 1971 Act). However, this argument was rejected. The Court further found that the qualification in the regulations that M was only entitled to remain so long as she was a qualified person, was a restriction under such laws.

The second consideration was whether the restriction was a restriction on the period for which M might live in the UK. The Court accepted that for there to be a restriction on the period for which a person could remain, it must be possible to identify at the start of the period what the facts or circumstances are which would bring the period to an end. However, in the context of EU citizens it was considered that despite there being a range of circumstances which might bring the period when an individual could be a qualified person to an end,  these circumstances could all be identified at the beginning of the period. It was therefore considered that the restriction to which M was subject was a restriction as to the period for which she might remain in the United Kingdom.

As such, the conclusion of the High Court was that M was not settled in the UK for the purposes of the British Nationality Act 1981, and thus her child (the Claimant) had not automatically acquired British citizenship.

The Secretary of State’s current guidance

The difficulty that arises from the conclusions of Roehrig is that the Claimant’s arguments, which were rejected by the Court, may be considered to apply equally to those born prior to 2 October 2000. Unfortunately for the Secretary of State, this meant that the Court’s findings may by implication mean that their approach to this group has been incorrect.

The High Court noted that the Secretary of State continued until 11 October 2022 to treat children born before 2 October 2000 to EU citizens residing in the UK pursuant to their rights under EU law as having acquired British citizenship at birth. It states that “In the Defendant’s skeleton submissions it was explained that this was an approach adopted as a matter of policy and fairness. That is because such persons had been regarded and had regarded themselves as British citizens and the Secretary of State took the view “that it would be unfair to treat those individuals differently simply because of the date at which their situation became clear”.” 

A footnote further confirmed that on 11 October 2022, the Secretary of State “paused” that approach intending, as it was understood, to review the position partly in light of the conclusions reached by the High Court as to the effect of the relevant legal provisions. 

The Home office has since updated their guidance. The current caseworker guidance on automatic acquisition, published on 23 March 2023, has been amended and states as follows:

“While the Home Office assesses recently identified legal issues, the policy for the acquisition of citizenship by individuals born in the UK between 1 January 1983 and 1 October 2000 inclusive to an EEA national parent has been suspended. However, if someone has already been recognised as a British citizen, for example through the issue of a British citizen passport, we will continue to treat them as such.”

Whilst the policy might alleviate any potential concerns raised by Roehrig for individuals who have benefitted from the Secretary of State’s former approach, the question remains how those born between 1 January 1983 and 1 October 2000 to EEA nationals may now be treated. The High Court’s interpretation of the law may be subject to further litigation. Ultimately, the question of whether these individuals are British is a question of law, rather than discretion or ‘policy and fairness’. As a result, substantial changes may be in sight if these conclusions stand, unless legislative changes are enacted to protect those affected. 

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