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When is a child born in the UK to EU national parents British?

Section 1 of the British Nationality Act 1981 (the “BNA 1981”), titled “Acquisition by birth or adoption”, provides:

“(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is—

(a) a British citizen; or

(b) settled in the United Kingdom or that territory.”

In view of this, a child born in the UK to EU national (non-British) parents will be British by birth if her mother or father (as defined by BNA 1981) were settled in the UK at the time of the child’s birth.

Section 50 of the BNA 1981 provides:

“(1) In this Act, unless the context otherwise requires—

“settled” shall be construed in accordance with subsections (2) to (4) …

(2) Subject to subsection (3), references in this Act to a person being settled in the United Kingdom or in a British overseas territory are references to his being ordinarily resident in the United Kingdom or, as the case may be, in that territory without being subject under the immigration laws to any restriction on the period for which he may remain.”

To establish whether such a child is a British citizen by birth, it will be essential, therefore, to consider whether either of her parents were ordinarily resident in the UK without any time restrictions.

The first thing to consider is whether the Member State (including Members of the EU, the EEA (Iceland, Norway and Liechtenstein) and Switzerland) had acceded to the EU (the EEA and the Switzerland-EU agreement, respectively) at the time of the child’s birth.

If the answer to this is yes, consideration of the child’s parents’ rights of residence under EU law should follow.

Children born from 30 April 2006 to present

The UK implemented Directive 2004/38/EC (the “Citizens’ Directive”) through the Immigration (European Economic Area) Regulations 2006 (the “2006 Regulations”), which came into force on 30 April 2006. They were followed and replaced by the Immigration (European Economic Area) Regulations 2016 (the “2016 Regulations”), which implement the same Directive.

The Directive and, as a result, both sets of domestic Regulations implementing it, make provision for the right of “permanent residence” for EU nationals and their family members. Particularly, EU nationals who have lived in the UK exercising Treaty rights continuously for a period of at least 5 years and any family members who have resided for the same period with them (or who, by the end of such period have retained the right of residence) will have acquired a permanent right of residence in the UK. Other categories include workers or self-employed persons who have ceased activity and their family members.

In view of this, any child born in the UK from 30 April 2006 to an EU national (or family member of an EU national) parent is British, as long as her parent had acquired a right of permanent residence at the time of her birth. There is no need for the parent in question to have obtained a document certifying permanent residence or a permanent residence card, as EU rights of residence exist by operation of law and such documents only evidence their existence. It would assist if such a document had been issued to the parent and supported a British passport application for the child, but other evidence of the existence of a right of permanent residence could be provided instead.

Children born between 2 October 2000 and 29 April 2006

The Citizens’ Directive introduced the right of permanent residence. However, regulation 8(1) of the Immigration (European Economic Area) Regulations 2000 (the “2000 Regulations”), which came into force on 2 October 2000, provided as follows:

Persons not subject to restriction on the period for which they may remain

8.—(1) For the purposes of the 1971 Act(1) and the British Nationality Act 1981(2), the following are to be regarded as persons who are in the United Kingdom without being subject under the immigration laws to any restriction on the period for which they may remain—

(a)a self-employed person who has ceased activity;

(b)the family member of such a person who was residing with that person in the United Kingdom immediately before that person ceased his activity in the United Kingdom;

(c)a family member to whom regulation 5(4) applies;

(d)a person who has rights under Regulation 1251/70;

(e)a person who has been granted permission to remain in the United Kingdom indefinitely.

Regulation 1251/70 referred to the circumstances in which workers who had been employed in a Member State and ceased activity (and their family members) had a right to remain in the territory of that State permanently. Whilst this Regulation has been superseded by the Citizens’ Directive, the categories of persons in regulation 8(1)(a)-(d) also enjoy a right of  permanent residence under that Directive and the 2006 and 2016 Regulations.

Finally, the category in regulation 8(1)(e) refers to individuals who have been granted indefinite leave to remain (“ILR”) in the UK.

In view of the foregoing, if the parent of a child born in the UK had ILR at the time of the child’s birth, or was otherwise a person to whom regulation 8 of the 2000 Regulations applied, the child is British by birth. Evidence of the above should be provided in an application for a British passport made on behalf of the child.

Children born before 02 October 2000

The position of children born in the UK to EU national parents before this date has become muddied.

The Home Office guidance titled European Economic Area (EEA)and Swiss nationals: free movement rights”, published on 20 October 2017 (v. 17.0), provides:

Evidence that the person concerned was exercising any type of free movement rights in the UK before 2 October 2000 (for example as a worker) must be accepted as evidence that they were not subject to any restriction on the period for which they might remain in the UK. This means they can be treated as if they were settled in the UK.

However, McCloskey J, then President of the Upper Tribunal (Immigration and Asylum Chamber) had a different view, as held in Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 00162 (IAC).

McCloskey J considered that the Home Office guidance could not be a legitimate aid to the construction of legislation. He then considered that the reference to “immigration laws” in s.50 of the BNA 1981 did not encompass EU laws on free movement, but only domestic law. Because of that, McCloskey J concluded that “in the case of EU citizens, no question of a time restriction under the immigration laws can arise. It follows that EU citizens can never satisfy the second part of the definition [of “settled” for the purposes of the BNA 1981]”. The correctness of this judgment is questioned by practitioners.

Entitlement to registration for children that are not British by birth

Even if a child is not a British citizen by virtue of her parent being settled in the UK at the time of her birth, the child is entitled to register as a British citizen if the parent in question becomes settled after the child’s birth and whilst the child is a minor. In those circumstances, an application for registration under s.1(3) of the BNA 1981 ought to be made whilst the child remains a minor.

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