Ian Macdonald QC has sent in an interesting note on the controversial Capparrelli determination. For background, see original Free Movement write up here: Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children.

Section 1 of the British Nationality Act 1981 (the “1981 Act”), the subject matter whereof is “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—

…

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

Section 1 came into operation on 01 January 1983. In section 50 “settlement” is defined as follows:

“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.”

The Appellant is aged 30 years. He was born in the United Kingdom on 18 March 1986. So the key date is 18 March 1986.

At that date EC Free movement rights were part of UK immigration laws by virtue of the European Communities Act 1972. By section 2 of the Act provision was made for regulations and directives of the EC to have effect in the UK. Community legislation was therefore directly applicable in accordance with UK statute law. The 1972 act together with its later amendments created rights which British courts must protect. For example, the European Economic Area Act 1993 was passed to make provision in respect of the EEA following the agreement on the European Economic Area of 2May 1992 and Protocol 17 March 1993.

The Immigration (European Economic Area) Order 1994 was the first of its kind. It took effect on 20 July 1994. It was later updated by the Immigration (European Economic Area) Regulations 2000 which came into effect on 2 October 2000. Then we had the 2006 regulations and now we have the 2016 ones. These Regulations are made under the statutory power in the European Communities act of 1972, as amended. I would have thought that the free movement provisions in community law are clearly part of the immigration laws as defined. But even more to the point is that, as I point out below, is that the rights and status of EC nationals exercising their free movement rights and coming to the UK were dealt with in the then operative immigration rules.

The UK government initially sought (quite wrongly) to implement the free movement directives by provisions in the immigration rules relating to EC nationals. In HC 169, which came into operation on 9 February 1983, there was provision for the entry of nationals of European community countries and their families at paragraphs 66 to 72, all done in blithe ignorance of EC law. Leave to remain was dealt with in paragraphs 139-147. Para 140 gave those newly admitted six months before applying for a residence permit for a “National of a Member State of the EC”. A residence permit would be issued to the those who had (a) entered employment, (b) established themselves in business or in self employment or (c) were members of the family of such persons.

Paragraph 144 reads as follows:

“A person issued with a residence permit for five years who has remained in the United Kingdom for four years and has throughout that time fulfilled the conditions in paragraph 140 (a), (b) or (c) [as above] and continues to do so may on request have his residence permit endorsed to show permission to remain in the United Kingdom indefinitely. However, the first renewal of the residence permit for a period of not less than 12 months may be more appropriate in the case of a person whose residence permit was issued for employment but who, on its expiry, has been involuntarily unemployed for a period of 12 consecutive months.”

This provision was continued in the immigration rules right up until the introduction of HC 295 in 1994 and the bringing into force the Immigration (European Economic Area) Order 1994. In the rules immediately in force prior to the introduction of HC 395, HC 251 in force from 1 May 1990, the same rule appears at paragraph 151. In the 1994 order a residence permit was to be valid or at least five years, but there is no mention of the person then acquiring indefinite leave to remain after four years continuous residence. This, however, was contained in the original HC 395 at para 255, which reads:

“An EEA national (other than a student) and the family member of such a person, who has been issued with a residence permit or residence document valid for five years, and who has remained in the United Kingdom in accordance with the provisions of the 1994 EEA Order for four years and continues to do so may, on application, have his residence permit or residence document as the case may be endorsed to show permission to remain in the United Kingdom indefinitely.”

Evidence going back into the 80’s may be difficult to attain, because of the passage of time So the Home Office Nationality Instruction entitled “European Economic Area and Swiss Nationals”, quoted by counsel in the UT, was an important and necessary indication relating to the acquisition of British citizenship under the British Nationality Act 1981. Paragraph 8.1 of this policy stated that as regards the period prior to 02 October 2000 –

” Evidence that the person concerned was exercising any description of EEA free movement right in the UK on the relevant date should be accepted as evidence that he or she was not, then, ‘subject under the immigration laws to any restriction on the period for which [they] might remain in the United Kingdom’.”

It seems to me that if the Appellant’s parents were ordinarily resident and had obtained a residence permit for a period of five years the Appellant would have met all the conditions of the British Nationality Act 1981. The Tribunals which have dealt with her case seemed to have meandered all over the place without actually going back to the date of the Appellant’s birth, looking at the applicable legislation at that time and establishing, if possible, the precise circumstances of her parents at that date. It would be difficult to say on any view of the pre- or post-1994 situation that the rules governing the position of nationals of an EC state were not part of UK immigration laws.

It seems to me that the UT have made a serious error, and that possibly the FTT got it right, having found that the parents were ordinarily settled in the UK.

Ian Macdonald QC

16.5.17