An important update confirms British citizenship rights for people born to EU citizens between 1 January 1983 and 1 October 2000 following a change in the Home Office’s position on how British nationality law applies to them.

The change was first announced during a hearing before the High Court in October 2022 and although litigation in this case continues, the intention of the Home Office to make these changes now is a useful and practical step. This announcement follows a meeting with the Project for the Registration of Children as British Citizens (PRCBC) and Amnesty International UK, ILPA, the3million and HM Passport Office, as well as updated Home Office guidance that was published last month, withdrawing the Home Office’s previous policy.

Background

Historically every child born in the UK was automatically British. Then the British Nationality Act 1981 came into force on 1 January 1983 which said that a child born after that date would only be born British if at least one of their parents was British or was settled at the time of the birth.

EU law, which is the legal basis on which an EU citizen resided in the UK before Brexit, not domestic law, imposed no limit to the period for which an EU citizen might remain in an EU country other than their own. There was no specific qualifying period of time before becoming “settled”. The Home Office’s position was that the children born in the UK to EU citizens between 1 January 1983 and 2 October 2000 have been considered to be British citizens.

The Home Office’s position on what was required for a parent to be considered “settled” changed on 2 October 2000, when they took the view that an EU citizen had to have indefinite leave to remain to be considered settled. And from 2006, the Home Office maintained that the parent had to have acquired permanent residence.

The idea that the Home Office could change by policy update the basis on which British citizenship was acquired as a matter of law was suspect. In the litigation last October, it was said that the entire basis for recognising children of EU citizens born before 2 October 2000 as British was “as a matter of policy and fairness”. But what would that mean for an EU citizen born during this period who derived their claim to British citizenship from one parent who was an EU citizen but who did not have indefinite leave to remain; would they be able to re-enter the UK if they travelled; would their citizenship be nullified and passports withdrawn; and should they spend money applying for a passport?

The update

This update confirms the need for legislative change. The intention is “to amend British nationality law so that what had been understood and applied, up to at least October 2022, by the Home Office concerning the law between 1 January 1983 and 1 October 2000 should be made law by Act of Parliament”.

According to a joint statement issued by PRCBC, Amnesty, ILPA and the3million:

“the immediate protective operational measures are to:

• continue to respect the right to a British passport of anyone affected by this change to whom it has previously issued either a British passport or some other confirmation of their British citizenship (including processing any application to renew a passport); and
• find ways that may enable a person affected by this change, who has not previously been issued with a British passport or some other confirmation of their British citizenship, to secure British citizenship (or failing that, some other secure status in the UK in the interim).”

The change will positively affect and provide clarity to people born in the UK to EU citizens between 1 January 1983 and 1 October 2000, and the children born to these individuals. There may also be circumstances where the change may affect EU citizens who naturalised as British citizens between these dates.

But the change does not currently go far enough. The underlying problem arises when a child is legally British but cannot prove it. Children born after 2 October 2000 to EU citizens who did not have a passport application made for them soon after birth and whose parents had not applied for a permanent residence certificate or card either have to rely on their parents later being able to find documentary evidence in order to prove their citizenship or, worse, have to somehow do that themselves. This evidence is usually five years of their parents’ payslips.

This only applies where the only claim to British citizenship is through EU parents. Where one parent was British or had indefinite leave to remain or a permanent residency certificate or card, then the child has an alternative clear route to citizenship. 

The same legislation and approach could be used to extend British citizenship to the children of EU citizens born in the UK after 2 October 2000 as well, given that they currently face an array of serious problems proving their status. PRCBC await permission from the Court of Appeal in the case of Antoine Roehrig v Secretary of State for the Home Department. You can read more about this case so far, here. For now, the intention for the Home Office to make the changes announced now, ahead of the conclusion of the court case, is positive.