The British Nationality (Regularisation of Past Practice) Act 2023 came into force on 29 June 2023. It inserts a new section 50B into the British Nationality Act 1981. Section 50B definitively and retrospectively confirms the British nationality status of all children born in the UK between 1 January 1983 and 1 October 2000 to an EU citizen parent who was exercising free movement in the UK at the time of their child’s birth.

This new legislation is good. It commits a long-standing Home Office policy to the statute book, and resolves a discrepancy between law and policy which was thrown into sharp focus on 20 January 2023 in R (on the application of Roehrig) v Secretary of State for the Home Department [2023] EWHC 31 (Admin). Our detailed write-up of Roehrig is worth reading to better understand why this has become an issue now, over two decades after the period in question.

The Home Office factsheet accompanying the new legislation doesn’t want us to get too excited:

this change does not create ‘new’ British citizens. This is about protecting the citizenship of individuals we had long considered British already under established Home Office policy.

But I think it is worth a little bit of excitement. The High Court decision in Roehrig could have had disastrous implications. Thankfully, the Home Office legislated swiftly to ensure that was not the case.

Background

We previously explained the background to the new legislation in this 12 April 2023 update:

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 1 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”.

What does the new law say?

The new section 50B directly addresses the criticisms that Home Office policy was not based on law. It does this by importing the long-standing Home Office policy directly into statute to specifically confirm that those exercising freedom of movement were considered not to be subject to any restriction under the immigration laws on the period in which they may remain in the UK.

In plainer English, it confirms they were “settled” for the purposes of their UK-born children’s automatic acquisition of British citizenship under section 1(1)(b) of the British Nationality Act 1981.

A person exercising a freedom of movement right at any time falling within the remedial period is treated for the purposes of this Act as not subject at that time under the immigration laws to any restriction on the period for which they may remain in the United Kingdom.

Section 50B(1) of the British Nationality Act 1981

There are two key terms in this – “freedom of movement right” and “the remedial period” – both of which are defined in section 50B(2).

In this section—

“freedom of movement right” means—

(a)a right to reside in Great Britain and Northern Ireland that arises under or by virtue of—

(i)section 2(1) or (2) of the European Communities Act 1972, or

(ii)any other enactment so far as passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of that Act, or

(b)a right to reside in any of the Islands that is conferred by reference to, or that otherwise corresponds to or is similar to, a right within paragraph (a);

“the remedial period” means—

(a)where the freedom of movement right is a right to reside in Great Britain and Northern Ireland, the period beginning with 1 January 1983 and ending with 1 October 2000;

(b)where the freedom of movement right is a right to reside in the Bailiwick of Guernsey, the period beginning with 1 August 1993 and ending with 30 September 2004;

(c)where the freedom of movement right is a right to reside in the Bailiwick of Jersey, the period beginning with 1 January 1983 and ending with 8 February 2004; (d)where the freedom of movement right is a right to reside in the Isle of Man, the period beginning with 1 October 1994 and ending with 1 October 2000.

Section 50B(2) of the British Nationality Act 1981

Section 50B is to be “treated as always having had effect” (in other words, section 50B is retrospective) under section 1(2) of the British Nationality (Regularisation of Past Practice) Act 2023.

Practical consequences

The Home Office’s policy relating to this type of automatic acquisition of British citizenship was withdrawn on 23 March 2023 and all pending first-time passport applications reliant on this policy were placed on hold. As of 29 June 2023, this hold has now been lifted and we are back to business as usual, with a new version of the automatic acquisition policy guidance now in force. Now that we have moved beyond the Roehrig hiccup, very little changes in practice.

How to prove automatic acquisition of citizenship based on section 50B

Section 50B is just a legal definition. Certainly for the first generation of children affected, any automatic citizenship claim would typically be made under section 1(2). Other sections could be engaged where a child born before 2 October 2000 has since had a child of their own.

For now, if we focus on automatic acquisition under section 1(2), a claim to citizenship would simply be asserted in the same way as always: via an application to Her Majesty’s Passport Office for a British passport, or via an application to the Home Office for a certificate of entitlement to the right of abode. There is no need to apply for registration or naturalisation, because this type of citizenship is bestowed automatically by law at birth.

Actually proving that a parent was exercising freedom of movement rights at the time of a child’s birth can be very tricky though. Evidence is required from a parent and from a period 22 to 50 years ago. The British Nationality Act 1981 does not mandate any specific evidence to prove an automatic claim to citizenship, but a table of evidence to accompany passport applications is set out at Table B in the Passport Office guidance on Treaty Rights passport applications.

Table B outlines six categories of qualified person that an eligible parent might have been:

1. Workers
2. Jobseekers
3. Business person or selfemployed person
4. Self-sufficient person where the child was born after 30 June 1992
5. Students where the child was born after 30 June 1992
6. Family member

As an example of the type of evidence required, a worker would be expected to supply employment evidence to prove that they were employed at the time of the child’s birth. This could take the form of payslips or P60s, but only the most meticulous record-keepers will have held on to those after two decades.

An alternative that can be accepted is an HMRC employment history statement showing employment start and end dates, pay and tax. As long as the child’s birth falls within those start and end dates, that should suffice. Other options could include a letter from an employer or a contract of employment.

Table B sets out expected evidence for all of the other categories of qualified person. In all instances, evidence of mere physical presence in the UK is not going to be enough; there must also be evidence of one of the freedom of movement rights associated with presence in the UK being exercised.

All first-time passport applicants reliant on the section 50B definition will now be adults and will be making their own applications in their own name. Some may no longer have parents available to help them. Eligible applicants unfortunately remain reliant on their parents to supply them with the necessary evidence to assert their first claim to British citizenship. The onus is on the applicant to prove their case, and this may not be straightforward after all these years.

What about the ongoing Roehrig litigation?

The Roehrig case is still pending before the Court of Appeal according to a 6 June 2023 joint briefing to the House of Commons published by PRCBC, the 3 million, ILPA, and Amnesty International. Roehrig concerned a child born on 20 October 2000, 19 days after the cut-off date to which section 50B applies. Roehrig may therefore result in further developments in this area of law, including a potentially expanded relevant period in section 50B, but for now, and for those born before 2 October 2000, the future of the Roehrig case is no longer relevant as their own rights have been enshrined in legislation.