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In the context of British nationality law, EEA citizens residing in the UK from 2 October 2000 continue to not meet the definition of “settled”, unless they held indefinite leave to remain or had acquired permanent residence. This was confirmed last week by the Court of Appeal in R (on the application of Roehrig) v Secretary of State for the Home Department (Rev1) [2024] EWCA Civ 240.
Facts
Mr Roehrig was born in the UK on 20 October 2000, just 18 days after commencement of the Immigration (European Economic Area) Regulations 2000. Mr Roehrig’s mother was French. She was exercising her European freedom of movement rights in the UK at the time of the birth. She did not hold indefinite leave to remain. Mr Roehrig claimed that his mother was settled in the context of the British Nationality Act 1981 and thus he met the requirements to automatically acquire British citizenship at birth through his settled mother. Mr Roehrig’s claim was rejected by the Home Office. He challenged it by judicial review.
Background
On 20 January 2023, the High Court in R (on the application of Roehrig) v Secretary of State for the Home Department[2023] EWHC 31 (Admin) refused Mr Roehrig’s claim. Colin’s write-up of the case, its facts, and its consequences is available here and he summarised the legal issues below as:
The precise wording is of the British Nationality Act 1981 is as follows, at section 1(1):
A person born in the United Kingdom after commencement … 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…
Section 50(2) of the Act then goes on to define “settled” as meaning:
ordinarily resident in the United Kingdom … without being subject under the immigration laws to any restriction on the period for which he may remain.
There is a bit more to it as the definition goes on explicitly to exclude certain people from being settled, including diplomats. It does not exclude EU citizens resident under EU law.
Section 50(1) defines “immigration laws” as:
the Immigration Act 1971 and any law for purposes similar to that Act which is for the time being or has at any time been in force in any part of the United Kingdom.
The question for the court was therefore whether Mr Roehrig’s mother was “settled” at the time of his birth. The key issue was really whether any immigration laws imposed a restriction on the period of time she could remain in the United Kingdom. If she was “settled” in this sense, he was British. If she wasn’t, he was not British. The court concluded that she was not settled and therefore Mr Roehrig was not a British citizen.
Mr Roehrig appealed against the High Court’s decision.
New issue raised by the High Court
The January 2023 Roehrig decision specifically cast doubt on the interpretation of the law underpinning the long-standing Home Office policy to treat EEA citizens exercising free movement rights in the UK prior to 2 October 2000 as being settled. That policy had previously enabled all such children of EEA citizens to automatically acquire British citizenship at birth under section 1(1)(b) of the British Nationality Act 1981. When Roehrig threw that policy into question, the Home Office must be commended for swiftly legislating to enshrine their legally questionable policy into law.
On 29 June 2023, notwithstanding Roehrig’s ongoing appeal, the UK Government enacted the British Nationality (Regularisation of Past Practice) Act 2023. Through this legislation, the Home Office introduced a new section 50B to the British Nationality Act 1981 to specifically declare that a person exercising a freedom of movement right at any time between 1 January 1983 and 1 October 2000, inclusive, would meet the definition of “settled”. My write-up of this legislation is available here.
Court of Appeal’s conclusions
Addressing the question of whether the Immigration (European Economic Area) Regulations 2000 in force on 20 October 2000 were “immigration laws” for the purposes of the British Nationality Act 1981, the court agreed with the reasoning of the High Court:
I agree with Eyre J that the [Immigration (European Economic Area) Regulations 2000] were immigration laws for the purposes of the relevant provisions of [the British Nationality Act 1981]. They provided a clear “route to settlement” for an EU national who was a qualified person. [Mr Roehrig’s mother] would qualify and have been entitled to apply shortly before the appellant’s birth for her residence permit to be endorsed to show permission to remain in the United Kingdom indefinitely pursuant to paragraph 255 of the 194 Order and Regulation 15 of [the Immigration (European Economic Area) Regulations 2000]. The fact that she did not do so did not mean that her continued residence in the United Kingdom was illegal, but her failure to do so surely deprived the appellant of opportunity to establish that his mother was “settled” at the time of his birth.
[paragraph 70]
The court also reached a conclusion on the meaning of the word ‘period’ in ‘without being subject under the immigration laws to any restriction on the period for which he may remain’. The court held that:
The statute refers to ‘period; not ‘period of time’. The ordinary meaning of ‘period’ does not require to have a temporally defined start and end. Therefore, [Mr Roehrig’s mother] in the exercise of her enforceable rights of free movement was not constrained to a period of time measured by the calendar, rather the constraint was measured by a continuation of her status.
[Paragraph 87]
Current law post-Roehrig
The Project for the Registration of Children as British Citizens, representing Mr Roehrig, has confirmed that the Court of Appeal has refused Mr Roehrig permission to appeal to the Supreme Court. They are currently considering making an application directly to the Supreme Court for permission.
For now, there is no change to the status quo for those born on or after 2 October 2000.
To assert a claim to automatic citizenship via an EEA citizen parent, children born in the UK between 2 October 2000 and 29 April 2006 need to provide evidence that the parent held indefinite leave to enter/remain at the time of the child’s birth.
Children born in the UK between 30 April 2006 and 30 June 2021 need to show either evidence of the parent’s acquisition of permanent residence, or indefinite leave, prior to the child’s birth.
The Passport Office’s guidance, updated on 30 June 2023, is available here.
John Vassiliou is legal director and head of immigration at Shepherd and Wedderburn LLP. His profile can be found at: https://shepwedd.com/people/john-vassiliou.
