In a controversial determination, the President of the Upper Tribunal Immigration and Asylum Chamber, Mr Justice McCloskey, has found that the Home Office has wrongly issued British passports to hundreds or even thousands of children of EU, EEA and Swiss citizens born in the UK before 2 October 2000. The case is Capparelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC).

If the determination is correct, which is questionable, it could also mean that almost no EU or EEA citizen could ever have qualified for British citizenship and that British citizenship may have been wrongly conferred on tens of thousands of EU, EEA and Swiss citizens.

Remarkably, considering the exceptionally broad impact of the findings, the determination was reached without the President hearing argument on some of the key issues.

Impact on children born before 2 October 2000

The determination is a complex one. The case arose because a man born in the UK in 1986 who was facing deportation following a rape conviction asserted that he was a Brtish citizen and therefore could not be deported. The man won his initial appeal and was found to be British but the Home Office challenged the outcome. President McCloskey was unimpressed with the grounds of challenge, describing them as a “diffuse and unparticularised essay,” but ultimately finds in favour of the Home Office on one of the issues, albeit not for the reasons advanced by the Home Office.

The immediate outcome for the particular appellant is that he is found not to be a British citizen. To reach this conclusion, the tribunal in effect overrules a long standing Home Office policy stating that EU, EEA and Swiss citizens resident in the UK before 2 October 2000 would be treated as “settled” for the purposes of the British Nationality Act 1981. This meant that a child born in the UK to such parents would automatically be considered to be born British by virtue of section 1(1) of the BNA 1981:

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.

The word “settled” is defined in section 50(2) of the BNA 1981:

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 policy dates back to 2000, I believe. It was set out in the Nationality Instructions and is still set out in HM Passport Office guidance. The specific chapter of the Nationality Instructions is not currently available, having been withdrawn on 3 November 2015 and never re-published, but an historic version is available here:

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”.

This policy meant that any child born in the UK to an EU, EEA or Swiss citizen exercising free movement rights before 2 October 2000 was considered to be a British citizen and would have been issued with a British passport on application. The date was the date of commencement of the Immigration (European Economic Area) Regulations 2000, which replaced the Immigration (European Economic Area) Order 1994.

The tribunal has now found that this Home Office policy is wrong as a matter of law and cannot displace the statutory requirements of the British Nationality Act 1981.

This finding casts doubt on the British citizenship of any child recognised as a Brtish citizen under the policy. It is impossible to estimate how many children are affected but I would expect it to be hundreds or thousands.

The main impact of the ruling is on children where neither parent was otherwise British or settled and even if the tribunal is correct it may be possible for the children to retain their British citizenship because of the general power at section 3(1) of the British Nationality Act 1981 to register any child as a British citizen. This is what occurs in citizenship nullity cases where the nullification of the British citizenship of a family member casts doubt on the subsequently acquired status of another family member (e.g. a father’s British citizenship is nullified but his child, considered born British because of the father’s status, continues to be recognised as British).

Given that the Home Office has been reported as removing British passports from some children of EU citizens this is far from certain, however.

Wider impact on all EU citizens

The reasoning in the case may have even wider ramifications, however. The tribunal does not show any recognition of the potential wider impact. Had the tribunal been aware, it seems likely further submissions on these issues might have been sought.

The central plank of the determination is that “immigration laws” does not refer to EU free movement law. The reasoning in the determination relies on the definition of “immigration laws” in another statute, the Immigration Act 1971, and because the tribunal considers that the “ordinary and natural meaning” of the words “immigration laws” ought to be confined to laws made by the United Kingdom Parliament (paragraph 18).

This potentially creates problems for all EU, EEA and Swiss nationals who have previously been naturalised as British citizens. This is because the words “immigration laws” feature not just as a requirement for acquisition by birth at section 1 of the BNA 1981 as defined at section 50 but also in Schedule 1 in the requirements for naturalisation at paragraphs 1(2)(c) and 3(c):

that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom

Since 2006 the Home Office has treated EU citizens with an EU free movement law right of permanent residence as meeting the above requirement. Permanent residence comes from EU law not British law. Where an EU national or family member acquires permanent residence the Home Office has considered that they are eligible for naturalisation. The tribunal appears to suggest this is wrong as rights of residence under EU free movement laws do not qualify as residence under “immigration laws” at all.

If this is right, then almost every single naturalisation of an EU, EEA or Swiss citizen or family member would be ultra vires and would have not in truth have occurred. The British passports of all concerned would now need to be revoked.

There is another possibility that Capparrelli raises: that all EU, EEA and Swiss citizens automatically satisfy the criteria at paragraphs 1(2)(c) and 3(c) of Schedule 1 because “immigration laws” do not apply to them at all, and therefore they can never have any restriction on the period for which they might remain in the United Kingdom. If this were so, then it would no longer be necessary (and in truth never would have been necessary) for EU citizens to possess permanent residence before applying for naturalisation. It would also mean that the earlier case of Gal (see below) was completely wrongly decided, not just wrongly reasoned.

This is the same conclusion I advocate below, but for a different reason.

Is Capparelli correctly decided?

There is some doubt that Capparelli is correctly decided. At paragraphs 16 and 17 the President records that he was  without “the benefit of comprehensive adversarial argument” on one of the key issues, which was the effect of EU rights. The obscure and unavailable case of Gal (see below), which was central to the determination, does not seem to have been shared with the parties.

Meaning of “immigration laws”

Firstly, the interpretation in Capparrelli of the words “immigration laws” imports the definition of “immigration laws” from one statute to another, which is not necessarily required.

Secondly, the ascribed “ordinary and natural meaning” is highly controversial, given that most people probably would think it axiomatic that EU laws on the free movement of people are immigration laws. Indeed, the very name of the Immigration (European Economic Area) Regulations 2000, 2006 and now 2016 rather suggests this.

Thirdly, perhaps more concretely, no reference is made by the tribunal to section 7 of the Immigration Act 1988, which is surely an “immigration law” by any definition and which creates an immigration law carve out for individuals with enforceable EU rights:

A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972.

This surely brings EU citizens within the meaning of both section 1(1) and Schedule 1 paragraphs 1(2)(c) and 3(c) .

Fourthly, the original Immigration (European Economic Area) Regulations 2000 included a specific provision on “Persons not subject to restriction on the period for which they may remain” at regulation 8 and paragraph 3 of the Explanatory Notes specifically stated that this was “for the purposes of the Immigration Act 1971 and the British Nationality Act 1981”. This makes the regulations implementing EU law look very much like “immigration laws”. It might be argued that the omission of this specific provision in later regulations supports the approach in Capparrelli but the fact it is dealt with at all suggests that Capparrelli is probably wrong.

Rights of residence under EU law

There is also, in my view at least, a powerful argument that an EU citizen has no restriction on the period he or she may remain in the UK irrespective of whether he or she has a right of residence under Directive 2004/38. In Capparrelli the tribunal refers to and affirms the conclusion in an earlier, obscure and largely forgotten case called Gal [TH/25885/92 10620] which is not publicly available on any public database as far as I can see and which has never previously been applied by the Home Office in the last 25 years. There is a strong argument that Gal was wrongly decided.

Without access to Gal it is impossible to know in full what was argued. However, from the extract in Capparrelli it seems to have been focussed on the right of residence conditional or contingent on certain activities such as work and self employment, now enshrined in Directive 2004/38 but previously set out in a range of Directives and Regulations.

It was always questionable that a potentially unlimited stay subject to a contingency was the same as a time restriction in immigration law.

Further, Gal was decided prior to the commencement of the right to reside and move freely between Member States enshrined in EU law by the Maastrict Treaty, in force from 1 November 1993 and now set out at Articles 20 and 21 of the Treaty on the Functioning of the European Union.

My view, for what it is worth, is that under Articles 20 and 21 TFEU, EU citizens have a right to be physically present in another Member State as long as their behaviour does not engage the public interest provisions of EU law enabling their exclusion in certain circumstances. The Article 21 right of entry to and physical presence in another Member State does not carry with it rights to access to benefits or family reunion and other rights that only come with the formal “right to reside” under Directive 2004/38. It is not time-restricted in any way, though, or at least no more so than Indefinite Leave to Remain, and is therefore not a “conditional” one as envisaged in Gal.

Nevertheless, this Article 21 right to enter and reside is under an “immigration law” because it is an enforceable EU right under section 7 of the Immigration Act 1988 and there is no restriction on the time for which such a person may remain. Even a person with a formal Directive 2004/38 right to reside or with Indefinite Leave to Remain can be removed on public interest grounds, after all.

If I am right, any EU, EEA or Swiss citizen who is “ordinarily resident” in the UK is therefore settled for the purposes of section 1(1) BNA 1981 and also meets the naturalisation criteria at paragraphs 1(2)(c) and 3(c) of Schedule 1 BNA 1981 (there are other criteria that also need to be met, these are not the only ones). There is therefore no need for possession of permanent residence in order to apply for naturalisation.

Warning: any EU, EEA or Swiss citizen or family member applying for naturalisation should certainly ensure they have acquired a permanent residence document before applying as any application made without a permanent residence document will certainly be refused by the Home Office and the application fee will be lost.

Historic acquisition of permanent residence

Despite it seemingly being relatively clearly pleaded in the Home Office grounds of appeal, the tribunal nowhere deals with the issues that arise in the Lassal C-162/09 and Dias C-325/09 cases.

In short, there is an argument, albeit not necessarily a very good one, that a person resident in the UK before 1 April 2006, when Directive 2004/38 came into force, should now be considered to have acquired permanent residence at that time if the person qualified for it, even though the status did not actually then exist.

It may be that given its interpretation of “immigration laws” the tribunal felt this issue did not arise as even permanent residence does not count as residence under the “immigration laws”, but I would have thought it was worth considering given the wide impact of the determination.

Official headnote is wrong

The official headnote is as follows:

(i) An EEA national exercising Treaty rights in the United Kingdom is not “settled” within the compass of section 1(1) of the British Nationality Act 1981 since such person’s lawful residence is conditional upon remaining economically active: Gal affirmed.

(ii) The statutory phrase “the immigration laws” does not encompass the EU rules on free movement: Gal modified.

(iii) Being ordinarily resident in the United Kingdom does not confer the status of British nationality.

(iv) The dichotomy of persons lawfully present in the United Kingdom under (a) the EEA Regulations 2006 and (b) the Immigration Rules is reflected in paragraph 5 of the latter.

(v) The question of whether a person is ordinarily resident in the United Kingdom is one of fact and degree.

Paragraph (i) is plainly wrong. The President adopts the same end conclusion as Gal but for a very different reason, so that (arguably wrong) aspect of Gal is not affirmed at all, in fact.

What should the correct approach be?

In short, EU free movement laws should be considered to be “immigration laws” for all purposes of the British Nationality Act 1981 and EU citizens should be considered to have no restriction on the period for which they might remain in the United Kingdom.

This would mean that EU citizens would qualify for naturalisation after five years of residence in the United Kingdom, assuming that they meet the other criteria for naturalisation, without their having to show that they have acquired permanent residence. It would also mean that the requirement since November 2015 for EU citizens to acquire a permanent residence document before applying for naturalisation would be unlawful.

What now?

Given that only “reported” determinations are supposed to be followed more generally and the decision whether to report a case is a non-judicial one made by a committee of judges with no consultation outside the tribunal, the decision could perhaps be “unreported” by the same committee. Going forward, it might help if the committee focussed on reporting cases where full argument had been heard and the ramifications of a decision had been more fully considered.

This would not be the first time that the Immigration Upper Tribunal reaches a conclusion on a point of law without hearing all the relevant arguments. Sometimes these determinations can be reconsidered quite quickly, either in a further determination or in an appeal.

Even if the appellant in this particular case does appeal, appeal waiting times to the Court of Appeal are extremely lengthy. Further, this particular issue has not arisen in a previous reported decision for 17 years and is unlikely to arise again for quite some time. I fear we will be stuck with this determination, whether it is right or wrong.

What the Home Office is going to do about the tribunal’s interpretation of section 1(1) of the BNA 1981 and the words “immigration laws” I have no idea. They already had enough to worry about with Brexit and I suspect may simply ignore the determination and carry on as before. This may be the best available option as ther determination is strictly speaking probably only binding as regards the status of the particular appellant.

If so, this is nevertheless very poor for legally certainty and offers no reassurance to the hundreds or thousands of individuals who thought they were British citizens but who President McCloskey has apparently just held are not. In theory their passports could be withdrawn.

Source: Capparrelli (EEA Nationals – British Nationality : Italy) [2017] UKUT 162 (IAC) (20 January 2017)