Wednesday 26 July 2023

Following the case of R (on the application of Roehrig) v Secretary of State for the Home Department [2023] EWHC 31 (Admin), the Home Office promised to provide concessions to children of EU nationals born in the UK to protect their British nationality. The Home Office has made good on their promises by introducing new legislation that protects the right to British nationality of children born in the UK to settled EU national parent(s) between 1 January 1983 and 1 October 2000. Parliament has now passed this legislation, effective as of 29 June 2023.

Background

Under the British Nationality Act 1981 (BNA 1981), a person shall automatically acquire British citizenship if born to a parent or parents who were ‘settled’ in the UK at their child’s birth in the UK. Before Brexit, definitions around permanent residence for EU nationals in the UK held little importance based on rights to freedom of movement and therefore the strict meaning of ‘settled’ under this Act had not been clarified. Post-Brexit, however, these definitions took on significantly greater weight. After 2 October 2000, the Immigration (European Economic Area) Regulations 2000 (Immigration Regulations 2000) confirmed that EU nationals must have formal Indefinite Leave to Remain in the UK (ILR) status to be considered ‘settled’ for the purpose of any child of theirs born in the UK to acquire British nationality automatically.

The Roehrig case posed the question of whether, during the period between the entry into force of the BNA 1981 and the Immigration Regulations 2000, EU nationals without applying for formal ILR, could be considered as ‘settled’ in the UK. The High Court’s ruling in Roehrig was that EU nationals in the UK would not be deemed as ‘settled’ even whilst exercising Treaty Rights as was the Home Office’s position at the time. As such, this ruling meant that children of such persons born in the UK during this period would not have been historically entitled to British citizenship from birth. The Home Office, realising that they had incorrectly interpreted their policy to entitle such persons to automatic British citizenship, quickly acted to rectify the situation through a fast-tracked legislative process.

New legislation

The British Nationality (Regularisation of Past Practice) Bill 2023 (RPP Bill 2023) concretely makes ‘provision for immigration restrictions to be disregarded for the purposes of the British Nationality Act 1981 in historical cases in which such restrictions were in practice disregarded.’ Minister for Immigration Robert Jenrick provided a statement outlining the following:

The British Nationality (Regularisation of Past Practice) Bill, introduced today, will confirm in statute a long-standing historical policy under which EU, EEA and Swiss nationals living in the UK in the relevant period and exercising free movement rights here were considered to be settled.

This will protect the nationality rights of people born in the UK to parents who were considered settled on the basis of that policy, and who were treated as British automatically, and those who registered or naturalised as British citizens on that basis.

The Bill also clarifies when EU, EEA and Swiss nationals could be considered settled on the basis of exercising an equivalent right in Jersey, Guernsey and the Isle of Man, which are considered part of the UK for nationality purposes.

We want to be clear that we are not creating ‘new’ British citizens, but rather confirming the citizenship of individuals we have long considered, and treated as, British already under established Home Office policy…

Implications

The new Bill provides assurance for an entire generation of citizens that they are, indeed, British. Individuals born in the UK of EU national parent(s) during that period who already hold a British passport can be confident that their documents will not be revoked or invalidated, and those who are eligible but do not yet hold a first British passport can do so through the normal procedures.

Get in touch

To learn more about forthcoming changes to UK immigration law, see our website, contact your assigned LDI lawyer or email enquiries@lauradevine.com.