Born in the UK to a European parent and think you’re British? Time to think again

When it comes to British citizenship, the position for children born in the UK to an EEA national has never been straightforward.  Thanks to a recent decision by the High Court, in the matter of R(Roehrig) v. Secretary of State for Home Department [2023] EWHC 31 (Admin), the position just became slightly more complex.

The law

Before 1983 a child born in the UK was automatically British, with very few exceptions. This changed when the British Nationality Act 1981 came into force on 1 January 1983.

Section 1(1) of the British Nationality Act 1981 provides that a person born in the UK is a British citizen if at the time of their birth their mother or father is a British citizen or ‘settled’ in the UK. The meaning of the term ‘settled’ is not straightforward, especially in relation to EEA nationals.

The position (prior to the R (Roehrig) decision) was that children born in the UK to EEA nationals could be divided up into the following four cohorts:

(1)Born in the UK between 1 January 1983 and 1 October 2000: a child was automatically British at birth if their EEA national parent was exercising a right of residence under EU free movement law (as a worker, self-employed person, job-seeker, or if born after 30 June 1992, as a student or self-sufficient person) at the time of the child’s birth.  There was no need to show the EEA parent had been in the UK for a certain period of time - the simple exercise of a right of residence was sufficient;  

(2)Born in the UK between 2 October 2000 and 29 April 2006: a child was not born British unless their EEA national parent had exercised a right of residence in the UK for four years and had applied for and been granted indefinite leave to remain under domestic UK law before the child’s birth;

(3)Born in the UK between 30 April 2006 (when the EU law concept of permanent residence was introduced) and 30 June 2021: a child was automatically British if their EEA national parent had acquired permanent residence under EU law (which was usually automatic after exercising a right of residence in the UK for five years) before the child’s birth;

(4)Born in the UK on or after 1 July 2021 (after the post-Brexit grace period for EU Settlement Scheme applications): a child is automatically British if their EEA parent held settled status under the EU Settlement Scheme at the time of the child’s birth (or in some cases if their parent granted was granted settled status after the child’s birth).  

R (Roehrig) – High Court’s decision

Mr Roehrig was born in the UK on 20 October 2000, to a French mother who had been exercising a right of residence as a worker at the time of Mr Roehrig’s birth.  She had not been granted indefinite leave under domestic law, and the concept of permanent residence under EU law did not yet exist.   Mr Roehrig applied for a British passport on the understanding that he had been born British.  The application was refused, and Mr Roehrig judicially reviewed the decision on the basis that despite not having obtained indefinite leave under domestic legislation at the time of his birth, his mother was ‘settled’ in the UK at the time he was born and that on this basis, he was born British.

The word ‘settled’, as defined under section 50(1) of the British Nationality Act 1981, means:

“ordinarily resident in the UK…without being subject under the immigration laws to any restriction on the period for which he may remain”.

Mr Roehrig argued that:

1. domestic law implementing EU law is not ‘immigration law’, within the definition of ‘settled’ in section 50(1) of the British Nationality Act 1981; and
2. even before the concept of permanent residence was introduced in 2006, there was never a time limit on an EEA national’s period of residence in the UK.  That is to say, a right of residence under EU law was open-ended, and that accordingly, his mother was ‘settled’ by the very fact that she was exercising a right of residence.

The High Court rules that Mr Roehrig’s mother was not ‘settled’ at the time of his birth. It reasoned that:

1. domestic law implementing EU law is immigration law in this context because it specifies who can and cannot live in the UK; and
2. residence as an EU citizen is conditional on that person continuing to exercise a right of residence, and even though it does not impose a time limit on their stay, a person is restricted to the period for which they may remain in the UK “whenever his continuing right to remain is contingent upon his continuing to meet the qualifying criteria”.

In reaching this decision, the High Court not only affirmed the position that individuals born between 2 October 2000 and 29 April 2006 could not be settled unless the EEA parent had obtained indefinite leave to remain under domestic legislation; but also, and more importantly, it implied that the Home Office has been incorrect to treat EEA nationals exercising a right of residence before 2 October 2000 as ‘settled’.  That is to say, the High Court have effectively ruled that children born in the UK between 1 January 1983 and 1 October 2000 to an EEA parent exercising a right of residence were not automatically British, and that the Passport Office has been incorrectly issuing British passports to thousands of people who are not in fact British citizens.

Implications

It remains to be seen whether Mr Roehrig will appeal this decision, which was handed down on 20 January 2023.  In the meantime, the Passport Office have paused passport applications submitted by applicants born in the UK to EEA national parents before 2 October 2000, and it is unclear what they intend to do with these applications going forward.  It is hoped that, if Mr Roehrig appeals this decision, the Passport Office will refrain from refusing any applications until this legal dilemma is resolved.  

If not appealed, or if the decision is upheld on appeal, the new legal position for those born in the UK to an EEA national parent would look like this – i.e. the first two cohorts would effectively be conflated:

(1)Born in the UK between 1 January 1983 and 29 April 2006: no automatic acquisition of British citizenship, unless the parent had been granted indefinite leave to remain under the domestic legislation before the child’s birth;

Most problematically, what does this mean for those who have already been granted British passports under the ‘old’ cohort (1), and who do not have a separate claim to British citizenship? In short, the position is potentially very messy, and leaves us wondering – will legislation be passed to sort out the mess? Or will the Home Office ignore the judgment and treat children born in the UK to EEA nationals between 1 January 1983 and 2 October 2000 in the same way as before? Or will these individuals be prevented from renewing their British passports going forward? What if these individuals seek entry to the UK on their (now incorrectly issued) British passports?

The practical and legal implications of this decision are immense, and would likely apply to hundreds of thousands of applicants, some of whom may already have passed on their ‘non-existent’ British citizenship to their children.  What will become of this class of people?

For further discussion about legal issues in this case, we highly recommend Colin Yeo’s piece on Free Movement, which can be found here.

We can only hope that this conundrum ends up in the Court of Appeal, and that the High Court’s decision is overturned.  Failing that, we should be prepared for some messy changes ahead.

FURTHER INFORMATION

If you have any questions regarding this blog, please contact Josephine Burnett or a member of the immigration team.

ABOUT THE AUTHOR(S)

Josephine Burnett is an associate in the private client immigration team, where she advises high net worth individuals on a range of UK immigration matters. She joined the team in November 2019, after completing her training contract at Kingsley Napley.

Christina Orthodoxou is an Associate in the firm’s Regulatory team.  She specialises in the defence of a range of professionals, particularly in the medical,  legal and financial industries.