Children of EU nationals born between 1983 and 2003 who obtained British nationality through a parent update

he case of Antoine Lucas Roehrigh, CO/2349/2021 handed down on 23 January 2023 will impact a substantial number of EU nationals granted British passports between 1983 and 2002 – a considerable number probably thousands.

The judgement itself is complex, the purpose of this news item is to touch upon it and more importantly, focus on its implications.

Background

As a reminder, the British Nationality Act 1981 (“BNA 1981”), automatically confers British citizenship to a person born in the UK to a parent who is British or is ‘settled’ in the UK – prior to 1 January 1983 anyone born in the UK was a British citizen through the principle of ‘ius soli’.

The Home Office’s practice from 1 January 1983, following commencement of the BNA 1981 was to issue passports to children of EEA nationals born in the UK who were exercising EEA Treaty Rights in the UK, as the Home Office deemed the parent/s to be settled.

However, on 2 October 2002 the Home Office introduced the Immigration (European Economic Area) Regulations 2000 (“EEA Regs 2000”) and set out EEA nationals who had a qualified right to be in the UK i.e. workers, self-employed workers and economically self-sufficient persons who could remain indefinitely if granted such permission.

The EEA Regs were replaced by the Immigration (European Economic Area) Regulations 2006 (“EEA Regs 2006”) which set out how a qualified person could acquire permanent residence following exercise of five years of Treaty Rights.

From 2 October 2002, EEA nationals could only hold permission to remain indefinitely through the EEA Regs 2002 or the EEA Regs 2006 by exercising an EEA Treaty Right and therefore any children born in the UK were not British unless the parent had become settled or had been granted permanent residence.

Facts of the case

20 October 2002         Antoine Lucas Roehrig is born in the UK to a French parent

14 December 2020     he applies for a British passport through Section 1 (1) b of the BNA 1981 on the basis his mother was settled in the UK at the time of his birth

8 April 2021                 the Home Office refuses his application for a British passport on the basis his mother at the time of his birth, had a restriction on her status and was therefore not settled.

The Judgement in Roehrigh

The court found the Home Office’s approach post 2 October 2002 was correct in that EU nationals exercising an EEA Treaty Right were subject to a restriction – or in the words of Justice Eyre their stay was ‘conditional’ due to the EEA Regulations 2000 and 2006.

Consequences

Up to 23 March 2023, the Home Office’s position on children of EU nationals acquiring British status fell into two categories namely:

1. those born between 1 January 1983 and 1 October 2002 and
2. those born after 2 October 2002.

The Home Office put a ‘pause’ in place for those in the first category from 11 October 2002 – the day prior to when the hearing began.

Questions

The questions arising are:

1. How many people does this impact on?
2. How will the Home Office identify them?
3. What is the position to those granted British passports? And those who have had children – who may themselves have been granted British passports – or ditto even the grandchildren
4. The position of those no longer living in the UK?

Home Office meeting

Following a meeting with interested parties, the Home Office has recently stated it will take the following steps:

• immediately introduce protective operational measures (see below); and
• may legislate to protect people’s citizenship when possible.

‘Protective operational measures:

• continue to respect the right to a British passport of anyone affected by this change to whom it has previously issued either a British passport or some other confirmation of their British citizenship (including processing any application to renew a passport); and
• find ways that may enable a person affected by this change, who has not previously been issued with a British passport or some other confirmation of their British citizenship, to secure British citizenship (or failing that, some other secure status in the UK in the interim).’

The above suggests the Home Office will re-examine an individual’s claim to British citizenship on renewal of a passport application, if obtained on the basis they were children of EU nationals – we do not know the criteria to be used. For those applying to renew British passports outside the UK, it could mean an uncertain future, lengthy processing and effectively having a moratorium imposed whilst the application is considered, which could run into months.

The second measure covers those who do not yet have British nationality – this may involve examining documentation and having to wait for months for an application to be processed. The ‘securing of status’ implies the Home Office may consider other routes to residency where nationality is not confirmed.

It places individuals in a legal jeopardy with uncertain futures and has echoes of a Windrush, but to be fair on the Home Office not for the same reasons.

We are a firm of immigration solicitors based in central London and can be contacted on +44 207 038 3980, by sending an email to info@rlegal.com or by completing our online form.