Blog post by Adrian Berry of the Garden Court Immigration & Public Law Teams.
Introduction
British citizenship may be acquired automatically, for example at birth, or by grant on application for naturalisation or registration. It may be thought that the question of whether a person is a British citizen from birth would be straightforward to determine, with a person’s facts (birth in the UK to a parent with qualifying attributes) needing only to be matched to the relevant provisions of the law. However, a recent case, and the urgent legislative response to it, illustrates how complex ascertaining British citizenship can be.
British citizens from birth
In the case of R(Roehrig) v Secretary of State for the Home Department [2024] EWCA Civ 40 the Court was concerned with the circumstances in which a UK-born child automatically acquired British citizenship at birth (under ss 1(1) and 50(2) of the British Nationality Act 1981). Where no parent was a British citizen at the time of the child’s birth, it was a requirement that one parent must be ‘settled’ in the UK, one aspect of which being that the parent was free from restriction on the period of time for which they may remain.
As regards children born prior to 2 October 2000, from commencement of the British Nationality Act 1981 on 1 January 1983 onwards, it had been the Secretary of State’s interpretation of the material provisions of the British Nationality Act 1981 that EU citizen parents satisfied this provision, where they were exercising a right to reside (e.g., as a worker or a self-employed person) short of permission to remain indefinitely. In the operation of EU law, there was no express date after which they were required to leave the UK, and thus, for so long as they remained exercising an EU free movement right, there was no limit on the period of time for which they may remain for the purposes of the British Nationality Act 1981.
However, for those born on or after 2 October 2000, the Secretary of State changed her stance. She introduced new domestic regulations (the Immigration (European Economic Area) Regulations 2000) transposing and implementing existing EU rights to reside, that stated that where they were exercising EU rights to reside short of permission to remain indefinitely, such persons (parents) were not free of restrictions on the period for which they might remain for the purpose of considering whether their UK-born children automatically acquired British citizenship at birth.
Further, in the Roehrig case, the Secretary of State now opined that, in any event, EU law rights of residence short of permanent residence did not satisfy the requirement of being free of restriction on the period for which a person may remain. She further contended that the new regulations amounted to ‘immigration laws’ for the purposes of imposing restrictions on the period of time a person may remain.
UK-born prior to 2 October 2000
While Roehrig concerned persons born in the UK on and after 2 October 2000, the Secretary of State’s change of stance, as regard the interpretation of the material provisions of the British Nationality Act 1981, left the position of those born prior to that date uncertain. It was insufficient for the policy and practice of the Secretary of State to treat such UK-born children as automatically acquiring British citizenship; the question was one of law and what Parliament had provided. The correct interpretation of the law mattered. First, the question of whether a person belongs to the UK as one of its citizens is constitutional in nature. Second, it has onward consequences for the transmission of British citizenship to the next generation born to that person. Third, it might impact the position of that UK-born person who possessed also the nationality of another state intolerant of its nationals holding multiple nationalities.
A legislative remedy
In the Roehrig litigation, both the High Court and, thereafter, the Court of Appeal, supported the Secretary of State’s interpretation as to EU law rights to reside short of permanent residence not being free of restrictions on the period for which a person may remain. However, before the case reached the Court of Appeal, with cross-party support, the Secretary of State promoted a Bill in Parliament to secure the position of those children born in the UK prior to 2 October 2000 who were considered to be British citizens where born to parent exercising EU rights to reside short of permission to reside indefinitely.
The British Nationality (Regularisation of Past Practice) Act 2023 provides that a person exercising an EU freedom of movement right in the UK at any time prior to 2 October 2000 is to be treated as not subject at that time under the immigration laws to any restriction on the period for which they may remain in the UK.
The reference in the Act’s title to ‘past practice’ is a slight of hand. From 1 January 1983 to 2 October 2000, it had been the Secretary of State’s interpretation of the law found in the British Nationality Act 1981 that UK-born children automatically acquired British citizenship at birth, where those children were born to an EU citizen parent exercising EU rights to reside, short of permission to reside indefinitely. What changed was not her policy or practice, but rather the Secretary of State’s interpretation of the law. Be that as it may, subsequent to the Secretary of State’s altered stance, the Court of Appeal has upheld her revised interpretation of the law, such that the law is as stated in its judgment.
Conclusion
The alterations to the interpretation of the British Nationality Act 1981, first by regulations, then by a decided case, then by further primary legislation, shows that the way in which it is determined by statute, who, by virtue of UK-birth, belongs to the UK automatically as one its citizens, is not at all straightforward or indeed stable in every aspect of its operation.
In Roehrig, the legal team comprised Jessica Simor KC, Adrian Berry of the Garden Court Public Law & Immigration Teams, and Admas Habteslasie, instructed by Solange Valdez-Symonds of Project for the Registration of Children as British Citizens (PRCBC).
