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Court of Appeal disapproves of Tribunal's decision in Capparelli

Written by
Asad Ali Khan
Date of Publication:

R (Roehrig) v Secretary of State for the Home Department [2024] EWCA Civ 240 (12 March 2024)

The Court of Appeal has held that a child born to a French national mother who was ordinarily resident in the UK while she was exercising her right of free movement as a worker had not automatically acquired British citizenship at birth under section 1(1)(b) of the British Nationality Act 1981 as the child of someone "settled" in the UK. In so concluding, the Court of Appeal held that the Immigration (European Economic Area) Regulations 2000 were "immigration laws" which subjected the mother to a restriction on her entitlement to remain in the UK and meant that she had not been "settled" for the purposes of section 1(1)(b) at the time of the child's birth. At first instance Eyre J had dismissed Mr Roehrig's claim for judicial review of the decision made by the SSHD refusing his application for a British passport. The issue in this appeal, as it was before the single judge, was whether Mr Roehrig automatically acquired British citizenship at birth under section 1(1)(b) of the British Nationality Act 1981. Notably, section 1(1)(b) of the 1981 Act provides that "A person born in the United Kingdom after commencement shall be a British citizen if at the time of the birth his father or mother is …(b) settled in the United Kingdom." The SSHD refused the application stating: "As you were not able to provide documentary evidence to show your Mother was free from immigration time restrictions at the time of your birth, we are not able to issue a passport to you at this time…".

Notably, "Immigration laws" are defined by section 50(1) of the 1981 Act to mean "in relation to the United Kingdom … the Immigration Act 1971 and any law for purposes similar to that Act which is for the time being or has at any time been in force in any part of the United Kingdom". Mr Roehrig was born in the UK in October 2000. At the time of his birth, his mother, a French national, had been resident in the UK since 1995, exercising her right of free movement as a worker. As such, she was a "qualified person" for the purposes of the Immigration (European Economic Area) Regulations 2000—regulation 14 specified that as long his mother remained a qualified person, she was entitled to stay in the UK without holding leave to remain under the Immigration Act 1971. Although she had been entitled under regulation 15 of the 2000 Regulations and the Statement of Changes to Immigration Rules 1994 (HC395)—paragraph 255—to apply for a residence permit providing her with permission to remain in the UK indefinitely, she had not done so. Mr Roehrig applied for a British passport in 2020 on the basis that as his mother had been "settled" in the UK at the time of his birth, he had thus automatically acquired British citizenship under the section 1(1)(b) of the 1981 Act. It was argued for Mr Roehrig that McCloskey J's analysis in Capparelli [2017] UKUT 162 (IAC) represented the correct approach and it was unlawful as a matter of EU law to maintain immigration controls in relation to nationals of EU Member States.

In order for her to have been "settled", section 50(2) of the 1981 Act required her to have been ordinarily resident in the UK at the time of his birth without being subject under the "immigration laws" to any restriction on the period for which she might remain. Section 50(1) of the 1981 Act and section 33 of the 1971 Act defined "immigration laws" as being the 1971 Act and laws for "similar purposes".

The decision-maker refused Mr Roehrig's passport application. The High Court (Eyre J) found that as his mother was only entitled to remain in the UK as long as she continued to be a qualified person, that amounted to a restriction within the meaning of section 50(2) of the 1981 Act and prevented her from being settled for the purposes of section 1(1)(b).

The Court of Appeal

Macur, Nicola Davies and Phillips LJJ dismissed Mr Roehrig's appeal. First of all, as to whether the 2000 Regulations were "immigrations laws", it was unrealistic to suggest that the Regulations were not for "similar purposes" to the 1971 Act. The central question was whether as an EU citizen exercising enforceable rights of free movement, was the French mother subject to domestic "immigration laws" as defined by section 33 of IA 71?

There were only two direct relevant authorities identified on the point, Gal and Capparelli —neither of which had been subject of appeal to the Court of Appeal.

Macur LJ explained the judgment in Gal and she disapproved of President McCloskey J's decision in Capparelli.

The unreported case of Gal concerned the rights of residence of the wife (since estranged) and children of a qualified worker who, at the time when they lived together in the UK, had been exercising his EU rights of free movement. Furthermore, the husband had since separated from his wife and departed the UK. The IAT was principally concerned with the definition of the word "settled" in section 33(2A) of the 1971 Act—the terms of which were materially identical to those in section 50(1) BNA at the material times. Counsel for the wife did not argue that the "laws" applicable to the wife were not "immigration laws" as being "any law for purposes similar to [IA 1971]" which has been or is in force. On the other hand, premising their judgment by noting that the "immigration rules apply to those with Community enforceable rights only insofar as permitted by Community Law", it was stated by the IAT at pages 6 and 9 respectively that:

The purpose of HC 621 para 151 [then in force] is to translate the European law rights specified therein into leave under English law. (Layne [1987] Imm AR at p 247). It is therefore a provision of English law and the relevance of European law within it to simply define the claims which can be the basis of indefinite leave to remain.

… although at present there is no direct legislative provision relating to the entry and stay in this country of those having an enforceable community right save the provisions of the immigration rules the European Laws made applicable in this country under the European Communities Act 1972 are "Immigration Laws" for the purpose of the 1971 Act.

In Mr Roehrig's case, both parties found fault with McCloskey J's decision in Capparelli which reviewed decision in Gal, which neither party had identified as relevant and upon which he had not been addressed. He lamented the absence of comprehensive adversarial argument but was overall satisfied that Gal was correctly decided although the underlying reasoning was flawed. In light of the arguments, Macur LJ held that:

57. I respectfully disagree with McCloskey J's view that the IAT in Gal were saying that "immigration laws" encompasses the EU rules on free movement. It appears to me that the IAT gave a far more nuanced explanation of the relevance of EU law rights in formulating provisions in domestic law in accordance with a Member State's obligation to give effect to the same.

58. Like Eyre J, I find difficulty in understanding McCloskey J's reference to the disapplication of the Immigration Rules which appeared to demonstrate that he was aware of domestic regulation of EU citizens, then contained within I(EEA)R 2006. (See [21] above). A further appraisal of the same regulations would reveal the regulation of a qualified person's right to apply for permanent residence.

59. That is not to say that I cannot detect the logic in McCloskey J's approach if he did, and was correct to, determine that an EU national exercising rights of free movement as a qualified worker was exempt from domestic "immigration laws." In the circumstances, it is impossible for them to meet the definition of "settled" in BNA on a strict interpretation of 50(3) BNA.

60. Whatever the merits of that view, the judgment read as a whole provides no support for the appellant's case. However, I agree with Mr Blundell, no principle of general application should be derived from the judgment in Capparelli for the purpose of the analysis of domestic legislation enacted to meet the requirements of Council directives.

61. In the event, Eyre J did not find it necessary to determine whether McCloskey J's approach was wrong or whether there was a 'powerful reason' not to follow it, for he considered the appellant's circumstances in that case to be distinguishable. That is, Mr Capparelli was born in 1986 prior to implementation of section 7 of IA 1988 and the 1994 Order. McCloskey J had not been considering whether the 2000 Regulations were immigration laws for the purpose of BNA. I consider that Eyre J was entitled to take this view and his reasons to distinguish Capparelli are unassailable.

The 2000 Regulations were in force at the time of Mr Roehrig's birth and were stated to have been laid before Parliament by the SSHD, as designated Minister, for the purposes of section 2(2) of the European Communities Act 1972. The court rejected the submission that this means they were enacted solely for the purpose of implementing any Community obligation of the United Kingdom and therefore that they were not a law for "purposes similar" to IA 1971. Notably, section 2(2)(b) specifically provided that such regulations may make provision "for the purpose of dealing with matters arising out of or related to any such obligation or rights". Macur LJ explained further and held:

70. Therefore, drawing the strands together, I agree with Eyre J that the IR 2000 were immigration laws for the purposes of the relevant provisions of BNA. They provided a clear "route to settlement" for an EU national who was a qualified person. AM would qualify and have been entitled to apply shortly before the appellant's birth for her residence permit to be endorsed to show permission to remain in the United Kingdom indefinitely pursuant to paragraph 255 of the 194 Order and Regulation 15 of IR 2000. The fact that she did not do so did not mean that her continued residence in the United Kingdom was illegal, but her failure to do so surely deprived the appellant of opportunity to establish that his mother was "settled" at the time of is birth.

As to whether the term "period" only relates to a period of time, the court held as follows. Macur LJ found this ground of appeal to be capable of rapid dispatch and said that Eyre J rightly identified of the principle derived from Coomasaru which transcended the facts of the case and any further submissions on behalf of Mr Roehrig.

In the case of R (Coomasaru) v IAT [1983] 1 WLR 14, the facts were that Mr Coomasaru was a citizen of Sri Lanka who entered the UK as a visitor in August 1973. He obtained a job in the Sri Lanka Students Welfare Centre. However, his right to remain in the UK was restricted/limited. He remained in the UK until April or May 1978 when he went abroad. On his return on 20 May 1978, he was at first refused re-admission but on 7 June 1978, he was granted leave to enter for 12 months subject to the work restriction that he could take no employment except as sub-warden of the Sri Lanka Students' Welfare Centre.

He no longer held that appointment. The SSHD refused to revoke or vary the conditions under which he had been allowed to enter the UK in June 1978 and that decision had been upheld on appeal by the applicant to an adjudicator and to the IAT. Mr Coomasaru stated that when he left the United Kingdom in 1978 for the trip from which he returned on May 20, 1978, he was already "settled in the United Kingdom" within the meaning of section 2 (3) (d) of the 1971 Act and para 51 of the Statement of Immigration Rules for Control on Entry: Commonwealth Citizens (H.C.79), and that he should have been unconditionally admitted. However, Woolf J refused Mr Coomasaru leave to apply for judicial review of the appeal tribunal's decision. His appeal against that decision was dismissed.

Sir John Donaldson MR at page 17C—F, agreeing with Dillon LJ addressed the issue of settled both for the purposes of the section 2(3)(d) of the 1971 Act and for the purposes of the Statement of Immigration Rules for Control on Entry: Commonwealth citizens (H.C. 79). He said that no immigration officer had authority to grant Mr Coomasaru diplomatic status, but the officer concerned with his entry on May 11, 1975, was entitled to grant him permission to enter and remain so long as he was employed only with the Sri Lanka High Commission. This is precisely what he did. It was right to say that it this was an unusual form of permission, but that was immaterial. Moreover, it was equally immaterial that in granting permission in this form the officer considered that Mr Coomasaru had diplomatic status and was exempt from control so long as he retained that status. What mattered was that this form of permission involved a restriction on the period for which Mr Coomasaru might remain, namely so long as he was employed with the Sri Lanka High Commission, and so prevented his acquiring the status of one who is settled in the UK. Macur LJ found no plausible basis to distinguish the Coomasaru case or to decline to follow it as wrongly decided.

Macur LJ doubted Stevens v Governor and Another (Bermuda) [2014] 3 LRC—which it was suggested overruled Coomasaru—and she to found it to be without any precedential or persuasive value. In the Stevens case a Canadian citizen, had been resident in Bermuda for about 18 years. He married a Bermudian woman and he applied for naturalisation as a British Overseas Territories (BOT) citizen pursuant to section 18(2) of 1981 Act. Overall, Macur LJ held as follows:

78. This judgment does not commend itself on a number of fronts. First, it is a decision made per incuriam. The Court was not referred to Coomasaru and Hellman J specifically bemoaned the fact that he had not had the benefit of "an opinion of a Home Office lawyer" before deciding upon his construction of the relevant statutory provision in para 7(c) of Sch 1 BNA which required the applicant to be "not subject under the immigration laws to any restriction on the period for which he might remain in that territory". If he had not been referred to the guidance, he "might have been tempted to agree with [the adjudicator] on … his interpretation of para 7(c)… [which] best comports with the ordinary, natural meaning of the statutory language, …"

79. Far more persuasive for its reasoning on this point is Gal. Although Gal concerned the position prior to the EEA Order 1994 it raised the same question as arises in this case: is an EEA national exercising free movement rights in the UK "settled" in the statutorily defined sense? The IAT's answer was no. it decided that since an EU national could only remain in the UK for as long as they met the conditions of their underlying EU right of residence, they could not be treated as "settled".

Any attempt to differentiate Mr Coomasaru's situation from that of Mr Roehrig's mother based on her right to move between different types of qualification in the UK was, in the court's view clearly contrived. Until she acquired indefinite leave to remain, the period in which she was entitled to remain in the UK was restricted to her "qualified person" status on whatever basis that was. Macur LJ held as follows:

87. The general provisions for regulation and control enacted in section 3 of IA 1971 were to the same effect when under consideration in Coomasaru as they were on 20 October 2000. Limited leave to enter into or to remain in the UK could be made subject to time period and condition. The two are not mutually exclusive concepts as is clear from the provisions of sections 3(1) (b) and (c) and 3(3). The statute refers to 'period; not 'period of time.' The ordinary meaning of 'period' does not require to have a temporally defined start and end.

Hence, Mr Roehrig's mother in the exercise of her enforceable rights of free movement was not constrained to a period of time measured by the calendar—rather the constraint was measured by a continuation of her status. The court reject any submissions as to the "plain meaning" of the phrase "restrictions as to the period for which [she could] remain" or that the case was decided per incuriam because it failed to take into account section 3 of the 1971 Act in its entirety.


Eyre J's erroneous reference to the 2000 Regulations as disapplying the leave to enter and remain regime of the 1971 Act for EU nationals—rather than section 7 of the Immigration Act 1988— in paragraph 87 of his judgment did not invalidate the point and the Court of Appeal endorsed his judgment on the critical issue of statutory construction.

Ultimately, the outcome in the present case turned on the Court of Appeal's interpretation of two decisions, namely Gal and Coomasaru, both of which were good law and the UT's decision in Capparelli was disapproved by Macur, Nicola Davies and Phillips LJJ. It was lawful to maintain immigration controls in relation to nationals of EU Member States.