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Does a child born to an EU national exercising free movement rights automatically acquire British citizenship?

Written by
Landmark Chambers
Date of Publication:

On 20 January 2023, Eyre J ("the judge") handed down judgment in R (Roehrig) v Secretary of State for the Home Department [2023] EWHC 31 (Admin). The judge dismissed the claim. The challenge raised questions of statutory interpretation of the British Nationality Act 1981 ("the BNA 1981") and the interrelationship between that statutory scheme and the status of EU nationals exercising free movement rights before Brexit. The judgment is likely to have significant consequences for a cohort of individuals claiming British citizenship on the basis of being born in the UK to EU nationals exercising free movement rights.

The Claimant ("C") was born in the UK on 20 October 2000 to a French national mother ("M") who was, at the time of C's birth, exercising free movement rights as a worker. C claimed that, on birth, he had automatically acquired British citizenship by virtue of s.1(1)(b) of the BNA 1981, which provides that a person born in the UK automatically acquires British citizenship if, at the time of their birth, their mother or father is settled in the UK. Per s.50(2) of the BNA 1981, a person is settled if they are "ordinarily resident in the United Kingdom …without being subject under the immigration laws to any restriction on the period for which he may remain." 'Immigration laws' are defined in s.50(1) of the BNA 1981 as "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".

The dispute between the parties was as to whether M was subject under the immigration laws to any restriction on the period for which she might remain. The claim was concerned with the law as it stood on the date of C's birth.

C argued that M was not so subject and that M's rights derived from the EU Treaties, as given effect by s.2 of the European Communities Act 1972 ("the ECA 1972"). M's residence was not subject to any restrictions under "the immigration laws" as defined in the BNA 1981, because her residence was regulated by EU law. This was the analysis adopted by President of the Upper Tribunal McCloskey J in Secretary of State for the Home Department v Capparelli [2017] UKUT 00162 (IAC), a tribunal of coordinate jurisdiction to the High Court. The earlier decision of the Immigration Appeal Tribunal in Gal v Secretary of State for the Home Department (unreported 26th January 1994), which came to the contrary conclusion, was not of equivalent precedent value and, C argued, was correctly found to have been incorrectly decided by McCloskey J. On that basis, C argued that he automatically acquired British citizenship on birth.

Furthermore, C relied on the fact that, prior to 2 October 2000, the Secretary of State had understood the meaning of s.1(1)(b) precisely as contended for by C, that is, as providing for automatic citizenship for those born in the UK to persons exercising EU free movement rights. The Secretary of State acknowledged that she had previously understood the law to be as claimed by C, but claimed that her understanding of the meaning of "settled" changed following certain decisions of the CJEU. According to the Secretary of State, on the basis of that changed analysis, the Secretary of State promulgated the Immigration (European Economic Area) Regulations 2000 ("the 2000 Regulations"). At the relevant time, regulation 8(2) of the 2000 Regulations purported to deem that certain persons exercising EU rights, including M, are not settled for the purposes of the BNA 1981.

In the claim, C argued that he automatically acquired British citizenship based on the above interpretation of the BNA 1981; that the 2000 Regulations could not alter the meaning of the BNA 1981; and that the 2000 Regulations were ultra vires section 2 of the European Communities Act 1972.

The Secretary of State argued that, in being present in the UK exercising her exercise of free movement rights, M was subject to a restriction on the period for which she could remain under the immigration laws and, accordingly, C had not automatically acquired British citizenship. Further, the Secretary of State relied on the 2000 Regulations as having that same effect.

Eyre J dismissed the claim on the basis that, in his view, M was not settled under the BNA 1981. The judge held that Capparelli was either distinguishable or wrongly decided, and that the position of a person present in the UK on the basis of a conditional right is subject to restrictions on the period for which they might remain. The judge did not rule on the vires issue in relation to the 2000 Regulations. The judgment is available here.

Admas Habteslasie, led by Jessica Simor KC and Adrian Berry, appeared for the Claimant.

David Blundell KC and Julia Smyth (with Nicholas Chapman), appeared for the Secretary of State.