In our previous article, we discussed the complexities arising from the case of R (on the application of Roehrig) v Secretary of State for the Home Department  EWHC 31 (Admin) for children of EEA nationals and their potential claims to British citizenship. This case raised the question of whether the Secretary of State had been correct to treat children born before 2 October 2000 to EU citizens residing in the UK pursuant to their rights under EU law as having automatically acquired British citizenship at birth.
British Citizenship for Children of EEA Nationals
As outlined in our previous article, whether these individuals are automatically British is a question of law rather than discretion or policy. If indeed the approach had been wrong in law, the Secretary of State could not therefore continue it as a matter of policy. It is for this reason that the government has introduced a new Act confirming how British nationality law would apply to those born in the UK to EU national parents between 1 January 1982 and 1 October 2000. The British Nationality (Regularisation of Past Practice) Act 2023, which received Royal Assent on 29 June 2023, has immediate and retrospective effect and is intended to clarify the status of those individuals.
British Nationality (Regularisation of Past Practice) Act 2023
The Act inserts Paragraph 50B into the British Nationality Act 1981. This paragraph confirms that a person exercising a freedom of movement right at any time falling within the 'remedial period' is treated for the purposes of the Act as not being subject to any restriction on the period for which they may remain in the UK under the immigration laws at that time. The 'remedial period' and 'freedom of movement rights' are defined later in the paragraph. Where the right to reside was in Great Britain and Northern Ireland, the remedial period is the period beginning with 1 January 1983 and ending on 1 October 2000. The periods for the Bailiwick of Guernsey, Jersey and the Isle of Man, vary and are also defined in that section.
The factsheet accompanying the Act states that between 1 January 1983 and 1 October 2000, EU, EEA and Swiss nationals were considered settled if they were living in England, Scotland, Wales or Northern Ireland and exercising free movement rights. The Act is intended to confirm this position in the law. The factsheet stated that the change would not create 'new' British citizens, but would protect the citizenship of individuals whom the Secretary of State has long considered British under established Home Office policy.
The factsheet continued by stating that:
- The Home Office has identified a technical issue with the legality of the previous policy.
- This suggests that EU, EEA and Swiss nationals should not have been considered settled solely on the basis of living in the UK and exercising a free movement right here. We want people who have been considered British by successive governments based on that policy to be reassured that they will not lose that status. They will be British citizens in law and will always have been so (or since the date of their naturalisation or registration, if applicable).
- We are merely reflecting in primary legislation a position that has existed in policy and guidance for several decades.
Given that the policy may not have been in accordance with the requirements of the law for automatic acquisition of British citizenship, which is determinative in respect of British Nationality matters, technically this Act does constitute a creation of a new basis on which citizenship can be acquired. However, in practical terms, the Act simply creates a legal basis for the policy that the Home Office has been implementing for many years.
What Does This Mean for Children of EEA Nationals Born Between the Relevant Dates?
Previously, the Automatic acquisition of British citizenship: caseworker guidance , published on 23 March 2023, stated as follows:
"While the Home Office assesses recently identified legal issues, the policy for the acquisition of citizenship by individuals born in the UK between 1 January 1983 and 1 October 2000 inclusive to an EEA national parent has been suspended. However, if someone has already been recognised as a British citizen, for example through the issue of a British citizen passport, we will continue to treat them as such."
The updated guidance, published on 30 June 2023, now states that:
'We have amended this guidance to remove reference to the suspension of the policy for the acquisition of citizenship by individuals born in Great Britain and Northern Ireland between 1 January 1983 and 1 October 2000 inclusive to a European Economic Area (EEA) national parent. This policy was paused for first time passport applicants on 23 March 2023 whilst the Home Office assessed recently identified legal issues, but has now been reinstated following the introduction of the British Nationality (Regularisation of Past Practice) Act 2023. This guidance also sets out the impact of this legislation.'
The guidance goes on to confirm the retrospective effect of the Act, and its confirmation that EEA nationals in exercise of a free movement right in the relevant period were free from immigration time restrictions. It confirms that "This means that where they were also ordinarily resident, they will have met the definition of settled for nationality purposes and any children born to them in the UK at that time will be British automatically."
The case of Roehrig is now pending before the Court of Appeal. The question in that case remains whether a person exercising free movement rights in the UK on or after 2 October 2000 meets the definition of settled for the purposes of the British Nationality Act 1981. However, the Court of Appeal's conclusions may well address the question of whether the Secretary of State's approach to those born before that date has been correct over the decades it has been applied. The good news is that, notwithstanding the outcome of those proceedings, this Act ensures that those who fall into that category and have long been recognised as British citizens by the Secretary of State will not have that status undermined.