British Citizenship
After a judgment by the United Kingdom’s High Court, scepticism has arisen around the British government’s own understanding of its citizenship law. On January 20, in the case of Roehrig vs Secretary of State for the Home Department, Justice Eyre determined that the restrictive approach applied by the Home Office since 2000 to how the children of European Union nationals automatically acquire citizenship is the correct interpretation of the law.
Roehrig claims to acquired British citizenship
During the hearing of the court, several questions concerning the nationality of Antoine Lucas Roehrig, who was born on October 20 2000, in the UK were raised. Taking notes from his family background, his mother is a French national who had lived and worked in the UK under European Union law for five years before he was born. Roehrig claimed he acquired British citizenship at birth by virtue of section 1(1) (b) of the British Nationality Act 1981 because his mother was settled in the UK at the time he was born. The Home Office disputed that his mother met the act’s criteria for being settled and refused his application for a British passport.
Eyre’s ruling in favour of the Home Office hinges on the government’s interpretation of how the legal definition of being “settled” in the UK applied to European Union nationals. Thousands of people who believe that they stay in the UK have their lives completely upended.
British Nationality Act 1981
Anybody born in the UK acquired British citizenship by default prior to 1983. Following that, people born in the UK were only regarded as British citizens if most one of their parents was either a British citizen themselves or “settled” in the UK at the time of the child’s birth, as defined by the British Nationality Act 1981.
For 17 years, the Home Office considered European Union citizens who used their right of free movement in the UK to be settled and their children who were born in the UK to be British. However, the Home Office modified the guidelines on October 2, 2000. European Union nationals were now required to apply for and be given indefinite leave to remain in order to be considered “settled”.
The issue is that a large number of citizens of the European Union did not request indefinite permission to remain because they were already in the UK and did not require it. Why apply for something that you don’t seem to need?
Right to stay or regarded as ‘settled’
So, the issue raised by the Roehrig case is whether individuals from the European Union who do not have an indefinite right to stay could be regarded as “settled”. The British Nationality Act’s section 50 defines a person residing in the UK without any immigration law restrictions on their period of stay, thus the High Court had to decide whether European Union citizens satisfied this description in order to provide an answer to this question.
The European Union regulation, which had direct force in the UK until Brexit, effectively created a conditional residence for EU nationals, who may dwell in the UK for as long as they remained a “qualified person”. These residency rights were typically offered in exchange for employment. In certain instances, a person may qualify by virtue of being unable to. In certain circumstances, someone might be eligible through being unable to work due to illness or job loss, through living off personal savings, or through relying on a family member.
Eyre found that this conditional residence had the same impact as a restriction on immigration rules for the duration of time that citizens of the European Union might stay in the UK. In other words, he determined that merely being a “qualified person” under the free movement laws of the European Union did not automatically qualify one as having “settled” in the country.
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European Union citizens were able to live in the UK
This view of the law is unexpected. Many European Union citizens were able to live in the UK for decades on the basis of EU law without requesting indefinite leave to remain before Brexit and the ensuing necessity to apply for the EU settlement plan. Their children were viewed as British, and they were seen as established. It’s important to note that new regulations, like those the Home Office unveiled on October 2, 2000, do not alter the law. They merely change how the law is applied and how it is interpreted.
Eyre has determined that the British Nationality Act should be interpreted in accordance with the Home Office’s limited approach to British citizenship, which has been in effect since October 2, 2000. Hence, the earlier understanding that was put into practice between 1983 and October 2, 2000, was wrong. This implies that many people who were born during this time period to parents, who, like Roehrig’s mother, were “eligible persons” under the European Union free movement regulation, will have been incorrectly granted British citizenship by the Home Office.
On the other hand, if Roehrig succeeds in his appeal of the ruling, the Home Office’s stringent policy since 2000 will be deemed illegal. The legal interpretation that was put into effect before to October 2000 will have been accurate. In this case, the Home Office would have incorrectly denied British citizenship to a large number of individuals born after 2000 to citizens of the European Union who ought to have been regarded as being “settled” in the UK.
Brexit promise
Given that the government grossly underestimated the number of EU citizens residing in the UK before Brexit, it is realistic to assume that there will be tens of thousands of people who might be impacted in either direction. The Home Office has acknowledged that the affected children born before October 2, 2000, are British, as a matter of policy and justice, according to the secretary of state’s representations to the high court. But this is just a policy issue. It doesn’t offer any legal assurance.
Colin Yeo, an immigration attorney, cautions that the Home Office has in the past declared citizenship null and void if it was obtained unintentionally or via Home Office error. The policy to recognize British citizenship for anyone born before to October 2, 2000, is now on hold.
What about people who believed they had passed on their British citizenship yet went on to have their own children? Legislation that recognises the affected group’s acquisition of British citizenship in the past could guarantee protection for them. Nonetheless, thousands of “potentially British” individuals with parents who are citizens of the EU are currently living in a state of extreme ambiguity.
