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

Eu 1473958 1920 1

On 12 March 2023, a panel composed of Lady Justice Macur, Lady Justice Nicola Davies and Lord Justice Phillips handed down judgment in R (Roehrig) v Secretary of State for the Home Department [2024] EWCA Civ 240, dismissing the appeal against the decision of Eyre J ([2023] EWHC 31 (Admin)).

The appeal 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 issue has 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 Appellant 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. The Appellant 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 and appeal were concerned with the law as it stood on the date of the Appellant’s birth.

The Appellant 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. 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. On that basis, the Appellant argued that he automatically acquired British citizenship on birth. 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, the Appellant had not automatically acquired British citizenship.

The Appellant also 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 the Appellant, that is, as providing for automatic citizenship for those born in the UK to persons exercising EU free movement rights. The Secretary of State’s position was that his understanding of the meaning of “settled” changed following certain decisions of the CJEU.

The Court of Appeal dismissed the appeal and upheld the decision of Eyre J in the Administrative Court. The judgment is available here.

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

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

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