Home Office clarifies position for children born to EEA national parents
Blog Immigration Law Blog

In an unusual example of speed and efficiency, the Home Office has responded to the recent High Court decision of Roehrig, which, as explained in my previous blog, threw into disarray the position of children born in the UK to an EEA national between 1 January 1983 and 1 October 2000 vis-a-vis their British citizenship. Positively, the Home Office has affirmed its intention to protect the British citizenship of those individuals the Roehrig decision affects by way of legislation – specifically, the British Nationality (Regularisation of Past Practice) Bill.

Background

Before the case of Roehrig, the position was that if you were born in the UK to an EEA national parent exercising free movement rights between 1 January 1983 and 1 October 2000, the parent was treated as ‘settled’ and accordingly, their child would be automatically British and could apply for a British passport. After 1 October 2000, in order to be born British, an individual would need to show that their EEA parent had, at the time of the child’s birth, obtained permanent residence / indefinite leave to remain / settled status (depending on the date the child was born).

In October 2022, the High Court ruled in the Roehrig case that for children born between 1 January 1983 and 1 October 2000, an EEA parent exercising a right of free movement was not sufficient on its own for the parent to be treated as ‘settled’. The effect of this ruling being that the Home Office had ‘incorrectly’ been issuing British passports to thousands of people born between these dates (and potentially also to those peoples’ children).

Home Office’s initial response

In the immediate aftermath of the Roehrig decision, the Home Office confirmed that they would continue to recognise as British anyone who had already been issued with a British passport, and that these individuals’ passports would continue to be renewed as normal.

For those who had not applied for a passport before Roehrig, the Passport Office agreed to put on hold any passport applications while waiting for the Home Office to confirm their position following the judgement.

British Nationality (Regularisation of Past Practice) Bill

The Bill, as currently drafted, makes provision for the insertion of a new section 50B into the British Nationality Act 1981, which would provide that:

“A person exercising a freedom of movement right at any time falling within the remedial period is treated for the purposes of this Act as not subject at that time to the immigration laws to any restriction on the period for which they may remain in the United Kingdom”.

In summary, what this means is that for children born in Great Britain or Northern Ireland to an EEA national parent who was exercising free movement rights between 1 January 1983 and 1 October 2000, their parent will be considered to have been ‘free from immigration restrictions’ (i.e. will be ‘settled’) and the child will therefore continue to be recognised as British.

By further positive development, the provision is to be treated as always having had effect. This retrospective application means that anyone who was worried about their citizenship following the Roehrig decision should no longer have any cause for concern about the legal soundness of their British citizenship.

What next?

The bill underwent its first reading in the House of Commons on 24 May 2023, and the Home Office plans for it to be fast-tracked through Parliament.

Although the Roehrig decision remains under appeal, the Home Office have confirmed that they nevertheless intend to implement the legislation. That is to say, regardless of the outcome of the Roehrig appeal, their intention is for these legislative changes (via section 50B) to take effect.

It is also understood that, for individuals whose passport applications were put on hold following the Roehrig decision, the Passport Office will be writing to those individuals to inform them of the pending legislation.

All in all, this is a positive development for the many thousands of individuals who, until now, had been left wondering not only about the status of their own British citizenship, but also about that of their children.