What is the case about?
Prior to the implementation of the British Nationality Act 1981, children born in the United Kingdom were automatically born British. Since the British Nationality Act’s implementation on 1 January 1983, a person born in the United Kingdom is British if they are born to a parent who is British or a parent who is settled in the United Kingdom. A ‘settled’ person has no conditions on the length of their stay in the United Kingdom. EEA parents exercising rights of free movement, for example working here, were considered to be settled and therefore the children born to them were considered British and subsequently could be issued with British passports.
On 2 October 2000, the Home Office issued guidance stating European parents were not settled and that they had to apply for indefinite leave to remain to be deemed settled. The Roehrig judgment confirmed that the restrictive approach applied by the Home Office since 2000 was the correct interpretation of the British Nationality Act. This confirmed that EEA parents exercising rights of free movement were not settled and that the children born to these European nationals were not born British. Therefore, the automatic entitlement to British citizenship which had been assumed, was not correct. The judgment raises implications for those granted British passports in error.
What may the Home Office do to address this issue?
The Home Office could change the British Nationality Act 1981, implementing a legislative fix. This could be a retroactive statutory recognition of British citizenship to those affected. Who is a British citizen is a matter of fact so only a legislative change would be able to easily rectify the mistake which affects those who were incorrectly issued with a passport. However, the Home Office may decide to extend the reasons why someone can register a British citizen as an adult so that the people affected can make an application to become British. This is quite likely to be an application that could be made free of charge.
What are the implications of the judgment?
This judgment could affect thousands of individuals.
The children born before 2 October 2000 to EEA national parents are unlikely now have the immigration status they require. As this cohort believed they were British, they would not have had to apply for immigration status in the United Kingdom, nor of course register or naturalise as a British citizen. Additionally, it has been a requirement for EEA nationals wanting to stay in the United Kingdom beyond 31 December 2020, to apply to the EU Settlement Scheme. Those that believed they were British would not have done this.
EEA nationals who cannot hold dual nationality, may have taken steps to renounce their first nationality as they believed they were British and without their British nationality would be rendered stateless. There is now also potentially a second generation of people who thought that they were British by virtue of their parents being British who in fact are also not British citizens.
What does this mean for you if you are a person affected?
It is difficult to quantify how many people will be affected by this judgment. People may only become aware of this matter affecting them when they try to renew their British passport and they are denied a passport.
If you were born between 1 January 1983 and 2 October 2000 to an EEA parent who was exercising rights of free movement but did not hold indefinite leave to remain and if you have been treated as a British citizen, we would urge you to follow the developments resulting from this case, in particular any possible announcement from the Home Office clarifying what they intend to do.
We will be keeping updated on this area and the developments with our experts in EU law and nationality matters. We would be happy to advise you at any point if this case affects you. Please contact us on 0207 401 6887 or via email on firstname.lastname@example.org.