Introduction

There is to be a new British Nationality Act. A short one. Two sections, with one purpose: to make fast in law certain past practice. On 24 May 2023 the Home Office introduced the British Nationality (Regularisation of Past Practice) Bill into the House of Commons. The Bill confirms what had been thought by many – though not all – persons interested to be the correct legal position, and what had been also Home Office practice, as regards children born in the UK between 1 January 1983 and 1 October 2000 to an EEA national or Swiss national parent. Under the Bill, it is made certain that where such a parent was exercising a relevant Treaty right (a free movement right), he or she is to be treated a ‘settled’ in the UK, so that a child born in the UK to them automatically acquired British citizenship at birth. This is to be so without the need for the parent to show that he or she had secured indefinite leave to remain or an EU right of permanent residence.

The British Nationality Act 1981: interpretation and practice

Under section 1(1) of the British Nationality Act 1981 (the 1981 Act), automatic acquisition of British citizenship by birth in the UK depends upon at least one parent being a British citizen or ‘settled’ in the UK. To be ‘settled’ such a person must be ordinarily resident and free from any time restrictions on the period for which they may remain in the UK.

From 1 January 1983 to 1 October 2000 the Home Office interpreted this provision of the 1981 Act so than an EEA national or Swiss national who was exercising a Treaty right of free movement right in the UK (for example, as a worker, self-employed person, etc.) was not considered subject to any time restrictions as to the period for which they could remain. Therefore, they were considered settled. Therefore, a child born to them in the UK automatically acquired British citizenship at birth under the 1981 Act.

On 2 October 2000 the Home Office altered their position, so that for those born on and after that date, permanent residence or indefinite leave was required in order to be considered free of time restriction and therefore settled. Regulations that gave effect to EU law in domestic law, expressly stated this shift in position in terms. However, from then on it remained Home Office practice (though not now its interpretation of the law) to continue to consider those born prior to 2 October 2000 on the former basis. Those born prior to that date continued to able to secure recognition that they had automatically acquired British citizens and continued to be able to secure on application UK British citizen passports.

The position of those persons born on and after 2 October 2000 was tested in the case of R(Roehrig) v Secretary of State [2023] EWHC 31 (Admin) (disclaimer: this is a case brought via the Cardinal Hume Centre by Solange Valdez-Symonds as consultant, in which I am part of the counsel team and so I do not comment on the case itself. Reference is made to the case solely to explain the Bill). As a matter of law the High Court decided that in respect of a person such as the claimant, born on or after 2 October 2000 and so a person who did not benefit from the Home Office practice as regards those born prior to that date, where that person was born to an EEA national parent exercising Treaty rights (as a worker, self-employed person, etc.) but not possessing a permanent residence right or indefinite leave, his or her parent was not to be considered settled in the UK for the purposes of conferring British citizenship on the UK born claimant (NB the claimant has permission to appeal from the judgment). As regards those born on and after 2 October 2000, the judgment accords with the Home Office’s interpretation of the law from that date. As regards those born before that date, it disrupts Home Office previous practice to treat them as settled (a practice that had been ‘paused’ in some degree at the time of the hearing), as regards recognition of British citizenship and the issue of UK British citizen passports.

British Nationality (Regularisation of Past Practice) Bill

The Bill confirms in law the position taken as a matter of practice by the Home Office towards those born prior to 2 October 2000. It makes no provision for those born on or after that date. Those UK-born prior to 2 October 2000 to an EEA national or Swiss national parent exercising Treaty rights, will be deemed to have been born to a parent settled in the UK, so that they are at all times to be treated as having automatically acquired British citizenship at birth. The provision made is retrospective but in a beneficial way. The legislative technique used is similar to that found in the British Nationality Act 1948 (‘the 1948 Act’), whereby a woman who had married a foreign national prior to the commencement of that Act and who thereby lost her British subject status (under the law prior to the 1948 Act) was deemed to have been a British subject immediately prior to the 1948 Act, thus opening the door to retention/resumption of British nationality under that Act.

Detail

The Bill amends the 1981 Act. Section 50(2) of the 1981 Act makes provision for who is ‘settled’ for the purposes of the Act. A person must be ordinarily resident and ‘without being subject under the immigration laws to any restriction on the period for which he may remain’. Section 1(1)(b) of the 1981 Act states that a child born in the UK will be a British citizen automatically if, at the time of the birth, either parent is a British citizen or ‘settled’ in the UK.

Clause 1 of the Bill inserts a new section 50B into the 1981 Act. A person who was in the UK exercising a ‘freedom of movement right’ at any time during the remedial period (as regards the UK, 1 January 1983 to 1 October 2000; different provision is made for the Channel Islands and Isle of Man) is to be treated as not being subject to time restrictions on the period for which they may remain for the purpose of the 1981 Act.

Thereafter, a ‘freedom of movement right’ is defined by reference to the UK legislation under which it would have been exercised, so as to include a right to reside in the UK arising under or by virtue of section 2 of the European Communities Act 1972 or any other enactment so far as passed or made, or operating, for a purpose provided for in that provision. The intention of this formulation is to capture all rights to reside as they arose under the relevant Treaty law. The provision made is treated as always having had effect.

Clause 2 sets out the extent of the Bill. It extends to England and Wales, Scotland, Northern Ireland, the Channel Islands, the Isle of Man, and the British overseas territories. The territorial extent is the same as the 1981 Act. As regards British nationality, the Westminster Parliament legislates not only for the UK but also for the non-metropolitan territories: the Crown Dependencies and the overseas territories. The Bill is to be fast-tracked through Parliament. It will come into force on Royal Assent.

Further information may be found here on the PRCBC website: https://prcbc.org/news-updates/