Roehrig v Secretary of State for the Home Department

The case of Roehrig v Secretary of State for the Home Department (2023) raises interesting questions about the acquisition of British citizenship for children born in the UK prior to October 2000 to European parents.

Background
The British Nationality Act 1981, implemented on 1 January 1983, contains most of our current nationality law. This states that a person will acquire British citizenship automatically if they are born in the UK to a parent who was settled at the time of the birth. A person is considered 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”. So, for a child who was born in the UK to automatically acquire British citizenship their parent had to have no time restriction on their immigration status at the time of the child’s birth.
European law allows for the free movement of people between Member States if an EU national is exercising Treaty Rights. This was implemented in the UK in 1972 following the implementation of the European Communities Act 1972 and operated until we left the European Union. Prior to 2000, children born in the UK to European nationals who were exercising Treaty Rights were treated, for the purposes of nationality law, as settled. These children were therefore considered to be British citizens from birth and when they applied for a British passport, they were issued with one.

In the late 1990s, court judgements in the UK domestic courts started to indicate that European nationals who were exercising Treaty Rights were not to be treated as settled. The Immigration (European Economic Area) Regulations 2000 (“2000 Regulations”) came into force on 2 October 2000. These confirmed that to be treated as settled, European nationals must have been granted indefinite leave to remain. This meant that children born to European nationals who did not hold indefinite leave to remain at the time of their birth would not automatically be British from birth. They could register as a British citizen if and when their parent became settled in the UK after their birth.

The Immigration (European Economic Area) Regulations 2006 introduced the concept of permanent residence. From their implementation, a European national would be considered to be settled if they held either indefinite leave to remain or had automatically acquired permanent residence.

This case has left people born in the UK to European parents prior to 2 October 2000 in a state of confusion and uncertainty.

The Case
The Claimant, Roehrig, was born in the UK on 20 October 2000 to a French mother. His mother had been exercising Treaty Rights in the UK since 1995.  Roehrig applied for a British passport but was refused on the basis that in line with Home Office policy, his mother was not treated as settled as she had not applied for a residence permit endorsed with indefinite leave to remain. It is likely she would have been eligible if she had done so.

Roehrig argued that the correct policy should have been the one applied prior to 2 October 2000. He argued that EU nationals were not subject to immigration restrictions and were therefore settled.

The High Court did not agree. They considered that European law placed restrictions on EU nationals in that they only acquired and retained a right to live lawfully in the UK if they were exercising Treaty Rights The restriction was not for a specified period of time but instead for ‘so long as’ the EU national continued to exercise Treaty Rights.  As such, EU nationals were not free of any restrictions on the period for which they remained in the UK.

Roehrig was therefore not born to a parent who was settled in the UK and was not British by birth.

The implication of this decision was that the Home Office may have misapplied nationality law between 1983 and 2000, effectively allowing innumerable children of European parents born in the UK to hold a British passport when they were not in fact British citizens, despite the fact that they had always been treated as British.

What happens next?

Roehrig may be overturned by the Court of Appeal.

Failing this, it is for the Secretary of State for the Home Department to decide how she will deal with this issue. The Secretary of State could decide to apply the Roehrig decision and declare that these people are not British citizens and that their British passports have been issued in error. This would be to no-one’s advantage and would cause massive disruption to untold numbers of people. The suggestion that people are about to be declared not to be British citizens and removed from the UK is alarmist and the least likely outcome. This is particularly given that there are other better options available to the Secretary of State.

Under the new Nationality and Borders Act 2022, the Secretary of State has discretion to register children and adults as a British citizen. It would be open to the Home Office to decide that registration as a British citizen for this cohort of people did not require an application to be made and to declare them British citizens as of tomorrow.

It has also been noted that the Secretary of State could, in most cases, decide to treat passport applications made by this cohort as an application for citizenship and could therefore decide that British citizenship had been conferred at the point at which the passport application was granted.

For now, we will wait to see how the Secretary of State will deal with this matter but what is certain is that a resolution will need to be found, and found quickly, to reassure people caught up in this mess that they are not about to be stripped of their British passports.

If you have any queries on this article, please get in touch with our business immigration team.