Nikki Weir

The 1981 Act, which came into force in January 1983, introduced the requirement for a child born in the UK to have at least one parent who is British or ‘settled’ at the time of the child’s birth for that child to be a British citizen at birth.

The notion of when an EU parent can be considered settled has been called into sharp focus by a recent English High Court ruling in the case of Roehrig v Home Secretary.

Historically, the Home Office has applied a policy of recognising those children born prior to 2 October 2000 to an EU parent exercising treaty rights in the UK (i.e. as a worker) as being British at birth. Such children have generally been issued with British passports on application.

Mr Roehrig was born on 20 October 2000, after the introduction of the Immigration (EEA) Regulations 2000. His mother was a French national exercising treaty rights in the UK at the time of his birth. He applied for a British passport on the basis of his mother’s settled status on the date of his birth. This application was refused by Her Majesty’s Passport Office (HMPO) and judicial review of that decision was sought.

It was the position of the Home Secretary that for the purposes of the British Nationality Act, a parent of a UK-born child will be considered settled if they hold Indefinite Leave to Remain (ILR) or a permanent right to reside under UK domestic law.

In Mr Roehrig’s case, it was found that his mother was subject to a restriction on the period for which she may remain in the UK as she had not applied for and been granted ILR at the time of her son’s birth and, as such, HMPO was correct to refuse to issue a passport.

In the course of the judicial review, it was indicated on behalf of the Home Secretary that the policy of issuing passports to children born in the UK to an EU parent prior to 2 October 2000 on the basis of their EU parent’s settlement in the UK had been improperly applied.

We are now in a position where those born between 2 October 2000 and 29 April 2006 – prior to the introduction of the Immigration (EEA) Regulations 2006 – are clearly not to be issued with passports based on the settlement of an EU national parent at the time of the applicant’s birth, unless that parent had applied for and been granted ILR. It is unclear how many passports have been issued on the basis of an EU parent exercising treaty rights and thus being deemed settled before the Roehrig decision.

The position for those born between January 1983 and 1 October 2000 is slightly murkier. Again, it is unknown how many thousands have benefitted from the previous Home Office policy to issue passports but it is the case that this policy has been ‘paused’ for the time being.

The ramifications for many offspring of EU nationals who have considered themselves automatically British at birth are potentially catastrophic, even if they have previously applied for and been granted a passport without issue. Could renewal applications be refused?

Immigration practitioners will be watching closely to see how the Home Office addresses this going forward. And many thousand British passport holders with EU parent(s) will collectively be holding their breath.

Nikki Weir is a director at Burness Paull