Changes to British nationality law for EEA children receives royal assent

The British Nationality Act 1981 has been amended to change the position of those born in the UK to EEA parents between 1 January 1983 and 1 October 2000.

The change to the Act has come about following the determination of the case of Roehrig earlier this year.

Historically, EEA nationals living in the UK between 1 January 1983 and 1 October 2000, who exercised a free movement right (such as working, studying or being self-sufficient), were treated as automatically settled in the UK. UK nationality law provides that children born in the UK to settled parents automatically acquire British citizenship. As such, the children of such EEA nationals were British and entitled to apply for a British passport.

On 2 October 2000, the Home Office published guidance that EEA nationals in the UK needed to apply for Indefinite Leave to Remain to be considered settled.From 2006 the guidance was expanded to include EEA nationals who had obtained confirmation that they had acquired permanent residence. This meant that if an EEA national who had been living in the UK between 1 January 1983 and 1 October 2000 gave birth to a child after 2000, their child was no longer automatically entitled to a British passport unless the parents had obtained Indefinite Leave to Remain.

 Unfortunately, a number of cases arose in which the Home Office and the Passport Office did not follow its own guidance, and incorrectly issued British passports to children of this category of EEA parents. In some circumstances the Passport Office later refused applications to renew passports having realised their earlier error.

In the case of Roehrig earlier this year, the High Court held that the Home Office’s post-2000 approach was correct, that EEA nationals were not deemed to be settled automatically and thus needed to have obtained Indefinite Leave to Remain or permanent residence to be considered so. The inference of the ruling was that the pre-2000 approach was incorrect, and that those born before 1 October 2000 who had been issued with passports in accordance with the Home Office’s approach were not in fact British, leaving them in a precarious situation (particularly given that such individuals would not have applied for status under the EU Settlement Scheme, on the understanding that they were British).

The British Nationality (Regularisation of Past Practice) Act 2023 makes an amendment to the British Nationality Act 1981 to clarify the position, reverting to the Home Office’s pre-2000 approach. The position now is that EEA parents who were in the UK exercising a free movement right between 1 January 1983 and 1 October 2000 are considered settled, and that their children are therefore British. The legislation applies retrospectively.

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