Roehrig, R (On the Application Of) v SSHD [2023] EWHC 31 (Admin) – UK Nationality and Settled Parents
This case reaffirms the Secretary of State’s (SSHD’s) approach to nationality with regards to the British Nationality Act and children born to settled parents in the UK. It also clarifies a subtle issue surrounding whether a person in the UK exercising their free movement rights as an EU worker could be said to be “settled”.
The relevant sections of the British Nationality Act 1981 for this case were sections 1 and 50. These sections state that a person born to a parent settled in the UK becomes a British citizen upon their birth. A person is only settled in the UK if they are ordinarily resident in the UK without being subject under the immigration laws to any restrictions on the period for which they may remain.
The facts in this case were that the Claimant, Mr. Roehrig, who was born to a French mother in the UK on the 20th of October 2000, applied for a British passport and argued that he was British at birth due to his mother being “settled” in the UK. However, as Mr. Roehrig’s mother was in the UK as a worker exercising her free movement rights, the SSHD argued that she was not free from restrictions under immigration laws as she could only remain in the UK as long as she continued to be a ‘qualified person’ (i.e. a worker, or other category of qualified person). This restriction came from the Immigration (European Economic Area) Regulations 2000, which, after a lengthy discussion, were deemed to be immigration laws by Mr. Justice Eyre, and therefore the restrictions contained within were applicable to the Claimant’s mother.
Mr. Justice Eyre then considered whether these restrictions were also restrictions on the period for which the Claimant’s mother could remain in the UK. The Claimant argued that “period” referred to any restrictions being strictly temporal in nature, and therefore, as his mother did not have any time restrictions, the provision did not apply. Mr. Justice Eyre however did not accept this and instead agreed with the Defendant’s rebuttal which was that “period” did not have to refer specifically to a time period. Instead Mr. Justice Eyre accepted that, as the period of leave the Claimant’s mother had could be curtailed at any point if she was deemed to no longer be a qualifying person, she was therefore subject to an immigration law restriction on the period of her leave in the UK.
The end result for Mr. Roehrig was that his mother was not deemed to be “settled” in the UK at the time of his birth and he was therefore not a British citizen at the time of his birth and subsequently could not get a British passport.
What was surely infuriating for Mr. Roehrig was that, prior to the 2nd of October 2000, the Home Office’s policy had indeed viewed EU citizens as settled in the UK if they were exercising their free movement rights. However, on the 2nd of October 2000, a mere few weeks before the Claimant’s birth, the policy changed. Mr. Justice Eyre also did not accept the Claimant’s argument that, if his mother had applied to become settled, she would have received it at the time, as evidence that she was settled.
Source: https://www.bailii.org/ew/cases/EWHC/Admin/2023/31.html
By : Tiffany Carpenter