British citizenship through EU parents living in the UK

If you were born in the UK before 1983, chances are you were issued British citizenship at the time of your birth. Your parents’ immigration and nationality status was not considered a factor under the British Nationality Act of 1948.

In 1983, the British Nationality Act of 1981 replaced the previous one, changing the way that British citizenship was awarded. If you were born on or after 1 January 1981 you were only considered British if at least one of your parents held settled status or British citizenship at the time of your birth.

The UK considers a person to be “settled” if their stay in the UK is not subject to any time restrictions, such as indefinite leave to remain (ILR).

Defining “settled” status for EU citizens in the UK

Recently, the definition of “settled” has been examined in the UK courts. A claimant, Mr Roehrig, was born in the UK on 20 October 2000. His mother, a French national, had resided and been employed in the UK since June 1995. The question put before the court was to determine if, as an EU citizen exercising her right to free movement within the UK, she could be regarded as "settled." The conclusion was that she did not hold ILR, disqualifying her from being considered "settled."

Mr. Roehrig's legal team argued that before 2 October 2000, the Home Office considered any EU citizen to be "settled" in the UK if they were utilising their rights to free movement, such as by working there. This view meant that children born in the UK to an EU national were considered British citizens at birth and it was not necessary for that EU citizen to hold ILR.

So, the question here is, what changed on 2 October 2000? Did the Home Office just change their mind or was it a change in EU law?

The mistaken granting of British citizenship

The court found that nothing had changed in EU law on 2 October 2000, and concluded that the Home Office had been incorrectly granting British passports to those born in the UK before 2 October 2000, whose EU parents did not hold ILR.

Conversely, the Home Office was found to have correctly denied applications for those born in the UK after 2 October 2000, including Mr. Roehrig. The ruling also uncovered that for 17 years, from 1 January 1983 to 2 October 2000, the Home Office had mistakenly considered children born in the UK to EU nationals as British citizens.

The total number of such citizens runs into tens of thousands who in the court’s opinion, hold their British passport in error. The UK government confirmed it was not seeking to withdraw passports from such people and would be seeking an immediate remedy.

The introduction of Section 50B

The solution was presented in the shape of a new law.  The British Nationality (Regularisation of Past Practice) Act 2023, which came into effect on 29 June 2023, inserts Section 50B into the current British Nationality Act 1981. This section retrospectively confirms and protects the British nationality status of all children born in the UK between 1 January 1983 and 1 October 2000 to an EU citizen who was exercising free movement in the UK at the time of their child’s birth.

Currently, this means that children born in the UK to EU nationals before 1 October 1 2000, can still apply for British passports if their parent was exercising their right to free movement in the UK.

No matter how complex your case, our citizenship and immigration consultants can help you every step of the way. Contact our team on +44 (0) 20 7759 7581 or +27 (0) 21 657 2139. Alternatively, you can send an email to citizenship@sableinternational.com.