Skip to content

02 February 2023

Home Office have misapplied British citizenship laws – case analysis

3 mins

On 20 January 2023, the High Court handed down judgment in the case of R (on the application of Roehrig) v Secretary of State for the Home Department [2023] EWHC 31 (Admin). In brief, this case determined whether a person born in the UK to an EU citizen exercising free movement rights could automatically acquire British citizenship.

The facts

The Claimant in this case applied for a British passport. He argued that when he was born on 20 October 2000, he automatically acquired British citizenship because his mother, who was a French citizen, was ‘settled’ in the UK by virtue of the fact that she was lawfully resident in the UK as a worker under EU law.

The Defendant, the Home Office, refused the application for the passport. They said that the mother was not ‘settled’ as, even though she was exercising free movement rights, she was subject to a restriction on the period of time for which she might remain in the UK and thus she was not ‘settled’. To be considered ‘settled’, she must have had indefinite leave to remain in the UK.

The law

Under the British Nationality Act 1981, people born in the UK after 1 January 1983 are automatically British if one of their parents are British or ‘settled’. To be ‘settled’ in the UK means to have permission to stay in the UK with no restriction on the period of time for which they are allowed to stay in the UK.

Prior to 2 October 2000, the Home Office’s position was that an EU citizen would be considered ‘settled’ if they were in the UK exercising free movement rights. After 2 October 2000, when the Immigration (European Economic Area) Regulations 2000 came into force, the position of the Home Office changed so that EU citizens were only considered ‘settled’ if they had indefinite leave to remain or (after 2006) permanent residence in the UK.

The judgment

In this case, the Judge agreed with the Home Office’s position that the Claimant’s mother must have had indefinite leave to remain to be considered ‘settled’ in the UK and thus, the Claimant did not automatically acquire British citizenship. 

The judgment potentially impacts a significant amount of people born prior to 2 October 2000 as the Home Office have effectively conceded that their approach in regards to those born prior to 2 October 2000 was incorrect and announced that they have ‘paused’ this policy. It remains to be seen how those who have obtained British passports on the basis of this policy will be affected.

Our experienced Personal Immigration, Asylum and Nationality team can advise you on the issues raised in this article. To get in touch, submit an enquiry form here.

How can we help you?

We are here to help. If you have any questions for us, please get in touch below.