For the attention of all European Union nationals born in the United Kingdom between the 1st January 1983 and 1st October 2000.

Individuals who were born in the United Kingdom between 1st January 1983 to the 1st October 2000 whose parents were EU citizens exercising Free Movement rights in the UK are to be considered as British Citizens as of right.

This has always been the case, until a decision by the High Court in January 2023, ruled that this was not so and by implication had never been so.

The UK government is implementing emergency legislation to reinstate a British Citizenship that has so recently been recanted.

Summary

The British Nationality Act 1981 sets out who is a British citizen. It came into operation on the 1st January 1983.

From this time an individual who is born in the UK is a British citizen automatically from birth where one of their parents is British or settled here.

“ Settled” means free from Immigration Restrictions.

From the 1st January 1983, to 8th October 2000, the Home Office considered that those exercising Free Movement Rights in the United Kingdom were present without Immigration Restrictions.

Therefore their children were born to parents who were settled and were considered by the Home Office to be British Citizens at birth.

On the 8th October 2000 the Immigration ( European Economic Area ) Regulations 2000 came into force.

Regulation 8 stated that a person was only free of Immigration Restrictions once they had met certain additional specific criteria,

The result was that whilst those children who were born to parents exercising EU Treaty rights prior to 8th October 2000 were British Citizens:

Those born after 8th October, would only be British Citizens if the parents had been granted Indefinite Leave to Remain by the time of our birth ( or  met one of the other requirements set out in Regulation 8.)

This distinction was the consensus until the 20th January 2023, when the High Court ruled on the case of R (on the application of Roehrig) v Secretary of State for the Home Department

In this judgement , the Court held that as a person’s right to remain prior to October 2000 was contingent upon the exercise of EU Treaty Rights, the right to remain was defined and so parents exercising EU free movement rights before October 2000 were not settled.

And so their children were not British Citizens.

In order to remedy this disenfranchisement, the UK government has introduced the The British Nationality (Regularisation of Past Practice ) Bill

The government explains

“ This will protect the nationality rights of people born in the UK to a parent who was considered settled on the basis of exercising a free movement right, and those who registered or naturalised as British citizens on the basis of that policy.

This change will not create ‘new’ British citizens. This is about protecting the citizenship of individuals we have long considered British already under established Home Office policy.”

The law has retroactive effect, applying to those who had been born in the United Kingdom between 1st January 1983 and the 1st October 2000.

Comment.

Where there is apparent absurdity, there may lurk long forgotten context.

Until the 29th April 2006 few EU free movement rights led to a right to a permanent residence in the United Kingdom.

Until the arrival of East European nationals under the Accession Agreements from 2004, non Irish, EU migration to the United Kingdom was quite low.

UK administrative policy was quite benign.

From 2006 The EU Citizen’s rights directive came into force, and EU nationals from the accession countries now enjoyed these free movement rights in the UK.

An EU Directive that codified the rights of EU nationals, extrapolating from the principles of non-discrimination, specific rights of establishment restricted the ambit national state policy.

On the accession of the Eastern European states, EU migration to the UK rose substantially with the number rising from 125,000 in 2004 to over one million by 2012.

- Source . House of Lords European Union Committee Brexit: UK-EU movement of people 14th Report of Session 2016-17

So a large amount of new arrivals all with brand new codified rights.

So to retain as much discretion, successive UK governments implemented regulations that restricted EU free movement.

UK Immigration Tribunals and Courts developed themes that EU rights were triggered by activity or the fulfilment of conditions and so inherently contingent.

These factors post date the 2000 regulations, and previous policy but engendered a restrictive view of EU Law, which had the consequence that long forgotten policies are now reviewed in a restrictive light.

The nature of the BREXIT agreement, and the myriad law changes over the last decade are all material causes to the disarray.

A historical perspective may offer some description of how the absurdity was reached.