By David Zuther – Authorized Affiliate
In This Article
- Introduction to British Passport Applications for Children of European Nationals
- British Citizenship at Birth: The Role of Treaty Rights and Parental Settlement Status in UK Passport Applications
- When Is a European National ‘Settled’ in the UK?
- Treaty Rights Passport Applications – General Considerations
- The EU Settlement Scheme and Treaty Rights
- Conclusion on British Passport Applications for Children of European Nationals
- Contact Our Immigration Barristers
- Frequently Asked Questions About British Passport Applications for Children of European Nationals
- Glossary
- Additional Resources
1. Introduction to British Passport Purposes for Youngsters of European Nationals
British Passport Purposes for Youngsters of European Nationals could be a surprisingly complicated course of, formed by an internet of historic and authorized components. The interplay between UK immigration legislation and the European Union’s Treaty rights has created a singular panorama for these in search of citizenship for his or her youngsters. This complexity is especially evident when figuring out whether or not a guardian, who’s a European nationwide, was thought of “settled” within the UK on the time of their youngster’s start. Understanding this significant standing is essential to efficiently navigating British citizenship claims for these born within the UK to European dad and mom. This put up delves into the authorized framework, key issues, and up to date developments that impression these passport purposes.
2. British Citizenship at Delivery: The Function of Treaty Rights and Parental Settlement Standing in UK Passport Purposes
Underneath part 1 of the British Nationality Act 1981, an individual born within the UK will automatically acquire British citizenship on start if, on the time of their start, both of their dad and mom is a British citizen or ‘settled in the UK.’ In part 50 of the 1981 Act, being settled within the UK is outlined as ‘being ordinarily resident in the United Kingdom (…) without being subject under the immigration laws to any restriction on the period for which he may remain.’
From the UK’s entry into the European Financial Neighborhood in January 1973 to its exit from what had then turn into the European Union on the finish of 2020, thousands and thousands of residents of mainland Europe moved to and settled down within the UK. They did so on the idea of Treaty rights – a shorthand for the free motion rights loved by residents of the European Financial Space (comprising the member states of the European Union in addition to Iceland, Norway and Liechtenstein) and Switzerland (which might be known as ‘European nationals’ for ease within the the rest of this text).
Whereas, on account of Brexit, Treaty rights could be regarded as principally of historic curiosity right now, they do stay related to a variety of conditions. Considered one of them is when an individual makes a primary software for a British passport, on the idea that they acquired British citizenship at start by means of their European nationwide guardian’s standing within the UK. This text introduces the complicated space of such Treaty rights passport purposes, beginning with the query of when an individual dwelling within the UK on the idea of Treaty rights was thought of to be ‘settled’ within the UK.
3. When Is a European Nationwide ‘Settled’ within the UK?
This difficulty has brought about appreciable difficulties. Between 01 January 1983 (the approaching into power of the British Nationality Act 1981) and 01 October 2000, the Dwelling Workplace thought of European residents exercising Treaty rights within the UK to be ‘settled’, in order that their youngsters turned British residents at start. From 02 October 2000 to 29 April 2006, the Dwelling Workplace required Europeans to have indefinite go away to stay so as to be thought of ‘settled’ within the UK. From 30 April 2006 (the day the EEA Rules 2006, transposing the EU’s 2004 Residents Rights’ Directive, got here into power), the European citizen on whom the nationality declare depends should have acquired the fitting of everlasting residence underneath the Rules (typically, this requires the train of Treaty rights within the UK for five consecutive years, although shorter durations can suffice in particular circumstances). Totally different dates apply for Guernsey, Jersey, and the Isle of Man.
Regardless of the above adjustments, the Dwelling Workplace continued to deal with purposes from these born earlier than 02 October 2000 in the identical manner because it had beforehand carried out. Nevertheless, it solely did in order a matter of coverage, and out of issues of equity. As a matter of legislation, the Dwelling Workplace thought of its post-October 2000 interpretation to be appropriate. In a January 2023 judgment, handle in our earlier put up, British Citizenship for Children of EEA Nationals, the Excessive Court docket agreed, as did the Court of Appeal this March. These judgments thus instructed that enormous numbers of individuals born previous to 2000 had wrongly been accepted to be British residents, inflicting appreciable concern. Luckily, Parliament acted swiftly (see our put up Update on British Citizenship for Children of EEA Nationals) to guard the place of these born between 1983 and 2000, retrospectively turning the Dwelling Workplace’s ‘policy’ into legislation.
4. Treaty Rights Passport Purposes – Normal Concerns
A number of observations of basic relevance to passport purposes on the idea of Treaty rights could be made.
There are a number of classes of individuals entitled to train free motion rights underneath European legislation, every with their very own eligibility standards – as an example, college students, staff, or self-employed individuals. An individual on whose train of Treaty rights a passport software is based isn’t required to have exercised the identical Treaty proper for a interval of 5 years – so that somebody who was exercising Treaty rights as a pupil for 2 years after which as a employee for 3 years would qualify as ‘settled’ for the needs of the 1981 Act. It’s not, nevertheless, potential so as to add collectively durations of train of Treaty rights by two European nationwide dad and mom to get to 5 years.
A passport software based mostly on Treaty rights could be made the place the applicant’s guardian isn’t a European nationwide themselves however is the direct or prolonged member of the family of a related European citizen who exercised Treaty rights. Who qualifies as such a member of the family is a fancy matter and outdoors the scope of this text.
The related European nationwide’s nation of nationality can also be a related issue, as nations joined the EU/EEA at completely different occasions and their residents have been typically topic to transitional provisions earlier than they may totally take pleasure in free motion rights. Typically, durations of residence are solely taken under consideration in the event that they postdate the accession to the EU/EEA of the related European nationwide’s nation of nationality.
Nevertheless, an exception might apply: on account of the Court docket of Justice of the European Union’s ruling in joined instances C-424/10 and C-425/10, Tomasz Ziolkowski and Barbara Szeja and Others v Land Berlin, nationals of sure EU nations can depend on durations of residence within the UK previous their nation’s accession to the EU. This is applicable the place
- The guardian in query was a citizen of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia, Romania, Bulgaria, Malta, the Republic of Cyprus, or Croatia
- They have been legally within the UK (underneath UK legislation) previous to their nation of nationality’s accession to the EU
- They’d have met the circumstances for the train of Treaty rights, had these circumstances utilized to them throughout their keep within the UK.
It also needs to be famous that Irish residents are thought of to be ‘settled’ within the UK from their entry to the UK, on account of historic agreements which pre-dated the UK’s membership of the EU and subsisted after its departure (see our earlier posts The Rights of Irish Citizens in the UK after Brexit and Travel Between the UK and Ireland: A Guide for British and Irish Citizens). Because of this, no train of Treaty rights must be proven the place the particular person on whom the passport software depends is an Irish citizen.
Lastly, the place the applicant was born after 30 April 2006, and thus should present that the related EEA nationwide acquired a proper of everlasting residence, the principles round continuity of residence ought to be borne in thoughts. Typically, throughout the interval of residence required to qualify for everlasting residence, the European nationwide shouldn’t have been outdoors the UK for greater than six months in any 12 months, with exceptions for obligatory army service or an absence of as much as one 12 months for an essential motive (corresponding to being pregnant and childbirth, critical sickness, examine or vocational coaching).
A proper of everlasting residence, as soon as acquired, could be misplaced by means of an absence of two consecutive years. Continuity of residence can also be damaged the place an individual is imprisoned, faraway from the UK or served with a deportation or exclusion order.
5. The EU Settlement Scheme and Treaty Rights
In preparation for the UK’s departure from the European Union, the UK authorities launched the EU Settlement Scheme (EUSS), which first opened for purposes in a restricted pilot on 28 August 2018 and was then opened to most people in March 2019. The existence and design of the EUSS results in a variety of complicated interactions with Treaty rights.
Free motion for EEA nationals ended with the expiry of the transition interval at 11pm on 31 December 2020. Nevertheless, Treaty rights may proceed to be exercised throughout a grace interval lasting till 30 June 2021, the deadline for making an software to an EUSS (although late purposes are nonetheless permissible the place there are affordable grounds – see Updated Guidance on Late EU Settlement Scheme Applications)
Which means youngsters born within the UK to EEA nationals between the date the EUSS opened and the top of the grace interval (28 August 2018 as much as and together with 30 June 2021 might be British if their guardian both:
- was granted indefinite go away to stay (ILR) underneath the European Union Settlement Scheme (EUSS) earlier than they have been born; or,
- had acquired proper of everlasting residence by means of exercising Treaty rights for five steady years (or much less if an exception utilized) earlier than their youngster’s start
EEA nationals within the second class might have been granted pre-settled standing earlier than their youngster’s start (as an example, if they didn’t present the required proof of residence of their EUSS software, regardless of having lived within the UK for 5 or extra years). The second sort of software depends on the train of Treaty rights, whereas the primary one doesn’t (certainly, eligibility for the EUSS relies on steady residence within the UK and doesn’t require candidates to have met the circumstances for the train of Treaty rights for a profitable software.
It could be thought that, from 01 July 2021 onwards, solely these holding settled standing (indefinite go away to stay) underneath the EU Settlement Scheme would qualify as ‘settled’ for the needs of their youngsters’s nationality. The place is altered considerably on account of a 2022 judgment (mentioned in our earlier put up: High Court: Automatic Loss of Rights under the EUSS is Unlawful) through which the Excessive Court docket discovered that the EU-UK Withdrawal Settlement mechanically confers a proper of everlasting residence on those that meet its circumstances, and which subsequently can’t be misplaced (because the Dwelling Workplace had instructed) as a result of a holder of pre-settled standing fails to improve to settled standing in time.
Because of this judgment, an applicant born after 1 July 2021 could have acquired British citizenship mechanically the place the related European nationwide has both
- been granted indefinite go away to stay underneath the EUSS, or
- had acquired a proper of everlasting residence underneath the Withdrawal Settlement (and held pre-settled standing) on the time of the applicant’s start.
Nevertheless, as above, you will need to word that the eligibility standards for the 2 forms of standing differ: a proper of everlasting residence underneath the Withdrawal Settlement requires the train of Treaty rights for the required time period, and having began previous to 31 December 2020, whereas settled standing underneath the EUSS requires solely 5 years’ steady residence.
Individually from the problem of everlasting residence rights underneath the Withdrawal Settlement, the British Nationality Act 1981 has been amended (see our earlier put up British Citizenship and the EU Settlement Scheme – Section 10A of the British Nationality Act 1981 for additional element) to incorporate a bit 10A which supplies {that a} youngster might be mechanically British in circumstances the place both of their dad and mom is barely granted indefinite go away to stay underneath the EUSS after their start, and after 1 July 2021 if one of many following apply:
- the applying was submitted by the 30 June 2021 deadline however was not determined by youngster’s start, or
- the applying was submitted after 30 June 2021, there have been affordable grounds for lacking that deadline, and the related European nationwide would have met the related eligibility necessities, and thus been granted, settled standing had they utilized previous to the deadline.
Moreover, the European nationwide in query should have been ordinarily resident within the UK on the time of the applicant’s start.
In these circumstances, the kid might be mechanically British, and thus capable of apply for a passport, from the date the guardian in query is granted indefinite go away to stay underneath the EUSS.
6. Conclusion on British Passport Purposes for Youngsters of European Nationals
Making a primary passport software for the kid of a European nationwide is a fancy endeavour, each by way of the authorized framework and of the sensible difficulties which an applicant might encounter in attempting to show {that a} guardian was validly exercising Treaty rights a few years in the past. Professional recommendation could also be key to the success of such an software.
The place an individual didn’t purchase British citizenship at start, there could also be a variety of various choices, together with registration as a British citizen whereas they’re underneath the age of 18.
For skilled recommendation and help in relation to creating a British Passport Utility for Youngsters of European Nationals, contact our immigration barristers in London on 0203 617 9173 or by way of the enquiry kind under.
