British Citizenship Not Lawfully Acquired by EEA Nationals?

27 July 2017

We recently reported ("Statelessness - British Citizenship - Interesting Decision in the High Court", 3 July) on what on some view would seem a remarkably generous interpretation of British nationality law and the right to British citizenship.

But, in a new decision from the Upper Immigration Tribunal, the boot has switched to the other foot. The case is called "Capparelli" and it concerned an Italian national, a Deportation Order, and his right to British citizenship. The British citizenship issue was only one issue in the case, but since the case was published the issue of British citizenship acquired on the basis of leave under European free movement law has been thrust into stark prominence. (And in fact Mr Capparelli’s British citizenship or lack of it turned out not to be absolutely determinative in his case.)

What happened was this. Mr Capparelli had been born in the UK and both his parents were EEA nationals who had been exercising Treaty rights in the UK for some years at the time of his birth. A question was, had he acquired British citizenship at birth on the basis of his parents’ situation?

The issue was fairly complex because the rules have changed since Mr Capparelli was born in 1986. But, in any event, the current British law says that if a child is born in the UK and if either the mother or father is either British or is "settled" in the UK then the child acquires British citizenship at birth, ie the child is British and does not have to do anything to acquire British citizenship.

But then what is the correct legal meaning of the term "settled"? Most immigration practitioners would probably describe someone as "settled" under the current legal arrangements if they hold either Indefinite Leave to Remain (ILR) under the UK Immigration Rules or Permanent Residence (PR) under European free movement law. The essence is settlement is - or so we thought - that the settled migrant does need any further immigration permission to be in the UK and they can remain in the UK indefinitely, which would be the case for both these categories.

The Upper Tribunal (presided over by Mr McCloskey, who is President of the Tribunal, ie the top man) went into some detailed analysis about this.

The Tribunal first of all held that a European who has come to the UK to exercise free movement rights by for example working does not immediately become "settled" and it was never the case that such a person did. This was in itself quite controversial, but only by virtue of historical Home Office policies (which engaged Mr Capparelli’s situation). Most practitioners would probably agree that that is the correct understanding under current legal arrangements.

But the Tribunal went further and here things became more tricky. The definition of "settled" comes in the British Nationality Act 1981 and it contains the very important criterion that the person in question must be not "subject under the immigration laws to any restriction on the period for which he may remain".

Everybody (both Home Office and legal practitioners) previously thought that this included people who had PR under European law. But does it? The Tribunal thought not: "immigration laws" they said, only encompasses British law, not European law.

As Mr McCloskey put it: "In my judgement ‘immigration laws’ are confined to laws made by the United Kingdom Parliament. If this phrase were designed to extend to any provisions of EU law, one would expect clear words to this effect: there are none."

A moment’s thought about this throws up a huge issue. If this is really the case, does it mean that all those Europeans who have acquired British citizenship on the basis of PR have not really acquired British citizenship at all?

Well, that is exactly what does appear to be the case. Mr McCloskey went on to say that the concept of "settled" "cannot sensibly be applied to a EU citizen exercising Treaty rights since the ‘immigration laws’, correctly defined and understood, do not apply to such persons. In other words, in the case of EU citizens, no question of a time restriction under the immigration laws can arise."

There has predictably been a flurry of horror about this on the internet - or at least those parts of it written by immigration practitioners. This decision has raised the spectre of the Home Office removing British citizenship from many thousands of Europeans. Some (including Ian Macdonald QC, probably the doyen of immigration lawyers) have opined that the case was "wrongly decided" and that it should and must be appealed to the higher courts.

Indeed, it must be very likely that a decision as controversial will be revisited. It leaves uncertain the status of many who thought they had unequivocally acquired British citizenship.

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