Court of Appeal Rules on Definition of Settled Status for British Nationality Claims Under British Nationality Act 1981

Citation: [2024] EWCA Civ 240
Judgment on

Introduction

In the case of Antoine Lucas Roehrig, R (on the application of) v Secretary of State for the Home Department, the Court of Appeal (Civil Division) deliberated on whether an individual born in the United Kingdom to a French national who entered the country exercising EU rights could be considered a “British citizen”. The key consideration was the legal interpretation of the term “settled” within the British Nationality Act 1981 (BNA) and whether the UK’s “immigration laws” encompassed EU free movement laws.

Key Facts

Antoine Lucas Roehrig, the appellant, was born in the UK to a French national mother, who was residing in the UK as a “qualified person” under EU law. The mother had not applied for a residence permit endorsed with permission to remain indefinitely by the time of the appellant’s birth. Subsequently, when the appellant applied for a British passport, this application was refused due to a lack of evidence that his mother was free from immigration time restrictions at the time of his birth.

The legal crux rested on the interpretation of “settled” within section 1(1)(b) of the BNA and whether Roehrig’s mother had such status “without being subject under the immigration laws to any restriction on the period for which he may remain”. The definitions of “immigration laws” and “settled” under section 50 of the BNA were pivotal. The assessment involved the following legal arguments:

  1. The Definition of ‘Immigration Laws’:

    • The appellant argued that EU law should not be considered “immigration laws” under the BNA because EU citizens exercising freedom of movement rights are distinct from those governed by domestic “immigration laws”.
    • The respondent countered that EU law was incorporated into domestic law via the ECA 1972 and subsequent UK regulations governing the rights of EEA nationals, rendering them part of the “immigration laws”.

  2. The Concept of Being ‘Settled’:

    • The appellant contended that his mother was “settled” because her right to reside was not subject to a “restriction on the period for which she may remain”. This argument was based on the premise that EU law was not part of the UK’s “immigration laws” and thus not subject to the same restrictions.
    • The respondent and the court maintained that the mother’s right to remain was contingent upon her status as a “qualified person”, thereby imposing a “restriction” under domestic “immigration laws”.

  3. References to Other Case Law:

    • Capparelli (McCloskey J) was debated, which held that EU free movement rights were not part of “immigration laws”; however, the appellant’s circumstances were distinguishable.
    • Coomasaru was cited, supporting the interpretation that if a person’s right to remain is based on fulfilling certain conditions, they cannot be regarded as “settled”.

Outcomes

The principal outcomes were:

  1. The Court of Appeal found that the UK regulations at the material time were “immigration laws” for the purposes of section 50 of the BNA.
  2. The mother’s right to remain was contingent upon her EU citizen status as a “qualified person” and was considered a “restriction” under those laws.
  3. Due to this contingency, it was judicially upheld that Roehrig’s mother was not “settled” at the time of his birth.

Conclusion

The Court of Appeal clarified the interaction between national and EU laws within the context of British nationality claims under the BNA. It held that domestic regulations transposing EU law rights are part of the UK’s “immigration laws” and that the concept of being “settled” for nationality purposes entails being free from any restriction regarding the period one may remain in the UK, including those imposed by status or conditions. The case thus reaffirms the principle that British nationality is determined in accordance with domestic law.