EEA citizen in the UK since 1997, child born in 02

[Tinuel]

Hi all,
And thanks before hand. This is doing my head in, as the information is a bit confusing.
I have been living in the UK since 1997, my wife since 1998. We are both EEA citizens (Portuguese).

Our daughter was born in 2002 here in the UK and has lived here since. Is she a British citizen automatically?
Reading about it, it appears that as we arrived prior to 2000, any EEA citizen living here was deemed settled right away. However, our daughter was born in 2002, at a time when the law had changed between 2000 and 2006.

But if we were both deemed settled prior to 2000, shouldn't she be considered a British citizen automatically under the parents indefinite leave to remain requirement?
What sort of docs do I need with her passport application to confirm that we have been here since 1997? I do not have the resident card.

Many thanks

[noajthan]

Hi all,
And thanks before hand. This is doing my head in, as the information is a bit confusing.
I have been living in the UK since 1997, my wife since 1998. We are both EEA citizens (Portuguese).

Our daughter was born in 2002 here in the UK and has lived here since. Is she a British citizen automatically?
Reading about it, it appears that as we arrived prior to 2000, any EEA citizen living here was deemed settled right away. However, our daughter was born in 2002, at a time when the law had changed between 2000 and 2006.

But if we were both deemed settled prior to 2000, shouldn't she be considered a British citizen automatically under the parents indefinite leave to remain requirement?
What sort of docs do I need with her passport application to confirm that we have been here since 1997? I do not have the resident card.

Many thanks

From MN1 guidance:

A child born in the United Kingdom between 2/10/2000 and 30 April 2006 to an EEA national parent will only be a British citizen if the parent had indefinite leave to remain in the UK at the time of the birth.

& from wikipedia...

Under the law as it existed between 2 October 2000 and 29 April 2006, a citizen of an EEA state or Switzerland could be granted permanent residence on application after four years' residence in the United Kingdom exercising Treaty rights (five years from 3 April 2006). Prior to 2 October 2000, citizens of EEA states were deemed to be permanent residents immediately upon taking up residence in the UK to exercise Treaty rights.

The change in the law in 2000 was retroactive. Hence, for example, a French citizen who arrived to work in the UK on 1 July 1986 would have been treated as a permanent resident between that date and 1 October 2000. From 2 October 2000, the status would revert to that of a temporary resident if an application for ILR was not made. On 30 April 2006, with five years' residence exercising Treaty rights accrued, that person regained permanent resident status.

So, yes, it appears that whether your child is British automatically all depends on whether you had ILR.
Did you apply for ILR at any time before 2 October 2000?

Failing that, if you have been exercising treaty rights in UK you must have acquired PR by now. If so you can register your child as a UK citizen (under section 1(3) of BNA using form MN1).

Even if you are not settled (have not acquired PR), your child has been in UK for first 10 years of her life (& more) so could now be registered under section 1(4) of BNA using form T

You could try requesting a SAR from UKVI to (hopefully) provide more of your travel history:
https://www.gov.uk/government/publicati ... mmigration

Best of luck.

[Tinuel]

Thanks for your response. I do not have an official document/card with ILR.
I have national insurance docs and P60s from 1997, and at the time, that was enough to give me settled status in the UK.

[secret.simon]

If you have acquired PR status by exercising treaty rights (working, seeking work, self-sufficient with CSI or student with CSI) for five continuous years since 2006, then your children born in the UK are entitled to registration as British citizens under Section 1(3) (i.e. it can not be refused).

However, as pointed out by noajthan in a very detailed post (credit for the great research to him), as the child was born when you did not have settled status in the UK (between 2000 and 2006), the child is not a British citizen by birth.

[noajthan]

If you have acquired PR status by exercising treaty rights (working, seeking work, self-sufficient with CSI or student with CSI) for five continuous years since 2006, then your children born in the UK are entitled to registration as British citizens under Section 1(3) (i.e. it can not be refused).

However, as pointed out by noajthan in a very detailed post (credit for the great research to him), as the child was born when you did not have settled status in the UK (between 2000 and 2006), the child is not a British citizen by birth.

In this case PR may have been acquired as early as April 2006 as OP implies presence in UK during 2001 ...

Periods of residence prior to 2006
The permanent-residence rule came into effect on 30April 2006. Periods of residence falling wholly or partially before 30 April 2006 count towards the five-year requirement for permanent residence, as long as the person was exercising Treaty rights

Ref section 3 of:
http://www.airecentre.org/data/files/EE ... r_2013.pdf

[exibag]

I am in a very similar situation. An EEA citizen living in the uk since 1997, naturalized in 2008. My 3 children are born 1999, 2002 and 2006. The oldest and youngest are British by birth. I managed to get British passports without problem for them. The middle one, born 2002, however seems for the reasons you outlined below more problematic. I know that I could register the child as a citizen due to it having lived here 10years, or a parent being now naturalized. However I would prefer for the middle one to acquire citizenship by birth too. I always [ maybe wrongly] think, that when acquiring citizenship by registration it is easier to take away. Further it might be more problematic with dual citizenship rules, as the registration is voluntary. Last but not least the registration is much more expensive than just getting a passport.

The thread below states that the law in 2000 was retroactive, ie somebody who was deemed settled before suddenly became temporary. Exactly this, it being retroactive, leads to the somewhat absurd outcomes. People, whose circumstances haven't changed at all across those thresholds end up with children having different nationalities depending on their birthdays.

Now the question, given this absurdity, is there any way to challenge this retroactive application and demand to be considered settled after 2000 if one was considered settled prior, leading to ones children born after 2000 also being British by birth ? I would be curious to get an opinion whether there is any possibility to change or challenge that, even in court.

[secret.simon]

It seems that the change in law in 2000 was itself the outcome of a judicial judgment.

14.2 The Immigration Appeals Tribunal, in the case of GAL ruled that the provisions of EU law regulating free movement are" immigration laws" for the purposes of IA 71 and BNA 81, and further, that persons having a conditional right of residence under EU law (eg a worker or student) were in practice subject to a temporal restriction on their stay here.

Before 2004, EU law did not provide for permanent residence. The UK at that time, to the best of my knowledge, before 2000 and the judgement referenced above, allowed for EU citizens to get ILR on demand.

Page 343 of Franzmann's British Nationality Law is the only reference to that case online that I could find that explains the logic used by the judge. It may be worth looking at whether that book is available in your local public library.

[exibag]

Thanks secret.simon, this is an interesting resource.

I just sent off for a status letter to the UKVI in Liverpool as advised by the passport office, in order to establish the citizenship of our middle child.

Given what I just read, the most likely answer will be that he is not a British citizen by birth.

Is it correct in theory then, that I could then challenge that decision in an Immigration tribunal ? For instance by arguing that the EEA parent should be considered settled and without time restrictions in 2002 as he had lived/worked in the UK for over 5 years and could have applied for Permanent Residency anytime [ even though that would go against the GAL ruling ? ]. Maybe another argument for claiming that the EEA parent's residency in 2002 was unconditional could arise from having to have looked after another minor, who is a British citizen.
Really just trying to understand the procedure at this point if a decision or status letter goes against oneself.

[alterhase58]

Just a couple of points for my understanding - don't want to muddy he waters ....
1. As EU Citizen I received "indefinite leave to remain" in the mid-80s after having held the EEA RC for five years - as far as I remember that was the requirement then, i.e. 5 years residency. Can't comment on children status as mine were automatically British due to my wife being British, also now myself based on above.
2. I believe Immigration Tribunals don't deal with citizenship as that comes under the BNA. Certainly UKVI only offers reconsideration for naturalisation and I think cases involving naturalisation are few and far between.
Trust your situation will become clearer soon.

[secret.simon]

Is it correct in theory then, that I could then challenge that decision in an Immigration tribunal ?

You are always free to challenge the decision. I think that the decision of a Tribunal can only be challenged in a higher court, so you are looking at the High Court and above.

For instance by arguing that the EEA parent should be considered settled and without time restrictions in 2002 as he had lived/worked in the UK for over 5 years and could have applied for Permanent Residency anytime [ even though that would go against the GAL ruling ? ]. Maybe another argument for claiming that the EEA parent's residency in 2002 was unconditional could arise from having to have looked after another minor, who is a British citizen.

What I understand the GAL ruling to state is that before 2004, EEA citizens did not have an unconditional right to reside in the UK. Their rights to reside in the UK was conditional on their qualified as a worker, self-sufficient person, student, etc.

At that point in time (before 2004), there was no automatic PR at the end of five years. Unless you applied for and received ILR under the UK Immigration Rules as then (which was, at that time, free and on demand), your right to remain in the UK as an EEA citizen was conditional and hence children born to you in the UK were not automatically British.

Based on this judgment, I think (I could be wrong) that British citizenship was granted in error on children of EEA citizens without ILR who were born in the UK before 2000. But because it arose from a mistake of the government rather than that of the applicants, I think it was decided not to revoke such citizenship. So, your child born before 2000 may just have been lucky in getting British citizenship without being, at that point in time, entitled to it.

If I am wrong (and I can be; I am not a lawyer), you will know shortly, by the howls of outage that will bury this thread.