EU citizens' children's citizenship born prior to 2 Oct 2000

[vinny]

Capparelli: Tens of Thousands of British (?) Nationals May Have Their Passports Revoked > Capparrelli (EEA Nationals – British Nationality : Italy) [2017] UKUT 162 (IAC) (20 January 2017)

[rooibos]

It's more likely the passports have been granted correctly and the judge simply ignores EU legislation.

[Obie]

That decision is one which can be properly described as perversity under law.

To ignore the terms of the regulation schedule which states that an EU citizen with permanent residence should be treated as settled for the purpose of the immigration rules, is simply perverse.

It appears the UT is trying to bring more chaos than that brought by Brexit, by completely shutting out EU citizens from qualifying for PR and their children qualifying for passport.

Yes I accept the headnote, that a qualified person is not settled. However a person with PR rights is settled.

[vinny]

Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC) -Comment by Ian Macdonald QC

[JAJ]

Obvious question- has the decision been appealed?

Home Office policy on the status of EEA nationals prior to 2.10.2000 has not been changed:
https://www.gov.uk/government/uploads/s ... idance.pdf
(pages 19-23)

[Obie]

The difficulty with this case, is that the Tribunal had no jurisdiction to deal with the issue of Citizen.

The Tribunal is simply spreading its wings beyond it powers.

The Secretary has not taken a decision under Section 40(5) of the BNA 1981, and therefore there can be no appeal under 40(a).

The Tribunal was expressing a view, but at the end of the day, the only thing an appellant in this case can do, is seek a declaration from the High COurt, and if refused, take the matter to the COurt of Appeal.

The important thing for this British?/Italian chap is that his appeal succeeded, and the Home Office appeal was dismissed.

The views expressed by the tribunal is obiter, it had no power as a matter of law, to undertake the exercise it did, only the High court upon Judicial review, could undertake such exercise.

There was no decision to refuse citizenship. The Home Office simply state that she does not believe the guy is British. However even if she said that through the NS Application pathway, the only remedy for the appellant would have been a Judicial review, to quash the EEA regulation decision.

However we may never no, as the Respondent Mr Capparrelli won his case, the Home Office appeal was dismissed, so the Tribunal will get away from it. It views does not bind the passport office.

[JAJ]

As I understand it, the immigration law background for European nationals in the U.K., from 1973 to 2000, is largely as follows:
- There was no statutory basis for admission of then EEC/EU nationals from Accession in 1973 [other than implicit authority under the European Communities Act 1972] until section 7(1) of the Immigration Act 1988 was activated in July 1994. In addition, the Immigration (EEA) Regulations 1994 took effect at that point.
- Whether before or after 1994, the actual enforcement of the specific limitations on the right of residence imposed by the European Treaties was minimal to non-existent.
- European nationals resident in the U.K. were granted ILR on request after meeting standard requirements at the time (example- 4 years employment).
- There is anecdotal evidence that at the time, the Passport Office did not have a full understanding of the status of those born in the U.K. to European nationals (cases in the 1980s and 1990s- for example- where British passports were refused, although impossible to say how widespread this was).

In this context, when the Home Office prepared the 2000 Regulations, to govern the status of European nationals going forward, they wisely decided to make clear that prior to 2.10.2000, European nationals were not in general subject to any restriction on length of time in the United Kingdom. Whether or not this was technically the case under the statute law, it was effectively so.

I think it is highly unlikely that the Home Office will, on an institutional level, seek to change now its policy regarding the status of those European nationals in the U.K. prior to 2000. And if they were to attempt it, it would likely lead to legal action up to Supreme Court level. That said, outside of specific policy directorates, it seems that there is not a good understanding among Home Office staff of the status of European nationals in the United Kingdom. In other words, it is entirely possible that Home Office employees charged with immigration enforcement do not know that in some cases, they are taking action against British citizens. In addition- understanding of the status of those born in the U.K. with European parentage is equally poor among the wider community. It is also possible that a significant proportion of those born in the U.K. between 1.1.1983-1.10.2000 who have acquired British citizenship based on the immigration status of an EEA parent are unaware of that fact.

[thsths]

That is a very strange statement, but it does highlight a number of interesting issues.

Technically, EU citizens are not subject to any time limits on their stay. Does that mean that they should be considered settled?

In terms of freedom of movement, if the EU is truly a common market, barriers have to removed, including barriers to citizenship. Giving EU citizens settled status would be only logical.

As to the other interpretation, that EU citizens can never be settled, that seems quite outrageous, because it would clearly be unworkable.

Any idea whether this tribunal has any consequences? Is citizenship forever open to review, unless you are a "proper Briton"?

[secret.simon]

Technically, EU citizens are not subject to any time limits on their stay.

EEA citizens are subject to conditions to reside in the UK.

They are only resident within an EEA member-state (other than ones of which they are citizens) if they meet the requirements of Directive 2004/38/EC, which requires them to either exercise treaty rights, have acquired PR or be the family member of a citizen in the first two categories. So, in that sense, they are not "settled" unless they have acquired PR. At that point, having achieved that status, their stay is not subject to conditions (except that of absence exceeding two years).

the EU is truly a common market, barriers have to removed, including barriers to citizenship.

National citizenship is not a part of the Common Market. It is too close to the identity of the nation-member-state itself. Citizenship is not merely the right to reside, but the right to participate in national political life. Which is why it is entirely unregulated by the EU in all member-states.

There are some external reports worth reading about the difficulties of trying to harmonise national citizenship laws across the EU, because each country's opinion of who is worthy to participate in national political life is different. For instance, Poland and Italy allow for citizenship by descent for unlimited generations outside the country, while the UK allows for just one. Dutch nationality is lost if a Dutch citizen resides outside the Netherlands (including the Caribbean Netherlands) and the EU for more than ten years without a Dutch passport.

What the EU Common Market does give is the right to reside within any EU member-state in one of four broad categories. Thus it gives residential mobility.

As to the other interpretation, that EU citizens can never be settled, that seems quite outrageous, because it would clearly be unworkable.

Outrageous to you perhaps, but it can make sense. An EU citizen with PR has a right to reside permanently under EU law. But if the EU ceases (or ceases to apply to the UK), there is no reason to assume that EU citizens are settled in the UK any more.

Is citizenship forever open to review, unless you are a "proper Briton"?

Broadly, yes. It is always worth learning the history of a country to understand its politics. When the UK had many colonies, there was one citizenship across all of them, the Citizenship of the UK and Colonies (CUKC). As many of these colonies became independent, many of their residents having British passports started arriving in the UK in large numbers. That resulted in 10 years (1962-1971) of increasingly tougher rules on British citizens entering the UK, which finally culminated later, in the British Nationality Act 1981. Colin Yeo has written a potted history of that period. That law changed the definition of British citizenship, so that only people with a family or birth or naturalisation connection to the UK would have the right of abode (right to reside) in the UK. All other CUKC citizens remained British nationals, but lost British citizenship and the right to reside in the UK.

So, yes, citizenship is always under review, even for proper Britons. And that by the way is true of almost all nation-states. The definition of who is a citizen is a matter of national law and can be changed by that nation-state without reference to any other power or authority.

At another level, there is no authoritative documentation that proves British citizenship in every circumstance. For those of us who have paid for the privilege of naturalisation or registration, the citizenship certificate is authoritative proof. But otherwise, your citizenship can be challenged by the Home Office/Passport Office if they feel that they erred and you may have to re-prove your citizenship years after your first passport. Because mere birth in the UK does not confer citizenship, you may have to prove years later that not only were you born in the UK, but so were your parents and grandparents and that they were married to each other.

I am aware that this appears strange to a European mind that there is no central citizenship list, but then it appears strange to a British mind that continental Europeans have to carry identity papers most of the time. That is anathema from a British perspective. We may not be exceptional, but we are distinct.

[JAJ]

Technically, EU citizens are not subject to any time limits on their stay. Does that mean that they should be considered settled?
....
As to the other interpretation, that EU citizens can never be settled, that seems quite outrageous, because it would clearly be unworkable.

As someone else has said, EU citizens are subject to certain limitations on stay in a Member State other than their own- although these are not always enforced.

The law in place as of now- since 30 April 2006- is that EU citizens and eligible family members normally become Permanent Residents after 5 years exercising Treaty Rights. There are a small number of EU citizens who have equivalent rights immediately under domestic law- Irish citizens plus a small number of Maltese and Cypriot citizens with Right of Abode.

If the question refers to "settled" for the purpose of the British Nationality Act 1981, then there is an additional requirement of being "ordinarily resident" in the United Kingdom and Islands, although normally this is accepted at face value if the applicant has Permanent Residence/domestic law equivalent and there is no evidence that the applicant has abandoned ordinary residence in the country.

Prior to this change in the law, there are two distinct periods (since the British Nationality Act came into force):
- 1.1.1983 to 1.10.2000 : EU state citizens normally treated as "settled" if either exercising 'Treaty Rights, or holding ILR or equivalent under domestic law (ILR was normally available on an extra-statutory basis to those EU state citizens requesting it who met requirements of domestic law- example, x years in employment). There are potential complications with Greece, Spain and Portugal since these countries had transitional restrictions on free movement of labor for up to 7 years after accession (1981 and 1986).
-1.10.2000-29.04.2006: EU state citizens not automatically treated as settled unless holding ILR/equivalent or within a small category of persons who were entitled to an unconditional right of residence under the Treaties. As I understand it, ILR was still available on request to those who applied for it and met standard requirements.

Any idea whether this tribunal has any consequences?

I think it's safe to say that the tribunal comments (it's not even a decision) have no impact on the law.

On this topic- British citizenship for children of EU/EEA parents- when Parliament discussed the British Nationality Bill in 1980-81, there was as far as I am aware, little or no discussion regarding how the new law would impact EU (then EEC) citizens in the United Kingdom, and in particular, whether their U.K. born children would automatically be British after the Act came into force. The issue was not raised in the British Nationality White Paper of July 1980. As a result, it is not especially straightforward to work out what was Parliament's intention at the time regarding whether those from the EEC should be considered as "settled" or not. The Home Office policy from 2000 recognises that regardless of the exact commitments under the Treaties, immigration from the EU/EEC prior to 2000 was in practice unrestricted and the pre-2000 status of individuals should not be retroactively changed.

For that reason, in the unlikely event that the Home Office chose to revoke it's long standing interpretation of the law regarding the status of EU nationals in the United Kingdom before 1.10.2000 this would have far-reaching political and legal implications and would likely go to the Supreme Court.

Is citizenship forever open to review, unless you are a "proper Briton"?

Someone else noted that the only British citizens (born since 1983) with conclusive evidence of their British citizenship are those who have been naturalised or registered as British citizens. Even in these cases, naturalisation records have been lost (by the Home Office) although most of the missing files relate to periods before 1983.

Individuals can protect themselves by employing a layered approach to proving British citizenship. Always keep a valid British passport- questions are more likely when a passport has been expired for a long time, or a first time application is made as an adult. Just as importantly, keep all expired passports plus whatever evidence was used to get a passport (or naturalisation/registration) in the first place. Those with complex/unusual citizenship cases should consider form NS (Confirmation of British Nationality Status) and depending on country of birth, many of those born outside the U.K. can obtain consular birth certificates.

[thsths]

Outrageous to you perhaps, but it can make sense. An EU citizen with PR has a right to reside permanently under EU law. But if the EU ceases (or ceases to apply to the UK), there is no reason to assume that EU citizens are settled in the UK any more.

Thanks for the long answer. I was just referred to the fact that PR is not accepted as settled status, there would be no route for EU citizens to gain citizenship, and that would be quite outrageous. However, I also understand that this is not actually happening. It is worrying that such an important question was not properly considered when the legislation was drafted, but I also understand that friction can arise between two different sets of laws.

Broadly, yes. It is always worth learning the history of a country to understand its politics.

I see, and I can accept both the historic perspective (after all, the Empired has always been very good at taxing people, but much less forthcoming at granting any rights or protection) and the lack of a central register (except for taxation, funny that).

However, I am a bit disturbed by the lack of due process. If somebody had a British passport issued before, and is now refused one, the onus of proof should clearly be on the state that is challenging the citizenship status. It should not be up to the individual to defend their rights in a rigged game of snakes and ladders against a Kafkaesque bureaucracy. But that is exactly what I see happening. (And I always thought that the system is only rigged against non-citizens, but I can see that it also affects citizens, certainly non-white citizens.)

So, yes, citizenship is always under review, even for proper Britons. And that by the way is true of almost all nation-states. The definition of who is a citizen is a matter of national law and can be changed by that nation-state without reference to any other power or authority.

I very much disagree. Easy meddling with human rights is a typical sign of an authoritarian regime, and I would not expect to find this in a western democracy. Most states will have a written constitution that prohibits exactly this kind of overreach of the bureaucracy against the rights of the individual.

I am aware that this appears strange to a European mind that there is no central citizenship list, but then it appears strange to a British mind that continental Europeans have to carry identity papers most of the time.

True. Although I have to say that never in my life have I been stopped by the policy and asked to produce them.

[secret.simon]

It is worrying that such an important question was not properly considered when the legislation was drafted

The European concept of PR was born years (2004) after the UK nationality legislation (1981). So it is not a surprise that it was not factored into the legislation.

At the time the legislation was being drafted, EEC citizens, as then, were not expected to take up citizenship where they resided. If you see the links in my previous posts, you can see that it was not expected for EEC citizens to become citizens of the country that they moved to. And at that time, the approach was for EEC citizens meeting the requirements to get ILR on demand (at that time, for free), presumably under the Secretary of State's discretion.

the lack of a central register (except for taxation, funny that).

To the best of my knowledge, there is no central database for taxation either. HMRC collects some taxes (Income Tax, NI and VAT), but I doubt that they are cross-referenced even though they are collected by the same body.

However, I am a bit disturbed by the lack of due process. If somebody had a British passport issued before, and is now refused one, the onus of proof should clearly be on the state that is challenging the citizenship status.

There are different ways of looking at this situation.

Firstly, under the English system of common law, which is also imported by Canada and Australia among others, nobody has the right to a passport. A passport is issued under the Royal Prerogative to facilitate travel abroad. But it can be refused. Before you jump the gun, the Royal Prerogative is exercised by ministers and therefore the rules under which it is exercised are subject to judicial review.

Secondly, just like any other application (remember that being issued a passport is not a judicial action, but an administrative action, so due process may not apply), it can make sense for you to be asked to prove that you meet the requirements. It is not impossible that human error may have resulted in the issue of a passport in the past when you were not eligible for it. Should such human error result in a permanent change to the law or a permanent entitlement to a passport?

Easy meddling with human rights is a typical sign of an authoritarian regime

I am going to go against the grain here, but who gives these rights? Should you have rights because you have got a pulse? At the end of the day, it is the society around you that gives you rights and laws and government is merely a reflection of society.

Besides, as I have mentioned above, you do not have the right to a passport. Nor do you have the right to a specific citizenship.

Citizenship has famously been called the right to have rights. Globally there has been a push to reduce statelessness, so states try to ensure that nobody is stateless. But that could mean that you may end with a citizenship that you do not desire or even identify with.

Most states will have a written constitution that prohibits exactly this kind of overreach of the bureaucracy against the rights of the individual.

Written constitutions, at the end of the day, are both written and interpreted by human beings, which can give a lot of leeway in getting around restrictions in dry written text. At the end of the day, the only protection that a person has is that of the society around him. If the people around him do not believe that he has rights, a tonne of paper will not give him rights. If the people around him believe he and his are worth protecting, that is not worth writing down, because it is in their hearts and spirits.

Rights overlap and when you exercise your rights, somebody else's diminishes. It is a zero-sum game. The classic example is of course gay rights vs religious freedom. One of the rights has to give way to the other, but which one? Take another example. EEA citizens exercised their right to come to the UK in ever-increasing numbers, so the British electorate exercised theirs to say "We are leaving the EU". The rights of people are always in tension. The idea that everybody gains if everybody had rights is balderdash. They would just get into each other's way. Also, people talk of exercising rights against the government as if it is an alien "other". It is not. It is society. When you exercise your rights against the government, in a sense, you are diminishing society's rights. It is worth remembering that it is society, not some abstract piece of paper, that grants you those rights in the first place.

Both constitutions and governments reflect society. If society changes, neither a written constitution nor an ancient regime government that has lasted for centuries (think France 1789-95) would stop rights from changing, both positively and negatively.

Sorry for the rant. Constitutional procedure is something that I studied and it irks me when people try to oversimplify a very complex field of work and study.

True. Although I have to say that never in my life have I been stopped by the policy and asked to produce them.

Me neither, when I have been on the Continent. But I am always reminded of it by all the travel guides to always carry identification.