On 31 July 2024, the Supreme Court refused permission to appeal the order made by the Court of Appeal on 12 March 2024 in the case of Court of Appeal in R (Roehrig) v Secretary of State for the Home Department [2024] EWCA Civ 240.
Refusing permission to appeal means this case can go no further in the courts, and will not be considered by the Supreme Court. This is a disappointing result. This short blog explains what this case was about, and what has changed as a result.
The case was brought by Project for the Registration of Children as British Citizens (PRCBC), Garden Court Chambers, and Landmark Chambers.
What was the Roehrig case about?
The Roehrig case was about the citizenship of people born in the UK to EU Citizens exercising Treaty Rights on or after 2 October 2000.
Between 1 January 1983 and 1 October 2000, an EEA national or Swiss national exercising free movement rights in the UK was considered ‘settled’ by the Home Office. Free movement rights mean that all EU citizens and family members are able to move and live freely in the UK – and this applied in the UK before Brexit. This means that children of EEA nationals born in the UK automatically acquired British citizenship in this time.
On 2 October 2000, the Home Office changed its position, so that for those born on or after that date, permanent residence or indefinite leave to remain was needed for a person to be considered ‘settled’.
What then happened, as explained in this blog by Free Movement, was that the ‘Home Office changed its mind about how EU law worked and how it interacted with British nationality law’.
The position of people born on or after 2 October 2000 was then tested in 2022 in the case of R(Roehrig) v SSHD. This case concerned a man who was born on 20 October 2000 to a French mother who was exercising EU free movement rights and was ordinarily resident in the UK. When Roehrig applied for a new passport, his application was refused by the Home Office. The High Court ruled that for children born between 1 January 1983 and 1st October 2000, being born to an EEA parent exercising free movement rights was not enough to be considered ‘settled’ for the purposes of citizenship. This ruling also exposed the fact that the Home Office had been wrongly applying the law in issuing passports to these people.
Why did the Supreme Court refuse permission to appeal?
The Supreme Court refused permission to appeal in this case, and supported the ruling in the Court of Appeal. This means it will not be considered further by the Supreme Court, and the decision in the Court of Appeal is the final decision.
It was decided that Roehrig’s mother would have qualified as ‘settled’ if she had applied for settlement, but her failure to have confirmation of permanent residence or Indefinite Leave to Remain (ILR) meant that she did not qualify as settled, so any children born to her were not considered settled.
Did anything change as a result of the Roehrig case?
Yes. Despite the fact that the Supreme Court has refused permission to appeal, there has been a positive development as a result of the Roehrig case.
As a result of the Roehrig case in the High Court, the Government introduced the British Nationality (Regularisation of Past Practice) Act 2023. We wrote a legal update on this, when it was still a bill, and you can read about it here.
This Act has retrospective effect (which means it applies before the date it was enacted). The Act confirms that people from EEA countries who were living in the UK between 1 January 1983 and 1 October 2000 were ‘settled’. It also confirms the British nationality of people born in the UK to a parent who was considered settled on the basis of exercising a free movement right.
The Home Office has produced this factsheet, which explains the effect of the Act:
- Between 1 January 1983 and 1 October 2000, EU, EEA and Swiss nationals were considered settled if they were living in England, Scotland, Wales or Northern Ireland and exercising a free movement right there.
- This protects the nationality rights of people born in the UK to a parent who was considered settled on the basis of exercising a free movement right, and those who registered or naturalised as British citizens on the basis of that policy.
- This change does not create ‘new’ British citizens. This is about protecting the citizenship of individuals we had long considered British already under established Home Office policy.
While the British Nationality (Regularisation of Past Practice) Act 2023 is a welcome development for the people it affects, it shows the extent to which the Home Office has misunderstood the law on citizenship. As pointed out by PRCBC, the3million, ILPA and Amnesty International, British nationality law and citizenship has been ‘badly mistreated by successive Governments’.
Discussion: