Proposal for change in nationality law with regards to EU citizens by Charlotte Rubin

Draft legislation published by the Johnson government amends the British Nationality Act 1981, adapting the rules of access to citizenship for children of EU citizens in the post-Brexit era.

The draft legislation amends the British Nationality Act to provide that after 1 July 2021, children born to a parent or parents who obtain indefinite leave to remain under Appendix EU (in other words, those with status under the EU Settlement Scheme (EUSS)) after the child’s birth, may automatically acquire British citizenship from the date that their parent(s) gets settled status onwards. The legislation provides that “children born on or after 1st July 2021 to a parent who subsequently acquires ILR under Appendix EU automatically acquire British citizenship from the date of grant of such leave if the parent meets certain other conditions.”

This is a significant change from the current regime regarding automatic acquisition of British citizenship. The law as it stands lists those who acquire British citizenship automatically in the British Nationality Act 1981. Under section 1 of that Act, any individual born in the United Kingdom to a British citizen parent or a parent settled in the United Kingdom at the time of birth will automatically receive British citizenship. Under section 2 of the British Nationality Act 1981, a person born outside of the UK automatically acquires British citizenship if at the time of birth, either parent is a British citizen otherwise than by descent. In effect, this means that British citizenship can be passed on for one generation. The core point about s.1 and s.2 of the British Nationality Act 1981 is that they rely on the parents’ status or nationality at the time of the child’s birth.

In addition, under section 3 of the British Nationality Act 1981, children whose parents are not settled or citizens of the United Kingdom at the time of birth have the option to register as a British citizen if their parents later acquire British citizenship or settlement in the United Kingdom. The fees of £1012 per child for such registration have recently been found unlawful, and are likely to be brought down in the future, but this has not been implemented yet. As of now, children wanting to register for British citizenship still have to pay astronomically high fees. Contrastingly, the new draft legislation would allow children of EU citizens to avoid those fees entirely, as they would automatically acquire British citizenship when their EU citizen parent naturalises or settles in the UK and thus no longer need to register.

The legislation is set to go in effect on 1 July 2021 – it has not been made into law yet and is subject to review. Interestingly, the draft legislation was not brought under the broader policy proposal for the New Plan for Immigration, which proposes numerous other changes to nationality law including introducing discretion to be flexible with certain naturalisation applications by Windrush victims and British Overseas Territory Citizens. Questions also remain as to whether the draft legislation will apply retrospectively to any EU/EEA citizen with settled status under the EUSS (again, this is the same thing as indefinite leave to remain under Appendix EU), or only those who acquire settled status after the legislation comes into effect.

One might hope that this initiative shows a commitment on behalf of the government to bring fees down (or rather, make them nominal) for processes where children are merely claiming what is theirs, but the reality is that there is no guarantee that for children of non-EU nationals, the same changes will happen, as government approaches to nationality and immigration las have shown to be anything but consistent in the past.

If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

The Independent Monitoring Authority (IMA) Calls for Evidence on the EU Settlement Scheme

The Independent Monitoring Authority (IMA) launched its first Call for Evidence on 24 May 2021. This is their press release:

"This Call for Evidence invites anyone with knowledge and experience of the EU Settlement Scheme to submit written evidence. Any submissions received will be extremely valuable in assisting with the IMA’s current pre-inquiry activities to identify any key areas of concern, compare these findings with those of other organisations, and help to inform our next steps.

We are keen to hear from leading academics, as individuals or as part of an institution or society, who have direct or indirect experience with the EU settlement scheme. We would particularly like to receive information about:

• lived experiences of accessing and negotiating the application requirements – what has worked well, and what concerns or recommendations you might have
• the consistency and usefulness of advice and support received from the Home Office and/ or the Settlement Resolution Centre
• accessing digital proof of status, share codes, and managing changes to details
• undertaking the process of upgrading from Pre-settled status to Settled status

The Call for Evidence is an online questionnaire, which can be accessed by following this link. The questionnaire will also provide the option to additionally, or alternatively, submit a free text account of experiences with the EU Settlement Scheme. Further, we will provide a paper version of this form, if preferred, to anyone on request from IMAPAQ@ima-citizensrights.org.uk .

The questionnaire is available in two versions: the first can be completed by citizens who have made their own applications, and the second by those who have assisted the applications of individuals or made an application on behalf of a citizen.

The Call for Evidence will be open for four weeks and will close on June 18th, 2021.

We would like to receive as much information as possible, and from as wide a demographic as possible. We will consider all responses, including those which are only partially completed. As such, we would be extremely grateful if you/ your organisation would consider all of the questions we pose, and provide a detailed response. Please do share this email with any other individuals or organisations whom you deem would be interested in submitting any information.

For details of how we use, manage and protect any information provided, please see our Consultation Privacy Notice as published on our website. You can also view our principles for conducting consultations and calls for evidence here.

We would like to offer our sincere thanks to you for taking the time to read this email, and very much look forward to receiving your response to our Call for Evidence."

If you need legal assistance with the EU Settlement Scheme, or have any other questions, you can contact us here, call us on 020 8142 8211, or send us a question on WhatsApp.

Children can automatically become British if parents obtain Settled Status later

The British Nationality Act 1981 provides that a child born in the UK is either automatically born British or, they are not British but may be able to apply to become British through a process called registration when certain conditions are satisfied. The most relevant subsections of the Act are set out:

1 Acquisition by birth or adoption.

(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is—
(a) a British citizen; or
(b) settled in the United Kingdom


Example: a child born in the UK where one parent holds settled status under the EU settlement scheme will automatically be born a British citizen, on account of one parent being considered settled in the UK at the date the child is born.

(3) A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) (1A) or (2) shall be entitled to be registered as a British citizen if, while he is a minor—
(a) his father or mother becomes a British citizen or becomes settled in the United Kingdom; and
(b) an application is made for his registration as a British citizen


Example: a child born in the UK where both parents hold pre-settled status under the EU settlement scheme is not automatically born British as neither Parents is settled in the UK at the date of the Childs birth. However, the child will be entitled to register as a British citizen if either of the parents is granted settled status in the future and the child is still under 18 years old at the date of application. If the child does not make an application to the Home Office to register, they will not become a British citizen. An application to register a child as a British citizen under this section of the British Nationality Act currently costs £1012.

The BNA Regulations

The British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 (The BNA Regulations) relate exclusively to children born in the UK whose parent(s) obtain status under the EUSS. The purpose of the BNA Regulations is to amend the above provisions of the British Nationality Act 1981 so that children born on or after 01 July 2021 automatically become British if one of their parents is granted settled status under Appendix EU after the child is born (subject to meeting the relevant conditions). The same approach is taken where parents are issued Indefinite Leave under Appendix EU of the Isle of Man immigration rules. The child automatically becomes British on the date the parent is granted settled status. This is a significant change to the existing law as it removes the requirement for the child to make a paid registration application to become British once either parent is granted settled status. It also removes the choice for the child / parent to decide if they want the child to become British.

The Regulations cover two situations; in both cases the outcome of the EUSS application must be that the parent is granted settled status and was eligible for settled status before the date the child was born (in other words, the parents had been continuously resident in the UK for five years at the date of the child’s birth). The child must be born on after 01 July 2021:

• A parent applicant applies before the EUSS deadline and then has a child born in the UK on after 01 July 2021, but before they receive the decision on the EUSS application.

• The parent applicant misses the EUSS deadline but subsequently makes a late application that is accepted and is granted settled status. The child is born between 01 July 2021 and the date that the application is granted.

In either situation described, if the parent is granted settled status the child will become a British citizen automatically. This also applies to children where their parents were immigration exempt at the time of their birth if they were subsequently granted settled status once they ceased to be immigration exempt.

Potential discrimination issue

There is an issue with this approach highlighted in the explanatory memo at point 7.3, it states:

This means that such a person will, after 30th June 2021, be residing in the UK without immigration leave, until such time as their application to the EU Settlement Scheme is successful. Should any child be born in the UK to them in the meantime, the parent would not be able to meet the definition of ‘settled’ required under the BNA and the child would not automatically become a British citizen. This should be contrasted with the position had the child been born before the grace period ended (and assuming their parent would have met the eligibility requirements for Indefinite Leave under the EU Settlement Scheme at that time), or if they were born after a grant of Indefinite Leave.

A child born in the grace period to parents without settled status would only be British if it could be shown that their parents had attained permanent residence under the EEA Regulations (under Section 1(1) of the British Nationality Act 1981 the person is considered to be settled in the UK at the date of the child’s birth where they hold permanent residence).

However, there is no basis to argue that non-permanent residence parents who were eligible for settled status but did not apply before the child was born, could argue that the child is British. This is because as the law stands today (the Regulations to not take effect until 01 July 2021), a child is either automatically born British or, they are not British at all and need to apply to become British through registration. Therefore, a child who is born before the end of the grace period will not automatically become British if the parents are granted settled status under the EUSS even if the parents were had lived in the UK for five years at the point when the child is born.

Arguable, the Home Office could have created a set of Regulations to take affect from 01 January 2021 which would have created the same rule that is being implemented from 01 July 2021. Effectively, children born in the Grace Period (and before), are disadvantaged against those born post- Grace Period. The explanatory memo misstates the law where is says that a child born in the Grace Period would be born a British citizen “assuming their parent would have met the eligibility requirements for Indefinite Leave under the EU Settlement Scheme at that time”, as there is nothing in the British Nationality Act 1981 that provides for this legal situation.

MoU on the migration and mobility partnership between India and the United Kingdom

The UK government today has announced a new immigration mobility scheme with India. This has some relevance in the context of post-Brexit Britain with many EU countries finding the doors closed to youth mobility, internships, and other economic vital routes. There is a press release and Memorandum of Understanding (MoU) sets out the agreement.

The announced scheme is not exactly the same as the Youth Mobility Scheme that already exists although, it is aimed at the same age bracket being 18 to 30 years old (the visa lasts for 2 years like the YMS). However, there is a difference in this new scheme with India in that it is called a young professional scheme rather than the YMS and it is slightly more restrictive as applicants must meet the following condition (amongst other standard conditions):

"They must hold a diploma / degree which validates as far as possible at least three years’ higher education corresponding to the qualification required for the employment on offer or have professional experience of comparable level in the sphere of activity concerned and be able to express themselves in the language(s) of the host country."

What is not quite clear at this point is whether or not someone applying for the scheme would require sponsorship from a UK-based employer, there is an inference their sponsorship will be required on the basis of the employment on offer however, in the Annex 1 of the MoU which sets out the details of the scheme, there is no reference to sponsorship being required. This will be an interesting aspect of the scheme, as you could argue that a real mobility scheme would not have the requirement to be sponsored, so we shall see. The UK has assigned 3000 places initially to the scheme for Indian citizens.

The MoU includes more than just the young professional scheme however, a lot of the information that you see about visas, student internships and professional / research mobility and so on is just re-emphasising the existing immigration routes that apply to all nationalities. These aspects of the MoU simply reaffirm the commitment to make the existing system work better. There are repeated references to returning (expelling in other words), Indian nationals who breach the rules and the mandatory references to people trafficking and illegal migration that must accompany any Home Office announcement these days. So the MoU should not be interpreted as a wide-scale mobility arrangement, with the exception of the young professional scheme.

The contents of the MoU include this apparently irony free statement:

"…acknowledging that human exchanges and migratory movements help to bring people together and are a factor of economic, social and cultural development for both Participants’ countries."

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