Roehrig, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns the dismissal by Judge Eyre of a judicial review claim brought by the Appellant challenging the Secretary of State for the Home Department's (SSHD) refusal to issue him a British passport. The core issue is whether the Appellant automatically acquired British citizenship at birth under section 1(1)(b) of the British Nationality Act 1981 (BNA), which requires that at the time of birth, a parent is "settled" in the United Kingdom.

The Appellant was born in the UK on 20 October 2000. His mother, a French national, entered the UK in 1995 exercising EU free movement rights as a "qualified person" and later acquired British citizenship in 2011. The SSHD refused the passport application on the ground that the Appellant could not demonstrate that his mother was free from immigration time restrictions at his birth. The Appellant challenged this refusal, arguing that his mother's residence was governed by EU law and thus not subject to immigration restrictions as defined in the BNA.

The case involved detailed consideration of the interplay between domestic immigration laws, EU free movement rights, and the statutory definition of "settled" for nationality purposes. The appeal revisits the statutory interpretation and application of relevant immigration and nationality laws as they stood at the Appellant’s birth.

Legal Issues Presented

1. Whether the Appellant automatically acquired British citizenship at birth pursuant to section 1(1)(b) of the British Nationality Act 1981, based on his mother being "settled" in the UK at that time.
2. Whether EU free movement rights exercised by the Appellant’s mother exempt her from being subject to "immigration laws" as defined in the BNA and related legislation.
3. The proper statutory interpretation of "settled" and "immigration laws" within the context of EU nationals exercising free movement rights in the UK.
4. Whether the domestic immigration regulations applicable to EU nationals at the relevant time constitute "immigration laws" for the purposes of the BNA.
5. The meaning of "restrictions as to the period for which [a person] may remain" under the immigration laws and its application to EU nationals with contingent residence rights.

Arguments of the Parties

Appellant's Arguments

• The Appellant’s mother’s right to reside in the UK derived from EU law, which removed the domestic requirement to obtain leave to enter or remain, thus her residence was not subject to immigration restrictions under the BNA’s definition.
• EU law and laws made pursuant to the European Communities Act 1972 (ECA) are not "immigration laws" similar to the Immigration Act 1971 (IA 1971) for the purposes of the BNA.
• There is an analogy between EU nationals exercising free movement rights and groups exempted under section 8 of IA 1971 (such as diplomatic personnel), who are regarded as settled despite exemptions from immigration controls.
• The phrase "restrictions as to the period for which [a person] may remain" should be interpreted as referring to temporal limits, and the contingent nature of EU residence rights does not amount to such a restriction.
• The SSHD’s prior policy treating children born before 2 October 2000 to EU nationals as settled supports the Appellant’s position.

Respondent's Arguments (SSHD)

• The Appellant’s mother was not "settled" because her right to reside was contingent on continuing to satisfy the conditions of her status as a "qualified person," constituting a restriction under domestic immigration laws.
• The domestic immigration framework regulating EU nationals’ entry and residence, including the Immigration (European Economic Area) Regulations 2000 (IR 2000), qualifies as "immigration laws" for the purposes of the BNA.
• The exemptions in section 8 of IA 1971 for diplomatic and military personnel are narrowly defined and not analogous to EU nationals exercising free movement rights.
• British nationality is a matter of domestic law and is not conferred by EU free movement rights.
• The decision in R (Coomasaru) v Immigration Appeal Tribunal supports the view that contingent residence rights do not amount to settled status.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed statutory interpretation exercise focusing on the definition of "settled" in section 1(1)(b) of the BNA and the meaning of "immigration laws" in section 50(1) BNA. It considered the interplay between domestic immigration legislation and EU law rights.

The court agreed with Judge Eyre’s conclusion that the Immigration (European Economic Area) Regulations 2000 (IR 2000) and related domestic regulations constitute "immigration laws" for the purposes of the BNA. These laws regulate the conditions and duration under which EU nationals, including the Appellant’s mother, may reside in the UK.

It rejected the argument that EU free movement rights are outside the scope of domestic immigration laws, emphasizing that these rights are implemented and regulated through domestic legislation, which includes restrictions contingent upon maintaining "qualified person" status.

The court analyzed the precedent in Secretary of State for the Home Department v Capparelli, noting that while McCloskey J questioned whether EU free movement rights fall within "immigration laws," the present case was factually distinguishable, especially given the IR 2000 regulations in force at the Appellant’s birth.

The court found the reasoning in Gal persuasive, holding that the contingent nature of EU residence rights—dependent on continuing to meet qualifying conditions—amounts to a restriction on the period for which a person may remain, thus precluding "settled" status.

The court relied on R (Coomasaru) v Immigration Appeal Tribunal to interpret "period" broadly to include contingent conditions affecting residence duration, not solely a fixed temporal period. This supported the conclusion that the Appellant’s mother was subject to restrictions under immigration laws, notwithstanding her EU rights.

The court acknowledged that indefinite leave to remain or permanent residence confers a materially different, enduring right compared to the contingent EU qualified person status held by the Appellant’s mother at the relevant time.

Finally, the court rejected the Appellant’s analogy between EU nationals and exempted categories such as diplomatic personnel, noting the distinct statutory treatment of these groups.

Holding and Implications

The court dismissed the appeal.

The court held that the Appellant did not automatically acquire British citizenship at birth because his mother was not "settled" in the UK under section 1(1)(b) of the BNA. Her residence was subject to contingent restrictions under domestic immigration laws, specifically the Immigration (European Economic Area) Regulations 2000, which constitute "immigration laws" for the purposes of the BNA.

The direct effect is that the SSHD’s refusal to issue a British passport to the Appellant was lawful. No new legal precedent was established; rather, the decision affirmed the application of existing statutory interpretation principles and case law to the circumstances of EU nationals exercising free movement rights in the UK at the relevant time.