1. Introduction to British Passport Applications for Children of European Nationals
British Passport Applications for Children of European Nationals can be a surprisingly complex process, shaped by a web of historical and legal factors. The interaction between UK immigration law and the European Union's Treaty rights has created a unique landscape for those seeking citizenship for their children. This complexity is particularly evident when determining whether a parent, who is a European national, was considered "settled" in the UK at the time of their child's birth. Understanding this crucial status is key to successfully navigating British citizenship claims for those born in the UK to European parents. This post delves into the legal framework, key considerations, and recent developments that impact these passport applications.
2. British Citizenship at Birth: The Role of Treaty Rights and Parental Settlement Status in UK Passport Applications
Under section 1 of the British Nationality Act 1981, a person born in the UK will automatically acquire British citizenship on birth if, at the time of their birth, either of their parents is a British citizen or 'settled in the UK.' In section 50 of the 1981 Act, being settled in the UK is defined as 'being ordinarily resident in the United Kingdom (...) without being subject under the immigration laws to any restriction on the period for which he may remain.'
From the UK's entry into the European Economic Community in January 1973 to its exit from what had then become the European Union at the end of 2020, millions of citizens of mainland Europe moved to and settled down in the UK. They did so on the basis of Treaty rights – a shorthand for the free movement rights enjoyed by citizens of the European Economic Area (comprising the member states of the European Union as well as Iceland, Norway and Liechtenstein) and Switzerland (which will be referred to as 'European nationals' for ease in the remainder of this article).
While, as a result of Brexit, Treaty rights might be thought of as mostly of historic interest today, they do remain relevant to a number of situations. One of them is when a person makes a first application for a British passport, on the basis that they acquired British citizenship at birth through their European national parent's status in the UK. This article introduces the complex area of such Treaty rights passport applications, starting with the question of when a person living in the UK on the basis of Treaty rights was considered to be 'settled' in the UK.
3. When Is a European National 'Settled' in the UK?
This issue has caused considerable difficulties. Between 01 January 1983 (the coming into force of the British Nationality Act 1981) and 01 October 2000, the Home Office considered European citizens exercising Treaty rights in the UK to be 'settled', so that their children became British citizens at birth. From 02 October 2000 to 29 April 2006, the Home Office required Europeans to have indefinite leave to remain in order to be considered 'settled' in the UK. From 30 April 2006 (the day the EEA Regulations 2006, transposing the EU's 2004 Citizens Rights' Directive, came into force), the European citizen on whom the nationality claim relies must have acquired the right of permanent residence under the Regulations (generally, this requires the exercise of Treaty rights in the UK for 5 consecutive years, though shorter periods can suffice in specific circumstances). Different dates apply for Guernsey, Jersey, and the Isle of Man.
Despite the above changes, the Home Office continued to treat applications from those born before 02 October 2000 in the same way as it had previously done. However, it only did so as a matter of policy, and out of considerations of fairness. As a matter of law, the Home Office considered its post-October 2000 interpretation to be correct. In a January 2023 judgment, address in our earlier post, British Citizenship for Children of EEA Nationals, the High Court agreed, as did the Court of Appeal this March. These judgments thus suggested that large numbers of people born prior to 2000 had wrongly been accepted to be British citizens, causing considerable concern. Fortunately, Parliament acted swiftly (see our post Update on British Citizenship for Children of EEA Nationals) to protect the position of those born between 1983 and 2000, retrospectively turning the Home Office's 'policy' into law.
4. Treaty Rights Passport Applications – General Considerations
A few observations of general relevance to passport applications on the basis of Treaty rights can be made.
There are multiple categories of people entitled to exercise free movement rights under European law, each with their own eligibility criteria – for instance, students, workers, or self-employed persons. A person on whose exercise of Treaty rights a passport application is founded is not required to have exercised the same Treaty right for a period of 5 years – so that someone who was exercising Treaty rights as a student for two years and then as a worker for three years would qualify as 'settled' for the purposes of the 1981 Act. It is not, however, possible to add together periods of exercise of Treaty rights by two European national parents to get to five years.
A passport application based on Treaty rights can be made where the applicant's parent is not a European national themselves but is the direct or extended family member of a relevant European citizen who exercised Treaty rights. Who qualifies as such a family member is a complex matter and outside the scope of this article.
The relevant European national's country of nationality is also a relevant factor, as countries joined the EU/EEA at different times and their citizens were sometimes subject to transitional provisions before they could fully enjoy free movement rights. Generally, periods of residence are only taken into account if they postdate the accession to the EU/EEA of the relevant European national's country of nationality.
However, an exception may apply: as a result of the Court of Justice of the European Union's ruling in joined cases C-424/10 and C-425/10, Tomasz Ziolkowski and Barbara Szeja and Others v Land Berlin, nationals of certain EU countries can rely on periods of residence in the UK preceding their country's accession to the EU. This applies where
- The parent in question was a citizen of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia, Romania, Bulgaria, Malta, the Republic of Cyprus, or Croatia
- They were legally in the UK (under UK law) prior to their country of nationality's accession to the EU
- They would have met the conditions for the exercise of Treaty rights, had those conditions applied to them during their stay in the UK.
It should also be noted that Irish citizens are considered to be 'settled' in the UK from their entry to the UK, as a result of historical agreements which pre-dated the UK's membership of the EU and subsisted after its departure (see our previous posts The Rights of Irish Citizens in the UK after Brexit and Travel Between the UK and Ireland: A Guide for British and Irish Citizens). As a result, no exercise of Treaty rights needs to be shown where the person on whom the passport application relies is an Irish citizen.
Finally, where the applicant was born after 30 April 2006, and thus must show that the relevant EEA national acquired a right of permanent residence, the rules around continuity of residence should be borne in mind. Generally, during the period of residence required to qualify for permanent residence, the European national should not have been outside the UK for more than six months in any year, with exceptions for compulsory military service or an absence of up to one year for an important reason (such as pregnancy and childbirth, serious illness, study or vocational training).
A right of permanent residence, once acquired, can be lost through an absence of two consecutive years. Continuity of residence is also broken where a person is imprisoned, removed from the UK or served with a deportation or exclusion order.
5. The EU Settlement Scheme and Treaty Rights
In preparation for the UK's departure from the European Union, the UK government introduced the EU Settlement Scheme (EUSS), which first opened for applications in a limited pilot on 28 August 2018 and was then opened to the general public in March 2019. The existence and design of the EUSS leads to a number of complex interactions with Treaty rights.
Free movement for EEA nationals ended with the expiry of the transition period at 11pm on 31 December 2020. However, Treaty rights could continue to be exercised during a grace period lasting until 30 June 2021, the deadline for making an application to an EUSS (though late applications are still permissible where there are reasonable grounds – see Updated Guidance on Late EU Settlement Scheme Applications)
This means that children born in the UK to EEA nationals between the date the EUSS opened and the end of the grace period (28 August 2018 up to and including 30 June 2021 will be British if their parent either:
- was granted indefinite leave to remain (ILR) under the European Union Settlement Scheme (EUSS) before they were born; or,
- had acquired right of permanent residence through exercising Treaty rights for 5 continuous years (or less if an exception applied) before their child's birth
EEA nationals in the second category may have been granted pre-settled status before their child's birth (for instance, if they did not provide the required evidence of residence in their EUSS application, despite having lived in the UK for five or more years). The second type of application relies on the exercise of Treaty rights, whereas the first one does not (indeed, eligibility for the EUSS is based on continuous residence in the UK and does not require applicants to have met the conditions for the exercise of Treaty rights for a successful application.
It might be thought that, from 01 July 2021 onwards, only those holding settled status (indefinite leave to remain) under the EU Settlement Scheme would qualify as 'settled' for the purposes of their children's nationality. The position is altered somewhat as a result of a 2022 judgment (discussed in our earlier post: High Court: Automatic Loss of Rights under the EUSS is Unlawful) in which the High Court found that the EU-UK Withdrawal Agreement automatically confers a right of permanent residence on those who meet its conditions, and which therefore cannot be lost (as the Home Office had suggested) because a holder of pre-settled status fails to upgrade to settled status in time.
As a result of this judgment, an applicant born after 1 July 2021 will have acquired British citizenship automatically where the relevant European national has either
- been granted indefinite leave to remain under the EUSS, or
- had acquired a right of permanent residence under the Withdrawal Agreement (and held pre-settled status) at the time of the applicant's birth.
However, as above, it is important to note that the eligibility criteria for the two types of status differ: a right of permanent residence under the Withdrawal Agreement requires the exercise of Treaty rights for the required period of time, and having started prior to 31 December 2020, whereas settled status under the EUSS requires only five years' continuous residence.
Separately from the issue of permanent residence rights under the Withdrawal Agreement, the British Nationality Act 1981 has been amended (see our previous post British Citizenship and the EU Settlement Scheme – Section 10A of the British Nationality Act 1981 for further detail) to include a section 10A which provides that a child will be automatically British in circumstances where either of their parents is only granted indefinite leave to remain under the EUSS after their birth, and after 1 July 2021 if one of the following apply:
- the application was submitted by the 30 June 2021 deadline but was not decided by child's birth, or
- the application was submitted after 30 June 2021, there were reasonable grounds for missing that deadline, and the relevant European national would have met the relevant eligibility requirements, and thus been granted, settled status had they applied prior to the deadline.
Additionally, the European national in question must have been ordinarily resident in the UK at the time of the applicant's birth.
In those circumstances, the child will be automatically British, and thus able to apply for a passport, from the date the parent in question is granted indefinite leave to remain under the EUSS.
6. Conclusion on British Passport Applications for Children of European Nationals
Making a first passport application for the child of a European national is a complex endeavour, both in terms of the legal framework and of the practical difficulties which an applicant may encounter in trying to prove that a parent was validly exercising Treaty rights many years ago. Expert advice may be key to the success of such an application.
Where a person did not acquire British citizenship at birth, there may be a number of alternative options, including registration as a British citizen while they are under the age of 18.
7. Contact Our Immigration Barristers
For expert advice and assistance in relation to making a British Passport Application for Children of European Nationals, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
8. Frequently Asked Questions
What determines whether a child born in the UK automatically acquires British citizenship?
Under the British Nationality Act 1981, a child born in the UK automatically acquires British citizenship if, at the time of their birth, either parent is a British citizen or is "settled in the UK."
How is the term 'settled in the UK' defined under the British Nationality Act 1981?
Being "settled in the UK" is defined as being ordinarily resident in the UK without any immigration restrictions on the length of stay.
What were Treaty rights, and how do they relate to European nationals in the UK?
Treaty rights refer to the free movement rights enjoyed by citizens of the European Economic Area (EEA) and Switzerland, which allowed them to live and work in the UK without immigration restrictions.
Are Treaty rights still relevant after Brexit?
Yes, Treaty rights remain relevant, particularly when applying for a British passport based on the parent's status under these rights at the time of the child's birth.
When were European nationals considered 'settled' in the UK under Treaty rights?
The Home Office's interpretation varied over time:
- From 1 January 1983 to 1 October 2000, European nationals exercising Treaty rights were considered "settled."
- From 2 October 2000 to 29 April 2006, European nationals needed indefinite leave to remain to be considered "settled."
- From 30 April 2006, European nationals had to acquire the right of permanent residence, generally after five years of exercising Treaty rights.
How did Brexit impact the settlement status of European nationals in the UK?
After Brexit, free movement ended on 31 December 2020, and the EU Settlement Scheme (EUSS) was introduced to manage the rights of European nationals living in the UK.
Can a person born in the UK after Brexit still rely on Treaty rights to claim British citizenship?
Yes, if their parent had acquired permanent residence under the Withdrawal Agreement or was granted settled status under the EUSS before the child's birth.
What is the significance of the EU Settlement Scheme (EUSS) in passport applications for children of European nationals?
The EUSS determines whether European nationals are considered "settled" for the purpose of their children's British citizenship. It grants indefinite leave to remain, which is key for automatic citizenship claims.
What happens if a European national parent was granted settled status under the EUSS after their child's birth?
The child may still be automatically British if certain conditions are met, such as the application being submitted by the EUSS deadline or if there were reasonable grounds for missing it.
What are the potential challenges in proving Treaty rights for a British passport application?
Applicants may face difficulties in proving that their parent validly exercised Treaty rights years ago, making expert advice crucial for a successful application.
9. Glossary
British Nationality Act 1981: A key piece of legislation that defines who is considered a British citizen and the conditions under which citizenship is acquired, including for those born in the UK.
Settled in the UK: A status defined under the British Nationality Act 1981 as being ordinarily resident in the UK without any immigration restrictions on the length of stay. It is a key requirement for a child born in the UK to automatically acquire British citizenship if their parent is settled at the time of birth.
Treaty Rights: The rights granted under European Union (EU) law that allowed European Economic Area (EEA) and Swiss nationals to live and work in the UK without immigration restrictions. These rights were in effect from the UK's entry into the European Economic Community in 1973 until Brexit.
European Economic Area (EEA): A region comprising the member states of the European Union, as well as Iceland, Norway, and Liechtenstein. Citizens of these countries, along with Switzerland, were granted Treaty rights.
Indefinite Leave to Remain (ILR): A type of immigration status granted to a person who has been allowed to stay in the UK without time restrictions. European nationals required ILR to be considered "settled" in the UK between 2000 and 2006.
Permanent Residence: A status acquired by EEA nationals who exercised Treaty rights continuously for five years in the UK. From 30 April 2006, it became necessary for European nationals to hold permanent residence to be considered "settled" under the British Nationality Act 1981.
Brexit: The process of the United Kingdom leaving the European Union, which formally took place on 31 January 2020. Brexit ended the application of Treaty rights in the UK.
EU Settlement Scheme (EUSS): A UK government scheme introduced in 2018 to allow EEA and Swiss nationals residing in the UK before Brexit to apply for either settled status (indefinite leave to remain) or pre-settled status.
Withdrawal Agreement: An agreement between the UK and the EU outlining the terms of the UK's departure from the EU. It includes provisions for the rights of EU citizens residing in the UK before the end of the transition period on 31 December 2020.
Pre-Settled Status: A temporary immigration status granted under the EU Settlement Scheme to those who had not yet lived in the UK for five years by 31 December 2020. It allows the holder to stay in the UK for a further five years, after which they can apply for settled status.
Right of Permanent Residence: A status conferred automatically under the Withdrawal Agreement to EEA nationals who had exercised Treaty rights for the required period before 31 December 2020, ensuring they are considered "settled" for the purposes of British citizenship.
10. Additional Resources
European Commission – Rights of EU Citizens in the UK Post-Brexit
Information from the European Commission on the rights of EU citizens living in the UK after Brexit, including residency and citizenship options.
The3Million – Information Hub for EU Citizens in the UK
A resource offering advice, updates, and support for EU citizens in the UK, focusing on their rights and status post-Brexit.
UK Government – Apply for a British Passport: Children
Information on how to apply for a British passport for children, including eligibility and application requirements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.