Under Section 1 (1) of the 1981 British Nationality Act, a child who is born in the United Kingdom to a parent who is either a British Citizen or settled, is a British Citizen.
It has always been taken that settlement included an acquired right of permanent residence under EU Law and such historically has been the Home Office Policy. A recent decision of the Upper Tribunal would imply to the contrary: -
Pursuant to Capperrelli ( EEA Nationals – British Citizenship ) [ 2017 ] UKUT 00162
“ settled cannot be sensibly applied to an EU citizen exercising Treaty rights since the “ immigration laws” correctly defined and understood, do not apply to such persons.”
If this analysis is correct, and at first instance Courts may view this as binding on them, then an EU national who has Permanent Residence cannot be considered to be settled and by extension any children subsequently born would not be British Citizens.
If that were the last word on the matter, then children born to EU nationals who had acquired the right to permanent residence before their birth would not be British Citizens, and that they would need to apply for a Permanent Residence card or Registration to become a British Citizen.
Notwithstanding it may be that such children may be British Citizens and should apply for a British passport.
The thinking in Capperrelli may not hold. The 1988 Immigration Act , stated that those who enjoyed permission to enter or remain under EU law should not require leave to enter the United Kingdom. ( see below.)
This is a UK statutory provision and relates to the entry of non UK nationals to the United Kingdom. It falls within the plain and ordinary meaning of “ immigration laws.” A question turns on whether the phrase “ shall not” is mandative or declarative.
Home Office guidance published in July 2017 ( after Caperrelli ) defines settled status as:
" A child born in the UK will be a British citizen if either parent is settled in the UK. ‘Settled ’ means that a person is ordinarily resident in the UK without being subject to immigration time restrictions."
For these reasons, I think that such a child can make in good faith an application for a British passport .
The question is whether he or she would wish to do so given that the proposition runs counter to the binding case law stated above.
On speaking to the passport office on the 27th July 2017 they have confirmed that they would view such children as British Citizens and set out the information they would require .
The decision in Capperrelli does not affect an application for Naturalisation following a grant of a Permanent Residence Card for the parents themselves, because Schedule 1 of the 1981 British Nationality Act makes specific reference to those who are free from Immigration Time restrictions under EU law. The same is acknowledged at page 23 of the Naturalisation Policy guidance of the 14th July 2017.
Extract from 1988 Immigration Act section 8
Persons exercising Community rights and nationals of member States.
(1)A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable [EU] right or of any provision made under section 2(2) of the European Communities Act 1972.
(2)The Secretary of State may by order made by statutory instrument give leave to enter the United Kingdom for a limited period to any class of persons who are nationals of member States but who are not entitled to enter the United Kingdom as mentioned in subsection (1) above; and any such order may give leave subject to such conditions as may be imposed by the order.
(3)References in the principal Act to limited leave shall include references to leave given by an order under subsection (2) above and a person having leave by virtue of such an order shall be treated as having been given that leave by a notice given to him by an immigration officer within the period specified in paragraph 6(1) of Schedule 2 to that Act.
Extract from European Communities Act 1972
Section 2 (1 ) and (2)
General implementation of Treaties.
(1)All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [F1 “enforceable EU right”] and similar expressions shall be read as referring to one to which this subsection applies.
(2)Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may [F2by order, rules, regulations or scheme] , make provision—
(a)for the purpose of implementing any [EU obligation] of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b)for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;