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.

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