The Secretary of State for the Home Department v Guiseppe Capparelli

An EEA national exercising Treaty rights is not “settled” for section 1(1) of the British Nationality Act 1981. Ordinary residence alone cannot confer British citizenship. The expression “the immigration laws” does not include EU free-movement rules, which operate as a separate legal regime.

Ordinary residence remains a question of fact and degree. A person with ten years’ continuous residence may receive the highest protection from deportation under regulation 21(4) of the Immigration (European Economic Area) Regulations 2006. Deportation then requires imperative grounds of public security.

The Secretary of State appealed against a First-tier Tribunal decision allowing Guiseppe Capparelli’s appeal against a deportation order. The respondent, an Italian national born in the United Kingdom, contended that he was a British citizen by birth because his parents had been ordinarily resident here when he was born.

The First-tier Tribunal accepted that contention. Alternatively, it found that he had acquired ten years’ continuous residence in the United Kingdom and could therefore be deported only on imperative grounds of public security under regulation 21(4) of the Immigration (European Economic Area) Regulations 2006.

The Upper Tribunal considered whether the parents were “settled” under sections 1 and 50 of the British Nationality Act 1981, and whether the respondent had the enhanced protection against deportation.

1. Appeal dismissed. The First-tier Tribunal erred in holding that the respondent was a British citizen. Section 50(2) of the British Nationality Act 1981 requires both ordinary residence and the absence of a restriction under the immigration laws on the period of permitted stay. The First-tier Tribunal considered only ordinary residence.

2. The Tribunal affirmed the outcome in Gal, while modifying its reasoning. An EEA national exercising Treaty rights is not settled for section 1(1), because continued lawful residence depends on continued qualification under the EU free-movement regime. EU free-movement rules are not part of “the immigration laws”, which are confined to United Kingdom legislation. The two regimes are separate. Home Office policy could not alter the statutory requirements or confer British citizenship.

3. The finding that both parents were ordinarily resident when the respondent was born was nevertheless unimpeachable. Ordinary residence is lawful residence voluntarily adopted for a settled purpose, and is a question of fact and degree. The First-tier Tribunal had correctly directed itself by reference to Shah v Barnet LBC [1983] 2 AC 309.

4. The citizenship error did not affect the result. The First-tier Tribunal’s repeated factual finding that the respondent had been continuously resident in the United Kingdom from 1997 to 2010 was unassailable. He therefore had the highest protection under regulation 21(4) of the Immigration (European Economic Area) Regulations 2006. The Secretary of State had not applied the required imperative-grounds-of-public-security threshold, so the deportation decision was unlawful.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The Tribunal identified an error in the First-tier Tribunal’s British-citizenship conclusion, but upheld the result because the respondent had enhanced protection against deportation under regulation 21(4) of the Immigration (European Economic Area) Regulations 2006.

• First-tier Tribunal: Allowed the appeal against the deportation order, finding that the respondent was a British citizen and, alternatively, that he could be deported only on imperative grounds of public security.