Antoine Lucas Roehrig, R (on the application of) v Secretary of State for the Home Department

For British nationality purposes, EU free-movement legislation may constitute immigration laws. A person whose right to remain depends on continuing to satisfy the statutory criteria for a qualified person is subject to a restriction on the period for which that person may remain.

An unexercised entitlement to obtain indefinite residence does not confer that status automatically. The court must determine citizenship as a matter of legal right by interpreting the applicable legislation in its statutory context. A child born in the United Kingdom therefore does not acquire citizenship under section 1(1)(b) of the British Nationality Act 1981 where the parent’s residence remains conditional in this way.

The claimant was born in the United Kingdom on 20 October 2000 to a French mother who was ordinarily resident and working there under EU-law free-movement rights. He claimed that his mother was settled for the purposes of section 1(1)(b) of the British Nationality Act 1981, so that he became a British citizen automatically at birth.

The Secretary of State refused his passport application. The central issues were whether the Immigration (European Economic Area) Regulations 2000 were immigration laws for the purposes of the nationality legislation, and whether the mother’s qualified-person status imposed a restriction on the period for which she might remain.

1. The claim was dismissed. Citizenship arose automatically only if the statutory conditions in section 1(1)(b) of the British Nationality Act 1981 were satisfied. The issue was one of determining legal rights, rather than reviewing a discretionary administrative decision.
2. The Act had to be interpreted by reference to the objective meaning of its words in their statutory context. Arguments based on the former ius soli regime, or on a supposed legislative policy favouring closer United Kingdom connections, did not assist in construing the new statutory scheme.
3. The mother’s entitlement to remain derived from section 7 of the Immigration Act 1988 and regulation 14 of the Immigration (European Economic Area) Regulations 2000. She could remain only for so long as she continued to be a qualified person. Those Regulations were laws for purposes similar to the Immigration Act 1971 and were therefore immigration laws under section 50(1) of the nationality Act. The EU-law source of the rights did not alter that conclusion.
4. The mother’s potential entitlement, after four years’ residence, to apply for a residence permit carrying an indefinite-residence endorsement did not make her settled before she had applied and obtained the endorsement. Legal status conferred only upon a stipulated application does not arise automatically.
5. The restriction imposed by regulation 14 was a restriction on the period for which the mother might remain. The Court of Appeal’s decision in R v Immigration Appeal Tribunal (ex p Coomasaru) was materially indistinguishable and binding. A right expressed to last only while a person satisfies a qualifying condition is a restriction as to period, even if the end date cannot be identified in advance.
6. The court distinguished Secretary of State for the Home Department v Capparelli on the different statutory regime under consideration and, alternatively, held that any proposition that EU-related laws could not be immigration laws for these purposes was wrong. The validity of regulation 8(2) did not require determination because the claim failed on the substantive interpretation issues.

First-instance judicial review claim. The judgment does not state any prior merits decision.