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

For birthright citizenship under the British Nationality Act 1981, a parent is “settled” only if ordinarily resident and not subject under the immigration laws to a restriction on the period of residence.

Domestic regulations governing EEA nationals may be immigration laws for purposes similar to the Immigration Act 1971, even though they implement European Union rights. A qualified person’s right to remain for as long as the qualifying conditions continue is a restriction. “Period” is not confined to a calendar-defined duration.

An EEA national who had not obtained indefinite leave or permanent residence was therefore not settled merely by exercising free-movement rights. The appeal was dismissed.

Antoine Lucas Roehrig was born in the United Kingdom on 20 October 2000 to a French national who was ordinarily resident and exercising EU free-movement rights as a qualified worker. She had not obtained a residence permit endorsed with indefinite permission to remain or other documentary confirmation of permanent residence.

The Secretary of State refused Mr Roehrig’s passport application. The High Court dismissed his judicial review claim in [2023] EWHC 31 (Admin). The appeal concerned whether his mother was “settled” under section 1(1)(b) of the British Nationality Act 1981, particularly whether the relevant EEA regulations were immigration laws and whether her conditional right to remain restricted the period for which she might remain.

1. The appeal was dismissed. Lady Justice Macur gave the judgment, with Lady Justice Nicola Davies and Lord Justice Phillips agreeing.
2. British nationality was determined by domestic statutory construction. Under section 1(1)(b) and section 50(2) of the British Nationality Act 1981, “settled” required both ordinary residence and residence without being subject under the immigration laws to a restriction on the period for which the person might remain.
3. The Immigration (European Economic Area) Regulations 2000 were immigration laws for purposes similar to the Immigration Act 1971. Their substance was the regulation of entry into and residence in the United Kingdom. The fact that they implemented European Union obligations did not alter that purpose. The definition was not confined to legislation known in 1981; the statutory language could apply to later legislation addressing circumstances within the original statutory purpose.
4. A restriction need not be expressed as a fixed calendar period. It could be conditional upon continuation of a status or circumstance. The principle in R (Coomasaru) v Immigration Appeal Tribunal [1983] 1 WLR 14 therefore applied. A qualified person’s right to remain only while continuing to satisfy the qualifying conditions was materially different from indefinite leave to remain or permanent residence as an enduring right. The Court rejected the contrary reasoning in Stevens v Governor and Another (Bermuda) [2014] 3 LRC.
5. The exemptions in section 8 of the Immigration Act 1971 did not establish an analogy for qualified EU nationals. Those exemptions concerned closely defined groups exempt from the Act, whereas EU nationals avoided leave requirements only while exercising enforceable Community rights. The reasoning in Secretary of State for the Home Department v Capparelli [2017] UKUT 162 supplied no principle of general application and was distinguishable on its statutory and temporal context.
6. At the relevant date, the appellant’s mother remained a qualified person whose right to remain depended on continued qualification. Her failure to obtain the available endorsement or permanent-residence documentation meant that the appellant could not establish that she was settled at his birth. The High Court’s minor reference to the wrong source of disapplication did not affect its conclusion.

• Court of Appeal (Civil Division): Appeal dismissed on 12 March 2024.
• High Court of Justice, King’s Bench Division, Administrative Court: Eyre J dismissed the judicial review claim in [2023] EWHC 31 (Admin).