The deadline for applications under the EU Settlement Scheme passed on 30 June 2021, as discussed in our previous post here. Home Office statistics, published on 21 September 2021, showed that as of 30 June 2021 just under 600,000 applications (of 6 million applications submitted) remained pending. This post will address a new section of the British Nationality Act 1981, introduced by the British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 (SI 2021 No. 743) which contains provisions for children born during the period whilst their parent's application was pending under the scheme once this deadline had passed.
What is the relevance of the EU Settlement Scheme to British nationality law?
Section 1(1) of the British Nationality Act 1981 provides that a person born in the United Kingdom shall automatically be a British citizen if at the time of his birth his father or mother is either a British citizen or settled in the UK. Section 50(1) of the Act defines a person as being 'settled' if they are ordinarily resident in the United Kingdom without being subject under the immigration laws to any restriction on the period for which he may remain.
Prior to the UK's departure from the European Union, and the resulting provisions of the EU Settlement Scheme, an EU national would be considered to be settled if they held a right of permanent residence under the EEA Regulations. Under the EU Settlement Scheme, a person will be considered to be settled if they hold indefinite leave to remain granted under the scheme. EU nationals were required to make an application to the EU Settlement Scheme prior to 01 July 2021. An EU national who made such an application prior to this date would continue to have the right to live and work in the UK (and their right of permanent residence, if they held one, would be preserved) until that application was concluded.
A child born to a parent with a right of permanent residence at the time of their birth would automatically acquire British citizenship under Section 1(1). A child born to a parent who had been granted Settled Status under the EU Settlement Scheme prior to 01 July 2021 would also be automatically British. However, the question remained as to what the circumstances would be for a child born to a parent who had no right of permanent residence or Settled Status at the time of their birth, but who would submit an ultimately successful application to the EU Settlement Scheme.
What does Section 10A say?
Section 10A provides that a person who is born on or after 01 July 2021, who is not a British citizen by virtue of any other provisions of the Act, would be a British citizen if three conditions are met in respect of P (who is the child's mother or father).
The first condition is that P has been granted indefinite leave to remain under the EU Settlement Scheme (or the equivalent provisions for the Isle of Man) on or after 01 July 2021.
The second condition is that the application for this leave was either made before 01 July 2021, or if it was made after this date, that P met the requirements for the grant of indefinite leave to remain before 01 July 2021.
The third condition is that P is ordinarily resident in the UK at the time when the leave was granted.
Who will Section 10A apply to?
This section means that a child born after 01 July 2021, whose parent's application under the EUSS is not granted until after their birth, may be deemed to have automatically acquired British citizenship on the date that their parent was granted status under the scheme.
The Explanatory Memorandum clarifies the purpose of the amendment, stating that:
"In particular, this instrument amends the British Nationality Act 1981 to address the position where a parent is granted Indefinite Leave under the EU Settlement Scheme after their child's birth, and there has been a gap in the parent's immigration status from the end of the grace period, meaning that they were not considered settled for the purposes of nationality law when the child was born."
Section 10A applies to those who are not British citizens under any other provision of the British Nationality Act. This means that this section should not apply to those individuals whose parent held a right of permanent residence (which would be preserved by saving provisions Regulation 4 of The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 if they submitted an application to the EU Settlement Scheme prior to 30 June 2021), as these individuals would be British by operation of Section 1(1).
It is worth noting that Section 10A only benefits children born after 01 July 2021. A child born before this date whose parent had a pending application for Settled Status at the date of their birth but did not yet hold Settled Status, and who did not hold a right of permanent residence, would not be considered to be automatically British. They would instead be required to register under Section 1(3) of the British Nationality Act 1981.
What if my child meets the requirements of Section 10A?
If your child meets the requirements of Section 10A (or Section 1(1)) of the British Nationality Act they will be able to make an application for their first British passport. It will be necessary for the applicant to demonstrate their entitlement to citizenship in this application. It is important that a child's entitlement to British citizenship is carefully evidenced in an application to the passport office and professional advice should be sought to confirm your child's entitlement based on their circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.