Born in the UK – are you British?

Back in the old days – before 1 January 1983 to be exact – if you were born in the UK you were almost certainly born British. There were very few exceptions to this. 

But since that date, when the British Nationality Act 1981 came into effect, things have been very different. 

Under the laws we have nowadays, if you are born in the UK and at least one of your parents either holds settlement or British citizenship you are born British. But if neither of your parents is settled or British then you are not born British. 

However, if whilst you are still a child (ie under 18) and at least one of your parents acquires settlement or British citizenship you (possibly with the help of your parent or guardian) can apply to register as a British citizen. It does not come automatically – you have to apply. 

This sounds relatively straightforward. We know, or at least we think we know, what we mean by settlement: for example somebody who holds a visa or visas for a qualifying period of years and eventually they are awarded status such that they do not require any further permission to stay in the UK – hence the expression “indefinite leave to remain”.

But it is not always quite as simple as that, and a curious complexity arose in connection with Europeans who were exercising free movement rights in the UK. Free movement was what we and the Europeans had before Brexit happened: the right to travel freely throughout Europe, specifically the EU states, EEA states and Switzerland. People could move around Europe to work, study, retire, live as financially self-sufficient etc.

Of course free movement is finished now but some history remains. In some cases Europeans who were exercising free movement rights in the UK during the period 1 January 1983 to 1 October 2000 were deemed by the Home Office to be settled. There was we suppose some kind of logic to this: after all, if someone was exercising free movement rights there was not any limit on the time they could spend in the UK. But this generous interpretation of the law ended on 1 October 2000, so it is only the period beginning on 1 January 1983 and ending on that date that is in focus here. 

Now, as we explained above, the standard law is that a person born in the UK from 1 January 1983 onwards with at least one settled parent is born British. It logically follows on from this that a child born in the UK to a European parent(s) exercising free movement rights during the relevant period may have been born British. 

But there are various complexities and qualifications about this. For one thing it does not apply to Swiss nationals, because Switzerland is not in the EU or EEA. For another thing, the European country in question must have been an EU/EEA member country at the time of the child’s birth. Some countries joined after 1 January 1983 and other countries had special rules limiting free movement. There is also a (rather discriminatory) law that if the rights stem from the father, not the mother, and the parents were not married then the child is not born a British citizen.

This is quite a complicated legal landscape, and the discriminatory legislation might be challengeable. If you are engaged with this sort of situation you would be well advised to get good legal advice. We at GSN Immigration will do our best to assist you if you need help. 

Oliver Westmoreland

Senior Immigration Lawyer