An EEA national can get permanent residence, and their children can become British citizens, without the need for any application or action by any government official.
British citizenship law
A child born in the UK after 1982 is a British citizen if at least one of the parents has settled status at the time of the birth. A child born in the UK after 1982 whose parent becomes settled after their birth is entitled to register as a British citizen.
Settled status for EEA nationals
For EEA nationals, settled status in the UK is acquired after 5 years of residing in the UK and 'exercising treaty rights'. A person may exercise treaty rights as:
- a worker (including part-time work if it is 'genuine and effective');
- a student (if they have adequate financial resources and comprehensive sickness insurance);
- a self-employed person;
- a self-sufficient person with comprehensive sickness insurance; or
- a jobseeker.
Unlike under the immigration rules, settled status for EEA nationals is acquired automatically without the need for any application or issue of a stamp. This is known as acquisition by operation of law, and occurs regardless of whether or not anyone is aware of it. When a parent gets settled status it affects the nationality position of their children under the rules above.
Case Study
Consider the following sequence of events. Maria is a Portuguese national. In May 2004 she begins to reside in the UK and exercising her treaty rights (for example by working) continuously until May 2009. She then remains resident in the UK. She has children born in the UK in 2008 and 2010. What is the nationality status of the children? Maria acquires a permanent right of residence in the UK in May 2009 when she has been residing in the UK exercising treaty rights for 5 years. The child born in 2008 is a Portuguese national at birth, but in May 2009 becomes entitled to register as a British citizen, whether or not Maria applies for a residence card. Moreover, when the second child is born, in 2010, they are automatically British without even the need for any application. Even if the child immediately left the UK and never returned, and whether or not they obtained a British passport, they would remain a British citizen.
Grey Areas...
A result is that there is significant scope for uncertainty as to whether or not a child is British (or entitled to register as British). This is because there must have been an exercise of treaty rights for a continuous period of five years, but there may be periods within those five years which do not clearly qualify. Some common examples are where the parent has been a jobseeker for an extended period of time, where they have been a student without having private health insurance or recourse to public funds. Because the boundaries for getting settled status by operation of law can be unclear, so can be the nationality of the child.
Alexander Finch, Senior Adviser,
Passportia
© Passportia Limited Photos by Regallager and Wrote / CC by 2.0
