UK wrong to deny residence rights for non-EEA family members of dual nationals

The question about what rights are enjoyed by an EU citizen who naturalises as a British citizen becoming a dual citizen is critically important in the context of Brexit. We previously gave some context on why the UK denies dual citizens’ rights under EU law and why many lawyers believe that approach is wrong. This issue was put to the Court of Justice in the case of Lounes C-165/16 has now received a formal Opinion by the Advocate-General suggesting that the UK was wrong to deny EU rights to dual citizens and their family members. Advocate General Opinions The Court of Justice interprets EU law to make sure it is…

31st May 2017 By Chris Desira

Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC) -Comment by Ian Macdonald QC

Ian Macdonald QC has sent in an interesting note on the controversial Capparrelli determination. For background, see original Free Movement write up here: Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children. Section 1 of the British Nationality Act 1981 (the “1981 Act”), the subject matter whereof is “Acquisition by birth or adoption”, provides: “(1) A person born in the United Kingdom after commencement, or in a qualifying territory on or after the appointed day, shall be a British citizen if at the time of the birth his father or mother is— … (b) settled in the United Kingdom or that territory.” Section 1 came…

18th May 2017 By Colin Yeo

Tribunal gives guidance on general principles in deprivation of citizenship appeals

Interesting case on deprivation of citizenship, not least as the Home Office spectacularly messed up by refusing on an unjustifiable grounds when there was a justifiable one staring them in the face. Official headnote: (i) The Secretary of State has two separate powers of deprivation, exercisable on different grounds, as set out in sub-ss (2) and (3) of s 40 of the British Nationality Act 1981. (ii) The power under s 40(2) arises only if the Secretary of State is satisfied that deprivation is conducive to the public good. (iii) The power under sub-s (3) arises only if the Secretary of State is satisfied that registration or naturalisation was obtained…

17th May 2017 By Colin Yeo

Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children

In a controversial determination, the President of the Upper Tribunal Immigration and Asylum Chamber, Mr Justice McCloskey, has found that the Home Office has wrongly issued British passports to hundreds or even thousands of children of EU, EEA and Swiss citizens born in the UK before 2 October 2000. The case is Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 162 (IAC). If the determination is correct, which is questionable, it could also mean that almost no EU or EEA citizen could ever have qualified for British citizenship and that British citizenship may have been wrongly conferred on tens of thousands of EU, EEA and Swiss citizens. Remarkably, considering the exceptionally broad impact…

26th April 2017 By Colin Yeo

Can President Assad’s wife be deprived of her British citizenship on public good grounds?

The “Liberal” Democrats are apparently calling for President Assad’s wife to be deprived of her British citizenship. I am loathe to refer to anyone as “x person’s wife” but this seems to be exactly the basis for the deprivation of citizenship: that she is President Assad’s wife. The remainder of the justification seems very thin indeed. Liberal Democrat foreign affairs spokesman Tom Brake says that she has supported President Assad’s regime and therefore should be stripped of her British citizenship. It is not said she has personally been involved in any war crimes or similar or to have sanctioned such atrocities. Mr Brake seems to consider that holding and expressing a…

17th April 2017 By Colin Yeo

Court of Appeal gives guidance on meaning of ‘unlawful residence’

The case of Akinyemi v SSHD [2017] EWCA Civ 236 concerns the deportation of a man born and raised in the United Kingdom, a country he has never left. It provides valuable guidance on the meaning of the word ‘unlawful’ within the context of deportation provisions introduced by the Immigration Act 2014 and shows just how far the law has moved in this area. Facts Remi Akinyemi is a man for whom one struggles to feel any great sympathy. Over the course of a prolific criminal career he accumulated 20 convictions and was found guilty of, amongst other offences, causing death by dangerous driving, possession of heroin with intent to supply, and…

11th April 2017 By Nick Nason

Upper Tribunal dismisses appeal against deprivation of citizenship of Rotherham sex gang

The facts behind the case are notorious; the law elucidated is notable. See the background legal discussion on the history of citizenship laws, the process behind deprivation, the relevance of the best interests of affected children and the relevance (or rather lack of it) of EU law at paragraphs 26 to and the official headnote: (i) While the two fold duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 are imposed on the Secretary of State, the onus of making representations and providing relevant evidence relating to a child’s best interests rests on the appropriate parental figure. (ii) A failure to discharge this onus may well…

3rd April 2017 By Colin Yeo

Do dual EU-UK citizens have rights under EU law?

The question of what rights are enjoyed by an EU citizen who naturalises as a British citizen and becomes a dual citizen has become a critically important one in the context of Brexit. There is huge uncertainty amongst EU citizens and their family members living in the UK about their future status and there is huge interest in the possibility of naturalising as British citizens. At the same time, though, it has to be said, the number of EU citizens successfully applying for naturalisation as British actually fell between 2015 and 2016, from 17,158 to 14,901. This was presumably because of additional hurdles the UK Government has erected in the way of EU citizens seeking…

3rd April 2017 By Colin Yeo

When is it reasonable to require British citizen children to leave Britain?

Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014. Reasonableness of requiring a British child to leave UK It turns out that the Secretary of State’s policy is that it is never reasonable to require a British citizen child to…

29th March 2017 By Colin Yeo

K2: right to a private and family life no bar to deprivation of citizenship

K2 v the United Kingdom (Application No 42387/13) The use of the Home Secretary’s power to strip a British citizen of their citizenship is on the rise. It has been the subject of debate where its use has rendered a person stateless following a series cases in the higher courts (see, for instance, here and here). But what arguments can be used to prevent the deprivation of citizenship where the person remains a citizen of a foreign country? In K2, the attempt focused on the applicant’s right to a private and family life under article 8 of the European Convention on Human Rights. The complaint was declared inadmissible, in a judgment in…

20th March 2017 By Thomas Beamont

Supreme Court grants permission to appeal granted in Hysaj nationality appeals

The Supreme Court has granted permission to appeal against the Court of Appeal case of R.(On the Application of Hysaj) v Secretary of State for the Home Department [2015] EWCA Civ 1195. On 27 February 2017, the Supreme Court of the United Kingdom granted permission to the appellants, as to the lawfulness of the decisions of the Secretary of State for the Home Department (“SSHD”) to treat the appellants’ British citizenship as null and void from the outset on the basis that it had been obtained by fraud… Sonali Naik and Helen Foot of Garden Court Chambers are acting on behalf of all three appellants. Source: Garden Court Chambers | Supreme…

8th March 2017 By Colin Yeo

Home Office messes up deportation of former Malaysian and British Overseas Citizen

Official (rather terse) headnote: The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect. I’ve got some sympathy for the Home Office on this one. The President asserts that it is “incoherent” to describe a British Overseas Citizen as “a British national albeit that he does not have a right of abode” (paragraph 27). That seems to me actually to be an accurate description: a British national but not a British citizen, the two being distinct for various slightly arcane reasons of colonial withdrawal. Other…

7th March 2017 By Colin Yeo

No child should be stateless

Good campaign and resources on ending child statelessness. The infographics are useful explainers and you can also sign the petition if you support the cause. Source: NO CHILD SHOULD BE STATELESS

8th November 2016 By Colin Yeo

New free best practice guide to statelessness applications for leave to remain published

A new free best practice guide to statelessness applications for leave to remain has been published by ILPA and Liverpool Law Clinic. You can get it here. It equips lawyers with the tools they need to offer high quality legal representation and to press for the best possible implementation of the statelessness procedure. Statelessness occurs all over the world but well-known examples of communities where statelessness is prevalent are the Roma, Palestinian, Kuwaiti Bidoon, Rohingya and Saharawi peoples. Free training is also available.

7th November 2016 By Colin Yeo

Supreme Court finds British nationality law discriminatory, allows appeal on human rights grounds

The Supreme Court has decided that the historic failure of British nationality law to confer automatic citizenship on a child born out of wedlock was discriminatory, it has continuing consequences which breached a person’s human rights in a discriminatory way and that denying such a person British citizenship now is unlawful should they request it. The fact of the person’s later criminal offending was not relevant because the injustice had occurred at birth. The case is R (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56. The background facts are not unusual. In short, the appellant, Mr Johnson, would have automatically been born…

20th October 2016 By Colin Yeo

Citizenship deprivation appeals must include consideration of likelihood of removal

(1) As held in Deliallisi (British citizen: deprivation appeal: scope) [2013] UKUT 439 (IAC), in an appeal under section 40A of the British Nationality Act 1981 the Tribunal is required to determine the reasonably foreseeable consequences of deprivation. (2) Whilst the Tribunal considering a section 40A appeal cannot pre-judge the outcome of any future legal challenge that the appellant might bring against a decision to remove, following deprivation, the Tribunal must nevertheless take a view as to whether, from its present vantage point, there is likely to be force in any future challenge: cf section 94 of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the immigration rules. The…

14th October 2016 By Colin Yeo

EU nationals must apply for permanent residence card for British nationality applications

The British Nationality Act 1981 requires a successful applicant for British citizenship to show, amongst other things, that he or she is free from immigration restrictions. Technically, the requirement is set out in paragraph 2(c) of Schedule 1 to the British Nationality Act 1981, which requires an applicant to show: that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom Citizens of EU and EEA countries and their family members were until 12 November 2015 able to qualify once they had possessed permanent residence for a 12…

1st August 2016 By Colin Yeo

Serbian police officer fails in challenge to refusal of British citizenship on character grounds

Interesting but unsuccessful judicial review of the refusal to grant British citizenship to a former Serbian police officer on good character grounds. The good character refusal was based on his activities as described at paragraph 5 of the judgment: The Claimant was born on the 8th of August 1981 in Bor in Serbia formerly the Socialist Federal Republic of Yugoslavia (FRY). He is ethnically ‘Kosovo Albanian’. In 1980 his family moved to Pristina in Kosovo. Between 1986 and 1999 he was a career police officer with the Serbian police Force. He was bilingual fluent in both Serbian and Albanian. Critically for present purposes he was employed in the force’s intelligence…

29th July 2016 By Colin Yeo

Form AN updated: application to naturalise as a British citizen

UPDATE: A Home Office source says that the update is a mistake, incredibly. Form AN for applying to naturalise as a British citizen has just been updated to state that a permanent residence certificate or card is NOT mandatory for EEA nationals and their family members. It now says: Please Note: Whilst the submission of a document certifying permanent residence or a permanent residence card is not mandatory, failure to submit one may lead to delays in reaching a decision on your application. If you do not provide a document certifying permanent residence or a permanent residence card then you must provide the following for consideration: Evidence of exercising Treaty Rights…

20th July 2016 By Colin Yeo

British citizenship deprivations 2006 to 2015

A recent Freedom of Information request reveals the number of times the Home Secretary has deprived British citizens of their citizenship over the last ten years as well as the breakdown of reasons. The raw numbers were as follows: Year Total 2006 > 5 2007 0 2008 0 2009 > 5 2010 > 5 2011 6 2012 6 2013 18 2014 23 2015 19 Total 81 There were two separate legal powers used to effect these derivations. The first was section 40(2) of the British Nationality Act 1981, which permits deprivatation where the Secretary of State “is satisfied that deprivation is conducive to the public good.” The second was section 40(3) of…

7th July 2016 By Colin Yeo

Worker Registration Scheme causing problems with British citizenship for some children

Some worrying news from The Guardian: UK citizenship has been given to the children of eastern Europeans living in Britain without the proper paperwork, the Guardian has learned. The affected families come from countries including Poland and the Czech Republic that joined the EU in 2004 and so far around 100 problematic cases have been discovered, although there may be more. The missing documents in question seem to be Worker Registration Scheme registration documents. Those affected are nationals of the countries that joined the EU in 2004, referred to as the Accession 8 or A8 countries, and who worked in the UK but did not register under the Worker Registration Scheme….

1st July 2016 By Colin Yeo

Terror watchdog review of citizenship deprivation powers

The Independent Reviewer of Terrorism Legislation, David Anderson QC, has issued a report on citizenship removal resulting in statelessness. There had been no cases during the period covered by the report, 30 July 2014 to 29 July 2015, so the report does not go into any specifics. Anderson instead reviews the legal background to the power and some of the criticisms that have been levelled against it. He notes, for example, that the power is similar to that in force prior to 2003. Between 1949 and 1973 there were apparently 10 cases in which persons who had become citizens by application were rendered stateless by deprivation of British citizenship, after…

28th April 2016 By Colin Yeo

Is the UK Government selling British passports?

A few snippets from a recent debate in the House of Lords. An amendment to the current Immigration Bill currently wending its way through Parliament was tabled which would close the Tier 1 Investor route. This type of visa is obtained by making an investment of at least £2 million into certain specified investment vehicles. The scheme was recently criticised by Transparency International for facilitating large scale fraud. Lord Green of Migration Watch expressed his scepticism of the efficacy and morality of the Tier 1 Investor route: It is hardly too cynical to describe this as a scheme for selling British passports to the very wealthy. There is absolutely no justification for that…

24th February 2016 By Colin Yeo

Discriminatory denial of British nationality not a breach of human rights

Mr Johnson was born on 18 March 1985 in Jamaica. His mother was a Jamaican national and his father was a British national. At the time of his birth, an “illegitimate” child could acquire British nationality at birth or by registration as a minor only if his mother was a British national. Mr Johnson therefore could not acquire British nationality by descent either at birth or by registration as a minor. There was a policy in place to permit registration if proof of paternity could be provided. Mr Johnson came to the UK in 1991 and never acquired British citizenship. he committed some very serious offences, including manslaughter. The Home…

28th January 2016 By Colin Yeo

Refusal and revocation of British citizenship for dishonest conduct

In another reminder that British citizenship can be refused on the basis of past dishonest conduct we have the case of R (on the application of Rushiti & Anor) v Secretary of State for the Home Department [2014] EWHC 3931 (Admin). This one dates back a few months but I’m afraid I only just found it in my drafts folder. It involves two linked cases, both of which are further examples of Albanians entering the UK and pretending to be Kosovar, eventually obtaining immigration status then applying for British citizenship. Many of these people have since settled down, gotten jobs and had children. The cases put me in mind of the Mayor…

18th January 2016 By Colin Yeo

Are the latest nationality regulations lawful in requiring permanent residence cards for EU citizens?

As was reported on Free Movement last month, the British Nationality (General) (Amendment No. 3) Regulations 2015, have made it harder for persons with an EU law-based right of permanent residence to naturalise as British citizens. That is the consequence of a new requirement that such persons first obtain a residence document as evidence of their right, even though such a document is unnecessary for residence as such. It seems likely that this change is a response to increased numbers of EU citizens naturalising as British citizens in recent years – up from 2,714 in 2008 to a high of 13,985 in 2013, before a fall to 7,380 in 2014….

18th December 2015 By Bernard Ryan

Upper Tribunal says children not stateless if they can be registered

The child, born in the United Kingdom, of a foreign national, who seeks to be recognised as stateless, but who can under the law of the parent’s nationality, obtain citizenship of that country by descent by registering their birth, may properly be regarded as admissible to that country , as set out at paragraph 403(c) of HC 395. Though a greater intensity of scrutiny is appropriate in a case such as this, it remains the case that the decision that an individual is not stateless can only be impugned on public law principles. Source: JM, R (on the application of) v Secretary of State for the Home Department (Statelessness: Part…

15th December 2015 By Colin Yeo

Refusal of citizenship to wife and children of Islamist extremist declared unlawful

The Secretary of State for the Home Department refused the citizenship applications of the wife and two minor children of an Islamist extremist relying on the residual discretion to refuse to naturalise a person imparted by the use of the word “may” in the British Nationality Act 1981. The refusal was justified by the Home Office as punishment by proxy which would have the effect of deterring other extremists. The High Court has declared that unlawful in the case of MM & GY & TY v Secretary of State for the Home Department [2015] EWHC 3513 (Admin). The refusal of citizenship on discretionary good character grounds is a growing phenomenon, as has…

8th December 2015 By Colin Yeo

Approach of Home Office to nationality case “astonishing and grotesque” rules High Court

My colleague Adrian Berry has done an excellent write up of one of his cases over on his blog that I can heavily recommend as reading: British Citizenship by Descent:Trial and Error. The case is R (Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin), a challenge to a refusal by British officials to recognise the British citizenship of a lady who was a survivor of domestic violence looking to rebuild her life.

16th October 2015 By Colin Yeo

Importance of applying to register children as British citizens

The otherwise unremarkable case of Oladeji (s.3(1) BNA 1981) [2015] UKUT 326 (IAC) emphasises the importance of applying to register children as British if they are so entitled. I had to go through this with an otherwise very well informed client the other day. If at the time of a child’s birth the child meets the requirements for British citizenship (e.g. one of the parents is British or settled) the child is automatically born British without any action needing to be taken. If the child later after birth becomes eligible for British citizenship (e.g. one of the parents becomes British or settled) the child does not automatically become British. An application…

2nd July 2015 By Colin Yeo

Refusal of a child’s British citizenship application on character grounds overturned

The High Court has overturned the refusal on character grounds by the Home Office of a British citizenship application by a migrant child. Karon Monaghan QC sitting as a Deputy Judge of the High Court held that the Secretary of State had acted unlawfully in fettering her discretion by applying too rigid an approach, failing to carry out an evaluative exercise, ignoring relevant considerations, treating 16 and 17 year olds as if they were adults for character purposes and arbitrarily and disproportionately interfered with the child’s Article 8 private and family life. The Nationality Instructions are also held unlawful in their drawing of a bright line distinction between 16 and…

12th June 2015 By Colin Yeo

Supreme Court Backs Government Rejection of Statelessness Claim

Rather than write my own detailed piece on the Supreme Court’s judgment in Pham v Secretary of State for the Home Department [2015] UKSC 19 I’m mainly going to refer you an excellent piece by Simon Cox on the Open Societies Foundation website: Case Watch: UK Supreme Court Backs Government Rejection of Statelessness Claim.

1st April 2015 By Colin Yeo

Tightening of British citizenship rules not aimed at refugees

In a letter from James Broken-shire, until the dissolution of Parliament last week the Minister of Immigration [EDIT: I am reliable informed that he is still the Minister – thanks go to Alison Harvey!], has confirmed that the recent tightening of policy on granting British citizenship was not aimed at refugees. The change of policy was covered in January here on Free Movement: Good character citizenship criteria quietly tightened up. In short the good character requirements for naturalising as a British citizen were changed to penalise various breaches of immigration controls and prevent them qualifying for 10 years from when the breach occurred. This appeared to be very bad news for…

30th March 2015 By Colin Yeo

Section 65 of Immigration Act 2014 to commence 6 April 2015

Section 65, the one good bit of the Immigration Act 2014, is due to commence on 6 April 2015: see paragraph 4 of the Immigration Act 2014 (Commencement No. 4, Transitional and Saving Provisions and Amendment) Order 2015 (SI 2015/317). This provision more or less brings to an end the gender discrimination of the British Nationality Act 1981 and is very much to be welcomed. Updated Home Office guidance on section 65 can be found here. More analysis on the commencement order to follow in a full post but I thought I’d highlight the good news on this bit straightaway.

26th February 2015 By Colin Yeo

Hundreds of children refused British citizenship on character grounds

A Freedom of Information request has revealed that 415 children aged 10-18 have been refused British citizenship on character grounds. The power to refuse citizenship on character grounds was controversially extended from adults to children as young as 10 in 2010. The refusals include 25 of children aged 10-13, 95 of children aged 14-15 and 300 of children aged 16-17. It is the refusals of children aged 10-13 that are most obviously absurd but all the refusals are highly questionable on moral grounds. What could the 25 children aged 10-13 have done to be refused on character grounds? Or, to look at it another way, what child can truly be…

26th January 2015 By Colin Yeo

Good character citizenship criteria quietly tightened up

The Home Office has quietly tightened up the criteria for granting British citizenship under the good character test. This had passed me by so I thought it useful to flag up – and many thanks to Alex Moran for point it out. A number of undesirable behaviours have been added to the list of disqualifying behaviour, including illegal entry, assisting illegal migration and evasion of immigration control. The changes seem to have been made on 11 December 2014. The previous version of the guidance can be seen here and the new version here. Unfortunately, these changes will prevent almost all refugees from qualifying for British citizenship for at least 10…

8th January 2015 By Colin Yeo

Statelessness, deprivation of nationality, and EU Citizenship…what is B2 in the Supreme Court really all about?

Many practitioners are concerned about the increasing use of draconian powers to deprive people of their citizenship and the related ‘evil of statelessness’ (which is the subject of the UNCHR’s latest campaign.) Last week, a 7-member Supreme Court panel heard the latest round of arguments on these issues in the case of Secretary of State for the Home Department v B2. The appeal comes in the wake of government proposals to limit the right of British Citizens to return to the UK following suspected terrorist activity abroad. It could have profound implications for the government’s approach to ‘British jihadis’.

26th November 2014 By Pippa Woodrow

Right to citizenship? Supreme Court to decide

The Supreme Court will today hear a case, Secretary of State for the Home Department (Respondent) v B2 (Appellant), concerning the definition of statelessness in international law and in which the Secretary of State’s power under section 40 (2) of the British Nationality Act 1981 to deprive a naturalised British citizen of that status will be examined. The case could determine the limits of the Secretary of State’s power to deprive a person of British nationality.

18th November 2014 By Grace Brown

Dual citizenship and Scottish independence

Coming back from my break and looking through various updates, I was struck by a series of articles on citizenship and nationality laws in the event of Scottish independence following the vote this Thursday. Some of these seem to me fundamentally to misunderstand the independence process as it is likely to operate. Citizens of a newly independent Scotland would not generally retain British citizenship: that is the whole point of independence, after all. However, some Scots would qualify for dual citizenship of the new Scotland and the remainder or rest of the UK (‘rUK’). In an article by Nick Barber appearing on the UK Constitutional Law Association blog and on the Scottish Constitutional…

15th September 2014 By Colin Yeo

Discretionary registration of children as British

In the case of R (on the application of FI) v Secretary of State for the Home Department [2014] EWHC 2287 (Admin) the court was asked to review a decision to refuse to register as a British citizen a 14-year-old who had been settled with Indefinite Leave to Enter the UK for 8 years and was coming up to his GCSEs.

14th July 2014 By Amanda Weston