Has British citizenship been wrongly given to thousands of Europeans? And could it be taken away?

Has British citizenship been wrongly given to thousands of Europeans? And could it be taken away? Well, we certainly hope not, to both questions.

The reason that this question suddenly and unexpectedly arises is a decision made by the Upper Immigration Tribunal in a case called “Capparrelli”. The decision has, or should have, high authority, as it was made by The Hon Mr Justice McCloskey (who is the President of the Upper Tribunal and on this occasion sitting alone).

The case had a strong European dimension. Mr Capparrelli is an Italian who had been born in the UK of parents exercising EC Treaty rights and he had been threatened with a Deportation Order. If it was deemed that either of his parents were settled in the UK under European law when he was born then he would be a British citizen. And of course, as everybody knows, a British citizen cannot be deported from the UK, so for understandable reasons he really wanted to establish that he was indeed a British citizen.

Matters became rather confusing, and the Tribunal’s decision contained some delightful little byways. Mr McCloskey said the Home Office’s grounds for permission to appeal to the Upper Tribunal were in the form of “a diffuse and unparticularised essay” and he explained that such grounds should be “crisp, succinct and clear”. We at Red Square London are fully on board with him on that point and of course we are never guilty of such solecisms.

And, as it turned out, Mr Capparrelli’s national status turned out not to be a crucial issue for him, as he won the case on other issues.

But one of the ultimately significant things about the decision was that Mr Capparrelli did notprove to the satisfaction of the Tribunal that he was a British citizen.

Now, as many readers will no doubt appreciate, there is English law (or, as you will sometimes hear, British law) and also there is European free movement law. The two things are different and separate but they sometimes necessarily interact.

The English law says that if a child is born in the UK and either of the parents is either British or“settled” then the child acquires British citizenship at birth. So far so good, and what is the definition of “settled”? It could be somebody who has acquired Indefinite Leave to Remain under the UK Immigration Rules (eg by having spent five years on a working visa or a family visa). Or it could be somebody who has acquired Permanent Residence under European free movement law by being here in an appropriate capacity for five years.

Couldn’t it? Er…. no, says Mr McCloskey. Those who hold Indefinite Leave to Remain under the Immigration Rules are indeed settled, but not those who hold European Permanent Residence. This, he says, is a misunderstanding or a misinterpretation of the law. And in saying this he has overturned several decades of legal understanding, on the part of the Home Office, on the part of lawyers and, for that matter, on the part of the courts.

English law and European law are separate, Mr McCloskey correctly emphasises, but he takes the argument a good deal further. Whereas the British Nationality Act 1981 defines someone as “settled” if they are not “subject under the immigration laws to any restriction on the period for which he may remain”, Mr McCloskey says that “immigration laws” does not include European free movement law.

In case you do not believe us, we quote him verbatim: “’settled’ cannot sensibly be applied to an EU citizen exercising Treaty rights since the ‘immigration laws’, correctly defined and understood, do not apply to such persons.”

And in case you still do not believe us, the introductory headnote to the Tribunal’s decision says “The statutory phrase ‘the immigration laws’ does not encompass the EU rules on free movement.”

So it thus seems that Europeans who think they have acquired British citizenship on the basis of having acquired Permanent Residence under European free movement law may not really have done so.

Could the Home Office suddenly attempt to remove British citizenship from thousands of Europeans? Probably not, one hopes – and one imagines that it would no doubt rather complicate the Brexit negotiations.

Perhaps more closely to the point, will the Upper Tribunal’s decision be challenged in the higher courts? Or will Government and Parliament change the relevant law? Very likely one or the other will happen; the situation where thousands of people’s national status is suddenly in doubt is extraordinary.

In any event we will keep readers fully informed about this remarkable situation.

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