We are back with the British Citizenship for Children series.
This series and post is fiction and is for illustrative and educational purposes only to discuss British nationality laws. Names, characters, storyline, businesses, places, events, locales, and incidents is the products of the editor’s imagination. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.
We ended last week’s post, after meeting Stella, a 40-year old Brazilian national who is married to an Italian national, Giovanni. After listening to Sharon, her Trinidadian neighbour concerns about Tia’s immigration status, Stella impatiently waits for Giovanni to return home from work. Stella and Giovanni have two children, Francesco, age 8 who was born in Brazil and Valentina, age 3 who was born in the UK. Stella is six months pregnant with their third child.
Giovanni, age 36 was born in Brazil however he acquired Italian nationality through his Italian parents as well Brazilian citizenship from being born in Brazil. Giovanni’s parents applied for his first Italian passport when he was 9.
Stella and Giovanni have been married for 15 years. When Francesco, their firstborn was 2 years old, Giovanni and Stella decided that they wanted to move to the UK to be closer to Stella’s older sister, Teresa who was willing to help care for Francesco while Giovanni works and Stella studies. Before Giovanni left, he applied for Francesco’s first Italian passport.
Giovanni moved to the UK first as an Italian national on 02 February 2014 to find a job. Giovanni stayed with Teresa, his sister in law and found a job within 3 weeks. Giovanni wanted to wait until he passed his probation period before Stella and Francesco joined him in the UK. Three months later after passing his probation period, Giovanni and Teresa attend a consultation with a solicitor from a reputable solicitors’ law firm to find out Stella and Francesco’s options to join Giovanni. The solicitor informs that Stella and Francesco can join Giovanni as family members of an EEA national who is working as prescribed under Immigration (European Economic Area) Regulations 2006 (now 2016). With help from the solicitor, Giovanni applied for a visa called an EEA family permit for Stella to join Giovanni. Stella and Francesco arrive in the UK 5 on 02 July 2014). Due to the EU free movement rules, as an EU/Italian national, Francesco entered the UK without a visa like his father, Giovanni.
Fast forward to today, Stella and Giovanni have a daughter, Valentina age 3 and another child on the way. Francesco has remained with the same employer since 23 February 2014 and although Stella has finished her studies, she is a stay at home mom. Stella and Francesco decide to prioritise Valentina’s immigration matter and attend a consultation with their previous solicitor. Valentina was born in the UK on 23 June 2017 and is an Italian citizen, like her brother Francesco as prescribed under Italian legislation, Article 1 of Law No. 91/1992 but is she is also a British national?
EU Immigration in the UK
The difference between Tia and Valentina’s immigration matter is that Valentina has an EU/Italian father. The UK was a member state of the European Union from 01 January 1973- 31 January 2020 and the rules established by the EU is applicable to all EU states. EU immigration/ free movement of people which is applicable to all EU member states is found in Directive 2004/38/EC. In a nutshell, EU nationals (and their family members) can freely move around the EU, providing they meet certain requirements. The UK implemented EU law appropriately in UK legalisation. The UK legislation relevant to EU immigration rule/free movement of people is Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016). Although, the UK is no longer an EU member state, the UK is in a transition/implementation period with the EU until 31 December 2020 for the EU and the UK to continue to negotiate terms of Brexit such as trade deals. During this time, most EU law applies in the UK, including the free movement of people.
Last week we saw how British citizenship is acquired at birth under British Nationality Act 1981 (BNA 1981), s1(1).
British Nationality Act 1981 (BNA 1981), s1(1) states:
A person born in the United Kingdom after commencement [of the BNA 1981 which is 01 January 1983] shall be a British citizen if at the time of the birth his father or mother is—
(a)a British citizen; or
(b)settled in the United Kingdom
Neither Stella nor Giovanni are British citizens, but were they settled in the UK at the time of Valentina’s birth?
EEA Regulations 2016 deals with immigration in the UK for EU nationals and their family members. For this post, ‘Settled in the UK’ under EEA Regulations 2016 is known as ‘the right of permanent residence’. The principle of the right of permanent residence is ‘acquired’ as opposed to be ‘granted’.
Immigration (European Economic Area) Regulations 2016, Regulation 15(1) (a) and (b)
Right of permanent residence
15.— (1) The following persons acquire the right to reside in the United Kingdom permanently—
(a)an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b)a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
Regulation 15(1)(a) applies to Giovanni and 15(1)(b) applies to Stella. ‘In accordance with these regulations’ means meeting the requirements of EEA Regulations 2016.
The requirements for an EU national to reside in the UK under EEA Regulations 2016 is that they must be a qualified person. There are different ways to be a qualified person as defined in EEA Regulations 2016, Regulations 6. Giovanni is a qualified person as worker and has been since February 2014. The requirements for a non-EEA national to reside in the UK under EEA Regulation 2016 is as a family member of an EU qualified person. Stella fulfil this requirement as Giovanni’s wife.
Although Giovanni is a qualified person and Stella is Giovanni’s family member, at the time of Valentina’s birth on 23 June 2017, neither Giovanni and Stella had resided in the UK in that capacity for at least five years in order to have acquired the right of permanent residence in accordance with EEA Regulations 2016, 15(1)(a) and (b) before Valentina’s birth as they both arrived in the UK in 2014. Therefore, Valentina is not British in accordance with BNA 1981, s1(1).
After the long consultation, Stella goes to see Sharon to inform her about the consultation.
Join us, next week Thursday to see what options are available for Valentina. Also, with three months until their new arrival, we join Stella and Giovanni back to the law firm for more advice.
If you are concern about your immigration matter or your child’s immigration matter, please contact a reputable solicitors’ law firm that specialises in immigration law to find out your options.
Please see below for further reading materials relevant to this post.
Further reading:
For those of you who would like to read Immigration (European Economic Area) Regulations 2016
The Legal Chit Chat 