EU national children in the UK

There is great uncertainty about the status of the UK's three million residents who come from other countries in the European Union (EU) since the Brexit vote. Many of these people have lived, worked and established their lives in the UK over many years. Many children and young people were born or have grown up here.

Status and rights

The government has been under pressure to confirm as soon as possible the status and rights of EU nationals who have made their homes in the UK. A cross-party, independent inquiry recommended in December 2016 that EU nationals already living in the UK at the point when Article 50 is triggered should be offered permanent residence with the same health, social and educational rights as British citizens.

Indeed, ICM research for the think-tank British Future shows that 84 per cent of the public, including 77 per cent of Leave voters, support allowing EU nationals to stay and applying changes to free movement only to new migrants.

But  the government has so far refused to confirm these people's future status. A government statement on the status of EU nationals in the UK in July 2016 simply said: "When we do leave the EU, we fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected."

Permanent residence

In the meantime, given the uncertainty, many people are applying for documentation to confirm their rights of permanent residence. Since 30 April 2006, European Economic Area (EEA) nationals (EU nationals plus nationals of Iceland, Liechtenstein, Norway and Switzerland) who have exercised Treaty rights for five years - by working or being self-employed, for example - automatically obtain rights of permanent residence in the UK under EU law. They do not need to apply to the Home Office for documentation, but understandably there has been an increase in the number of people who want recognition of their automatic rights confirmed in writing.

Once a person has been permanently resident for one year, they can apply for British citizenship. This is the most secure position because we do not yet know for certain that the government will honour EU law rights of permanent residence, for example by converting it into indefinite leave to remain. However, before applying for British citizenship, applicants should consider dual nationality issues (does their current country of nationality allow dual nationality?) and the loss of certain EU law rights (for example, as someone from another EU country who is working in the UK, you have the right to have your family members join you, with fewer conditions than would affect the family members of a British citizen).

UK-born children

What many EU families in the UK may not know is that their children who were born in the UK may be automatically British. Since 1983, a child is not automatically British just because they were born in the UK. Since 1 July 2006, the child has to be born in the UK to a British or settled parent. Prior to 1 July 2006, a child born in the UK to a British or settled mother was automatically British, but if only the father was British or settled, the child being automatically British depended on whether the parents were married, or later married.

Which EEA nationals are regarded as settled? This depends on when the child was born. Since 30 April 2006, a settled parent includes an EEA parent with permanent residence. So a child born in the UK to an EEA national parent who has exercised Treaty rights for five years is automatically British and can apply for a British passport. If the child was born before 30 April 2006, the parent would need to have had indefinite leave to remain, unless the child was born before 2 October 2000, when the parent simply needed to be exercising Treaty rights in the UK to be regarded as settled.

As well as those children who are automatically born British, there are others who can apply to become British through the process of registration, with a fee of £936. This includes children who were born in the UK and whose parent or parents later acquire permanent residence. It also includes children who were born in the UK and live the first 10 years of their life in the UK without significant absences.

Given the level of uncertainty about the post-Brexit settlement, it is important that families are aware of these and other rights that their children may have to British citizenship.