The current rules on acquisition of British citizenship originate in the British Nationality Act 1981. It has been amended by later Acts and supplemented by secondary legislation, but it is in the 1981 Act that basic rules reside. At the time that legislation was conceived and drafted, little if any thought will have been given to the situation of EU citizens and their family members, who were at that time treated the same as other migrants from outside the EU.As EU law and UK implementation of EU law has changed and grown, the framework of British nationality law has remained the same. This has resulted in a number of difficulties that EU citizens and their families will face in acquiring or proving British citizenship.Firstly, many children born in the UK to EU citizen parents will in theory be automatically born British. However, where neither of the parents was British or settled from outside the EU, it will be very hard or perhaps impossible for some of those children to prove their entitlement later in life. This is because they will be unable to produce proof that their parent possessed permanent residence because permanent residence is a status that is acquired automatically and does not depend on formal issuing of any particular document. Without such a document, proving that a parent possessed permanent residence will be very challenging.Secondly, some children of EU citizens currently living in the UK will have been born abroad, perhaps before the parents moved to the UK or perhaps when the parents went on holiday or returned to be close to family members at the time of the birth. Where neither of the parents was British at the time of birth, a child born abroad cannot usually acquire British citizenship until adulthood.Thirdly, there are substantial barriers to the acquisition of British citizenship by registration after birth for the children of EU citizens. These barriers are not unique to EU citizens and their families but will become more of an issue after the post-Brexit loss of free movement rights to enter and leave the UK freely over the course of one’s life. The parents may not know or understand that a child could be registered as a British citizen once at least one of the parents is settled or the child has been resident for 10 years after being born in the UK. The fee for registration is now over £1,000 per child, which is unaffordable for many and a significant disincentive to all.Finally, there are some potentially significant legal and procedural barriers to EU citizens wishing to naturalise as British citizens. The fee for naturalisation is high and EU citizens have been required since 2015 to apply first for a permanent residence document before being eligible to apply for naturalisation. The UK interpretation of EU law appears to mean that many EU citizens (for example stay at home parents, carers, low earners and part time workers, those who have experienced sickness or unemployment and “A8” citizens who did not register their employment) have not been lawfully resident and are therefore not eligible for naturalisation and, worse, may be excluded from naturalisation on the basis of unlawful stay. This applies to long term residents as well as recent arrivals.The post-Brexit immigration statuses of temporary and settled status will ameliorate these problems for children born after Brexit and reduce the administrative barriers to naturalisation for adult EU citizens, but will not have retrospective effect. The historic problems with the interaction of British nationality law with the UK interpretation of EU law are likely to deprive many EU citizens of their entitlement to the acquisition of citizenship
