People born in Northern Ireland are British citizens under law, even if they identify as Irish, a UK tribunal ruled this week.
Derry woman Emma De Souza has, since 2017, been waging a legal challenge to the Home Office rule that people born in Northern Ireland are by default British citizens unless they actively change.
In 2017 she won her case against the Home Office after it ruled she is British following an application for a residence card for her US-born husband, Jake, as the spouse of an EU national.
The Good Friday Agreement allows people to identify as British, Irish or both.
This week an immigration tribunal at the High Court in Belfast upheld the appeal by the Home Office.
Mrs De Souza said she was “disappointed” and that she would now seek for the case to be heard by the Court of Appeal.
Last month judges in London considered the case at its Upper Tribunal, which handles appeals against decisions made in First Tier Immigration Tribunals.
The Home Office argued that people born in Northern Ireland remain British citizens according to the law, even if they identify as Irish.
The 1998 Good Friday/Belfast agreement said the British and Irish governments would: “Recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.”
Mrs De Souza said the British government is failing to implement that agreement.
Her case came about after she applied for a residence card for her US-born husband in December 2015, making the application under her Irish passport.
The Home Office rejected the application because, it said, Mrs De Souza is British, even though she says she has never held a British passport.
The Home Office requested that Mrs De Souza either reapply as a British citizen or renounce her British citizenship and pay a fee to apply as an Irish citizen.
She challenged that citing her right under the Good Friday Agreement to identify as Irish, British or both.
In 2017 a judge ruled Mrs De Souza is an “Irish national only who has only ever been such”.
The following February the first-tier tribunal ruled in favour of Mrs De Souza.
Last year the Home Office lodged an appeal and the case went to a panel of judges in the Upper Tribunal court in September 2019.
The tribunal ruled that despite the Good Friday Agreement giving people the right to identify as British or Irish or both, it did not supersede the 1981 British Nationality Act, which sets out the terms of citizenship for people born in the UK, including in Northern Ireland.
The judges said: “To make citizenship by birth in the United Kingdom (or any part of it) dependent on consent raises a host of difficult issues.”
The Home Office argues that not all of the Good Friday Agreement has been transposed into British law and, therefore, rights in the Good Friday agreement cannot trump the 1981 British Nationality Act.
The UK’s Northern Ireland Act (1998) which gave effect to the Good Friday Agreement had quite deliberately and intentionally not included self-identification and nationality, said the tribunal judges in Belfast.
Ireland’s Department of Foreign Affairs and Trade, on the other hand, said Ireland amended its own domestic law to incorporate the rights agreed in the Good Friday Agreement.
Lawyers for Mrs De Souza and her husband had argued that on one of the web pages of the Northern Ireland Executive, there is a passage which says “people born in Northern Ireland can choose to be British citizens, Irish citizens or both”, but the court ruled that the webpage was not “an authoritative source of law” and said it must therefore be regarded as wrong.
Although Mrs De Souza was advised by the Home Office to renounce her British citizenship, she said she could not renounce something she never held.
The judges, Justice Lane, and Judge Rintoul, president of the Upper Tribunal concluded: “As a matter of law, Mrs de Souza is, at present a British citizen in the current time.
“Whilst we fully appreciate her strength of feeling on this matter, it is not disproportionate… for her nevertheless to be required to give notice of revocation, if she wishes only to be a citizen of Ireland.”
The judges said international treaties such as the Good Friday Agreement are entered into under Royal Prerogative but that this Prerogative “does not extend” to altering domestic law without the “intervention of parliament”.
“Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation,” they ruled.
This means people can neither derive, nor be deprived, rights by means of an international treaty. Domestic legislation is always necessary.
They said the Northern Ireland Act of 1998 which gave effect to certain provisions in the Good Friday agreement did not itself actually touch on self-identification and nationality and that this “was entirely deliberate on the part of the United Kingdom”.
They added: “Nothing in this decision brings into question the past and continuing importance and constitutional significance of the Belfast Agreement [Good Friday Agreement (GFA)] to the people of Ireland and the UK”.
The ruling added that to renounce British citizenship, an individual must pay a £200 fee.
