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Any EEA citizen living in the UK in accordance with EEA regulations can bring their non EEA family members with them. Emma DeSouza, an Irish citizen born in Northern Ireland, applied for residence card for her US-born husband, Jake, in December 2015 on the basis of her status as an Irish citizen.
The Home Office rejected the application on the grounds that Emma is British, despite never having held a British passport, on foot of the British Nationality Act 1981. They requested that she either reapply as a British citizen (under the much more difficult and expensive UK immigration rules) or renounce her British citizenship to apply as an Irish citizen under the EEA route. Emma did not want to do this as she felt strongly that she is Irish not British. Additionally it currently costs nearly £400 to renounce British Citizenship.
Therefore, she brought her case to the First Tier Tribunal and argued that the Home Office’s decision was contrary to the Good Friday Agreement. This agreement brought 30 years of armed conflict in Northern Ireland to an end and a key part of it is that it allows Northern Irish people to be British, Irish or both. This argument was accepted by the First Tier Tribunal which ruled in her favour. They ruled that under the terms of the Good Friday Agreement, the people of Northern Ireland are in a unique position within the United Kingdom and Emma had the right to chose to be Irish rather than British.
The Home Office appealed the case to the Upper Tribunal by arguing that there was a “legal error” in the First Tier Tribunal’s decision, in that that the 1998 Good Friday Agreement did not supersede the 1981 British Nationality Act. The court was told that the operation of the British Nationality Act 1981 means that Emma had held British citizenship since birth and that this British citizenship was never renounced.
It was argued that “a treaty [the government] is a party of does not alter the laws of the United Kingdom,” and that the “courts do not have the power to force the government to uphold its obligations and commitments to a treaty”.
This argument has the effect that people born in Northern Ireland remain British citizens according to the law, even if they identify as Irish only. One of the reasons given for this claim was that to decide otherwise would mean a person born in Northern Ireland would remain stateless unless they opted for one or the other citizenship.
Lawyers for Emma have argued that the Good Friday Agreement is essentially now part of the United Kingdom’s unwritten constitution and, in the context of Northern Ireland, legislation must be interpreted in a way which is consistent with it.
The judges heard the case in September 2019 and their decision is expected shortly on this matter. However, it is likely that the Home Office will immediately appeal any decision that goes against them so in any case it will likely not be the last we hear on the matter.
This case has profound implications for both immigration law practitioners in Northern Ireland but also in terms of the constitutional ramifications for citizens’ rights in Northern Ireland. While the Good Friday Agreement is not contingent on the United Kingdom’s membership of the European Union this case shows one of the ways in which Brexit has the potential to come into conflict with it.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Immigration is a complex area of law for both corporates and individuals. Please contact our Business Immigration / Employment Team at Cleaver Fulton Rankin for further advice or information.