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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 to the UK. Emma DeSouza, an Irish citizen born in Northern Ireland, applied for a residence card for her US-born husband, Jake, in December 2015 on the basis of her status as an Irish citizen.
The Home Office originally rejected the application on the grounds that Ms DeSouza is British, despite never holding a British passport, in line with the interpretation 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. Ms DeSouza 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. Ms DeSouza initially applied for her husband to be issued with an EEA residence card under the Immigration (European Economic Area) Regulations 2006.
Ms DeSouza 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 the agreement is that it permits Northern Irish people to be British, Irish or both. This argument was accepted by the First Tier Tribunal which ruled in her favour. The Tribunal 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 that Ms DeSouza 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 the 1998 Good Friday Agreement did not supersede the British Nationality Act 1981. The court was told that the operation of the British Nationality Act 1981 means that Ms DeSouza 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 Ms DeSouza had 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.
Appeal summary and decision
Ms DeSouza’s application for a residence card for her husband was refused as it was claimed that she did not fall within the definition of “EEA national” as, under Regulation 2 of the 2006 Regulations, an “EEA national means a national of an EEA State who is not also a British citizen”. Ms DeSouza argues that she satisfies the definition of an “EEA national” in regulation 2 because “she is not also a British citizen”.
However, the Immigration Tribunal ruled that anyone born in the United Kingdom is automatically British under the British Nationality Act 1981, until such time as they renounce that citizenship. Ms DeSouza argued that the 1998 Agreement was subsequently passed into law as a constitutional statute that overrides section 1 of the British Nationality Act 1981, which states that a person born in the UK shall be a British citizen if at the time of birth his father or mother is a British citizen.
Ms DeSouza’s argument was that her constitutional right to identify only as Irish means that she should not be treated as British under UK law. The Tribunal ruled that even if they were to assume that the provision in the Article 1(6) of the Belfast Agreement (regarding the ability of all people in Northern Ireland to be able to identify themselves as Irish, British or both) its existence in an international treaty does not make it binding under UK domestic law.
It was held that international treaties made under the Royal Prerogative require the intervention of Parliament to be made domestic law. The Tribunal ruled that legislation is necessary to facilitate the transition from international treaty to UK domestic law. To follow any other course would infringe the doctrine of Parliamentary sovereignty.
The Tribunal disagreed with Ms DeSouza’s argument that a person requires “consent” to confer British citizenship with arguments surrounding the ambiguous nature of when consent is judged to be given. The Tribunal used the problematic nature of giving consent to conclude that the decision must have been deliberate on the part of the UK Government to not implement the provisions of the 1998 Agreement which touches upon the concepts of self-identification and nationality. Ms De Souza also argued her right to self-identification and her private life under Article 8 of the ECHR. On this argument, the tribunal ruled that “the present system enshrined by the British Nationality Act represents a proportionate way of achieving the legitimate public end, not only of avoiding statelessness, but also of maintaining a clear and coherent system of nationality law”.
The tribunal concluded that “as a matter of law, Ms DeSouza is, at present, a British citizen at the current time” and that, if she so chooses, there is a method by which she can give notice of revocation of her British nationality if she wishes only to be a citizen of Ireland. The claimant’s appeal against the decision of the Secretary of State to refuse to issue Ms DeSouza’s husband with a residence permit was therefore dismissed.
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.