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It is well-known that under the Good Friday (or Belfast) Agreement “it is the birth right of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both”. However, technically, under the British Nationality Act (1981 Act), Northern Irish people are legally British from being born in Northern Ireland. It is possible to obtain Irish citizenship, but in order to remove British citizenship, it is necessary to officially revoke it. This currently costs £372 and likely several months waiting for the Home Office to process the application. This is the case even if a person only ever carried an Irish passport. In the recent High Court decision of Re Ní Chuinneagain , leave to apply for judicial review to challenge this position was refused.
This issue came to prominence recently when 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. This was refused due to Emma being British on foot of the 1981 Act. Ultimately, this matter somewhat resolved itself through the “New Decade New Approach” deal leading to a valuable, but time limited, route to settlement for the non EU family members of Northern Irish citizens. However, the decision of the Upper Tribunal was in favour of the Home Office’s position that the Belfast Agreement did not supersede the 1981 Act and therefore, Emma DeSouza was British despite her genuine belief that she was Irish only.
Ní Chuinneagain Case
In this case, the applicant sought to challenge the status quo on a number of grounds. The principal grounds could be summarised as follows: the position is contrary to the UK Government’s obligations under the Withdrawal Agreement and the NI Protocol (EU Law Grounds); and that it is contrary to the applicant’s rights under Articles 8 and 14 of the European Convention on Human Rights (Human Rights Grounds).
EU Law Grounds
Scoffield J did not accept that the conferral of British citizenship on the applicant prevented her from enjoying her rights of Irish citizenship. He was also persuaded by the respondent’s arguments that: Treaty rights do not apply in the UK after its withdrawal from the EU; and that this is a wholly internal matter which is not in the scope of EU law. Scoffield J was also unconvinced that the current position is contrary to the Belfast Agreement notwithstanding the fact that the Belfast Agreement, as an international agreement, is not directly enforceable as a matter of domestic law. Similarly while the NI Protocol obliges the UK to protect the Belfast Agreement it does not give independent legal effect to the provisions of it.
Human Rights Grounds
Scoffield J was prepared to accept that the conferral of citizenship against the wishes of a person who enjoys citizenship of another state could arguably be an interference of Article 8 rights to private family life. However, he was not convinced that there was a concrete detriment in this case. Unlike DeSouza, there were no real difficulties for the applicant caused by the 1981 Act and she was free to identify as Irish only, which she did. She also has access to a remedy of revoking her British citizenship if this really was such a burden and the cost of £372 was not considered to be prohibitive. It was also noted that under Irish law, those born in Northern Ireland are not automatically Irish. Therefore, there would be a real risk of Northern Irish children being born stateless if they were not automatically British. The 1981 Act is therefore a proportionate means of achieving a legitimate aim.
This case was described by Scoffield J as a “re-run” of the arguments decisively rejected in the DeSouza case. The arguments made by the applicant in respect of the NI Protocol are interesting but she was doomed to fail. While the status quo arguably may not be in accordance with the Belfast Agreement, a number of judges have now essentially come to the conclusion that this is not a significant issue on a practical basis and, even if it were, it is one that can be dealt with via legislation as opposed to the courts. There is also merit to the argument that automatic British citizenship for NI citizens is necessary given that they are not automatically Irish under Irish law. To change this status quo would involve a fundamental change of the nationality law of both UK and Ireland. The courts have been understandably unwilling to impose this. It is likely that if there are to be any changes then, as was the case for DeSouza, they are more likely to come from political pressure than the courts.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Business & Private Immigration Law team at Cleaver Fulton Rankin for further advice or information.