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YESTERDAY, THE UK’S Upper Tribunal ruled that people born in Northern Ireland cannot, as a matter of law, self-identify as an Irish citizen only without revoking their British citizenship.
Essentially, people born in Northern Ireland are automatically British citizens unless they choose to renounce it, which requires a formal process with a fee of £200 attached, the judges found.
This overturned a decision made by the First-Tier Tribunal that found that immigration laws as laid out in the British Nationality Act 1981 were superseded by the Good Friday Agreement. The Home Office had argued that an international treaty didn’t overpower British immigration law, and won.
For those in Northern Ireland who wish to identify as Irish only, they must revoke their British citizenship.
This, according to many commentators and politicians, contravenes the Good Friday Agreement, which claims in Article 1 (iv)/(vi) to 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”.
Tánaiste Simon Coveney is to ask Northern Ireland Secretary Julian Smith to follow-up on former Prime Minister Theresa May’s pledge to “review the issues around citizenship urgently to deliver a long-term solution consistent with the letter and spirit” of the Good Friday Agreement.
So, what are the reasons given for that conclusion by the tribunal, given the reaction from those in Northern Ireland and the Irish government?
Some parts of the Good Friday Agreement aren’t legally binding. The ruling said that even if the “legal significance” of the Good Friday Agreement giving citizens the power to self-identify as British or Irish or both is taken into account, as the DeSouzas claimed, “its existence in an international treaty, whilst binding in international law, does not thereby make it binding under the domestic law of the United Kingdom”.
This is the core argument made by the Home Office – domestic law supersedes an international treaty.
The Upper Tribunal gives a reasoning for this, too – that it’s not in the power of any one British government to take or give rights to its citizens without the approval of the UK parliament. The decision quotes a previous hearing:
It cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights.
The ruling continues: “it would infringe parliamentary sovereignty if, by entering into a treaty with a foreign state, the executive branch could thereby change the domestic law of the United Kingdom without recourse to parliament”.
As we have seen very recently in the UK through functions like indicative votes and the prorogation of parliament, the role of the House of Commons in the democratic process is held in high regard.
Statelessness. The argument the Home Office made is that Northern Irish citizens can identify as British or Irish, or both, but that does not make them legal citizens of their choosing.
The reasons for this are complex, but for example, if the argument is that the British government is imposing British citizenship on Emma DeSouza and others, then by the same token, the Irish government cannot impose Irish citizenship on those born in the North either.
“The result is that a person born in Northern Ireland is born stateless,” the Upper Tribunal concluded, saying that this would be a breach of both countries’ international obligations to prevent statelessness.
Consent. The DeSouzas had argued that the British Nationality Act didn’t need to be amended to be seen as compatible in order to comply with the Good Friday Agreement, which the Upper Tribunal said was “not a submission that can find favour”.
In order for the provisions of the Good Friday Agreement to be taken into account, the phrase “if they consent to identify as such” should be inserted in front of “British citizen”.
“Even assuming that this amendment would apply only to those born in Northern Ireland, it would represent a radical departure from the existing law of British nationality,” the Upper Tribunal found.
This raised “a host of difficult issues” among them the issue of consent.
It cannot rationally be contended that an infant, for example, would be expected to give consent.
If and when a person does, it continued, it raises questions as to “whether, and, if so, how, such a person could be expected to signify consent”.
A person’s nationality cannot depend in law on an undisclosed state of mind, which could change from time-to-time, depending on how he or she felt.
Conclusion. The Upper Tribunal also said that the webpage on the Northern Ireland Administration that says “people born in Northern Ireland can choose to be British citizens, Irish citizens or both” is not an authoritative source of law, and “must be regarded as wrong”.
It also said that “as a matter of law Mrs DeSouza is, at present, a British citizen at 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.
In one of its final paragraph, it concluded that it was “important” to state:
Nothing in this decision brings into question the past and continuing importance and constitutional significance of the Belfast Agreement to the people of ireland and the United Kingdom. On the contrary, our task has been to ascertain what the parties to that Agreement intended by way of Article 1 (iv)/(vi).
Recent times have shown that the UK government couldn’t give a flying you know what about the Good Friday Agreement. DeSouza is Irish, not British. Really hope Emma DeSouza continues her fight for herself, her family and every Irish person in the North.
@Ryan Kelly: Born in the US and living in the UK.
Maybe he is Japanese?
@James Brady: maybe you should read the article again. It is Emma who is taking the case not her husband!!!!!
@M Bowe: to get her husband pass UK immigration rules
Uk ignoring the good Friday agreement, business as usual then
Dual and even triple citizenship is very common among British passport holders of foreign decent. They do not need to renounce their British citizenship in those cases.
Why is not acceptable in this particular case?
@Nicky O’Donnell: because we are talking about Irish citizenship and the British couldn’t give a …
@Nicky O’Donnell: Because we grew up being battered and discriminated for decades so sorry if I don’t recognise my Britishness I was born in Derry in 1973 and I left in 1998 I have lived in Waterford for the past 19 years and have paid tax every year perhaps I might have a right to call myself Irish?
@Mr Hume: Lived in Waterford 19 years. My God you have suffered.
@Mr Hume: Born in the Island of Ireland gives you the right to call your self Irish.as do some Scots and Welsh identity as being part of the UK. Living and working in the Republic and paying taxes here makes you a part of the citizenry with full entitlement to vote etc..what does,Blaa sound like with a Derry accent?
@Mr Hume: were you kidnapped and brought there?
@Paul Murphy: Baps not blaas Free Derry rules in my house
@Gus Sheridan: Do you mean the republic in general or Waterford?
@Fred the Muss: one of the most beautiful counties in Ireland with sea and mountains. Very underrated .
@Mr Hume: looks like it’s going to take another few years to acclimatise you…
@Nicky O’Donnell: The courts accept that she is an Irish citizen. What they do not accept is that she is not a British citizen, as she is entitled by birth to British citizenship and has not formally renounced it.
@Nicky O’Donnell: The EU Courts themselves, don’t recognise Dual Nationality for the purposes of Directive 2004/38Ec see McCarthy v Secretary of State in CJEU 2011. This lady would be deemed as British and she never left the UK
@Mr Hume: Bet you call 26th December, Boxing Day, too, rather than thr correct form, St Stephens Day. Irish, me back side
Does this mean that all those unionists who got Irish passports after the Brexit referendum have give them back as they are not Irish.
@tom forde: I can’t in-vision any unionists renouncing their British citizenship for an Irish one under any circumstances.
@Derek: there was a time when Unionist background students from Northern Ireland planning to go to Scottish universities were quick to obtain Irish passports when it meant that as EU students they did not have to pay fees when other British students did. (I think that door has been closed as the Scottish universities now look at the home address, not the passport.)
Parliament could bring in an Act to make legal the situation whereby people in Northern Ireland can be both citizens of Ireland or England or both. The Irish Parliament could also legislate for this.
@Micheal S. O’ Ceilleachair: Ireland can’t tell the UK what to do. we can’t impose our citizenship on people of Norn Iron either. Bless, your idea will result in Irish in Belfast, born and bred Republicans, being foreigners in Norn Iron after Brexit. Genius
I blame the wealthy Scottish landowners who came there in 1606,
@Nathan Carr: wow your blame is alive and well since the 27th century
@Gus Sheridan: Yes it is, thank you for noticing. GRRRRRR.
I thought northern Ireland was part of the UK not Britain
@G Fitz: yep, at least that is what it says on the passport.
Is she trying to sort out a residence card for her husband or stir up tensions prior to Brexit
She’s northern irish!
@Aaron Jones: no such citizenship
@Aaron Jones:
No such designation as Northen Irish…
Just Irish.
Whatever about her citizenship, apparently she was born in Ireland according to some on here yesterday. She wasn’t. To claim otherwise is not just factually wrong, it misses the crux of the whole case.
@Alan McArdle: There was an Ireland before there was a Northern Ireland.
@Mr Hume: was, not since 1920. Pretty sure two to three generations of her family were born after 1920
@Mr Hume: That Ireland was part of the United Kingdom of Great Britain and Ireland. All were classed as British
It’s unfortunate, but in principle the court is right that a treaty negotiated by the executive can’t override the law through treaty-making without Parliamentary consent.
But the question remains, how did that never happen?
@Steven C. Schulz: But the Good Friday Agreement was passed by the people of N. Ireland and therefore democratic?
Oh just another €200 gone out of our hard earned cash. What a load of crap
The same Law and judicial system that has Assange still in jail, waiting on the extradition to the US after his sentence is up but they are illegally keeping him in jail and in solitary confinement until then? What justice???
“…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”.
This would seem to suggest that people born in Northern Ireland have, in fact, dual citizenship, and that they can choose to keep both, or, drop one or the other as they see fit depending upon their choice of identity.
@Blessopaddy: Nothing stopping them from having all three. But for immigration purposes, and in particular Directive 2004/38, she’s considered, legally and correctly as British. Even thr EU Courts accepted this in 2011
Funny that after the “shoot to kill policy” of the British government, if it was British then why does the Orange Order need to march then?
@TamuMassif2019: Orange Order’s brand of Unionism is all about sticking it to the Catholics . They like living in fear and paranoia .
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