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The DeSouza verdict: Why everyone born in Northern Ireland is legally a British citizen

“A person’s nationality cannot depend in law on an undisclosed state of mind,” the Upper Tribunal argued in it’s decision.

desouza-court-case Emma DeSouza and her US born husband Jake arrive for a press conference in West Belfast yesterday. Source: Niall Carson

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made by the First-Tier Tribunal that found that immigration laws as laid out in the British Nationality Act 1981 were superseded by the Good Friday Agreement.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. 

Binding Source: Upper Tribunal

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.

parliamentary sovereignty Source: Upper Tribunal

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. 

Statelessness Source: Upper Tribunal

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. 

Infant Source: Upper Tribunal

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.

Wrong Source: Upper Tribunal

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).

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