British Citizenship, EU Free Movement, and the Good Friday Agreement

January 2, 2020

The United Kingdom’s (UK) citizenship laws are, as a consequence of our colonial past, notoriously complex. In a recent case, the courts here considered their interaction with international treaties, and importantly with the European Union’s (EU) free movement provisions, which are set to come to an end in the UK in the event of Brexit.

All EU citizens living in the UK in accordance with the EU free movement directive and the domestic regulations the UK has used to implement it can bring their non-EU family members with them. The plaintiff in this case, Emma De Souza, was born in Northern Ireland and identifies only as an Irish citizen. She applied under the UK’s regulations for a residence card for her United States (U.S.) citizen husband, Jake, in December 2015.

The UK’s Home Office rejected the application on the grounds that Emma is also a British citizen by birth in Northern Ireland under the British Nationality Act 1981, despite Emma never having held a British passport. Its view was that Jake should either reapply under the much more difficult and expensive UK immigration rules or Emma should renounce her British citizenship to enable Jake to gain EU free movement rights. The couple did not want to do either, Emma feeling strongly that she is Irish, not British. Additionally, it currently costs nearly £400 to renounce British citizenship.

The First Tribunal Decision

In the First Tier Immigration Tribunal, lawyers for the couple argued that the Home Office’s decision was contrary to the 1998 Good Friday Agreement, a bilateral treaty between the UK and Ireland. 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 at first instance, with the Tribunal ruling in her favor.

The Second Tribunal Decision

The Home Office appealed the case to the Upper Tribunal, arguing that there was a legal error in the first decision, in that that the Good Friday Agreement, as an international treaty, could not trump British nationality legislation.

The Home Office argued that “a treaty [the government] is a party to 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 citizenship or the other.

Lawyers for the De Souzas 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 Upper Tribunal allowed the Home Office appeal. In addition to agreeing with the Home Office’s arguments, the Upper Tribunal stated that the uncertain nature of allowing citizenship by consent would have practical difficulties. For example, how does one determine the citizenship of an infant too young to give consent? Overall, it felt that there was an adequate solution to Emma’s situation through her ability to revoke her British citizenship. The couple has indicated that they intend to appeal this case to the UK’s Court of Appeal.

Comment

This case is a useful reminder of the interaction between treaties agreed between states and the domestic laws of those states. While the Good Friday Agreement is not contingent on the United Kingdom’s membership in the European Union, this case shows one of the ways in which Brexit— especially a hard Brexit—has the potential to come into conflict with the agreement. Responding to the judgment, the Irish Taoiseach Leo Varadkar stated, “It is my view that the British citizenship laws are out of step with the letter and spirit of that [Good Friday] Agreement … This judgment appears to make a distinction between identifying as British or Irish, as opposed to being a citizen and that is a misreading in our view of the Good Friday Agreement.”

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment & Immigration Team at Cleaver Fulton Rankin for further advice or information. This article has been featured on AILA.org. Please see AILA Doc. No. 19122302.

Conor McCrory is an Associate Solicitor at Cleaver Fulton Rankin in Belfast, Northern Ireland. Conor specializes in challenging Home Office decisions to suspend/revoke sponsor licenses, compliance and risk analysis; reporting and audit planning. Conor is a dual qualified Solicitor in England/Wales and Northern Ireland having worked for a number of leading corporate immigration practices in the City of London for 10 years.

Nathan Campbell is a Senior Solicitor at Cleaver Fulton Rankin in Belfast, Northern Ireland. Nathan specialises in employment law, and he advises clients on a wide range of employment, corporate, charity and immigration law issues.