Allowing the appeal brought by the Secretary of State for the Home Department, the Tribunal said that the birthright to be “Irish or British, or both” contained in the Good Friday Agreement, “whilst binding in international law, does not thereby make it binding under the domestic law of the United Kingdom”. 

The right to be Irish or British, or both

The Belfast Agreement 1998 (also known as the Good Friday Agreement) is comprised of the multi-party agreement between Northern Ireland political parties, and the British-Irish Agreement which is an international agreement between the government of the UK and the government of Ireland.

Article 1(vi) of the British-Irish Agreement states that the two governments “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”.

Provisions of the GFA were given domestic UK legislative effect in the Northern Ireland Act 1998. 

Application for residence card

In 2015, Jake Parker DeSouza applied for a residence card as the spouse of an EEA national, Emma DeSouza.

Mrs DeSouza was born in Northern Ireland in 1987. At the time of Mrs DeSouza’s birth, section 1(1) of the British Nationality Act 1981 provided that a person born in the UK after commencement shall be a British citizen if at the time of the birth his father or mother is a British citizen.

However, as per her birthright under the GFA, Mrs DeSouza identifies as an Irish citizen.

The Secretary of State for the Home Department refused Mr DeSouza’s application, deciding that Mrs DeSouza did not fall within the definition of “EEA national” as a “national of an EEA State who is not also a British citizen”.

Challenging that decision, Mr DeSouza argued that, as a result of Mrs DeSouza’s self-identification as being only Irish, she is not “also a British citizen”, and therefore he should satisfy the definition of EEA national.

Mr DeSouza’s position is that the Northern Ireland Act 1998 is a “constitutional” statute that overrides the words enacted by Parliament in section 1 of the British Nationality Act 1981. 

The First-tier Tribunal found in favour of Mr DeSouza; however, the Secretary of State appealed to the Upper Tribunal.

The Upper Tribunal (Immigration and Asylum Chamber)

In the Upper Tribunal, Mr Justice Peter Lane, president of the Upper Tribunal Immigration and Asylum Chamber, and Judge Jeremy Rintoul set aside the decision of the First-tier Tribunal, finding that it contained an error on a point of law.

Firstly, the Tribunal said that the birthright contained in Article 1(vi) of the British-Irish Agreement “…whilst binding in international law, does not thereby make it binding under the domestic law of the United Kingdom”. 

Considering JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, and R (Miller) v Secretary of State [2018] AC 61 [2017] UKSC 5, the Tribunal said that 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”. And further, that there was nothing in the Northern Ireland Act 1998, or anywhere else in the UK statute book, amounting to domestic legislation giving effect to Article 1(vi) of the British-Irish Agreement.

The Tribunal disagreed with the suggestion that there was no need for the Northern Ireland Act 1998 to amend Section 1 of the British Nationality Act 1981 (as this was capable of being interpreted consistently with the GFA). The Tribunal said that reading self-identification into the section, and making citizenship by birth in the UK dependent on consent, raised “a host of difficult issues” including the question of when and how a person should be expected to give such consent – and that “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”.

Considering the “problems inherent in a system of nationality based on consent”, the Tribunal said that the omission of self-identification from the Northern Ireland Act 1998 “was entirely deliberate”. The Tribunal added that it was “inconceivable” that the GFA and the Northern Ireland Act 1998 did not include “a person’s ability to reject his or her Irish or British citizenship” if that was what was intended.

Furthermore, if GFA needed to be construed as preventing the UK from conferring British citizenship on a person born in NI, “the inescapable logic is that Ireland cannot confer Irish citizenship on such a person at that point either” – resulting in statelessness and in breach of international obligations.

Considering the principle of interpreting domestic statutory law to be compatible with the UK’s international treaty obligations, the Tribunal said it was “important to appreciate the limits of this principle” – in that it should not be “regarded as a back-door way of circumventing the fundamental duality principle…whereby international treaties do not operate domestically, save to the extent that Parliament has ordained that they should”.

The Tribunal added that, the fact that the Northern Ireland Act 1998 gave effect to aspects of the GFA – and that Robinson v Secretary of State for Northern Ireland and Others [2002] UKHL 32 shows the Northern Ireland Act 1998 is to be regarded as “constitutional” in nature – “does not give us licence to read into the 1998 Act provisions which Parliament simply did not include on a subject (nationality) with which it does not deal”. 

The Tribunal also rejected Mr DeSouza’s reliance on Thoburn v Sunderland City Council and Others [2002] 3 WLR 247.

Article 8 ECHR

It was also argued that the operation of Section 1(1) of the British Nationality Act 1981 violated Mrs DeSouza’s rights under Article 8 of the ECHR, and that section 3 of the Human Rights Act 1998 required Section 1(1) to be read considering the right to be Irish or British, or both. 

The Tribunal said that, assuming “Mrs DeSouza’s right to self-identification is an aspect of her private life, protected by Article 8”, the system enshrined in the British Nationality Act 1981 represented “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, since Section 1(1) of the British Nationality Act 1981 did not “disproportionately interfere” with Mrs DeSouza’s Article 8 rights, it was not possible to invoke the interpretative principles contained in section 3 of the Human Rights Act 1998 in construing Section 1(1).