Immigration Judges in the Upper Tribunal recently held that people who are born in Northern Ireland will be regarded as British Citizens, even if they identify themselves as Irish.
History of the Case
Mrs Emma De Souza, who was born in Northern Ireland, applied for an EEA Residence Card for her US-born husband.
Given that Mrs De Souza has never held a British passport, the EEA Residence Card application for her husband was made on the basis that Mrs De Souza identified as an Irish citizen, and was exercising her treaty rights under EU Law by bringing her foreign spouse to the UK.
The Home Office rejected the application on the grounds that they considered Mrs De Souza to be a British Citizen by virtue of the fact that she had never renounced her British Nationality, and her spouse should therefore be making an application for Entry Clearance under Appendix FM of the Immigration Rules.
However, Mrs De Souza argued that she has never considered herself a British Citizen, and therefore could not renounce a citizenship she has never had.
Mrs De Souza challenged the decision by arguing that the terms of the 1998 Belfast Agreement also known as the ‘Good Friday Agreement’ allows her to identify herself as either Irish, British, or both.
In 2017, the First-Tier Immigration Tribunal held in Mrs De Souza’s favour and determined that she was an Irish National and could therefore exercise her treaty rights in Northern Ireland. The Immigration Judge in the determination quoted that Mrs De Souza was an, “Irish national only who has only ever been such”.
The Home Office lodged an appeal to the Upper Tribunal and the appeal was recently heard in September 2019.
Lawyers for the Home Office argued that the British Nationality Act 1981 was the relevant legislation to apply as part of the application and not legislation passed as a result of the ‘Good Friday Agreement’.
The Home Office further argued that people born in Northern Ireland remained British Citizens according to the law, even if they identify as Irish.
Upper Tribunal’s Decision
Unfortunately for Mrs De Souza, the Judges sitting in the Upper Tribunal did not uphold the decision made by the First-tier Tribunal, and stated that the Good Friday Agreement did not supersede the British Nationality Act 1981, which sets out the terms of citizenship for people born in the UK, including Northern Ireland.
Outcome of the ruling
The ruling means people born in Northern Ireland remain British Citizens under UK law even if they identify themselves as Irish. The Home Office’s lawyers argued successfully that the British National Act 1981 was the relevant legislation to be considered when assessing immigration applications.
As a result, Mrs De Souza is regarded as a British Citizen as a matter of law.
The case is now likely to be appealed further to the Court of Appeal.
Similar case law
This is not the first time that a dual British/Irish National has made headlines because of a decision made by the Home Office.
The 2011 case of McCarthy v United Kingdom (Case C-434/09) was a landmark case in which it was determined that a woman who identified as both British and Irish could not rely on the Free Movement Directive under EU Law to make an application for an EEA residence card for her husband so that he could remain in the UK.
Facts of the case
Ms McCarthy was born in the UK to Irish parents. She had lived in the UK her entire life and had never exercised her free movement rights in another EU country. She only qualified for Irish Citizenship by descent, and had made an application for a residence document as an EU National exercising her treaty rights in the UK. She then made an application for her Jamaican husband to remain in the UK under the Directive by applying for a UK residence card.
The European Court of Justice found that the free movement directive did not apply to Ms McCarthy because she had never exercised her right to freedom of movement and because she had always resided in a Member State of which she was a national. Ms McCarthy’s husband, therefore, could not benefit from the Directive and did not qualify for a residence card under the Directive and would need to make an application under UK Immigration Law, presumably Appendix FM.
The recent 2018 decision by the First-tier Tribunal in relation to a similar application for a UK Residence Card for the husband of an Irish Citizen also made headlines due the unusual decision by the Irish spouse to renounce her British Citizenship prior to making an application for her husband.
Facts of the case
Mrs Capparelli was born in Northern Ireland, and lived there until she emigrated to the United States of America. She lived in the USA for a decade with her American husband and their son before the family relocated to Belfast, Northern Ireland. Mr Capparelli subsequently applied for a UK Residence Card under the free movement Directive to prove his right to live and work in the UK with his Irish wife and son.
Following the ruling in McCarthy, Mrs Capparelli decided to renounce her British Citizenship so that there would be no question as to her nationality, and could only legally be identified as Irish.
The Home Office refused the application on the grounds that Mrs Capparelli was not a ‘qualified person’ under the Directive, i.e. working, looking for work, studying, or self-sufficient.
The Home Office also stated that Mrs Capparelli could not be regarded as a permanent resident (and therefore would not need to evidence that she was a qualified person) under EU Law as she had been absent from the UK for more than two years prior to the date of application.
The First-tier Tribunal upheld the Home Office’s decision in Capparelli and the matter was not appealed further.
If you require further information in relation to EEA Family Permit applications or EU Settlement Scheme applications, please feel free to contact our immigration lawyers for a free consultation on +44 161 826 6922.