The Secretary of State for the Home Department v Jake Parker de Souza

The Belfast (Good Friday) Agreement did not alter the domestic law of British citizenship. An international treaty does not confer or remove rights under United Kingdom law unless Parliament incorporates it. The Northern Ireland Act 1998 did not incorporate the Agreement’s self-identification provision so as to amend section 1(1) of the British Nationality Act 1981.

A person born in Northern Ireland who satisfies section 1(1) is a British citizen irrespective of personal identification. The statutory renunciation procedure provides the lawful means of ceasing to be British. This result is compatible with article 8 because an objective, coherent nationality regime serves legitimate aims and is proportionate.

The claimant, a United States citizen, sought an EU-law residence card as the spouse of Mrs De Souza, who was born in Northern Ireland and was both a British and an Irish citizen. The Secretary of State refused the application because the definition of an EEA national in the Immigration (European Economic Area) Regulations 2006 excluded a person who was also a British citizen.

The First-tier Tribunal allowed the appeal. The Secretary of State appealed to the Upper Tribunal. The central issue was whether the Belfast Agreement and the Northern Ireland Act 1998 meant that Mrs De Souza’s identification only as Irish prevented her from being treated in domestic law as a British citizen.

1. Appeal allowed. The First-tier Tribunal made an error of law. Its decision was set aside and the claimant’s appeal against the refusal of a residence card was dismissed.

2. The claimant had a right of appeal under regulation 26(3) of the Immigration (European Economic Area) Regulations 2006. That provision requires evidence which, on its face, proves the asserted family relationship. It does not permit the Secretary of State to prevent an independent tribunal from deciding the legal question whether the spouse falls within the definition of an EEA national.

3. The British-Irish Agreement was an international treaty. It could bind the United Kingdom internationally, but it could not change domestic nationality law without parliamentary legislation. The Northern Ireland Act 1998 implemented specified aspects of the Belfast Agreement but did not give domestic effect to article 1(vi), or its corresponding multi-party provision, so as to alter section 1(1) of the British Nationality Act 1981.

4. The constitutional character of the 1998 Act, and the purposive construction adopted in Robinson v Secretary of State for Northern Ireland and Others [2002] UKHL 32, did not authorise the Tribunal to read an unexpressed and radical consent requirement into nationality legislation. Self-identification under the Agreement did not entail a right to reject citizenship acquired at birth.

5. Article 8 did not require a different construction. A nationality system based upon consent would lack clarity and coherence. Section 12 of the 1981 Act provided a proportionate route for a British citizen with another nationality to renounce British citizenship. Mrs De Souza was therefore a British citizen, not an EEA national for the 2006 Regulations, and the claimant could not obtain the residence card.

• Upper Tribunal (Immigration and Asylum Chamber): the Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside and substituted with a dismissal of the claimant’s appeal.
• First-tier Tribunal: allowed the claimant’s appeal under the Immigration (European Economic Area) Regulations 2006.