Citizenship and passport processes relating to Northern Ireland Contents

1Citizenship processes

Our inquiry

1.Our inquiry, “Citizenship and passport processes relating to Northern Ireland”, considered two separate issues relating to citizenship and Northern Ireland:1 first, the process by which Irish citizens resident in the UK can naturalise as British; and secondly, citizenship processes relating to the Belfast/Good Friday Agreement’s “birthright” provisions, under which the British and Irish 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.2

In this report we consider the fairness of those processes and draw conclusions on the approach of the Home Office to the issue of citizenship and identity on the island of Ireland. We received a range of written submissions and held three oral evidence sessions on our inquiry, culminating in a session with Ministers from the Northern Ireland Office and the Home Office in May 2021.3 We are grateful to all those who contributed to our inquiry.

Obtaining British citizenship through naturalisation

2.The Belfast/Good Friday Agreement (the Agreement) defines “the people of Northern Ireland” as “all persons born in Northern Ireland and having, at the time of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.”4 People born in the Republic of Ireland and living in Northern Ireland or the rest of the UK are not therefore deemed to be “people of Northern Ireland” as defined in the Agreement, and they do not benefit from the Agreement’s birthright provisions on identity and citizenship.

3.People from the Republic of Ireland who are resident in the UK and not already entitled to British citizenship through other means must therefore apply for naturalisation if they wish to become a British citizen.5 Naturalisation applications currently cost £1,330, which includes an £80 fee to take part in a mandatory citizenship ceremony. Applicants are also required to complete a “Life in the UK” test and to have resided in the UK for the five-year requisite period.6 The naturalisation fee of £1,330 is much higher than the administrative cost of the process.7 In contrast, a person of Northern Ireland is already entitled to hold Irish citizenship and apply for an Irish passport, which currently costs £70 for an adult when applying through the Passport Express service.8

4.During our inquiry, we spoke to Lord Hay of Ballyore, who was born in 1950 in County Donegal, around 10 miles from the border, but has lived in Northern Ireland most of his life.9 He noted that many other people from border towns had gone to live and make their homes in Northern Ireland.10 Lord Hay sits in the House of Lords and holds Irish citizenship. He set out his views to us on the naturalisation process:

There is an enormous fee for British citizenship. It is around £1,300; it can be slightly more than that. This is very insensitive to many people who have already paid taxes and national insurance for most of their lives in Northern Ireland, and who simply want to register as a British citizen in this United Kingdom.11

5.We asked the Minister for Future Borders and Immigration, Kevin Foster MP, about the appropriateness of the process and costs associated with naturalisation. He argued that the current process was fair, as the same requirements were applied to all, regardless of country of birth.12 The Minister later acknowledged, however, that some exemptions from the requirements already exist for nationals of certain countries, noting that those from majority English-speaking countries do not need to prove English language ability as part of their application.13 When questioned on the necessity of the requirement for Irish citizens resident in the UK to pass a “Life in the UK test”, which Lord Hay described as “ridiculous”,14 the Minister said “we felt it was appropriate to have a similar test for all those looking for naturalisation”.15 It is this blanket approach “for all those” that needs changing in the Home Office.

6.Irish nationals already hold special status in the UK compared with nationals of other countries: they are not considered “aliens” under the law; they are considered to be “settled” from the date they take up ordinary residence in the UK; and they hold the same rights as UK citizens across a number of areas, including eligibility for welfare and access to education and healthcare.16 Lord Hay told us that the Government could take a bespoke approach to applications from Irish citizens for naturalisation, too.17

7.The Home Office describes the process for Irish citizens who wish to naturalise as British as fair, because it is the same as the process for people of any third country. But this is to miss fundamentally the historical nuance of the issue. The Department must understand the historical connection between the United Kingdom and the Republic of Ireland including the close personal ties, relationships and continued movement of people between the two countries, as evidenced by the Common Travel Area. Given the special status of Irish citizens, including those who identify as British (hereafter referred to as Irish citizens) within the United Kingdom, and the unique nature of the border on the island of Ireland, the current fee charged to enable Irish citizens in the UK to naturalise as British is at worst indefensible, and at best unreasonable and excessive. The current residency requirement is still appropriate, however, and the bespoke provisions we recommend are framed in relation to those people who are defined in law as Irish citizens also seeking naturalisation. We heard from the Government that there is a balance to be struck between the provisions of the Common Travel Area, post-Brexit restrictions on freedom of movement and developments in UK immigration policy. We recognise the need to guard against an abuse of the Common Travel Area as a back door to immigration to the UK. The Government should abolish the naturalisation fee charged to Irish applicants who wish to naturalise as British citizens. Likewise, the Government must waive the requirement for Irish citizens to pass a “Life in the UK” test as part of the naturalisation process and allow attendance at the citizenship ceremony to be optional.

The “birthright” provisions of the Belfast/Good Friday Agreement

8.The second element of our inquiry focused on Article 1(vi) of the Belfast/ Good Friday Agreement. Under Article 1(vi), the British and Irish Governments, as parties to the Agreement, confirm the “birthright” of the people of Northern Ireland to be able 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.18

The rights provided by Article 1(vi) of the Agreement extend only to “the people of Northern Ireland”, as defined under Annex 2 of the Agreement.19 Under this definition, most people of Northern Ireland are therefore automatically British citizens at birth under the British Nationality Act 1981.20 Questions have been raised, however, about the consistency of the 1981 Act with the birthright provisions of the Agreement, most notably during a recent legal case brought by Emma DeSouza and her husband Jake.

The DeSouza case

9.In 2015, Emma DeSouza, from Magherafelt, County Londonderry, went to court after an application for an EEA residence card for her US-born husband Jake DeSouza was rejected.21 It was reported to have been refused by the Home Office on the basis that Ms DeSouza was also a British citizen and therefore did not meet the Government’s qualifying definition of an EEA national.22 Ms DeSouza argued that she was an Irish citizen who had never held a British passport and identified as Irish-only.23 The couple appealed the decision, citing the Agreement’s Article 1(vi) provisions on identity and citizenship. In 2017, the First-tier Immigration Tribunal ruled in favour of DeSouza. This was then appealed to the Upper Tribunal, which found in favour of the Home Office in October 2019.

10.The Government has asserted that under Article 1(vi) of the Agreement, a person of Northern Ireland holds the right to “self-identify” as Irish, or British, or both, as they may so choose, but that this does not amount to a right to choose one’s legal citizenship without taking certain administrative steps.24 The October 2019 Upper Tribunal judgment found that while the Agreement was binding under international law, it did not amend UK domestic law giving effect to Article 1(vi), nor did the Northern Ireland Act 1998 or any other provision amend the law on nationality specifically, a decision which the Tribunal declared was “entirely deliberate on the part of the United Kingdom Parliament”.25 The Government told us that “any desire” to read that part of the Agreement as “mandating” or “positing the possibility of” changes to UK nationality law so that citizenship is dependent on a person’s choice of identity was “contrary to the agreed text”.26

11.In her written submission, Ms DeSouza said that the Government’s interpretation of the birthright provisions required “that one actively ignore the express wording of ‘to be accepted as’”. She maintained that there was a duty on both the UK and Irish Governments to accept a person of Northern Ireland as Irish or British or both “and that this recognition is intended to encompass citizenship ‘accordingly’, rather than to be limited to some abstract concept of identity”.27 This view was shared by the Committee on the Administration of Justice (CAJ), an NI-based human rights organisation.28 We believe that the right “to be accepted as” has implications that have hitherto been sidestepped.

12.Responding to the point of view put forward by Ms DeSouza and the CAJ, Northern Ireland Minister Robin Walker MP said that there was “an important distinction to be made between the right to self-identify and the process of achieving citizenship”, arguing that it would be “difficult to base a legal and administrative process on a state of mind.”29 He added:

It would be inappropriate if the Government were to equate identity and the acceptance of identity with citizenship. This is where I draw the distinction between the processes regarding citizenship and the choice of identity.30

The Committee’s attention was drawn towards the report of the Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission published in March 2020 exploring ways in which the British Nationality Act 1981 and other provisions could be amended for the people of Northern Ireland.31

Position of the Irish Government

13.The Irish Government amended its constitution to enact relevant sections of the Agreement following the referendum on it in 1998. Relevant nationality legislation was also amended. His Excellency Adrian O’Neill, Irish Ambassador to the UK explained:

Section 6 of the Irish Nationality and Citizenship Act 1956 was amended to provide for an entitlement to Irish citizenship for people born on the island, as regulated further by law. Importantly, the entitlement is the same, whether someone is born North or South - there is no differential basis for citizenship.32

Following the Home Office’s successful appeal of Emma DeSouza’s case at the Upper Tribunal in October 2019, the then Taoiseach Leo Varadkar told the Dáil:

This judgment appears to make a distinction between identifying as British or Irish as opposed to being a citizen. In our view, that is a misreading of the Good Friday Agreement.33

14.We understand the argument put forward by the Government on Article 1(vi) of the Agreement regarding the need for a distinction between the rights of self-identification and of citizenship for the people of Northern Ireland. However, evidence to this inquiry has demonstrated that there remain competing views on the meaning and intention of those birthright provisions, and questions also remain as to what the right to identify “and be accepted as” Irish or British or both actually means in practice. We believe that the term “to be accepted as” has knock-on consequences that have hitherto been sidestepped. This is an example of an unhelpful difference between how the two governments seem to have interpreted the Belfast/Good Friday Agreement and the definition of certain terms. Given the proximity and history of the two countries this is undesirable. There is considerable merit in the two governments trying to reach an agreed definition of the terms contained in Article 1(vi). The differentials in definition add to the confusion. In its response to this report, the Government should clarify the meaning of the phrase “to be accepted as” in Article 1(vi) of the Agreement, including how it is respected and upheld in the Government’s approach towards the birthright provisions for the people of Northern Ireland. In addition, the UK and Irish Governments should agree to a shared approach towards and interpretation of the birthright provisions to remove any remaining ambiguity. We recommend that the two governments meet to iron out those inconsistencies.

Family migration arrangements for the people of Northern Ireland

15.In February 2019, in response to the ongoing DeSouza case, the then Prime Minister Theresa May announced that the Government would undertake a review of how UK immigration rules were affecting the people of Northern Ireland in “exercising their rights under the Agreement to be Irish” and to be joined by family members as such under the EU Settlement Scheme.34 In evidence, the Northern Ireland Human Rights Commission told us it had “welcomed” the 2019 commitment but noted that the review was never published.35 Mrs May later described the undertaking as an “internal review”.36 As a result of the review, the Government committed to changing the rules surrounding family migration arrangements for the people of Northern Ireland as part of the New Decade, New Approach agreement, noting that

eligible family members of the people of Northern Ireland will be able to apply for UK immigration status on broadly the same terms as the family members of Irish citizens in the UK.37

Les Allamby of the NIHRC described this outcome as “much more short term” than was implied in the original speech by Mrs May.38 The changes to the EU Settlement Scheme took effect from August 2020. Regarding the original rules for the scheme, Minister Walker acknowledged that “it was clearly a concern, with that situation … that that could have been perceived as an opportunity for some people” to renounce British citizenship in order to access EU family migration rights.39 He added that his department’s key priority had been “non-discrimination”, ensuring that the people of Northern Ireland, regardless of how they identify, had “access to the same treatment”.40 Other witnesses also stressed a need to ensure the that the principle of parity of esteem was upheld, referencing the more complex rights environment created by Brexit.41 Les Allamby of the NIHRC told us “we take it implicit that how you identify, as British or Irish or both, should not carry a specific advantage or adverse consequence”.42

16.The changes made to the EU Settlement Scheme for the people of Northern Ireland in August 2020 were welcome, demonstrating how Government has been prepared to introduce bespoke immigration policy for the people of Northern Ireland. The acceptance of a bespoke approach illustrates that it can be done. Contrary to the Government’s view, however, we are not entirely convinced that the changes to the scheme represented the full scope of the review announced by the then Prime Minister. In the interests of transparency, the Government must publish in full the results of the review announced by Mrs May.

Renunciation of citizenship

17.In setting out its position on the birthright provisions for the people of Northern Ireland, the Government has argued that a person is able to renounce their British citizenship if they wish to align their citizenship with a choice of an Irish-only identity.

18.If a person wishes to renounce their British citizenship, they are required to make a declaration to the Home Secretary.43 As part of the declaration form, applicants are required to confirm that they are a British citizen.44 Applications for renunciation currently cost £372.45 However, later resumption of British citizenship is not guaranteed for individuals who have given up citizenship under these circumstances. Instead, resumption is at the discretion of the Home Secretary and costs an additional £1,206.46

19.Witnesses considered how appropriate this process was for a person of Northern Ireland wishing to hold Irish citizenship only. The Ulster Unionist Party described the requirement as “not an unreasonable position to take”, reflecting the fact that individuals were born in the United Kingdom.47 Les Allamby from the NIHRC on the other hand told Members that

renouncing your British citizenship and paying for that in order to do this does not, again, seem to me to be in tune with where we are in terms of the recognition of your right to identify as British or Irish, or both implicitly, without adverse consequence.48

Ms DeSouza also shared her view:

As an Irish citizen I cannot simply be accepted as Irish under the terms of the Good Friday agreement. Rather, it is expected that, if I want to be accepted as Irish only, I must go through a costly and bureaucratic process that involves me having to first declare myself as British.49

20.Some contributors suggested introducing a bespoke approach for the people of Northern Ireland: for example, using a separate form and reducing the cost required, which some saw as a barrier to their exercising the right to be accepted as exclusively Irish.50 However, the Upper Immigration Tribunal ruled in October 2019 that the process of renunciation and its fee did not present “a material barrier to [Ms DeSouza’s] use of” the renunciation provisions of the British Nationality Act 1981, and that it was not “disproportionate in Article 8 [of the ECHR] terms for the Secretary of State to levy this sum”.51

21.The renunciation of one’s citizenship is not a decision to be taken lightly or without consideration of potential consequences. We recognise, however, that some people in Northern Ireland may wish to take the formal step of legally aligning their citizenship with their choice of an Irish-only identity, just as others wish to assert a British-only identity. Others, too, wish to assert both. Any person wishing to assert or renounce a deemed citizenship should be able to do so with processes made as fair and straightforward as possible. Clearly, these are not easy or simple issues to address. We would urge the UK and Irish Governments to address these issues jointly, underpinned by the principles of simplicity, fairness and understanding of history (this again makes the point of the inappropriateness of dealing with these sensitive and important issues given the reluctance of the Home Office to recognise the particular status of Ireland and Northern Ireland). Any fees to be charged must not exceed the unit processing cost of the service. In addition, the British Nationality Act 1981 should be amended so that the right of future resumption of citizenship is a right for this group of people too, instead of something dispensed at the discretion of the Home Secretary.

Citizenship processes: final conclusion

22.The circumstances in which, and reasons why, Irish citizens seek to take up British citizenship, and British nationals seek to renounce their citizenship to become Irish-only, are very much island of Ireland issues. Yet the Home Office describes the process for people defined in law as Irish citizens who wish to naturalise as British as fair, because it is the same as the process for people of any third country. The Home Office must understand the historical connection between the United Kingdom and the Republic of Ireland, and the personal ties, relationships, geopolitical realities and movement of people that prevail between the two countries today. To that end, there is merit in the two governments reaching an accepted definition of the terms ‘to identify’, and ‘to be accepted as’ in Article 1(vi) of the Belfast/Good Friday Agreement. Differentials in definition add to the confusion. We recommend the two governments meet to resolve those inconsistencies. Citizenship issues will not be addressed to the satisfaction of all traditions whilst the Home Office treats Ireland and the rest of the world as an amalgam. Instead, we need bespoke, granular solutions. Abolishing the fee for Irish citizens to naturalise as British would be a start. The need to complete the ‘Life in the UK’ test seems irrelevant and offensive, and attendance at the citizenship ceremony should be optional. We agree in principle and in practice that a person of Northern Ireland should have to renounce proactively their deemed British citizenship if they wish to assert only Irish citizenship. On the premise of fairness and sensitivity, however, the process of renouncing British citizenship for those people of Northern Ireland who wish to do so should also be straightforward. The Home Office would be well advised to start from a deep understanding of and sensitivity to history, and a realisation that ‘one size fits all’ cannot work. There must be an approach which understands the interlocking relationships between Ireland and the United Kingdom, with quicker, simpler, cheaper citizenship processes that nevertheless continue to respect the significance of citizenship itself and the integrity of UK borders.

1 Terms of reference for the inquiry can be accessed here: Barriers to citizenship for NI residents scrutinised - Committees - UK Parliament

2 Article 1(vi), the Belfast Agreement

3 As part of the inquiry, the Committee also took oral evidence from the Northern Ireland Human Rights Commission, Lord Hay of Ballyore and Emma DeSouza. Evidence to the inquiry can be accessed here: Citizenship and Passport Processes in Northern Ireland - Committees - UK Parliament

4 Annex 2, Declaration on the Provisions of Paragraph (vi) of Article 1 In Relationship to Citizenship, the Belfast Agreement

5 Some people may already be entitled for British citizenship via descent. For example, see Q126 [Kevin Foster MP]. In some circumstances, those born before 1949 may make a claim for or already hold British subject status (people born in the Republic of Ireland on or after 1 January 1949 did not acquire British subject status or any other form of British nationality by birth).

7 The unit cost of a naturalisation application is estimated at £372 as of 6 April 2021. Home Office visa fees transparency data

9 Q43

11 Q36; see also Q60

12 Q122; see also Q133

16 The Common Travel Area and the special status of Irish nationals in UK law, briefing paper by the House of Commons Library

18 Article 1(vi), the Belfast Agreement. Article 1(vi) is part of the British-Irish agreement, the international treaty agreed by the governments of the United Kingdom and Ireland as part of the Belfast/Good Friday Agreement.

19 We cite this definition at paragraph 2 of this report; see also Annex 2, Declaration on the Provisions of Paragraph (vi) of Article 1 In Relationship to Citizenship, the Belfast Agreement

20 Section 1(1), British Nationality Act 1981. See also CPP0009 (UK Government)

21 CPP0010, Emma DeSouza

22 Derry woman’s US-born husband free to live in UK, court rules, The Guardian, 12 February 2018
Since 2012, the definition of “EEA citizens” has excluded those who are also British citizens, following a judgement in a previous case (“McCarthy”).

23 CPP0010, Emma DeSouza

24 CPP0009 UK Government

25 Paragraph 38, Judgment of the Upper Tribunal (Immigration and Asylum Chamber) in De Souza (Good Friday Agreement: nationality) [2019] UKUT 355

26 CPP0009 UK Government

27 CPP0010, Emma DeSouza

28 CPP0003, Committee on the Administration of Justice. See also Q2, NIHRC; Q86, Emma DeSouza

30 Q167. See also: Paragraph 36, Judgment of the Upper Tribunal (Immigration and Asylum Chamber) in De Souza (Good Friday Agreement: nationality) [2019] UKUT 355.

31 A Legal Analysis of Incorporating into UK Law the Birthright Commitment under the Belfast (Good Friday) Agreement 1998, Joint Committee of the Human Rights Commission of Northern Ireland and the Irish Rights and Equality Commission, completed by Alison Harvey, March 2020

32 CPP0005, HE Adrian O’Neill

34 PM Speech in Belfast: 5 February 2019. See also correspondence from the Rt Hon Theresa May MP relating to the Committee’s inquiry into citizenship and passport processes in Northern Ireland, 26 April 2021; Apply to the EU Settlement Scheme (settled and pre-settled status), Gov.uk (accessed June 2020), and EU Settlement Scheme, briefing paper by House of Commons Library

35 CPP0002, Northern Ireland Human Rights Commission

37 Paragraphs 13–15, Annex A, New Decade, New Approach Agreement

38 Q1

39 Q161. See also: Q89, Emma DeSouza.

41 For example, see: CPP0006, Mr Colin Murray and Dr Clare Rice; CPP0003, Committee on the Administration of Justice

42 Q6

43 CPP0009 UK Government; section 12 of the British Nationality Act 1981 provides for a British citizen of full age and capacity to renounce their British citizenship. They must satisfy the Secretary of State that they will acquire or hold another citizenship after renouncing - proving that renunciation would not result in statelessness.

46 Under Section 13 of the British Nationality Act 1981, a person is entitled to resume their British citizenship once in circumstances where they gave up their citizenship in order to enable them “to retain or acquire some other citizenship or nationality”.

47 CPP0007, Ulster Unionist Party

48 Q26, Northern Ireland Human Rights Commission

50 See CPP0003, Committee on the Administration of Justice, CPP0010, Emma DeSouza

51 Paragraphs 55 - 56, Judgment of the Upper Tribunal (Immigration and Asylum Chamber) in De Souza (Good Friday Agreement: nationality) [2019] UKUT 355 https://tribunalsdecisions.service.gov.uk/utiac/2019-ukut-355




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