Peter Weir: Automatic UK citizenship for Northern Ireland people is at risk from De Souza case

The case has been taken by Northern Irishwoman Emma De Souza, seeking permanent residence for her American husband, through the more generous immigration provisions for non British EU citizens.

To prove this she is challenging the automatic British citizenship conferred by the Home Office, and central to this is the interpretation of the Belfast Agreement and what should arise out of.

This is not some obscure legal point, as the implications of a successful challenge is that people from Northern Ireland, uniquely within the UK, would make British citizenship a choice rather than the automatic default.

The legal challenges highlights a massive over reach by nationalists in their interpretation of the Belfast Agreement, at its most benign showing misinterpretation of its content, intentions and surrounding law on the subject.

I write with some first knowledge on the subject as someone who was present at the negotiations from day one until their conclusion on Good Friday 1998, and who has never looked at the Belfast Agreement through rose tinted glasses.

The misinterpretation/ mission creep is threefold.

Firstly, it conflates the issues of identity and citizenship.

These are two completely different concepts, with identity reflecting a political and cultural ethos and aspiration, whereas citizenship is a legally based entitlement enshrined in legislation.

In effect identity is a political designation without the same legal implications.

This is reflected in the Belfast Agreement where the provisions are separated out, yet the legal case relies heavily on the commitment on identity as a proxy for citizenship entitlements.

Secondly, it deliberately is seeking to change the law, which is neither needed or required based upon a non existent commitment which is missing from the Belfast Agreement.

Citizenship is based upon legislative provision, and in particular Section 1 of the British Nationality Act 1981, which among other things confers British citizenship on anyone born in the UK to at least one least one British citizen parent, with no distinction made for Northern Ireland.

This gives automatic rights, but does not trap Mrs De Souza or others in forced citizenship as the act also gives a right to any individual to renounce British citizenship, and by definition to seek citizenship of an other country.

It is notable that Mrs De Souza didn’t take this route that was open to her.

There is no explicit or implicit commitment in the Belfast Agreement to change the law on citizenship, and this is evidenced not simply by the lack of reference in its text, but also to the subsequent Northern Ireland Act 1998, which gave legal effect to its provisions.

Through this act the then government enacted every commitment they had made in the agreement including aspects that were difficult or repugnant, including prisoner releases.

The lack of any change in citizenship law within this act is telling, reflecting the fact that there was no intention to alter provisions.

Finally, the claims in the case do not reflect either the reality of what happened in the negotiations around the Belfast Agreement or the intentions of its participants.

As someone who was part of the UUP talks team throughout the entire process, I can categorically state that there no attempt to alter the automatic right of British citizenship in the talks, nor would any have been countenanced.

I am no fan of either the Belfast Agreement, nor the approach taken by David Trimble, but the over riding strategy that he took was to place the consent principle at the heart of any agreement, both in terms of obtaining recognition of consent and the strengthening of any commitment.

This ultimately took priority for Trimble over a range of other issues such as clarity on decommissioning commitments, prisoner releases or the future of policing.

Whether too high a price was therefore paid is a matter of debate, but what was undoubted clear is that no unionist would have signed up to changes which not simply would have failed to enshrine consent but rather gone diametrically against this central objective.

While Mrs De Souza’s aim of easing the path to being reunited with her husband on a permanent basis is reasonable, the legal pathway being pursued is not.

If successful the implications would be detrimental to the rights of British citizens throughout Northern Ireland, leaving us in a constitutional half way house.

The case is based on a perverse interpretation of both the law and even the Belfast Agreement, and shows again that for some nationalists only lip service is being paid to the principle of consent.

l Peter Weir, a barrister, is DUP MLA for Strangford