Ms Una Boyd:

We are very grateful to the Joint Committee on Justice and Equality for the invitation to attend today. As the committee may know, the Committee on the Administration of Justice, CAJ, is a Belfast-based independent human rights organisation. We co-convene the Equality Coalition with UNISON, and we are the NGO partner in BrexitLawNI, a joint project with the law schools of Queens and Ulster Universities. I run the immigration project at CAJ which focuses on the impact of Brexit on the immigration regime, and through this, rights and equality in Northern Ireland.

We are all familiar with the background of the DeSouza case. In refusing an immigration application the Home Office revealed its policy of treating all persons born in Northern Ireland as automatically British, stating that they can become solely Irish only through the process of renouncing that British citizenship for the price of £372. The reason for this policy is that most dual British and EU nationals are excluded from exercising European Economic Area, EEA, family reunion rights, so this policy comes down to preventing people from bringing family to the UK. This policy is not compliant with the Good Friday Agreement, which recognises the birthright of all the people of Northern Ireland to identify themselves and be recognised as British, or Irish, or both, and this is a treaty-based duty on both states.

When this issue was raised, instead of taking action to ensure compliance with the Good Friday Agreement, the UK Government instead pursued litigation in which it defended its choice to ignore its obligations under the agreement. A review into the matter, promised by former Prime Minister, Mrs. Theresa May, had no terms of reference or timeframe, and has never come to light, and the UK Government continues to implement this policy. This will have a wide impact, particularly in the face of Brexit. The policy means that Northern Ireland born Irish citizens will be among the only EU citizens in UK jurisdiction who are excluded from the EU settlement scheme, which is the domestic mechanism allowing EU citizens to retain legally enforceable EU rights under the citizens rights provisions of the withdrawal agreement. This also creates tiers of Irish citizenship, where an Irish citizen who is born in the Republic or even elsewhere, can apply to the scheme, but an Irish person born in Northern Ireland cannot. Take the example of neighbours born in Donegal and Derry, respectively, living in the UK. Both are Irish citizens, but both will have totally different rights protections post-Brexit. The policy makes a mockery of the citizenship provisions of the Good Friday Agreement, undermining trust in the peace agreement and causing tension among communities. Emma and Jake were successful in challenging the Home Office decision at the First-tier Tribunal. The Home Office chose to appeal this to the Upper Tribunal, and in the recent decision the Upper Tribunal overturned the First-tier Tribunal decision upholding the original Home Office decision.

In its appeal, the UK Government advocated a reinterpretation of the citizenship provisions of the Good Friday Agreement, which is not in good faith in accordance with the ordinary meaning of the terms of the Good Friday Agreement as a treaty. The UK, downplaying the duty on both states to accept Northern Ireland born persons as Irish, or British, or both, instead sought to reinvent the provision as one separating the concept of identity from the legal bond of citizenship. The UK Government argued that the provision of dual nationality and the option of renouncing British citizenship equate to compliance with the Good Friday Agreement.

The doctrine of parliamentary sovereignty and duality approach means that on signing the British-Irish Agreement, the UK should have then legislated to bring its nationality law in line with the Good Friday Agreement's citizenship provisions. The UK failed to do this, resulting in the citizenship provisions not being directly enforceable in the domestic courts. Emma and Jake face an uphill battle overcoming this through UK courts, and the process of litigation also carries huge personal and financial burdens for both of them.

The need for action beyond the courts is becoming increasingly clear. DeSouza has highlighted the need for urgent legislative reform of the British Nationality Act to give effect to the Good Friday Agreement. The Northern Ireland Human Rights Commission, NIHRC, has recommended that the British Nationality Act is amended to reflect the birthright provisions, and I believe it has commissioned a report on this which should be published soon.

In the meantime, the Home Office could amend its policy to allow for Northern Irish-born Irish citizens to assert their right to Irish citizenship only, in line with the Good Friday Agreement. We know it can do this because this was its policy prior to 2012. The Northern Irish Human Rights Commission has also recommended that a right to be British or Irish, or both, is enshrined as a right in the Good Friday Agreement-mandated Northern Irish Bill of rights, which the UK is yet to discharge its duties and legislate for. I thank the committee.