De Souza's case was dismissed today by the UK Upper Tribunal- and the decision looks right to me. It respects the Good Friday Agreement & the roles of national Parliaments in changing nationality law. I think its being misrepresented.
Thread 1/
Thread 1/
(Disclaimer: I'm the barrister who unsuccessfully argued the crucial McCarthy case where EU Court of Justice decided dual Irish-British nationals who've never lived outside UK don't normally have EU law rights to family reunion.) 2/
Upper Tribunal judgment is here tribunalsdecisions.service.gov.uk/utiac/ea-06667… . Its short and clear, and easy enough to read. 3/
We didn't know what the De Souza's *legal* argument was before, now we do:
1. UK's Northern Ireland Act 1998 gives effect in UK law to GFA statement that people of Northern Ireland have right to identify as Irish only. 4/
1. UK's Northern Ireland Act 1998 gives effect in UK law to GFA statement that people of Northern Ireland have right to identify as Irish only. 4/
2. Good Friday Agreement right to identify as Irish only has effect that people of Northern Ireland only become British citizens if they consent to that. 5/
3. Therefore British Nationality Act 1981 which - otherwise - makes a British citizen of every child born in UK to a British or Irish parent, only applies to a child born in N Ireland if they "consent to identify as such": para. 34 of judgment 6/
Upper Tribunal rejected De Souza's case on the crucial first point - because the Northern Ireland Act 1998 doesn't amend the British Nationality Act. The GFA can't do that itself, because only British Parliament - not international treaties - can change UK domestic law. 7/
Upper Tribunal's decision that only Parliament - not the Crown - can change UK law is a fundamental constitutional rule. So point 1 of DeSouza's claim was always a non-runner. It's up to Westminster - not judges - to choose how to implement GFA. 8/
But Upper Tribunal would also have rejected points 2 & 3 - that GFA requires UK to only make Northern Ireland born children British citizens if they consent to that. Upper Tribunal couldn't see how that would work. 9/ 
And - if children born in N Ireland had to consent to be British citizens - didn't they have to consent to be Irish too? So are they stateless until they consent, wondered Tribunal? 9/
Finally, the Upper Tribunal points out that people of Northern Ireland who do not wish to be British citizens can renounce their citizenship. No Irish citizen is legally required to remain a British citizen. 10/
The Tribunal's legal reasons for dismissing DeSouza's case aren't new or difficult. They're pretty obvious. I set them out here in a thread last month before the judgment as given. 11/
The Tribunal's rejection of the De Souzas' argument upholds Parliamentary sovereignty and deliberate decisions of the Irish and British Governments that made the GFA *not to include* any requirement to change British nationality law. 12/
If Tribunal had upheld De Souza's argument, it would have produced chaos. Home Office could have argued other people didn't count as British citizens because they hadn't "consented" to being British (even though there was no mechanism for that). It was completely unworkable. 13/
Upper Tribunal decision isn't a statement that principles of the GFA have been fully implemented by UK. The UK Parliament could certainly change UK law, say, so that renunciation of citizenship doesn't require a person to imply that they consented to British citizenship. 14/
Maybe UK citizenship could be changed more fundamentally. But this would need very careful discussion so that vulnerable people don't lose rights. There are British politicians who would jump on this as a chance to take away citizenship from people who want it and need it. 15/15
