Emma DeSouza: None of us benefit from the Home Office’s position

In 2015, Emma DeSouza married her American husband, Jake, in a ceremony in Belfast. Later that year, the couple applied for an EEA residence card. Their application relied on the 2006 EEA Regulations and was grounded in Mrs DeSouza’s Irish citizenship. In September 2016, to the couple’s surprise, their application was declined.

In giving its reasons for refusing Mr DeSouza’s residence card, the Home Office referred to Mrs DeSouza’s citizenship. She was born in Northern Ireland and, in the Home Office’s opinion, was British as well as Irish. She could not not rely on the EEA Regulations because they did not apply to dual nationals. Mrs DeSouza would have to apply under the much stricter UK Immigration Rules.

Mrs DeSouza spoke to her solicitor and discovered that there was a very simple solution to her problem: revoke her British citizenship. If she did this, the couple could apply for an EEA Residence Card.

As Emma writes in a Medium post, this wasn’t an easy fix:

“I discovered that my lifelong Irish identity is evidently considered secondary to an unclaimed British identity. I have always believed throughout my life that I was Irish; it’s not a choice, it’s not a decision – it is simply who I am. I haven’t held a British passport or claimed British citizenship – yet there I was; in an unprecedented situation where this additional and entirely imposed citizenship was stripping me of my EU Right to Family Life. Our application for an EEA Residence Card was met with a letter of refusal, accompanied by a deportation order.”

Feeling very strongly that the Home Office was wrong, the DeSouzas appealed the Home Office’s decision and won. In an extraordinary judgment, the judge referred to the Good Friday Agreement:

“The constitutional changes effected by the Good Friday Agreement with its annexed British-Irish Agreement, the latter amounting to an international treaty between sovereign governments supersede the British Nationality Act 1981 in so far as the people of Northern Ireland are concerned. He or she is permitted to chose their nationality as a birthright. Nationality cannot therefore be imposed on them at birth.”

At the time of writing, the Home Office is deciding whether to appeal.

The British Irish Agreement, annexed to the Good Friday Agreement, states that the everyone in Northern Ireland has the right to be ‘British, Irish or both’. The clause is important because it acknowledges both traditions in Northern Ireland and the identity of everyone in the country. It recognises the nuances as well. Some people are British. Some are Irish. A lot of people are both.

Despite the Agreement’s declaration, the fact is that everyone in Northern Ireland, republican, nationalist, unionist and loyalist, is a British citizen by law. This has been the case since before the Good Friday Agreement, enshrined in the British Nationality Act 1981.

Anybody working in immigration law in Northern Ireland has known about this curious, problematic legal situation for a long time. It was only a matter of time before someone challenged the status quo.

The situation doesn’t benefit anyone. British citizenship is assumed for people who do not want it. British Citizens in Northern Ireland must pick up a pen and sign part of their identity away if they want to be with loved ones. There’s clearly a conflict here with the Good Friday Agreement.

You could be dismissive about this, as many have, and argue that there is a difference between citizenship and identity. I’d say there’s a very fine line between the two.

The road to the current position is a difficult one, impossible to recount in full in an article. It begins with the case of McCarthy in 2011. That ruling led to the EEA Regulations being amended in 2012. That amendment excluded dual nationals who also hold British citizenship from being classed as EEA Nationals. Northern Ireland has given the Home Office a headache for a long time.

The DeSouza case is in the news again because of the EU Settlement Scheme. Mrs DeSouza noted on Twitter that Irish citizens in Northern Ireland can’t apply to the scheme because they are seen as having British citizenship. The change in the law is specific to the Settlement Scheme but it reflects the long held position of the government.

The issue goes further than just citizenship. Tied in to the EU Settlement Scheme is the retention of certain EU rights. One of these rights is the ability to apply for a family permit to bring family members to the UK post Brexit. Irish Citizens in the Republic of Ireland may have the right to apply for the permit but Irish Citizens in NI will not. Two tiers of Irish citizenship are being created.

The retention of EU rights post Brexit is tied to Irish citizenship. In the future, Irish citizens in Northern Ireland may have more rights than their British neighbours. Another inequality is being created, another unfairness. One could argue that this is the logical conclusion of Brexit and the United Kingdom’s choice to leave the EU. I’d say our equality laws are important and either they apply to everyone or they don’t.

It’s going to be difficult to establish a solution to this problem. Do we create a vacuum where none of us are British or Irish unless we declare? Should the Home Office create a separate legal situation for people in Northern Ireland post Brexit to the denigration of people in England, Wales and Scotland? Tinkering with British nationality laws and applying them differently to British Citizens in Northern Ireland could cause an uproar. Perhaps the Home Office should go back to its pre 2012 position.

One thing is sure, a race to the bottom on this issue helps no one. The government has navigated our complicated identity politics with the tact of a drunk tourist in The Crown bar, loudly asking people if they’re Protestant or Catholic while everyone averts their eyes. The law as it stands can’t continue. We all should support Emma. If she succeeds, we all do.

Sarah Creighton

Sarah is a writer and lawyer from Belfast.