Emma DeSouza personal photo
Fundamental questions over the enforceability of the 1998 Good Friday agreement have been raised in a test case over the residency rights of an American who is married to a Derry woman.
Emma DeSouza found herself at the centre of a legal battle after her application in 2015 for a residence card for her US-born husband, Jake DeSouza, was rejected.
Any EU citizen living in the UK in accordance with EU regulations can bring their family with them. But the Home Office initially turned down the application on the grounds that Emma DeSouza was British, even though she had never carried a British passport.
The Home Office told Mr DeSouza the only way it could deal with his case was for his wife to “renounce her status as a British citizen”.
DeSouza challenged that decision on the grounds that his wife had the right to be treated as an Irish citizen under the Good Friday agreement and was therefore an EU citizen exercising her freedom of movement rights.
The first-tier immigration and asylum tribunal ruled in his favour, saying that under the terms of the Good Friday agreement people of Northern Ireland were in a unique position within the United Kingdom and could identify themselves as Irish or British, or both.
Appealing against that decision, however, Tom McGleenan QC for the Home Office argued that not all the contents of the agreement had been incorporated into UK law and it did not supersede the 1981 British Nationality Act.
The initial tribunal had made a “fundamental and egregious error”, McGleenan said. Mrs DeSouza had held British citizenship since birth “so she is not exercising treaty rights” and therefore did not fit into the category of being an EEA national.
“The mere act of identification does not change citizenship acquired at birth,” said McGleenan. “There’s no administrative formalities for the recording of that change.
“[Otherwise] a person born in Northern Ireland would be stateless unless they elected for one citizenship or another.” Until DeSouza formally renounced her British citizenship she could not invoke her EEA treaty rights…”
The judges hearing the case, Mr Justice Lane and Jeremy Rintoul, were in a London courtroom.
They reserved judgment until a later date.
When Leo Varadkar and others say citizens’ rights in the North have to be guaranteed over Brexit, they tend not to be specific. The GFA declaration on identity of the right to chose to be “British Irish or both” sounds ideal and is surely right in principle. But what does it mean in practice?
The DeSouza case shows that British and Irish citizenship are not merely interchangeable except in the case of choice of passport for the individual. If the court finds for de Souza and new legislation is required, how would it work? If Northern Ireland is to be a distinct territory for citizenship, does it not set up another form of backstop and what are the implications for the common travel area?
If it rules against, will it become a bone of contention between the two governments and subject to endless litigation?
The question extends well beyond the right of entry to the UK, as the basic legal entity for Northern Ireland. The future of a host of EU rights remains to be decided.
Arising from the DeSouza case, is it argued that anyone in the world eligible for an Irish passport because they have one grandparent born on the island should be able to claim right of entry into the UK for a spouse or close family member? Or if it is to be restricted to people in Northern Ireland how is eligibility to be defined? Birth provable by a birth certificate? Residency? If so for how long? Interchangeablity was clearly to aim of the GFA in happier days unclouded by Brexit. Now bureaucratic intervention and legal and political wrangling looms.
By coincidence here is a case of Dublin playing hardball against a Northern Ireland woman by deporting her US husband back to the States.
A father of three was arrested and deported from Dublin Airport while attempting to visit his children in the UK.
Ryan Volrath, an American citizen who currently lives in Wisconsin, met and married his Northern Irish wife 10 years ago and she gave birth to two of their children in America.
His wife has since returned to her home town of Omagh and given birth to their third child, however Mr Volrath has remained in the US as he does not currently meet the financial threshold needed to apply for residency in the UK.
Mr Volrath had planned a trip for 10 days to see his children when he was detained on Sunday evening in Dublin Airport when asked by immigration officials about the purpose of his visit.
Despite Mr Volrath having a return flight booked and having stated his intention to return home, he was arrested by gardai and taken to Clontarf Garda station in Dublin where he spent the night before being deported early the next morning.
Solicitors representing Mr Volrath said they believe that the so-called “hostile environment” immigration stance being implemented by the UK and current Brexit tensions are the reasons for the deportation.
“It is hard to depart from the theory that such unwarranted and unreasonable removals are closely tied with the UK’s pending exit from the European Union, with the Irish authorities now operating a much more rigid and aggressive regime regarding entry to the North of Ireland, via Dublin Airport,” solicitor Sinead Marmion said.
“The UK’s pervasive hostile environment policy is being mirrored in the Irish state. This case, if left unchallenged, would set a very dangerous precedent for future individuals who seek to return home and visit their children and families.
“In light of the reasons we have been provided to date, we remain of the view that the decision to remove Mr Volrath on Monday morning was unlawful and we have firm instructions to challenge the validity of same.
“It is still very much our position that the Irish state’s actions have infringed our client’s human rights and we have firm instructions to initiate proceedings against the Irish state for his removal.
“These proceedings will seek to have this incident expunged from his records, and to claim damages for his unlawful detention and infringement of his right to family life.”
A spokesman from the Department of Justice said: “The Irish Naturalisation and Immigration Service does not comment on individual cases.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London