Explainer: What is the Emma DeSouza case about?

Ruling means NI people are British citizens under UK law even if they identify as Irish

What is the Emma DeSouza case about?

It concerns the right of people in Northern Ireland to be considered Irish from birth under the terms of the 1998 Belfast Agreement, also known as the Good Friday agreement, the international accord that props up the Northern Ireland peace process.

What does the agreement say about this?

It recognises the birthright of people in Northern Ireland to identify and to be accepted as Irish or British, or both, as they may chose, and accordingly confirms that their right to hold both British and Irish citizenship is accepted by both the British and Irish governments and would not be affected by any future change in the status of Northern Ireland.

Who is Emma DeSouza?

Emma DeSouza is from Magherafelt in Co Derry and applied for a residence card for her US-born husband Jake to live and work in Northern Ireland in 2015 - the same year they were married in Belfast. She identified herself as an Irish citizen in the application.

Why did she bring a legal case?

She took the case after the UK Home Office rejected the application on the basis that it considered DeSouza a British citizen because she was born in Northern Ireland. She was told she could reapply identifying herself as British or renounce her UK citizenship and reapply as an Irish citizen. She claimed she never considered herself British so she could not renounce a citizenship she never had. She later said that she had “discovered that my lifelong Irish identity is evidently considered secondary to an unclaimed British identity.”


What was this week’s ruling about?

DeSouza lost an appeal taken by the Home Office against an earlier immigration tribunal ruling that initially found in her favour. The First Tier Immigration Tribunal ruled in 2017 that she was an “Irish national only who has only ever been such.” The Home Office appealed this decision to the Upper Tribunal and won this week.

What does the ruling mean?

It means that people born in Northern Ireland remain British citizens under UK law even if they identify as Irish. The UK government’s lawyers argued successfully that the British National Act 1981, not law flowing from the 1998 Belfast Agreement, covered this.

But does this not contravene the 1998 Belfast Agreement?

DeSouza argues that it does. She has accused the British government of failing to honour the spirit of a commitment in the 1998 peace agreement that people born in Northern Ireland could identify as British, Irish or both.

How has anomaly arisen between the law and the peace agreement?

DeSouza along with human rights campaigners and commentators, legal and otherwise, in Northern Ireland have argued that successive British governments have failed to legislate to give full effect to the peace agreement.

Does any of this have anything to do with Brexit?

It is a separate matter but related to Brexit given that the ruling comes against the backdrop of uncertainty around how Northern Ireland citizens will be treated after the UK leaves the EU given that people in Northern Ireland who identify as Irish, in turn, consider themselves EU citizens. DeSouza and human rights advocates in Northern Ireland claim that Brexit complicates matters because the automatic conferral of British citizenship on Irish citizens could be used to restrict and remove their access to EU rights and entitlements.

Simon Carswell

Simon Carswell

Simon Carswell is The Irish Times’s Public Affairs Editor and former Washington correspondent