NI-born people are considered British until they renounce citizenship, court rules

Derry woman Emma DeSouza, who identified as an Irish citizen, vows to fight on

Emma de Souza and her husband Jake at Belfast High Court in September. Photograph: Colm Lenaghan/Pacemaker.

Emma de Souza and her husband Jake at Belfast High Court in September. Photograph: Colm Lenaghan/Pacemaker.

 

A woman who lost a challenge against a Home Office ruling that she is British by birth has vowed to continue her legal battle.

Emma DeSouza, from Co Derry, accused the British government of failing to honour the spirit of a commitment in the Belfast Agreement that people from Northern Ireland could identify as British, Irish or both.

Ms DeSouza, who insists she is Irish and has never been British, claimed the Home Office’s “hard-line” approach was an attempt to restrict access to EU entitlements in Northern Ireland post-Brexit.

The Home Office won an appeal on Monday against an immigration tribunal case that had originally upheld Ms DeSouza’s right to declare herself as Irish, without first renouncing British citizenship.

The long-running case centres on her application for a residence card for her US-born husband Jake.

After the Upper Tribunal ruling on Monday, Ms DeSouza, from Magherafelt, pledged to take her case to the Court of Appeal in Belfast.

“After four years it’s safe to say we won’t be lying down anytime soon,” she said.

“During that time we have had a lot of personal losses, we have lost family members, we have lost time with our families, we have lost opportunities, we have lost the first four years of our marriage, so we are certainly not going to go quietly into night with this decision — a decision that really goes against the spirit and purpose of the Good Friday Agreement.”

In 2015, Ms DeSouza made the residence card application identifying herself as an Irish citizen. The Home Office rejected it on the grounds that it considered her to be a British citizen.

Renounce

Officials told her she could either reapply identifying herself as British, or renounce her UK citizenship and reapply as an Irish citizen.

Ms DeSouza argued that she never considered herself British, so was unable to renounce citizenship she never had.

During the stand-off, the Home Office retained her husband’s passport for two years — a move that forced him to quit a music band, as he could not tour, and prevented him from attending his grandmother’s funeral in the US.

Ms DeSouza took a legal challenge against the Home Office and won, with a judge at a First Tier Immigration Tribunal ruling in 2017 that she was an “Irish national only who has only ever been such”.

The Home Office appealed against that decision at an Upper Tribunal hearing earlier this year. Those judges found in its favour.

Government lawyers argued that the British Nationality Act 1981 was the relevant legislation — not law flowing from the Belfast Agreement, which was signed on Good Friday, 1998.

They highlighted that the provisions on citizenship outlined in the agreement, which was struck between Stormont parties and the UK and Irish governments, had not been incorporated into the corresponding piece of domestic legislation linked to the peace treaty, the 1998 Northern Ireland Act.

The government said the British Nationality Act ruled that anyone born in Northern Ireland was automatically British, until such time as they renounce that citizenship.

On Monday, Ms DeSouza accused the UK Government of failing to implement the provisions of the Belfast Agreement into UK domestic law.

She said her case will have implications for EU citizens post-Brexit.

“Brexit brings this into sharp focus because the automatic conferral of British citizenship on Irish citizens is being used as a way to restrict and remove their EU rights and entitlements,” she said.

Hard-line approach

“This right that I am exercising is the right of an EU citizen — an Irish citizen in the United Kingdom — but with this automatic conferral of British citizenship we can’t access that right, we also can’t access things like the EU settlement scheme.

“So there are a lot of issues around how an Irish citizen in Northern Ireland will be able to access their EU rights and entitlements.

“In many ways you have to wonder if perhaps this hard-line approach from the British Government is so they can find a way to remove and restrict access to EU rights and entitlements in Northern Ireland, because no doubt it is complicated for them to deal with the fact that there are 1.8 million people in Northern Ireland with the birth right to Irish citizenship and, through that, EU rights and entitlements.

“And I believe a ‘do or die’ Brexit government is not interested in protecting the EU rights of people in Northern Ireland.”

Ms DeSouza has attracted cross-community support for her challenge.

At a press event in Belfast on Monday, she was joined by Sinn Féin senator Niall Ó Donnghaile, Alliance deputy leader Stephen Farry, SDLP MLA Claire Hanna and former Ulster Unionist Party leader Mike Nesbitt. Mr Nesbitt said he was attending in a personal capacity.

Ms DeSouza said she and her husband were not politically active until their application was rejected.

“We have had to become active and been forced into a situation where we have to keep every day fighting for this right under the Good Friday Agreement,” she said.

“It’s certainly not somewhere where we could have seen ourselves going four years ago when we got married.” – PA