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Emma DeSouza and her husband, Jake. Emma DeSouza
Emma deSouza

Court case begins on whether the North's citizens can self-identify as Irish

Emma DeSouza has won three court cases against the UK’s Home Office, which has argued that she is a British citizen.

A WOMAN FROM Northern Ireland who is caught up in a legal battle with the UK government over whether she is a British or Irish citizen has said that she fears the consequences if the Home Office wins the court case.

Emma DeSouza is arguing that her US husband Jake should be permitted residency in Northern Ireland under an EEA residence card, as she is an Irish citizen. The Home Office has refused Jake’s application, arguing that his spouse is a British citizen.

Under the Good Friday Agreement, citizens have the right to identify as British or Irish or both. But despite the UK government being a co-guarantor of the Good Friday Agreement, the Home Office has argued that it has no provision in its own domestic law for such a mechanism, and so all citizens in Northern Ireland are automatically British.

As she was classed as a British citizen, but is an Irish passport holder, the UK government defined her as having dual citizenship, and so her husband cannot apply for an EEA card and she cannot go through the UK immigration system as an EU national. On this basis, her husband’s application for a residence card was refused.

DeSouza says  that the Home Office will argue that the Good Friday Agreement means a person can “identify” as Irish, but is still legally a British citizen.

She said that if the Home Office wins this legal case, it could subsequently revoke any EEA residencies granted to relatives of Northern Irish citizens who had said they were Irish.

“The great thing [about this court hearing] is that the Home Office has to go public with their arguments,” she told ahead of today’s case.

I counted how many times they said in their skeleton argument that ‘the respondent’s wife is a British citizen’, and they said it 19 times.

Previous tribunals

Three judges have already ruled in the DeSouzas’ favour; this is the third appeal from the UK government to have the couple’s case overturned. The appeal was lodged in 2017, but has been delayed several times over the past two years. 

In its original refusal letter to Jake DeSouza, the Home Office said that “the Good Friday Agreement recognised the right of the people of Northern Ireland to identify themselves and to be accepted as Irish or British or both. British nationality law defines which persons with a connection to Northern Ireland are British citizens, and Irish legislation specifies which people are Irish nationals.”

In line with the 1998 Good Friday Agreement, your spouse is entitled to renounce her status as a British citizens and rely on her Irish citizenship, but until that status is renounced she is as a matter of fact a British citizen. 

The judge of a first-tier tribunal ruled in October 2017 that this was incorrect, stating that the Good Friday Agreement changed immigration law: “He or she is permitted to choose their nationality as a birthright. Nationality cannot therefore be imposed upon them at birth.”

The hearing is due before a three-judge panel in the upper tribunal in the Belfast’s immigration courts at 11am today (it was originally meant to start at 10am, but was pushed back).

Taoiseach Leo Varadkar has previously said that the “UK has got it wrong in the DeSouza case” and that “the Good Friday Agreement is explicit on this matter – the people of Northern Ireland are entitled to be British or Irish or both.”

The Department of Foreign Affairs will have an observer in the courtroom to watch today’s proceedings.

“Their objective is to make me leave that courtroom as a British citizen,” Emma DeSouza said, “which would mean my husband would have to leave the country – if we lose, there’s every chance that they will push to have him leave.”

DeSouza said that the UK government’s legal argument is effectively “rewriting” the Good Friday Agreement, and makes the people in Northern Ireland “harden” their identities rather than the opposite. 

If the Home Office is successful, Northern Ireland’s Irish citizens will be completely apart and adrift – it’s creating different tiers of Irish citizens, and effectively rewriting the Good Friday Agreement. 

DeSouza says that in the context of Brexit, the UK government has given constant assurances that it’s “committed to the Good Friday Agreement”, but at the same time, it is arguing with her in court that it’s not relevant to British domestic law.

It makes you think what other provisions of the Good Friday Agreement they’ll throw by the wayside and how much can they get away with in watering down the Good Friday Agreement.

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