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Emma and Jake DeSouza in Belfast today Niall Carson/PA

'It's going to be difficult to establish a solution to the problem that the DeSouza case creates'

The issue about more than citizenship and identity, writes Sarah Creighton.

A version of this article first appeared on Slugger O’Toole 

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 Emma’s Irish citizenship. In September 2016, to the couple’s surprise, their application was declined.

In giving its reasons for refusing Jake’s residence card, the Home Office referred to Emma’s citizenship. She was born in Northern Ireland and, in the Home Office’s opinion, had both British and Irish citizenship. She couldn’t rely on the EEA Regulations because they don’t apply to dual nationals who are also British citizens. The Home Office said Emma would have to apply under the much stricter UK immigration rules.

Emma 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 choose their nationality as a birthright. Nationality cannot therefore be imposed on them at birth.”

The Home Office appealed the decision of the lower courts. Today, the Upper Tribunal ruled against the DeSouzas. In a carefully worded and detailed judgment the court ruled that Emma DeSouza is, “at present, a British citizen at the current time.”

How was this decision reached? 

To understand the reasoning behind the judgement, we have to look at international law.

The British Irish Agreement, annexed to the Good Friday Agreement, states that 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.

desouza-court-case Emma and Jake DeSouza arrive with political leaders for a press conference in Belfast today Niall Carson / PA Niall Carson / PA / PA

The problem is that the clause in the British Irish Agreement that states that people in Northern Ireland have the right to be ‘British, Irish or both,’ hasn’t been implemented into domestic law. The British-Irish Agreement on its own can’t amend the British Nationality Act 1981. The reason for this is grounded in long standing principles of international law and the case law surrounding the royal prerogative.

As the Upper Tribunal stated:

“It would infringe upon parliamentary sovereignty if, by entering into a treaty with a foreign state, the executive branch could thereby change the domestic law of the United Kingdom.”

In considering its judgement, the Upper Tribunal referred to the UK Supreme Court judgment in Miller. In that case, court ruled that the British government couldn’t issue Article 50 without a parliamentary vote.

It’s being reported that lawyers for Emma DeSouza and her husband are considering appealing the decision of the Upper Tribunal. It’s possible that this case could go all the way to the Supreme Court.

How do you solve this? 

It’s going to be difficult to establish a solution to the problem that the DeSouza case creates. Do we create a vacuum where none of us in Northern Ireland 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 will cause an uproar and could cause a problem with the Good Friday Agreement.

What is clear is that 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 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 issue is about more than citizenship and identity. Last year the British government launched the EU Settlement Scheme, an application process where EU citizens can register to remain in the UK post Brexit. 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. As a consequence, 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.

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 is a solicitor and writer from Belfast

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