LAST WEEKEND’S STORMONT deal aimed to provide a lot of solutions for the people of Northern Ireland – including for the case of Derry woman Emma DeSouza.
But although it’s promising a solution in the immigration problems faced by DeSouza, the issues around how the UK government views the legal clout of the Good Friday Agreement, and how they apply British domestic law on citizens in Northern Ireland still remains to be resolved.
The case is two-pronged: the immigration loophole then kicked up questions around the UK government’s legal commitment to the provisions enshrined in the Good Friday Agreement, the latter of which has been, by far, the bigger concern for campaigners.
DeSouza won a case against the UK’s Home Office in 2017 after it deemed she was British when her US-born husband Jake applied for a residence card, with the judge in that tribunal arguing that the Good Friday Agreement “supersedes” British domestic law: “Nationality cannot therefore be imposed upon them at birth.”
But on 14 October, an immigration tribunal upheld an appeal brought by the Home Office, and argued in its decision that “a person’s nationality cannot depend in law on an undisclosed state of mind”.
This decision is now being appealed by DeSouza; the Irish government also supports the DeSouzas’ argument, with Taoiseach Leo Varadkar stating in the Dáil that Emma DeSouza “is an Irish citizen”.
After the couple were married in July 2015, Emma’s US husband Jake applied for an EEA residence card through the UK government in order to live in Northern Ireland.
An EEA residence card is valid for those who are ‘extended’ family members of people from Switzerland and the EEA (an international agreement between EU countries, and Iceland, Liechtenstein and Norway).
But the Home Office refused Jake’s application, arguing that because DeSouza was legally recognised as being British, her husband couldn’t apply for the EEA card.
This highlighted that there is no provision in British law to allow citizens in Northern Ireland to legally identify as Irish from birth; they are legally classed as a British citizen until they renounce their British citizenship, according to the UK government.
But DeSouza has always self-identified as an Irish citizen, and has only ever held an Irish passport.
She and other campaigners have argued that this approach contravenes the Good Friday Agreement, which claims in Article 1 (iv)/(vi) to recognise:
…the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.
As Emma DeSouza outlined to TheJournal.ie:
“The crux [of it is that there are] two conflicting interpretations of the birthright provisions of the Good Friday Agreement.
The Irish Government believe it amounts to a legal right to identify and be accepted as Irish or British or both, and subsequently made changes to Articles 2 and 3 of the Constitution to enable that choice.
[The British government] by contrast, did nothing to enact the birthright provisions of the Good Friday Agreement into domestic UK law and interprets the right to identify as Irish as akin to being a GAA supporter or country music fan, minimising both the scope and intent of the provision.
On Thursday night, the Stormont deal was agreed on. It now forms the foundation for a power-sharing executive between the DUP and Sinn Féin to resume in Northern Ireland after being on hiatus for three years.
The UK Government said it would “change the rules” governing how the people of Northern Ireland bring their family members to the UK, which was the reason why DeSouza and her husband took the case.
The proposal says that the change would mean that “eligible family members of the people of Northern Ireland will be able to apply for UK immigration status on broadly the same terms as the family members of Irish citizens in the UK”.
This immigration status will be available to the family members of all the people of Northern Ireland, no matter whether they hold British or Irish citizenship or both, no matter how they identify.
DeSouza told TheJournal.ie that this could provide Northern Ireland with a different set of family immigration rules to the UK, and may be “one of those very rare occasions where we see a levelling up of rights”.
Everyone in Northern Ireland could potentially be saved from the UK’s bureaucratic and costly domestic immigration policies, and will have access to a more generous approach whether they identify as Irish or British or both.
“Detail is required in order to assess the full extent of the commitment and with the real-time negative effect this policy currently has on citizens across Northern Ireland; we’ll be looking for a quick turn around.
“Questions remain on the longevity of this commitment and whether this will be long term or simply until the UK leaves the EU,” she said.
No, according to DeSouza – immigration is just one aspect, and has led to the core problem: that the Good Friday Agreement doesn’t, in the eyes of the UK’s laws, recognise the right of citizens in the North to self-identify as Irish.
Whilst our case began as an immigration case, it has since morphed into a test of the constitutional nature of the Good Friday Agreement.
“Addressing the initial barrier to rights that our case stemmed from is a monumental shift in policy and tone, but it became clear that amending the immigration rules is the extent of the UK’s commitment.”
The UK government has repeatedly said that it will not be amending the British Nationality Act 1981 as it believes the UK’s nationality law is already consistent with the Good Friday Agreement.
The most recent example of this was on Thursday, when Brandon Lewis, Minister of State for Security and deputy to Home Secretary Priti Patel, said that “there are no plans” to amend British immigration laws.
DeSouza said of his comments: “The minister referenced the Upper Tribunal decision against us as an excuse not to amend statute which reinforced our desire to challenge that decision.
“This legal challenge has come at great personal cost and framed the first five years of our marriage. It has taken the Home Office years of appeals to overturn a previous ruling in our favour.
The Upper Tribunal decision is riddled in errors and sets a dangerous legal precedent that the Government is clearly going to use. We can’t allow that decision to go unchallenged.
“In terms of citizenship rights, addressing one negative consequence of the UK’s failure to give domestic legal effect to a fundamental provision of the Good Friday Agreement whilst not addressing the underlying gap in legislation leaves us vulnerable to further rights restrictions post-Brexit.
“We will all benefit from full implementation of the Good Friday Agreement.”
On funding their legal case, campaigners and politicians including Gerry Adams have suggested that the Irish government, who support the DeSouzas’ argument, should contribute towards their legal case.
DeSouza says that there are “diplomatic difficulties” with this, and that the Tánaiste Simon Coveney and his officials “are working hard to find a political resolution in the hopes of alleviating some of the financial burden on us”.
“But the reality is that this case will proceed and I, an Irish citizen, face the endless resources of the British government, who are using taxpayers’ money to try to crush our case. The case costs us financially every single day.”
The DeSouzas are crowdfunding to finance their legal challenge, but have only reached a fraction of their £120,000 goal.
“What we are doing is defending the Irish government’s interpretation of the birthright provisions, without financial assistance from the government itself,” said Emma.
We have a very short period of time to raise enormous funds to carry this case forward. There is the very real possibility that we could be put into a position where we have no choice but to drop the case due to a lack of funding. If that happens, we truly believe, that we will all lose.
The EEA card will not be valid in the UK after 31 December 2020, when the Brexit transition period ends and the UK is no longer an EU member.
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