LAST UPDATE | 14 Oct 2019
THE UK’S HOME Office has won its appeal against an immigration tribunal ruling which found that people born in Northern Ireland are not automatically British.
The woman at the centre of the case, Emma DeSouza, has said she is “understandably devastated and disappointed by today’s decision” and will appeal it.
DeSouza, from Magherafelt in Co Derry, applied for a residence card for her US-born husband Jake in 2015. She made the application identifying herself as an Irish citizen.
The Home Office rejected the application on the grounds that it considered Emma DeSouza a British citizen. UK officials had told her she should either reapply identifying herself as British, or renounce her UK citizenship and reapply as an Irish citizen.
The Derry woman argued that she never considered herself British, so how could she renounce citizenship she never had.
DeSouza took a legal challenge against the Home Office and won, with a judge at a First Tier Immigration Tribunal ruling 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. DeSouza revealed the outcome of the appeal at a press conference in Belfast today.
“We have not received a decision in our favour, the decision has gone in the favour of the Secretary of State,” she said.
We have unfortunately lost. We are both deeply disappointed by this decision today.
She insisted her legal battle would go on: “After four years it’s safe to say we won’t be lying down anytime soon.”
The personal cost has been immense, we’ve lost loved ones, we’ve lost fundamental human rights and we’ve lost the first four years of our marriage but we won’t give up because we believe in the Good Friday Agreement.
DeSouza insists that the Home Office position ran contrary to the 1998 Good Friday Agreement, which gave anyone from Northern Ireland the right to identify as British, Irish or both.
Speaking on RTÉ Radio 1′s Drivetime this evening, DeSouza said she is “understandably devastated and disappointed”, adding that the decision amounts to a “rewriting” of the relevant section of the agreement.
“I’m Irish, it wasn’t a choice or a decision, it’s simply who I am … Today’s decision ruled that we don’t have any choice, we are British,” DeSouza said.
She added that she and her husband are “a little overwhelmed by the mounting challenge that lies ahead of us”, and intend to crowdfund the money needed as they are not entitled to legal aid.
British Nationality Act 1981
UK government lawyers argued that the British Nationality Act 1981 was the relevant legislation – not the Good Friday Agreement.
They highlighted that the provisions on citizenship outlined in the agreement, which was struck between the 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 Nationalist Act ruled that anyone born in Northern Ireland was automatically British, until such time as they renounce that citizenship.
DeSouza has accused the UK Government of failing to implement the provisions of Good Friday Agreement into UK domestic law. She said her case will have implications for EU citizens post-Brexit.
The case was being monitored by a representative of the Irish government. Sinn Féin President Mary Lou McDonald responded to the verdict by tweeting: “Irish people are Irish”.
SDLP leader Colum Eastwood said: “Emma is Irish. The Good Friday Agreement guarantees that right for all citizens on this island.
“The failure to uphold the agreement in law is unacceptable and must be addressed. I’ll be raising this with the Secretary of State.”
Responding to the judgement, the Department of Foreign Affairs and Trade said that Tánaiste Simon Coveney is aware of this morning’s decision.
“The Tánaiste has had a number of discussions with the Secretary of State for Northern Ireland to raise the case of Emma DeSouza, the concerns in relation to the citizenship and identity provisions of the Good Friday Agreement, and to ask for a review of the issues.”
Last February, Prime Minister [Theresa] May acknowledged the serious concerns in this area and pledged to “review the issues around citizenship urgently to deliver a long-term solution consistent with the letter and spirit” of the Agreement.
The Government is continuing to actively seek the outcome of that review with the new British government and the Tánaiste will be raising this again with the Secretary of State for Northern Ireland when they next meet.
In a statement to TheJournal.ie, the Home Office said:
The Home Office is absolutely committed to upholding the Belfast (Good Friday) Agreement. We respect the right of the people of Northern Ireland to choose to identify as British or Irish or both and their right to hold both British and Irish citizenship.
We are pleased that the Upper Tribunal agrees that UK nationality law is consistent with the Belfast Agreement.
- with reporting from Gráinne Ní Aodha and Órla Ryan
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