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Home Office wins appeal after tribunal judge ruled that woman could identify as an Irish citizen

Emma DeSouza and Jake DeSouza outside the Royal Courts of Justice in Belfast just last month 

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 Northern Ireland, accused the Government of failing to honour the spirit of a commitment in the Good Friday Agreement that people from the region 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 wrangle centres on her sponsorship of an application for a residence card from her US-born husband Jake.

After the Upper Tribunal Immigration and Asylum Chamber ruling on Monday, Ms DeSouza, from Magherafelt, Co Londonderry, 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, Mr DeSouza had attempted to secure a UK residence card under European Law, with his wife sponsoring his application as a European Economic Area (EEA) national.

However, the relevant immigration regulations define that a sponsoring EEA national must be a citizen of an EEA state who is ‘not also a British citizen’.

As the Home Office considered Ms DeSouza a British citizen, it found that she did not meet the required definition of an EEA national and rejected the application.

She then had the option to assert British citizenship to secure residency for her husband under UK domestic immigration rules, not EU law.

Alternately she was told she could renounce her British citizenship and then reapply as an EEA national.

The Co Derry woman insisted she should not have to declare herself British to enable her husband to stay in the UK, and should have the right, as an Irish woman, to avail of entitlement as an EEA national.

She argued that she never considered herself British, so how could she 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 Good Friday Agreement.

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 (BNA) ruled that anyone born in Northern Ireland was automatically British, until such time as they renounce that citizenship.

Finding in the Government’s favour, Mr Justice Lane, president of the Upper Tribunal Immigration and Asylum Chamber, said to make citizenship dependent on ‘consent’ raised a ‘host of difficulties’.

‘It cannot rationally be contended that an infant, for example, would be expected to give consent,’ he said in the ruling.

Justice Lane said, as such, the omission of self-identification and nationality from the Northern Ireland Act was ‘entirely deliberate’.

He said if the UK was unable to confer nationality on a citizen born in Northern Ireland then, it followed, that neither could Ireland.

‘The result is that a person born in Northern Ireland is born stateless,’ said the judge.

‘That would be a breach of both countries’ international obligations to prevent statelessness. It is not conceivable that the two governments intended such a result.’

Government lawyers argued the British Nationality Act 1981 was the relevant legislation - not the Good Friday accord (passport pictured above)

Government lawyers argued the British Nationality Act 1981 was the relevant legislation – not the Good Friday accord (passport pictured above)

He added: ‘In our view, the present system enshrined in the BNA represents a proportionate way of achieving the legitimate public end, not only of avoiding statelessness but also of maintaining a clear and coherent system of nationality law.’

On Monday, Ms DeSouza said her case will have implications for EU citizens post-Brexit.

‘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,’ she said.

‘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 Fein senator Niall O 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.

In response to the ruling a Home Office spokesman 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.’

A spokesman for the Irish Government’s Department of Foreign Affairs noted that deputy premier Simon Coveney had raised concerns about the ‘citizenship and identity provisions’ of the Good Friday Agreement with Northern Ireland Secretary Julian Smith.

The spokesman highlighted comments from former prime minister Theresa May last February to review the issues.

‘The (Irish) Government is continuing to actively seek the outcome of that review with the new British Government and the Tanaiste (Mr Coveney) will be raising this again with the Secretary of State for Northern Ireland when they next meet,’ he added. 


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