Irish citizens in the UK face a potential Windrush-type loss of their rights unless the protections and commitments made in the Good Friday Agreement and the Common Travel Area are written into law, human rights lawyers have warned.
The Home Office, where officials pursuing Theresa May’s ‘hostile environment’ for immigrants wrongly and illegally stripped several Windrush-era British citizens of their rights to healthcare or residency and deported them, is insisting that anyone born in Northern Ireland is British at birth and cannot exclusively assert Irish citizenship.
MPs have also voiced their concerns that the Home Office is willfully flouting the 1998 Good Friday Agreement.
The weaknesses and vulnerabilities have been highlighted by the Home Office’s continued refusal to recognise the right of Emma de Souza, from Northern Ireland, to be an Irish citizen despite explicit commitments in the 1998 Good Friday Agreement that all people in Northern Ireland may identify as Irish, British, or both.
Colin Harvey, a professor of Human Rights in Queens University Belfast, speaking about the Emma de Souza case, told the Irish World that MPs and peers pay “lip-service” to upholding the Good Friday Agreement but do not apply it in practice.
Ms de Souza, 31, is embroiled in a lengthy legal battle with the Home Office which argues that she – and others, whose cases have not yet been made public – cannot exclusively identify as Irish, seemingly contravening birthright provisions resulting from the Good Friday Agreement.
Tory MP Maria Caulfield, who sits on the Northern Ireland Select Affairs Committee, said that she was “extremely concerned that the Good Friday Agreement is not being upheld” in the de Souza case and said that her committee may need to scrutinise the growing concerns.
“The Good Friday Agreement makes clear that anyone from Northern Ireland can identify as Irish, British or both,” she said.
“If reports that this experience is happening to a number of people in Northern Ireland are true, then perhaps this is an issue the Northern Ireland select committee, in Parliament, needs to look at.”
The legal stand-offs result from families from Northern Ireland who are seeking EU residency cards for non-European Economic Area members as the department contends that dual citizenship – the fact they are British citizens proclaiming also to be Irish citizens – disqualifies them from the application process.
Meanwhile, a paper published last week outlining the UK government’s Northern Ireland commitments made no mention of citizens’ rights in relation to the Good Friday Agreement.
The report asserted, in vague terms, that there will be “ongoing protection of rights protected” under the 1998 agreement.
“Committing to ‘the ongoing protection of rights in the Belfast Agreement’ is a curious position,” de Souza told the Irish World.
“If denying the right to self-determination and failing to recognise the birthright to choose your nationality in Northern Ireland – whilst minimising Irish citizens’ EU rights – is the [UK government’s] idea of protecting rights, we’re in for a rough time post-Brexit.”
Ms De Souza had applied for a residency document for her American husband, Jake de Souza, 30, who applied in 2015 to live in Northern Ireland as the family member of a European Economic Area national living in the UK.
The Home Office initially refused Mr De Souza’s application for a residence card as, they argued, his wife applied for the visa as an Irish national.
Mr De Souza challenged that decision, with a first-tier tribunal judge ruling in his favour. Ms DeSouza, who refused to apply as a British national, won the case last year but the Home Office continued to appeal.
The Home Office then appealed, unsuccessfully, to the first-tier tribunal, which ruled that there was “no arguable error in law”.
In response, the UK’s immigration department brought their fight to the Upper Tribunal, the immigration court with equivalent status to the High Court.
Last November, the Home Office adjourned the appeal after a seven-month wait for a hearing, meaning Ms de Souza will return to court within the next six months. The drawn-out process – which, she says, has strained her marriage – started in 2015.
The Home Office argues that those born in Northern Ireland are British at birth, regardless of Good Friday Agreement provisions, which, they claim in their arguments, are superseded by domestic immigration law.
“A treaty which HMG is a party of does not alter the laws of the United Kingdom,” the Home Office said during the appeals process.
Professor Harvey told the Irish World that the de Souza case highlights how many aspects of the Good Friday Agreement have yet to be “fully” and “effectively” implemented in domestic law, adding that these are future “Windrush-type cases”, with birth provision rights “really very poorly understood in Britain”.
“This is highlighted in particular with people [in Northern Ireland] who want to be accepted as Irish,” Professor Harvey said.
Harvey calls this lapse in the formalisation of the provisions laid out in the Good Friday Agreement as an “implementation gap” and added that it is near-identical to the Common Travel Area in its lack of meaningful legal protections for Irish citizens.
Labour MP Pat McFadden, who represents Wolverhampton South-East, said of the de Souza case: “One of my concerns about Brexit is that it could upset that choice of overlapping identities. It’s not just about trade and exports, important though these issues are.
“I very much hope that isn’t the case and hope that all government departments understand the importance of this.”
Cases like that of de Souza, said Professor Harvey, are a combination of the UK government’s approach to the Good Friday Agreement and partly due to “the Home Office’s well-known, appalling track record, in the way that it deals with people especially”.
He said: “Emma’s experience reflects that. The whole ‘hostile environment’ culture – it is embedded in the Home Office.”
De Souza is also in the process of founding an organisation, The Family Rights and Justice Collective of Northern Ireland, to help other families in similar circumstances. The first board meeting, she said, will take place later this month.
After a sustained letter campaign to the Irish government about her case, the office of Simon Coveney, the Irish Tánaiste and Minister for Foreign Affairs, said that Mr Coveney had raised her case with the UK authorities as well as identity and citizenship issues with Karen Bradley, the current Secretary of State for Northern Ireland.
De Souza noted, however, how Sajid Javid – the current Home Secretary – had yet to make a public or private statement on the matter.
The Irish World reported last November how legal experts were warning that Irish citizens in the UK – contrary to instructions from both the Irish and British governments that they can rely on the Common Travel Area – should register as EU citizens under the UK’s proposed settled status scheme to protect their existing rights in this country.
The Common Travel Area – a longstanding policy arrangement which ensures reciprocal rights between Irish citizens living in the UK and vice versa – is overstated by public officials as means of assuring frictionless movement between the two countries after Brexit, the report said.
It recommended that the Irish and UK governments should agree “a new intergovernmental Common Travel Area treaty”.
This would mean formalising common immigration rules, travel and residency rights and other social, policing and security arrangements – something, Prof Harvey argues, needs to happen with Good Friday Agreement provisions.
Professor Aoife O’Donoghue, a law lecturer researching the implications of Brexit on Northern Ireland at Durham University, and an author of the aforementioned report, told the Irish World last week that the similarities between the Common Travel Area and legal battle of de Souza lie in the “piecemeal way different parts of the Home Office understands the immigration and citizenship status of Irish citizens across the UK”.
“There needs to be a holistic understanding of Irish citizenship from the Home Office which recognises that it is complicated and they most respond in a nuanced way to that complication rather than simplifying to the extent it is actually causing harm to people like Emma de Souza and her husband Jake,” she said, adding that the Home Office’s “hostility” towards de Souza is comparable to the Windrush generation’s treatment by the department.
“The Home Office want to make it difficult for you, they want you to give up or stop fighting for any residency, citizenship or other immigration status that you are entitled to,” she added. “Down the line this could have huge impact on Irish citizens living in Britain relying on the CTA also.”
The Irish government bears a “huge responsibility”, Prof Harvey noted, in ongoing bilateral discussions to ensure that Irish people in North and UK are not “left very vulnerable in a post-Brexit environment”.
“My fear is that Irish citizens may find themselves very, very vulnerable in the future to the whims of the Westminster parliament. And that’s not a great space to be in politically,” Prof Harvey added.