Individuals born in Northern Ireland are being told by the Home Office that they are British citizens at birth and that they cannot exclusively identify as Irish citizens.
Under the Good Friday Agreement, the international treaty the British government is a signatory of that signalled the end of the Troubles, those born in Northern Ireland have the right to identify as Irish citizens, British citizens or both.
Many Irish families who are seeking EU residency cards for non-European Economic Area members are currently ensnared in legal stand-offs with the Home Office as the department argues that dual citizenship – the fact they are British citizens proclaiming also to be Irish citizens – disqualifies them from the application process.
Emma De Souza, 31, who identifies as Irish as she is entitled to do under the Good Friday agreement, found herself embroiled in a lengthy appeals process after she applied for a residency document for her American husband.
Her husband, Jake de Souza, 30, 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, which means she is a dual citizen who does not qualify for the permit.
Mr De Souza challenged that decision on the grounds that his wife had the right to be treated as an Irish citizen under the Good Friday agreement and was, therefore, an EU citizen exercising her freedom of movement rights.
The first-tier tribunal ruled in his favour. Judge Gillespie, in his conclusion at the tribunal, said: “Under the terms of the Good Friday Agreement, people of Northern Ireland are in a unique position within the United Kingdom. The British and Irish governments recognised the birthright of all the people of Northern Ireland to identify themselves as Irish or British, or both.”
Ms DeSouza, who refused to apply as a British national, had won the case last year but the Home Office continued to appeal.
The Home Office challenged that fact that Mr Souza should be allowed to live in the UK without going through immigration procedures like that of non-EEA countries because his wife carried an Irish passport.
Consequently, The Home Office appealed to the first tier tribunal. The appeal was evidently refused and it was ruled that there was “no arguable error in law” applied.
In response, the UK’s immigration department appealed to the Upper Tribunal, which has equivalent status to the High Court, who allowed their argument to be heard.
The Home Office argues that those born in Northern Ireland are British at birth, regardless of Good Friday Agreement choices and, as a result, as dual nationals, De Souza and others cannot apply under EU family life regulations.
“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.
They claim that the citizenship clause of the Good Friday Agreement is invalidated by the British Nationality Act 1981, which automatically deems that those born in the United Kingdom are British.
Una Boyd, an immigration solicitor who is representing De Souza, could not speak freely about the case due to ongoing litigation but said that the Home Office’s decision to appeal this matter to the Upper Tribunal is “extremely concerning” and that it “flies in the face of their promises to respect their obligations under the Good Friday Agreement.”
“The people of Northern Ireland have the right to identify as Irish, or British or both and the British Nationality Act 1981 should be interpreted in such a way as is consistent with public international law and with the Convention,” Ms Boyd said.
“This issue has caused huge concern, particularly for Irish identifying people in Northern Ireland who feel that their rights are being ignored.”
Last week, the De Souzas were back in court for the Upper Tribunal appeal. The Home Office asked for an adjournment with an exasperated judge stating: “It appears the UK government with all its resources is not prepared.”
The Home Office is maintaining the appeal against the De Souzas, even with the adjournment, meaning they’ll return to court within the next 6 months. The initial process started in 2015.
Ms De Souza, who has created a crowdfunding campaign to afford legal costs after a three-year fight with the Home Office, expressed her disappointment at the adjournment after a taxing seven-month wait for a hearing.
“As a family, we’re grateful that we can stay together during the appeal process and will try to continue with our lives in the interim but the uncertainty of when we’ll be back in court is always in the back of our minds,” she said.
Ms De Souza told the Irish World that there are other families caught up in a similar situation with the Home Office but said that most preferred not to speak publicly on the matter.
She added that the process, which is leaning toward a fourth year, was a “serious weight to carry” and has affected her marriage which only happened shortly before the move back to the UK.
Ms De Souza has the option of accepting British citizenship, which would alleviate all of the trouble she is facing, yet she feels it is almost her moral duty to speak out.
“In many ways, it feels like my choice to identify as Irish is lesser or secondary like it was somehow the wrong choice. It has certainly cost us, not just emotionally, but financially,” she said. “Whereas if I accepted British citizenship I wouldn’t face these immense hurdles.”
“I’m between it being utter incompetence and a lack of understanding of the unique status of Northern Ireland to it being a deliberate move to distance the government from its commitments under the Good Friday Agreement.”
Ms De Souza, who recently spoke at a legal conference about her situation, said that she has encountered a large swathe of legal opinion that what is happening “is against the Good Friday Agreement and families are experiencing discrimination if they assert an Irish citizenship.”