The government aren't keen to shout about it, but Emma de Souza's case has already been seen as a constitutional test of the Good Friday Agreement. And that's only the startby Stephen Donnan / May 8, 2019 / Leave a comment
Like many of you, I have been following with interest—and some confusion—the growing controversy over the issue of what will happen regarding Irish citizenship in Northern Ireland in the wake of Brexit (whenever that may be).
The issue arose as a result of an application by Irish citizen and Derry native, Emma de Souza, which sought to bring her US-born husband Jake to Northern Ireland by way of her Irish citizenship.
Under EU law, having Irish citizenship affords much more generous provisions in the way of EU rights being extended to family members. For instance, by having EU citizenship rights are bestowed on a non-EU spouse—but under British law, these provisions do not apply.
EU citizens can bring family members to a country within the EU that they have moved to as they are exercising their treaty rights in a host country. However, the UK Government is insisting that Emma has not left her “home country” of the UK and therefore the immigration rules do not apply as they would if Emma and her husband had moved to, say, Spain or France.
Emma found herself being told by the UK Home Office that she was, by way of birth in Northern Ireland, a British citizen and not an Irish citizen as she had always believed. The UK Home Office informed Emma and her husband that under the articles of the British Nationality Act 1981 she would be considered a British citizen and Jake would need to apply for immigration status as a third-country resident.
There’s just one problem: Emma had never considered herself British, had never held a British passport and had always considered herself an Irish person living in Northern Ireland. As a result, Jake challenged the Home Office decision on the basis that Emma had the right under the Good Friday Agreement to define herself as British, Irish or both.
Jake sought an appeal of the decision by way of a first-tier tribunal—and, in a rather surprising turn of events, in February of last year, the Judge overseeing the case ruled that Emma does have the right to be treated as an Irish citizen, and not British.
The Home Office had previously told Emma that she would need to formally renounce her British citizenship—which she had never claimed—in order to be treated as an exclusively Irish citizen for immigration and family law purposes.
This may all seem rather nonsensical, as Emma could, apparently, simply renounce her British citizenship and have done with it. In doing so, however, she would be giving credence to the notion that she is British despite the guarantees of the Good Friday Agreement.
“Our case is often seen as an immigration issue and certainly that is how it began,” de Souza says, adding: “however, it has morphed into what could be seen as a constitutional test of the Good Friday Agreement.”
This gives legitimacy to the claim of the UK Government that, under a piece of legislation that was enacted before the Northern Ireland Act 1998, anyone born in Northern Ireland is automatically a British citizen, exclusive to any other citizenship or nationality. As my writer colleague Rebecca Toolan commented to me recently, if you can identify as exclusively British then surely you should be able to be exclusively Irish?
That’s not the end of it, either. On March 7th of this year, the UK Government very quietly changed the definition of an EEA (European Economic Area) citizen to exclude those who are also British—a change which is particularly relevant to people like myself, who hold both Irish and British citizenship.
Under the new rules, Irish citizens living in Northern Ireland and wishing to avail of the Settled Status Scheme—the program by which EU citizens living in the UK can retain certain EU rights post-Brexit—are led to believe that they are unable to do this as they are considered British by default.
This has led to some confusion and sensationalism with certain political groupings and campaigners claiming that the UK Government is stripping Irish citizens in Northern Ireland of their birthright citizenship.
That isn’t the case—but the new proposals are nevertheless confusing. They could create a rather unusual system by which Irish citizens born in the Republic of Ireland and living in the UK could apply for the settlement scheme, whereas Irish citizens born in Northern Ireland and living in the UK would be excluded from doing so—creating a two-tiered Irish diaspora within the UK.
Daniel Holder of the Campaign on the Administration of Justice has spelt out in explicit detail the problem with the government’s proposals. Holder, the Deputy Director of the CAJ, states that the UK Home Office treats those born in Northern Ireland as solely British in terms of citizenship—unlike the Government of Ireland, the Northern Ireland Human Rights Commission and HM Courts & Tribunals Service.
The UK Home Office insists that NI born Irish citizens do not need to avail of the EU Settlement program as the Common Travel Area (the ongoing agreement between the Irish and British Governments by which citizens of either have free movement between each jurisdiction) upholds certain rights for Irish citizens.
Holder points out, however, that these provisions within the CTA are ill-defined, unenforceable and not underpinned anywhere as “rights.” The UK government’s attitude, he says, conflicts with their commitment to upholding the Good Friday Agreement.
Citizenship and nationality are intrinsically linked with socio-political attitudes and people’s beliefs and approach to the constitutional position and legitimacy of Northern Ireland. Those who consider themselves Nationalist would usually define themselves as Irish and those who position themselves as Unionist would normally consider themselves British. That has been the case for such a long time that there is an unconscious assumption that Protestants are British by birth and Catholics are Irish.
“Identity is complex and personal, in Northern Ireland even more so,” de Souza tells me. “Yet we have people such as myself being asked to prove their identity, prove it’s worth and decide how important their identity is in the face of imposed citizenship by the British government.”