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…