The DeSouza case: An explainer
What is the DeSouza case about?
The DeSouza case began as an immigration application, when DeSouza applied for an EEA residence card for US husband Jake. The application was lodged in 2015 and is a process that is open to EU citizens resident in the United Kingdom. It was refused in 2016 on the grounds that DeSouza was considered automatically British, having been born in Northern Ireland. However, DeSouza has never held a British passport or adopted a British identity. An appeal was lodged in 2016 citing that under the Good Friday Agreement the people of Northern Ireland have the right to identify and be accepted as Irish or British or both and DeSouza was and is an Irish citizen only, holding an Irish passport and being from an Irish family. It then morphed from an immigration case to one over the constitutional nature of the Good Friday Agreement.
What was the October 14th ruling about?
On October 14th the Upper Tribunal - which is an immigration tribunal, overturned a previous ruling that was in favour of DeSouza. The Upper Tribunal ruled in favour of the Home Office, stating in it’s view, it was inconceivable that the Good Friday Agreement was intended to provide a right to choose one’s nationality. The Tribunal stated that the people of Northern Ireland remain British citizens even if they identify as Irish and that the absence of UK legislation to support the birthright provisions of the Good Friday Agreement indicated that there was no intention in 1998 for there to be a right to choose, beyond the right to choose your identity. The ruling added that I am a British citizen until the renunciation of British citizenship process was completed. I have refused to renounce British citizenship as this process involves a legal declaration that an individual is in fact a British citizen.
Who are Emma and Jake DeSouza?
We met in 2014 and married in Belfast, July 2015. I’m a cafe manager and now rights campaigner, from Magherafelt. Jake is a musician from Los Angeles, California. We live in Belfast with our three dogs and were not politically active before our case.
Why was legal action taken?
Initially it was suspected that the Home Office refusal could have been a clerical error. The appeal was lodged with the expectation that it would be quickly and easily overturned. This was not the case and through the media other families stepped forward. A systemic disregard for the Good Friday Agreement and gaps in legislation were then discovered.
What does the agreement say about this?
Article 1 of the Good Friday Agreement says that both Governments “recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”
This can be read from the text constituting a duty on both States for such persons “to be accepted as” Irish or British or both. The question of national identity is also notably limited to the same categories as citizenship.
Rights “to hold both British and Irish citizenship” accommodate persons who choose to be ‘both’ British and Irish. This is in light of many states not permitting dual citizenship.
What is the Home Office argument?
The Home Office argument is astoundingly, that it is not bound by the terms of the Good Friday Agreement, an international peace agreement lodged with the UN and that therefore it is not required to amend its legislation as UK Parliament is supreme.
Secondly, and in contradiction, the Home Office argues that there is nothing in the GFA that prevents British citizenship being conferred at birth, and therefore law is compatible with the GFA.
Further, the department argues that the absence of the birthright provisions of the Good Friday Agreement from domestic UK law is due to the drafters of this provision not intending for it to be a legal right. The argument is that the provision points only to a choice of identity, not a choice of citizenship.
There is no evidence to suggest the absence of the birthright provisions of the Good Friday Agreement from domestic UK law is anything but a failure of the UK Government to give domestic legal effect to a provision of a treaty.
Why was this provision not included in the Northern Ireland act?
It remains unknown as to why the UK has failed to give domestic legal effect to the birthright provisions of the Good Friday Agreement.
After 1998 Ireland amended its citizenship legislation to reflect this provision. The changes were taken forward by new citizenship legislation in 2001 that amended Ireland’s 1956 Act.
The 2001 amendments changed the provisions for Irish citizenship by birth away from automatic conferral of Irish citizenship on all persons born on the Island of Ireland, to one of an entitlement to be an Irish citizen.
Then Minister of Justice, John O'Donoghue set out that this change had been made to “ensure that our citizenship law reflects the new constitutional position and respects the right of those born in Northern Ireland to regard themselves as Irish or British or both, as they so choose.” He added that the legislation would “ensure respect for the position of those who do not wish to exercise that entitlement. At the same time, those who wish to assert their Irish citizenship are free to do so.”
The UK, by contrast, has resisted implementation of a number of GFA rights based provisions and continues to automatically confer British Citizenship on people born in Northern Ireland, rather than it being an entitlement.
Has the British Government always interpreted the birthright provisions of the Good Friday Agreement in this way?
Interestingly the British Government has not always taken such a hard line over this provision. In other official UK interpretations of the GFA, a person does have the right to identify themselves and be accepted as Irish or British or both. These interpretations did not lend themselves to the position that an NI-born person could not choose to be an Irish citizen only.
For example, the 2008 ‘Citizenship Review’ conducted by the former UK Attorney General Lord Goldsmith QC contained the interpretation that, ‘the Good Friday Agreement confirms the right of the people of Northern Ireland to take either British or Irish citizenship or both.’
The same year, the Northern Ireland Human Rights Commission in its GFA-mandated advice on the content of a Northern Ireland Bill of Rights also interpreted the birthright provisions as providing for persons to be British or Irish citizens, (or both). The Commission recommended the incorporation of a birthright to citizenship in the Bill of Rights. The proposed right, which would have obliged the alteration of UK Citizenship law referred to “The right of the people of Northern Ireland to hold British or Irish citizenship or both … with no detriment or differential treatment of any kind.”
Regardless of British citizenship law the Home Office ‘accepted’ NI-born persons who chose to be solely Irish citizens until 2012.
An example is provided by the ill-fated UK Identity Cards scheme, where the Home Office ultimately conceded that it was incompatible with the GFA to compel NI-born Irish citizens to carry planned UK Identity Cards which identified the holder as a 'British Citizen’. The scheme was abandoned in 2010.
Furthermore being an Irish citizen in NI means being an EU citizen in another member state. This brings certain EU rights, including a right to be joined by family members. The equivalence for NI-born British citizens is the ability to invoke the same right if taking up residence in the Republic or elsewhere in the EU.
The exercise of these EU rights was respected by the Home Office until 2012.
The Home Office respected the identity choice of NI citizens up to 2012, so what happened?
The Home Office seized upon the case of McCarthy (an EU ruling concerning limitations on dual nationals accessing EU rights) and relying on the continued conferral of British citizenship on the NI-born, ceased to treat NI-born applicants as Irish citizens, but as dual British citizens who were not entitled to EU rights in the UK. This position was taken despite the facts of McCarthy (a British woman born in England who had taken up Irish citizenship and sought to exercise EU rights as a dual British Irish citizen) being irrelevant to the circumstances of birthrights under the GFA. The policy decision was taken precisely to block access to certain EU rights and benefits, specifically EU rights to be joined by family members from outside the EU.
What does the Upper Tribunal ruling mean?
The Upper Tribunal ruling is precedent setting and published. It can be used to deny the EU rights and entitlements of Irish citizens in Northern Ireland and it also sets a dangerous precedent in terms of the Good Friday Agreement. It’s a legal ruling that minimises a key proponent of the agreement, the legal right to be accepted as Irish or British or both to that of be entitled to simply feel Irish.
How has anomaly arisen between the law and the peace agreement?
The anomaly is due to the UK failing to give domestic legal effect to the birthright provisions of the Good Friday Agreement. At present the British Nationality Act 1981 is the most up to date nationality legislation, which predates the Good Friday Agreement by almost two decades.
NIHRC is recommending an amendment to the British Nationality Act 1981 in order to align legislation with the Good Friday Agreement.
What do the political parties say?
The majority of NI parties support the DeSouza case and view that the Good Friday Agreement provides the people of Northern Ireland with an explicit right to be accepted as Irish or British or both.
Taoiseach Leo Varadkar commented on the ruling, “It’s my view that the British citizenship laws are out of step with the letter and spirit of that [Good Friday] agreement."
Tanaiste Simon Coveney committed to raising the ruling with the Secretary of State for Northern Ireland, “Citizenship + Identity provisions critical to the GFA. UK Govt has pledged to review rules around citizenship and deliver a long term solution consistent with GFA. An outcome is urgently needed and I will raise this again with Secretary of State for NI tomorrow.”
Michelle O’Neil, deputy leader of Sinn Fein said, “The GFA is crystal clear - those living in the North have a choice between Irish, British or dual citizenship.”
Monica Mcwilliams spoke of the lack of a Bill of Rights, “NIHRC was correct in its advice to the SOS for a Bill of RIghts - that the right to be British or Irish or both in the Good Friday Agreement needed to be enshrined in a Bill of Rights. It should have been.”
Former NI talks negotiator, Jonathan Powell, “someone somewhere is going to have to sort this out”
Brendan Howlin, Labour Party lended support, “Emma and Jake de Souza have exposed an extremely important gap in UK law that has not been updated to take account of the Good Friday Agreement, and which will be very problematic post-Brexit I’d like to thank them for taking this case, and to express my solidarity with them.”
Stephen Farry, Alliance party, “It is clear the letter and spirit of the Good Friday Agreement regarding identity and citizenship has not being fully respected in domestic law. People from Northern Ireland have the right to be solely British, solely Irish or both.”
Colm Eastwood, SDLP leader in response to the October 14th ruling, “Emma is Irish. The Good Friday Agreement guarantees that right for all citizens on this island. The failure to uphold the agreement in law is unacceptable and must be addressed. I’ll be raising this with the Secretary of State.”
Sinn Féin leader Mary Lou McDonald described Monday’s outcome as “a disgracefully retrograde step”.
What are the potential consequences of the ruling?
Reducing an integral right to choose one’s own national identity - in this case, to identify as and be accepted as Irish - into a right to merely “feel” Irish sets a dangerous precedent. It can be seen as a fundamental rewriting of a key provision of the Good Friday Agreement without the consent of the people of Ireland.
The ruling directly prevents Irish citizens, born in Northern Ireland from accessing their full EU rights and entitlements. In order to access equal treatment to other Irish citizens resident in the UK an Irish citizen must first renounce British citizenship. This process requires a legal declaration that the individual is a British citizen, costs £372, takes 6 months during which time an individual loses freedom of movement and afterwards the individual can be exposed to further immigration controls.
The ruling essentially solidifies Irish citizens as second class citizens but it also has a knock on effect for those who identify as exclusively British.
In the event of reunification of this island, Unionists may lose their right to British citizenship as a consequence of this ruling and the watering down of the birthright provisions of the Good Friday Agreement. The Home Office has argued that British citizenship in Northern Ireland is reliant on Northern Ireland’s place in the United Kingdom, not the Good Friday Agreement. As a result there are no guarantees that British citizenship would be retained if Northern Ireland were to leave the UK. In this scenario, without the protections of the Good Friday Agreement a Unionist would be entitled to “feel” British in a United Ireland.
Does any of this have anything to do with Brexit?
The case began before Brexit but there’s no question that the two are overlapping due to the restrictions being placed on EU rights and entitlements post-Brexit and the protocol for Northern Ireland.
Is a resolution possible?
Yes. There are any number of legal solutions available if the political appetite was there. NIHRC are currently researching how to implement the birthright provisions of the Good Friday Agreement in to domestic UK law, we await the outcome of this research.
What about the statelessness argument?
Counsel on behalf of the Home Office argued that British citizenship has to be automatic, after Ireland amended its citizenship legislation (to reflect the Good Friday Agreement) so as to avoid statelessness. The Judges accepted this argument. However, under international law if an entitlement to citizenship exists then an individual cannot be rendered stateless. The statelessness argument is a red herring and not legally sound.
What is the Immigration status of Jake DeSouza?
Jake was offered LOTR in May 2018, leave outside of the Immigration rules, this is at the discretion of the Home Secretary, we did not request LOTR. The length of this stay is 5 years, however, it remains unclear as to whether the Home Office would revoke this leave, something which the Home Secretary can do.
What happens next?
An appeal was lodged on October 29th, an appeal to the Court of Appeal but with a request to leapfrog directly to the Supreme Court. Thirteen errors both in law and in fact were discovered in the October 14th ruling. A decision on the application to appeal can take up to 3 months but is likely to fall before Christmas with February being a possible start date.
How is the case funded?
Our case is privately funded by ourselves, we receive no legal aid or financial assistance from any organisation or political party. We are crowd funding for the Supreme Court challenge.