Author: Gráinne Ní Aodha
The UK Home Office has argued that British immigration laws supercede the Good Friday Agreement.
A DERRY WOMAN who is in the middle of trying to obtain a residency card for her US husband has said that she fears Brexit will significantly delay their case.
Emma DeSouza, a 31-year-old woman from Derry, married US citizen Jake DeSouza in July 2015. In December that year, he applied to live in the UK – based on his wife’s special status under the Good Friday (Belfast) Agreement.
That agreement gives citizens born in Northern Ireland with one British or Irish parent the right to identify as British or Irish citizens, or both.
The UK’s Home Office rejected Jake DeSouza’s application for an EEA residence card in Northern Ireland, for complex reasons. Although Emma DeSouza was born in Northern Ireland, and has a right under the Good Friday Agreement to identify as either Irish or British or both, the UK has her classified as being British.
In their refusal letter, the Home Office wrote: “…your spouse is entitled to renounce her status as a British citizen and rely on her Irish citizenship, but until that status is renounced she is as a matter of fact a British citizen”.
The UK government effectively argued that DeSouza is a British citizen until she revokes it in favour of her Irish citizenship. As she is classed as a British citizen, but is an Irish passport holder, the UK government had classed her as having dual-citizenship, and cannot go through the UK immigration system as an EU national. On this basis, her husband’s application for a residence card was refused.
Emma and Jake DeSouza appealed the refusal and won, but the Home Office is now appealing the case again. A hearing was scheduled for 26 November, but has been put back as the Home Office didn’t have its arguments ready, which DeSouza is concerned will affect the final decision as it will now be made after Brexit.
If British immigration laws aren’t compatible with Brexit, which this case suggests they aren’t, that should be changed before Brexit happens, not after, she argues.
The legal clout that the British government has put up against them suggests to the DeSouzas and their legal team that the appeals will continue right up to the European Court of Justice – but depending on the outcome of Brexit, that court might not have jurisdiction over UK immigration law anymore.
Speaking to TheJournal.ie, Emma DeSouza said that the Home Office’s appeal is based on arguing that the judge’s interpretation of the law was flawed, and the Good Friday Agreement has less authority than British immigration law.
In that judge’s ruling in February 2018, he refuted this, saying:
“The constitutional changes effected by the Good Friday Agreement with its annexed British-Irish Agreement… supersede the provisions of the British Nationality Act 1981 in so far as the people of Northern Ireland are concerned.
He or she is permitted to choose their nationality as a birthright. Nationality cannot therefore be imposed upon them at birth.
“The UK government is arguing that the parliament is sovereign and that the Good Friday Agreement is a treaty that has no bearing on UK law,” DeSouza says.
She says that it doesn’t inspire much confidence in her that the UK government is promising to uphold the Good Friday Agreement after Brexit and protect citizens’ rights, while simultaneously arguing why they’re not important in her case.
Colin Harvey, a Professor of Human Rights Law in the School of Law at Queen’s University, told TheJournal.ie that the De Souza case highlights a “failure to reflect and respect the basic principles of the Good Friday Agreement fully in domestic law, policy and practice”.
Particularly worrying is the suggestion that the applicability of these principles is being contested by the Home Office and the associated unwillingness to make the necessary changes (legal or otherwise).
The serious long-term concern is that the ‘birth right’ provisions of the Agreement are poorly understood; this comes into sharp focus for those who wish to identify and be accepted as Irish only.
Harvey added that the UK Home Office has an appalling historical record on immigration.
“There is a real risk that the hostile environment measures will intensify, and in Northern Ireland the consequences of this will be very problematic indeed.”
Hostility towards immigration
Currently, DeSouza’s husband is living with her in Belfast; she says they’re lucky that they got to live together while their case is being appealed.
In order for Jake DeSouza to apply for residency, he and Emma had to submit their passports. Six months later after the application was refused, Emma had her passport returned, but Jake’s passport was kept by the Home Office.
“We weren’t able to leave the country, no matter who in his family was sick, he couldn’t go home. The Home Office have this unofficial policy of keeping your passport if your application is refused, and then meeting you at the airport before you leave.”
Since September, Jake has been granted temporary permission to remain in the UK until the appeal is over; he has his passport back and can travel and work for the next five years. But Emma is worried about what happens after that.
“The process is so difficult, it’s very frustrating and time consuming. Two months after we got married and our entire relationship has been about the Home Office and Brexit. I don’t know if we’ll ever know how to talk about anything else – it has eaten into our lives a lot.”
Emma runs a coffee shop in Belfast, but has decided to dedicate her spare time to campaigning to reform some of these rights that aren’t enforced. In September, she organised a “We Are Irish Too” campaign in September involving other families in similar situations.
The letters went to Tánaiste Simon Coveney and the UK Home Secretary Amber Rudd.
Coveney’s office replied to say that her case and the issue of citizenship as guaranteed under the Good Friday Agreement was raised with the Secretary of State for Northern Ireland, and that they would engage to make sure that the agreement is respected.
“We still haven’t received a response from the Home Secretary. There are families in Belfast waiting for our decision, so when the UK pushes the case back it gets pushed back for others, too.”