A woman from Northern Ireland has been told her American husband cannot be granted residency status because they regard her as being British.
Emma DeSouza is in the middle of a long running legal battle dating back to 2017. Under the Good Friday Agreement, people in Northern Ireland have the right to identify as Irish, British or both.
Emma identifies as Irish and has an Irish passport. She applied for a European Economic Area (EEA) residence card for her American husband Jake. Under the rules of the European Union, of which Ireland is a member, the spouses of Irish citizens are entitled to residency.
In the past, Emma’s application would have been straightforward, but the situation has been complicated by the UK’s decision to leave the EU and the EEA. This means that the residency rights no longer apply to the families of British citizens.
As Emma is from Northern Ireland, which is part of the UK, British officials regard her as British and so outside the EEA scheme. They say that to qualify, she would need to renounce her British citizenship, but she does not want to do that and does not see why she should have to do so because she is entitled to be both British and Irish. It has become a matter of principle for her.
When officials at the UK Home Office first rejected Jake’s application in 2017, they wrote: “The Good Friday Agreement recognised the right of the people of Northern Ireland to identify themselves and to be accepted as Irish or British or both. British nationality law defines which persons with a connection to Northern Ireland are British citizens, and Irish legislation specifies which people are Irish nationals.”
“In line with the 1998 Good Friday Agreement, 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 judge at the hearing in October 2017 ruled that this was incorrect because the Good Friday Agreement had changed immigration law: “He or she is permitted to choose their nationality as a birth right. Nationality cannot therefore be imposed upon them at birth.”
The couple have the support of the Irish Taoiseach Leo Varadkar who said: “The UK has got it wrong. The Good Friday Agreement is explicit on this matter – the people of Northern Ireland are entitled to be British or Irish or both.”
Emma says she fears that the UK government is no longer committed to the Good Friday Agreement. She told the Journal (https://www.thejournal.ie/emma-desouza-court-case-4801788-Sep2019/: “It makes you think what other provisions of the Good Friday Agreement they’ll throw by the wayside and how much can they get away with in watering down the Good Friday Agreement.
Meanwhile, she insists that while she has not renounced her British citizenship, she is Irish, travels on an Irish passport and so EEA residency rights should still apply to her husband.
The issue is still subject to legal argument and tribunal proceedings.