What does the Emma de Souza ruling mean for Irish-only citizens in Northern Ireland?

The court case has exposed holes in how British law reflects the Good Friday Agreement. 

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Back in 2015, when newlywed Emma de Souza filled in the paperwork necessary for her new husband to live with her in Northern Ireland, she must have had no idea that the ensuing battle would open up a huge debate about UK citizenship laws and the peace settlement in Northern Ireland.

She had married an American man, and they wanted to live together in Co Derry, where De Souza is from. When she applied for a residence card for him, the UK Home Office rejected her application on the grounds that she had applied using her Irish passport. They deemed her to be a British citizen, and told her either to reapply as a British citizen, or renounce her British citizenship and pay a fee to apply as an Irish citizen.

But under the terms of the Good Friday Agreement, the people of Northern Ireland have a right to be British, Irish, or both: in De Souza’s case, she only identifies at Irish.  She challenged the Home Office’s decision, and in 2017 a judge said De Souza was an "Irish national only who has only ever been such”. The court ruled in de Souza’s favour.

But, four years on from the original application, the Home Office has successfully appealed that ruling, as a tribunal ruled that people born in Northern Ireland remain British citizens according to UK law, even if they identify as Irish.

It raises huge questions about citizenship law for people from Northern Ireland, and about the legal implementation of the Good Friday Agreement.

The crux of the matter is that UK law appears not to have been updated to reflect the terms of the accord struck in 1998 between Northern Ireland’s political parties and the British and Irish governments.  As it stands, citizenship laws apply equally across the UK with no Northern Irish caveats: everyone born in the UK or in a British colony before 1983 is automatically a British citizen; anyone born in the UK after 1983 is automatically a British citizen, as long as at least one of their parents is a British or Irish citizen.  That means that, even though people in Northern Ireland have a right under the Agreement to identify as only Irish, by law, they are British too, unless they apply to formally renounce their British citizenship.

So what will happen? The Taoiseach, Leo Varadkar, has made it clear that he considers the court’s ruling to be “out of the spirit” of the Agreement and has promised to raise the issue with Boris Johnson in the coming days.  Meanwhile, Varadkar’s deputy, Simon Coveney, said on Monday that the UK government “has pledged to review rules around citizenship and deliver a long term solution consistent with GFA.”

Why does it matter? Much of the Northern Irish peace settlement hinges on the rights of its people to live as either British or Irish or both, according to their political convictions, heritage and deep-rooted sense of identity. It means that someone who identifies as Irish can live their Irish identity without rubbing up much against the apparatus of the British state if they wish to do so. That can mean only having an Irish passport, working and living freely between the Republic of Ireland and Northern Ireland with no physical impediments or tangible border, or choosing mainly Irish media for news and entertainment.

As Emma De Souza’s experience shows, however, the limits of that right to live and identify as Irish in Northern Ireland are tested when that person comes into contact with the law; perhaps an understandable challenge, given Northern Ireland’s status as part of the UK.  Given the extensive rights enjoyed by Irish citizens in the rest of the UK, without British citizenship, however, it is reasonable to assume that updating UK citizenship legislation for people in Northern Ireland wouldn’t cause too much of a legal minefield.

Before De Souza’s case, many in Northern Ireland may have assumed that if they didn’t apply for a British passport, they weren’t British and were asserting their right to be only Irish. Others, equally, will have felt the opposite, that having been born in the UK, they are British, regardless of whatever form they have filled in or fee they have paid. It’s important to remember that many people do not own a passport, and citizenship shouldn’t simply be equated with passport ownership; there is a global issue with that discriminating against poorer people, and allowing the rich to "buy citizenship".

So will it be a simple question of tidying up the law?

Jonathan Powell, chief of staff under Tony Blair and the former chief negotiator on Northern Ireland, has said today that he thinks the issue is with the 1981 Citizenship Act not being updated to reflect the Good Friday Agreement’s terms, putting it down to “sloppiness”.

"I understand that the legislation that's being appealed pre-dated the Good Friday Agreement, so no-one got round to bringing the legislation into line with an international binding treaty. So somebody somewhere in government will have to sort this out,” he said, adding: "I suspect that this is just sloppiness that someone never thought about the legislative implications of it.”

It throws up the fundamental question, however, as to how people in Northern Ireland exert their right to choose their national identity. If passport ownership doesn't adequately cover the issue, will it be a question of formally declaring one way or another, or opting out? If so, at what age? Part of the current peace in Northern Ireland rests upon the fact that, since the GFA, people have had to think about that question less. Many who want a united Ireland in principle are happy with the status quo for now; younger generations have grown up without the question of their national identity being the subject of a violent conflict and bitter rolling debate. How will formalising the issue of citizenship in Northern Ireland play out in such a way that everyone's rights are respected, and will it involve asking everyone in Northern Ireland a question that many would rather not bring to the fore? 

Ailbhe Rea is political correspondent at the New Statesman