British and Irish citizens born in Northern Ireland to be treated as EU citizens for immigration purposes

The UK Home Office announced changes to the Immigration Rules on 14 May 2020, that allow all British and Irish citizens born in Northern Ireland to be treated as EU citizens for immigration purposes. Family members of British or dual British-Irish citizens from Northern Ireland will now be able to apply for status through a post-Brexit residency process known as the EU settlement scheme until it ends in June 2021. The announcement comes after a landmark legal challenge by Emma and Jake DeSouza.

THE DESOUZA CASE

In 2015, Emma DeSouza married her US born husband Jake in Belfast, and shortly after applied for an European Economic Area (EEA) residence card to stabilise his immigration status. Mrs DeSouza made the application identifying as an Irish citizen. 

The UK Home Office rejected the application as it automatically deemed Mrs DeSouza to be British, having been born in Northern Ireland. The Home Office requested that she either reapply identifying as British or renounce her British citizenship and pay a fee to reapply as an Irish citizen. However, Mrs DeSouza has never identified as British or held a British passport, having always identified as Irish. 

In 2016, Mrs DeSouza lodged an appeal challenging the decision, citing the terms under the Good Friday Agreement which allow individuals born in Northern Ireland to identify as Irish, British or both. Having only ever identified as Irish, Mrs DeSouza argued that she should not be required to renounce a citizenship that she never had. 

In 2017, the UK’s First Tier Immigration Tribunal ruled that she was an “Irish national only who has only ever been such.” The Home Office lodged a subsequent appeal which was upheld by the Upper Tribunal court in October 2019. The Tribunal stated that the people of Northern Ireland are British citizens even if they identify as Irish. The Tribunal held that even though the Good Friday Agreement conferred the right to identify as British, Irish or both, it did not supersede the 1981 British Nationality Act, which states that anyone born in Northern Ireland is automatically British until they renounce their citizenship. 

A ‘“BITTER-SWEET” ANNOUNCEMENT 

The Home Office said the changes to the Immigration Rules “delivers on the commitment the UK government made in the New Decade, New Approach agreement in January 2020, which restored the power-sharing Executive in Northern Ireland.

In a statement, Mrs DeSouza welcomed the decision as it means the Home Office “will no longer force people to renounce British citizenship in order to access rights to which they are entitled, and will instead accept the people of Northern Ireland’s right to identify themselves as Irish or British or both.”

The Home Office concessions have addressed the immigration point of law on which the DeSouza’s original legal challenge was based, by recognising Mrs DeSouza’s husband’s right to remain in the UK on the basis on her Irish citizenship. Mrs DeSouza’s right under the Good Friday Agreement to be accepted as Irish has been recognised, and means their case has effectively been won, rendering their legal challenge “moot.” In light of this, Mrs DeSouza and her husband have withdrawn their legal challenge which was to be heard in the Northern Ireland Court of Appeal in June. 

The Home Office announcement is, however, “bitter-sweet”. It is only a temporary fix until the EU settlement scheme expires in June 2021. The changes to the Immigration Rules do not address the wider concerns surrounding citizenship and identity under the Good Friday Agreement, and the right to be accepted as Irish in the wider context of UK law. The British Government still has not given domestic legal effect to the birth-right provisions enshrined in the Good Friday Agreement and automatic conferral of British citizenship on individuals born in Northern Ireland continues. 

In amending the Immigration Rules, the UK government has recognised that a conflict exists between immigration law and the Good Friday Agreement. Moving forward Mrs DeSouza hopes that the government will recognise that “this conflict continues through the automatic conferral of British Citizenship on those who do not want it."  

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Rónán is an LLB and LLM (Human Rights and Criminal Justice) graduate from Queen’s University Belfast. His work focused on areas such as mass surveillance, sexual and gender-based violence, and the relationship between minorities and the UK criminal justice system. Since then he has spent time as a legal intern at REDRESS, London and Phoenix Law, Belfast. 

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