Court rules those born in Northern Ireland are British - even if they identify as Irish

Emma DeSouza and her US born husband Jake arrive for a press conference in West Belfast. Photograph:

Emma DeSouza and her US born husband Jake arrive for a press conference in West Belfast. Photograph: Niall Carson/PA Wire. - Credit: PA

A court has ruled that those born in Northern Ireland are automatically identified as British, in a case which could have ramifications for EU citizens after Brexit.

The Home Office won an appeal against an immigration tribunal case that had originally upheld Emma DeSouza's right to declare herself as Irish, without first renouncing British citizenship.

The long-running wrangle centres on her application for a residence card for her US-born husband Jake.

In 2015, DeSouza made the residence card application identifying herself as an Irish citizen, but the Home Office rejected it on the grounds that it considered DeSouza a British citizen.

Officials told her she could either reapply identifying herself as British, or renounce her UK citizenship and reapply as an Irish citizen.

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The Co Derry woman argued that she never considered herself British, so how could she renounce citizenship she never had.

During the stand-off, the Home Office retained her husband's passport for two years - a move that forced him to quit a music band, as he could not tour, and prevented him from attending his grandmother's funeral in the US.

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DeSouza took a legal challenge against the Home Office and won, with a judge at a First Tier Immigration Tribunal ruling in 2017 that she was an "Irish national only who has only ever been such".

The Home Office appealed against that decision at an Upper Tribunal hearing earlier this year. Those judges found in its favour.

Government lawyers argued that the British Nationality Act 1981 was the relevant legislation - not law flowing from the Good Friday Agreement.

They highlighted that the provisions on citizenship outlined in the agreement, which was struck between Stormont parties and the UK and Irish governments, had not been incorporated into the corresponding piece of domestic legislation linked to the peace treaty, the 1998 Northern Ireland Act.

The government said the British Nationality Act ruled that anyone born in Northern Ireland was automatically British, until such time as they renounce that citizenship.

Now DeSouza accused the UK government of failing to implement the provisions of the Good Friday Agreement into UK domestic law and has warned her case will have implications for EU citizens post-Brexit.

"Brexit brings this into sharp focus because the automatic conferral of British citizenship on Irish citizens is being used as a way to restrict and remove their EU rights and entitlements," she said.

"This right that I am exercising is the right of an EU citizen - an Irish citizen in the United Kingdom - but with this automatic conferral of British citizenship we can't access that right, we also can't access things like the EU settlement scheme.

"So there are a lot of issues around how an Irish citizen in Northern Ireland will be able to access their EU rights and entitlements.

"In many ways you have to wonder if perhaps this hard-line approach from the British government is so they can find a way to remove and restrict access to EU rights and entitlements in Northern Ireland, because no doubt it is complicated for them to deal with the fact that there are 1.8 million people in Northern Ireland with the birth right to Irish citizenship and, through that, EU rights and entitlements.

"And I believe a 'do or die' Brexit government is not interested in protecting the EU rights of people in Northern Ireland."

She was joined by Sinn Fein senator Niall O Donnghaile, Alliance deputy leader Stephen Farry, SDLP MLA Claire Hanna and former Ulster Unionist Party leader Mike Nesbitt - who said he was attending in a personal capacity.

"We have had to become active and been forced into a situation where we have to keep every day fighting for this right under the Good Friday Agreement," she said.

"It's certainly not somewhere where we could have seen ourselves going four years ago when we got married."

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