"It is simply who I am": Inside the court case testing the Good Friday Agreement's citizenship rules

When Emma and Jake DeSouza married in 2015, they didn’t expect to find themselves locked in a legal logjam just to be able to live together in the same country. But that is exactly what has happened. In the process, their marriage has exposed complexities and contradictions which strike at the core of Northern Ireland’s contested place within the United Kingdom.

Today, after a legal battle with the Home Office spanning several years, a court hearing will examine the couple’s case with potentially profound implications not only for their own lives but the wider status of the Good Friday Agreement.

One of the key components of the peace accord which marked the end of Northern Ireland’s decades-long Troubles conflict in 1998, was a commitment that people born in the region could make the personal choice to identify as British, Irish or both. This was a crucial element in ending the conflict, as it recognised the contested nature of identity in the state and the fact that while a small majority of the population identifies as British (due to their heritage tracing back to the Plantation of Ulster by British settlers under the colonisation of Ireland), a considerable minority identifies as Irish (due to their heritage as descendants of the native Irish population).

For many nationalists and Republicans, this amounted to a major and long-overdue recognition of their inherent Irishness and an ability to reject the label of Britishness with which they felt no affiliation and often considered a colonial label imposed upon them. The provision is not a controversial one, particularly among Northern Ireland’s post-conflict generations of millennials and Gen Z for whom it is merely another normal part of day-to-day life in the region and scarcely worth passing comment on.

Emma, who was born in County Derry, has always considered herself to be Irish. Her husband Jake was born in the United States; the couple met when she was holiday in Los Angeles. After they married in Belfast four years ago, they began the process of applying to stabilise his immigration status so the couple could live together in Northern Ireland.

Initially, he applied for an EEA residence card as the spouse of an Irish citizen, and the couple were shocked when the application was met with a refusal letter and a deportation order for Jake. They were informed that as Emma was born in Northern Ireland, the Home Office considered her to be a British national and therefore required them to apply through the different—and stricter—UK system.

Upon receiving legal advice, Emma was told that she could officially “renounce” her British citizenship and apply again. However, for her, to “renounce” her Britishness would be to accept that there was an implicit or inherent Britishness for her to reject in the first place—and so would be a clear breach of the Good Friday Agreement’s commitment that she could be solely Irish.

As she wrote in a blog post at the time: “I discovered that my lifelong Irish identity is evidently considered secondary to an unclaimed British identity. I have always believed throughout my life that I was Irish; it’s not a choice, it’s not a decision—it is simply who I am. I haven’t held a British passport or claimed British citizenship—yet there I was; in an unprecedented situation where this additional and entirely imposed citizenship was stripping me of my EU Right to Family Life.” Renouncing her British nationality would also come with the not inconsiderable fee of £372.

The couple appealed the Home Office’s decision and while they awaited their day in court, Jake’s passport was retained between 2015 and 2017. The couple say this impeded his earnings as a musician as he was unable to travel and was also unable to visit seriously ill relatives at home in the US.

In 2017, their case was finally heard, and the court found in their favour, with the judge citing the Good Friday Agreement: “[Where] the people of Northern Ireland are concerned… he or she is permitted to choose their nationality as a birthright. Nationality cannot therefore be imposed on them at birth.”

The Home Office appealed in 2017. Taoiseach Leo Varadkar has backed the couple, saying the decision to fight in an appeal is “wrong.” Earlier this year, then Prime Minister Theresa May also expressed concern about the case and promised to “urgently” review the rights of Northern Ireland’s Irish population.

Despite this, the Home Office has continued to appeal the case. After requesting numerous adjournments in 2018 and earlier this year, the case is due to be heard again today.

The DeSouzas’ case has exposed some of the tensions and contradictions between the Good Friday Agreement right to self-identification and other elements of UK law. Although their case predates the 2016 Brexit referendum, it has unfolded during the UK’s EU withdrawal negotiations and highlighted some of the potential complications for Irish citizens in Northern Ireland once Brexit happens.

Both the Irish and British governments have pledged that Irish citizens in Northern Ireland will continue to enjoy EU rights granted to them through their Irish nationality. Indeed, there have been an unprecedented number of applications for Irish passports in Northern Ireland since the referendum as many people have sought to retain those rights.

The DeSouza case illustrates, however, that recognition of Irishness within legal frameworks in Northern Ireland can be precarious. Many fear that once the UK leaves the EU this will become only more apparent.

Today’s hearing will be a major moment for Northern Ireland-born Irish people and a test of how strong the Good Friday Agreement’s provisions for self-identification really are. As the uncertainty of Brexit continues to provide a foreboding backdrop to the case, it will be watched anxiously by many Irish people in the region who fear it could be their last bulwark against the erosion of the citizenship rights promised to them in the peace process.