Newton Emerson: Home Office was foolish and arrogant over DeSouza immigration case

Emma and Jake DeSouza after a tribunal ruled that people born in the north should be considered British citizens. Picture by Hugh Russell.

The solution to the Emma DeSouza case was for the Home Office to treat her husband’s immigration application as coming from the spouse of an Irish citizen, in accordance with her choice of identity as per the Good Friday Agreement.

It was foolish and arrogant not to do so.

The Home Office solution was to tell DeSouza to renounce her British citizenship, via an application form and a not inconsiderable £372 fee. DeSouza says this contravenes her choice to have never identified as British.

The solution she sought, however, was to be recognised as never having held British citizenship, despite it being automatically conferred on anyone born in Northern Ireland to an Irish or British parent.

DeSouza’s argument in her latest case, to an immigration tribunal, was that British citizenship should only be conferred if a person consents to it. This is how Irish citizenship works in Northern Ireland - a poorly understood point.

Prior to the Good Friday Agreement, the Republic granted citizenship automatically to anyone born in the south, or born in the north to an Irish parent. Everyone born in the north, regardless of parentage, was also entitled to Irish citizenship.

After the Agreement, the Republic changed its nationality law so that everyone born on the island of Ireland was automatically an Irish citizen, unless they were a UK citizen, in which case they had to ‘activate’ their Irish citizenship by doing something “only an Irish citizen can do”, such as applying for an Irish passport.

A requirement for British or Irish parentage, north and south, was added later.

The separate treatment of British citizens was a recognition of British sovereignty in Northern Ireland, reflecting the Good Friday Agreement’s withdrawal of the south’s territorial claim. It created a sort of Schroedinger’s citizenship, where everyone is simultaneously Irish and not Irish until they open their passport application.

Distinguishing between automatic citizenship and being entitled to hold citizenship in this manner is extremely unusual in nationality law and in effect applies only to Northern Ireland within the island of Ireland.

What DeSouza asked the tribunal was why British citizenship cannot operate the same way.

The tribunal’s finding is that it would make us all stateless. We cannot hold only two forms of Schroedinger’s citizenship - one of them has to be automatic. While Northern Ireland remains UK territory, as recognised by the Good Friday Agreement, British citizenship is the default.

Ireland acknowledged this in its nationality law, by granting its Irish citizenship entitlement to those who are British.

If the UK tried to enact a mirror image, nobody in Northern Ireland would be born a citizen of anywhere and the whole thing would evaporate in a puff of circular logic.

As the tribunal concluded: “a system of citizenship based upon consent of the kind for which the claimant contends simply does not work.”

Consent cannot be granted by an infant and could be changed by an adult throughout their life. This would contravene not only requirements against statelessness but “the need to have a clear and coherent mechanism for being able to establish whether a person is, or is not, a citizen.”

The tribunal also found the Good Friday Agreement does not require the UK to change its nationality law. However, the UK and Ireland are bound by treaty to prevent statelessness.

The Agreement entitles us all to identify as British, Irish or both and to be treated as such, which is where the Home Office has a clear obligation to be more flexible with its paperwork.

On citizenship, however, the Agreement only stipulates we can be both British and Irish. The tribunal found this wording was deliberate to recognise our default UK nationality. If we had been stripped of that automatic birthright in 1998, or if anyone had called for it, it would certainly have been noticed at the time.

Should there be a united Ireland, all this would be turned around and Irish nationality would become the default.

Unionists and UK officials should take more pains to understand and respect the legitimate political point DeSouza has raised about treatment of her identity.

But in terms of citizenship and the Agreement, her argument is wrong.

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