Emma de Souza: My fight for the right to not be British isn't over

All Irish and British citizens born in Northern Ireland will from now on be treated as EU citizens for immigration purposes. It sounds like a victory, and in many ways it is. It remedies the lengthy court challenge taken against the British Home Office by my husband and me, but it does not address wider concerns over UK compliance with the identity and citizenship provisions of the Good Friday Agreement.

Our case has been labelled the first human rights case of the Good Friday Agreement. It is seen as a test of the constitutional nature of the agreement itself – not anything either of us could have imagined when we first appealed a Home Office decision to deny my husband’s application for an EEA (European Economic Area) residence card.

We were completely unaware of the wheels set in motion by that decision, fully under the impression that we were merely correcting a simple bureaucratic error.

When we began this legal challenge it was on the grounds that I, an Irish citizen born in Northern Ireland, should be entitled to the same rights and entitlements as all other Irish and EU citizens in the UK: my right under the Good Friday Agreement to be accepted as Irish-only should be respected by the Home Office, who insisted I was a British citizen.

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Neither my husband nor I have ever conformed to the outdated political moulds that still plague Northern Ireland’s political discourse – I come from an apolitical family with a Catholic mother and Protestant father, my husband Jake raised in a liberal west coast family in Los Angeles. These conditions have seen us unite into what some would consider unlikely candidates to emerge as symbols of the Northern Ireland peace accord, but then maybe that is why we were the right fit.

Immigration status

A campaign grew organically over a number of years as our knowledge and understanding of the Home Office argument grew. We obtained some stability for my husband’s immigration status in 2018, but, following persistent appeals by the Home Office, were forced to continue through the courts.

We wanted to be the last people the government would be allowed to deny their rights before someone made them accountable.

We have finally achieved that goal, and any one of the phone calls we have received from families sharing with us how they will no longer be forcibly separated, and can now benefit from these long-overdue revisions, has more than made the years we have lost to these legal proceedings worth every second.

However, much work remains to address the wider concerns raised by our case.

The Home Office policy that we fought against was made possible predominantly by a lack of legislation for the birthright provisions of the Good Friday Agreement. This legislative gap remains, and with it remains two conflicting interpretations of a key tenet of an international agreement between the two co-guarantors.

The Irish Government views article 1 (vi) of the agreement as an explicit right to identify as and be accepted as Irish or British or both, and did in fact take the appropriate legislative steps to implement this interpretation into Ireland’s nationality laws. By contrast, the UK views article 1 (vi) as a right to identify, not a right to elect to be one or the other.

It resisted implementation and continues to automatically confer British citizenship. Such a conferral is based on a fallacy: it relies on the idea that a section of an international treaty concerns itself with bestowing a right to “feel” a certain way. One must actively perform a series of mental gymnastics to imagine such a concept, and to do so must actively ignore the express wording of the provision itself.

There is no default citizenship in the Good Friday Agreement, no mention of citizenship being dependent on Northern Ireland’s place in the UK, and yet such an argument is actively pursued by London, supported by a Northern political party that campaigned against the Good Friday Agreement.

Special place

This argument creates a special place for a British identity in Northern Ireland, one that rests above that of an Irish identity. Yet it is shortsighted – if citizenship is to be entirely dependent on jurisdiction and not the Good Friday Agreement then everyone in Northern Ireland would become default Irish in the event of reunification.

It seems to me that those currently supporting default British citizenship do so from a place of privilege and with little foresight.

By investing endless resources to pursue us through the courts, the Home Office exposed deep cracks in the British government’s implementation of the its legal commitments, and raised serious questions over whether, as citizens, we can rely on the rights and protections of an international treaty when it matters most.

The people of Northern Ireland remain British citizens even if they identify as Irish under the British Nationality Act 1981, which remains unaffected by the changes to the immigration rules. Taoiseach Leo Varadkar has stated that UK nationality law is “out of step” with the Good Friday Agreement. We need the next Irish government to see this work complete.

The British government finally recognises the conflict between UK immigration law and the Good Friday Agreement – we now need the Britain to recognise that this conflict continues through the inherent incompatibility posed by the automatic conferral of British citizenship on those who do not want it.

A recent report from the Joint Committee of Northern Ireland’s Human Rights Commission and the Irish Human Rights and Equality Commission shows that legislative changes are possible. What is needed now is the political appetite to see these changes brought forward.

Emma de Souza is a citizens rights campaigner