TAOISEACH LEO VARADKAR has said Emma DeSouza is an Irish citizen after the UK’s Home Office won its appeal against an immigration tribunal ruling which found that people born in Northern Ireland are not automatically British.

Speaking yesterday, DeSouza, the woman at the centre of the case, said she is “understandably devastated and disappointed by today’s decision” and will appeal it.

DeSouza, from Magherafelt in Co Derry, applied for a residence card for her US-born husband Jake in 2015. She made the application identifying herself as an Irish citizen.

The Home Office rejected the application on the grounds that it considered Emma DeSouza a British citizen. UK officials had told her she should either reapply identifying herself as British, or renounce her UK citizenship and reapply as an Irish citizen.

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

DeSouza took a legal challenge against the Home Office and won, with a judge at a First Tier Immigration Tribunal ruling 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. DeSouza revealed the outcome of the appeal at a press conference in Belfast yesterday.

“We have not received a decision in our favour, the decision has gone in the favour of the Secretary of State,” she said. “We have unfortunately lost.”

DeSouza insists that the Home Office position ran contrary to the 1998 Good Friday Agreement, which gave anyone from Northern Ireland the right to identify as British, Irish or both.

Varadkar’s stance

Sinn Féin leader Mary Lou McDonald raised the issue during leaders’ questions in the Dáíl today.

Varadkar thanked McDonald for raising the issue, and said that the “Good Friday Agreement is eloquent on this matter”, where it states that a person born in Northern Ireland has the right to be British or Irish, or both, and to be accepted as both.

Varadkar said that British laws are “out of step” with the Good Friday Agreement.

Ms DeSousa is an Irish citizen, and holds an Irish passport.

He said that he had raised this case with Theresa May, and would be raising the issue again with Prime Minister Boris Johnson.

May had said that they would review some of the issues raised by DeSouza’s case – Varadkar echoed Tánaiste Simon Coveney’s comments in committing to “continuing to actively seek an outcome of that review”.

This is not to say that we don't appreciate the work & support of both the Taoiseach & Tánaiste on this but, the Irish Government has been following up on this review for 8 months. Whilst the British Government continues to appeal against us. It's not enough. — Emma DeSouza (@EmmandJDeSouza) October 15, 2019 Source: Emma DeSouza /Twitter

Mary Lou McDonald responded by saying that the Good Friday Agreement wasn’t just eloquent but was “crystal clear on this matter”.

“Emma has been blaguarded and pursued through the courts,” she said, asking the Taoiseach to do more than just raise the issue with the British government, but to protect citizens in Northern Ireland as he had pledged to previously.

Varadkar said that “for the part of the Irish government, we will continue to uphold the GFA”, and respect that people in born Northern Ireland can be British, Irish or both.

He said that this would be done by conferring Irish citizenship on people in Northern Ireland, and as a result, citizenship of the European Union “and all the rights that flow from that”.

“We’re very much upholding our responsibilities in that regard,” Varadkar said.

This is an issue we have engaged with the UK on … This judgement seems to make a distinction between identifying as British or Irish, and being a British or Irish citizen, which is a misreading of the GFA.

To McDonald in particular, he said the response Sinn Féin wanted from the Irish government wasn’t correct.

“You raise things with people in a logical, respectful and consistent way, not demanding things, and that’s why you’re not in power in the North.”

British Nationality Act 1981

UK government lawyers had argued that the British Nationality Act 1981 was the relevant legislation – not the Good Friday Agreement.

They highlighted that the provisions on citizenship outlined in the agreement, which was struck between the 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 Nationalist Act ruled that anyone born in Northern Ireland was automatically British, until such time as they renounce that citizenship.

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

She has insisted her legal battle would go on: “After four years it’s safe to say we won’t be lying down anytime soon.”

In a statement to TheJournal.ie yesterday, the Home Office said: “The Home Office is absolutely committed to upholding the Belfast (Good Friday) Agreement. We respect the right of the people of Northern Ireland to choose to identify as British or Irish or both and their right to hold both British and Irish citizenship.

“We are pleased that the Upper Tribunal agrees that UK nationality law is consistent with the Belfast Agreement.”

With reporting by Gráinne Ní Aodha and Press Association