This article is more than 1 year old

This article is more than 1 year old

The right of Northern Irish people to identify as British, Irish or both does not automatically change their citizenship unless they formally register any change, an immigration tribunal has been told.

Fundamental questions over the enforceability of the 1998 Good Friday agreement have been raised in a test case over the residency rights of an American who is married to a Derry woman.

Emma DeSouza found herself at the centre of a legal battle after her application in 2015 for a residence card for her US-born husband, Jake DeSouza, was rejected.

Any EU citizen living in the UK in accordance with EU regulations can bring their family with them. But the Home Office initially turned down the application on the grounds that Emma DeSouza was British, even though she had never carried a British passport.

It said that as she was born in Northern Ireland, under the British Nationality Act 1981 she was automatically deemed British and would have to apply through the normal routes for third-country citizens. She could not therefore exercise separate EEA treaty rights.

The Home Office told Mr DeSouza the only way it could deal with his case was for his wife to “renounce her status as a British citizen”.

DeSouza challenged that decision on the grounds that his wife had the right to be treated as an Irish citizen under the Good Friday agreement and was therefore an EU citizen exercising her freedom of movement rights.

The first-tier immigration and asylum tribunal ruled in his favour, saying that under the terms of the Good Friday agreement people of Northern Ireland were in a unique position within the United Kingdom and could identify themselves as Irish or British, or both.

Appealing against that decision, however, Tony McGlennan QC for the Home Office argued that not all the contents of the agreement had been incorporated into UK law and it did not supersede the 1981 British Nationality Act.

The initial tribunal had made a “fundamental and egregious error”, McGlennan said. Mrs DeSouza had held British citizenship since birth “so she is not exercising treaty rights” and therefore did not fit into the category of being an EEA national.

“The mere act of identification does not change citizenship acquired at birth,” said McGlennan. “There’s no administrative formalities for the recording of that change.

“[Otherwise] a person born in Northern Ireland would be stateless unless they elected for one citizenship or another.” Until DeSouza formally renounced her British citizenship she could not invoke her EEA treaty rights.

But Ronan Lavery QC, for DeSouza, said the Good Friday agreement did not compel people to reject their citizenship. “In a country without a written constitution, the Good Friday agreement sets out provisions for people in Northern Ireland.”

Renouncing British citizenship costs £200 and would require Mrs DeSouza to tick a box accepting that she was British in the first place, Lavery said – which she does not accept.

Imagine, he suggested, that the Germans had won the second world war and imposed German citizenship on all British people. He asked: “Wouldn’t Britons find it offensive to have to go through a process of renouncing German citizenship?”

Both McGlennan and Lavery appeared via remote video-link from Belfast. The judges hearing the case, Mr Justice Lane and Jeremy Rintoul, were in a London courtroom.

They reserved judgment until a later date.

• This article was amended on 13 September 2019 because an earlier version named lawyer Tony McGlennan as Tom McGleenan.