Emma de Sousa v Home Office

by Crystal McGowan on Jun 9, 2020

All British and Irish citizens born in Northern Ireland will now be treated as EU citizens for immigration purposes, the announcement comes after the landmark court case involving a Derry woman Emma De Souza over the residency rights of her US born husband.

The move is a major victory for Emma de Souza ending a three-year battle to be recognised by the Home Office as Irish, a right enshrined in the Good Friday Agreement (GFA). The case concerned the rights of Ms De Souza a resident in Northern Ireland to be recognised as Irish, British, or both as per the terms of the Good Friday Agreement 1998.

Emma de Souza found herself at the centre of a legal battle after her application in 2015 for an EEA residence card for her US born husband, Jake de Souza, was rejected. The application was rejected 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. The Home Office told Mr De Souza the only way they could deal with his case was for his wife to “renounce her status as a British citizen”.

Ms De Souza had been denied her right to exercise her treaty rights as she was deemed a British Citizen. Despite the fact Ms De Souza only ever identified as an Irish Citizen and had never held a British passport.

Ms De Souza argued that the people of Northern Ireland have the right to be Irish, British or both under the Good Friday Agreement 1998.

The Home Office made a change to immigration rules in Parliament on Thursday 14 May 2020, finally bringing immigration law into line with the Good Friday Agreement 1998, which allows anyone born in Northern Ireland to be British, Irish or both. This confirms that British and Irish citizens born in Northern Ireland will be treated as EU citizens for certain immigration purposes.

The change in law will have wide-reaching implications and enable all citizens in Northern Ireland the right to have a non-EU or non-EEA country spouse remain in the UK without having to go through the Home Office’s onerous and costly immigration system. They will escape the Immigration Health Surcharge, English Language test and high application fees and left paying the lesser £65 EEA application fee.

This is only temporary as any third country national who wishes to apply for settled status will only have until June 2021 to do so. This is the date the EU settlement scheme closes. The Home Office said it would start accepting applications on 24 August and only those who are living in the country at the end of the Brexit transition period on 31 December 2020 would be eligible

These changes in rules also mean that family members of British or dual British-Irish citizens from Northern Ireland will be able to apply for status under the EU Settlement Scheme.

Emma De Souza commented “These changes come on the back of years of campaigning for our right to be accepted as Irish, British or both under the Good Friday Agreement”

“We personally know a number of families who will benefit from this change and we are filled with joy and relief that these families will not face calls to renounce British citizenship or years in court like we have”.