This week the Home Office have been told they cannot appeal a decision made by a Belfast first-tier tribunal in November last year, which, under the 1998 Good Friday agreement, allows Irish citizens to identify as Irish and not British. This distinction allows access to more liberal EU free movement laws for Irish citizens born in Northern Ireland.
In 2015, Emma DeSouza, born in Derry, North Ireland, made an application for an EU residence card for her American husband, which was refused as the Home Office stated that under the British Nationality Act 1981, people from Northern Ireland are automatically British, even if they do not hold a British passport. Given this position, Ms DeSouza and her husband would need to apply under the normal routes for third country nationals unless Ms DeSouza renounced her British citizenship and re-applied, as she was advised to do by the Home Office. Ms DeSouza however, was not prepared to do this as she considered herself Irish and has never held a British passport.
The Home Office’s decision to refuse the application was challenged on the grounds that as an Irish citizen, Ms DeSouza was simply exercising her freedom of movement rights as a EU citizen when applying for her husband to obtain a residence card. The first tier-tribunal ruled in favour of Ms DeSouza owing to the unique 1998 Good Friday agreement, which recognises the birth right of all the people of Northern Ireland to identify themselves as Irish or British or both – as they so choose.
The Home Office were not successful in their appeal of this decision to the first-tier tribunal as they were told that there was ‘no error in law’ however they do still have the option to appeal to the upper tribunal. The Home Office may well challenge this decision further as it raises important issues on nationality in Northern Ireland. Whilst the immediate effect of this decision is minimal - as it only applies to Irish citizens who were born in Ireland, only hold Irish passports AND only identify as Irish, it is an area of law that provides a back door to very stringent UK immigration laws and allows family members of Irish citizens to use the Good Friday Agreement as a way of bypassing stricter UK domestic immigration rules.
In a statement the Home Office confirmed it is currently deciding whether to launch a further appeal.