When Emma and Jake DeSouza look at their wedding photos, they marvel at the people they once were. “We go, wow, those people had no idea about things like citizenship or immigration laws. We were just two people who fell in love,” she says. “We were ready to start our life together and found ourselves in something we never anticipated.”
They got married in 2015; Emma (now 32), from Magherafelt, Co Derry, met Jake (now 31) – an American citizen – on holiday in Los Angeles. That Christmas she brought Jake home to meet her family, and he liked Northern Ireland so much he decided he would move over for six months. "Within three months of living in Belfast we had a puppy and we were married."
The next step was for Emma, an Irish citizen, to apply for a residence card to allow Jake to stay in Northern Ireland. It was rejected. She had been born in Northern Ireland, the official letter pointed out, and as such she was considered a British citizen. “They said that until such time as I renounce my British citizenship I could not sponsor my husband’s residence card application.”
The couple’s initial response was confusion. “I’m an Irish citizen who has only ever held my Irish passport and never held a British passport or accepted British citizenship.” How, she asks, could she renounce an identity she had never claimed?
It also raised broader questions. Virtually her only understanding of the 1998 Belfast Agreement was that it acknowledged the right of people in the North “to be Irish or British or both”; yet this appeared to disregard that.
They thought it was a clerical error; instead, the the DeSouzas found themselves in a protracted legal battle with the British government that exposed a gap between the commitments made in the Belfast Agreement and their implementation and that went to the heart of fundamental issues around the legal protection of, and respect for, the rights of Irish citizens in the North.
That battle ended last week after the UK government conceded the point and changed the immigration rules. All British and Irish citizens born in Northern Ireland will be regarded as EU citizens for immigration purposes and can apply for residency for family members under the EU settlement scheme until it ends in June 2021.
This week the DeSouzas withdrew their legal challenge. "The case is moot now," says Emma. Effectively she won, yet the victory was "bitter-sweet"
The British Home Office said the change “delivers on the commitment the UK government made in the New Decade, New Approach agreement in January 2020, which restored the powersharing Executive in Northern Ireland.”
In that document, the UK restated its commitment to the Belfast Agreement, saying it “fully respects and is committed to” its “full implementation”.
This week the DeSouzas withdrew their legal challenge. “The case is moot now,” says Emma. Effectively she won, yet the victory was “bitter-sweet”. Though the immigration rules have been changed and the principle of parity of esteem conceded, concerns remain over the extent to which the citizenship and identity provisions articulated in the Belfast Agreement are protected in UK domestic law.
“We had hoped our legal challenge could help right that wrong and force the British government to amend statute in line with its international obligations.”
Stubborn child
Emma DeSouza did not intend to become a campaigner, though she admits "my Granny would say I was always a very stubborn child. Nobody in my house was surprised that I took a firm stand on this".
Initially it was the belief that “it felt wrong, straight up wrong” that inspired their challenge; hearing the stories of other people in a similar situation turned it into a campaign.
DeSouza remembers a specific moment: “I was listening to one person, he and his American wife had brought it through the courts for three years and then they gave up because they had young children and they couldn’t keep doing it.”
People were “hurting”; she felt their experiences as if they were her own. “I said to myself, this needs to change now.”
In the US, Jake's grandmother fell ill and died; he was unable to visit her or say goodbye because his passport was being held
There were personal and financial sacrifices. The British government, they were well aware, had “endless resources”; Emma is the manager of a coffee shop in Belfast and Jake is a musician. They used their savings and crowd-funded to pay their legal fees. They are still facing a five-figure bill.
In the US, Jake’s grandmother fell ill and died; he was unable to visit her or say goodbye because his passport was being held by the immigration authorities, who refused their requests to return it.
“He didn’t get to see her before she passed, so I think for both of us that loss will always be with us. We can’t go back in time and change that.”
Yet it was the relief of others that moved them the most when the change in the law was announced.
“We were inundated with messages from families that will now be reunited and that will not have to go through what we went through. That was always our main motivation, so that’s a great feeling.”
Although the case has ended, the motivation remains. “I can’t imagine doing anything else,” says Emma. “This has become so personal for me it feels like it’s my responsibility to see this work complete.”
She describes the UK government’s concession as “a crack in the door”; she hopes to open that door all the way.
We Are Irish Too – the group she launched to campaign for the full implementation of the Belfast Agreement – will continue. She is also interested in the campaigns for a bill of rights in Northern Ireland; the rights of EU citizens in the North, not least post-Brexit; and voting rights for Irish citizens abroad in the presidential elections.
Unreliable agreement
Their case, she says, “raised a lot of concerns in terms of the British government’s commitment to the Good Friday Agreement and whether people in the North can really rely on it, because when people like myself turn to the agreement to rely on it for our rights and entitlements it turns out that gaps in the legislation mean we can’t rely on it.
“Now people are aware of it they’re going to want to see change, because they were promised parity of esteem and equality in 1998 and now they know that’s not the case.”
Brexit has only heightened these concerns. The lack of legislation, she argues, creates “real concern” about the rights of Irish citizens in the North after Brexit; she has no doubt there will be further legal challenges ahead.
"Our case has been deemed the first human rights case of the Good Friday Agreement. It could define what rights and entitlements Irish citizens in Northern Ireland would be able to access in a post-Brexit United Kingdom. "
This cuts both ways. DeSouza herself is from a mixed background; she makes the point that British citizens in the North have also benefited from the change in the law and now have access to a more favourable immigration regime than their counterparts in England, Scotland and Wales.
She is critical of unionist politicians – with the exception of the former UUP leader Mike Nesbitt – who have failed to grasp that this is not an orange and green issue, and points out that British citizens have had to renounce their national identity to keep their families together. She now intends to campaign that this should be reinstated if they so wish.
"There are British people here in Northern Ireland who now have unprecedented rights unavailable to other British people anywhere else in the UK"
Emma has always resisted any suggestion the case is solely about Irish citizens – “We’ve been consistent from day one that it affects everyone in Northern Ireland” – and describes it as “one of those rare occasions where rights are lifted up in Northern Ireland”.
Yet even this has proved contentious. In the House of Commons earlier this week the MP for East Belfast, the DUP’s Gavin Robinson, expressed “concern” at the change in the law, which he described as “intended to placate certain aspects whose spouse or partner was a British citizen as a result of being born in Northern Ireland”. Irish citizenship was, he said, “in addition to British citizenship, not instead of it”.
For DeSouza, it was illustrative of “what is still very much an uphill challenge for all of us to achieve parity of esteem and the principles of equality and respect”.
“There are British people here in Northern Ireland who now have unprecedented rights unavailable to other British people anywhere else in the UK,” adds Jake. “This is undoubtedly a multicultural, multi-belief fight.”
Fifth anniversary
In July the DeSouzas will celebrate their fifth wedding anniversary. “It’s hard to imagine life without this case, but now we can for the first time in our married lives begin to think about what our life might look like without having to continue this court challenge. That’s a beautiful moment for us as a family.”
A home of their own was one of the many things that have been put on hold; they dream of their own space for their three dogs where they can plant rose bushes and raise chickens and enjoy a more peaceful life.
“It feels like we’re now transitioning into the next stage of our lives together.”
