Emma DeSouza case is about much more than a technicality

It is difficult to dispute the assertion of Derry woman Emma DeSouza that the British Home Office’s insistence she is British “goes against the spirit and purpose of the Good Friday Agreement”.

The significance of the Home Office’s successful appeal against an immigration tribunal’s ruling that upheld DeSouza’s right to declare herself Irish without first renouncing British citizenship should not be buried beneath the Brexit mountain.

The addressing of the citizenship issue in the Belfast Agreement was about confronting an issue that had been contested since the 1920s in both parts of Ireland. The development of Irish citizenship law originally involved a battle with the UK to expand the limited sovereignty allowed by the Anglo-Irish Treaty of 1921 and led to protracted rows in the 1920s and 1930s.

Patrick McGilligan, the Irish Free State’s minister for external affairs in 1930, insisted the Free State could not tolerate “the complete merging of our distinctive nationality implied in the use of the term ‘British subject’ as the sole recognised and effective description of our nationals when inside our borders”.

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A solution was found in the 1935 Irish Nationality and Citizenship Act, which was about the assertion of sovereignty and the distinct nature of Irish citizenship. But as pointed out by historian Mary Daly, “little attention was paid in the drafting to the residents of Northern Ireland”; they were treated “in an identical manner to persons of Irish birth or descent that resided in Britain or a foreign country”.

This led to political protests in the Dáil and the Bill was amended to provide for northern births to be recorded in a register.

In effect the 1935 Act reinforced the State’s existing Border and this did not change with the 1937 Irish Constitution, article 9.1.1 affirming that “any person who was a citizen of Saorstát Eireann [the Irish Free State] immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland”.

Despite the Constitution’s claim of jurisdiction over Northern Ireland, Brian Ó Caoindealbháin of Co-Operation Ireland, who specialises in citizenship and borders, noted “its inhabitants continued to be deprived of full citizenship rights, thus underlining their outsider status”.

Extended citizenship

Citizenship again became an issue with the Irish Nationality and Citizenship Act of 1956, through which the government of the Republic sought to extend citizenship as widely as possible to Northern Ireland (and to Irish emigrants and their descendants abroad).

A person born in “Ireland” was understood to be someone born within the “national territory”, encompassing the “whole Island of Ireland”. This was provocative, as it seemed designed to subvert the Border.

Northern Ireland’s prime minister Basil Brooke repudiated it as a “gratuitous attempt . . . to inflict unwanted Irish republican nationality upon the people of Northern Ireland.”

Irish citizenship continued to be extended to inhabitants of Northern Ireland until the Belfast Agreement, after which, according to Ó Caoindealbháin, “the territorial implications of Irish citizenship law altered significantly”.

The Irish government renounced its territorial claim, and the agreement recognised “the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British or both, as they may so choose”, and went on to confirm that “their right to hold both British and Irish citizenship is accepted by both governments and would not be affected by any future change in the status of Northern Ireland”.

Individual choice

The understanding was that Irish citizenship was now a matter of individual choice, or as Ó Caoindealbháin puts it, it could be seen as an “unbundling” of various historic meanings of citizenship, and “the dislocation of citizenship and territory opens up possibilities of multiple citizenships without connotations of disloyalty or dissatisfaction with existing borders.

In this context the agreement can be seen as conceiving citizenship in Northern Ireland as chiefly a matter of personal identity and cultural membership. To this extent, and particularly given the acceptance by the Irish government that the entitlement of those born in Northern Ireland to British citizenship would remain in the event of reunification, Irish citizenship is perhaps now best seen as transcending the Border rather than subverting it.”

But whatever about the theories, we should remember, too, what it meant in practice for those navigating the depth of the tortured identity politics of Northern Ireland.

The words of poet Michael Longley in April 1998 after the successful conclusion of the Belfast Agreement negotiations are particularly notable: “I was born in Belfast of English parents. My father served in two world wars. I was educated at the Royal Belfast Academical Institution and Trinity College Dublin. Sometimes I feel British. Sometimes I feel Irish. Often I feel neither. This agreement allows me to feel more Irish, more British, and just as importantly, more ‘neither’ ”.

The British Home Office, however, has poured cold water on any such sense of catharsis.