Colette Browne: Timing of DeSouza citizenship verdict could not be worse as fears grow Irish could lose rights and identity
The constructive ambiguity that fosters peace between two distinct communities in Northern Ireland was dealt another blow this week when an Upper Tribunal revealed an uncomfortable truth: the British state regards people born in Northern Ireland, to a British or Irish citizen parent, as British - even if they don't want to be.
"On a webpage of the Northern Ireland Administration, there is a passage which says: 'people in Northern Ireland can choose to be British citizens, Irish citizens or both'. This webpage is not an authoritative source of law… it must be regarded as wrong," was the verdict of the tribunal.
This declaration came as a shock not just to Emma DeSouza, who took the case, but to hundreds and thousands of people in Northern Ireland who identify as Irish and hold Irish citizenship.
Issues of identity were central to the conflict that plagued Northern Ireland for decades and the Good Friday Agreement (GFA) was supposed to have been a clear statement of fact that both traditions, and communities, would be accorded equal respect under the law.
It recognised "the birth-right 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 accordingly confirm 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".
However, what the tribunal in the DeSouza case has highlighted is the GFA is a bilateral international treaty, between Ireland the UK, and does not supersede the laws of the UK. International law, in both the UK and Ireland, is not directly applicable. For that to occur, it has to be incorporated into domestic laws.
In Ireland, there was a referendum which changed the Constitution so that Article 2 now states "it is the entitlement and birth-right of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation".
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Meanwhile, Northern Ireland had a consultative referendum, which found 71% support for the GFA but had no impact on the law and the UK introduced The Northern Ireland Act, but that did not deal with issues of identity or citizenship.
As the tribunal made clear, the GFA has no bearing on determinations of citizenship in British courts. The answers to those questions can be found in the British Nationality Act 1981, which was not changed following the GFA.
In essence, people in Northern Ireland can identify as Irish if they like, but the law does not recognise your identity. Only your citizenship.
The tribunal also raised valid concerns with the notion of a system of nationality that was based on consent, as outlined in the GFA. If nationality in Northern Ireland required consent, at what point would that consent be sought or how would it be signified?
The risk of such a system, according to the tribunal, is that people could be born stateless until such time that they consent to citizenship, which would be a breach of both countries' international obligations to prevent statelessness.
The judgment in this case would have been controversial at any time but coming, as it does, at a time of great uncertainty before the UK exits the EU it has caused outrage. The nationalist community have already been faced with the serious prospect of a hard Border in the wake of a no-deal Brexit.
Now, a tribunal has informed them that, even if they hold an Irish passport and identify as Irish, they remain, first and foremost, British.
It must feel like all of the progress of the past 21 years is being steadily chipped away, with the nationalist community being trapped in a region which is pursuing a British nationalist agenda while simultaneously erasing their right to their identity.
As well as the psychological impact of the judgment on those who feel their Irish identity is under attack, alarm has been raised about the implications of the judgment on Irish citizens who remain in Northern Ireland post-Brexit. These concerns, at least, are unfounded.
Ms DeSouza's case, in reality, is quite niche. As she doesn't identify as British, she wanted to apply for a residence card for her American husband using her status as a European Economic Area (EEA) national.
This would have meant her application would have bypassed stringent UK immigration laws, which pertain to British citizens, and availed of provisions in EU law which guarantee freedom of movement for EU citizens and qualifying family members.
Britain's Home Office fought her case as it said she does not meet the legal definition of an EEA national, "a national of an EEA state who is not also a British citizen".
In essence, the British government opposed her application as it didn't want a situation in which the nationalist community in Northern Ireland could circumvent UK immigration law by using EU law designed to protect freedom of movement.
If Ms DeSouza had been born in the Republic, she would not be entitled to rely on EU immigration law and leapfrog Irish immigration law to obtain a right of residence for her husband, either.
The truth is that Irish citizens in Northern Ireland will retain their EU citizenship after Brexit, whatever the British government's law on citizenship states.
This is not to say there will not be questions that need to be clarified during the Brexit negotiations. Some EU rights are contingent on residency in an EU member state - like the right to obtain and use a European Health Insurance Card and the right to study in the EU without being subjected to the exorbitant fees associated with international students.
However these are issues that should not be beyond the wit of EU negotiators to resolve. Questions of identity, which go to the core of how we view our place in the world, are much more difficult to navigate.
People in Northern Ireland were told they could choose to be British or Irish or both and, while that distinction made no difference to the rights they enjoyed, it helped to end a conflict that spanned decades and claimed more than 3,000 lives.
Now they have been told that those assurances are incorrect and that one identity, that of British citizenship, takes precedence over others.
This will have to be addressed.