AN American man denied a visa because his Northern Irish wife does not identify as a British citizen is finally free to live in the UK, a court has ruled.
Co. Derry native Emma DeSouza and her Californian husband Jake married in Belfast in July 2015, before applying for Mr DeSouza’s residence card in December that year.
But the couple soon found themselves in a legal battle after the application was rejected 10 months later in September 2016, on the grounds that Mrs DeSouza was British – though she had never carried a British passport.
The UK Home Office said as she was born in Northern Ireland, Mrs DeSouza was automatically deemed British under the British Nationality Act 1981.
They told Mr DeSouza the only way they could deal with his case was for his wife to “renounce her status as a British citizen”.
The pair challenged that decision on the grounds that Mrs DeSouza had the right to be treated as an Irish citizen under the Good Friday Agreement – and was therefore an EU citizen exercising her freedom of movement rights.
Under the Agreement, both British and Irish Governments recognise the birthright of Northern Ireland’s citizens to identify and be accepted as Irish, British, or both, as they so choose.
Now, a Belfast court has rejected the Home Office’s bid to appeal against a recent ruling that Mr DeSouza should be allowed to live in the UK without going through immigration procedures because his wife carries an Irish passport.
The department has been told that it cannot appeal against the decision on the grounds that “no error in law” was made by the first-tier tribunal in Belfast.
“I feel elated and quite vindicated,” said Mrs DeSouza.
“Initially I had a lot of people I know say, ‘but the Home Office is right, you are British, just sign the form to denounce being British and make the application’.
“But I feel very strongly that I am Irish. I grew up in the Troubles and as a child I experienced the sectarian violence and then to be told that you can’t identify as Irish?
I felt like even though the Good Friday Agreement upholds my rights, I felt I was being classed as a lesser identity.
“I wanted to take a stand not just for me, but for others.”
The Home Office may not appeal the judgement in the same court but has the right to go directly to a higher court – the upper tribunal – if it so chooses.
In a statement, a Home Office spokesperson said it was examining the ruling and considering whether to launch yet another appeal.