The Home office has told a woman born and brought up in Northern Ireland she needs to provide proof that she is entitled to permanent residency in Belfast after she applied for a residency document for her American husband.
The woman, who identifies as Irish as she is entitled to do under the Good Friday agreement, found herself in Home Office limbo after her husband applied to be in the country as the family member of an European Economic Area national living in the UK.
Gemma Capparelli, 36, has just returned to Northern Ireland with her Chicago-born husband Dominic, 38, and their 10-year-old son, after living abroad for more than a decade.
She said she never expected the authorities to question her right to live in her hometown of Belfast just because she married an American. “It’s causing us a lot of stress. I never thought coming home would cause such angst,” she said.
The Home Office ruling comes months after a court told another Northern Irish woman who identifies as Irish that her US husband should be allowed to live with her in Derry without going through immigration procedures.
The Home Office lost its appeal over Emma de Souza’s husband, but is now appealing to the upper tribunal with a hearing scheduled for 26 November.
Her status in the eyes of the Home Office came under the spotlight when her husband applied for residency using the European Economic Area (FM) form. It gave him four categories under which to apply but, he says, none reflected the status of those in Northern Ireland who identify as Irish citizens.
Under the 1998 Good Friday agreement, all citizens born in Northern Ireland have the unique right within the UK to have Irish or British citizenship or both.
Gemma also renounced her British citizenship, at a cost of £400, because she was concerned the Home Office would consider her British and force her husband to go through the more onerous and expensive route for non-EU nationals married to Britons.
To the couple’s shock, their application was refused on the grounds that the “sponsor”, Gemma, did not show any evidence that she had permanent residency, even though she had included her birth certificate showing she was born in the UK in 1981.
The Home Office told them their right of permanent residence had expired because they had been out of the country for more than two years. “We were floored by the letter which essentially said you have no right to be in Northern Ireland,” said Dominic.
“The Home Office really are not living up to the Good Friday agreement. They are saying I’m not even a resident in my own country. It is mind-boggling,” said Gemma. “You feel like you are in limbo.”
In his covering letter Dominic explained that he did not think he and his wife fitted any of the categories on the form and explained that Gemma had renounced her British citizenship so as not to be bound by legal precedent which relates to dual nationals, known as the McCarthy judgment.
Kim Vowden, an immigration lawyer at Kingsley Napley said the issue had arisen because permanent residency is a legal concept for immigration purposes and not a birthright.
Those born in Northern Ireland are by birth British and Irish, but permanent residency is a category assigned to migrants, not natives.
Under British law, non-EU citizens married to British citizens are required to go through an expensive and onerous immigration and visa entry system.
Under EU law, EU nationals who move to Britain or return to Britain after living in the EU are, by contrast, free to have a non-EU spouse enter the country without going through third country immigration procedures.
Dominic says they had considered this route, but feared the Home Office would disqualify her from being his sponsor because she did not have a job immediately after their return to Northern Ireland.
His lawyer has written to the Home Office asking them to reconsider the application and lodged an appeal against the decision with a tribunal.
It is understood the Home Office is contacting the family to assist them in finding the right route for residency papers.
The department denied it was treating Irish citizens in any way differently to British nationals, and said it could only react to application forms presented to case workers.
“The Home Office is absolutely committed to upholding the Belfast [Good Friday] agreement and we respect the right of the people of Northern Ireland to choose how they identify,” a spokesman said.