We are delighted to welcome this guest post by Brian Gormally. Brian Gormally is Director of CAJ and part of the BrexitLawNI project looking at the human rights and constitutional implications of Brexit.
The Agreement creates equality of citizenship
The Belfast/Good Friday Agreement (BGFA), in addition to being approved by referenda, North and South, was incorporated as a treaty between the UK and Ireland and lodged with the UN (UK Treaty Series no. 50 Cm 4705) and entitled the British-Irish Agreement 1998. Article 2 of the treaty binds both Governments to implement the provisions of the annexed Multi-Party Agreement which corresponded to their respective competencies. From a human rights point of view, although rights can be protected in a range of constitutional forms, the current reality of Northern Ireland is that the Agreement represents the best current safeguard of peace and human rights and must be protected.
The Agreement creates a unique constitutional context for Northern Ireland. One of its purposes was declared to be that the British and Irish governments wished:
To develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union; [Preamble; British Irish Treaty 1998]
There is therefore a presumption that the Treaty and the attached Multi-Party Agreement are to be understood in the context of the common membership of the European Union (EU) of Ireland and the UK. Amongst other things, this means that the Agreement is designed to build on the rights that British and Irish citizens currently have in their capacity as EU citizens in order to express the “unique relationship between their peoples” and to contribute to peace on the island of Ireland.
The particular circumstances of Northern Ireland in respect of national identity and aspiration are recognised throughout the Agreement and in particular in Article 1(vi) of the British-Irish treaty. In that provision the UK and Ireland recognised the birthright of “the people of Northern Ireland” to self-identify and be accepted as Irish or British (or both), and “accordingly” the right to hold both British and Irish citizenship, a right which the BGFA provides will “not be affected by any future change in the status of Northern Ireland.” It is apparent that the drafters of the treaty had in mind Northern Ireland joining a united Ireland as the change in status referred to. However, a UK withdrawal from the EU would also amount to a major change in status for Northern Ireland and the spirit of the Agreement implies that the citizenship provisions must be protected.
The content of citizenship rights must be equal
It is CAJ’s view that the full content of the existing rights currently accruing to Irish and British citizenship must be protected in the context of the changed status of Northern Ireland, not simply the right to choose between them. To do otherwise would be to undermine the basis of equality between the two national aspirations which was a major pillar of the Agreement. In the light of the fact that the current equality between Irish and British citizens rests, in large part, on their common EU citizenship, there are a number of areas of concern. These include the current rights of Irish and British citizens on the island of Ireland, the free movement of people throughout the Common Travel Area and the exercise of EU Treaty rights in other countries of the EU by Irish and British citizens born in the North. In addressing these areas of concern, it is also part of the ethos of the BGFA that the people of the North are not forced to choose either British or Irish citizenship to access particular rights. Otherwise, the sense of equality between the two main communities which the BGFA seeks to instil would be vitiated.
Bill of Rights Advice proposed “no detriment or differential treatment”
The Human Rights Commission’s Advice on the content of a Bill of Rights of December 2008 contained a provision on citizenship that stressed the equality between the two nationalities. It said that a provision should be drafted to ensure:
The right of the people of Northern Ireland to hold British or Irish citizenship or both in accordance with the laws governing the exercise of this right, with no detriment or differential treatment of any kind. This right would not be affected by any future change in the status of Northern Ireland [p41 NIHRC Advice].
The above proposal was one of the few elements of the Advice unequivocally accepted by the UK Government in its consultation paper, “A Bill of Rights for Northern Ireland: Next Steps,” put out in November 2009 as a response to the Commission’s proposals. They also accepted that there should be no detriment involved in the choice, but unfortunately on the basis of a misreading of Irish law.
Paragraph 6.9 of the consultation paper reads:
6.9 The NIHRC also proposes that “the people of Northern Ireland” should be able to exercise their rights to hold British or Irish citizenship or both, and to do so without any detriment or difference in treatment. In the case of an individual meeting the definition set out in paragraph 6.7, he or she is, as a matter of British law, a British national by virtue of the British Nationality Act 1981 and, as a matter of Irish law, an Irish national by virtue of the Irish Nationality and Citizenship Acts 1956 -2004, and therefore retains all the entitlements of both, whether he or she chooses to identify himself or herself as British, or Irish, or both, thus ensuring that he or she suffers no detriment as a result of any such choice.
In fact there are different legal provisions relating to the two nationalities. By virtue of the British Nationality Act 1981, people born in Northern Ireland are automatically British citizens (so long as at least one parent is British or with “settled” status). The Irish Nationality and Citizenship Act 1956 (as amended, notably in 2004) gives automatic Irish citizenship to all those born on the island of Ireland (with exceptions for temporary migrants) so long as they are not entitled to any other citizenship (Sec. 6.3). As all those born in Northern Ireland are actually British citizens by UK law, they are definitely entitled to another citizenship and so, while they are “entitled” to be Irish (Sec. 6.1) they are not automatically Irish and must claim Irish citizenship by doing “any act that only an Irish citizen is entitled to do” (most often applying for a passport), though the citizenship is then backdated to birth.
Of course, at the time of the Advice and the Consultation Paper, this distinction did not really matter since both citizenships gave EU citizenship as well and thus substantively equal status. However, after Brexit only Irish citizenship will also bring with it EU citizenship; no-one to our knowledge has so far suggested that those born in the North and “entitled” to Irish citizenship, yet who have not claimed it, will automatically “retain the entitlement” to EU citizenship.
Irish citizens will keep EU citizenship; British citizens will not
The most obvious impact of Brexit in terms of differentiating between the two citizenships to which the people of Northern Ireland are entitled will therefore be that British citizens will lose EU citizenship while Irish citizens will retain it. Article 20(1) of the Treaty on the Functioning of the European Union says:
Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
That wording makes it clear that EU citizenship depends on being a citizen of a member state; without special arrangements a citizen of a country that leaves the Union will lose EU citizen rights.
Article 20(2) details the rights involved:
Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
Of the above rights, the right to free movement and residence, with the associated right to be free of discrimination on the grounds of nationality (Article 18), is one of the most significant. It is also one that does not require contemporary residence in a member state. The right to freedom of movement and residence, at some point in the future, exists whether or not the EU citizen is currently residing in a member state. So an EU citizen currently living in the United States still has the right to enter and move and take up residence within the Union at any time and thereby access services such as health and education.
It may be that the rights detailed in Article 20(2)(c) and (d) can apply to non-resident EU citizens but the other major area of rights – the protection of the EU Charter of Fundamental Rights, the application of EU law and the jurisdiction of the European Court of Justice (ECJ) – are all largely dependent on residence in a member state. This is because EU law is mainly administered by member states and its territorial jurisdiction is, of course, limited to the territory of the Union itself (and, by agreement, to some associated areas). Irish citizens living in the North will therefore lose some rights – those dependent on residence in a member state – but will also retain those not so dependent.
In principle, then, after Brexit, there will be large populations of both Irish and British citizens living in Northern Ireland. Irish citizens will continue to be EU citizens, with the right inter alia to move freely to and within the EU and to live and work there without discrimination; British citizens will not. This will mark a major distinction between the citizenships and thereby undermine the equality on which the BGFA was based. As we have argued, it would be entirely contrary to the spirit of the Agreement to force people to choose one or other citizenship in order to access different rights.
A reciprocal agreement
One possibility to resolve the issue is that those British citizens whose eligibility for UK citizenship arises from being born in Northern Ireland could be regarded as EU citizens along with their Irish neighbours. Of course, the UK cannot bestow EU citizenship or its associated rights on anyone as it depends on being a citizen of a member state. The Irish state could presumably amend its nationality law to provide that anyone “entitled” to Irish citizenship by virtue of being born in the North “is an Irish citizen from birth” just like those born in the South and not entitled to any other citizenship. That would mean that British citizens born in Northern Ireland would also be Irish citizens, whether they wanted to be or not, and therefore also EU citizens. However, in the context of the Brexit negotiations, the EU would presumably have an opinion on such a development.
It seems unlikely that the EU negotiators would consider any movement outside the established categories of citizenship except on the basis of reciprocity. In other words, if all those born in Northern Ireland with Irish or British citizenship were to retain EU citizen rights throughout the 27 member states, other EU citizens would have to have the same rights within Northern Ireland.
The reciprocal measure would therefore be to guarantee that the rights that EU citizens currently possess would, in Northern Ireland, continue undiminished, as far as practically possible. Assuming, as we have throughout this discussion, that Northern Ireland will not remain as a full part of the EU, there may be difficulties in some areas such as the reach of EU law and the jurisdiction of the ECJ. However, the proposal would be, at a minimum, that all EU citizens, not just current residents, would have the right to enter, live and work in Northern Ireland on a similar basis as at present. This is envisaged as the UK side of a reciprocal agreement with the EU that grants EU citizenship, or at least the rights thereof, to all those born in Northern Ireland with the right to be Irish or British, irrespective of which national citizenship they choose.
Amongst other things, this would mean that there would be no possible justification for immigration controls, at least as regards EU citizens, on the Irish border.
There will clearly be objections to this proposal. One would be that it would create two classes of British citizenship, one for those born in Northern Ireland and one for the rest. The simple answer to this point is that such a division already exists with only the former category automatically entitled to Irish citizenship. In addition, we would make the point that it is not UK law that makes the current distinction between citizens born in Northern Ireland and the rest of the UK; it is Irish law. Similarly, it would presumably be Irish or EU law that would grant EU citizenship to those born in Northern Ireland. Crucially, however, the UK Government has explicitly endorsed the right of the people of Northern Ireland to Irish or joint Irish/British citizenship in a solemn Agreement and an international treaty. There is no reason why it could not endorse the right to EU citizenship, without having to claim Irish citizenship, with a similar motive of supporting reconciliation within a shared geographical and political space.
Another objection might be that allowing free entry for EU citizens to Northern Ireland would mean immigration checks on people arriving in Britain from the North. In fact this is practically unnecessary and the idea is a result of conflating the rhetoric about “regaining control of our borders” with the actuality of immigration control. No-one has so far proposed that EU citizens will not have free travel rights to the UK; the issues are around residence, work and the right to remain indefinitely. These issues are not best dealt with at borders but through labour market and other forms of regulation.
CAJ therefore puts this proposal into the public domain for discussion. It represents only one part of a solution to the inequality of citizenship that Brexit will create and we are working with colleagues to produce additional proposals. We think that the best vehicle for a number of changes to the law and constitution here is a re-drafted Northern Ireland Bill of Rights, but that is part of a broader argument. In the meantime, and while negotiations around the “Irish” dimension of Brexit are continuing, we offer this proposal as a potential aid to maintaining the equality between all our people which is the fundamental cornerstone of the Agreement.