The right to be British, Irish or both

CAJ’s Daniel Holder explores the question of compliance with Northern Ireland birthright provisions in the Good Friday Agreement to be British or Irish or both in light of the recent decision to exclude NI-born Irish citizens from the ‘EU Settlement Scheme’ and Emma DeSouza’s case.

Legally treaties are to be interpreted in good faith and in accordance with the ordinary meaning given to the terms within them, in light of their context and purpose.

Article 1 of the Good Friday Agreement (GFA) commits British and Irish governments to:

…recognise 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 accordingly 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.

This can be read from the text constituting a duty on both States for such persons “to be accepted as” Irish or British or both. The question of (national) identity is also notably limited to the same categories as citizenship (the legal bond between an individual and a State.)

Rights “to hold both British and Irish citizenship” accommodate persons who choose to be ‘both’ British and Irish. This is in light of many states not permitting dual citizenship.

The final clause can be read as a duty for NI-birthrights to British citizenship continuing to be in place in a future United Ireland.

Historical context of British and Irish citizenship

After partition under the 1922 constitution persons domiciled in the South became citizens of Saorstát Eireann (Irish Free State). However, UK law treated the same persons as British Subjects - a position that Dublin needless to say resisted. In 1935 the Irish government passed citizenship legislation that reflected Dublin’s concerns, with Section 33.3 - stating that being a ‘natural born citizen of Saorstát Eireann’ did not confer any other citizenship. Under UK law the British courts disagreed, and found in Murray v Parkes (1942) that a Roscommon-born man who had moved to England, was a British Subject under British law and had been legitimately therefore subject to British Army conscription.

Section 21 of Ireland’s 1935 Act restricted dual citizenship providing that acquisition of another citizenship could lead to loss of Irish citizenship – although later legislation (1956) qualified that this would not occur where such citizenship was ‘conferred’ on a person by the law of ‘another country’ without any ‘voluntary act’ on their part.

The 1956 Irish citizenship legislation (after the Republic of Ireland Act 1948) introduced into law the term ‘Irish Citizens’. Its provisions on birth and descent, automatically conferred Irish citizenship on persons in Northern Ireland. An action considered by the then Stormont Parliament as inflicting ‘unwanted Irish republican nationality on the people of Northern Ireland.’

The concept in law of a ‘British Citizen’ began in 1983 with the commencement of the current British Nationality Act 1981, replacing the concept of a ‘Citizen of the United Kingdom and the Colonies’ from British nationality legislation in 1948. The 1948 Act ceased to consider the Republic of Ireland as part of the ‘UK and the Colonies’ and ended the practice of automatic conferral of British Subject status on Irish Citizens. The 1981 Act continued automatically to confer British Citizenship on most persons born in the UK – including NI (the main exception being the children of temporary migrants).

The pre-GFA history of considerable contestation over the imposition of citizenship by either State set the context for what was included in the 1998 Agreement.

The consequence of the GFA on Irish and British citizenship law

After 1998 Ireland amended its citizenship legislation to reflect the ‘birthright’ provisions in the GFA (also linked to the GFA changes in Article 2 of the Irish Constitution). The changes were taken forward by new citizenship legislation in 2001 that amended Ireland’s 1956 Act.

The 2001 amendments changed the provisions for Irish citizenships by birth away from automatic conferral of Irish citizenship on all persons born on the Island of Ireland, to one of an entitlement to be an Irish citizen.

Then Minister of Justice, John O'Donoghue set out that this change had been made to “ensure that our citizenship law reflects the new constitutional position and respects the right of those born in Northern Ireland to regard themselves as Irish or British or both, as they so choose.” He added that the legislation would “ensure respect for the position of those who do not wish to exercise that entitlement. At the same time, those who wish to assert their Irish citizenship are free to do so.”

Whilst the provisons on citizenship by descent are more complex, the clear intent of the Irish government was to bring citizenship law in line with the GFA, by making Irish citizenship an entitlement rather than an imposition. (Ireland changed its citizenship law in 2004, to limit the entitlement to those with a parent who was Irish/British or otherwise a permanent resident).

The UK, by contrast, resisted implementation of a number of GFA rights based provisions and continues to automatically confer British Citizenship on people born in Northern Ireland, rather than it being an entitlement.

Notably other official UK interpretations of the GFA did not lend themselves to the position that an NI-born person could not choose to be an Irish citizen only.

The 2008 ‘Citizenship Review’ conducted by the former UK Attorney General Lord Goldsmith QC contained the interpretation that, ‘the Good Friday Agreement confirms the right of the people of Northern Ireland to take either British or Irish citizenship or both.’

The same year, the Northern Ireland Human Rights Commission in its GFA-mandated advice on the content of a Northern Ireland Bill of Rights also interpreted the birthright provisions as providing for persons to be British or Irish citizens, (or both). The Commission recommended the incorporation of a birthright to citizenship in the Bill of Rights. The proposed right, which would have obliged the alteration of UK Citizenship law referred to “The right of the people of Northern Ireland to hold British or Irish citizenship or both … with no detriment or differential treatment of any kind.”

Curiously the NIO in its dismissive response to the recommendation, set out an understanding that all NI-born persons remained dual British and Irish citizens, as a matter of UK and Irish law respectively (and that nobody was solely either an Irish or British citizen.)

Regardless of British citizenship law the Home Office nevertheless ‘accepted’ NI-born persons who chose to be solely Irish citizens, as such in relation to other statutory provision until 2012.

An example is provided by the ill-fated UK Identity Cards scheme, where the Home Office ultimately conceded that it was incompatible with the GFA to compel NI-born Irish citizens to carry planned UK Identity Cards which identified the holder as a 'British Citizen’. The scheme was abandoned in 2010.

Furthermore being an Irish citizen in NI means being an EU citizen in another member state. This brings certain EU rights, including a right to be joined by family members. The equivalence for NI-born British citizens is the ability to invoke the same right if taking up residence in the Republic or elsewhere in the EU.

The exercise of these EU rights was respected by the Home Office until 2012.

However, all this changed in 2012. With Theresa May as Home Secretary, the initiation of 'hostile environment' policies commenced, and so did an era of draconian measures in pursuit of political targets to reduce migration.

The Home Office seized upon the case of McCarthy (an EU ruling concerning limitations on dual nationals accessing EU rights) and relying on the continued conferral of British citizenship on the NI-born, ceased to treat NI-born applicants as Irish citizens, but as dual British citizens who were not entitled to EU rights in the UK. This position was taken despite the facts of McCarthy (an English woman in England who had taken up Irish citizenship and sought to exercise EU rights) being irrelevant to the circumstances of birthrights under the GFA. The policy decision was taken precisely to block access to certain EU rights and benefits, specifically EU rights to be joined by family members from outside the EU.

It is precisely this policy which has been challenged in the ongoing case of Emma and Jake DeSouza. The Immigration Tribunal held in favour of the DeSouzas, in that due to the GFA Emma DeSouza was entitled to be treated as an Irish citizen only if she so chose. The Home Office have appealed the decision.

The Home Office's defence of its policy is largely grounded in the following two assertions:

Firstly, remarkably, that it is not bound by the terms of the GFA, (an international peace agreement the UK and Ireland lodged with the UN) and is therefore not required to amend its legislation as the UK Parliament is supreme.

Secondly, in contradiction, the Home Office argues that there is nothing in the GFA that prevents British citizenship being conferred at birth, and therefore law is compatible with the GFA.

The Home Office has also suggested that if NI-born persons want to be treated as Irish citizens they should pay a £372 fee and renounce British citizenship, which involves making a non-GFA compliant declaration of being a British-citizen and risking whatever broader consequences come with renunciation.

The exemplar campaigning work by the DeSouzas led to Theresa May announcing a review of NI Irish citizen family cases in February 2019; although it has since transpired that it has no terms of reference or time frame.

The Human Rights Commission and others have argued for an amendment to the British Nationality Act 1981. This could see British Citizenship as a birth entitlement, in the same way Irish citizenship now is.

Implications for Irish citizens EU rights post-Brexit

The Home Office position has to date affected dozens, if not hundreds of persons born in NI in similar situations to the DeSouzas. However, the recent decision to adopt the same approach to the EU Settlement Scheme significantly amplifies the potential impact the policy approach could have on all Irish citizens in NI. Irish citizens will automatically retain EU citizenship after Brexit, and certain rights to basic free movement to live, visit, retire etc elsewhere in the EU but many other EU rights and benefits are not automatically retained.

One alternative option to retain some EU rights was application through the Home Office’s EU Settlement Scheme enabling EU citizens living in the UK before Brexit to retain a raft of EU entitlements that are set out in the EU ‘citizens rights’ section of the EU-UK Brexit Withdrawal Agreement. (The same provisions apply to British citizens in other EU states). The criteria in the Withdrawal Agreement do not preclude applications from dual citizens.

During the pilot phase of the Settlement Scheme its legislation (‘Appendix EU’ of the Immigration Rules) allowed any EEA citizen– including NI-born Irish citizens- to apply. But the Home Office changed the criteria, as of March 29, with the purpose and effect of preventing NI-born Irish citizens from applying.

Whilst the Home Office line is that Irish citizens in NI do not need EU rights under the Settlement Scheme as there is specific provision for Irish citizens under the Common Travel Area (CTA) arrangements, the reality is the CTA provisions, are limited (not covering family reunification), ill defined, largely unenforceable, and not enshrined anywhere as rights.

As things stand NI-born Irish citizens are rendered among the only EU citizens in the UK who are prevented from retaining EU rights under the Scheme.

Daniel Holder has been the deputy director of the human rights NGO the Committee on the Administration of Justice (CAJ) since 2011. He is also the co-convener of the Equality Coalition – a network of equality NGOs and trade unions jointly convened by CAJ and Unison. He is a member of the BrexitLawNI team, a partnership between the law schools of Queen's and Ulster Universities and CAJ focusing on the constitutional, peace process and human rights implications of Brexit.