Northern Ireland’s Unique Entitlement to EU Rights and Benefits: Why the 3 Million is Really 4.8 and Counting

There is a startling contrast between the EU and Westminster’s understanding of the unique status of Northern Ireland.

In Strasbourg this week that was evident. A delegation including myself, Daniel Holder, Niall Murphy and Declan Fearon travelled there yesterday, to meet with a number of MEPs and senior EU staff to discuss the impact of Brexit on the rights of people in the north of Ireland. It was clear to me by the end of the trip – the EU just get it.

It could be that many members of the European Parliament may have read the Good Friday Agreement. If so, it’s understandable that the current British government would be at a disadvantage.

Those who do read the text understand that the EU are not official co-guarantors of the Good Friday Agreement. They cannot push the hand of the UK government anymore than the Irish government can. Even when it’s clear the rights laid out in the Agreement are being reneged on.

This is due to there being no dispute mechanism within the Good Friday Agreement, which leaves the people of Northern Ireland especially vulnerable.

Ironically, it’s exactly this kind of dispute mechanism that Theresa May herself sought to secure for the backstop, and which is in the withdrawal agreement for future negotiations. In the unlikely event that the PM’s deal is passed, an arbitration panel would be set up to protect both sides and ensure that the commitments set out in the agreement are fulfilled.

But we do not have those same protections. In essence, all the Irish or British government can do when one side abandons its commitments is politely ask for reconsideration.

As a result we’ve seen the British Home Office come up with their own creative interpretation of the citizenship entitlements of the Good Friday Agreement. The birthright provisions allow the people of Northern Ireland to be Irish or British or both. However, the department’s interpretation, and by association the British government’s interpretation, is that everyone is British by default. In doing so they have grossly neglected their duties under the Agreement, and to the people of Northern Ireland.

The impact of this position is currently felt hardest by Irish citizens, who are being advised to renounce British citizenship in order to fully realise their Good Friday Agreement right to be accepted as Irish.

To date this has affected a small but significant number of citizens. However, in a post-Brexit scenario, the rights crisis and obstacles to equality will increase tenfold and impact across the entire community. Due to the lack of mechanisms or options available, we therefore need to pull in support from every source. We need to make it clear that our rights are not to be the cost of Brexit.

This is what led myself and others to the EU this week. 

The position of the EU27 has been firm on the protection of the unique status of Northern Ireland. This is evidenced in the joint December ’17 report, where a commitment to the continuation of the opportunities and benefits of EU membership for the people of Northern Ireland was given. The strength of this commitment, however, appears though to have been lost along the way, with the paragraph 52 commitments now missing from both the withdrawal agreement and political declaration.

This was our ask: That this language, this commitment, finds a way back onto the agenda – potentially through the political declaration, should it be reopened. The commitment is still present with a clear determination to find a solution. Our view is that reinstating this text would help bring the rights issue to the table in future negotiations.

A demonstration of the need for these further assertions is my own four year legal wrangle with the British Home Office to access my EU rights as an Irish/EU national, exercising treaty rights in the United Kingdom before Brexit has even come to pass.

Further to this is the recent statement from the Immigration Minister Caroline Nokes that NI born Irish citizens are to be excluded from the EU settlement scheme.

The settlement scheme is the UK’s enactment of Article 2 of the withdrawal agreement. It provides a route for EU citizens currently in the United Kingdom to retain their EU rights. It also provides a legal underpinning to these rights that would be beneficial to those who apply under it. And interestingly, it is not mentioned in the withdrawal agreement. 

The implications of this new rule are perplexing. Are our Irish passports different to those issued to residents in the South? Are we not full Irish citizens? Not real Irish citizens? How can we be singled out and excluded as different? This sets a dangerous precedent.   

It would appear the British government are making up the rules as they go along. Or maybe the policy is another manifestation of the government’s viewpoint that a treaty HMG is a party of does not alter in the laws of the United Kingdom.

And we wonder why the EU has been insisting on a legally binding backstop…

We are walking into clear and present danger when it comes to equality, parity of esteem and identity choices under the Good Friday Agreement. Especially as it has often been EU law, not domestic law, which has underpinned equality to date.

This is about to change, potentially very quickly. What’s left will be a mess caused by a lack of legislation, the failure to implement the GFA and the absence of political will.

Northern Ireland is unique. Our rights are unique, and that right – to be accepted as Irish or British or both – was voted in by a 71% majority.

There was no majority for Brexit in Northern Ireland, and yet Brexit is taking apart the freedom to chose our identity without negative impact. We will be faced with Irish citizens having to renounce British citizenship in order to access full EU rights, British citizens having to get Irish passports in order to access basic EU rights, and dual nationals being treated as British.

A point we raised was the reality that all the people of Northern Ireland have an entitlement to be an EU citizen, now and in the future. We have a birthright entitlement to Irish citizenship. And British citizens born in Northern Ireland have an equal right to the same benefits and opportunities afforded to Irish citizens. We need to have equality of treatment. 

The rights of the 3 million EU citizens from the EU27 currently in the United Kingdom has been a central focus for the EU. But it is not 3 million. There’s a population of 1.8 million in Northern Ireland. 1.8 million citizens entitled to the same opportunities and benefits of the 3 million. We asked members of the European Parliament to consider those people on an equivalent basis, and think of the figure not as 3 million, but as 4.8 million. A point that we hope will reverberate across the EU.