The committee examined complex issues on citizenship, naturalisation processes, and compatibility of domestic UK citizenship legislation with the Belfast/Good Friday Agreement. Conflict between the Irish and British governments over interpretation of article 1 (vi) of the Good Friday Agreement
A conflict in interpretation of the identity and citizenship provisions of the Good Friday Agreement was highlighted in a recent high profile court case. The British government adopted the position that the people of Northern Ireland are automatically British citizens, and that the Good Friday Agreement, which enshrines the right for people in Northern Ireland to be accepted as Irish or British or both, relates to identity, not citizenship. The Irish government has openly cautioned the British government over this stance, stating that it is a misinterpretation of the agreement to create a distinction between identity and citizenship. The Northern Ireland affairs committee report stated that;
“Evidence to this inquiry has demonstrated that there remain competing views on the meaning and intention of those birth right provisions, and questions also remain as to what the right to identify “and be accepted as” Irish or British or both actually means in practice. We believe that the term “to be accepted as” has knock-on consequences that have hitherto been sidestepped. This is an example of an unhelpful difference between how the two governments seem to have interpreted the Belfast/Good Friday Agreement and the definition of certain terms.”
The committee called on both governments to reach an agreed definition of the terms contained in Article 1 (vi), adding that the differentials in definition create confusion. Article 1 (vi)
Article 1 (vi) of the Belfast/Good Friday agreement states that “both governments recognise the birth right of all the people of Northern Ireland to identify themselves and be accepted as Irish or British or both, as they may so chose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both governments.”
Ireland subsequently amended its citizenship legislation in 2001 to implement article 1 (vi), the British government however, did not amend domestic citizenship law and as such continues to declare the people of Northern Ireland as automatically British. This poses significant issues for those who identify as Irish and wish to be accepted as exclusively Irish, as seen in the DeSouza case. The British government amended domestic UK immigration law is response to the DeSouza case, which was a significant concession, however, this was a temporary fix that remedied the DeSouza case and provided a short window of 9 months for other people in Northern Ireland in the same position to avail of the news rules.
The law changes from the DeSouza case have now closed and further barriers to Irish citizens wishing to exercise their birth right to be accepted as Irish, and therefore European, continue to manifest. British government position
The British government provided written and oral evidence to the committee inquiry, stating that;
“UK law does not prevent a person of Northern Ireland, who as a matter of law may be a British citizen, an Irish citizen, or a dual British and Irish citizen, from identifying as British, Irish or both, as they may so choose”. Reliance on this argument would render the right “to identify …and be accepted as Irish or British or both” meaningless since, prior to the Good Friday Agreement, citizens could already declare themselves Irish and obtain an Irish passport. It further overlooks the commitment that citizens should be “accepted” as Irish or British or both. It is difficult to see how citizens are accepted as being only Irish if the law deems them British irrespective of their choice. Moreover, it requires individuals to renounce British citizenship to assert Irish citizenship and provides no means of recognising individuals who regard themselves as having both a British and Irish identity.
“The Belfast Agreement does not mandate, or even posit the possibility of, any changes to UK nationality law so that the acquisition of British citizenship for the people of Northern Ireland is based on choice of identity”. The Good Friday Agreement was not written as completed legislation. Irish legislators say fit to amend domestic Irish nationality law, that British legislators failed to address this legislative gap does not absolve the British government of its obligations.
The Government’s submission goes on to suggest that any change that would “see the people of Northern Ireland treated differently for nationality purposes from people born in Great Britain” would conflict with “the constitutional status of Northern Ireland as part of the UK”. Northern Ireland is and has always been separate from the rest of the United Kingdom, the Good Friday Agreement exemplifies that separation with a raft of constitutional rights, including the identity and citizenship provisions, that apply exclusively to Northern Ireland.
The position of the Northern Ireland Rights Commission is that legislative changes to the British nationality act 1981 are required to implement article 1 (vi) of the Good Friday Agreement. The commission has also highlighted that the current position of the British government is a significant divergence from previous interpretations and that little explanation has been provided by the government. Further discrimination
There exist multiple layers of discrimination towards Irish citizens in Northern Ireland that undermines their right to be accepted as Irish, and further undermines parity of esteem under the Good Friday Agreement. There are several government positions that require applicants hold a British passport, and we’ve seen advertisements, such as for Border force, that again require an applicant to be a British citizen.
Further, NI-born Irish citizens who apply for a new UK-issued European Health Insurance Card (EHIC) as an Irish and EU citizen are being denied access on the basis that they are in fact British citizens. The British government requires that NI-born Irish citizens must go through a prohibitive process to ‘be accepted as’ Irish-only. It is oppressive and discriminatory to require a person of Northern Ireland to pay a substantial fee of £372 to be accepted for who they already are, it presents a material distinction between an Irish citizen and the position of a British citizen in Northern Ireland amounting to a potential breach of Article 8 and Article 14 of the ECHR.
Article 1 (vi) of the Good Friday Agreement provides an explicit right for the people of Northern Ireland to be accepted as ‘Irish or British, or both’. The commitments under Article 1 (vi) are binding in international law and are to be interpreted in good faith in accordance with their ordinary meaning considering the context and object of the treaty. In this context there remains a duty on both States to accept a person of Northern Ireland as ‘Irish or British, or both’ and that this recognition is intended to encompass citizenship ‘accordingly’, rather than to be limited to some abstract concept of identity.