Is the government breaching the GFA by imposing Britishness?
The hashtags #WeAreIrishToo and #IStandWithEmma are providing a sort of cathartic outpouring on Twitter for Irish nationalists railing against the British government’s high-handed disregard of northern nationalists’ rights under the Good Friday Agreement.
It seems, though, that this is another example of the Agreement being put to a creative use that extends beyond its text.
Emma de Souza is a Northern Ireland-born Irish nationalist who has taken a case against the Home Office. She wants her American husband to forgo UK immigration procedures because she has an Irish, not a British passport, and therefore EU freedom of movement rules should come in to play, allowing him to stay as a non-EU spouse with a residence card. These freedom of movement rules do not apply to EU citizens residing in their own member state, so her case hinges on whether she is to be considered a British citizen as well as an Irish one.
So far so technical.
The touchpaper was lit when a decision in her case — that all Northern Irish born people are British by birth — was combined with the Home Office separately excluding UK citizens from the definition of citizens of the European Economic Area for the purposes of settled status (pages 45 and 46). (With the exception of foreign-born naturalised UK citizens with joint citizenship — stay awake at the back, please). Of course that Home Office definition is hardly controversial: as pointed out on Slugger, a UK citizen has no need for settled status.
The conclusion drawn by de Souza is that the British government is “imposing blanket British citizenship” on northern nationalists and stripping them of their EU rights. The Good Friday Agreement explicitly states that Northern Irish people have a “right to hold both British and Irish citizenship is accepted”.
It is this potent combination — of enforcing British citizenship while stripping them of some as-yet unknown EU rights — that has opened the floodgates on social media under the #ImIrishtoo and #IStandWithEmma hashtags. Sinn Fein are understandably quite excited.
Yet there is something seriously amiss.
Any child born in the UK to Irish parents (whether from Drogheda or Downpatrick) is British by default at birth. Why? Because they were born in the UK to parents who at least had settled status (see the first paragraph in the British Nationality Act 1981). Irish people in the UK qualify automatically for settled status as long as they’re based here.
And the Good Friday Agreement has nothing to say about the default position of citizenship — it merely promises that both are available as a matter of choice.
So, far from the British-by-birth ruling violating the Good Friday Agreement, you could argue the opposite is true. The Agreement would be violated by excluding people born in Northern Ireland of Irish parents from default British citizenship — because it would exclude Northern Ireland from the UK for the purposes of the British Nationality Act 1981.
Therefore I don’t entirely understand the “imposing British citizenship” argument. But I do understand that there will be a horrendous muddle if the British government and courts have to distinguish between Irish citizens, (northern) Irish citizens and Northern Irish citizens. There could soon be a lengthening queue of Emma de Souzas.
An anomaly could be created where a southern-born Irish citizen gets the full package of UK legal rights —Irish citizens being more or less British for legal purposes — as well as a full package of EU rights. Her cousin from over the border may have to renounce her UK citizenship to claim full EU rights.
The so-called “blanket imposition of Britishness” has not posed a problem until now because the rights available to Irish and British citizens were the same under UK and EU law. Northern nationalists were able to activate their Irish citizenship by applying for a green passport but little of substance changed. Britain leaving the EU may fracture that seamless meld.
It’s hard to blame Sinn Fein and other nationalist campaigners for driving a wedge into that crack.
The referendum was won on a promise that Britain could regain control over how it deals with EU citizens. It is hardly surprising that that should cause particular problems where a significant number of citizens are affiliated to a neighbouring country that remains an EU member.
The Agreement created a fragile detente between British and Irish nationalist identities in Northern Ireland. This compromise was codified in the Good Friday Agreement but rests on a complex and untidy body of law and convention.
Implementing Brexit while trying to retain this compromise is like trying to sculpt a conglomerate rock with a sledgehammer.
This is what the DUP campaigned for and what Britain voted for. We may not stand with Emma, but we have to listen to her.
