The definition of 'EEA citizen' in the rules for the Home Office's settled status scheme has recently changed. What are the consequences? How do these changes affect the people of Northern Ireland? Why are some people unhappy with these changes? What does British nationality law say about people born in Northern Ireland? How do these nationality laws interact with the birthright provision of the Belfast/Good Friday Agreement? What does the European Convention on Human Rights say about identity and immigration? What do the people of Northern Ireland say when they are asked about their nationality? This paper looks at the complex issues behind all these questions.
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This briefing addresses the complex interplay between the Belfast/Good Friday Agreement, citizenship, identity, the settled status scheme, and human rights in the context of Northern Ireland.
Changes to the immigration rules for settled status have sparked controversy. Media outlets and campaigners have reported that changes to the immigration rules for settled status may have ‘breached’ the Belfast/Good Friday Agreement.
The Home Office changed the definition of an ‘EEA citizen’ for the purposes of Appendix EU of the Immigration Rules. Appendix EU contains the rules for the settled status scheme which grants leave for EEA citizens and their families to remain in the UK after Brexit. The definition of an eligible ‘EEA citizen’ for settled status was changed to exclude dual British/EU citizens.
Northern Ireland is part of the United Kingdom and the British Nationality Act 1981 generally considers that a person born in the UK will be a British citizen by birth if one of their parents was either a British citizen or settled in the UK at the time of birth. The definition of an ‘EEA citizen’ for settled status would therefore exclude any dual British/EU citizen, including a dual British/Irish citizen from Northern Ireland.
British citizens have a right of abode in the UK and are not subject to immigration control, whereas settled status is a type of immigration permission with attached conditions. Generally, citizenship of a country affords the citizen with the stronger rights when compared to migrants. However, EU law rights for family reunion of non-EEA spouses are more advantageous than the UK immigration rules which apply to non-EEA spouses of British citizens.
The Belfast Agreement, more often called the Good Friday Agreement, contains within it a commitment by the British and Irish governments to allow the people of Northern Ireland to identify and be accepted as Irish, British, or both, and a right to hold both British and Irish citizenship. This part of the Agreement is often known as the ‘birthright protection’.
The Good Friday Agreement is an international treaty, so both the UK and Irish governments are required under international law to uphold the commitments they made in the Agreement.
The birthright provision has not been specifically written, or ‘incorporated’, into UK domestic law.
In the British constitutional system commitments made in international treaties cannot be relied upon directly. In order for such commitments to result in individuals having rights domestically, such provisions would need to be given effect in UK law (or, in some cases, policy).
A failure by the UK to give domestic legal effect to a provision in a treaty does not absolve the UK of its responsibilities to uphold its obligations under international law.
That notwithstanding, not all provisions of a treaty necessarily need to be written into domestic law. They may not create obligations, or, where they do, these may already be provided for in law or already be government policy.
UK domestic law does allow for dual British-Irish citizenship, and for those with this status to revoke their British citizenship and hold only Irish citizenship. Some commentators have questioned whether Northern Ireland born people having to take this ‘extra step’ to hold only Irish citizenship is in the ‘spirit of’ the Good Friday Agreement.
Northern Irish immigration and citizens’ rights campaigner Emma DeSouza has claimed that the changes to the immigration rules for settled status may create ‘two tiers’ of Irish citizens: those with only Irish citizenship who may apply for settled status, and those with dual British/Irish citizenship who are ineligible to apply. She has been involved in a legal dispute with the Home Office and more information is provided in section 3 of this briefing.
Identity in Northern Ireland is itself a complex interaction of political, religious and national affinities. The 2011 Census records that just under three-quarters (71%) of people born in Northern Ireland and living there in 2011 identified as British or Northern Irish, without also identifying as Irish. Twenty-six per cent identified as Irish only.
Some people living in Northern Ireland who have only Irish passports, and view themselves as Irish, reject the British Government’s treatment of them as British citizens. They may want, therefore, to be treated the same as Irish citizens and so be able to apply for settled status, regardless of whether or not that gives them extra legal rights.
In general terms, immigration law and issues concerning citizenship and identity may engage rights protected by the European Convention on Human Rights. Article 8 of the Convention protects the right to private and family life, and Article 14 prohibits discrimination in the enjoyment of Convention rights. Citizenship has been held to be capable of falling within the scope of Article 8, for example in the context of the arbitrary refusal of citizenship or deprivation of nationality.
 See, for example: ‘Good Friday Agreement being ‘undermined’ by Home Office’, Irish World, 4 March 2019.
 There are exceptions and this is only a basic summary of the legal position.
 For more detail see section 5.2.
 See, for example, comments by migration lawyer Simon Cox and Fianna Fáil TD Declan Breathnach, in ‘Good Friday Agreement being ‘undermined’ by Home Office’, Irish World, 4 March 2019.
 See Section 8 for the full breakdown of the survey results.