We Are Irish Too – Fact Checked

I somewhat accidentally uncovered a change to the UK immigration rules recently that will have a serious impact on the people of Northern Ireland. On March 7^th the UK Government changed the definition of an EEA national. The new definition states that EU citizens that also hold British citizenship will not meet the definition of an EEA national under the UK’s immigration rules, and will be unable to apply under the EU settlement scheme. In essence, they will be regarded as a British citizen. It is worth also noting that the exemption is only for those born British, dual British/EU nationals who have naturalised as a British citizen will still meet the definition of an EEA national.

This change will result in dual British/EU nationals being unable to apply under the EU settlement scheme and retain full access to their EU rights and benefits. It’s a change that will affect people across the United Kingdom, but stands to have a wider impact on Northern Ireland.

Northern Ireland is unique in the United Kingdom. The Belfast/Good Friday Agreement allows the people of Northern Ireland to be Irish or British or both. A complicated situation for the UK government in a post-Brexit scenario. All 1.8 million people and counting have a birth right entitlement to Irish citizenship and, through that, all the rights and benefits that flow from being an EU citizen.

The amendment that closes the settlement scheme to dual British nationals closes the scheme to all the people of Northern Ireland. This is due to the UK Government’s assertion that all the people of Northern Ireland are automatically British by birth under the British Nationality Act 1981, and that domestic nationality laws supersede the birth right provisions of the Good Friday Agreement. A position that is currently being tested through the courts in my own case.

As a result all three categories of citizens allowed under the Good Friday Agreement will not be able to legally pin their EU rights. This was always going to be the case for British citizens after the UK leaves the European Union, but myself and others have been campaigning for special citizens rights in Northern Ireland. The Good Friday Agreement calls for equality between all communities – it was hoped that if Irish citizens maintained access to EU rights and benefits, a case could be made for NI born British citizens to retain the same rights. I do not believe the solution is for NI born British citizens to have to invoke their Irish citizenship in order to access equal rights. That too would go against the right to be freely Irish or British or both.

However, a worse solution is this change to the rules. Here we’re looking at downward harmonisation, where everyone loses their rights – instead of upward harmonisation which is what we should be campaigning for.

I broke the change via Twitter, along with my view that this change will create two tiers of Irish citizens, those able to retain their EU rights within the United Kingdom and those unable to. The revelation received an unprecedented response as people across the country chose to stand in solidarity with the people of Northern Ireland. The hashtags #WeAreIrishtoo, #IstandwithEmma and #AsIrishAs all trended on Twitter and featured people from all communities and backgrounds lending support to the birth right provisions of the Good Friday Agreement. On a personal note, it was quite emotive.

Immigration, nationality laws, Brexit and the Good Friday Agreement are complicated. In response to the #WeAreIrishtoo campaign and information shared on social media, a Slugger contributor wrote an opinion piece titled Questions Over Latest Claims on Irish Citizenship Rights.

Opinion is always welcomed – however when dealing with issues as serious as this it us important to keep information factual. Below are a number of excerpts from the article which I have fact checked with my legal team and addressed below.

The opening of the article claims two pages from an “unidentified 294-page document” were shared. The document was “Statement of changes to the Immigration Rules.” There was a link provided to the original document included in the original thread.

The opinion piece states: “There is no change to the status of Irish citizens in the UK. There is no attempt to remove EU citizenship.”

However, there is a change to the status of NI born Irish citizens. They will not be considered under the definition of an EEA national in the immigration rules, and will become the only group of Irish citizens unable to apply. The words “remove EU citizenship” were not used in the thread, campaign or subsequent interviews. What is happening is NI born citizens will now be unable to access and retain their EU rights within the United Kingdom. They will be accepted as an EU national in other member states but not domestically. A point clearly made in the thread and campaign.

The opinion piece states that the campaign is “spreading unnecessary alarm.”

There are serious legal ramifications for the people of Northern Ireland through this change. Not least because the people of Northern Ireland are being excluded from a scheme which is open to all other EU nationals – because we’re being presumed as British. This in itself appears to be a breach of the Good Friday Agreement.

It continues: “The campaign promotes a misreading of the Good Friday Agreement’s provisions on identity and citizenship.”

It is unfortunate, but true, that a minority of people misinterpret the Good Friday Agreement. It is clear in stating that the people of Northern Ireland have the right 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.” The Good Friday Agreement does not say the people of Northern Ireland are to be considered automatically British.

The opinion piece states: “Irish citizens already enjoy a right of permanent residence in the UK.”

At present, Irish citizens in the United Kingdom are protected legally by EU law. The Common Travel Area does contain rights relating to residency but it is currently a political agreement that has not been legislated into UK domestic law.

It continues: “There is no need for them to apply to a special scheme.”

The “special scheme” is the EU settlement scheme, which is the UK’s enactment of chapter 2 of the Withdrawal Agreement. It is the only way to access and retain EU rights and benefits as laid out in the Withdrawal Agreement. Irish citizens have been advised that they do not need to apply, but can do so if they wish. But there is a crucially important qualifier – Irish citizens born in the South can apply if they like and Irish citizens born in the North cannot. It should also be made clear that all non-Irish family members of Irish citizens do need to apply under the scheme.

The author referred to the issues that the #WeAreIrishtoo campaign are based on as an “unnecessary problem.”

Simon Cox, an expert in international migration law, said: “The position that people like Emma [DeSouza] have been put into, in which they are given legal advice that if they renounce their British citizenship they might have a legal right to rely on EU law, is harmful to the spirit of the Good Friday Agreement.”

“Immigration officials in Whitehall, with the support of ministers, are creating a problem for people in Northern Ireland which is out of proportions to the objectives that they’re seeking to achieve.”

“In order to stop those people from being able to live with their loved ones in Northern Ireland, they’re generating a conflict within the scope of the Good Friday Agreement.”

“That’s politically really foolish and I think it shows what kind of distorted influence immigration officers have inside the British government.”

Finally, the opinion piece states: “Unionist politicians and commentators and the Government remain silent about this campaign.”

There are many unionists involved in both the case and the issues it raises. Mike Nesbitt has corresponded with Caroline Noakes on our behalf, and spoken at an Equality Coalition event saying that the situation “needs sorted out.” Unionists also vocally lent their support to the #IstandwithEmma campaign on Twitter, and they did so because the deterioration of the Good Friday Agreement affects us all.

I believe trying to box this issue into a nationalist only problem is part of the problem, not the solution. Rights are for everybody.

I sincerely hope people will take the time to look closer at the developing issues around citizens’ rights and the Good Friday Agreement. The Agreement called for equality, but the only equality we have is actually based on EU law. Once that goes, Brexit will expose further gaps in legislation that may leave the people of Northern Ireland especially vulnerable.

On a closing note I’d like to thank everyone who has raised issues stemming from this campaign. Thank you.