Legal and Symbolic Dynamics of Citizenship in Northern Ireland
In Northern Ireland, the concept of ‘citizenship’ is one which is intrinsically linked to the Belfast/Good Friday Agreement 1998 (GFA). Under the GFA, ‘the people of Northern Ireland’ represents a distinct group with its own specific set of rights. The Agreement provided a birthright for this group of people to identify as British, Irish or both, and for this choice to be accepted by both the UK and Irish Governments. In addition, the principle of ‘parity of esteem’ within the Agreement entailed that rights for those ascribing to either or both identities would be the same. Identity – in the sense of outward expression of a nationality and enactment of citizenship rights – was effectively rendered a matter for personal preference as a result of these measures.
From a legal perspective, however, these arrangements have been problematic. Under the GFA, the people of Northern Ireland are entitled to British and Irish citizenship rights. The most obvious way this is exercised is through holding a passport from either jurisdiction. In the case of British citizenship and nationality, however, these statuses exist automatically at birth under the British Nationality Act 1981. In contrast, Irish citizenship has to be actively engaged through the undertaking of an action that only an Irish citizen would be able to do (such as holding an Irish passport).
While a crude outline of complex arrangements, what this shows is that the legal practicalities of the citizenship provisions within the GFA do not succinctly align with the rights provided for in terms of national identification. This was brought into sharp focus in the DeSouza case, for example, where it was argued by the UK Home Office that in order to be able to rely on EU family reunification rights as an Irish citizen who had been born in Northern Ireland, it was necessary for British citizenship to first be renounced – an inherently problematic arrangement for individuals who consider themselves Irish-only.
The citizenship provisions within the GFA, therefore, hold symbolic meaning in enabling a person to express their national affiliation and be recognised accordingly. However, in a practical sense, the legal architecture failed to be established to fully reflect this. The DeSouza case led to change on this with regard to the EU Settlement Scheme, but while it establishes a precedent for future action, this initial step is time limited and will terminate in June 2021.
Pre-Brexit, this disjuncture attracted little attention, aided by both the UK and Ireland being member states of the European Union (EU). The 2016 referendum changed this, and the fragile equilibrium established by the GFA was challenged in a way that had not been anticipated at the time of its drafting. Where British, Irish or dual nationality had previously been (mainly) a matter of choice, a new dynamic was introduced to the decision-making process for individuals.
In this way, Brexit has given rise to an uncomfortable interface between the symbolic importance and meaning of the outward expression of identity in this way, and legal reality.
The 2016 EU referendum reimposed a binary split in Northern Ireland, which in turn has pushed debate on Irish and British identity into the spotlight with a sense of heightened urgency. A divisive referendum campaign and a series of polarising elections between 2017 and 2019 prompted extensive reflection on what it means to be British and Irish within Northern Ireland, how Brexit would potentially impact on each of these communities, and how it would contribute to shaping narratives around Northern Ireland’s constitutional future. While it is beyond the scope of this piece to examine these debates, it is important to highlight that Brexit acted as a catalyst for these happening.
The GFA has been at the centre of these discussions, and at points has come under strain. With Irish citizenship entailing access to some EU rights – something removed from British-only citizenship as a consequence of Brexit – a distinction has emerged between the practical benefits of ascribing to one over the other. While challenging the GFA’s ‘parity of esteem’ principle, this has also presented a predicament for those who have not yet or do not ever want to enact their right to Irish citizenship, and has forced a fundamental re-evaluation of citizenship both as a symbolic aspect of outward identity (in terms of how it is expressed and also perceived in certain contexts) and as a legal route to accessing specific sets of rights. Heightened sensitivities during the withdrawal negotiation process have further compounded these challenges.
In this way, Brexit has given rise to a change in how the symbolic significance of citizenship and the legal realities imposed by this choice of status overlap. This picture has been further complicated by several benefits being extended by the Irish Government to people in Northern Ireland that would otherwise have been lost due to Brexit, including continued access to the European Health Insurance Card (EHIC) and the Erasmus scheme. Notably, these do not rely on Irish citizenship, and symbolically, this gesture in practice removes the need for any trade-offs between citizenship and identity in relation to these specific matters.
This also reflects an expansion in the concept of citizenship from the Irish Government’s perspective in response to Brexit, a permitted step under Article 29.8 of the Constitution of Ireland which stems from the GFA. Yet questions abound regarding one key matter – the extension of voting rights.
In Northern Ireland, such an extension would be likely to evoke both elation and fear in different quarters. On the one hand, there is a strong argument that Irish citizens outside the state should have the right to vote in Irish Presidential elections. On the other, the Withdrawal Agreement’s Protocol on Ireland/Northern Ireland has been criticised for creating an economic union with Ireland, much to the frustration and anger of the unionist community. Extending voting rights could be perceived within Northern Ireland as a step towards Irish reunification. Further, to only enfranchise those who have engaged their Irish citizenship would be deeply problematic and would potentially undermine Ireland’s role as a guarantor of the GFA. Yet equally, to cast the net any wider would also present myriad challenges, and open Ireland to accusations of making claims over those who do not want to associate with it.
In either eventuality, it bears the potential to become an additional flashpoint for tension further to those already generated as a result of Brexit.
The security blanket that EU membership provided for Northern Ireland and the GFA has been pulled away by Brexit, and fault lines that had hitherto been possible to shield have been re-exposed. It is important that the heightened sensitivities and tensions around identity in Northern Ireland remain to the forefront of any decisions taken by the UK and Irish Governments, as Brexit has altered how the symbolic aspects of identity and citizenship overlap with the legal challenges and realities they both entail. It has given rise to a complex set of circumstances, not only in political, social and economic terms, but also at the most intensely personal level where matters of the head and the heart collide. Consequently, the shockwaves of Brexit will continue to reverberate for the foreseeable future.
Dr Clare Rice is at Newcastle University.