Identity in Northern Ireland - The British Nationality Act & The Good Friday Agreement
The dictionary defines the term Identity "as the fact of being who or what a person is."
Each individual’s identity is personal to them. Is it inherited or is it defined by the choices we make? What does your identity really mean to you?
I can say this is a philosophical question I hadn’t given much thought to. At its core my identity is first and foremost Irish. It is not something I chose or considered, simply put, it is who I am. But would you consider me Irish if I told you I was born in Northern Ireland?
The dictionary defines that term but it doesn’t mention the unique affinity that identity has in the North of Ireland. For us it is often synonymous with religion and I am no exception to that. The political landscape and divides have changed massively since I was a child but when growing up I understood that I was born and live on the island of Ireland. I knew there were safe places and not safe places and that was often determined by your religious upbringing. Strangers presumed my identity before I’d been given the opportunity to form one for myself.
I was 11 when the Good Friday Agreement came into place. It’s an agreement between both the British and Irish governments that cements and protects the rights and status of all citizens in the North and one that I’d find myself looking towards. The peace process afforded us the great privilege to choose our nationality and put us in a unique position within the United Kingdom. I didn’t quite understand the intricacies or complexities around this right until beginning the process of stabilising my husband’s status within the UK.
It would seem that right to self identification is not so easily recognised by the UK home office
We married in Belfast July 2015
Our application for a residence card was refused on the grounds that I am "Automatically a British Citizen” as I was "clearly born in the United Kingdom"
They referred to the British Nationality Act 1981, an act of parliament. A big, intimidating, powerful law and left us with one option. I looked to my solicitor and found myself reading through a form to renounce a citizenship I never accepted or laid claim to. It starts with a declaration I am a British citizen Something didn’t feel right. I had 14 days to try to understand the BNA and GFA and how they operate alongside each other. 14 days to consider how important my Irish identity really was and I couldn’t help but feel it was being under valued. Like it was only a partial identity or a lesser one. I had the complete support of my husband who was raised in a liberal free thinking west coast of America family, who believes wholly in citizens rights and was prepared for whatever my decision would be. I focused on the Good Friday Agreement which states:
"the two governments 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 chose"
And furthermore that there was
"A general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland and a clear formulation of the rights not to be discriminated against"
We had to appeal.
By the time our hearing at the first tier tribunal came around we’d been in the process for almost two years. During this time we discovered many other couples had been through the same or similar and began to realise that what could have been a clerical error or a misunderstanding of the GFA was something more. Something institutionalised within the Home Office itself where that right to determine your identity is irrelevant should you require to utilise immigration law. They continued to hold Jake’s passport during this time, even after we found that in cases where an appeal is in progress the Home Office should only continue doing so in “exceptional cases where there are serious concerns that the applicant may abscond if the passport is returned." The unnecessary retention of passports is something I became greatly interested in and personally think a judicial review is desperately needed.
Preparing for the appeal hearing was surreal. I found myself searching through my entire life and hoping there was enough “proof” to defend who I was in my statement. We had the powerhouse for citizens rights that is Niall O’Donnghaile of Sinn Fein along with the SDLPs Claire Hanna and Alliances Paula Bradshaw all give letters of support. We waited 5 hours for a 20 minute hearing that would massively impact our lives and waited another 3 months for a decision.
Judge S Gillespie allowed our appeal under the immigration (European economic area) regulations 2006. He stated that:
"under the terms of the Good Friday agreement people of Northern Ireland are in a unique position within the United Kingdom. The British and Irish governments recognised the birthright of all the people in Northern Ireland to identify themselves as Irish or British or both, as they may so chose."
"The constitutional changes effected by the Good Friday Agreement with its annexed British-Irish Agreement, the latter amounting to an international treaty between sovereign governments supersede the British Nationality Act 1981 in so far as the people of Northern Ireland are concerned. He or she is permitted to chose their nationality as a birthright. Nationality cannot therefore be imposed on them at birth."
We were speechless. Liberated, completely overjoyed. We found the judge’s decision to be clear, concise and powerful. One line in particular resonated with me “I find the appellants wife is an Irish citizen and has only ever been such." We had won at the first hurdle and two weeks later the Home Office lodged an application to appeal to the upper tribunal which we fully expected. It was however denied on the grounds that there was “no arguable error in law" A second judge agreed that it is possible to be Irish only and be born in Northern Ireland and although we are not finished yet, they can still attempt one more appeal, we feel empowered and vindicated and optimistic that others won’t have to endure the same struggle. That there will be recognition of the right to self identify in the North, a right that with Brexit looming needs to be protected more than ever.
Permission to appeal was granted to the Home Office, we returned to court November 26th. The Home Office asked for an adjournment which means we’ll be returning to court again - within the next 6 months.
The UK Home Office argue that the provisions of the British Nationality Act 1981 and the Immigration (European Economic Area) regulations 2016 are compatible with the UKs international obligations under the British-Irish Agreement. This is incorrect.
The Secretary of state argues:
“A treaty HMG is a party of does not alter the laws of the United Kingdom”
That the courts do not have the power to enforce treaty obligations.
The Home Office routinely chooses to ignore the Good Friday Agreement leading many to believe there could be a further departure from the treaty post Brexit.
If choosing our nationality is our birthright then nationality cannot be imposed at birth.