Joint Committee: It’s time to address our immigration laws

A version of this Joint Committee comment has been published in the Belfast Telegraph.

This week the Home Office has amended its immigration rules to allow people in Northern Ireland covered by the Good Friday Agreement to bring in family members through the EU settlement scheme.

The new rules reflect the recognition made in a speech by Theresa May when Prime Minister in Belfast in February 2019, that ‘in some cases recently, people have encountered difficulties in securing their rights as Irish citizens to bring in family members to Northern Ireland’. The speech announced an urgent review of the issues to deliver a long term solution consistent with the letter and spirit of the Good Friday Agreement. Among those encountering difficulties were Emma and Jake De Souza. Emma born in Northern Ireland and married to a US citizen wanted to return home with her husband. Her application was refused under UK immigration law which automatically treated her as a British citizen regardless of how she identified herself. This sat uneasily with the Good Friday Agreement provisions that the people of Northern Ireland can identify as Irish, British or both without adverse consequences. Emma De Souza launched a legal challenge which ultimately did not reach a definitive ruling as it was withdrawn following the introduction of the new rules. However, the new arrangements are a short term, quick fix and not the durable solution promised by Theresa May. The change though welcome only applies to applications made before 30 June 2021 in cases where the relationship existed before the end of December 2020. The concession is linked to arrangements under the EU settlement scheme.

The issue long predates the UK government’s decision to leave the EU. In November 2009 the Northern Ireland Office published its response to the Northern Ireland Human Rights Commission’s advice on a Bill of Rights acknowledging that the recognition of the right of people to hold Irish, British or both identities should be enshrined in a Bill of Rights. The Bill of Rights remains unfinished business of the Agreement, sitting currently with an ad hoc committee of the Northern Ireland Assembly. Meanwhile the Irish government dealt with the issue through domestic legislation long ago.

Earlier this year, the joint committee of the two human rights Commission’s published a legal analysis by Alison Harvey, an eminent QC specialising in immigration law setting out how the issue could be resolved through changes to UK immigration law. This longer term solution remains on the table and will no doubt come to prominence again once the current amended rules cease to have effect next year.

This is not the only question of citizenship sitting unresolved from the identity provisions of the Good Friday Agreement. The December 2017 joint report agreed between the UK government and the EU 27 provided the far reaching commitment to no loss of citizenship rights, opportunities and benefits for Irish citizens in Northern Ireland. How this promise would fully work in practice has never been translated into fine grained detail. Moreover, how it would be compliant with the Good Friday Agreement if not extended to those who identify as British is equally unclear. When the two Commissions raised these issues with the UK government in Brussels we were met with an insouciant shrug of the shoulder that there would be an inevitable asymmetry of rights. Whether people in Northern Ireland will be as relaxed about differences in rights when it applies in practice remains open to question.

The notion of providing retained EU rights to all the people of Northern Ireland on the basis of the Good Friday Agreement after the exit from the EU is novel and radical but not unprecedented. The Ireland/Northern Ireland protocol already contains the commitment to ‘no diminution of rights’ under the Rights and safeguards section of the Agreement. The full scope of what is covered remains to be seen. However, as a minimum the Protocol recognises that it includes keeping pace with specific EU law protections covering equal treatment in employment, self-employment, social security and access to goods and services alongside freedom from discrimination based on race and ethnic origin. In an unheralded release of a document by the UK government earlier in August the scope will also ensure no dilution of existing rights in EU law directives governing parental leave, pregnancy workers’ rights and protections for victims of crimes.

The protocol recognises the importance of the Good Friday Agreement and the EU’s continuing interest in the peace process beyond the role of Ireland as a member state acting as a co-guarantor. The Irish Human Rights and Equality Commission and the Northern Ireland Human Rights and Equality Commissions will form a dedicated mechanism under the Protocol to monitor, advise, report and where necessary enforce the no diminution of rights guarantee.

The Good Friday Agreement provides a dimension to protect EU law rights not available to the rest of the United Kingdom. The identity provisions also provide the key to unlock citizenship issues over the longer term. Realising the value and importance of this remains a challenge.

Joint Committee (Established under the Belfast (Good Friday) Agreement

Les Allamby Chief Commissioner of the Northern Ireland Human Rights Commission

Sinéad Gibney Chief Commissioner of the Irish Human Rights and Equality Commission

Notes to editors:

1. The Joint Committee Established Under the Good Friday Agreement

The Belfast (Good Friday) Agreement‘s section on rights, safeguards and equality of opportunities, provides for a joint committee of representatives of Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission, as a North-South forum for consideration of human rights issues in the island of Ireland.

The founding statutes of both the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission have ensured a formal basis in law for the Joint Committee.

The Belfast (Good Friday) Agreement, as an international treaty, recognised by the United Nations, laid down a mandate for both national human rights institutions, and the mechanism to ensure strong cooperation between them.

Irish Human Rights and Equality Commission

The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.

The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.

The Northern Ireland Human Rights Commission

The Northern Ireland Human Rights Commission is an independent statutory body first proposed in the Belfast (Good Friday) Agreement (1998) and established in 1999 by the Northern Ireland Act (1998). It is answerable to Parliament at Westminster.

2. June 2020: NI Human Rights Commission Briefing paper by Alison Harvey QC: EU Settlement Scheme extended to the people of Northern Ireland: what does it mean for me?

3. March 2020: Joint Committee Research: A Legal Analysis of Incorporating Into UK Law the Birthright Commitment under the Belfast (Good Friday) Agreement 1998 by Alison Harvey QC