As Northern Ireland looks like escaping its worst Brexit nightmares, DUP leader Arlene Foster has laid claim to some tentative optimism – and unwittingly highlighted unionism's next problem.
"If you are in a business coming over from America or somewhere else in the world and looking for access to the United Kingdom single market and the European Union single market, Northern Ireland will seem a very good place to locate your business," she told the Stormont Assembly.
Perhaps. But such businesses will be inclined to want employees with Irish passports.
Are two unequal forms of citizenship within Northern Ireland compatible with the Belfast Agreement?
The access Foster cited applies to goods. If a business wants a sales person to promote those goods around the EU, or a driver to deliver them, or if it wants someone to provide services to the EU, there will be clear advantages to that person having EU citizenship, which in Northern Ireland will be via an Irish passport.
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That person can also have full access to the UK without a British passport, by dint of being a “Northern Ireland citizen”. A citizen of the Republic will have equivalent access via the Common Travel Area. In employment terms, Brexit’s “best of both worlds” is a single-identity superpower.
This has long been obvious. In 2018, a large manufacturer in Co Tyrone asked all eligible staff to apply for Irish passports as a Brexit contingency. The story made headlines – then everything went quiet because nobody quite knew what to make of it.
It is unlawful in Northern Ireland to treat any employee or job applicant less favourably due to their religious belief or political opinion, both well-established legal proxies for being unionist or nationalist. Choice of passport goes to the heart of this distinction, as the courts also recognise.
Audacious
There are loopholes in UK law, mainly on age discrimination, where different treatment is allowed if the employer can show it is a proportionate means of achieving a legitimate aim. But the bar on this is high and getting sectarian discrimination in Northern Ireland over it would be audacious, to put it mildly.
Several times during the past two years the UK government has said sea border officials must hold British passports – a basic requirement for UK Border Force staff – only to be reminded it cannot require this in Northern Ireland. A 2018 advertisement to this effect was withdrawn after being referred to the North’s Equality Commission. If different treatment was not proportionate in this instance, it is hard to see how it ever can be.
Predictably, the DUP argued for Border Force’s British passport requirement, noting the Irish government has a similar rule.
Alternatively, the EU could extend its citizenship rights to British passport holders with a Northern Ireland address, or with a passport issued in Belfast
Unionists now face a situation that might be compared to the DeSouza immigration case, where Belfast woman Emma DeSouza contested having to acknowledge British citizenship in order to renounce it. While the legalities of this were specific, some parallels stand out.
Some of DeSouza’s critics, mainly unionists, said she should just have signed the immigration form – it would not have compromised her identity. How would they feel if an employer took the same attitude to Irish passport applications?
Some of DeSouza’s supporters, including the Irish government, said the default imposition of UK citizenship on everyone in Northern Ireland is a breach of the Belfast Agreement, in spirit if not in letter.
Are two unequal forms of citizenship within Northern Ireland compatible with the agreement?
Unworkable remedy
A final lesson is there may be no neat answers to these conundrums. DeSouza’s argument led her to seek an unworkable remedy, where everyone in Northern Ireland would be born without citizenship and choose it on reaching adulthood. The courts rejected this, while the UK Home Office has tried to patch things up by promising more diplomatic wording on its forms.
In theory, the Irish government can extend EU citizenship to everyone in Northern Ireland through an imposition of Irish citizenship, although it would have to recant its view on the spirit of the Belfast Agreement.
Alternatively, the EU could extend its citizenship rights to British passport holders with a Northern Ireland address, or with a passport issued in Belfast.
But imagine the practicalities. The Home Office only has to advise a few staff about a handful of DeSouza-type cases a year. Can every official and private business across the EU who might inspect a passport be trained to wave through one million British citizens from Northern Ireland? How many of those officials are also being trained to watch out for smuggling from Northern Ireland? Will UK citizens in Britain try smuggling themselves through Northern Ireland?
All these questions and more will be clogging up courts, commissions and tribunals from January 1st. Professionals in the field have been expecting it; their silence is because they have no idea what will emerge. One likely consensus will be scorn for unionists for bringing their plight on themselves. That combination of different treatment and hostility is, of course, what makes it discrimination.