In a new series of blog posts we introduce the countries we are comparing. Our overall aim being to develop a new socio-legal theory of European integration based on the practical usage of EU derived rights in the European society, we have selected eight smaller states (or parts thereof) for qualitative research, comprising Member States and neighbouring states from Northern, Western, Southern and (South) Eastern Europe. We start this series with Northern Ireland – a fascinating small statelet when it comes to EU-derived rights!
A look at the Northern Ireland case from the perspective of RIGHTS TO UNITE by Prof Dagmar Schiek
Firstly, Northern Ireland is certainly not a state. In 1973, when Ireland and the UK acceded to the European Economic Community, its status was disputed between those new Member States. While the Irish constitution claimed the whole of the island as national territory (Article 2 before amendment), the UK had only granted Irish independence on the condition that the territory of Northern Ireland remained British (Government of Ireland Act 1920).
EEC membership slowly initiated an approximation of both states about Northern Ireland, enabling them to end the 30 year period of civil unrest in Northern Ireland itself and human rights violations by the UK government– euphemistically referred to as “the Troubles” – with the Good Friday (Belfast) Agreement (GFA) of 1998.

Under the GFA, Northern Ireland remains British until majorities in Northern Ireland and Ireland support Irish unification (Constitutional Issues), requiring changes of the Irish Constitution and the repeal of the Government of Ireland Act. The GFA and its subsequent additions recognise common responsibility of Ireland and the UK for Northern Ireland, through the cooperation in the British-Irish Council and the British Irish Intergovernmental Conference, and some autonomous competence (“devolution”) of Northern Ireland’s legislative assembly (parliament) and executive (government).
The hybridity of Northern Ireland as a territory is mirrored in the respect for different national identities on its territory, with identification as British or Irish or both granted as a privilege to those counting as “people of Northern Ireland”, i.e. those born in Northern Ireland descending from either British or Irish parents or parents with a permanent residence status in Northern Ireland (the latter category included EU citizens). Persons belonging to the people of Northern Ireland remain free to claim Irish or British citizenship or both, in other words their citizenship is hybrid as well.
The end of the conflict over Northern Ireland also relied on guaranteeing rights for its population, mirroring the fact that Northern Ireland is the only part of the island of Ireland which had a civil rights movement inspired by Northern American equivalent, whose start in 1968 coincided with the “troubles”, and which peaked in demonstrations for equal housing rights, culminating in “Bloody Sunday” [1]. The GFA committed the UK and Ireland to become signatories of the European Convention of Human Rights and ensuring its effective implementation, and also listed a body of rights to be protected within Northern Ireland under the heading “Rights, Safeguards and Equality of Opportunity”, with two subheadings “Human Rights “ and “Economic Social and Cultural Issues”.

The Human Rights part comprises democratic rights (free political thought; freedom and expression of religion; pursuit of national and political aspirations, including Irish unity – constitutional change – democratically and peacefully as well as economic rights (to freely choose one’s place of residence) and rights to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity; to freedom from sectarian harassment; and the right of women to full and equal political participation.
While the Irish Constitution is light on rights guarantees, constitutionally guaranteed rights were an absolute novelty for the UK. Its Human Rights Act 1998 was the first instrument approximating a human rights guarantee, though it only provided for a declaratory judicial finding of human rights violation without direct effect.
The EC (later EU) legal order with its claim of primacy and direct effect was the source of juridification of rights-guarantees in the UK, which is seen as a gift by Young et al [2], though efficient rights derived from EU citizenship remained a monstrosity, as Elspeth Guild suggests [3]. EU membership thus equipped UK law and the UK judiciary with the instruments to breathe life into the rights guaranteed by the GFA. During EU membership, free movement rights enabled borderless life on the island of Ireland, not only for British and Irish citizens but also for any other EU citizen, which underpinned the GFA rules, and obliterated reliance of its absent enforcement mechanisms.
Before the UK’s secession from the EU became a reality in 2021, there were some discussions on whether “Brexit” was indeed compatible with the GFA. [4] These concerns gave rise to permanent special arrangements for Northern Ireland laid down in the Protocol on Ireland and Northern Ireland attached to the Withdrawal Agreement between the EU and the UK. The debate from 2016 onward soon centred on the physical trade in goods, as it was assumed that the movement of goods across the island of Ireland, but not the movement of persons or services, would require the re-establishment of physical border controls.

Accordingly, the Protocol Ireland/Northern Ireland, which after a change in 2023 may be referred to as “Windsor Framework”, is in its 2023 version much more expansive on movement of goods and state aid (Articles 4-10, with annexes 2-6) than on citizens’ rights (Article 2-3, with annex 1), an authorisation for collaboration in other areas (Article 11) and provisions on implementation, supervision and constant change (Articles 12-18, with annex 7). Also changes of the Protocol from 2023 mainly affect Articles 4-10, i.e. movement of goods and state aid.
While the protocol does not protect citizens’ rights resulting from EU provisions on free movement of workers and self-employed persons or services, the development of citizens’ rights retained under Article 2 of the Protocol has been exceptionally dynamic. This very short provision imposes an obligation onto the UK to ensure that “no diminution of rights, safeguards or equality of opportunity” as set out in the GFA under that same heading, shall result from its withdrawal from the EU, highlighting antidiscrimination law in particular, whose extent is also specified in Annex 1.
The Northern Ireland Human Rights Commission (NIHRC), the Equality Commission for Northern Ireland and the Joint Committee of representatives of Human Rights Commissions of Northern Ireland and Ireland are empowered to bring matters of relevance to Article 2 to the attention of the specialised committee on the implementation of the Protocol (Article 14 letter d) Protocol).
Further, the UK has implemented Article 2 among others with granting the NIHRC standing to challenge domestic legislation as incompatible with Article 2 (Article 78 C Northern Ireland Act) This leads to a variety of studies of these commissions, and more working papers commissioned by them, as well as initial case law in the UK for example on the situation of migrants in Northern Ireland. The general thrust and ambition is to enhance the coverage of Article 2 Protocol to include most employment matters, and also new legislation in the field of anti-discrimination law.
The most recent judicial dispute raised by the commissions attempted to challenge sections of the Illegal Migration Act as violating the Protocol. While this claim has failed so far, there is scope for further development.
Yet even the ambitious human rights and equality commissions do not interpret the right to freely choose one’s residence, mentioned in the GFA, to encompass EU-derived free movement rights, which are also not encompassed by the Trade and Cooperation Agreement. [5] The only protection for EU-derived free movement rights in Northern Ireland is rooted in Title 2 of the Withdrawal Agreement [6] and limited to those EU citizens who were using their EU-derived free movement rights before the UK’s secession form the EU by living, working and/or studying in Northern Ireland.
It is fascinating to see how the Article 2 rights, though formally merely international law, have developed some teeth due to the empowerment of human rights institutions to protect their implementation and the development of intelligent litigation strategies. Further, frictions due to the loss of EU derived rights in areas such as consumer law or health law offer potential for fascinating research.
[1] Niall Ó Dochartaig (2005) From Civil Rights to Armalites: Derry and the Birth of the Irish Troubles, Palgrave McMillan (2nd ed), p 7-53
[2] Young, A.L., Birkinshaw, P., Mitsilegas, V., Christou, T.A. (2019). Europe’s Gift to the United Kingdom’s Unwritten Constitution – Juridification. In: Albi, A., Bardutzky, S. (eds) National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-273-6_3
[3] Elspeth Guild (2017) BREXIT and its Consequences for UK and EU Citizenship or Monstrous Citizenship, Martinus Nijhoff Law Specials Volume 94
[4] Dagmar Schiek (2018) Brexit on the island of Ireland: beyond unique circumstances, Northern Ireland Legal Quarterly 69(3):367-395, p 373-380
[5] Dagmar Schiek (2024) People – the forgotten chapter? From the EU’s neighbourhood policy to post-Brexit Ireland (north and south) – and lasting damage to the integrative capacity of the EU Internal Market project, Northern Ireland Legal Quarterly 75(1):15-26
[6] Dagmar Schiek (2021) Brexit and the Implementation of the Withdrawal Agreement, in: Federico Fabbrini (ed) The Law and Politics of Brexit: The Framework of New EU-UK Relations: Volume III 49-70, p 55-60, 64-68