Article 2 of the Windsor Framework, the Legacy Act and the Illegal Migration Act: Adjusting to Post-Brexit Realities

The post-Brexit status of EU law in Northern Ireland was often the most controversial issue in the prolonged process of negotiating and concluding the UK-EU Withdrawal Agreement. This prominence makes it particularly surprising that the UK Parliament should have enacted the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (the Legacy Act) and the Illegal Migration Act 2023 (the IMA) with scant consideration for the application of Article 2 of the Northern Ireland Protocol/Windsor Framework. This paper assesses this provision, which lays down a distinctive baseline of rights and equality protections operative in Northern Ireland after Brexit. We explore how, notwithstanding the interminable debates over Northern Ireland within the Brexit negotiations, Article 2’s unique application in Northern Ireland law and the dominance of special trade arrangements within those negotiations, left this provision overlooked, or wished away, in the corridors of Whitehall and Westminster. We address how the Northern Ireland courts have tackled the resultant challenges in <em>In re Dillon</em> and <em>In re</em> <em>NIHRC’s Application</em>, and the risks that Northern Ireland’s special protections remain misunderstood as the litigation moves to the UK Supreme Court.