Only Irish citizens who are not also British citizens can apply under the EU Settlement Scheme for long-term protection of their rights, according to the Home Office Minister Caroline Nokes in her response to a Parliamentary Question tabled by Labour MP John Grogan.
Under the current Home Office position that Northern Ireland-born people should be treated as British, this means that no Irish citizen born in NI could benefit from the retained EU citizens’ rights under the Withdrawal Agreement, which are to be accessed by the EU Settlement Scheme.
The Home Office stance of treating NI-born as British and continuing to confer British citizenship conflicts with the birthright duties under the Belfast / Good Friday Agreement for NI born persons to be “accepted as” Irish should they so choose.
It is this Home Office practice that has manifested itself in cases such as that of Emma de Souza. Just yesterday the Prime Minister said she had instructed the Home Secretary to ‘urgently review’ such practices.
Daniel Holder, Deputy Director of CAJ, stated: “Yesterday the Prime Minister told the Home Office to review the way it has been treating Northern Ireland-born Irish citizens as British in order to deny them EU rights that flow from being Irish citizens in part of the UK.
“At the same time you have a Home Office Minister implying she will refuse Northern Ireland-born Irish citizens the right to apply to retain EU rights under the settlement scheme on the grounds they are really British. This is the same Home Office Minister who notoriously had not read the Good Friday Agreement, and it shows. Her position makes a mockery of the Agreement’s pledge that it is the ‘birth right’ of people born in the North to be accepted as Irish or British (or both).
“Back in December 2017 separate UK-EU commitments were made for arrangements for Irish citizens residing in Northern Ireland to continue to be able to exercise EU rights – but these arrangements were never put into place. This Home Office position means Irish citizens here may be among the only EU citizens not to have a mechanism to retain some of their EU rights.”
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Notes to editors:
Parliamentary Question: Home Office Immigration: EU Nationals 213222
John Grogan MP: To ask the Secretary of State for the Home Department, whether Irish citizens born in Northern Ireland will meet the criteria for the EU Settlement Scheme should they choose to apply.
Answered by Caroline Nokes on 05 February 2019: Irish citizens resident in the UK who do not hold British citizenship will be eligible to apply to the EU Settlement Scheme if they choose. However, they do not need to do so as under the reciprocal Common Travel Area arrangements with Ireland, Irish citizens have a status in the UK separate from EU free movement rights that allows them to live, work, study and access benefits and services without being subject to a requirement to obtain leave to enter or remain in the UK.
The EU Settlement Scheme, which is to be compulsory for other EU nationals, is connected to the Citizens Rights Chapter of the EU-UK Withdrawal Agreement, and permits those who successfully apply under the Scheme to retain a range of EU rights, set out in Part II (citizens’ rights) of the Agreement.
A controversial £65 fee for applications was recently dropped. To date the Home Office line has been that Irish citizens are ‘not required’ to apply to the Settlement Scheme ‘but may do so if they wish’ (see Home Office, ‘EU Settlement Scheme: Statement of Intent’ 21 June 2018 paragraph 2.6). The response from the Home Office Minister is that only Irish citizens who are not also British citizens will be able to apply.
Given the Home Office practice of treating NI-born Irish citizens as British this would preclude applications, unless a fee of £372 is first paid to formally renounce the conferral of British citizenship.
The Belfast/Good Friday Agreement provides for a birthright for the ‘people of Northern Ireland’ to identify and be accepted as Irish or British or both. However, the UK, unlike Ireland did not amend its nationality laws to make British citizenship an entitlement and continues to automatically confer British citizenship on almost all persons born in Northern Ireland. The Home Office has then refused to accept such persons as Irish for statutory purposes – or amend its nationality laws.
This official line that Irish citizens are not required to apply under the EU Settlement Scheme is predicated on Irish citizens retaining similar rights to live, access services etc in the UK due to the ‘reciprocal rights’ for British and Irish citizens by virtue of the Common Travel Area. However, these ‘rights’ are currently largely not underpinned in domestic law at all and are in the words of the Human Rights Commissions, ‘written in sand’.
The position taken by the Home Office conflicts with the EU-UK Withdrawal Agreement, Article 10 of which provides that settlement schemes to retain EU rights are to be open for any EU citizen who has resided in the UK under EU law before the end of a Brexit transition period.
Despite the Home Offices’ assertion, Irish citizens do NOT presently have a right to enter and reside in Northern Ireland from outside the CTA other than through EU law. The Home Office itself has now introduced a bill into Westminster to remedy this gap. This is not presently however law.
All EU citizens – including Irish citizens –retain EU citizenship automatically and some EU citizens rights regardless – including free movement in the EU. However, many subsidiary rights are usually dependent on matters such as residence in an EU member state and are lost on Brexit unless specific arrangements are reached.