Yesterday, CAJ was invited to appear before the Seanad Special Select Committee on the Withdrawal of the UK from the EU to speak on citizenship rights in post-Brexit Northern Ireland. Also present were Les Allamby, Chief Commissioner of the Northern Ireland Human Rights Commission (NIHRC), and Professor Colin Harvey of Queen’s University Belfast.
Below is the full text of our opening statement, given by our Deputy Director Daniel Holder:
We are very grateful to the Special Select Committee for the invitation to give evidence today on the subject of citizenship rights. As you may know, the Committee on the Administration of Justice (CAJ) is a Belfast based independent human rights organisation. We co-convene the Equality Coalition with UNISON and were the NGO partner in BrexitLawNI, a joint project with the law schools of Queens and Ulster Universities.
The Good Friday Agreement (GFA) recognises the birthright of those born in Northern Ireland to be Irish or British or both. This is a treaty-based duty on the UK and Irish states. The same provision also obliges both states to recognise dual citizenship (many other states do not). Related provisions within the GFA on equality and parity of esteem mean that there is intended to be equality of treatment regardless of how an individual chooses to exercise this birthright.
At the time of the 1998 GFA, there was a fairly comprehensive legal framework in the North that ensured Irish citizens in NI equality of treatment with British citizens across a range of areas. Unfortunately, that legal framework was EU law, which is going to be turned off by Brexit. Despite all the attempts to talk up the framework of the Common Travel Area (CTA), what is left is very precarious. In fact, as things stand, it is not possible for someone born in Belfast to land in a Belfast airport on any international journey and enter and reside in Belfast, as an Irish citizen – that right currently only exists under EU law. Though there is a bill in Westminster to remedy that particular gap, the same clause also makes it easier to exclude or deport the same person. Whilst there are many assurances about the largely mythical ‘reciprocal rights’ of the CTA, the UK isn’t putting in place a replacement legal framework to ensure equality of treatment for Irish citizens. In fact, if you want a right as simple as not being at risk of deportation from your country of birth, then the recent direction of travel from the UK government appears to suggest that you will only have that right by virtue of being considered a British citizen.
Things are not so rosy either in NI for those who choose under the GFA to be British. Irish citizens in NI of course will retain EU citizenship and the basic freedom of movement in the EU that comes with it; British citizens will not. Brexit has managed to turn everyone into a second class citizen in different ways. That is before we even get onto the implications for our migrant communities, already facing increased racial profiling and discrimination. Brexit leaves different groups of our citizens ‘divided by the rules’ – to quote the title of a recent conference we ran on this subject.
It is Brexit that is creating real difficulties in complying with the equality of treatment principle of the GFA. Without some form of special status for the North, which allows British citizens to retain EU citizenship, it is difficult to see how any form of Brexit can comply with these provisions of the GFA. Had Westminster discharged its duties under the GFA to legislate for the Bill of Rights for Northern Ireland, it would have been hard to lawfully apply Brexit to NI since this bill was intended to include a legally enforceable birthright to be British or Irish (or both), without differential or detrimental treatment.
Post-1998, the UK failed to bring its citizenship law in line with the Good Friday Agreement, and continues to automatically confer British citizenship on almost all persons born in the North. Nevertheless, until 2012, the UK Home Office did generally respect those rights of NI-born people that are attached to Irish citizenship. However, post-2012, precisely to stop the exercise of particular EU rights, the policy changed to treat all NI-born people as also being British.
Whilst Irish citizens maintain EU citizenship and rights like basic freedom of movement in the EU, most other EU rights, opportunities and benefits are not automatically retained after Brexit, but require specific arrangements. This is the case with regards to the right to elect MEPs, to carry the European Health Insurance Card, to access cross-border healthcare and education, and to be joined by family members (among others).
Back in December 2017, Paragraph 52 in the EU-UK Joint Report (the Phase 1 Agreement) contained a commitment to allow Irish citizens in NI continued access to and exercise of such EU rights, opportunities and benefits. The specific arrangements for this were to be examined later. However, there is nothing to implement this commitment in the draft Withdrawal Agreement (first published in November in 2018), and it is not even mentioned in the Political Declaration on the Future Arrangement.
The other route for Irish citizens to retain certain EU rights and benefits is under the EU Settlement Scheme. This was possible during its pilot phase, but the Home Office has since changed the criteria with the purpose and effect of excluding NI born Irish citizens from applying, on the basis of also treating such persons as British. This leaves Northern-born Irish citizens as almost the only EU citizens within the UK who will not be able to retain EU citizens’ rights under the Withdrawal Agreement.
This is not where we wanted to be at this stage. We wanted to be in a position where Irish citizens were set to rightly retain their EU rights and benefits after Brexit (to the benefit of those who choose to be Irish or both Irish and British). We also wanted, in the context of the GFA, to be in discussions about arrangements for equivalence for those who chose to be solely British. Instead, in pursuit of a lowest common denominator, we have the UK Home Office actively seeking to strip every EU right and benefit possible from Irish citizens in NI and doing so in a manner that fundamentally conflicts with the GFA. We really need significant movement from both governments on this issue before it is too late.
You can watch a recording of the full Committee session here: https://www.oireachtas.ie/en/oireachtas-tv/video-archive/committees/2544 (proceedings begin at 16:55).