The Withdrawal Agreement and after: EU Citizens’ Rights for the People of Northern Ireland

Introduction

Slowly but inexorably any perceived advantages of British citizenship over Irish citizenship  are disappearing or being neutralised for the People of Northern Ireland. Regardless of one’s political stance the worth of a burgundy Irish passport over a (soon to be) blue UK passport is beyond doubt. When it comes to living a life in the UK, the Republic of Ireland, or in other EU states, there is little point in relying on British citizenship alone and every reason to rely on Irish citizenship as well. Where a person from Northern Ireland seeks to rely on Irish citizenship alone, almost nothing is lost. The choices made by the UK government in deciding to withdraw from the EU and on what terms have consequences, including ones unintended or underplayed.

The People of Northern Ireland

 Provision is made for the People of Northern Ireland in the British-Irish Agreement (10 April 1998), Article 1, where both the UK and Irish governments:

recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

To that end both governments declared that it is their joint understanding that the term ‘the people of Northern Ireland’ means, for the purposes of giving effect to this provision, all persons born in Northern Ireland and having, at the time of their birth, at least one parent:

  • who is a British citizen
  • an Irish citizen, or
  • is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.

While British citizenship may be conferred on a person born in Northern Ireland under section 1 of the British Nationality Act 1981, so too in its own way may Irish citizenship, see the Irish Nationality and Citizenship Act 2001. For present purposes it matters not how this is achieved or exactly who may acquire Irish citizenship having been born in Northern Ireland. The point is that one can lead a full life in Northern Ireland relying solely on Irish citizenship.

The Withdrawal Agreement  

The EU-UK Withdrawal Agreement contains a Protocol on Ireland/Northern Ireland that itself contains a recital that Irish citizens in Northern Ireland, by virtue of their EU citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that the Protocol should respect and be without prejudice to the rights, opportunities and identity that come with EU citizenship for the people of Northern Ireland who choose to assert their right to Irish citizenship.

That statement applies to the way in which the Protocol (which covers a wide range of issues requiring agreement as a result of UK withdrawal from the EU) is to be interpreted and applied. But given that the rights under the Withdrawal Agreement are given effect in UK law by the European Union (Withdrawal Agreement) Act 2020, it is not without significance and in time its approach will shape how the law is applied by courts. Note too that the Protocol only singles out those from among the people of Northern Ireland who rely on Irish citizenship. Such persons are to have their rights as EU citizens protected. Where it makes a difference as a matter of EU law as regards rights, opportunities and benefits, a person from Northern Ireland may (where able to) assert their Irish citizenship.

As regards the Common Travel Area between the UK and Ireland, Article 3 of the Protocol states:

  1. The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (the “Common Travel Area”), while fully respecting the rights of natural persons conferred by Union law.
  2. The United Kingdom shall ensure that the Common Travel Area and the rights and privileges associated therewith can continue to apply without affecting the obligations of Ireland under Union law, in particular with respect to free movement to, from and within Ireland for Union citizens and their family members, irrespective of their nationality.

(emphasis supplied)

This is a reminder that Irish citizens and their family members of any nationality continue to benefit from free movement rights within the territory of the EU (including the Republic of Ireland).

The Common Travel Area between the UK and Ireland

 Common Travel Area arrangements between the UK and Ireland enable Irish citizens to lead full lives in the UK, whether in Northern Ireland or Great Britain, as if they were British citizens. As regards the UK, they have the right to live, reside, work, and vote, among other things. True, there are a couple small remaining differences, for example it remains possible to deport an Irish citizen from the UK to Ireland whereas a British citizen cannot be deported. However, for all practical purposes a person from Northern Ireland does not need to be a British citizen to live a life anywhere in the UK.

The provision made for the Common Travel Area in the UK’s Immigration Act 1971 is set to be further entrenched  and enlarged in law by the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. See my post Irish Citizens and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.In the result, even as regards the UK itself, British citizenship offers no advantages over Irish citizenship for the people of Northern Ireland.

The UK’s EU Settlement Scheme and the People of Northern Ireland

In an attempt to make adequate provision for the rights of all the people of Northern Ireland (as protected under the 1998 British-Irish Agreement), the UK Home Office has amended its EU Settlement Scheme (in Appendix EU of the Immigration Rules), itself made to support rights protected by the EU-UK Withdrawal Agreement, to provide for leave to remain to given to family members of the people of Northern Ireland  on the same basis as the family members of Irish citizens in the UK. Thus, the provisions of the Scheme are to apply to the family members of a person from Northern Ireland, whether that person from Northern Ireland holds British citizenship, Irish citizenship, or both.

Many people from Northern Ireland who assert Irish identity and who hold Irish citizenship have also automatically acquired British citizenship from birth. Other people from Northern Ireland may assert Irish identity but for the moment hold solely British citizenship. Both classes benefit from this change as regards their family members who would otherwise lack lawful residence after the end of the Brexit transition period (31 December 2020). In the result, those who hold solely British citizenship acquire EU-related rights for their family members even though they are not within the personal or material scope of the free movement provisions of EU law or within the personal or material scope of the Citizens’ Rights provisions of the Withdrawal Agreement. While at first blush that is a remarkable outcome, it is one that respects the British-Irish Agreement and which attempts to stem the flight away from relying on British citizenship alone as regards the provision made for family members of the people of Northern Ireland present before the end of the transition period (31 December 2020).

EU Free Movement for the People of Northern Ireland as Irish citizens

All Irish citizens, including those from among the people of Northern Ireland, and their family members, continue to benefit from the right to live, work, stay, reside, and settle as of right in the 27 EU states, the 3 EEA states, and Switzerland, as  EU citizenship as provided for in the EU treaties (and the laws made under them) continues to apply to them. From the end of the transition period (31 December 2020) British citizenship no longer confers such entitlement. Even if the UK manages to conclude a future partnership agreement with the EU, the mobility provisions will be extremely limited as the UK has no ambition in this area and so there will no general right for a British citizen to settle and work in the EU.

A young person growing up in Northern Ireland has rights to live and stay anywhere in the EU if they rely on Irish citizenship. So too a person embarking on a career that may see them working for a business with offices across the continent. For such people from Northern Ireland, regardless of political persuasion, the temptation to assert Irish citizenship and to travel on an Irish passport will be irresistible. Nothing would be gained from seeking to rely on British citizenship. As regard rights to work and reside in the EU, a blue UK passport will make a person subject to immigration control in all EU states, as if they were a national of Belarus, Somalia, or Yemen. Each EU state sets its own rules as regards entry for work and residence for third-country nationals (as British citizens will be classified).  If you are from Northern Ireland and wish to work, say as a banker or self-employed journalist, in the other EU states you can do so on the same basis as a German banker or an Italian self-employed journalist if you assert Irish citizenship and rely on EU free movement rights.

Conclusion

For the people of Northern Ireland the advantages of asserting Irish citizenship rather than British citizenship after the end of the Brexit transition period (31 December 2020) are clear. While the process may be slow, there is only one direction of travel. While the 1998 British-Irish Agreement (and the multi-party Belfast Agreement annexed to it) may aim to treat British citizens and Irish citizens alike, Ireland’s continuing EU membership, the rights and benefits of EU citizenship, the terms of the Withdrawal Agreement, and the UK’s ill-advised lack of interest in agreeing wide mobility arrangements in a future partnership agreement with the EU, leave little or no reason to rely on British citizenship.

 

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