Despite earlier commitments, recent UK and EU statements now point to Northern Ireland (NI)-resident Irish passport holders being stripped of access to almost all active EU rights following BREXIT. Should a recent EU Commission response to a question by Martina Anderson MEP stand it would leave NI resident citizens with only the same ‘dormant’ EU rights held by Irish citizens who live outside Europe. The issue has been given surprisingly little mainstream attention. Further detail to key questions is provided below, including the duties under the Good Friday Agreement (GFA) to provide equality of treatment for NI persons who choose to identify solely as British.
Will Irish citizens in NI still be EU citizens after BREXIT?
Yes. That is automatic and requires no new arrangements. Any citizen of a country that is an EU member state, is also automatically an EU citizen. Ireland remains in the EU. When the UK leaves, British citizens cease to be EU citizens.
The Irish constitution and law have always afforded birthrights to citizenship for persons born on the island of Ireland. Irish citizenship is currently an entitlement to almost all those born in NI (save for persons born after 2004 whose parents are temporary migrants). Irish citizenship can also be conferred through parentage. In short almost the whole population of NI will be or will be entitled to be EU citizens even after BREXIT. The UK explicitly recognised under the GFA the birthright to choose Irish or British identity and citizenship (or both) in NI.
The question is which EU citizens’ rights will NI-resident Irish citizens retain access to after BREXIT, given NI is being removed from the EU?
What rights of EU citizens are being referred to?
In summary the core EU citizens’ rights are:
- Rights to Freedom of movement in EU to visit, work, study, retire etc.;
- Political rights to vote in MEPs and stand for election;
- Consular assistance from other EU countries when you are abroad somewhere your own state does not have consular facilities;
- Rights to petition EU institutions, Parliament, Ombudsman etc.
There are other rights such as rights not to be discriminated against on the basis of nationality etc. Accessing the above rights in practice is tied up with other EU rights, opportunities and benefits. For example, the right to study is linked to rights to pay EU student fees rates–not the much more expensive international students rates. The ability to travel to other EU states is linked to the EHIC to help access healthcare needed during a visit (particularly essential for persons with pre-existing conditions, who are unlikely to be able to get travel insurance). Taking up work is dependent on mutual qualification recognition etc. The right to be joined by family members (who are not EU/EEA nationals) are an inherent part of EU treaty rights to work and study etc.
Will access to all of these EU rights be automatically continued?
No, many will require special arrangements. It would still be possible to travel freely to other EU states, but many of the above rights are usually tied to residency in the EU, so access to them will be lost at the point of BREXIT without new arrangements that facilitate continued access. For example:
- Access to EU student fees rates normally requires residency in an EU member state for three of the previous five years;
- The right to vote for an MEP is normally tied into the member state of residency (although states can make specific arrangements);
- Access to EHIC normally involves billing the health authorities in the EU member state of residence –e.g. the NHS.
So without special arrangements, access in practice to these EU rights would be lost to NI resident Irish citizens- unless of course they left NI and went to live somewhere else in the EU.
What has been committed to so far by the EU and UK?
In December 2017 the ‘phase 1’ negotiations concluded with the Joint Report of the UK-EU, (‘the Phase 1 Agreement’). It stated at Paragraph 52:
The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland. Both Parties therefore agree that the Withdrawal Agreement should respect and be without prejudice to the rights, opportunities and identity that come with European Union citizenship for such people and, in the next phase of negotiations, will examine arrangements required to give effect to the ongoing exercise of, and access to, their EU rights, opportunities and benefits. (emphasis added)
This wording commits the UK and EU to the continuation of EU rights well beyond those accessible to Irish nationals in e.g. Canada or other ‘third’ (i.e. non EU) countries. This is clear as the text references the need for specific arrangements (that otherwise would not be required) and states that rights will be exercisable for persons resident in NI. Various statements by the UK and Irish governments in the build up to following the Phase 1 report allude generally to access to a range of continued EU rights. Some examples are in a CAJ briefing from May 2018, accessible here.
Is ‘paragraph 52’ committing to a ‘special status’ arrangement for NI?
Essentially yes on this issue. In order to comply with the commitments for ongoing access and exercise to rights, opportunities and benefits, in most cases you would need to treat Irish citizens in NI as if they were resident in an EU member state – at least for that purpose; otherwise it would not be possible to e.g. vote for MEPs, pay EU student rates, be covered by an EHIC (this last would need to be specifically resourced). Following the Phase 1 Agreement EU Guidelines set out the position that “all commitments undertaken in the first phase be respected in full and translated faithfully into legal terms as quickly as possible.”
Will this actually happen?
There are worrying signs of a U-turn, with the commitment either being misinterpreted or there being no intention of implementing it by either the UK or EU side. The issue is only mentioned in the NI section of the draft EU Withdrawal Agreement in the non-binding preamble.
In April the UK BREXIT Minister declined to clarify which EU rights would be included in the arrangements, when asked by John Grogan MP at Westminster. At the same time the Tánaiste told the Oireachtas when asked by David Cullinane TD that the rights in question were not confirmed and needed further engagement.
In June President Junker of the EU Commission responded to a question on the issue by MEP Martina Anderson. This noted that NI would no longer be in an EU member state, and whilst Irish citizens would remain EU citizens, benefits from UK participation in EU programmes would end with BREXIT. Regarding rights to vote for MEPs, the EU stated this was set by Irish electoral law that currently requires residency in the south of Ireland. President Junker added that the plans for dedicated mechanisms would only cover one section of the GFA and not EU citizens’ rights. This position would leave Irish citizens with access to almost none of the EU rights discussed above.
So NI-resident Irish citizens will end up with only ‘dormant’ EU rights in NI – the same as say an EU citizen in Canada or Argentina?
Arguably in a practical sense NI-resident Irish citizens would be set for fewer EU rights than Irish citizens in existing third countries given that the entitlement to use the consular services of other EU states have no practical application in NI.
EU rights would be regained by leaving NI and living elsewhere in the EU – but that does not address the commitment to EU rights when residing in NI.
What can Irish and UK governments do themselves?
There are matters legislative change in each jurisdiction could resolve.
The Irish government could amend its electoral law to allow NI residents to be represented by MEPs. The UK could amend its laws to allow NI-born Irish citizens to be joined by non-EEA family members in NI (since the UK at present does not respect its commitments under the GFA by treating such persons as British, whether they want that or not). Both states can codify the ‘associated rights’ of the Common Travel Area (CTA) to address issues such as student fees etc.
However, this does not address continued access to most of the above rights which would require new arrangements with the EU as a whole. That can only be addressed through the types of special arrangements committed to in Paragraph 52. Should this be honoured the EU would likely seek reciprocation for other EU nationals in NI (the EU26). From our perspective this would be welcome avoiding significant differentials in entitlements between different EU citizens in NI.
What about compliance with the Good Friday Agreement?
This issue, perhaps more than even the border, highlights the contradictions between the GFA and BREXIT. The GFA recognised rights to identify as Irish or British or both, and to British and Irish citizenship. In accordance with broader provisions in the GFA this right is to be exercised without differential or detrimental treatment. This has been reiterated in the UKs BREXIT Position Paper that, at paragraph 12, makes reference to the GFA birthright for the people of Northern Ireland: “…to identify themselves and be accepted as British or Irish or both, as they may so choose; to equal treatment irrespective of their choice.”
The UK has therefore recognised (regardless of BREXIT) that almost everyone NI-born is entitled to be an Irish citizen and hence to hold EU citizenship with the rights that flow from that. However, it is now considering the stripping of practically all EU rights and rendering NI residents as second class EU citizens regardless of this.
Further, under the GFA those who choose to identify solely as British are not to suffer differential and detrimental treatment. A specific arrangement could be sought as a remedy to allow those NI-residents who wish to solely identify as British – but who are entitled to be Irish and hence EU citizens – ongoing access to EU rights as EU ‘qualified persons.’ There appears however to be no intention by the UK to pursue this for its NI citizens.
Although NI voted to remain (and it is a UK constitutional requirement flowing from the GFA for the UK legislation triggering BREXIT to have sought the consent of the NI Assembly) – the UK has ignored this, and will remove NI from the EU regardless. Exit day is set for March 2019. There is a transitional period currently till December 2020, but essentially there is a cliff edge whereby access to EU rights, as things stand, will be curtailed, unless the commitments in Paragraph 52 are returned to.
This matter is to be resolved in the current Phase II period of negotiations. Time is however, running out.