For Brexit, British and Irish citizens’ rights are not yet guaranteed. Interchangeable rights for all should be the aim

The issue of reciprocal citizenship rights after Brexit is turning out to be more complicated than at first thought. It extends well beyond confirming the status quo to embrace work and pension rights for new immigrants from the EU as well as the 3 million existing residents.  Even when an EU citizen’s rights in the UK are backed up by taking out British citizenship, everything is not quite the same as before – as in the case of the dual national Dutch woman Monique Hawkins.

On the face of it British and Irish citizens should find life more straightforward because they’ve been beating the well-trodden paths of the Common Travel Area since the year dot. Constitutional change has always accommodated it. Brexit secretary David Davis told the Commons last month that the government would “pretty much” copy the 1949 Ireland Act, passed when Ireland left the Commonwealth, declaring that Irish citizens were “not foreign” and   holding out the prospect of virtual reciprocal rights for citizens in both jurisdictions.

While that sounds simple it is in fact more complicated. Both states and  the EU seem to want reciprocal rights to continue – to be virtually interchangeable .  But before we relax  too soon we have to bear in mind that this is not a purely  bilateral British-Irish  matter: it draws in the EU. And there are particular implications for Northern Ireland people who can opt for British or Irish citizenship or both under the GFA but for whom there is of course no separate Northern Ireland category.  For instance the Irish government are championing the rights of EU citizens in NI. But what will happen to British citizens of Northern Ireland if they wish to live and work in the Republic? This is no longer a matter for Dublin and London alone, as the Republic is EU territory.

While it all may  turn out  well in the end,  loose ends could  become snags. The GFA allows NI people to opt for British and Irish citizenship or both.  In 1998 the practical application of Irish  citizenship rights were mainly limited to external representation, the obligation of Irish rather than British diplomats to bail  you out of trouble abroad.  From now on, it could mean a good deal more.

Nobody legally needs to prove citizenship anywhere on these islands simply to move around.  But after Brexit?  The Irish government’s view of  Irish citizenship for northerners  is as benign as the British , as stated in the Irish government’s paper  just published, on their approach to Brexit.

  • Ireland believes that an early agreement on the principle of reciprocal protection of citizens’ rights is highly desirable and achievable

  • Recognising the very detailed nature of the issues at stake, we wish to see as much legal certainty and clarity as possible provided at an early stage of the negotiations to EU citizens and their families residing in the UK and for UK citizens residing in the EU.

  • As highly detailed negotiations proceed, we will be alert to any developments which might possibly affect Irish citizens currently living in the UK and UK citizens currently living in the EU and, in particular, their non-EEA family members.

  • Ireland supports that an agreement on this issue should also include ways to ensure the continued mutual recognition of professional qualifications.

A sticking point arises over how those rights would be guaranteed.

The Irish government points out that today, the  GFA’s “ supporting framework” includes the European Court of Justice   the EU Charter of Fundamental Rights  which  Theresa May is  determined to disapply to the UK.

Consequently, the departure of the UK from the EU will have a significant impact on the human rights landscape in Northern Ireland. A future divergence of rights, North and South, as a consequence of Brexit, is a key concern, as is the loss of the EU as a driver for the equivalence of rights.

What line is the EU likely to take?  In the FT, Guy Verhofstadt, the former Belgian PM   who is a rare mix of Anglophile and Europhile, is the European Parliament’s lead Brexit negotiator puts citizens’ rights and  Ireland  at the top of the agenda.

One of the early challenges will be to find an agreement on the rights of EU citizens in the UK and vice versa. I remain hopeful that this could be agreed in the coming months, but delivering certainty will require a more honest discussion of the complexities at stake.

Both sides will need a precise and comprehensive agreement that provides citizens with genuine and permanent guarantees. The rights at stake do not just relate to residency, but also include access to healthcare, social security and guarantees regarding non-discrimination legislation.

All of these rights, some acquired over decades, will need a mutually agreed enforcement mechanism, as will the divorce agreement more generally. These issues will not necessarily be easy or quick to resolve, but they are not insurmountable…

It is also important that, as the European Parliament has requested, EU negotiators propose a form of citizenship for UK citizens who want to maintain their link to the EU after Brexit.

The third priority for the European Parliament in the first phase of negotiations is working out a solution to protect the Good Friday Agreement, in all its parts, and to avoid the re-introduction of a divisive hard border on the island of Ireland. This may ultimately require a comprehensive political solution, possibly even a special status for Northern Ireland. Many Irish citizens residing in Northern Ireland will continue to enjoy rights as EU passport holders, but how will their rights, including the right to vote in European elections, be safeguarded in practice?

While both governments and the EU want to continue the practical status quo through  a system of reciprocal rights, achieving it will have to be negotiated with the EU.

Irish citizens from NI wanting to assert their full UK citizen rights in GB may find that a medical card or National Insurance number is enough. To be certain though they might be advised  to apply for the British passport to which they are entitled.  British citizens wanting to live and work in the Republic  may be advised to take out an Irish passport as increasing numbers are doing. But for that to work it might require special status  for Northern Ireland and incorporation  in Verhofstadt’s suggestion for all British citizens who want it, to continue to enjoy EU citizenship.

That sounds like special status of a kind  to me.

Afterthought

What of the future of post-Brexit immigration into the UK which has so resisted effective control ? This is more problematical. A favoured solution for NI, membership of the European Economic Area (EEA)   would allow free movement for goods, capital, services and people  between NI and  the EU ( mainly the Republic) compatible with the single market. However it would mean movement controls between NI and GB and is opposed by the unionist parties.

Theresa May has just confirmed retaining a general immigration target of below 100,000 a year. This is derided as an aspiration like the Second Coming.  Determined efforts saw net immigration into the UK drop below 300,000  to 264,000.

Immigration was estimated to be 596,000 – comprising 268,000 EU citizens, 257,000 non-EU citizens and 71,000 British citizens.

This included the highest level ever recorded of Romanians and Bulgarians – 74,000.

Some 323,000 people are thought to have left the UK in the year to September, up by 26,000 on the 12 months to September 2015.

Of these, 128,000 were British citizens, along with 103,000 EU citizens and 93,000 non-EU citizens.

The Irish government play down the idea  of post-Brexit Ireland with an open border acting as a back door into  GB, claiming that illegal foreign job seekers would be discovered  when they registered for work or benefits.Illegal ( non EU) immigration hasn’t been much of a problem via the island of Ireland up to the present, we’re told. But this discounts the appeal of the black economy and the possible  knock-on effect on entry through Ireland, if checks on the GB borders were stepped up.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London