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.

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  • Deeman

    Bring back Articles 2 and 3 of the Irish Constitution!

  • Fear Éireannach

    As always, I think something confine to the island of Ireland can be agreed easily enough. For instance, you could provide that anyone legally resident on the island of Ireland could work there, which would mean that German resident in Moville could work in Derry without issue. Or NI might simply agree to allow EU citizens work there, as proposed in the Foster/McGuiness letter. GB may be slightly more complex, but a person born in NI has no more problem than someone from Scotland who could be born in Scotland but not actually hold a British passport.

  • Brian Walker

    Perhaps it can be agreed easily enough. But it would be entail some form of special status. One form of special status might lead to another over,say trade. That would be special status like the EEA which would still require customs checks or an Irish sea border. Unless a native Scot was eligible for an Irish passport what passport would s/he hold?

  • eamoncorbett

    I’m not sure NI can agree to anything if May and Davies are doing the negotiating .

  • Fear Éireannach

    The Scot (or anyone) might have the nationality of his parents, but fall through the cracks re British nationality.

    Trade is where the real problems might lie, especially as the outcome of general UK-EU negotiations might be a close enough harmonisation for manufactures but not for agriculture. Such fairly close coordination might make Irish sea checks easily dealt with for manufactures, as would English Channel checks, but the agriculture aspect might be especially relevant.

  • Cal Cryton

    “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.”

    Brian you’re confusing some things here. It is only “EU territory” when it comes to customs and the single market. Only in those areas should we consider the EU as a single federation.

    When it comes to migration and rights for people from non-EU countries (such as UK in a couple of years), competency for that is solely with the national governments. So the Germans alone decide how many Syrians come into their country, the EU is not involved at all. Hence, particularly as Ireland is outside Schengen, a bilateral agreement between Ireland and UK such as CTA can be maintained/negotiated quite easily.

    The main problem regarding Brexit is the customs union, and that may indeed require a hard border.

  • Enda

    If the Brits get to alter the GFA, the Irish government should be able to as well.

  • Fear Éireannach

    This isn’t quite true. Jobs must be filled by EU citizens and then only filled by non EU citizens. You could not, without agreement, allow British citizens apply for jobs on a par with non EU citizens.

  • Brian Walker

    No confusion, though you make a useful point. I’m simply saying the CTA has to be recallibrated for Brexit as the two governments want and signed off by the EU, specialist lawyers advise me , and British passport holders would need assurances.

  • Korhomme

    The issue of reciprocal citizenship rights after Brexit is turning out to be more complicated than at first thought.

    Let me hazard a guess: everything will be much more complicated than at first thought as Brexit negotiations proceed.

  • Devil Éire

    Brian,

    The GFA allows NI people to opt for British and Irish citizenship or both.

    I assume you mean ‘either British or Irish citizenship or both’, but are you sure this is the case? The wording of the GFA only confirms the right of people born in Northern Ireland to hold both citizenships, while affirming that they can choose to self-identify as Irish or British or both.

    [The British and Irish governments will] 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.

    Nowhere is the right of someone born in Northern Ireland to hold only Irish citizenship explicitly affirmed. However, a legalistic parsing of the phrase ‘accepted as Irish’, while referring to a potentially private expression of identity, might encompass acceptance by the UK state, thereby effectively meaning that an ‘Irish only’ citizenship can be asserted and must be accepted by the state.

    This interpretation allows one to make sense of the following statement in the Irish government’s Brexit strategy document:

    Under the Good Friday Agreement the people of Northern Ireland have the right to identify themselves and be accepted as Irish or British or both. This means that people in Northern Ireland are not required for example, to self-identify as British in accessing public services.

  • runnymede

    Verhofstadt is not an anglophile. He is a self-important blowhard.

    What he and some others are proposing is a set of demands designed to make a sensible agreement impossible, and they know this. They care not one jot about NI, they are only interested in stirring up trouble.

    The UK and Ireland should make their own arrangements and present these to the EU as a fait accompli.

  • runnymede

    The CTA existed before both countries joined the EU Brian.

  • Jim Jetson

    Im interested to know are you in favour of taking NI out of the UK customs union in order to avoid a hard border on the island?

  • Brian Walker

    As I wrote!!!

  • Brian Walker

    On balance yes but I hope there’s another way…

  • Brian Walker

    What if reciprocation is agreed?

  • Brian Walker

    Gosh! And there was me thinking that was clear..

  • Devil Éire

    And there was me thinking that was clear..

    Perhaps it is and I am seeing ambiguity where none exists – I’m happy to be corrected by someone more knowledgeable than I am.

  • Old Mortality

    Are you sure about this? Is it an EU regulation? If so, it is frequently and easily circumvented.

  • Fear Éireannach

    Reciprocation in relation to Irish citizens in Britian would be easily agreed, but the likes of Poland would not wish to see a situation where people from Ireland, one of the most prosperous countries in the EU, can go along an work in Britain at will while their citizens are not welcome.

    http://www.independent.ie/business/brexit/polish-pm-fails-to-back-our-special-status-on-brexit-35439055.html

    I’m sure there will be a deal of some sort on this matter, with Poland getting substantial rights too.

  • Roger

    UKNI certainly can’t…it’s just a UK region.

  • Korhomme

    While it wasn’t quite the same legally, your point reminds me that there was a case before the courts in England in which a will was contested. The case hinged on the meaning of ‘and/or’ in the will. (I don’t remember how it was resolved.)

  • willow

    “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.”

    Strange thing to say. Why copy it? Why not just leave it on the statute book?

  • willow

    Yeah, Brian, like most people, has misread the Agreement and repeated a myth.

    UK citizenship is not a choice. Everyone in NI is a UK citizen. The suggestion that people from NI will need to acquire a passport to move within their own country is sensationalism.

  • willow

    The GFA can’t be altered by anyone. It’s a one-off treaty.

    But who’s suggesting anyone wants to renege on it?

  • willow

    “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.”

    Surely each state decides its own immigration policy in respect of non-EU citizens? There is an obligation to facilitate free movement of labour for EU citizens, but that doesn’t mean there is a corresponding obligation to stop free movement for non-EU citizens.

    In any case, the ROI state recognises people from NI as its own citizens (and therefore EU citizens) so it isn’t really an issue.

  • willow

    “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.”

    Surely such a crazy suggestion – crazier even than Brexit itself – would also be opposed by the business community? Imposing restrictions on trade with our biggest market would be economic madness.

  • Fear Éireannach

    This question is not as simple as aggregating trade, it is determined by the composition of that trade. NI has a significant amount of local cross border trade, a 30 minute delivery would be greatly affected by time wasted on customs nonsense. Cross channel trade necessarily has much longer delivery times. The nature of the goods is also important, some types of goods may have little or no tariffs. For instance the British are concerned about their motor industry and this sector might not experience much disruption, this might also mean that shipping buses (for example) would not have any barriers. Likewise the British want cheap food, so might reduce agricultural standards or import crap from Brazil etc. This wouldn’t require a lot of barriers to EU goods going into Britain, as they would have higher standards, but would mean a lot of checks on agri/food products going out of Britain or NI if it leaves the EU regulations.

  • 1729torus

    Insisting that the ECJ adjucate on the UK’s migration policy instead of prposing some kind of independent arbitration panel is evidence of negotiating in bad faith IMHO.

  • Enda

    The UK gov will no longer be answerable to the ECHR, a fundamental framework on which the GFA is built. There’s a good possibility of a hard border, or some sort of a border a least, which in itself is a backtrack.

    It’s still too early to say, but we have no idea just how perfidious Albion could turn out to be.

  • willow

    “The UK gov will no longer be answerable to the ECHR, a fundamental framework on which the GFA is built.”

    When was this announced??

  • Devil Éire

    The question that appears to exercise the Irish government is whether those Northern Ireland people who identify as Irish (only) will encounter difficulties in accessing public services, post Brexit. If, as you say, everyone born in Northern Ireland is automatically a UK citizen, then surely there can be no distinction (in access to public services) made between those who identify as Irish (only) compared with those who identify as Irish and British, or British-only. On the other hand, if it is possible to assert an Irish-only citizenship, despite being born in a part of the UK, then it is prudent to ensure that those making that choice will not experience reduced access to public services post Brexit.

    The Irish government appears to believe that the latter situation applies.

  • willow

    “The question that appears to exercise the Irish government is whether those Northern Ireland people who identify as Irish (only) will encounter difficulties in accessing public services, post Brexit.”

    Really?

    “If, as you say, everyone born in Northern Ireland is automatically a UK citizen, then surely there can be no distinction (in access to public services) made between those who identify as Irish (only) compared with those who identify as Irish and British, or British-only.”

    Of course. How one ‘identifies’ is irrelevant.

    “On the other hand, if it is possible to assert an Irish-only citizenship, despite being born in a part of the UK, then it is prudent to ensure that those exercising that choice will not experience reduced access to public services post Brexit.”

    It isn’t. But even if it were, ROI citizens anyway are treated in UK law as though they were UK citizens. No distinction is made.

    “The Irish government appears to believe that the latter situation applies”

    Where are you getting this from?

  • Devil Éire

    But even if it were, ROI citizens anyway are treated in UK law as though they were UK citizens. No distinction is made.

    Correct.

    Where are you getting this from?

    I (as a lay-person) am inferring this from various statements in the Irish government’s Brexit strategy paper, including this one:

    Under the Good Friday Agreement the people of Northern Ireland have the right to identify themselves and be accepted as Irish or British or both. This means that people in Northern Ireland are not required for example, to self-identify as British in accessing public services.

    As I have said elsewhere,

    [From this statement] the Irish government appears to believe that whether one self-identifies as either British or Irish could have consequences (post Brexit) when accessing public services in Northern Ireland. I am at a loss to understand how this could be the case unless it were possible to express this ‘self-identification’ through an exclusive Irish (and not British-only or dual British+Irish) citizenship. Otherwise, self-identity would remain a private choice, invisible to the administration of public services.

    There may well be an alternative explanation – I welcome suggestions.

  • willow

    Thanks.

    Yes I don’t get it either. When might this ‘self-identification’ be necessary and how would it be expressed?

    It’s a non-issue.

  • Fear Éireannach

    Many application forms that previously asked if you were an EEA citizen will now ask your citizenship. At least some will require British citizens only.

  • Devil Éire

    The excerpt from the Irish government’s Brexit paper refers to self-identification, but the GFA straightforwardly refers to identification:

    [The British and Irish governments will] 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

    As I said to Brian, I believe that the Irish government might argue that the phrase ‘accepted as Irish’ encompasses acceptance by the apparatus of the UK state, thereby effectively meaning that an ‘Irish only’ citizenship can be asserted and must be accepted by the state.

    In F.E.’s example of a form asking an applicant to state their citizenship, a person born in Northern Ireland may therefore choose to assert an Irish identity by stating that they are an Irish citizen (only). The Irish government wishes to ensure that, post Brexit, this does not impede access to public services.

  • willow

    I’m not aware of such application forms. Can you give some examples? Who issues them? What are they for?

    Regardless, someone who’s too sensitive to admit he or she is a UK citizen (a simple statement of legal fact rather than a ‘self-identification’), could still tick the EEA citizen box, as he or she will continue be an ROI citizen.

    And no UK forms will ‘require British citizens only’ since ROI citizens are treated in UK law a though they were also UK citizens and so any forms will have to accommodate such people.

  • willow

    I think ‘self-identification’ is a reasonable simile for ‘identify themselves’.

    Granted, ‘accepted as Irish or British, or both’ goes further and implies that others (presumably including the state) must accept such self-identification. However, I don’t see any conflict between accepting that somebody identifies only as Irish while still acknowledging the legal fact that he or she is a UK citizen. The GFA itself makes the distinction.

    Having said that, it remains the case that, given the status of ROI citizens in the UK, any super-sensitive nationalist will still be able to tick an ‘Irish’ box on a form and not miss out on any public services.

  • Devil Éire

    The GFA itself makes the distinction.

    The GFA also ensures that this is a distinction without a difference.

  • willow

    No it doesn’t.

  • Devil Éire

    Can you think of a situation in which a distinction is made by the UK state between someone born in Northern Ireland who identifies themselves as an Irish citizen (only) and someone who identifies themselves as a British citizen? Are there any rights or public services which are not available to the former that are available to the latter?

  • willow

    Services are available on the basis of citizenship and/or residency and not self-identification. So the question doesn’t really make sense.

    This provision about identity in the GFA is really only meaningless fluff. People have always been free to.identify as they wish and always will be.

  • Devil Éire

    …the question doesn’t really make sense.

    That’s a no, then.

    Services are available on the basis of citizenship and/or residency and not self-identification.

    Again, the Irish government Brexit paper disagrees with this:

    Under the Good Friday Agreement the people of Northern Ireland have the right to identify themselves and be accepted as Irish or British or both. This means that people in Northern Ireland are not required for example, to self-identify as British in accessing public services.

    Therefore, self-identification (e.g. identifying oneself as Irish (only) to the UK state) does matter in the provision of public services and it is the GFA which ensures that “people in Northern Ireland are not required…to self-identify as British in accessing public services”.

    This provision about identity in the GFA is really only meaningless fluff. People have always been free to.identify as they wish and always will be.

    The GFA guarantees that the identity of Northern Ireland people as Irish or British (or both) must be accepted by the UK state. This takes identity out of the realm of ‘meaningless fluff’. This is in line with the statement made by the Irish government in their Brexit document:

    The CTA underpins the provisions of the Good Friday Agreement, including by enabling people of Irish identity not to have to assert British citizenship in Northern Ireland to enjoy their rights.

    If those people born in Northern Ireland who express an Irish identity do not have to assert British citizenship to enjoy their rights, then it is logically clear that they can enjoy their rights while asserting only their Irish citizenship. Otherwise, what other citizenship would apply?

  • willow

    “Therefore, self-identification (e.g. identifying oneself as Irish (only) to the UK state) does matter in the provision of public services and it is the GFA which ensures that “people in Northern Ireland are not required…to self-identify as British in accessing public services”.”

    As you’ve noted this is merely the opinion of the Southern government.

    This is in line with the statement made by the Irish government in their Brexit document:’ The CTA underpins the provisions of the Good Friday Agreement, including by enabling people of Irish identity not to have to assert British citizenship in Northern Ireland to enjoy their rights.’

    This is a very strange statement. What has the CTA got to do with it? It is not the CTA that enables ‘people of Irish identity not to have to assert British citizenship in Northern Ireland to enjoy their rights’ the 1949 Act.

    “If those people born in Northern Ireland who express an Irish identity do not have to assert British citizenship to enjoy their rights, then it is logically clear that they can enjoy their rights while asserting only their Irish citizenship. Otherwise, what other citizenship would apply?”

    First, this asumes the Southern government is correct in its opinion that one cannot have an Irish-only identity if one ticks a box to confirm the legal fact of one’s UK citizenship.

    But more importantly, it is an academic question, because as a result of the 1949 Act there are no services in the UK available to UK citizens that are not also available to ROI citizens. And neither of us can think of any practical example where even a form requires someone to tick a British box.

  • Devil Éire

    As you’ve noted this is merely the opinion of the Southern government.

    and

    …this asumes the Southern government is correct in its opinion…

    Well, if I have to assess the relative importance of opinion on a legal matter, I will of course assign a higher weight to that of a government as expressed in an official position paper, backed up by the legal resources available to a government, than I would to (say) the anonymous musings of a zealot on an online forum.

    But more importantly, it is an academic question…

    If it is only an academic question, then you agree that, as I said earlier, the distinction between identity and citizenship in the wording of the GFA is a distinction without a difference. The GFA guarantees that one may, in effect, choose to assert either an Irish or British citizenship (or both).

    If it is not purely an academic question, as the Irish government clearly believes, then it is right that they should aim to secure the rights of those Northern Ireland people who wish to identify as Irish (only) and thereby assert an Irish (only) citizenship, post Brexit.

  • willow

    Given the howler of a mistake made in the reference to the CTA, I might exercise caution when deciding whether or not to accept the Southern government’s opinion as the clear legal position.

  • Devil Éire

    Your opinion has been noted, and appropriately weighted.

  • Reader

    Devil Éire, you quoted the Irish Government as saying: “This means that people in Northern Ireland are not required for example, to self-identify as British in accessing public services.”
    You concluded that they have to self identify as British in the rest of the UK. That is not true, and no-one but you has said it is true. In fact, the Ireland Act 1949 contradicts you. British and Irish citizens (and not just Nordies!) access GB public services in an identical manner, and do not have to self-identify as British.
    You have just over-interpreted a couple of paragraphs of GFA puffery, that’s all.

  • Reader

    willow: When was this announced??
    ECHR begins with E. That’s evidence enough for Enda.

  • Reader

    Old Mortality: Are you sure about this? Is it an EU regulation? If so, it is frequently and easily circumvented.
    As any visit to a Dublin, Belfast or London coffee shop would confirm…

  • Fear Éireannach

    Job forms and suchlike have to ask this, to see if the person is entitled to take the job. And the EEA box will disappear when the UK leaves the EU.

  • Devil Éire

    I agree that the 1949 act ensures that no distinction is currently made between Irish and British citizens in their access to public services, whether in Northern Ireland or Great Britain.

    The point of the quote, though, is that the Irish government is concerned to ensure that Northern Ireland people who identify as Irish will continue to be able to access public services while not having to identify as British, if changes are made to the 1949 act. In that case, it is the provisions of the GFA (in reality, the associated legislation) that will provide the requisite constraints on any change in status for these people.