As things stand – what rights will Irish citizens in NI have after Brexit?

The August 2016 HM Government: Ireland and Northern Ireland Position Paper boldly claims that due to ‘historic arrangements’ there are already a range of ‘rights for Irish citizens in the UK’ that cover right to entry, right to work, right to study, rights to social security, rights to the NHS, and to vote in elections (see paras 22-23).

This official Position Paper goes on to concede that it is also the case that many such rights in practice are provided for Irish citizens through EU treaty rights but, it sets out as fact, that these remain intertwined with rights specifically enshrined for Irish citizens by virtue of the Common Travel Area (CTA) arrangements.

But to what extent is this actually true? Is it really the case that Irish citizens in Great Britain (GB) and Northern Ireland (NI) already have all these rights provided for in law?

A new report by the Traveller Movement in Britain entitled Brexit and Irish citizens in the UK: How to safeguard the rights of Irish citizens in an uncertain future provides detailed legal analysis that allows consideration of this question. The report, based on analysis of current legislation, debunks Governments’ claim. It finds among other matters that rights as crucial as the right to work, the right to rent private accommodation or to receive social security benefits only have full legal grounding for Irish citizens in the UK by virtue of their status as EU citizens, and hence will cease to have effect on the implementation of BREXIT. The report notes that the UK has not explained how it regards Irish citizens as already having such rights and concludes that instead:

….the UK Government has made a series of vague and confusing statements, giving the strong impression that the Government knows what it wants the law to achieve, but does not want to admit that this law is not presently in place (paragraph 14).

This is a key issue for NI in the context of the treaty-based commitments entered into by the UK through the Good Friday Agreement (GFA). Under the GFA both States recognised the birthrights of persons in NI to identify as British or Irish or both, and to accordingly hold British or Irish citizenship. The UK Position Paper emphasises that the decision of people to identify as Irish (or British) “as they may so choose” also affords “equal treatment irrespective of their choice” (paragraph 12). Given as British citizens in NI have rights to work, claim benefits and rent accommodation, any legislation that has the effect of blocking Irish citizens from doing so is incompatible with the GFA. It would also be at odds with GFA to oblige Irish citizens born in NI to rely on also being considered British Citizens by UK law in order to access basic entitlements. Equally, many Irish citizens in NI are not also British citizens and as things stand would find themselves without access to basic entitlements post ‘Brexit’. The GFA itself was premised on mutual EU membership, and hence such issues not arising.

In summary the reports legal analysis prepared by barrister Simon Cox finds, among other matters, the following:

• In relation to employment “Irish citizens are exempt from UK legal prohibitions on employment of foreigners only because of the exception for EU citizens.” This relates to prohibitions on employment for persons subject to immigration control – which cannot happen to Irish citizens who have a right to reside in the UK under EU law. There is also an exemption for Irish citizens who last entered the UK from the Republic of Ireland – however post-‘Brexit’ an Irish citizen entering the UK from outside the CTA could, as things stand, find themselves legally debarred from taking employment;
• In relation to renting accommodation the report finds that “Irish citizens are exempt from UK legal prohibitions on renting accommodation to foreigners only because of the exception for EU citizens.” Current UK legislation – that has so far only been enacted in pilot areas – prevents renting to persons who are not EEA nationals who need but do not have leave to remain. If ‘Brexit’ removes the exception for EEA nationals, the law would prevent Irish citizens without such leave, from renting accommodation;
• Social Security Benefits: “Irish citizens are exempt from UK general prohibition on cash benefits only because of the exception for EU citizens. There is an Irish-specific exception from the right to reside test.” There is a general prohibition on most non-EU migrants from claiming benefits; this prohibition does not apply to Irish citizens by virtue of being EU citizens. This can also lapse with ‘Brexit’. There are exemptions specific to requirements e.g. to be in NI for Universal Credit relating to rights of residency in the CTA (which would allow Irish citizens to pass that particular test);
• Elections “Irish citizens have legal guarantees of the same rights as British citizens to vote and stand and public elections.” These rights are enshrined in primary legislation and would not require any amendment to still be in place after ‘Brexit’;
• Right to enter and stay: “An Irish citizen entering the UK from outside the CTA only has a right to do so under EU” This right would also logically lapse with ‘Brexit’. There are also provisions to deport Irish citizens from the UK – including NI;

The provisions relating to social welfare assistance and healthcare are complex. The health and social care system in NI has powers under the Health and Personal Social Services (Northern Ireland) Order 1972 to provide general social welfare assistance (listing for example ‘the provision or arranging for the provision of residential or other accommodation, home help and laundry facilities’) or assistance to persons for the “prevention of illness, the care of persons suffering from illness or the after-care of such persons.” However, immigration legislation in 2002 introduced a prohibition on providing such assistance to certain categories of persons. This prohibition applies to all EEA nationals, except British citizens (who are always exempt from it). There is no specific exemption for Irish citizens. Irish citizens are however presently exempt through exercising EU treaty rights, but this will lapse after ‘Brexit’.

The report makes reference to health care and the potential for Irish citizens in to face NHS charges after ‘Brexit’. To further elaborate on this free ‘NHS’ health care in Northern Ireland is usually available to all persons who are ‘ordinarily resident.’ Other entitlements are governed by the visitor entitlement regulations. In the regulations there is no explicit provision for persons crossing the land border but entitlements to NHS access are provided for Irish or other EU/EEA nationals on the basis of the exercise of EU treaty rights or EU reciprocal agreements with other states, which are likely to cease to have effect following ‘Brexit’. There is some provision for students, the self-employed and persons working with UK employers but this may not cover all cross border workers and students. There is provision for treatment the need for which arises during a visit for a person who resides in another EEA state, a provision, which may or may not be maintained following ‘Brexit’.

It is clear from this very timely report from the Traveller Movement that the official Government line that rights and entitlements for Irish citizens post-‘Brexit’ are already provided for is deeply misleading. The government may respond to this by arguing that given the ‘good will’ and mutual aspirations there will be little difficulty in enacting such arrangements into the legal framework. In reality however matters may be significantly more complex than this.

Whilst equality of citizenship for British and Irish citizens is a requirement of the GFA and the UK (and EU) have repeatedly restated their commitment to the Agreement, the UK has already acted incompatibly with its provisions over the course of its actions to implement ‘Brexit’ (for examples see here). NI’s largest political party, the DUP, who also hold the balance of power at Westminster, do not support the GFA and may not be so amenable to full equivalence of rights for Irish citizens in NI as Government anticipates. It is likely to need more than ‘good will’ to ensure the enactment of such a complex legal framework, and certainly more than the wishful thinking it was already there.