Brexit ‘exposing’ UK failures to legislate on citizens’ rights

Brexit is exposing the UK government's failure to take seriously the right of people in Northern Ireland to be accepted as Irish at birth under the 1998 peace agreement, an academic has said.

Colin Harvey, a Queen's University Belfast law professor, was responding to last month's changes in UK immigration rules around a new definition of European Economic Area citizens that human rights campaigners say undermines Northern Ireland-born Irish citizens' rights under the Belfast Agreement.

The campaigners raise concern over the new definition for the purposes of eligibility to the EU “settled status” scheme , which maintains EU citizens’ rights in the UK after Brexit. It means dual British nationals, who are British by birth, will not be considered an EEA national and not entitled to EU “settled status” after the UK’s exit.

This, they argue, denies people in Northern Ireland the right to be considered an EEA/EU citizen.

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“There is little evidence thus far, including in the latest immigration rules, that the birthright provisions of the Good Friday agreement are being taken seriously,” said Prof Harvey.

“These latest rules confirm what we already know about the implementation gap that predates Brexit, but that Brexit is exposing.”

Urgently needed

He said these birthright provisions were “not well understood and are not reflected in law, policy and practice” and that special arrangements were urgently needed as part of the Brexit negotiations.

The Belfast academic said British prime minister Theresa May promised a review into the status of Irish citizens in Northern Ireland and that campaigners were awaiting "further and precise details on that".

Emma DeSouza, a Co Derry woman and Irish citizen fighting a protracted appeals process for Northern Ireland residency for her US-born husband, has argued the changes impose blanket British citizenship on the people of Northern Ireland.

Two tiers

She says they remove the access of Irish citizens in Northern Ireland to EEA/EU rights and create two tiers of Irish citizens, those who can retain their EU rights and those who cannot.

In response to queries from The Irish Times, the UK Home Office said Irish citizens in the UK who are not also British citizens can apply for “settled status.” This does not extend to Irish citizens in Northern Ireland because they are regarded by the UK government automatically as a British citizen by their birth in Northern Ireland.

“Like all British citizens, people of Northern Ireland who are British or dual citizens cannot be granted under the EU settlement scheme,” said a Home Office spokesman.

Responding to the Home Office’s comments, Ms DeSouza questioned how the UK department could justify opening the scheme to certain Irish citizens based on their birthplace.

“To me, that is the definition of second-class citizenship,” she said.

She found it “extremely distressing” to see that she no longer met the definition of “EEA/EU national”, she said.

Legal underpinning

The settlement scheme was “the only way” to provide a legal underpinning to the EU rights of Northern Ireland-born Irish citizens under the UK’s proposed withdrawal agreement from the EU, she said.

The Home Office said that how people of Northern Ireland “can be joined in the UK by their family members is being reviewed” and any solution would be “fully compliant with the letter and spirit of the Belfast Agreement”.

Una Boyd, a solicitor at the Northern Irish human rights group Committee on the Administration of Justice who previously represented Ms DeSouza, said the UK's change in the EEA definition underpinning eligibility in the EU settlement scheme was "not surprising" but that it was "disappointing".

“There was an opportunity here for change to ensure the UK government fulfil the commitments under the withdrawal agreement and the Good Friday Agreement,” said Ms Boyd.

Northern Ireland-born Irish citizens will retain EU citizenship and basic movement rights but by being precluded from the settlement scheme, they “cannot secure their wider EU rights in an enforceable way”, she said.