Part VI - Citizenship and Free Movement of Persons in the Protocol

14 The Common Travel Area

Imelda Maher

14.1 Introduction

The Common Travel Area (CTA) is an arrangement among the UK, the Crown Dependencies (the Bailiwick of Jersey, the Bailiwick of Guernsey and the Isle of Man) and Ireland by which British and Irish citizens can move freely and reside in either jurisdiction and enjoy associated rights and privileges, including the right to work, study and vote in certain elections, as well as to access social welfare benefits and health services. These arrangements have been disrupted by Brexit even though these arrangements long preceded Ireland’s and the UK’s membership of the EU.

The retention of the CTA was largely uncontroversial for either state or for the EU when the UK chose to leave the EU. Nonetheless, Brexit has had two major effects: first, it heightened its visibility as it received considerable political and media attention in the early stages of the Brexit negotiations; second, Brexit crystallized the CTA through formalizing it while both governments and the EU have allowed for its continued development. Thus, the CTA has moved from being a highly informal arrangement to becoming a cluster of laws, with an intergovernmental Memorandum of Understanding (MOU) and the Protocol and legislation most notably found in the Brexit statutes of Ireland and the UK.¹ It is a distinct legal arrangement, recognized by and connected to but operating separately from the Withdrawal Agreement (WA) and the Trade and Cooperation Agreement (TCA) which should insulate it to some degree from concerns surrounding the Protocol.

14.2 The CTA Pre-Brexit

The CTA emerged over time and almost by default following the creation of the Irish state in 1922. Irish citizens were not classified as aliens under the UK British Nationality Act 1948,² and in Ireland a Statutory Instrument exempted British citizens from the Aliens Act 1935, with it remaining in place after the Immigration Act 2004.³ Citizens from either state were not subject to routine immigration controls and enjoyed extensive rights and privileges in the other state; so, in effect, there were no additional formalities for citizens from either state moving to live and work in the host state.⁴ This largely informal arrangement was disrupted only during the Second World War, being renewed by an exchange of letters between the governments shortly thereafter.⁵ The CTA seemed to work well for migrant citizens from both states, being largely invisible.

The first formal recognition of this arrangement was, ironically, in the 1999 EU Treaty of Amsterdam. Article 2 of what is now Protocol 20 noted that ‘the United Kingdom and Ireland could continue to make arrangements between themselves relating to the movement of persons between their territories (“the Common Travel Area”)’. The CTA was exempt from the application of those EU laws giving effect to Europe without Frontiers (Schengen) as it was itself an area without frontiers for the two islands. The exemption was justified by both geography and politics, given that the 1998 Agreement was only one year old at that stage and the demilitarization of the land border between Northern Ireland and Ireland was being effected.⁶

14.3 Brexit and the CTA

14.3.1 The Protocol

Echoing Protocol 20 of the Treaty on the Functioning of the European Union (TFEU), Article 3(1) of the Northern Ireland Protocol notes that the two states can continue to make arrangements under the CTA, subject to two related caveats. First, both states must fully respect the rights of natural persons conferred by EU law and second, the UK has to ensure that the CTA can apply without affecting the obligations Ireland has under EU law, in particular in relation to free movement to, from and within Ireland for EU citizens and their family members, irrespective of nationality.⁷ Subject to this caveat, it will be possible for British citizens coming to Ireland to enjoy more expansive rights than those of EU citizens living in Ireland. This retains the status quo, as British and Irish citizens have always had privileges that went further than those of other EU citizens whom they hosted. The difference is that British citizens are now third-country nationals under EU law and that the EU in the WA accepts the logic that led to Protocol 20 TFEU and the British/Irish exemption from Schengen. Ireland will remain outside Schengen, choosing an area without frontiers with the UK instead. This means that Irish, as well as British, citizens will be subject to passport controls on entry to other EU members.

14.3.2 The CTA Memorandum of Understanding

One key question for the UK–EU negotiations leading to the WA was to determine what encompassed the CTA.⁸ This question did not arise so starkly at the time of the Amsterdam Treaty, but, given the need to determine relations with the UK as a third country, the EU needed to know what it was acknowledging. To gain greater recognition for the CTA, it had to be formalized. This led to the MOU in May 2019 between Ireland and the UK.⁹ The MOU states that it builds on the ‘excellent and highly valued’ co-operation that already exists under the CTA.¹⁰ Both governments published a joint statement alongside the MOU asserting their mutual commitment to maintaining the CTA in all circumstances.¹¹ The scope and limitations of these expansive statements can then be seen in the remainder of the MOU and the fact that it expressly says that it is not legally binding.¹²

The MOU clarified that the CTA consists of two elements. First (see Section 14.3.3 for the second), the CTA itself is concerned with the ability to move freely.¹³ It was this ability to cross borders that came to the fore when negotiations began on Brexit, as the issue of how the border for goods was to be secured between the UK and the EU had to be determined. The CTA ensures no routine migration controls for Irish citizens at UK borders, although there may be checks for certain purposes,¹⁴ and passengers are required to produce ID when passing through Irish airports.¹⁵ There are no border posts at the land border with Northern Ireland, seen as an essential underpinning for, and consequence of, the 1998 Agreement. It is an invisible border.¹⁶ These aspects of free movement are referred to only obliquely in legislation in both jurisdictions, however, and neither jurisdiction confers a positive right in these respects. Hence in the UK statute, Irish citizens do not require leave to enter or remain in the UK, and in the Irish statute British citizens are not included in the definition of alien, or, more recently, non-national.¹⁷ It is no wonder that Hogan J (as he then was) referred to the CTA as requiring ‘legal archaeology’.¹⁸

14.3.3 The Memorandum of Understanding: Rights and Privileges

The second, and significant, aspect of the MOU is its clarification of the extensive reciprocal rights and privileges for British and Irish citizens in each territory which both governments state are of immense importance to them and, notably, will continue to evolve over time.¹⁹ Thus, the MOU, while formalizing arrangements, suggests both durability and flexible evolution. This future evolution was also allowed for under the Protocol, concluded six months later. These newly codified rights and privileges show the extent to which the CTA is not just concerned with travel across borders. As they are reciprocal, they should not be changed unilaterally, although they do not map exactly onto each other – a product in part of scattered legal bases and variation in legal frameworks as between the two states.²⁰ Both governments commit to taking any necessary steps to ensure provision of these rights and privileges and clarity around their availability for citizens and service providers, up to and including legislation or other bilateral agreements.²¹

The key reciprocal rights and privileges set out in the MOU are, first, the right to reside, a right which the two governments are to ensure that they continue to provide for in statute. The UK government did this in 2020; the Irish legislation remains more oblique: British citizens are not classified as non-nationals.²²

Second, the rights to work and to be self-employed are protected. As Irish and British citizens are regarded as settled in their host state, all that is required is proof of citizenship in order to secure a British national insurance number or an Irish personal public service number and to take up employment or set up a business. No special permissions are required. A more complex question is the mutual recognition of qualifications.²³ Both governments commit to comprehensive measures allowing for such recognition in line with national law.²⁴ Urgent calls for an overarching bilateral agreement or programme have not yet led to action.²⁵ Instead, with 182 regulated professions and regulation of them delegated, this is a slow and complex process.²⁶ In many instances, the relevant professional body needs to act; for example, the Law Societies of Ireland and England and Wales reinstated prior mutual recognition arrangements (governed by EU law), allowing admission of their respective solicitors without the need to take qualifying examinations.²⁷

Third, the right to health care is protected: citizens resident in the host state have the right to access emergency, routine and planned (specialized) publicly funded health services on the same basis as citizens of that state.²⁸ The two governments signed an additional MOU in December 2020 recognizing that health care would be available irrespective of citizenship, an MOU being necessary given that EU cross-border health care for residents would no longer be available.²⁹ The MOU addresses posted workers, frontier workers, students, state reimbursement arrangements and data protection.

Fourth, the right to social protection is provided for. This is one of the very few areas under the CTA where the governments concluded a number of (binding) agreements, most recently in 2019.³⁰ It sets out a principle of equality of treatment for the citizens of both states and their families. It lists the main benefits and allowances available in both jurisdictions, including any amendments to them in the future, while expressly excluding any rights or benefits arising under EU law, underlining the fact that the CTA exists in parallel to Irish rights and obligations as an EU member state.

Fifth, the right to housing is addressed: the CTA gives a right of access to social housing, including supported housing and homeless assistance, on the same basis as citizens of the host state.³¹

The principle of equality of treatment also applies in the realm of education, the sixth area mentioned in the MOU.³² It extends beyond access to all levels of education and training to associated student support, on a reciprocal basis.³³ The UK has left the ERASMUS scheme for students to study at another EU university for part of their degree.³⁴ The Irish government has offered to extend the scheme to all Northern Irish students (whether or not they are Irish citizens)³⁵ with discussions ongoing with Irish higher education institutions as to how best to implement this commitment.

Finally, the CTA confers political rights, particularly important in Northern Ireland as those who choose to identify as Irish under the 1998 Agreement can exercise the right of franchise on the same basis as those who identify as British. Citizens resident in either host state can register to vote in both parliamentary and local elections on the same basis as citizens of that state.³⁶

Thus, the scope of the CTA extends far beyond the freedom to travel. It encapsulates a significant number of social rights and the right to vote. While the MOU and the Social Security Convention have codified these arrangements, the underlying legislation remains scattered and can be either extended or reduced. The CTA remains fundamentally a pragmatic arrangement, albeit one now framed with an explicit and shared commitment by both governments to its importance. At the same time, it is not framed in terms of fundamental rights, it is legally scattered and it is limited to Irish and British citizens.³⁷

14.3.4 CTA Governance and Visas

Under the MOU, there is an oversight committee of officials that is to meet at least annually.³⁸ This complements the CTA Forum on Immigration Matters, which co-ordinates on visa and migration by citizens of other states. The Forum, consisting of senior officials from both states, meets at least twice a year, reporting to respective ministers on an ongoing basis.³⁹ Its operational and policy sub-groups share information on operation and enforcement and drive implementation of the programme of work on rendering secure external borders.⁴⁰ The operation of these bodies remains largely opaque.⁴¹ Each state enforces the other’s terms and conditions for entry for other citizens and works closely on protecting their borders.⁴² While there is close collaboration on border controls, the arguably greater significance of the CTA for the Irish government means that it has been seen to align itself with UK policy.⁴³ The states have a common visa policy for Indian and Chinese citizens and their separate visa policies are broadly consistent.⁴⁴ The lack of formality at the border can catch the unwary non-Irish or non-British citizen moving between the two states, especially across the invisible land border.⁴⁵

14.4 Conclusion

The issue of borders has grown more significant as Brexit emphasizes the external borders between the EU and the UK. Brexit drew attention to the CTA and its continuation was relatively uncontroversial. It is an exception to new constraints on free movement of people between the EU and the UK, allowing British and Irish citizens to move freely and to live and work in each state. The greatest source of concern is the land border which, following the 1998 Agreement, has become largely invisible, or, at least, frictionless.⁴⁶ The total number of person border crossings is around 110 million annually, with 15 main crossings on the 500 km border.⁴⁷ The frequency of border crossings (both land and air) highlights the strong basis for continuing this arrangement defined more by pragmatism than by law.

The CTA goes far beyond movement across borders, however. It is primarily concerned with facilitating citizens from the two states living and working in each state on a more-or-less equal basis. The earnest commitment of both governments to the significance of the CTA set out in the MOU is undermined by the fact that the MOU itself is not legally binding and by the complexity of the domestic legal rules in both states underpinning it. Nonetheless, the MOU does provide greater clarity as to the CTA principles and core rights and privileges. As a discrete, long-standing pragmatic arrangement between the two states that is 100 years old next year, the CTA is relatively robust and is likely to survive the political and legal challenges currently surrounding the borders between the EU and the UK.

15 Citizenship and Identity in Northern Ireland

CRG Murray

15.1 Introduction

Brexit, in some accounts, does not change the 1998 Agreement’s citizenship provisions. The people of Northern Ireland remain able ‘to identify themselves and be accepted as Irish or British, or both, as they may so choose’.¹ It does not alter the obligation on the UK government to maintain rigorous impartiality between these identities in Northern Ireland’s governance.² On a deeper account, however, questions of identity in Northern Ireland are central to the idea of Brexit and have profoundly shaped the reality of Brexit. Within the Northern Ireland context, the Democratic Unionist Party (DUP)’s case for Brexit in the 2016 referendum campaign was unabashedly about restoring UK sovereignty, in the expectation that the UK ‘taking back control’ of law-making competences from the EU would intensify Northern Ireland’s distinctiveness from Ireland, and that this divergence would hamper any future moves towards unification. Opposition to Brexit put the case that such an outcome would inevitably destabilize the 1998 settlement. This opposition to Brexit was not entirely determined by identity during the referendum campaign; politicians and commentators across Northern Ireland’s political spectrum identified the threat Brexit posed to the North–South connections which had done so much to secure nationalist support for the 1998 arrangements. The Ulster Unionist Party’s then-leader was, moreover, prescient in flagging up the compromises which these obligations would entail for the realization of Brexit.³ This chapter considers the relationship between the Protocol and issues of identity.

15.2 The Intertwining of Identity and Brexit

The shape of Brexit came to be determined by the UK government’s efforts to make its plans fit with the ‘letter and spirit’ of the 1998 Agreement, at least once it accepted that EU law underpinned a range of aspects of North–South co-operation and provided the legal basis for a range of rights and equality protections within Northern Ireland.⁴ The Brexit negotiations over trade moved through multiple phases, with then prime minister Theresa May’s UK-wide backstop giving way to Prime Minister Boris Johnson’s deal which provided for Northern Ireland remaining within the EU Single Market for goods. These negotiations, accompanied by UK government paeans to the ‘precious Union’⁵ and Irish government’s concerns to preserve the ‘invisible’ land border,⁶ ratcheted up tensions around Brexit in Northern Ireland. Moving into Brexit’s implementation phase, denunciations of a supposedly unionist UK government implementing a ‘nationalist’ deal have been added to this mix, transforming most discussions over Brexit’s impacts upon Northern Ireland into a zero-sum question about which identity in Northern Ireland can be said to have won.⁷

In addressing how Brexit has affected citizenship and identity within Northern Ireland, this chapter thus tackles a combination of issues which have resulted from Brexit and those which have been pushed to the fore by the way in which Brexit debates have been conceptualized in identity terms in Northern Ireland. First, this chapter explores how Brexit debates have become entangled with questions over the 1998 Agreement’s citizenship provisions. Second, beyond the question of the choice of a national identity, if a large section of society in Northern Ireland identifies as Irish, and thus retains EU citizenship, how does Brexit threaten the rights associated with holding EU citizenship? Having examined these challenges, the chapter explores how they have been addressed both within and beyond the formal Brexit deal.

15.3 The Birthright of the People of Northern Ireland

Under the 1998 Agreement, the people of Northern Ireland are able to choose whether they assert British or Irish identity, or both. This was not a particularly contentious element of the negotiations leading to the 1998 Agreement, given that Irish law had long permitted people born in Northern Ireland to claim Irish citizenship⁸ and successive UK governments had accepted this entitlement.⁹ Irish and UK government officials drew up the conditions for the exercise of this ‘birthright’.¹⁰ The lack of contention around these arrangements meant that there was no clear consensus over whether they were intended to merely confirm the UK’s acceptance of Ireland’s extraterritorial assertion of nationality law or were instead intended to decouple nationality law from statehood in the Northern Ireland context. The framing of these provisions in the 1998 Agreement, moreover, potentially supported the more expansive interpretation and, against the backdrop of Brexit debates, concerns intensified over the implications for UK nationality law of these ‘birthright’ provisions.

The British Nationality Act 1981 ensures that anyone born in Northern Ireland to a parent who is settled or is a British citizen automatically becomes a British citizen.¹¹ It was not altered in light of the 1998 Agreement. The people of Northern Ireland can thus identify as Irish and can assert their entitlement to Irish citizenship, but if they do, they will be treated in domestic law as dual citizens unless they also take steps to renounce British citizenship. Questions over whether this sufficed for the implementation of the 1998 Agreement were latent for years because the assertion of these different categories of citizenship did not result in operative distinctions between people with these different statuses. In 2012, however, the UK government excluded British citizens who held dual nationality with another EU state from availing themselves of EU law’s residency rules for third-country national family members of EU citizens.¹² Because the people of Northern Ireland were automatically presumed to be British citizens, this change meant that they could no longer circumvent minimum income requirements for securing the residency of family members by asserting their Irish citizenship, unless they also renounced their British citizenship.¹³

The years following this change saw a pronounced increase in the number of people in Northern Ireland renouncing their British citizenship, leading the UK government to accept that these rules incentivized some in Northern Ireland to renounce British citizenship.¹⁴ This recognition, however, came only after Emma DeSouza forced the issue onto the agenda when these rules impacted upon the ability of her spouse, Jake, a United States citizen, to secure residency documents. The DeSouzas did not, as others in their circumstances had done, simply renounce Ms DeSouza’s underlying British citizenship but alleged that its automatic imposition under the British Nationality Act was a breach of the 1998 Agreement’s birthright provisions.¹⁵

The Upper Tribunal, however, rejected this challenge on the basis that the 1998 Agreement, as an unincorporated treaty, could not affect the interpretation of the British Nationality Act 1981.¹⁶ It furthermore concluded that the Agreement ‘does not, in fact, involve giving the concept of self-identification the meaning for which the claimant argues’, justifying this conclusion on the basis that, if that meaning had been intended, the Agreement would have been much more explicit about the impact of its terms.¹⁷ This is best regarded as obiter dicta, as there was little need for the Tribunal to step into this territory given that it had already determined to give no weight to the Agreement as an unincorporated treaty.

This has not prevented further litigation on the impact of the 1998 Agreement’s birthright provision on UK nationality law, notably Irish citizen Lisa Smith’s challenge against her exclusion from the UK on the basis of her connections with Islamic State. In response to Smith’s preliminary claims to dual nationality based on her father being Belfast-born, the Special Immigration Appeals Commission ruled that it would be discriminatory for the Home Secretary to deny her this entitlement on the basis that Smith’s parents were not married when she was born. The Commission nonetheless maintained that the obligation on someone claiming to have entitlement to British citizenship to take an oath and pledge of allegiance ‘is not inconsistent with the rights of those who wish to identify as Irish’ under the 1998 Agreement.¹⁸ Smith’s eagerness to assert dual nationality to prevent exclusion highlights how different claimants are drawing upon very different accounts of how nationality law works in the context of Northern Ireland.

15.4 Brexit and ‘EU Rights, Opportunities and Benefits’

The instability in understandings of the 1998 Agreement’s citizenship provisions exacerbated tensions and confusions around Brexit and identity. The entitlement of the people of Northern Ireland to Irish, and therefore EU, citizenship would continue post-Brexit, but for long periods within the Brexit negotiations there was very little clarity as to what this would mean in practice. The 2017 UK–EU Joint Report, for example, included promises about the continuation of EU citizenship rights for Irish citizens living in Northern Ireland after Brexit.¹⁹

Airy pledges to ‘examine’ the continuation of these ‘EU rights, opportunities and benefits’ soon ran into practical challenges. EU citizenship, put simply, means much less when someone is resident outside the EU member states, and the EU was not about to restructure understandings of EU citizenship and EU law rights to accommodate Northern Ireland. Commitments to working on arrangements for protecting the ‘EU rights, opportunities and benefits’ of those people of Northern Ireland who had asserted their Irish citizenship might have appeared to reflect commitments to non-diminution of 1998 Agreement rights. If special protections were created for this particular group, however, this would collide with another 1998 Agreement principle, that of parity of esteem for those asserting British and Irish identities in Northern Ireland. Singling out a particular group of EU citizens in Northern Ireland for these protections would also run into issues of discrimination under EU law.

These difficulties highlight that both the EU and the UK struggled to accommodate Brexit within the strictures of the 1998 Agreement. The broad terms of the 2017 UK–EU Joint Report’s commitment would be reflected in the Preamble to the Protocol, which states that it will operate ‘without prejudice to the rights, opportunities and identity that come with citizenship of the Union for the people of Northern Ireland who choose to assert their right to Irish citizenship’. In operative terms, however, Protocol Article 2 provided for more limited commitments to maintain the operation of only those elements of EU law in Northern Ireland which could be shown to underpin the ‘Rights, Safeguards and Equality of Opportunity’ section of the 1998 Agreement, which does not cover the ‘birthright’ guarantee.²⁰

Nor does the EU settlement scheme operating under the terms of the Withdrawal Agreement (WA) apply to dual nationals with British citizenship.²¹ The people of Northern Ireland therefore did not have the opportunity to register under the scheme to protect the ‘rights, opportunities and benefits’ associated with EU citizenship unless they had taken active steps to renounce their underlying British citizenship. Irish citizens outwith the people of Northern Ireland, who enjoy entitlements associated with the Common Travel Area (CTA), were long discouraged from applying under the scheme.²² Multiple classes of rights holder were thus created by the WA and UK government policy, and the associated difficulties of administering the different rights and entitlements, which are linked to subtle differences of status, are likely to emerge over the years to come.

15.5 Mitigations

If the apparent promise of the Joint Committee report was far from being realized in the WA’s terms, the Protocol’s aspiration in its Preamble to protect EU-law related ‘rights, opportunities and benefits’ continued to shape the aftermath of Brexit. Some of these issues would be addressed as part of the future relationship negotiations, leading to the Trade and Cooperation Agreement (TCA). But others would not be, and, as negotiations towards the TCA went down to the wire in December 2020, Ireland was preparing to step in with unilateral measures to safeguard against sudden shortfalls.²³

Two high-profile concerns regarding the people of Northern Ireland’s EU ‘rights, opportunities and benefits’ which remained unclear before the conclusion of the TCA were the post-Brexit operation of the European Health Insurance Card (EHIC) and that of the Erasmus+ scheme. The former issue was settled as part of the TCA;²⁴ the people of Northern Ireland would appear to have comparable entitlements using the UK’s new Global Health Insurance Card when travelling to EU member states to those they had enjoyed under EHIC.²⁵ The UK government did not, however, reach an agreement with the EU regarding the continuation of the Erasmus+ scheme. Ireland has thus committed to put in place arrangements and funding for students at Northern Ireland higher education institutions to register temporarily with institutions in Ireland to allow them to continue to use Erasmus+.²⁶

Ian Paisley Jr’s unapologetic ‘fill-your-boots’ response to Ireland’s preparations regarding EHIC and Erasmus+ was to ask the Northern Ireland Secretary, ‘[i]s there anything else we can get the Irish Government to pay for …?’.²⁷ This was, of course, to miss the point of these developments. They were driven by a specific imperative to address an expected shortfall in EU ‘rights, opportunities and benefits’ for the people of Northern Ireland arising because of Brexit. Given that there is no EU citizenship connection to people of Northern Ireland who identify solely as British, it is appropriate that such issues be addressed by unilateral or bilateral action by the Irish and UK governments. These developments are thus primarily shaped by concerns to ensure non-diminution of rights, but also demonstrate the influence of other 1998 Agreement principles. That the Irish government never suggested a scheme applicable only to Irish citizens studying at Northern Ireland institutions demonstrates the underlying impact of ‘parity of esteem’.²⁸ These 1998 Agreement principles, in combination, are shaping these mitigations of Brexit’s impacts on Northern Ireland.

Their influence is also evident in the ultimate defusal of the DeSouza litigation. The UK government promised a response under the New Decade, New Approach deal which paved the way to restarting power-sharing government in Northern Ireland in January 2020.²⁹ Thereafter, the DeSouzas’ appeal against the Upper Tribunal’s decision was withdrawn after the UK government announced changes to Appendix EU of the immigration rules.³⁰ Under these changes, between 24 August 2020 and the end of the EU settlement scheme in 30 June 2021, ‘third-country’ family members of someone who met the 1998 Agreement definition of a person of Northern Ireland may apply for residence in the UK under the same terms as individuals eligible to do so under the settlement scheme.

For Austen Morgan, the UK government, despite its success before the Upper Tribunal, ‘behaved like a loser’ in this response.³¹ The amendment to Appendix EU is not, however, a response that gives any ground on the automatic ascription of British citizenship under the British Nationality Act 1981. Indeed, the UK government has reasserted that it ‘is of the firm view that UK nationality law is consistent with its obligations under the Belfast Agreement obligations and the ECHR [European Convention on Human Rights]’.³² That conclusion is, at least, questionable given that the costs for persons of Northern Ireland of £372 to renounce their underlying British citizenship constrain their ability to make, and ‘be accepted’ in, their citizenship choices.³³ The mitigation introduced following New Decade, New Approach does nothing in the medium to long term to address these concerns over the implementation of the birthright following DeSouza.

It instead addresses the distinct issue of the holders of some citizenship statuses within the people of Northern Ireland being advantaged over others. Persons of Northern Ireland who are dual citizens are not enabled to take part in the EU settlement scheme; their ‘third-country’ family members can instead establish residency rights as if they were related to someone covered by the settlement scheme. This approach appears to be derived from the EU settlement scheme provisions adopted to address people with EU rights derived from the CJEU’s Lounes judgment.³⁴ It did not restore the British citizenship of anyone who had previously taken steps to renounce it to secure residency rights for a family member, and the provision expired with the EU settlement scheme. It is thus unlikely to benefit more than a handful of people. But it did give the concept of the ‘person of Northern Ireland’ temporary significance within UK immigration law, which could be drawn upon again.³⁵ Such an approach, entirely removed from the EU-law basis of the residency rights at issue, reads equality of treatment obligations into the operation of the birthright.³⁶

This approach also has implications for the shape of citizenship should Irish (re)unification come to pass. Under the 1998 Agreement, the ability of the people of Northern Ireland ‘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’.³⁷ The ongoing commitment within the 1998 Agreement is, thus, to facilitate entitlements to dual citizenship; it is not to protect the right to be Irish or British or both. Given the reception to the DeSouzas’ claims by UK institutions, there would seem to be little basis for opposing a future Irish government imposing underlying Irish citizenship on people born within the territory of the state after (re)unification to parents who are, or who are entitled to be, Irish citizens.³⁸ As for renunciation, although Irish law provides for renunciation of citizenship with no associated fees, this presently applies only to adults not ordinarily resident within the state.³⁹

15.6 No Petty People

In 1925, WB Yeats thundered in the Seanad that the Anglo-Irish were ‘no petty people’, as divorce was abolished and with it, for him, the hope that the Irish Free State would protect interests beyond those promoted by the Catholic Church.⁴⁰ The people of Northern Ireland, by contrast, can scarcely be described as a people at all. Yet the 1998 Agreement accepted this formula and, moreover, imbued this people with citizenship rights and a level of constituent power unique within the UK’s constitutional order (although how the group was defined was not necessarily the same in both instances).

There was a hope that, with decades of stable governance, rebuilt institutions and effective support for ‘parity of esteem’ from civil society that a people of Northern Ireland could develop after the 1998 Agreement.⁴¹ And there are many more people in Northern Ireland today who do not connect their identity primarily to the constitutional question over Northern Ireland’s status than there were in the late 1990s.⁴² The 1998 Agreement threw the ball over the wall and expected that society in Northern Ireland would follow suit. But it was no more possible for the ending of legal impediments upon women to bring about gender equality in and of itself than for the 1998 Agreement to be the sole, or even main, vehicle of change in Northern Ireland. Its transformative potential had to be nurtured. Instead, vacillation over the legacy of the conflict and over whether measures promoting the Irish language should be introduced has been pushing identity to the fore in Northern Ireland’s politics, a development which Brexit has exacerbated.

15.7 Conclusion

Brexit found Northern Ireland in a state of destabilized governance and in the midst of a process of societal transformation. Divisions that had been papered over by the peace process were reopened by this zero-sum play for a pure UK sovereignty. The tortured process of realizing Brexit, in which issues around Northern Ireland repeatedly came to the fore, inevitably exacerbated tensions over identity within Northern Ireland’s populace. To this inevitable shock have been added distortions and obfuscation about what the Brexit outcomes agreed by the UK government mean for Northern Ireland.⁴³ All of these developments have worked to reassert core identities. And yet, through it all, individuals and civil society in Northern Ireland have been able to influence the negotiations and harness the principles underpinning the 1998 Agreement to resolve some of Brexit’s immediate challenges around citizenship.⁴⁴ Maybe the people of Northern Ireland can indeed claim to be no petty people.

16 Citizenship beyond Irish and British

Tobias Lock

16.1 Introduction

Protocol Article 3 provides that the UK and Ireland ‘may continue to make arrangements between themselves relating to the movement of persons between their territories (the “Common Travel Area”), while fully respecting the rights of natural persons conferred by Union law’. We saw in Chapter 14 that the Common Travel Area (CTA) gives British and Irish citizens certain rights and privileges in each other’s state; that a Memorandum of Understanding between the UK and Irish governments of 2019 reiterates its key features; and that the continued operation of the CTA constitutes a central plank of the policy behind the Protocol.

However, the CTA has only ever been a ‘common’ travel area for British and Irish citizens.¹ The ‘New (Northern) Irish’, that is, persons resident on the island of Ireland who are not Irish or British citizens, are excluded from its benefits. This is no small group of people. According to estimates by Ireland’s Central Statistics Office, in 2020 there were 644,400 non-Irish nationals living in Ireland out of a total population of 4.98 million (approximately 12.9 per cent). Of these, 116,900 were UK nationals and 344,000 (non-Irish) EU nationals. The remaining 183,500 were classed as coming from the ‘rest of the world’.² According to Oxford University’s Migration Observatory, there were 53,867 non-UK or non-Irish citizens living in Northern Ireland in 2011.³ Given an overall population of the island of Ireland of around 6.8 million, this means that around 10 per cent of the population of the island can be categorized as New (Northern) Irish.

Many New (Northern) Irish enjoy EU citizenship rights either because they are EU citizens or because they enjoy derived rights as family members of EU citizens, that is, they enjoy the same rights as the EU citizen whom they are accompanying or joining.⁴ This meant that, until the end of the transition period on 31 December 2020, they were in a largely equivalent position in both Ireland and Northern Ireland to Irish and British citizens.⁵ In fact, except for the right to vote in national elections and the right to travel without carrying a passport,⁶ EU citizenship rights went further than those granted by the CTA. Importantly, the CTA does not give rights to family members who are not British or Irish nationals. Furthermore, CTA rights are not directly effective or accompanied by anything like the primacy of EU law so that their enforceability hinges on their implementation in the domestic laws of the UK and Ireland. Additionally, British and Irish citizens resident in the other jurisdiction could rely on EU citizenship rights in addition to their rights under the CTA. Hence, during the UK’s membership of the EU, EU citizenship rights bolstered the CTA rights of Irish and British citizens while giving EU nationals (almost) the same rights. The legacy of the UK’s EU membership means that there is now a Byzantine web of rules determining who is entitled to cross the invisible and purportedly open border on the island and for what purpose, and who is not.

This chapter shows, however, that the situation has worsened for EU citizens and their third-country family members resident in both Ireland and Northern Ireland. Since the end of the Brexit transition period, many of these New (Northern) Irish are encountering new hurdles when crossing the Ireland–Northern Ireland border. This suggests that current CTA arrangements are unfit for the practical realities of life on the island of Ireland, where short-term visits to the other jurisdiction – social or work-related, to receive services or buy goods, or simply to transit through the other jurisdiction in a car or on a public bus – are a daily occurrence for many and an occasional occurrence for most.

16.2 EU Citizens Resident in Ireland

The TCA does not contain a mobility chapter, as originally suggested by the EU.⁷ Hence, social visits by EU citizens resident in Ireland to Northern Ireland are subject to UK immigration rules. UK immigration rules currently class EU citizens as non-visa nationals who are permitted to visit the UK for up to six months.⁸ There are two main differences to the pre-Brexit situation. First, EU citizens no longer have a right to enter Northern Ireland; admission to Northern Ireland is now at the discretion of the UK authorities. This also means that refusal to admit EU citizens or their expulsion is based on UK law only. Second, EU citizens are now required to carry a valid passport when entering Northern Ireland, which is a change from the pre-Brexit situation when they were able to use their national ID card.⁹ This is particularly tricky in the context of crossings from Ireland to Northern Ireland as EU citizens residing in Ireland are entitled to enter Ireland – and subsequently reside there if the conditions of the Citizens’ Rights Directive (CRD) are fulfilled¹⁰ – with a national ID card only.

EU citizens who reside in Ireland, but work in Northern Ireland, retain their status as frontier workers by virtue of Article 10 of the WA if they were frontier workers when the transition period ended. They retain their rights of entry and exit as before.¹¹ However, frontier workers lose this status if they cease working in Northern Ireland, unless they become unemployed and continue to look for work there.¹² By contrast to the situation before Brexit, those taking up frontier work after the end of the transition period now need to apply for a UK work visa to do so. The same would be true for a former frontier worker, who may take up a position in Ireland and then may want to work in Northern Ireland again, since frontier workers’ rights are not guaranteed for a prolonged period of time, as would be the case with permanent residence, which is only lost after five years of absence.

The situation is more complex where short-term business visits to Northern Ireland by EU citizens resident and working in Ireland are concerned. During the UK’s EU membership, EU citizens had a right to enter Northern Ireland to work as self-employed or employed persons. They were also entitled to provide services either as a service provider in their own right or as posted workers, without much impediment.¹³ The lack of a mobility chapter in the TCA results in a substantial restriction of the possible activities that EU citizens resident in Ireland are permitted to undertake in Northern Ireland. It contains only basic provisions for the entry and temporary stay of EU and UK citizens for business purposes, which are reminiscent of those found in other EU free trade agreements, such as the EU–Canada Comprehensive Economic and Trade Agreement (CETA).¹⁴ Yet, as the following discussion shows, these temporary work visits are strictly circumscribed and thus in stark contrast to the free movement regime under EU law.

The TCA distinguishes five categories of persons entitled to stay temporarily in the UK:¹⁵

1. a) ‘business visitors for establishment purposes’, that is, where the EU citizen is posted to set up a subsidiary in Northern Ireland;

2. b) ‘contractual service suppliers’, that is, where an EU citizen – who must be employed by a legal person in Ireland – is posted to Northern Ireland to supply services to a final consumer under a contract not exceeding twelve months, but only if the EU citizen has worked for the legal person for at least one year prior and possesses at least three years’ professional experience;

3. c) ‘independent professionals’, who may perform services in Northern Ireland only if they have six years’ professional experience, and a university degree or equivalent qualification and the professional qualifications required in Northern Ireland to carry out the activity;

4. d) ‘intra-corporate transferees’, who must have worked for the legal person posting them for at least twelve months prior¹⁶ and must be managers, specialists or trainee employees;

5. e) ‘short-term business visitors’, who are permitted only to attend meetings and consultations; conduct research and design; conduct marketing research; attend training seminars; attend trade fairs and exhibitions; engage in the sale or purchase of goods or services; perform after-sales or after-lease services; and oversee commercial transactions.¹⁷

The UK immigration rules list additional permitted activities that visitors are allowed to undertake.¹⁸

This does not, however, reflect the integrated nature of the economies of Ireland and Northern Ireland, where services are provided across the border on a daily basis. For instance, an EU citizen resident in Ireland working for a construction company in Ireland that carries out work in Northern Ireland may not qualify as a ‘contractual service supplier’ because they may not have the relevant three years’ experience or they may not have worked for their employer for more than twelve months, or indeed the contract the employer is fulfilling may be for a duration of more than twelve months. Equally, an EU citizen working as a self-employed construction worker might not qualify as an ‘independent professional’ as they may not be considered a ‘professional’ with a university degree or equivalent qualification.

These restrictions on non-Irish EU citizens could turn out to be problematic for EU citizens seeking work in Ireland, given that no such restrictions on cross-border work are in place for Irish citizens employed by the same company. Hence, there is an incentive for employers that are active in the supply of cross-border services to employ Irish citizens rather than EU citizens. This causes frictions with Article 45 of the Treaty on the Functioning of the European Union (TFEU), which prohibits nationality discrimination of workers and which – at least as far as the discrimination angle is concerned – has horizontal direct effect, that is, it is binding on private employers.¹⁹

16.3 EU Citizens in Northern Ireland

The situation differs for EU citizens resident in Northern Ireland. As EU citizens they have a right to enter Ireland and stay there for up to three months without any further requirements.²⁰ Hence, short-term visits for pleasure or for work are unproblematic. However, when performing work in Ireland they are not able to rely on the freedom to provide services provisions in Articles 56–62 TFEU as neither they (nor their employer) are normally ‘established in a Member State other than that of the person for whom the services are intended’. They are thus solely reliant on their rights as EU citizens and the non-discrimination provision in Article 18 TFEU.

Their right of re-entry into Northern Ireland depends on their immigration status in the UK. If they arrived in the UK after 31 December 2020, this is determined by UK immigration law only. If they arrived before that date and have applied for either settled or pre-settled status, their right of re-entry is determined by the WA as well as (the partly more generous) UK immigration rules. They have a right to enter the UK and may do so with their national ID card up until 31 December 2025.²¹ After that they will need to be in possession of a passport.

If they have acquired permanent residence – or settled status in UK immigration law parlance – they may be absent from the UK for up to five years before losing that status.²² Hence, even extended work assignments in Ireland would not lead to a loss of status. The situation is different for those EU citizens who have not yet accumulated the necessary five years of residence in the UK in order to qualify for settled status. They are granted only pre-settled status, which they can lose in cases of prolonged absences. Continuity of residence is not affected by temporary absences of up to six months in any twelve-month period.²³ Additionally, one temporary absence of up to twelve months is also permissible for important reasons, such as posting to another state.

16.4 Third-Country Nationals Resident in Ireland

Third-country nationals, that is, those who are neither EU citizens nor UK citizens, have always encountered immigration hurdles when crossing the border on the island of Ireland. For those who have no family links to EU citizens, Brexit makes no difference. If resident in Ireland, they must comply with UK immigration law when entering Northern Ireland. The Short-Stay Visa Waiver Programme, which results in the mutual recognition between Ireland and the UK of certain short-stay visas issued to citizens of sixteen countries, does not have an equivalent for holders of long-term visas. Hence, a third-country national who is a resident of Ireland must apply for a UK visa before crossing the border to Northern Ireland, unless the third-country national is visa-exempt due to their citizenship.

For family members of EU citizens, by contrast, Brexit resulted in a worsening of their situation. The CRD grants family members of EU citizens certain privileges when accompanying or joining that EU citizen while travelling in the EU. They have a right to enter another member state,²⁴ that is, up until the end of the transition period, they had a right to enter Northern Ireland. If they needed a visa, that visa had to be granted, that is, the UK had no discretion in that regard.²⁵ If they were in possession of a residence card issued in accordance with the CRD,²⁶ they were exempt from any visa requirements.²⁷ This would typically be the case for family members of non-Irish EU citizens resident in Ireland as well as for family members of Irish citizens who had previously exercised their right to free movement and returned to Ireland.²⁸ Additionally, while third-country family members of Irish citizens not in possession of a CRD-compliant residence card could be required to obtain a visa, that visa had to be issued as soon as possible and free of charge.²⁹

No such rights exist for family members of EU citizens under the WA or the TCA. Equally, no provision is made for third-country national family members of Irish or British citizens in the Memorandum of Understanding on the CTA, confirming that the CTA protects only British and Irish citizens. Hence, the rights of entry of third-country national family members for social visits to Northern Ireland are determined by UK immigration law only. Depending on their citizenship, they may be visa-exempt or they may have to apply for a short-term visa to visit Northern Ireland.

The TCA’s provisions on short-term work visits apply only to ‘natural persons of the other Party’,³⁰ which means that they must have the nationality of an EU member state. Again, this constitutes a worsening of the legal situation for third-country nationals lawfully resident in Ireland compared with the situation before Brexit took effect. According to the case law of the Court of Justice of the European Union (CJEU), the freedom to provide services covers the right to post workers who are third-country nationals to another member state without the need to apply for a work permit for these workers.³¹ This option now no longer exists, unless each third-country national obtains the relevant UK visa.

Family members receive a brief mention in the TCA in the context of intra-corporate transferees,³² obliging both the EU and the UK to allow their entry and temporary stay, but these commitments do not have direct effect and need to be implemented by the parties to the TCA first. Again, this constitutes a reduction in rights as previously they would have been entitled to accompany their EU citizen family member as a matter of a directly effective right.

16.5 Third-Country Nationals Resident in Northern Ireland

Ireland is the only EU member state not bound by Regulation 2018/1806 listing the third countries whose nationals must be in possession of visas. Hence, Irish immigration law autonomously determines the third-country nationals who are visa-exempt and those who must be in possession of a visa. As mentioned previously, there is no parallel programme for long-term residents to the Short-Stay Visa Waiver Programme operated jointly by the UK and Ireland.

Hence, third-country nationals resident in Northern Ireland, who are not visa exempt, may apply for a so-called ‘short stay C-visa’, which is valid for ninety days, but only for a single entry into Ireland. For most permanent residents of Northern Ireland, a multi-journey visa, which allows for multiple entries into Ireland, is therefore the better option. This may be issued for a period of up to five years. Certain nationalities are exempt from having to pay the visa fee for this type of visa. However, as with most visa applications, the applicant has no right to be issued either visa.

If the third-country national is a family member of a (non-Irish) EU citizen, they have a right to enter Ireland if they are accompanying the EU national or joining them.³³ They do not have that right when travelling alone and must – unless exempt due to their nationality – apply for a visa before crossing the border. The WA stipulates that family members of EU nationals resident in the UK continue to enjoy their rights as family members. This means in particular that they may acquire a right of permanent residence after five years of continuous residence as a family member.³⁴ By contrast with the legal situation before the end of the transition period, they are no longer issued with a CRD-compliant residence card;³⁵ instead, they are given an ‘EU Settlement Scheme Residence Card’ (EUSS Residence Card), which entitles them to enter the UK. However, much like the EU/EEA (European Economic Area) residence card, that does not entitle them to travel visa-free within the EU when not accompanying or joining an EU citizen. Additionally, they may be required to obtain a visa for entering Ireland even if in possession of an EUSS Residence Card and accompanying their family member.³⁶ By contrast to other third-country nationals, however, they have a right to be granted a visa when accompanying or joining their EU citizen family member and that visa has to be granted for free.

The situation is more difficult where family members of Irish nationals who are resident in Northern Ireland are concerned.³⁷ The beneficiaries of EU citizenship law are those ‘Union citizens who move to or reside in a Member State other than that of which they are a national’.³⁸ Since the UK is no longer a member state, EU citizenship law no longer applies to Irish citizens in Northern Ireland. Hence, the family member of an Irish citizen resident in Northern Ireland accompanying them on a trip to Ireland is not entitled to right of entry under the CRD. Hence, entry of family members of Irish citizens from Northern Ireland to Ireland is determined by Irish law only. The same goes for family members of British nationals in Northern Ireland given that they are no longer classed as family members of an EU citizen when entering Ireland.

16.6 Conclusion

By granting free movement rights only to Irish and British citizens, the CTA falls short of its own ambition of being a ‘common’ travel area on the island of Ireland. While the exclusion of the growing cohort of New (Northern) Irish is not in itself a new development, the consequences of Brexit mean that the number of those for whom short-term visits across the border on the island of Ireland have become more difficult, or indeed impossible in some cases, has grown considerably in that it now includes EU citizens and their family members.

The CTA’s blindness towards family members – while historically explicable due to the very low numbers of non-British or Irish citizens resident on the island of Ireland in 1922³⁹ – is particularly remarkable. The CJEU has long recognized that obstacles to the movement of family members constitute obstacles to the movement of those entitled to move.⁴⁰

The limitations of the CTA are particularly evident on the island of Ireland, which contains the only international land border within the CTA. The post-Brexit restrictions on the ability of New (Northern) Irish to cross that border show that the arrangements in the Protocol and the CTA do not retain the status quo. The border may continue to appear open, but for an increasing number of New (Northern) Irish it is not. The consequences are not confined to inconveniences, such as not being able to go on shopping trips across the border; they are potentially much further reaching and contradict broader EU law aspirations of non-discrimination. Employers engaged in cross-border trade in Ireland may well decide not to hire EU citizens if they fear that those EU citizens cannot lawfully provide services in Northern Ireland.