Mr. Daniel Holder:

We are grateful to the special select committee for the invitation to give evidence today on the subject of citizenship rights. As committee members may know, the Committee on the Administration of Justice, CAJ, is an independent human rights organisation based in Belfast. I and my colleague, Ms Una Boyd, work for the organisation. We co-convene the Equality Coalition with the UNISON public service union, and we were also the NGO partner in BrexitLawNI, a joint project with the law schools of Queens University Belfast and Ulster University which engaged with much of their subject matter.

The Good Friday Agreement recognises a birthright for those born in Northern Ireland to be Irish or British or both. That is a treaty-based duty on both states. The same provision also obliges both states to recognise dual citizenship. Many other states do not recognise that right. That provision, and related provisions on equality and parity of esteem, mean that the birthright to be British or Irish or both is meant to result in equality of treatment regardless of the choice of citizenship. At the time of the 1998 Good Friday Agreement, the good news was that a fairly comprehensive legal framework, across a range of areas, ensured Irish citizens enjoyed equality of treatment with British citizens in Northern Ireland. The bad news is that legal framework was EU law, which is going to be turned off by Brexit. What is left is precarious, despite all the attempts to talk up the framework of the common travel area, CTA. It is not possible, as things stand, for someone born in Belfast to land in a Belfast airport on any international journey and enter and reside in Belfast as an Irish citizen. It can be done as an EU citizen but that right currently only exists under EU law. There is a Bill before the British Parliament at Westminster at the moment to remedy that particular gap, but the same clause in the Bill also makes it easier to exclude or deport the same person.

There are many assurances about the largely mythical reciprocal rights of the common travel area. I know there is a memorandum of understanding that will be published today and that we have yet to see but certainly there was no public consultation on the scope of that. As it is just a memorandum of understanding it is not going to contain enforceable rights. What we do not see is the UK trying to put in place a comprehensive replacement legal framework to replace EU law that will ensure equality of treatment for Irish citizens in the North. In fact, if one wants a right as simple as not to be deported from one's country of birth, the direction of travel from the UK Government is really that one only has that right by virtue of being considered a British citizen.

Things are not so rosy either in Northern Ireland for those who choose their Good Friday Agreement birthright to be British. Irish citizens will, of course, retain EU citizenship after Brexit and at least the basic freedom of movement in the EU that comes with that but British citizens will not do so. Brexit has managed to turn everyone into a second class citizen albeit in different ways. That is before we get on to the implications for migrant communities who, as shown in our research, are already facing increased racial profiling and discrimination. Brexit leaves different groups of our citizens, and I will quote the title of one of our recent conference, "divided by the rules" as never before as there is going to be a lot of differentiation between entitlements in terms of citizenship status.

Brexit also creates real difficulties in complying with the equality of treatment principles of the Good Friday Agreement. It is difficult to see how any form of Brexit, at least without some form of special status for the North that allowed British citizens to retain EU citizenship, can comply with the provisions of the Good Friday Agreement. Had Westminster discharged its duties under the Good Friday Agreement to legislate for a bill of rights for Northern Ireland, that would have had a legally enforceable birthright to be British or Irish or both without differential or detrimental treatment, it is difficult to see how Brexit could be lawfully taken forward in the North at the moment.

As has been alluded to by others, after 1998 even with the Good Friday Agreement the UK failed to bring its citizenship laws in line with the agreement. It continues to automatically confer British citizenship on almost all persons born in the North. Nevertheless, the UK Home Office until 2012 did generally respect those rights of Northern Ireland born people who were attached to Irish citizenship. That changed, post-2012, precisely to stop the exercise of particular EU rights such as family reunification as in the DeSouza case. The policy changed to treat all Northern Ireland born people as also being British.

While Irish citizens maintain EU citizenship and rights like basic freedom of movement in the EU, most other EU rights, opportunities and benefits are not automatically retained after Brexit but require specific arrangements. That is the case with political rights to return MEPs, the European health insurance card, rights to cross-border healthcare or education, rights to be joined by family members, etc. As has been alluded to by other witnesses, in December 2017 in the phase 1 agreement in the EU-UK joint report, and I refer to the now infamous paragraph 52, it committed to continued access to and exercise of such EU rights, opportunities and benefits for Irish citizens in Northern Ireland. That is well beyond the basic list of citizens' rights that were alluded by the chief commissioner earlier. The scope of that commitment is beyond that and that is testified by the language in the paragraph around specific arrangements for the continued exercise of these rights being examined. However, there is nothing to implement that commitment in the draft withdrawal agreement. It is only mentioned in the non-binding preamble. It is not even mentioned in the political declaration on future arrangements. That commitment really has been neglected.

More recently, the other route to retain certain EU rights and benefits for Irish citizens in the North is under the EU settlement scheme. It was possible to do so during its pilot phase but then the Home Office changed the criteria with the purpose and effect of excluding Northern Ireland born Irish citizens from retaining EU rights under the withdrawal agreement. Again, that was done on the basis of also treating such persons as British. There is a potential U-turn. We now know of at least one case where a Northern Ireland Irish citizen has applied and successfully achieved the retention of EU rights under the settled status scheme. It is up to the Home Office to clarify its position on this matter. Unless that happens this leaves Northern born Irish citizens as almost the only EU citizens within the UK who will not be able to retain EU citizens' rights under the withdrawal agreement, which is quite a serious situation. Let us consider where we are. This is not where we wanted to be at this particular stage. We wanted to be at a stage where Irish citizens had rightly retained EU rights and benefits, and that would benefit those who would choose to be Irish under the Good Friday Agreement or, indeed, those who choose to be Irish and British. In the context of the Good Friday Agreement and levelling up, we really wanted to be at the stage now of not going for the lowest common denominator but be at the stage of looking at arrangements for those who also exercise their rights under the Good Friday Agreement to be solely British. Instead of this the UK Home Office is quite actively seeking the lowest common denominator and seeking to strip every possible EU right and benefit from Irish citizens in Northern Ireland. It is doing so in a manner that fundamentally conflicts with the Good Friday Agreement. I think we are at a stage where we need significant movement from both Governments and the EU on this issue before it really is too late.