Mr. Daniel Holder:

I shall start with the issue of what changed in 2012. That was quite a significant time. Although, unlike Ireland, the UK never amended its citizenship laws to bring them in line with the Good Friday Agreement, until 2012, as a matter of policy, the British Home Office usually recognised people's right to be solely Irish in the context of the Northern Ireland birthright. We can see that, for example, in the aborted attempts by the UK to introduce identity cards. They conceded that there would have to be a different card and that they could not have a card in the North that said the holder was British if he or she was an Irish citizen. They conceded that there would be a separate card. We also saw it in the sense that people in the same situation as Ms de Souza who sought EU rights to family reunification generally had those rights respected. People put in those applications and were granted them as Irish citizens.

In 2012, when Theresa May was Home Secretary, a suite of policies was brought in called the "hostile environment". Those policies were subsequently legislated for but 2012 is when it started. There was a series of - in our view and in human rights terms - very draconian immigration policies that aimed just to reduce numbers. The Home Office latched on to a decision of the ECJ called McCarthy, which restricted people's opportunity to exercise EU rights when they were dual citizens. The facts of this case were completely irrelevant to the context of people who have birthrights under the Good Friday Agreement because that is not what it dealt with, yet the decision was used as a pretext to prevent Irish citizens in the North from exercising EU rights to family reunification.

The lines they have taken to defend that policy are extremely worrying and have much broader implications for some of the other issues and questions that were asked. In cases like those of Ms de Souza and others, the Home Office has basically said two things. It has sought to reinterpret the citizenship provisions of the Good Friday Agreement in a way that completely stretches credibility. There is a broader worry if it does the same with other provisions in the agreement. It is arguing that it is perfectly compatible to automatically confer British citizenship on everyone born in Northern Ireland and that there is nothing in the Good Friday Agreement to stop that, apart from the bit that states the participants "recognise the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both". It is worrying that things can be reinterpreted in that way.

The second thing the Home Office has done, which is even more worrying, is basically to say it is not bound by the terms of the Good Friday Agreement. It is an international treaty and that does not oblige Her Majesty's Government directly to change its legislation. I do not think this is correct but that is the line it has taken. That is worrying in the sense of looking at other provisions in the Good Friday Agreement such as the duty to incorporate the ECHR into Northern Ireland law. That is a core provision safeguarded under the agreement. It is what we have currently, through the Human Rights Act, yet the Home Office is now saying it does not consider itself bound by the Good Friday Agreement. That is a much broader worry. It has exposed one of the weaknesses of the agreement, namely that there is no dispute resolution mechanism.

No international court was given jurisdiction to remedy faults. When one hears of things such as the Home Office's position in cases such as that of DeSouza, one realises that it is no wonder that the EU is insisting on a legally binding backstop. There has to be some supernational mechanism to enforce commitments as the UK has a long and consistent track record, throughout the peace settlement, of signing bilateral agreements and treaties which are legally binding under international law and then not abiding by their provisions. There is a much broader set of problems involved which are highlighted by cases such as that of DeSouza.

With regard to the common travel area, there is one thing which needs to be called out. Ever since the Brexit vote there has been a lot of talk about reciprocal rights in the common travel area. I have done a lot of Internet searching but I struggle to find any reference to the concept of reciprocal rights in the common travel area that predates the Brexit referendum. It appears to be a bit of a myth. It conflates two things that are actually different. The common travel area is essentially a free movement zone. It gives people the ability to move between the two islands and between North and South without passport controls. That is reflected in UK law under the UK Immigration Act 1971, which states that local journeys within the common travel area shall not be subject to immigration control. There are to be no passport controls on such journeys. That is how it is reflected in UK law. It is a problem that at times we see checks conducted by UK authorities both on the Irish Sea and on the land Border. These checks are carried out with no legal basis. Quite often these authorities will single out people they believe do not look Irish or British on the basis of racial profiling and seek documents. They will then say that these checks are voluntary. There are also problems with the legislation in this jurisdiction, which are not restricted to British and Irish citizens. Gardaí are allowed to ask for immigration documents, but only from non-EU nationals. How are they to tell the difference? There is a problem there in respect of significant racial profiling.

The common travel area is really a free movement zone and should not be conflated with the reciprocal recognition of citizenship rights between British and Irish citizens, which gives people equivalence of rights. That has a much more complicated history. It does not have anything to do with the common travel area as such because it continued to exist between the years of 1939 and 1952 when the common travel area was suspended in its entirety. British and Irish citizens enjoy the reciprocation of rights across the two jurisdictions but this predates most of the modern and some of the more draconian immigration controls, controls which interfere in every aspect of life. That was not the case in those years. During the years from 1922 to 1948, British law regarded citizens of the Irish Free State as British subjects which resulted in an equivalence of rights. After Ireland formally legislated to become a republic, Irish citizens had a rather curious status under British law whereby they were not British but not foreign. I do not make this up; that is what it said. That was not completely unique because that was also the status given to Commonwealth citizens, who did not face particular restrictions. That status continued after 1962 when restrictions were placed on Commonwealth citizens but most of this was dispensed with under the contemporary UK immigration regime which came into force in 1973. That was also a key date because what replaced the ongoing arrangements was both states joining what would become the EU. This granted British and Irish citizens, and citizens of other EU citizens, reciprocal rights. We have therefore had reciprocal rights for the best part of 50 years, not based on the mythical reciprocal rights of the common travel area, but on joint EU membership.

The two Governments are now putting together something really new, the reciprocal rights of the common travel area. The problem is that they have largely been conducting this exercise on what the scope of these rights should be and to whom and what they should apply behind closed doors. There is no consultation document setting out what the scope of these rights should be. We have battered down doors with both Governments and have managed to get meetings and to have discussions, but that is no substitute for public or parliamentary consultation on what this should look like and what form it should take. We only have a treaty on things such as social security and pensions. There may well be big gaps in that; I cannot see housing and a number of other things mentioned. The only thing that seems to be supplementing that is this memorandum of understanding, which will not be legally binding. It may have some legal routes into it on the ground of reasonable expectation and such things but where I can see this clashing is where there are significant gaps. We have anti-discrimination law and if one side of the community, Irish citizens, is not afforded rights equal to those of the other side of the community, that will collide with immigration law.

It must be remembered that the common travel area, CTA, is never going to replace rights outside the borders of the CTA. That is one of the reasons it is far more limited than the rights that would be available if paragraph 52 of the joint report, regarding continued access and exercise of EU rights, were implemented on the basis that we are in the extraordinary circumstance whereby Northern Ireland will be a jurisdiction outside the EU in which every single person born, now and after Brexit, will either be or be entitled to be an EU citizen. To allow EU citizens to be stripped of all rights is not a good place to be.

With regard to our asks, a number of things could be put to the Irish Government. The first one is fairly straightforward. The Irish Government needs to hold its line about the implementation of the citizenship provisions under the Good Friday Agreement. There have been mixed messages in some correspondence. We do not want to see an artificial separation of issues of citizenship and identity. That cannot be done. The Government should hold the line that the UK should amend the British Nationality Act 1981 to bring it into line with the Good Friday Agreement. We would like to see the Irish Government moving to implement those aspects of EU rights that are within its gift, one of which is voting. There is no more politically sensitive issue in the North than voting. The Government should ensure that is taken forward. The common travel area should be underpinned by an enforceable treaty. We really need to open up the discussion as to its scope rather than it being held behind closed doors. It also needs to be underpinned by the bill of rights because that is the only way in which it will be properly legally enforceable in domestic law.

The final ask is big but fairly straightforward. Clearly there are going to be further negotiations. The withdrawal agreement is not going to be reopened but it is possible that an addendum could be added to it. It is also possible that changes could be made to the political declaration on future arrangements. In his amendment Professor Harvey sets out something we would really like to see, which is the reinsertion of the existing commitments to implement paragraph 52 of the joint report. With regard to the correlation between that and the other provisions of the Good Friday Agreement referenced in the withdrawal agreement, it is important to ensure there is a mechanism for levering up in order for everyone within Northern Ireland to retain that type of provision.