Mr. Daniel Holder:

One of the issues is the gap created by the removal of EU free movement law as a result of Brexit. There have been attempts by both states to plug that through what is termed, and what is a post-Brexit invention, the reciprocal rights of the common travel area. That was more to deal with the situation of Irish citizens in Britain and British citizens in the EU within the State, rather than the equality of treatment provisions in the Good Friday Agreement, which are much more extensive in ensuring equality between Irish and British citizens and which has been underpinned by EU law. One of the adverse effects of the exercise of codifying things and the common travel area agreement rights is that because of the way it has been done it is largely restricted to British and Irish citizens, which means others who are permanent residents in the Border counties do not fit into those arrangements. I cannot recall off the top of my head whether it does, but if the memorandum of understanding, MOU, provides for continued arrangements for cross-Border schooling, there are hundreds of children who cross the Border yet there is an attempt within the MOU to restrict that to British and Irish citizens. The question is then, what about everyone else? What about Polish kids who live in Donegal and attend school in Derry, etc? How is that underpinned?

Even the freedom of movement issues we have discussed in terms of crossing the Border, is it really going to be the case that we will have a much more hardened Border? One without Border checks but with the real threat of arrest, detention and, indeed, deportation, for EU citizens or other non-visa nationals who live in Donegal, for example, and are used to crossing the Border but who have drawn no free movement rights in relation to continuing to do that. One of the solutions to that could be to look at the common travel area arrangements and ensure the freedom of movement within the island of Ireland. Local journeys, which are quite different to making longer journeys, encompass more than just British and Irish citizens. It could encompass Border communities, regardless of nationality, which is something the UK would have to agree to so that hostile environment measures would not apply.

As a broader point, when one considers people who have retained EU rights under the withdrawal agreement on the one hand, others who derive rights - they are not rights, in a sense, in that they are not enforceable - from the common travel area on the other, and all the various other machinations, things have become incredibly complicated. It is a phenomenon we have referred to as being “divided by the rules” in terms of the amount of different entitlements and the difference between them that various groups will have in the post-Brexit context. We know the Windrush scandal occurred in Britain when the emigration system was actually very simple. It was just divided between EU and non-EU citizens. The complexity of this is getting much worse. One has different sets of rights that are aligned to retain EU rights but with no physical proof. There are some entitlements that are not really codified in relation to the common travel area but are restricted to British and Irish citizens. A notable example, which is increasingly spoken about, is that there is no route to naturalise as an Irish citizen through residency in the North. That is something which is a big issue for many permanent resident migrants in the North who may want to available of Irish citizenship. Currently, there is no path to do this except through marriage to an Irish citizen.

In terms of other specific issues, one of the other diminutions we flagged to the Commission is that it appears the UK Government is intent on stripping the most fundamental democratic rights from EU-26 citizens who are resident in the North. That includes the right to vote in local council elections and Northern Ireland Assembly elections, the next of which are scheduled for May next year. EU citizens have always had that right under EU law. It is not included in the withdrawal agreement and the UK Government has indicated its intent to strip EU citizens of that right in England and in Northern Ireland, where electoral franchise is a Westminster matter. That is not the case in Scotland and Wales, whose Governments have control over the franchise and have taken the decision that EU citizens will continue to have that vote. There is an issue of the diminution of basic political rights that were guaranteed under the Good Friday Agreement. That impacts more conversely. It will not impact as a matter of law on Irish citizens who will retain the provision, not an enforceable right, to vote in those elections but on those who have lost rights to vote, unlike other EU citizens who can vote in extraterritorial constituency in European Parliament elections. A query has arisen whether Irish citizens who have always had rights to vote in UK referendums could loss those rights as a result of the common travel area reciprocal arrangements. That is something which has been brought forward.