Mr. Daniel Holder:

I thank the committee for its invitation. The Committee on the Administration of Justice is an independent human rights organisation with cross-community membership, Northern Ireland and beyond. We were the NGO partner in the BrexitLawNI project with the law schools of both Queen's University Belfast and Ulster University that looked at the constitutional legal and human rights and equality aspects of Brexit. We have continued with a range of interventions to that end since. We very much welcome this opportunity to address the Seanad select committee on the subject of citizens' rights in Northern Ireland post Brexit. I will focus this opening statement on the following three themes. The first is the retention of EU rights by EU citizens, their family members and frontier workers under Part 2 of the withdrawal agreement and the related post-Brexit migration contexts.

The second is commitments on the retention of EU rights by Irish citizens resident in the North and the third is the UK commitment in the protocol to the trade and co-operation agreement, TCA, to non-diminution in certain Good Friday Agreement rights as a result of Brexit.

On the retention of EU rights under Part Two of the withdrawal agreement, the committee will be aware EU citizens and family members who were resident or frontier working in the North prior to the end of the Brexit transition period on 31 December 2020, with some qualification, can essentially retain EU free movement rights to reside, work etc. under the citizens' rights section of the withdrawal agreement. The main vehicle for EU citizens who were resident in the North to do so was to obtain settled status under the UK Home Office's EU settlement scheme, which opened in March 2019. Of concern is that the equivalent scheme for frontier workers was not opened until December 2020 and has barely been publicised since. A pressing concern for us is that there is currently an arbitrary cut-off point for applications under the settlement scheme at the end of June, with very limited exceptions. There is also a similar requirement to have obtained a permit to continue frontier working on 1 July. This is particularly concerning because, after the Brexit transition, the UK’s notorious hostile environment immigration measures have been extended to EU 26 citizens. I note that neither of those two schemes actually provides for a physical document to prove status of retention of EU rights.

It is also the case that the Home Office actively discouraged Irish citizens from retaining EU rights under the settled status scheme and legislated to block applications from Northern Ireland-born Irish citizens on the basis of the Home Office position that all such persons are to be treated as British, which is in conflict with the birthright provisions of the Good Friday Agreement. In general, the Home Office position of discouraging any Irish citizen from retaining EU rights under the withdrawal agreement was grounded in such persons being covered by the post-Brexit concept of reciprocal rights in the common travel area, CTA. However, it is the case that such provisions remain more limited and less enforceable than retained EU rights.

The fulfilment of the Good Friday Agreement provisions for equality of treatment for British and Irish citizens in the North was also, it has to be said, underpinned in practice by EU free movement law. Due to the litigation by Emma DeSouza, the Home Office did open a specific route for persons from Northern Ireland, whether Irish or British citizens or both, to retain EU rights to family reunion specifically via the settled status scheme. However, this will also largely end in June.

A further issue for consideration is the new context for passport and border controls within the CTA. Until Brexit, both states had sought to converge their immigration systems, which is no longer possible. While the UK has given a political commitment to no passport checks on the land border, it has continued to conduct both irregular passport checks on Irish Sea routes and in-country passport checks, at times on the basis of quite blatant racial discrimination. Our concerns about Northern Ireland becoming one big border are already transpiring, with in-country immigration checks by 2019 already proportionately four times higher in Belfast than London. Similar concerns also remain about checks by immigration gardaí on the land border going South.

These concerns will be exacerbated, it seems, by the UK’s future immigration plans, which includes the European travel area, ETA, proposals whereby the UK will introduce an electronic pre-clearance requirement, similar to the US electronic system for travel authorisation, ESTA, system, that would be a requirement for travelling into the UK, including the North. This will not apply to Irish or British citizens but will apply to all other EU and non-EU non-visa nationals who can currently freely cross the land border within the island of Ireland as part of their daily lives. To date, this plan to require electronic pretravel clearance, the ETA system, has taken no account of local journeys within the common travel area and in practice will create a hardened land border. There was further information on that published today that again contains no reference to the context of the common travel area.

The second area is that of commitments on the retention of EU rights by Irish citizens resident in the North. While of course Irish citizens remain EU citizens and retain basic EU rights to free movement within the EU, it was clear other rights and benefits linked to matters such as residency in a member state would be discontinued after Brexit unless specific arrangements were made. In December 2017, paragraph 52 of the EU-UK joint report contained commitments to continued access to, and exercise of, EU rights, opportunities and benefits for Irish citizens where they reside in Northern Ireland. The specific arrangements for this were to be examined. However, this commitment was ultimately not taken forward in the withdrawal agreement. There was limited reference to it in the preamble of the protocol. While at the time, on the EU side, such issues were considered to be matters for the future relationship arrangements, they are ultimately not reflected in the TCA either.

Some welcome progress has been made on specific matters. In particular, the Irish Government made contingency arrangements to seek a de facto continuation of the European health insurance card arrangements for Northern Ireland, which was subsequently progressed instead through UK bilateral arrangements. Other gaps remain, most prominently in family reunification and political rights, and other specific more nuanced gaps are likely to become apparent over time. There is also a risk that the model of bilateral reciprocal rights under the CTA could lead to regression in some areas.

The final area is the UK commitment to non-diminution in certain Good Friday Agreement, GFA, rights as a result of Brexit. The original commitment was made under the Ireland-Northern Ireland section of the UK-EU joint report, which alluded to the Good Friday Agreement and stated the UK would ensure there was no diminution in rights caused by Brexit. It was ultimately taken forward in the form of a commitment in Article 2 of the protocol with an enforcement role for the equality and human rights commissions. It should be noted that this commitment itself became diminished before it was enacted. The Northern Ireland Office did not consult on its specific scope, despite having equality duty obligations flowing from the Good Friday Agreement to do so, and ultimately the commitment covers only two sections of the Good Friday Agreement, so it does not include things like birthright and equality of treatment provisions and rigorous impartiality duties. It does, however, cover other areas, including duties to incorporate the European Convention on Human Rights, ECHR, and a range of other GFA-affirmed rights, including equality of opportunity in all social and economic activity, democratic rights, and rights to choose one's residence.

At the start of January 2021, when the new powers of the commissions commenced, we issued a complaint to them over a number of areas of provision whereby we considered the UK was already in default of the non-diminution commitment. These areas related to civil service nationality rules; democratic rights for both EU 26 and Irish citizens in the North; family reunification and the cut-off date for the EU settlement scheme; loss of EU rights and benefits for Irish citizens specifically in the North; and frontier workers. It should be noted also that Article 14 of the protocol sets out that the specialised committee on the protocol is mandated to consider any matter of relevance to the non-diminution commitment brought to its attention by the equality and human rights commissions, although to date we are unaware if the specialised committee has dealt with any issues relating to compliance with this commitment.

We have also raised concerns with the UK in general that while the commitment to non-diminution of certain Good Friday Agreement rights as a result of Brexit is very welcome, it has be said a mockery is made of it if the UK continues to diminish the same Good Friday Agreement rights for other reasons, which has happened with some recent legislation.

I am happy to elaborate on any of these areas in response to the committee's questions.