Law professors and legal experts have welcomed the provisional Common Travel Area agreement signed last week as a “positive step forward” but warned that more work has to be done to protect citizens’ rights in Northern Ireland.
Tánaiste Simon Coveney and cabinet office minister David Lidington, Theresa May’s de facto deputy, signed a Memorandum of Association relating to the agreement in London ahead of a meeting of the British-Irish Intergovernmental Council last week.
The Common Travel Area is the longstanding policy arrangement which ensures reciprocal rights between Irish citizens living in the UK and vice versa. It includes equal rights to vote, work, unrestricted travel, healthcare and education.
The memorandum, experts say, shows signs both governments are willing to shore up arrangements that they have previously described as “legally flimsy” and “written in sand”.
The two governments have agreed to maintain existing arrangements on social insurance, child benefit and pensions and they are working to ensure that both sets of citizens will continue to have equal access to public health and education services.
Since 2017, following the Brexit vote, British and Irish officials began working on ways of ensuring the Common Travel Area continued.
This comes as Anglo-Irish relations remain under pressure after years of simmering tensions over Brexit and the backstop mechanism – the insurance policy to prevent a hard border in Ireland.
Last year, legal experts told the Irish World that Irish citizens living in the UK should consider registering as EU citizens under the UK’s proposed settled status scheme to protect their existing rights.
They warned that the century-old agreement has been overstated as a means of assuring frictionless movement between the two countries after Brexit.
The findings of a report presented to the joint human rights committee set up under the 1998 Belfast Agreement recommended that the Irish and UK governments should agree “a new intergovernmental Common Travel Area treaty”.
Aoife O’Donoghue, a professor in law at Durham University who has been researching the Common Travel Area, welcomed the memorandum of understanding as a way of putting “Irish and UK citizens on a much firmer footing”.
Although an international treaty would be “preferred”, Prof O’Donoghue said the new rules can be used by courts to interpret domestic legislation, including provisions in Theresa May’s withdrawal agreement.
“There still remains a whole host of issues, especially for those living in Northern Ireland, but this is a positive step forward,” she said.
While the memo hints at an “intention to create an international agreement as well as national legislation”, oversight has simply been left to senior officials, according to Dagmar Schiek, a professor in EU law at Queen’s University Belfast.
“The [memorandum of understanding] thus confirms that both governments consider the [Good Friday Agreement] as merely intergovernmental – meaning that no rights emerge from it – and that this characteristic will also be shared by any formalised [Common Travel Area].”
Prof Schiek, who has presented evidence to Westminster committees about the Common Travel Area, also said there are a number of other question that not addressing.
These include how Ireland intends on ensuring EU citizens enjoy the same rights as UK citizens in Ireland and how the EU will react to the fact that Irish citizens are now granted stronger rights in Northern Ireland and the rest of the UK than citizens from other EU countries.
She also raised the issue of Irish citizens bringing their non-British and non-Irish spouses to Northern Ireland or other parts of the UK – as in the case of citizenship rights campaigner Emma de Souza, who continues to fight the Home Office over her right to be considered exclusively as an Irish citizen at birth in her application for her husband, Jake, to reside in the UK.
“Finally, how will those rights be enforced, and how will British courts be overseen in this?” Prof Schiek said. She has previously recommended that an independent judicial body, such as the European Court of Justice, enforces this area.
By Colin Gannon