Irish citizens living in the UK should register as EU citizens under the UK’s proposed settled status scheme to protect their existing rights in this country, according to the author of a report presented to a Good Friday Agreement Human Rights committee.
Law academics say Irish citizens here are being misled about their status under the Common Travel Area.
The report, published last week and one of whose authors spoke to the Irish World, warns that the Common Travel Area – a longstanding policy arrangement which ensures reciprocal rights between UK citizens living in Ireland and vice versa – has been overstated as means of assuring frictionless movement between the two countries after Brexit.
The findings, presented last week to the joint human rights committee set up under the 1998 Belfast Agreement, recommends that the Irish and UK governments should agree “a new intergovernmental Common Travel Area treaty”.
This would mean formalising common immigration rules, travel and residency rights and other social, policing and security arrangements.
As yet there has been no official guidance from the Irish government about the need to register for the settled status scheme – which aims to protect the residency status of EU citizens in the UK after Brexit, said Prof Aoife O’Donoghue, an author of the recent report. She said it should be a matter of Irish public policy to do so.
“There should be clear guidance from the Irish government that Irish citizens should register because there will be certain rights that will be frozen in time that you can refer back to,” Prof O’Donoghue said, adding that there have been vast amounts of political complacency, which “leads the public into a false sense of security.”
“We all saw what happened with the Windrush generation; we know how quickly things can happen and things can change with your status,” Prof O’Donoghue warned.
Dagmar Shiek, a professor in EU law at Queens University Belfast, although not one of the authors of the report, said she believes the report’s recommendations are entirely accurate.
“For [Irish World readers], the normal recommendation from the United Kingdom is that Irish citizens don’t need to use the new settled status because of the Common Travel Area,” Prof Shiek said. “I think what is really important is to say that this is incorrect.”
The official settled status document states: “Irish citizens enjoy a right of residence in the UK that is not reliant on the UK’s membership of the EU. They will not be required to apply for status under the scheme (but may do so if they wish).”
British Prime Minister Theresa May has also promised – on various occasions in public statements – that Brexit will end the freedom of movement which EU membership brought.
Prof Shiek, who has presented evidence to Westminster parliamentary committees about the Common Travel Area before, also noted that any agreement would also need to be modernised so that it is harmonised with EU law.
Otherwise, she said, many social rights including unemployment benefits, disability benefits, carer’s benefits – which not covered under the CTA – may be lost entirely. Prof Shiek also noted that a non-EU citizen who is married to an Irish citizen is not fully protected by the CTA.
“It would be really advisable for these groups to seek new settled status for EU citizens and to not rely on the CTA,” she said.
Prof Shiek added: “If the UK implements the settled status for EU citizens, Irish people should have less concern over status. There is, however, room for human error and we have seen a lot of human error in the Home Office and that could affect the settled status.”
‘Built on sand’
Even if the withdrawal agreement secures the status of EU citizens, Prof Shiek said, it is vital that the CTA is given secure legal footing, adding that the current agreement is “built on sand”.
“I think the UK should go even further if they wish to protect Irish citizens – they should say, for this special agreement, we want an independent judicial body such as the European Court of Justice, which enforces this area,” she added.
Settled status, as per the Home Office’s official guidelines, means one can stay in the UK for as long as they like and can apply for British citizenship if requirements are satisfied.
Those in the country for less than five years will be granted “pre-settled status” which can be swapped for a full “settled status” ID after five years.
The scheme, according to the Home Office, will fully operational by 30 March 2019 with a deadline of summer 2021.
A hard Brexit – in which the UK crashed out of the EU bloc with no deal – would further complicate matters and increase the urgency of the need for a treaty, said Prof O’Donoghue.
She added, as in the report, that a basic immigration treaty could be drafted very quickly because it is “continuing existing practice” and would not confer any additional rights to people to which they are not already entitled.
“Given a lot of nationalist attitudes towards immigrants, foreigners and non-nationals voting, I wouldn’t be surprised if, politically, it became difficult for [the UK government].
“A lot of people are not aware that Irish people can come over to the UK and vote and everything,” she said.
The uncertainty of Brexit causes particular anxieties for the more vulnerable members of the Irish community here, Prof O’Donoghue added.
“Members of the travelling community, the unemployed and people with criminal convictions will be in line, as soon as the political process is over, to be removed very quickly.
“It’s so important that people know that in five years’ time they might be asked to register or get UK citizenship or else face going home. It’s vital that certainty is provided.”
Tánaiste and Minister for Foreign Affairs Simon Coveney told the Dáil earlier this year that a number of Government departments were working on policy and legal decisions to ensure the CTA between Ireland and Britain continues after Brexit.
He stressed that it was a bilateral issue and that the UK and Ireland “may continue to make arrangements between themselves” relating to the movement of persons between their jurisdictions.
Prof Shiek acknowledged that the Irish government departments were internally working on such proposals but stated that neither the UK or Irish government had looked at how they might enforce the CTA in future.
Irish government sources have said that they are satisfied with the progress being made in those detailed exchanges at bilateral level.
Public policy announcements such as those called for by Prof O’Donoghue might be expected in the first quarter of next year as the 29 March Brexit deadline comes closer.