General
Following the referendum result on 24 June 2016 and the notification of the United Kingdom to leave the European Union on 29 March 2017, there is significant concern regarding the rights of EU citizens resident in the UK, as well as the rights of UK citizens living in other EU Member States.
According to the negotiating directives issued by the General Affairs Council of the EU, the negotiations should be focused on: “safeguarding the status and rights of the EU27 citizens and their families in the United Kingdom and of the citizens of the United Kingdom and their families in the EU27 Member States is the first priority for the negotiations because of the number of people directly affected and of the seriousness of the consequences of the withdrawal for them. The Agreement should provide the necessary effective, enforceable, non-discriminatory and comprehensive guarantees for those citizens’ rights, including the right to acquire permanent residence after a continuous period of five years of legal residence and the rights attached to it”.
This is reflective of the key concern of Member States with regard to the UK decision to leave, i.e. the rights of their citizens living in the UK post-Brexit. The negotiating directives have already indicated that the rights of EU citizens, along with the financial obligations of the UK in light of Brexit, are to be negotiated as the first priority.
The European Parliament has highlighted the rights of EU citizens, including the need for reciprocity and non-discrimination. Unique provisions pertaining to Northern Ireland are also a consideration and have already been discussed in Chapter 4.
EU Law on Citizenship
The supremacy of EU Law, coupled with the obligation in the Constitution to enact provisions which are necessitated by EU membership, mean that the rights of citizens are applied to citizens of all EU Member States, but are qualified as described above. There are similar, though differently defined rights to enter and reside in other EU Member States. The basis of these rights is set out as follows:
Treaty on the Functioning of the European Union
– Nationals of EU Member States hold EU citizenship as well as their national citizenship.
– Citizens are conferred with “the right to move and reside freely within the territory of the Member States” (Article 21 TFEU).
As an EU Member State, Ireland is obliged to adhere to the provisions of the EU Treaties. In addition to the EU Treaties. Directive 2004/38, which is more widely known as the Citizens’ Rights Directive, was enacted in 2004. This sets out the common rules for the movement of EU citizens between EU Member States. Under the Directive, EU citizens are defined as “any person having the nationality of a Member State”.
Directive 2004/38 (The Citizens’ Rights Directive)
EU citizens and the members of their families, defined under Article 2(2) of the Directive, are conferred with the right to:
– reside in any other Member State for up to three months subject only to holding valid identification such as a passport (Article 6);
– reside for longer periods if they are workers, self-employed or otherwise capable of supporting themselves and their families without relying on the host state’s social assistance systems, or are registered students with appropriate financial resources and health insurance (Article 7);
– automatically acquire permanent residence in a host state after residing in it continuously for five years (Article 16).
Irish Law on Citizenship
The basis of the rules governing Irish citizenship lies in Articles 2 and 9 of Bunreacht na hÉireann. While the right to Irish citizenship has been further elaborated on and clarified by the Irish Naturalisation and Citizenship Acts 1956 to 2004, Irish citizenship can be described as a diluted form of jus soli, i.e. citizenship by birthright, allowing citizenship to those born of at least one Irish or British parent, or a parent who is legally resident in the State.
Irish citizenship may also be acquired through a policy of naturalisation. There are circumstances where the Minister for Justice and Equality may allow a person to be naturalised if they have demonstrated Irish descent or Irish associations, have been resident abroad in the Irish public service or have been granted refugee status or declared to be stateless.
Northern Ireland
Of direct concern to Ireland on the issue of citizenship is how it will pertain to Northern Ireland. The rights of Irish citizens in the rest of the UK would be broadly the same as citizens from the other Member States, notwithstanding any additional rights that arise through bilateral arrangements with the UK through the CTA (discussed in Chapter 3), as well as unique provisions on Citizenship pertaining to Northern Ireland (discussed in Chapter 4).
However, issues concerning human rights protections arise from the withdrawal of the UK from the Charter of Fundamental Rights as part of the Brexit process, along with the potential of any changes to its membership and application of the European Convention on Human Rights (ECHR) in the future.
Potential Solutions
– The equivalence of human rights protections in both Ireland and Northern Ireland, as provided for in the Good Friday Agreement, should be protected.
– An all-island approach to human rights should be explored, with possible solutions including a reimagined role for the Joint Committee on Human Rights and a Charter of Rights for the island of Ireland. Additionally, the Bill of Rights project in Northern Ireland should also be revisited.
– The Government should support all arrangements which allow for the free movement of EU citizens, either from Ireland or other EU27 states.
– In the event the right to permanent residence does not form part of the final withdrawal agreement for EU citizens, Ireland could adopt an approach of allowing residence in Northern Ireland to be reckonable for the purposes of naturalisation as an Irish citizen.
– In the context of social rights, the EU should promote the social pillar as a key facet of its work, and a Social Semester should be explored.
Human Rights and Equality
Presently, the UK, like all other EU Member States, is subject to the Charter of Fundamental Rights of the EU. Through the Human Rights Act 1998, it is also subject to the ECHR. During hearings, the Committee heard of a possible long-term objective in the UK to replace the Human Rights Act 1998 with a UK Bill of Rights. A key concern is that this Bill of Rights may not be as far-reaching, with the protections it offers being somewhat diluted.
In the context of Northern Ireland, the Good Friday Agreement provides for the equivalence of human rights protections in Ireland as in Northern Ireland, which the Committee heard was aimed at requiring Ireland to incorporate the ECHR into Irish law. As Ireland is an EU Member State, it will continue to be bound by the Charter of Fundamental Rights, which is interpreted by the European Court of Justice, as well as the ECHR, to which Ireland and the EU are both parties.
The Committee heard that Ireland should argue for the retention of current human rights protections, which would mean that Northern Ireland continues to be bound by the Charter of Fundamental Rights and the jurisdiction of the European Court of Justice and that the ECHR, through the Human Rights Act also continues to apply. The Committee notes that the ECHR, as opposed to the Charter of Fundamental Rights is expressly provided for in the Good Friday Agreement.
The Committee also heard of the possibility of all-island approach. This could take a number of forms, but the approach suggested was a reimagined role for the Joint Committee on Human Rights, which could have oversight on human rights on the island of Ireland.74 This could extend as far as the Committee having an independent chair and being tasked with providing an annual statement on human rights and equality.
Another approach suggested is for a separate Charter of Rights for the island of Ireland, which the Committee heard was previously considered. This could be linked to the work of the Fundamental Rights Agency at EU level, which the Committee heard would ensure that the people of Northern Ireland are not left out of the conversation of where the EU is going.
Permanent Residence and Naturalisation
While the provisions of the Good Friday Agreement allow persons born to a British or Irish parent, or a parent permanently resident in Northern Ireland, to become Irish citizens, the Committee heard that residence in Northern Ireland was not reckonable for persons who wished to become naturalised citizens of Ireland, and that this led to situations where there are children who are entitled to become Irish, and thus EU citizens, but their parent or parents are not. As noted above, the Citizens’ Rights Directive provides that EU nationals have a right of residence after five years, and maintaining the right to permanent residence is stated as an objective in the negotiating directives. Depending on the final agreement, this right could be affected by the UK’s withdrawal.
It was suggested to the Committee that allowing periods of residence in Northern Ireland to be reckonable for the purposes of naturalisation in Ireland would allow those in Northern Ireland who are anxious about their status post-Brexit the option of applying for Irish citizenship.
The Committee heard that this could be achieved by changing Irish legislation and the Committee also observes that this may be a possible solution for EU citizens in Northern Ireland should the positions be affected post-Brexit.
Social Rights
As part of his 2016 State of the Union address, the President of the European Commission, Mr JeanClaude Juncker, proposed a Pillar of Social Rights. The subsequent documents from the European Commission set out a number of key principles and rights to support fair and well-functioning labour markets and welfare systems.
The Committee heard from the General Secretary of the Irish Congress of Trade Unions, Ms Patricia King, that its position on social rights in the EU context is clear. It is an EU that is “vital to the living standards, wages, public services and labour rights of workers and their families across the island”.
However, the need for the EU to change was also highlighted, as was the growing dissatisfaction with its policy direction in recent years. While the Future of the EU is discussed further in Chapter 7, the Committee believes the issue of social rights, while linked to the issue of citizens’ rights, is important for continuing the benefits of EU membership and that Ireland should focus on the Pillar of Social Rights as it develops.
The Committee heard that despite directives in areas such as equality that enhanced the rights of citizens, during the last 10 years new legislation was more focused on the impact on citizens during the recent financial crisis. This was particularly highlighted in the context of citizens of debtor countries within the EU which endured periods of austerity in order to solve economic and financial problems and the Committee heard that now, as a result, the European Union operating as an economic entity without any reference to citizens is no longer an option.
Related to Brexit, two key issues were identified:
1) Increased costs from tariffs post-Brexit could result in pressure from companies to reduce terms and conditions of employment or face closure.
2) Companies may relocate entirely to the UK in order to avoid tariffs and customs. A response suggested to the Committee involves a more robust civil dialogue between the Irish and
UK Governments and the Northern Irish Executive, as well as at civil society level. The Committee heard that this could be enabled by adapting existing mechanisms established under the Good Friday Agreement.
During its engagement on social rights, the Committee heard of the differences that already exist between the UK and Ireland in relation to employment legislation:
“ We have spoken with the TUC in the UK, including its branches in Scotland and Wales. They hear and feel our pain but they are already suffering. They would like to have some of the employment rights legislation we have, such as that relating to joint labour committees, even if all sectors do not involve themselves in it. They would like to have sectoral employment orders. We have far worse collective bargaining legislation here. Trade unions have no rights here; there is a right to join a union but it ends there.”
A possible objective for the EU27 is a Social Semester, which would be similar to the European Semester.This process would involve the annual assessment of Member States’ progress initially by the European Commission, and then considered by the Council of the European Union, with the aim of suggesting recommendations for improvement. It was suggested that the EU’s social principles should be enunciated as much as economic principles, the EU project promoted accordingly. The Committee believes such a model may serve to enhance the enthusiasm in Member States for the EU project.
In addition, the Committee heard that the EU has recommended that Ireland enhances social infrastructure, including social housing and quality childcare.81 A possible solution, particularly in the context of any negative economic consequences from Brexit, is for job activation programmes to act as a real stepping stone. This should include further training and educational supports if required.
This Article draws on Seanad Special Select Committee Withdrawal of the United Kingdom from the European Union Brexit: Implications and Potential Solutions June 2017. Irish public sector information is reproduced pursuant to PSI Licence; Conditions of Re-Use of Public Sector Information. The Legal Materials contain Irish Public Sector Information licensed under the Irish Licence which is at http://circulars.gov.ie/pdf/circular/per/2016/12.pdf.