Jim O’Callaghan seems to have forgotten something.
The Minister for Justice says Ireland will shadow the planned crackdown on immigration by Shabana Mahmood, the British home secretary. “I am committed to ensuring that Ireland is not viewed more favourably than the UK by those seeking to claim asylum,” O’Callaghan said last month.
Mahmood’s proposals also affect refugees and immigrants. Other comments by O’Callaghan indicate he aims to shadow these as well. The Minister is almost certainly correct that British-Irish co-ordination is essential to prevent significant flows of people across the Irish Sea. London recognises this concern, as it reportedly briefed the Irish Government in advance.
However, a large question mark hangs over whether the crackdown can apply in Northern Ireland due to the Windsor Framework, creating doubt and potential incentives that may send people north, south, east or west.
Mahmood’s plans depend on making housing and other benefits discretionary. This requires repealing a UK law enacting a 2003 EU directive on the minimum support for asylum seekers.
Repeal can happen in Britain thanks to Brexit. It might be possible in Northern Ireland as the directive is not on the list of rights and anti-discrimination laws protected by the Windsor Framework. But the list is not considered exhaustive. Northern Ireland’s human rights and equality commissions have advised the directive is covered by the framework. The British government may disagree, but it gave both organisations an official role in rendering such advice, so the courts would take their opinion seriously.
The courts could also decide some or all of Mahmood’s plan breaches the European Convention on Human Rights. The High Court in Belfast made such a ruling last year over the previous British government’s Rwanda deportation scheme. That was due to be appealed before the government fell and the scheme was scrapped. There are good reasons to believe an appeal might have succeeded but legal action takes time, during which Northern Ireland can be left in limbo.
Any unique situation within the Common Travel Area may cause movement of people. The Government claims it only took a few months of uncertainty over the Rwanda scheme – which never came into effect – to push people into the Republic.
[ The Irish Times view on immigration: key issues remain to be addressedOpens in new window ]
Two broad scenarios present themselves as Mahmood attempts to implement her plan and O’Callaghan attempts to follow.
Ireland could fail or only partly succeed because it has put the latest version of the EU directive in domestic law and cannot repeal it. Denmark, which inspired many of Mahmood’s policies, is the only EU member with an opt-out.
This scenario threatens the outcome the Government feared from the Rwanda scheme, except on a larger scale. It would displace people from Britain to both parts of Ireland, who might then move north or south depending on any advantages, real or perceived.
Alternatively, the Republic could succeed in following Britain while Northern Ireland’s immigration system remains unaltered. The Windsor Framework is so badly designed the whole of Europe could tighten its immigration laws and Northern Ireland might still be blocked from doing likewise.
This scenario would make Northern Ireland a destination in itself, as it already must be to some extent. Around 3,000 people are claiming asylum there at any given time, despite no obvious advantage to doing so; the region is treated as a self-contained territory within the UK asylum system, so applicants remain there while their claim is assessed.
Northern Ireland’s attraction would multiply enormously if it became the best place in the UK to apply for asylum and acquire refugee status that would presumably still permit relocation to Britain.
While that might appear to be less of an issue for the Republic, it would be drawn into an inevitable crisis north of the Border. Many people would enter the north from the south, leading to demands to reduce numbers. A large proportion may return south as they encounter accommodation shortages and other problems, leading to pressure for more controls on the Border or across the Irish Sea.
[ How the hardening of the UK’s immigration laws will affect IrelandOpens in new window ]
In practice, the Republic will struggle to protect itself from changes in Britain unless both change together and Northern Ireland changes with them. Mahmood may also have concerns about Northern Ireland becoming a back door into her new regime.
Both governments are surprisingly powerless to prevent these scenarios. The Windsor Framework leaves it to the courts in Northern Ireland and, ultimately, the UK supreme court to resolve rights-based legal challenges – and challenges to Mahmood’s plans are guaranteed. It is unclear how lobbying Brussels could make much difference – all the avenues for that are intended for trade disputes.
An arduous political effort will be required to try to bypass the mess of Northern Ireland’s special Brexit arrangements. Perhaps at some point O’Callaghan will be tempted, like most unionists, to exclaim this is really all Fine Gael’s fault.
