The issue of Brexit and EU rights for Irish citizens in Northern Ireland has been overshadowed by concerns about the Border. But it is looking more and more like a thornier long-term problem.
The benefits of EU citizenship will continue to be sought in Northern Ireland post-Brexit via Irish citizenship. Issuing Irish passports to people north of the Border, yet treating them as part of the general diaspora, will no longer suffice.
Northern nationalists and possibly unionists are going to have to be promoted to a new category of Irish citizen, somewhere between resident and emigrant.
This week, Belfast-based lobby group the Committee for the Administration of Justice (CAJ) was reported to have complained to the EU Ombudsman that guarantees over the EU rights of Irish citizens in Northern Ireland that were promised in last December’s draft of the Withdrawal Agreement between the UK and EU have since been watered down.
CAJ has made some over-the-top claims since the Brexit referendum, but this one is spot-on.
Last December’s draft said: “The people of Northern Ireland who are Irish citizens will continue to enjoy rights as EU citizens, including where they reside in Northern Ireland.”
That final clause was key: residence in Northern Ireland should not affect the exercise of rights.
Committed
In the same document, the UK committed itself to ensuring that "no diminution of rights is caused by its departure from the European Union, including in the area of protection against forms of discrimination enshrined in EU law."
Yet when the next and still current draft of the Withdrawal Agreement was published in March, most of this language had vanished.
A more ambiguous reference to EU rights for Irish citizens in Northern Ireland appeared in the preamble – but preambles to treaties are not binding.
In the “legally operable” section, the UK commits itself only to ensuring no diminution of rights as set out in the Belfast Agreement.
This is clearly an attempt at some fancy footwork.
There will be hell to pay if Brexit relegates northern nationalists to second-class EU and hence Irish citizenship
The benefits of EU citizenship only became rights via the Charter of Fundamental Rights of the European Union, created two years after the Belfast Agreement and from which the UK has an opt-out.
The Charter rights are mainly the single market rights of living and working around the EU, the political rights of engaging with the European Parliament, plus protections from discrimination. The UK-Ireland common travel area will preserve de facto single market rights within the territorial extent of the Belfast Agreement; the agreement also effectively replicates EU anti-discrimination law, and the March 2018 Withdrawal Agreement affirms this.
So a case could be made that Irish citizens in Northern Ireland are not losing rights, never had them in the first place, or both.
However, there is no guarantee such a case would survive a legal challenge and, in political terms, it is already lost.
Hell to pay
Northern nationalists expect to continue enjoying the rights to live and work around Europe as they do today. There will be hell to pay if Brexit relegates them to second-class EU and hence Irish citizenship.
Even the fancy footwork does not address political rights. How will Irish citizens in Northern Ireland continue engaging with the European Parliament? The Republic’s Constituency Commission has been considering what to do with the two extra MEPs Ireland will receive due to Brexit. Sinn Féin wants it to create a new constituency covering Northern Ireland, with the franchise extended to the entire population. The party’s argument is that everyone in the North is both an Irish and a British citizen by birthright as a fundamental principle of the Belfast Agreement, whatever passport they choose to hold.
Next year’s referendum on extending presidential voting to the diaspora will blow this debate wide open.
Dublin could have pressed for full EU recognition of its northern citizens in the Withdrawal Agreement. It does not appear to have done so and there could be hell to pay for that as well.
EU case law permits member states to withhold EU citizenship from their nationals, generally by geographic criteria, which can be quite arbitrary. For example, Danish citizens of the Faroe Islands do not have EU citizenship yet their compatriots in Greenland do, although both are outside the EU.
There can also be graduations of rights. British citizens of Gibraltar have full EU citizenship while their compatriots in the Cyprus sovereign base areas enjoy only free movement and cannot vote in European elections.
The presidential referendum is likely to propose enfranchising a global diaspora of 3.6 million people, including Northern Ireland residents, outnumbering the 3.2 million electors in the Republic.
This can only emphasise in Dublin, Brussels and Belfast the political difference between Irish citizens in the North and everyone else in the world entitled to an Irish passport – as if Brexit will not by then have emphasised it enough.
Somehow, the difference will have to be formalised. Could Northern Ireland become Ireland’s Gibraltar for EU citizenship purposes?
Once the Border is sorted out, there will be years and years to have that argument.