Potentially uncertain status of Irish in UK gives pause for thought

The news that Ireland's bid to secure special exemptions for Irish citizens living in Britain if the UK remains in the European Union could be in jeopardy is unsettling news for the Government.

Ever since the prospect of a British referendum on EU membership morphed into reality following the Conservative Party’s electoral victory a year ago, Irish officials have moved to ensure that the “unique status” of Irish citizens living in Britain would be reflected in any settlement between Britain and the EU.

Taoiseach Enda Kenny and Minister for Foreign Affairs Charlie Flanagan have raised the issue at prime ministerial and foreign minister level over the last year, including during a bilateral meeting between the Taoiseach and British prime minister David Cameron in Brussels in February.

The Irish case rests on protocol 20 of the EU treaty which references the Common Travel Area and states that the UK and Ireland “may continue to make arrangements between themselves relating to the movement of persons between their territories”.

While officials are quietly confident this will ensure Irish citizens will be exempted from the package of measures negotiated by Cameron in February – including restrictions on the payment of certain in-work benefits to migrants – the European Commission is not so sure.

Travel vs labour

Officials at the highest level of the commission dispute the legal argument the Common Travel Area, which predates both Britain and Ireland’s entry into the EU in 1973, justifies an exemption for Irish citizens. In particular, it asserts the specific clause refers to a common travel area rather than a common labour market, a key distinction in terms of free movement of workers.

In truth, because the provision has never been legally tested, there is no precedent which could predict the outcome of any challenge.

In the world of EU policymaking where compromise and concessions reign supreme, officials hope that some sort of political compromise will be agreed.

Obviously an important factor will be Britain’s position. So far, Downing Street is supportive of a deal. Cameron suggested in the House of Commons in February he was open to the idea.

But the commission is concerned that other member states – particularly east European countries whose citizens benefit from British in-work benefits – may be unhappy.

Whether the existence of the Common Travel Area, and the situation in Northern Ireland, will be enough to convince other member states and the European Parliament that a special arrangement for Ireland is legally permissible remains to be seen.

Nonetheless, Britain will be conscious that Ireland may be one of its few allies around the EU table, whatever the outcome of the referendum, and will be keen to keep Dublin on board. This will be particularly the case if Britain votes to leave, a situation which will mean it will not be privy to the conversations of the other 27 member states and will need a strong supporter to fight its case when the terms of Brexit are being worked out.

With the referendum just five weeks away, EU officials have been keen to refrain from public statements on the ballot, in fear they will be accused of meddling. This restraint even stretches to Wednesday’s economic recommendations for member states which omitted any reference to the possible economic impact of a British exit, despite the huge risk factor it presents.

Johnson’s remarks

Nonetheless, comments by

Boris Johnson

at the weekend comparing the EU to the Third Reich were enough to elicit a vigorous response from

European Council

president

Donald Tusk

. The former Polish prime minister said he “could not remain silent” following Johnson’s remarks.

Pre-empting criticisms from the Leave campaign that he was interfering, he tackled that argument head-on: “To defend does not mean to lecture anyone. The British citizens will make this decision themselves.” He continued by defending his right to defend the union. “When I hear the EU being compared to the plans and projects of Adolf Hitler I cannot remain silent. Such absurd arguments should be completely ignored.”

As the campaign enters its final weeks, there is a strong argument the EU has both a right and a duty to set out the case for continued British membership. This week the British prime minister again insisted the referendum result will be final and there will be no second vote. For those advocating a Remain vote, the next few weeks offer the last chance to influence opinion. Speaking on June 24th will be too late.