No clarity about EU rights of Irish citizens in North after Brexit

DeSouza case highlights difficulties set to arise in asserting EU rights

“For all the recent focus on the ‘solidarity’ of the EU in backing Ireland’s insistence on no return to a hard border and protection of the Belfast Agreement, there is too much muteness and ambiguity about the elephant of post-Brexit Irish citizenship in the room. Photograph: Nick Bradshaw

“For all the recent focus on the ‘solidarity’ of the EU in backing Ireland’s insistence on no return to a hard border and protection of the Belfast Agreement, there is too much muteness and ambiguity about the elephant of post-Brexit Irish citizenship in the room. Photograph: Nick Bradshaw

 

Who fears to speak of citizenship in post-Brexit Northern Ireland? Quite a few, it appears. Michel Barnier, the European Union’s chief Brexit negotiator, was once again vocal in Dublin on Monday about his mission to “protect the Good Friday agreement”, adding that in the event of a no-deal Brexit there would be no talks between the EU and the UK on future relationships until “the three central elements of the withdrawal agreement – Ireland, the financial settlement and citizens’ rights – are agreed”.

This chorus about protecting the 1998 agreement has been consistent, but there are ambiguities and contradictions about what this might mean in relation to citizenship. The withdrawal agreement includes a protocol recognising “that Irish citizens in Northern Ireland, by virtue of their [European] Union citizenship, will continue to enjoy, exercise and have access to rights, opportunities and benefits, and that this protocol should respect and be without prejudice to the rights, opportunities and identity that come with citizenship of the union for the people of Northern Ireland who choose to assert their right to Irish citizenship”.

Birthright

How can those citizens see this as satisfactory based on other assertions that have been made to date? In June 2018, Jean-Claude Juncker, president of the European Commission, stated clearly that as Irish citizens in the North would not be resident in an EU state after Brexit, and they would “no longer benefit from the UK’s participation in EU programmes, policies and activities”. How is that compatible with the statement of Taoiseach Leo Varadkar in December 2017 following the unveiling of the joint report of the EU and the UK government reassuring those same citizens: “Your birthright as Irish citizens, and therefore as EU citizens, will be protected’’?

It is all a far cry from the heady days of 1998 when the provisions of the Belfast Agreement were hailed as offering an opportunity for citizenship to subvert or transcend boundaries; options were offered instead of definitions imposed, with a right for those in Northern Ireland to identify legally as British, Irish or both. For all the recent focus on the “solidarity” of the EU in backing Ireland’s insistence on no return to a hard border and protection of the Belfast Agreement, there is too much muteness and ambiguity about the elephant of post-Brexit Irish citizenship in the room.

What needs to be remembered is that, while the EU supported the peace process, it was loath to directly intervene; as Jacques Delors said in 1992 when he spoke in Belfast as president of the European Commission, it was not the commission’s function to interfere in “domestic” affairs; the solution to the political problems of the North was in the hands of the Irish and British governments, but if there was a new agreement, the EU would provide economic and social assistance to “maximise the new and satisfactory situation”.

It duly did that and could assert that it was assisting a new era of peace for two member states. But will the post-Brexit dispensation see it revert to a hands-off approach to the question of citizenship as it will be seen as a “domestic” matter outside of its remit as Britain will no longer be in the EU and to hell with Irish citizens in a Northern Ireland also outside?

The signs are not promising, given the case of Emma DeSouza, born in Derry, who sought an Irish citizenship-based EU right of residence for her husband but was told she must first renounce her British citizenship; a citizenship she was born with but did not want or claim. DeSouza successfully challenged this Home Office ruling, but that is now being appealed.

Sovereignty

Various publications over the last two decades have highlighted that common EU membership helped the Irish and British governments to work more closely in building the peace process and that the Belfast Agreement involved trying to fundamentally change the nature of citizenship by separating that issue and those of governance and state ethos from the question of sovereignty. As a consequence of Brexit, it is likely that proprietary assertions around sovereignty will once again become enmeshed with citizenship in a contested state.

Detail is needed as to how this might be overcome; if it continues to be sidestepped, those most impacted will be justified in being cynical about Varadkar’s rhetoric in December 2017 about the southern state never abandoning northern nationalists again; indeed some of them have already been vocal about this amounting to hot air. Supposedly cast-iron guarantees could easily become empty promises by October when there is urgency about finally getting a conclusion to a Brexit process that has been so intractable.

This question of citizenship is already shaping up to be associated with subjugation and, as in the past, it will require external intervention to be confronted. But who will have the will or the desire to intervene?

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