17.Clause 2 of the Bill provides for special treatment for Irish Citizens who, unlike other EU citizens will not require leave to enter or remain in the UK. This preferential treatment is based on nationality and is intended to reflect the special rules concerning the Common Travel Area between the UK and Ireland that existed before the UK and Ireland joined the EU. The Home Office justify this special treatment on the basis that Irish citizens are not analogous to other non-UK citizens or indeed other EEA nationals. This is due to the special geographic, cultural and historical ties between the two countries and the Common Travel Area. On this basis, the Department presumably considers that either Article 14 is not engaged as Irish Citizens are not in the same category as other EEA nationals, or that that distinction is justified.
18.The Common Travel Area is a series of mutual understandings between the UK and Ireland that accord UK and Irish nationals the right to enter and reside and to work in either country as well as a series of related rights concerning access to healthcare, social security, education and social care. The rights flowing from the Common Travel Area have, in recent decades, been overtaken by EU free movement of persons rights. However, with the removal of these protections due to Brexit, the rights flowing from the Common Travel Area will now have increased importance and there is a need to better clarify and protect these rights. This is true for British nationals living in Ireland and Irish nationals living in the UK, but also for cross-border communities. This concern has also been raised in the work of other Committees, such as the Report by the Northern Ireland Select Committee, “The Land Border between Northern Ireland and Ireland”.
19.We are aware that not all of the current rights flowing from the Common Travel Area mirror the EU free movement of persons rights that exist pre-Brexit. For example, the rights flowing from the Common Travel Area do not currently include the right for an individual to be accompanied by their third country national spouse or third country national dependents, which could have an impact e.g. on Irish nationals with a foreign spouse living in the UK. Therefore, whilst clause 2 of the Bill is welcome in that it seeks to ensure Common Travel Area protections for Irish nationals to enter and reside in the UK, the overall effect is that some existing EU rights are diminished, such as the rights relating to family reunification which are not protected.
20.The Bill does not address other EU free movement rights that currently exist relating to employment, education, health and social security. Some of these are covered in arrangements relating to the Common Travel Area, but this is not comprehensive and is patchy. We note work is underway to seek to improve the protections for British and Irish nationals flowing from the Common Travel Area, for example the agreement on social security, and this is welcome.
21.We recommend that the UK Government, working with the Irish Government, seeks to further clarify the Common Travel Area arrangements with a view to keeping comparable arrangements in place for UK and Irish citizens as currently exist pre-Brexit. This should include family reunification as well as rights relating to healthcare, social security, education and workers’ rights.
14 Northern Ireland Affairs Committee, Second Report of Session 2017–19, , HC 329. See in particular the recommendation at paragraph 36 of that Report.
15 , February 2019
Published: 26 March 2019