Withdrawal Agreement & Northern Ireland Protocol for Employees’ Rights in Northern Ireland

Area What the Draft Withdrawal Agreement Says Comment
Residency and work rights

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

UK nationals residing in the 27 EU Member States and EU citizen residing in the UK will maintain their residency rights during the transition period and, to a certain extent, after it.

Decisions on granting new residence status under the Withdrawal Agreement will be made on the same basis as under the Free Movement Directive (Directive 2004/38/EC). Thus EU citizens and UK nationals arriving in another Member State (MS) during the transition period will enjoy the same rights and obligations under the Withdrawal Agreement as those who arrived in the host state before 30 March 2019. Those protected by the Withdrawal Agreement who have not yet acquired permanent residence rights will be able to continue residing in the host state and acquire permanent residence rights following the UK’s withdrawal.

This means that during the transition period, EU citizens and UK nationals, as well as family members, can continue to live, work or study as they currently do and benefit from the protections of EU law, such as the right to equal treatment, on the same basis as host state nationals. Frontier workers and frontier self-employed workers (those who are currently nationals of one MS, reside in another MS, and work in a third MS) are also protected under the Agreement, as is the recognition of professional qualifications.

EU nationals (other than Irish nationals who will be covered by the Common Travel Area rules (see below)) who wish to remain in the UK after the transition period must apply for settled status or permanent residency.

The Protocol states in its Preamble that it is without prejudice to the rights, opportunities and identity that come with citizenship of the Union for people of NI who have asserted their right to Irish Citizenship under the Good Friday Agreement.

If the Withdrawal Agreement is approved, UK, NI and Irish employers need not worry about immigration constraints for UK staff members as long as they arrive before the end of the transition period and comply with existing obligations under the Free Movement Directive.

The continuation of freedom of movement for frontier workers will be particularly welcome for employers operating the border region between NI and Ireland who employ EU citizens from countries other than the UK and Ireland who reside in NI.

The right to Irish citizenship guaranteed under the Good Friday Agreement, means that many citizens of NI will continue to enjoy rights of free movement under EU law as Irish citizens, which might not otherwise be available to them as UK citizens, depending on what agreement is ultimately reached (or not) between the EU and UK.

The terms of the Withdrawal Agreement in relation to citizens’ rights has direct effect. Therefore, it is capable of being relied upon directly by EU citizens in British Courts and by UK nationals in MS Courts.

In the event of non-compliance by either the UK or MS the parties can suspend proportionally the application of the Agreement. However, the suspension of the provisions on citizens’ rights is not possible.

Common Travel Area The Protocol includes provisions on how the “backstop” will work to avoid a hard border between NI and Ireland, the majority of which will come into effect after the end of the transition period, and apply “unless and until they are superseded, in whole or in part, by a subsequent agreement”.

 

Article 5 of the Protocol provides for a continuation of the common travel area between Ireland and the UK saying that it recognises that the UK and Ireland may continue to make arrangements between themselves in relation to the movement of persons between their territories. Such arrangements must “fully respect the rights of natural persons conferred by Union law” and must not affect “the obligations of Ireland under Union law, in particular with respect to free movement for Union citizens and their family members irrespective of their nationality, to, from and within Ireland.

 

The backstop also provides for regulatory and customs alignment in respect of NI which will avoid the need for a hard border.

 

The Common Travel Area allows free movement of British and Irish citizens between the UK, Ireland, the Channel Islands and Isle of Man and provides access to various government services in each country. This also comes with certain rights for family members.

 

The Common Travel Area does not provide any rights to travel to the rest of the EU, only within the Common Travel Area itself.

 

In essence it is an insurance policy, designed to ensure there will be no hard border between NI and Ireland and also protects the dimensions of the Good Friday Agreement as well as North – South cooperation and the all island economy.

The provision for regulatory and customs alignment in respect of NI to avoid a hard border means that, whilst there would be no need for checks or controls on goods or persons crossing the border between NI and Ireland, there would be a need for checks on goods and persons travelling between NI and the rest of UK.

Single Customs Territory A single customs territory between the EU and UK will come into force, if there is no deal by December 2020 and the transition period has not been extended.

 

Under this arrangement, the UK would have to maintain the EU’s common external tariff on third countries. There would be no tariffs or quotas for goods traded between the UK and EU and no need for proof of origin. Fisheries are excluded pending an agreement on fishing rights by the end of the transition.

 

NI would be part of the same customs territory, but unlike GB, would have to apply EU customs law as set out in the Union’s Customs Code.
Level Playing field The UK, including NI, and the EU commit to ensuring a level playing field covering taxation, environmental protection, labour and social standards, and state aid and competition policy on a UK wide basis. The UK will align with future EU changes to competition and state aid rules and commits to EU’s principles on good governance on tax.

 

The Protocol guarantees “no diminution of rights, safeguards and equality of opportunity” as set out in the part of the Good Friday Agreement entitled “Rights, Safeguards and Equality of Opportunity” including in the areas of protection against discrimination listed in Annex 1 to the Protocol which lists 6 key EU Directives:

-Directive 2004/113/EC on equal treatment between men and women in access/supply of goods and services;

-Directive 2006/54/EC on equal treatment of men and women in matters of employment and occupation;

-Directive 2000/43/EC on equal treatment between persons irrespective of racial or ethnic origin

-Directive 2000/178/EC – the general framework for equal treatment in employment and occupation.

 

The UK undertakes to implement this commitment through “dedicated mechanisms.”

 

The UK agrees that the level of protection provided for by law, regulations and practice in the area of Labour and Social protection will not be reduced below the common standards applicable in the EU and UK at the end of the transition period as regards fundamental rights at work, occupational health and safety, fair working conditions and employment standards, information and consultation rights at company level and restructuring (Non-Regression principle).

 

The UK also reaffirms its commitment to implement effectively the ILO Conventions and the Council of Europe European Social Charter

 

The level playing field commitments are strongest on state aid and competition where the UK will stay aligned with EU rules.

 

For NI, the need to protect Good Friday Agreement rights is central to the backstop arrangement and the inclusion of the EU Directives listed in Annex 1 is noteworthy. These include the Race Equality Directive, the General Equality Framework Directive and the Employment Equality Directive. Their inclusion in the Protocol means they cannot be diminished or diluted so long as the Protocol is in force and, as any subsequent agreement is unlikely to depart substantially from the protections provided under the Protocol, this may provide citizens of NI with the benefit of rights under these EU Directives for some considerable time.

 

When taken with the non-regression principle, this would appear to ring fence in NI law a wide range of EU derived employment law rights, including things like the Working Time Regulations unless or until such time as an alternative agreement is reached.

 

Whilst employment law in NI (which is a devolved power) had already started to diverge in certain material respects from GB employment law, in areas such as unfair dismissal, statutory dismissal procedures, equality law, TUPE and redundancy consultation periods etc., NI employment and equality laws are likely to diverge substantially from the rest of the UK if the backstop is required.

 

On a practical note, the requirement to implement the commitment through “dedicated mechanisms” presumably requires statutory enactments to give it domestic effect. In the absence of an Assembly, and/or in the absence of the NI parties reaching agreement on such legislation, this may require the UK to legislate directly for NI in these areas.

 

Regulation Under the Protocol, NI will also be obliged to align with specific EU rules. In particular, it will have to adhere to the rules of the EU’s single market in areas such as technical regulation of goods, agricultural and environmental production and regulation, state aid and other areas of North/South co-operation. It will also be included within parts of EU Vat and excise regimes.

 

NI will also remain part of the EU’s single electricity market.

In order to avoid the need for regulatory checks in Ireland, NI will have to stay in line with some Single market rules. As the rest of GB could diverge, there will need to be some checks on goods moving to and from GB to NI but both sides agree to look at ways of easing the compliance burden.

 

These sorts of rules were the ones envisaged in the Prime Minister’s proposed “common rulebook” which the EU agreed for NI but not GB.

Enforcement and Supervision NI’s compliance with EU rule will be enforced by the European Commission and the European Court of Justice.

 

GB’s compliance with the level playing field commitment will be enforced by UK domestic authorities but with a developed oversight role for the Commission.

 

The EU retains the right to apply tariffs to UK goods if it deems that the UK is not living up to its commitments on the customs territory.

The UK has conceded a strong role for the Commission and the ECJ in NI and given the commission wide ranging rights to ask for information and intervene in the way UK enforcement bodies are acting.

 

Exiting the backstop The UK or EU can, at any time notify the other that the protocol should, in whole or part, cease to apply. Within 6 months of the notification, the Joint Committee will meet at ministerial level to consider the notification.

 

The Committee can seek and opinion from the institutions set out in the Good Friday agreement.

The UK cannot unilaterally leave the backstop – but can propose it to the Joint Committee. It the Committee does not agree (e.g. because it does not think the future trade relationship will avoid the need for a hard border in Ireland) it can decide against it. There is an option to refer to joint UK – Irish institutions for an opinion.