Page 12 - Aequitas Europa

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and beyond the European Court of Justice’s jurisdiction.
A future of hopes, fears and guesswork To attain this, either the UK would become a signatory to
the EEA Agreement, confining its application to NI (having
The fears of the province have been magnified by the previously stated that the UK would not join the EEA), or
multiple questions of the future raised by the for the Agreement itself to be amended, to allow for
Brexit vote; just how this might all unravel is too complex membership of a ‘sub-national entity’, as NI is described
a question to answer yet, given the seemingly infinite here. Whilst this scenario may appear to allow for a
variables involved. Unionist fears are as mentioned; of smooth and near invisible transition to a post-Brexit
isolation from the Union, with a harder border – or even future for the province itself, the questions regarding
the confirmed idea of a border, hard or soft – between NI what we might assume would ensue – namely, a harder
and the mainland, for such a decision to be a potential NI to UK border – are not addressed.
start on the road to a United Ireland, where they would,
as Unionists might see it, be engulfed by the Republic.
From such views could once again spring a rise in Unionist There is still time for some form of middle line to be
paramilitary action, as seen prior to Good Friday. A major formulated and agreed – what form that might take is yet
alternative fear would be the resumption of a hard NI- unknown, but subsequent to the Brexit vote (and sadly
Ireland border. This could be a decision made by the UK not prior to it) this subject of the border has been dragged
to apparently uphold the Brexit vote, should negotiations into the spotlight. Other legal wrangles further afield,
about continuing a form of free trade with the EU fail. such as the current case of Britons within the Netherlands
Another version of such a hard border could be one seeking to establish whether EU citizenship exists in
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imposed by the EU – as earlier described, as a punishment parallel to other national forms of citizenship , may well
or deterrent; effectively keeping the idea of ‘Fortress create or allow a form of soft border without a negotiated
Europe’ as sketched out in Schengen. This would certainly UK/EU agreement having to be sought. The Maastricht
not be to either NI or the Republic’s favour, given the Treaty [1992] stated ‘Every person holding the nationality
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large amount of trade and movement of labour between of a Member State shall be a citizen of the Union’ ; an
the two regions, but the EU may wish flex its muscles and argument which might suggest that once the UK is no
display its broadest form of common policy by keeping to longer a Member State, then their citizens cannot hold a
a firm policy on border control. This might again cause a form of EU citizenship. However, in the Treaty of Lisbon
resumption of paramilitary groups in the North, although [2009] it was stated ‘Citizenship of the Union shall be
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in this scenario they would more likely be of a Catholic additional to and not replace national citizenship’ ; a
background, seeing themselves being a minority left quote argued as displaying that the National and EU
behind the new formation of a hard border; both citizenships do exist in parallel, which has opened up this
deserted by the Republic and, as they might see it, being debate. This case has now been referred to the European
once again a form of second-class minority citizen within Court of Justice. Perhaps, should it be found that this form
this area of the UK. of independent EU citizenship exists, and exists for
As illustrated in the Royal Irish Academy – British citizens of countries such as the UK leaving the EU, then
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Academy Brexit Briefing of October 2017 , efforts to find the border might remain soft . However this may carry
imaginative solutions to the vastly differing interests are the potential to only be soft one way – with UK citizens
continually being sought; in this briefing is quoted the using their continuing EU credentials to cross into the
work of the European Policy Centre – Northern Ireland Republic/EU, but with the UK having the choice to, or not
and Brexit; the European Economic Area option. Here it to allow EU citizens into the UK, (although it would be
puts forward the proposal that Northern Ireland might thought that any arrival at the position of a parallel EU
independently become a member of the European citizenship would take such matters into account.)
Economic Area (EEA), stating that it may be “the most Nevertheless, this might be a chance to find a more
obvious way to mitigate some of the key impacts of Brexit indirect method of open transit between the UK-EU,
on Northern Ireland”. The EEA membership would allow through legal judgement, rather than having to use
for the continuing free movement of people, goods, political negotiations which may alienate areas of opinion
services and capital, yet being outside the customs union on each side.

37 www.ria.ie/sites/default/files/ba-border-2-online.pdf accessed 20.01.18 41 Further broad questions may be raised by this case, (and with any
Case/session number C/13/640244/KG ZA 17-1327 FB/AA aforementioned possible amendment for ‘sub-national entities’ to the EEA
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39 TEU art 9 and TFEU art 20. Agreement) such as issues of citizenship in the Basque region, Scotland or
Lisbon Treaty [2009] art 9. Catalonia, or of the status of captured Isis/Daesh terrorists, stripped of their
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UK nationality.