Quasi (Social) Citizenship, the Common Travel Area, and the Fragmented Protection of Employment Rights in the United Kingdom after Brexit

Irish citizens living in the United Kingdom (UK) enjoy a privileged immigration status, which in turn facilitates access to a number of economic and social rights, perhaps most importantly a right to—and thereby rights in—work. European Union (EU) law played an important role in facilitating these rights, but with freedom of movement and the right to work of Irish citizens now dependent on the Common Travel Area (CTA) and associated legislative protections. The UK Government advised Irish citizens that they need not apply for post-Brexit settled status, thereby leaving a substantial group of EU citizens essentially outside the scope of the protections offered by the EU-UK Withdrawal Agreement. This article argues that the CTA constitutes a workers’ rights ‘intervention’, which necessitates a clearer articulation of how this instrument fits within the wider context of post-Brexit UK employment law, including the rights deriving from the withdrawal arrangements governing the UK’s departure from the EU. There are a number of asymmetries in the CTA that undermine its value as an employment rights conduit. Brexit, it is argued, has led to further fragmentation of the category of ‘Irish citizen’ in the UK, despite the purported recent recognition of such citizens as a distinct class within UK immigration law. More significantly, the CTA lacks normative purpose, and is a rather weak employment law instrument in that it represents no more than a facilitation of national legislative intervention to ensure (roughly) equivalent treatment between British and Irish citizens in matters of employment (among other economic and social rights). The current CTA arrangements are thereby devoid of any underpinning (social) objectives or values and lack explicit recognition of their role as a facilitator of access to fundamental economic and social rights. Non-political, and rights-based conceptions of social citizenship are suggested as potential normative groundings for the CTA and derived (employment) rights in the absence of the protective framework offered by EU free movement and labour law, with employment rights remaining particularly vulnerable to repeal after Brexit. Beyond considerations of the protection of employment rights between a single EU Member State (Ireland) and a former Member State (the UK), this topic is also illustrative of the resilience of EU labour rights within the wider context of the UK’s withdrawal from the Union, and thereby in its relations to other Member States. More broadly, the relationship between citizenship and employment rights also has implications for transnational worker mobility, with relevance for wider debates as to the relationship between ‘work’ (workers) and ‘citizenship’ (citizens), including within EU free movement and labour law.