Inevitably diminished: rights of frontier workers in Northern Ireland after Brexit

Abstract

Brexit has exposed a fundamental weakness in the free movement legal architecture of the European Union (EU): a failure to map out the complexities arising from different configurations of frontier work, despite its prevalence – almost one third of article 45 (of the Treaty on the Functioning of the EU) workers commute across borders. However, EU legislation on free movement is generally written with those in mind who work and reside in a member state not of their own nationality, with frontier work an afterthought. Brexit has exposed the problems of this approach, especially at the EU land border on the island of Ireland. This article argues that there are frontier-work-sized ‘gaps’ in the Citizens’ Rights chapter of the United Kingdom/EU Withdrawal Agreement and weighs up the capacity of three potential sources to plug them: the Common Travel Area; the Trade and Cooperation Agreement; and the Protocol on Ireland/Northern Ireland. What emerges is a picture of a legislature at best ignoring or, at worst, not fully cognisant of the differences between and significance of various configurations of frontier work. The Withdrawal Agreement addresses some of these, but not others. Even those who successfully apply for and hold ‘frontier worker’ status post-Brexit risk losing or not being able to regain it – amounting to a ‘diminution’ of rights potentially contrary to the Protocol on Ireland/Northern Ireland’s article 2. These problems not only indicate shortcomings in drafting but also flag up a lesson for the EU: it is time to address the taxonomy of frontier workers and protect their rights so they do not slip through the cracks of EU free movement law.