Background
Since the establishment of the Irish Free State in 1922, both the Irish and British governments have operated what is known as the Common Travel Area (CTA). Its origins can be traced in the mutual recognition of each other’s immigration laws, which were largely based on pre-independence immigration policy. The CTA has no connection to trade or customs duties, instead focusing on travel to/from and the right to reside in each other’s jurisdiction.
The CTA allows for British and Irish citizens to the right to enter and remain in each other’s country, without the need for a visa, residence permit or proof of resources. Many of the original CTA rights were superseded by European rights of free movement of persons. Following the UK’s withdrawal from the EU, the right of entry and residence may be restricted for nationals of EU Member States.
In the case of Ireland, the right of entry and to remain deriving from the Ireland Act 1949 and Immigration Act 1971 (United Kingdom) and the Aliens Act 1935 (Ireland) would still be in place. The Committee heard that the CTA can be described as a “mini-Schengen” area. It should be noted however, that technically the CTA does not confer a right to work.46 The CTA is based on reciprocity, meaning the UK and Irish governments do not treat each other’s citizens as foreigners.
The Committee notes that the Joint Committee on the Implementation of the Good Friday Agreement is also considering this issue. The CTA has been identified by the Government as one of its four key negotiating priorities and the Committee heard from numerous stakeholders on the potential impacts. In its Brexit, Ireland’s Priorities publication, the Government outlined the following key statistics which highlight the importance of the CTA. It further emphasises the focus on air and sea routes between the two islands.
The CTA and the Movement of People in numbers
– There are 87 air routes, operated by 8 airlines, between Ireland and Great Britain.
– There are 9 passenger ferry routes in operation between Ireland and Great Britain.
– There are 841 flights from Dublin Airport to Great Britain per week.
– The Dublin-London air route is the busiest in Europe and second busiest in the world, with 368 flights per week during the 2016/2017 winter schedule.
– 41% of tourists to Ireland came from Britain and 32% of trips to the UK in 2015 came from Ireland.
– In 2011, the Central Statistics Office (CSO) found that in the region of 14,500 people crossed the border to work every day, with most of those crossing the border into Northern Ireland.
– 1,852,000 cars cross the land border with Northern Ireland every month
– There are almost 300 crossings on the border with Northern Ireland
By contrast, many Members of the European Union, along with Norway, Iceland, Liechtenstein and Switzerland, operate the Schengen Area, a free travel zone and common external border operated under the terms of the Schengen Agreement of 1986. The Schengen Area, in a similar way to the CTA, allows passport-free travel and common visa requirements. In his opening remarks to the Committee on 23 March 2017, Mr Noel Waters, Secretary General of the Department of Justice and Equality stated that:
“Of the 27.9 million passenger journeys through Dublin Airport in 2016, 9.9 million were from the UK to Ireland or from Ireland to the UK, which is 36% of the total. Averaged out over the year, it means 27,000 passengers have their journey facilitated by the common travel area every day. In 2015, 1.2 million residents of Northern Ireland used Dublin Airport, which averaged almost 25,000 people per week crossing the Border to catch flights, and 1 million visitors to Northern Ireland came into this State via Dublin Airport. All of these journeys, and the economic activity generated, are made possible by the common travel area arrangements so much so that it is taken for granted in facilitating movement of people North-South and east-west. The picture at other entry points to the State is the same. Cork Airport has over a dozen routes to the UK, with almost 1 million passengers, or 50% of the total, in 2016 taking a journey in either direction. The number of passenger journeys by sea through our ferry ports is also significant at approximately 2.8 million per year. It is estimated there are an average of 2.2 million monthly vehicular crossings on the North-South land Border.”
Free Movement of Persons
Neither the United Kingdom nor Ireland is a member of the Schengen Area, choosing instead to operate outside the Schengen acquis. While passports are not required to travel within the CTA for Irish and UK nationals, some airlines require proof of identification when flying between the UK and Ireland. This is reflective of their own individual policies and not a legal requirement.
The exact provisions of special travel arrangements under EU law for the UK and Ireland are set out in Protocol 20 to the Treaty on the Functioning of the European Union. Article 2 of this Protocol makes explicit reference to the CTA, setting out a requirement to fully respect the rights of persons as set out in Union law. Ireland participates in some European Schengen measures, such as the Schengen Information System, and requirements on visas etc are mirrored in Irish law and regulations to ensure cohesion with other Member States.
Following the UK’s withdrawal, EU rules will no longer apply between both jurisdictions. One of the key issues raised was whether the position of Irish nationals in the UK (and vice versa) would be in any way limited. The Committee heard that this may create numerous issues in the area of civil justice, which could give rise to uncertainty for the conduct of commerce between the EU and the UK in addition to free movement of workers. The Committee also heard of the possible impact of the UK withdrawing from the jurisdiction of the European Court of Justice.
Visa and Immigration Policies
Since its origins, a central feature of the CTA is the coordination of visa and immigration policies. Ireland has broadly mirrored British requirements on immigration, for example enacting the Aliens (Amendment) Order 1962 to account for changes in the UK regarding the status of immigrants from Commonwealth countries.
More recently, the UK and Ireland have cooperated on some common short-stay visa arrangements which allows visitors from participating countries to apply for one visa and be able to visit both countries. Between 1939 and 1952, the CTA was suspended. This suspension mostly arose from a divergence in Irish and UK immigration policy, with parliamentary records in the UK from the time suggesting that the CTA would only resume if both countries resumed the pre-war arrangement to coordinate policies. During this period, a border control was operated at the Irish Sea.
In 1950, the House of Commons was told that there were “17 or 18 Customs posts” and that controlling the Border effectively would require “an army of immigration officers”.
In recent years, “Operation Gull” is believed to have operated to address the alleged use of the CTA to circumvent relaxed immigration controls between Ireland and the UK.51 This involved the operation of enhanced immigration checks conducted at air and sea ports on individuals travelling between Ireland and the UK.
Under the Aliens (Amendment) Order 1975, it is also possible for Irish immigration officials to prevent a non-UK or non-Irish national from entering Ireland if there is an intention to travel to Northern Ireland or the United Kingdom.52 After Brexit it is not clear if this could or would have to be applied to EU Member State nationals not from Ireland.
Land Border
There is a concern that any changes or alterations to the present CTA arrangements could:
Have a significant impact on the daily cross-border movements in border regions;
Destabilise the peace process; and
Impact North-South relations.
Both the British and Irish Governments have reiterated a desire to maintain the CTA and not return to the “borders of the past”. As the CTA mirrors the Schengen Area in a lot of ways, there is the suggestion both could co-exist insofar as travel is concerned.
The main effects of the CTA between both jurisdictions are that they:
– Maintain an open border between their territories;
– Allow free movement and related rights to each other’s citizens; and
– Co-ordinate their immigration policies in relation to other countries.
According to the CSO, there is a clear inter-dependence between Ireland and Northern Ireland, and to a wider extent, Ireland and the UK in terms of migration and working in each jurisdiction. These figures are outside travel conducted for other purposes such as business, tourism and connecting travel. Additionally, there is a slightly higher number of daily commuters travelling from Ireland to Northern Ireland and annual migrants travelling from Ireland to the United Kingdom, as the diagrams below illustrate.
[Omitted]
Source: CSO
The Government has set out its position as securing “acknowledgment from EU partners and institutions that the long-standing bilateral CTA arrangements with the UK will be maintained (in conformity with EU law)”. In addition to this position, the Government has identified specific implications for Northern Ireland, the movement of people and access to services. These arrangements are particularly important in the context of the Good Friday Agreement.
A key aspect of CTA provisions is that Irish citizens are not treated as foreigners under British law. The Government’s document also notes the CTA’s role in providing access for the citizens of Ireland and the United Kingdom to each other’s social welfare benefits, housing supports, healthcare and education.They also retain certain voting rights. Many of these benefits are implicit and not defined by any express agreement or instrument, but rather derive from the treatment of Irish and
British citizens under British law and the common law that survived independence. During hearings, the CTA was described as a “mini-Schengen” area by officials from the Department
of Justice and Equality, and it was further highlighted that a border control exists between the CTA and the Schengen Area through passport checks. This position is also stated in the Government’s Brexit Priorities.
In its Negotiating Strategy, the Government has noted the following:
“The status of Irish citizens in the UK is provided for in the Ireland Act 1949 which states that Ireland “is not a foreign country for the purposes of any law in force in any part of the United Kingdom”. The status of Irish nationals was maintained under the Immigration Act 1971 and the British Nationality Act 1981. The Irish Government made an order (Citizens of the United Kingdom and Colonies (Irish Citizenship Rights) Order 1949, which provides that UK citizens enjoy in Ireland similar rights and privileges to those enjoyed by Irish citizens in the UK.”
The operation of the CTA is also vital to Ireland’s relationship with Northern Ireland. In the business context, the Committee heard that many businesses in border regions are reliant on cross-border flows of labour, trade and customers. The Committee also heard that for tourism, if there is an impediment to freedom of movement and delays at border crossing, then visitors may be discouraged from travelling between both jurisdictions, while tour operators may also be discouraged from including Northern Ireland and the border regions in tours.55 There is also concern regarding the manner in which cross-border partnerships and reconciliation may be impacted by the return of any symbols of division, such as customs posts, as well as the queues and delays a hard border may cause. Again, this issue is separately considered by the Joint Committee on the Implementation of the Good Friday Agreement.
Potential Solutions
Maintaining Border Controls between the CTA and Schengen Area – As neither Ireland nor the United Kingdom is part of the Schengen Area, the imposition of border controls with the Schengen Area could remain in place. This is the preservation of the status quo.
Common Visa Scheme
– The Committee recommends the common visa scheme, where it exists, be continued.
Schengen Visa Model – Common Visa Schemes
The approach in Schengen Member States is that if one Member State grants a visa to a third country national, that third country national can travel throughout all Schengen Member States within the terms of that visa. This is a model which is replicated in Ireland and the UK, through the British-Irish Visa Scheme and which currently applies to India and China. These visas generally relate to entry into a state only and not necessarily for work. The scheme should be protected and enhanced. The Committee heard that arrangements between Ireland and the UK, in effect, mirror the arrangements between members of the Schengen Area. It was further noted by the Department that Ireland cannot be in both the Schengen Area and the CTA, and that while Ireland might be interested in becoming a Member of Schengen, the current arrangements are to Ireland’s advantage.
This Article draws on Seanad Special Select Committee Withdrawal of the United Kingdom from the European Union Brexit: Implications and Potential Solutions June 2017. Irish public sector information is reproduced pursuant to PSI Licence; Conditions of Re-Use of Public Sector Information. The Legal Materials contain Irish Public Sector Information licensed under the Irish Licence which is at http://circulars.gov.ie/pdf/circular/per/2016/12.pdf.
