The Common Travel Area
The Common Travel Area did not formally involve aligned immigration rules. However, it involved sufficient alignment and continuing cooperation between the immigration authorities of Ireland and the UK.
The CTA was largely subsumed under the common EU freedom of movement rights when both joined the EEC in 1973. However, it did continue in the sense that Ireland and UK always afforded each others’ citizens right which were not accorded to other EU states.
The Common Travel Area commenced upon establishment of the Irish Free State on 6th December 1922. Until 1939 there was mutual recognition of immigration permission granted to aliens travelling to the other state.
Between 1939 and 1952 there were immigration controls for travel between the Island of Ireland and Great Britain. They were removed in 1952 after an administrative agreement regarding cooperation in relation to entry by aliens.
Under the (UK) Government of Ireland Act, 1949, Ireland is not a foreign country. Immigration control does not apply to persons arriving from the Republic of Ireland under the Immigration Act. Irish citizens and others arriving from Ireland are presumed to have leave to enter.
Such others do not necessarily have leave to enter, including nationals of states requiring a UK visa who do not hold a visa. Certain persons are deemed to have leave as a visitor for three months including, in particular, those from UK visa exempt states.
Originally, the UK immigration legislation exempted Irish citizens only. In 2014, EEA and Swiss nationals and family members with EU free movement rights are now included.
Under Irish law, British citizens are not deemed non-nationals. Irish Immigration control applies to non-nationals who arrive from the United Kingdom by air and sea. Immigration control may be applied to those arriving by land who must obtain immigration permission within one month unless covered by EU free movement rights.
Ireland and the United Kingdom cooperate on immigration control. In effect, they coordinate their visa policies. There has recently been some formal mutual recognition of visas in relation to visas for China and India national.
Protocol 20 to the European Union Treaties, provides that the UK and Ireland may continue to maintain their special common travel arrangements. In particular, it facilitated the continuing opt out of the Schengen Area Agreements. The key legislation on Schengen visas and common Schengen immigration control does not apply.
The UK is entitled to and maintains the right to adopt measures and exercise control at its frontiers of person seeking to enter the United Kingdom by verifying the right to enter of citizens of Member States and their dependents exercising rights conferred by EU law and citizens of other states on whom such rights have been conferred by agreement, in determining whether or not such persons have permission to enter the UK.
The Protocol also confirms that Ireland and UK may continue to make arrangements between themselves in relation to the movement of persons between their territories described as the Common Travel Area while respecting the rights of persons entitled to enter.There are operational arrangements within the UK to identify and arrest illegal immigrants coming to it from Ireland at the border.
Other Member States are entitled to exercise at their frontiers or other points of entry into their territory, such controls on a person seeking to enter their territory from the United Kingdom (or other territories whose external relations are its responsibility) for the same purposes (verifying entitlement). This also applies to persons arriving from Ireland for as long as the protocol applies to Ireland.
It has been said by a Professor of Migration Law that the continuation of the Common Travel Area arrangements appears to be compatible with EU law. It has been suggested that Brexit is an opportunity for comprehensive a formal Common Travel Area agreement.
Irish Citizens Rights in the UK (and vice versa)
Irish citizens became subject to UK immigration laws since the Commonwealth Immigrants Act 1962. It was principally aimed at the control of Commonwealth citizens, who did not have a pre-existing connection with the UK. Entry controls did not in fact apply to the Republic of Ireland after 1962 nor were any effective limits placed.
Irish citizens are effectively treated as settled in the UK from the date they take up ordinary residence. They may then naturalise after five years residence. They and their children born in the UK are British citizens.
The UK Parliamentary Committee reports have expressed the view that it is imperative that the long-standing rights of UK and Irish citizens to reside and work in each other’s countries are retained.
The British Irish Agreement expresses the intention of UK and Ireland to develop still further the unique relationship between their peoples in close cooperation between their countries as friendly neighbours and partners in the European Union. The Agreement contains several references to the European Union.
The Effect of Brexit
Brexit brings the risk of divergence between the UK and Irish immigration policies. The EU has acquired an enhanced role in immigration matters and in defining the rights of third-country nationals within the EU. Ireland and UK have opted out of most of these provisions.
The EU rules cover family members of persons exercising EU rights of free movement and EU citizenship rights. Questions may be raised in the event of divergence as to whether Northern Ireland immigration policy might remain synchronised with that of Republic of Ireland and the EU.
Ireland and the UK opt-outs from the Schengen Area Home Affairs and Justice provisions are likely to continue post-Brexit. The UK and the EU have committed to the continuation and maintenance of the Common Travel Area both in the EU Negotiation Principles and the UK withdrawal letter.
The UK and Ireland are likely to seek to define and give more detailed expression to the Common Travel Area, which goes beyond free movement to include mutual immediate rights to settle in the other jurisdiction.
The most likely outcome is that the Common Travel Area will be preserved without entry or exit checks between Ireland and the UK, even if differences in immigration rules between Ireland and the UK emerge. This may involve sharing of data and controls at the entry point to the Common Travel Area.
It is argued that Ireland would not need to enforce UK immigration policy in that illegal immigrants may readily enter the UK or Ireland in many ways, including as short-term visitors in any event. There is a range of detailed immigration control measures in the UK which were greatly enhanced in the period immediately before Brexit.
It is likely that the UK will continue to admit EU nationals without visas in any event and may introduce generous terms in relation to residence, work and study. If the UK applied immigration visas to some EU states, this may put pressure on the feasibility of continuing the Common Travel Area. Ireland must continue to afford free movement rights to other EU citizens subject to the limitations of the Common Travel Area.
As currently expressed the protocol does not cut across the rights of other EU citizens. The CTA itself is recognized as a matter of important public policy sufficient to qualify the general free movement provisions
Possible Issues with Continuation
Ireland and the UK effectively accord each other’s nationals, full free movement rights immediately without any waiting period. This gives immediate rights to reside, rights to remain and right to avail of each other’s social systems. It also gives the rights to vote in elections and referenda.
The maintenance of the Common Travel Area may come under pressure in due course as it necessitates continuing differentiation and carves out from the basic EU free movement and equality principles which are expressed in the Treaty and potentially invalidate any provision to the contrary.
Generally, EU, anti-discrimination and equality provisions require that a state ( in this case Ireland) affords no less favorable treatment to EU nationals than to its own citizens (much less third country nationals).
Intrinsically the Common Travel Area arrangements delimit the general EU rights and principles of equality. This may raise issues under the EU Treaties. The Common Travel area is recognised as a matter of policy by way of exception to general rights. The EU treaties allow for exceptions on very narrow ground of public policy.
The same principles will be required to be acknowledged in respect of any new agreement or arrangements between Ireland and the UK. Ireland may not be entitled to treat UK citizens any more favorably than citizens of EU states unless specifically provided under EU law.
While the aspirations in respect of the maintenance of open borders in Ireland is part of the EU’s negotiating principles and the UK’s stated position, they will ultimately be subordinated to the inevitable consequences of the UK choosing to lead the single market and customs union