The land border between Northern Ireland and Ireland Contents

2The movement of people

18.In this Chapter, we consider the implications of the UK’s decision to leave the EU for the ability of individuals to travel across the land border free from routine immigration control under the Common Travel Area (CTA) arrangements.

19.The CTA is a special travel zone between the UK, Ireland, the Channel Islands and the Isle of Man. It started as an informal administrative arrangement between the Irish and British governments following the establishment of the Irish Free State in 1922.48 The CTA concerns the rights of British and Irish citizens to travel and reside within each other’s jurisdictions. The movement of EU citizens and other third country nationals is not covered by the CTA. The right to travel flows from the UK Immigration Act 1971 which states:

Arrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to control under this Act, nor shall a person require leave to enter the United Kingdom on so arriving49

20.The Ireland Act 1949 states that “Ireland is not a foreign country for the purposes of any law in force in the UK”50 and the British Nationality Act 1981 excludes people with a “qualifying CTA entitlement” from UK immigration law.51 Correspondingly, Irish law exempts British citizens from Irish immigration laws.52 Exemption from immigration law permits CTA nationals to remain in each other’s country without the need for a visa, residence permit or proof of resources.53 We heard that the CTA can only function if there is a “common approach to external border management” and a sufficient degree of alignment between UK and Irish immigration policies.54

21.Coordination of immigration policy means that neither country can be used as a “back-door” for entry into the other.55 Ireland and the UK have both opted out of the Schengen Agreement and currently apply the same rules for the movement of EU citizens. They operate a common visa system for Chinese and Indian travellers,56 and coordinate short stay visas for non-EU countries.57 Consequently, routine border controls are not required for travel across the land border between Northern Ireland and Ireland.58 However, many ferries and airlines do, in practice, ask passengers to provide identification when travelling between Ireland and the UK.59

22.The Government said that the CTA also confers the following citizenship rights on British and Irish nationals in each other’s countries:

23.In 2011, census data shows that approximately 230,000 people born in Great Britain were resident in Ireland.61 In the same year, nearly 38,000 people born in Ireland lived in Northern Ireland, 23,000 in Scotland, and 372,000 in England and Wales.62 Under the terms of the Belfast/ Good Friday Agreement the people of Northern Ireland can choose to be Irish or British, or both.63

24.The CTA is explicitly referenced in Protocol 20 of the Treaty of the Functioning of the European Union.64 The Joint Report confirms that continuation of the CTA is compatible with EU law but states that its operation must not affect Ireland’s ability to honour its EU obligations (see Figure 1). In the Draft Withdrawal Agreement, it further states that arrangements for the CTA must not affect the movement of “Union citizens and their family members, irrespective of their nationality, to, from and within Ireland.”65

Figure 1: Paragraph 54 of the Joint Report:

54. Both Parties recognise that the United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (Common Travel Area), while fully respecting the rights of natural persons conferred by Union law. The United Kingdom confirms and accepts that the Common Travel Area and associated rights and privileges can continue to operate without affecting Ireland’s obligations under Union law, in particular with respect to free movement for EU citizens.

Source: Joint Report on progress during phase 1 of negotiations under Article 50 TEU on the UK’s orderly withdrawal from the EU, 8 December 201766

Leaving the EU - controls on the movement of EU nationals

25.The CTA predates Ireland and the UK’s membership of the EU and only applies to Irish and British citizens. The UK’s decision to leave the EU means the UK will be able to change immigration requirements for EU nationals. Ireland, as a member of the EU, cannot impose restrictions on the entry of EU citizens. Michael Dougan, Professor of European Law at Liverpool University, told us “there can be no question of Ireland requiring visas of EU nationals to enter its territory” because it still has its EU obligations.67 Should the UK limit the entry of EU citizens into its territory this would represent a significant divergence with the Irish immigration system. Similarly, if the UK decides in future not to accept European I.D cards, which do not contain biometric information, as a valid travel document this could also represent a significant divergence with the Irish immigration system. To enforce the restriction would mean either imposing border controls on the Ireland-Northern Ireland border, or between the island of Ireland and Great Britain.68 Bernard Ryan, Professor of Migration Law at the University of Leicester, said:

The historic UK position has been that, because immigration control is likely to be ineffective at the Irish border, and controls on travel between Northern Ireland and Great Britain are politically objectionable, there is no alternative to a Common Travel Area with the Irish state.69

26.The Government’s Ireland and Northern Ireland position paper states that the development of the UK’s future immigration system “will not impact on the ability to enter the UK from within the CTA free from routine border controls”.70 This commitment means that persons of any nationality—including EU citizens—will also be able to travel across the land border free from routine controls. Michel Barnier said:

The UK’s commitment to continue to implement the Common Travel Area in a way that does not impinge in any way on the freedom of movement of European citizens is an extremely important step.71

27.It should be noted that currently nationals of the following countries, in addition to EU nationals, can enter the UK without a visa for a short-term stay: Andorra; Antigua and Barbuda; Argentina; Australia; Bahamas; Barbados; Belize; Botswana; Brazil; Brunei; Canada; Chile; Costa Rica; Dominica; East Timor; El Salvador; Grenada; Guatemala; Honduras; Hong Kong; Iceland; Israel; Japan; Kiribati; Liechtenstein; Macau; Malaysia; Maldives; Marshall Islands; Mauritius; Mexico; Monaco; Micronesia; Namibia; Nauru; New Zealand; Nicaragua; Norway; Palau; Panama; Papua New Guinea; Paraguay; Saint Kitts and Nevis; Saint Lucia; Saint Vincent and the Grenadines; Samoa; San Marino; Seychelles; Singapore; Solomon Islands; South Korea; Switzerland; Taiwan; Tonga; Trinidad and Tobago; Tuvalu; United States of America; Uruguay; Vanuatu; Vatican City.72

28.The Gwilym Gibbon Unit for Public Policy, Nuffield College Oxford, told us that continuation of the CTA “appears to be incompatible” with requiring visas for the entry of EU nationals into the UK.73 Bernard Ryan suggested the “simplest solution” would be to exempt EU nationals from visa requirements for short-term stays.74 The Government’s proposals do not state whether the UK’s future immigration system will affect the ability of EU nationals to enter the UK from outside of the CTA. If the exemption from routine control only applies for travel of EU nationals within the CTA it raises the possibility of Ireland being used as a “back door” into the UK.75

29.However, the Government’s paper also states:

It is important to note that immigration controls are not, and never have been, solely about the ability to prevent and control entry at the UK’s physical border. Along with many other Member States, controlling access to the labour market and social security have long formed an integral part of the UK’s immigration system.76

Employers across the UK are already required to check all potential employees’ right to work in the UK,77 and banks are required under the Immigration Act 2016 to check the immigration status of those opening new accounts.78 There are already requirements in England for landlords to check the residency entitlement of all new tenants.79 Sylvia de Mars, Lecturer in Law at Newcastle University, described how these proposals for post-entry controls could work in practice:

Anyone from the European Union can cross the border from the Republic of Ireland to Northern Ireland. It would not be checked there. If they wish to stay for longer than three months, the UK proposal goes, they would then need to prove they are entitled to stay by showing they have a right to work or a right to buy a house, for instance. Immigration controls are being moved away from the border, if you will, towards life.80

30.The Human Rights Consortium raised concern that reliance on internal immigration controls for EU citizens could lead to Northern Ireland becoming “the most highly controlled” part of the UK, with residents having to prove their entitlement to work, live and access services on “an unprecedented scale”.81 The Trades Union Congress said it would be unacceptable for internal controls to rely heavily on reporting in workplaces. They emphasised it would be unreasonable to expect colleagues and trade unions to report individuals who may be irregular migrants.82 Irish Taoiseach, Leo Varadkar, has also rejected suggestions, contained in a report commissioned by the European Parliament, that people crossing the land border would have to digitally pre-register before travelling.83 This was in reaction to media speculation that this was an option being considered by the UK Government.84

31.We welcome the Government’s commitment that changes to the UK’s future immigration system will not affect free movement of people across the land border. Travel across the land border is an integral part of daily life for many individuals living in the border corridor. We recommend the Government sets out in detail how it proposes to apply existing, or whether there will be new, internal immigration controls for EU nationals. In the Committee’s view, the residents of Northern Ireland should not be subject to more onerous documentary checks to determine entitlement to stay and to access public services and the labour market than anywhere else in the UK. It must also establish the resource implications of conducting checks on people away from the border.

Implications for the CTA’s associated citizenship rights

32.The reciprocal citizenship rights of British and Irish citizens derive from the fact they are not treated as ‘foreigners’ or ‘aliens’ for the purposes of immigration law.85 However, the Irish Parliament’s Special Committee on the Withdrawal of the UK from the EU raised concerns that “many of these benefits are implicit and not defined by any express agreement or instrument.”86 The Committee also noted that “technically, the CTA does not confer a right to work”.87 These reciprocal rights are of particular importance for the many cross border workers living in the border corridor who commute daily. A report by the Travellers Movement found that Irish citizens will not have “sufficient legally enforceable rights” after the UK leaves the EU.88 Lord David Alton of Liverpool said:

The British Government has not explained how the Ireland Act 1949 operates to provide rights to Irish citizens in the UK. Nor has it explained how the Common Travel Area provides Irish citizens with rights to work or receive healthcare89

33.The Government’s position paper on Ireland and Northern Ireland acknowledges that:

Many of the benefits enjoyed by Irish and UK nationals have also been provided for in instruments setting out EU free movement and associated rights. This intermingling of rights can make it difficult to distinguish what rights accrue under the CTA as opposed to under EU instruments90

34.We heard concerns that the citizenship rights derived from the CTA have been “left to convention and legislative reference”.91 It has been described as “a lot of bits and pieces” of legislation,92 and “a tangle of statutes, statutory instruments, practice and one treaty limited to social security provision.”93 Once outside the EU, British and Irish citizens will no longer be able to rely on legislation which grants entitlements on the basis of EU treaty rights.94 The Joint Report sets out new arrangements for EU citizens, living in the UK before March 2019, to apply for settled status to protect their right to reside.95 The Government has described the rights of British and Irish citizens under the CTA as operating “separately and alongside those rights afforded to EU nationals”. It further states that “no UK or Irish nationals will be required to apply for settled status to protect their entitlements in Ireland and the UK respectively.”96

35.Several contributors expressed the view that the reciprocal rights enjoyed by British and Irish citizens under the CTA should be put on a clear statutory footing for the future.97 Bernard Ryan said that Brexit presented the opportune moment to consider “a comprehensive Common Travel Area agreement” which would ensure the special status of Irish citizens is “written into immigration law”.98 Sylvia de Mars told us that:

To ensure its longevity and to provide security for Irish people resident in the UK (including those from Northern Ireland only holding Irish passports and not wishing to claim their UK passport) and UK citizens from Britain in Ireland, the legal obligations contained in the CTA should now be placed into a treaty between the UK and Ireland.99

36.The Government acknowledges that EU citizenship rights have become confusingly intertwined with Common Travel Area rights. Where the law is unclear, there is scope for misinterpretation. We recommend that the Government clarify, in its response to this Report, how the Common Travel Area provides protection for the special status of Irish citizens in the UK and how this will be maintained following the UK’s withdrawal from the EU. If existing law is not sufficient, we recommend the Government set out proposals for placing the Common Travel Area’s associated rights on an unambiguous footing through a draft bill which can then be scrutinised to guarantee in statutory form CTA rights for British and Irish citizens. The Committee further recommends that reciprocal clarification is requested from the Irish Government in respect of UK citizens in Ireland, in the event that it is felt necessary to make CTA rights explicit.

48 Bernard Ryan, ‘The Common Travel Area between Ireland and the United Kingdom’ (2001) 64 (6) Modern law Review, page 856

52 S.1 Aliens Order 1999 (replaces Aliens Order 1935)

53 Seanad Special Select Committee, Withdrawal of the UK from the EU, June 2017

54 Q11 [Michael Dougan]

55 Impact of Brexit on Cross-Border Activity, North/South Inter-Parliamentary Association, 18 November 2016

56 UK Visas and Immigration, British-Irish visa scheme, 10 December 2015

57 Irish Naturalisation and Immigration Service, Extension of the Irish Short Stay Visa Waiver Programme, 14 October 2016

58 Northern Ireland Office (BDR0020)

59 Colin Murray (BDR0025)

60 HM Government, Northern Ireland and Ireland, 16 August 2017

61 Central Statistics Office, Census 2011 data

62 North/South Interparliamentary Association, Impact of Brexit on Cross-Border Activity, 18 November 2016

63 The Belfast Agreement, Northern Ireland Office, 10 April 1998

64 Protocol 20, Eur-Lex, Treaty on the Functioning of the EU

65 Draft Withdrawal Agreement, European Commission, 28 February 2018

67 Q12 (Michael Dougan)

68 Centre for Cross Border Studies (BDR0011)

69 Written Evidence submitted to the House of Lords EU Committee, Brexit: UK-Irish relations, Professor Bernard Ryan (BUI0008)

70 HM Government, Northern Ireland and Ireland, 16 August 2017

71 Q276 [Michel Barnier]

73 Gwilym Gibbon Unit for Public Policy (BDR0018)

74 Written Evidence submitted to the House of Lords EU Committee, Brexit: UK-Irish relations, Professor Bernard Ryan (BUI0008)

75 Written Evidence submitted to the House of Lords EU Committee, Brexit: UK-Irish relations, Professor Bernard Ryan (BUI0008)

76 HM Government, Northern Ireland and Ireland, 16 August 2017

77 HM Government, Right to work checks: an employer’s guide, 16 May 2014

78 HM Government, Guidance on immigration status and current accounts, 13 March 2018

79 HM Government, Right to rent document checks: a user guide, 15 January 2016

80 Q30 [Sylvia de Mars]

81 Brexit, Human Rights and Northern Ireland, Human Rights Consortium, January 2018

82 Trades Union Congress (ILB0019)

83 The Guardian, Irish PM rejects idea of border pre-registration, 12 March 2018, Smart Border 2.0, Avoiding a hard border on the island of Ireland for Customs control and the free movement of persons, European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs, November 2017

85 Common Travel Area, Information Note, Irish Department for Foreign Affairs and Trade

86 Seanad Special Select Committee, Withdrawal of the UK from the EU, June 2017

87 Seanad Special Select Committee, Withdrawal of the UK from the EU, June 2017

88 Travellers Movement, Brexit and Irish Citizens rights, December 2017

89 Travellers Movement, Brexit and Irish Citizens rights, December 2017

90 HM Government, Northern Ireland and Ireland, 16 August 2017

91 Committee on the Administration of Justice (BDR0002)

92 Q58 [Dagmar Schiek]

93 Committee on the Administration of Justice (BDR0002), North/South Inter-Parliamentary Association, Impact of Brexit on cross-border activity, 18 November 2016

94 Committee on the Administration of Justice (BDR0002)

95 Home Office, Factsheet on EU citizen’s rights agreement, 8 December 2017

97 Colin Murray (BDR0025), Q58 [Dagmar Schiek], Centre for Cross border Studies (ILB0009)

98 Written Evidence submitted to the House of Lords EU Committee, Brexit: UK-Irish relations, Professor Bernard Ryan (BUI0008)

99 Sylvia de Mars (ILB003)

Published: 16 March 2018