Chapter 3: The Irish land border and the Common Travel Area
The Irish land border
87.Given its significant economic, social and political implications, the fulcrum of the debate on the impact of Brexit on Ireland has been the future of the Irish land border, alongside the separate, albeit overlapping, issue of the future of the Common Travel Area.
The history of the land border and the Common Travel Area
88.The land border was established on 3 May 1921, after the Government of Ireland Act 1920 had partitioned Ireland between the newly-established jurisdiction of Northern Ireland and what became known the following year as the Irish Free State, and, subsequently, the Republic of Ireland.138
89.Customs controls were operated on both sides of the border from 1923 until their abolition on 1 January 1993, when the EU Single Market came into effect.139 In addition, security checkpoints operated on both sides of the border during the Troubles, from 1970 to the late 1990s—although the border security regime operated only partially, even at the height of the Troubles, because the Government in London recognised that a ‘hard’ border would inflame tensions in the Nationalist community.140 Other controls have been instituted on an ad hoc basis. For instance, in 2001 the Republic of Ireland operated systematic controls at the Irish border to curtail the spread of foot and mouth disease.141
90.The Common Travel Area between the UK and Ireland (as well as the Crown Dependencies of Jersey, Guernsey and the Isle of Man) is a distinct aspect of the border arrangements. Its operation is set out in Box 1 below.
Box 1: The operation of the Common Travel Area
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Common Travel Area arrangements between the United Kingdom and Ireland date from the foundation of the Irish state. From 1923 to 1939 there was full mutual recognition of immigration permission granted by each state to aliens travelling to the other. Between 1939 and 1952 immigration control applied to travel between the island of Ireland and Great Britain. In 1952 those immigration controls were removed, after an administrative agreement between the two states concerning co-operation in control over entry by aliens. In current UK law, section 1(3) of the Immigration Act 1971 provides that immigration control does not apply to persons arriving from the Republic of Ireland (or the Channel Islands or Isle of Man). Accordingly, the starting-point is that all persons who arrive from the Republic of Ireland automatically have leave to enter. That general position is qualified by the provisions of the Immigration (Control of Entry through Republic of Ireland) Order 1972, Article 3 of which excludes several categories of person from the benefit of section 1(3), including visa nationals not in possession of a visa. Article 4 of the Order deems certain other persons to have leave as a visitor for three months, including those with visa exempt nationalities. In its original version, Article 4 of the 1972 Order exempted Irish citizens, and only them. That provision was replaced in 2014 by an exemption for EEA/ Swiss nationals and their family members with a right of entry deriving from EU free movement law. 142 In Irish immigration law, everyone who is not an Irish or a British citizen is classed as a ‘non-national’. Under the Immigration Act 2004, immigration controls apply automatically to all ‘non-nationals’ who arrive from the United Kingdom by air or sea. Immigration control may be applied to those who arrive by land from Northern Ireland. Persons who arrive by land must obtain immigration permission within one month, unless covered by EU law on the free movement of persons. The two states cooperate in various ways in immigration control, including in relation to visa policy. The states each make provision in their immigration laws for refusal of entry to persons who intend to travel to the other state and who would not be admitted there. |
Source: Drawn from written evidence from Professor Bernard Ryan (BUI0008)
The evolution of the border
91.Ambassador Mulhall noted that cross-border communication was limited both before and during the Troubles, and recalled “irksome” border customs checks in the 1960s.143 Peter Sheridan, Chief Executive, Co-operation Ireland, recollected queues of traffic for rudimentary customs checks,144 and he and Bertie Ahern also noted that customs posts had been targets for attack when the Troubles erupted.145 Mr Ahern recalled that at one stage there were over 40,000 people on the security pay bill, and hoped no-one wished to return to a ‘hard border’ of that kind.146
92.On the other hand, Dr Katy Hayward noted that the Common Travel Area had remained operational even when the UK and Ireland were engaged in a trade war.147 Edgar Morgenroth and Professor Cathal McCall, Professor of European Politics, Queen’s University Belfast, noted that it had been a permeable border, even at the height of the Troubles.148
93.Professor McCall stated that the launch of the European Single Market, together with the onset of the peace process from 1994, had removed the need for customs posts and military checkpoints, meaning that, today, “the physical manifestation of the Irish border itself is hardly discernible.”149 It is estimated that there are up to 300150 major and minor crossings along a 310 mile (499 kilometre) border, with 35,000 people crossing the border each day.151
The implications of Brexit for the Irish land border
94.Giving evidence to us in a related inquiry, the Secretary of State for Exiting the European Union, Rt Hon David Davis MP, told us that London, Belfast and Dublin were united in their wish to see the open border maintained, and that “no one wants to go back to the hard border”.152
95.Welcome as this statement is, it leaves open what the precise impact of Brexit on the land border will be, both in terms of the movement of goods (whether UK withdrawal from the customs union would inevitably lead to border checks) or the movement of people (whether the current Common Travel Area arrangements can be maintained).
The free movement of goods and UK membership of the customs union
96.We were told that the principal impediment to maintenance of the current soft border arrangements was that, if the UK withdrew from the customs union, customs tariffs would need to be applied, inevitably resulting in some form of physical manifestation of the border.
97.Edgar Morgenroth thought that the UK leaving the customs union “would make a hard border almost inevitable, whatever that might look like”.153 Peter Sheridan agreed that there would need to be some controls, although this did not necessarily mean the reimposition of the old border checkpoints.154
98.Dr Paul Gillespie, Adjunct Senior Research Fellow, University College Dublin, observed that, goodwill between the UK and Ireland notwithstanding, EU colleagues would wish to ensure that robust arrangements were in place to protect the customs union.155 John Bruton noted that Ireland would have to fulfil its EU obligations in the event that the UK left the customs union.156 We observe in particular that Article 3(1)(e) 207 of the Treaty on the Functioning of the European Union provides that, through the Common Commercial Policy, the EU has exclusive competence to negotiate trade agreements with third countries.157 The United Kingdom, following Brexit, will become a third country for this purpose.
99.Ambassador Mulhall said that the Irish Government’s preference would be for the UK to remain in the customs union.158 However, the Secretary of State for Northern Ireland stressed that “we have made no decisions in relation to the customs union”.159
European precedents
100.There are no exact precedents for managing a border such as the Irish land border. The Immigration Law Practitioners’ Association noted that there were customs checks (but not immigration checks) at the Franco-Swiss border.160 Professor Derrick Wyatt QC, Brick Court Chambers and Emeritus Professor of Law, University of Oxford, observed that at the border between Sweden and Norway (which is not a member of the customs union, though it is part of the EEA), there were only customs spot-checks. He suggested that these need not take place at the physical border, but could take place via mobile check points for private cars or at customs depots elsewhere for commercial vehicles.161
101.John Bruton, though, observed that part of the price for this was that Swedish customs officials could examine premises in Norway—a solution that was unlikely to be acceptable in Ireland given the historical context.162
Technological solutions
102.David Davis suggested that the movement of goods across the border was resolvable “by a variety of technical and technological means”, although he did not specify what he had in mind.163 Dan O’Brien agreed that, in principle, technological advances might enable customs controls to be less onerous than in the past.164 Aidan Gough also said that technology systems could be used, although, given that there were rules of origin requirements to consider, he could not see how some checks could be avoided.165
103.John McGrane did not know of any technology that could “tell us the contents of a vehicle without the driver having to declare them in the traditional way.”166 That said, John Bruton was in favour of cross-border cooperation to use the most advanced technology available, so as to minimise costs.167
104.The outgoing leader of the Alliance Party, and former Northern Ireland Justice Minister, David Ford MLA, observed that it was “utterly meaningless” to talk of electronic controls as a preventative tool against cross-border smuggling. He noted that there was already evasion of the different excise duties on either side of the border.168 The Leader of the Ulster Unionist Party (UUP), Mike Nesbitt MLA, agreed that electronic monitoring of the movement of goods “just will not cut it”.169 Indeed, David Davis conceded that a loss of revenue to smuggling might be a price that needed to be paid in order to maintain an open border.170 Yet the issue of smuggling should not be lightly dismissed, as we discuss in the section on police and security cooperation below.171
Conclusion
105.Retaining customs-free trade between the UK and Ireland will be essential if the current soft border arrangements are to be maintained. The experience at other EU borders shows that, where a customs border exists, while the burden and visibility of customs checks can be minimised, they cannot be eliminated entirely. Nor, while electronic solutions and cross-border cooperation are helpful as far as they go, is the technology currently available to maintain an accurate record of cross-border movement of goods without physical checks at the border.
106.The only way to retain the current open border in its entirety would be either for the UK to remain in the customs union, or for EU partners to agree to a bilateral UK-Irish agreement on trade and customs. Yet given the EU’s exclusive competence to negotiate trade agreements with third countries, the latter option is not currently available.
The movement of people and the Common Travel Area
107.While the operation of the Common Travel Area has broader application than the Irish land border alone, its existence is, in large part, a function of the complexity of the Irish border question. There was consensus among our witnesses that it needed to be retained.172
108.The UK and Irish Governments both stressed their commitment to maintaining the Common Travel Area. Ambassador Mulhall saw no fundamental reason why it could not be preserved, although he warned that the UK’s changing status meant that unforeseen circumstances needed to be guarded against.173 David Davis also noted that “it has been around since 1923, it is not EU dependent, and the interlinking of British and Irish societies is extensive … there are something like 600,000 Irish passport holders in the UK”.174
109.The Secretary of State for Northern Ireland noted that the Crown Dependencies were outside the EU and yet within the Common Travel Area.175 He also noted that the Common Travel Area was embedded in the EU Treaties (see Box 2), and was therefore confident that “the principle and the concept” of the CTA was understood by other Member States.176 He stressed that the UK and Irish Governments were working to strengthen the Common Travel Area, in particular by working to prevent terrorists and criminals from entering the CTA. He noted that Ireland presently had no intention of entering the Schengen area, and would thus retain border controls with regard to other EU Member States; this was one of the “fundamental building blocks” to continuation for the CTA.177
Box 2: The Common Travel Area in EU law
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Protocol (No 20) to the EU Treaties, “on the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union to the United Kingdom and to Ireland”, states that “the high contracting parties, desiring to settle certain questions relating to the United Kingdom and Ireland, having regard to the existence for many years of special travel arrangements between the United Kingdom and Ireland, have agreed upon the following provisions, which shall be annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union: Article 1The United Kingdom shall be entitled, notwithstanding Articles 26 and 77 of the Treaty on the Functioning of the European Union, any other provision of that Treaty or of the Treaty on European Union, any measure adopted under those Treaties, or any international agreement concluded by the Union or by the Union and its Member States with one or more third States, to exercise at its frontiers with other Member States such controls on persons seeking to enter the United Kingdom as it may consider necessary for the purpose: (a)of verifying the right to enter the United Kingdom of citizens of Member States and of their dependents exercising rights conferred by Union law, as well as citizens of other States on whom such rights have been conferred by an agreement by which the United Kingdom is bound; and (b)of determining whether or not to grant other persons permission to enter the United Kingdom. Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union or in any other provision of that Treaty or of the Treaty on European Union or in any measure adopted under them shall prejudice the right of the United Kingdom to adopt or exercise any such controls. References to the United Kingdom in this Article shall include territories for whose external relations the United Kingdom is responsible. Article 2The United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (“the Common Travel Area”), while fully respecting the rights of persons referred to in Article 1, first paragraph, point (a) of this Protocol. Accordingly, as long as they maintain such arrangements, the provisions of Article 1 of this Protocol shall apply to Ireland under the same terms and conditions as for the United Kingdom. Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union, in any other provision of that Treaty or of the Treaty on European Union or in any measure adopted under them, shall affect any such arrangements. Article 3The other Member States shall be entitled to exercise at their frontiers or at any point of entry into their territory such controls on persons seeking to enter their territory from the United Kingdom or any territories whose external relations are under its responsibility for the same purposes stated in Article 1 of this Protocol, or from Ireland as long as the provisions of Article 1 of this Protocol apply to Ireland. Nothing in Articles 26 and 77 of the Treaty on the Functioning of the European Union or in any other provision of that Treaty or of the Treaty on European Union or in any measure adopted under them shall prejudice the right of the other Member States to adopt or exercise any such controls.” |
Source: Treaty on the Functioning of the European Union OJ C 326 (consolidtated version of 26 October 2012)
110.The Immigration Law Practitioners’ Association thought it would be optimistic to assume that the Protocol would not become the subject of Brexit negotiations.178 The Centre for Cross Border Studies noted that, given the references in EU Treaties, retention of at least some of the benefits of the CTA was dependent on EU agreement”.179 Fianna Fáil agreed that it should not be assumed that the political, economic and social imperative to maintain the Common Travel Area and an open border would supersede European law and procedures. In their view, Brexit posed a “real and substantive threat to the very existence of the Common Travel Area”, including the introduction of passport controls to prevent the land border being used as a back door into the UK.180
111.David Ford observed that “the issue of the common travel area is not dealt with by people simply saying, ‘The CTA has existed since 1923’”, because it had never existed when one jurisdiction was outside the EU and the other within it.181
112.On the other hand, Bernard Ryan, Professor of Migration Law, University of Leicester, stated that:
“The continuation of common travel area arrangements appears compatible with EU law … There is no apparent legal reason why the Republic of Ireland should not retain the benefit of Protocols 19 and 20 after Brexit, so as to permit bilateral co-operation with the United Kingdom outside the Schengen zone.”182
He suggested that Brexit presented an opportunity for a comprehensive Common Travel Area agreement, in particular given that adjustments to the CTA arrangements were in any case required to cater for EU, EEA and Swiss nationals. He suggested that the two governments could publicise their co-operation over immigration control.183
113.Dr Etain Tannam, Assistant Professor, Irish School of Ecumenics, Trinity College Dublin, agreed that the fact that Ireland was not part of the Schengen area would make it possible to continue with the CTA.184 Ambassador Mulhall told us that there was no pressure from other Member States for Ireland to join Schengen, because of their recognition of the unique circumstances in Northern Ireland.185
114.There is consensus between the UK and Irish Governments that the Common Travel Area arrangements should be retained. Yet the references to the CTA in a Protocol to the EU Treaties mean that the agreement of EU partners to this approach will be required. While Ireland’s non-participation in Schengen suggests that it should be possible for the CTA to continue after Brexit, both Governments need to take action to convince EU colleagues of its necessity, in particular in the context of the unique circumstances in Northern Ireland. We also believe that the case for consolidating the CTA arrangements post-Brexit merits exploration.
The implications for the cross-border free movement of EU citizens
115.As set out in Box 2 above, the rights of free movement across the jurisdictions within the Common Travel Area only apply to British and Irish citizens (and residents of the Crown Dependencies). The question therefore arises as to the implications of Brexit for the free movement of EU citizens across the border, in the event that the UK sought to place constraints on free movement.
116.Ambassador Mulhall stated that, in these circumstances, while an EU citizen could in theory come to Ireland, settle in Ireland and then decide to cross the border to Northern Ireland and then to Britain, in such a case they would be illegal immigrants, unable to “be legally present … to live and work there and to be able to access all the services”. He argued that only a relatively small number of European citizens would want to act in this way, and concluded that the Irish border would not pose a risk sufficient to warrant the imposition of stronger border controls.186
117.Professor O’Brennan agreed that it was highly unlikely that EU migrants would try to get into the United Kingdom illegally from Ireland. Neither did he think that this was a great fear for the UK Government.187
118.The Centre for Cross Border Studies suggested that EU citizens could be permitted to cross the border into Northern Ireland in the knowledge that they would not legally be able to reside, seek employment, study or gain access to social welfare and healthcare services or benefits. They suggested that the same approach could be extended to movement of EU citizens from Northern Ireland to other parts of the United Kingdom.188
119.Nevertheless, the Centre was concerned at the societal impact of any such restrictions, and called for urgent clarification of the rights of EU nationals currently resident in Northern Ireland to remain. Ruth Taillon noted that many businesses (in the agri-food sector in particular) were reliant on eastern European workers, and warned that raids on the premises where they worked would feed into a negative and fearful atmosphere.189
120.At present, illegal movement of non-EU citizens between Northern Ireland and Britain is addressed by means of Operation Gull, which targets domestic UK flights and ferries to and from Northern Ireland in order to identify and arrest illegal immigrants going to and from Ireland by way of the border.190
121.Professor Wyatt stated that it was not clear if Operation Gull could be expanded to deal with cross-border illegal movement by EU citizens in the future. He and the Immigration Law Practitioners’ Association noted criticism of Operation Gull by human rights groups, in particular accusations of racial profiling in its identification of individuals selected for interview in UK ports and airports. Professor Wyatt agreed that the techniques used on the UK side to identify and interview suspect travellers lacked the transparency of border passport checks, although they did act as a surrogate for this.191
122.The Immigration Law Practitioners’ Association suggested that one solution to these problems might be to allow the Northern Ireland Executive to reach its own settlement on the rights of EU and EEA nationals in Northern Ireland. They noted that, while immigration was a reserved matter, EU/EEA nationals’ access to services in Northern Ireland could be protected by clarifying which matters were within the competence of the Northern Ireland Assembly. They noted a number of areas overlapping with immigration policy, including health and social services, education, employment and skills, social security, and housing, were already devolved.192
123.Such an arrangement would require UK Government approval to an adjustment of the devolution settlement. It would also be essential that any intensification of Operation Gull to prevent EU citizens moving illegally to live and work in Great Britain did not inhibit the ease of movement of UK and Irish citizens on internal journeys in the UK between Britain and Northern Ireland. We explore the question of the sea boundary between Northern Ireland and Britain in paras 140–142 below.
124.The UK Government has yet to determine whether it will seek to impose restrictions on the free movement of EU citizens to live and work in the UK. While we agree that, were restrictions to be imposed, the overall numbers seeking to enter the UK illegally to work via the Irish land border would be likely to be low, the introduction of restrictions could have an impact in particular on industries already reliant on EU labour, for instance the cross-border agri-food sector. We also acknowledge that other EU Member States are looking for assurances about how their citizens already resident in Northern Ireland will be treated.
125.Short of the introduction of full immigration controls on the Irish land border, the solution would either be acceptance of a low level of cross-border movement by EU workers, or allowing Northern Ireland to reach its own settlement on the rights of EU citizens to live and work there. Given that immigration is a reserved matter, the latter option would require UK Government approval to an adjustment of the devolution settlement. It would also be essential that any intensification of Operation Gull should not inhibit the ability of UK and Irish citizens to move freely and easily between Northern Ireland and Britain. Bearing these caveats in mind, this may be an option worth exploring.
Reciprocal rights for UK and Irish citizens
126.We also considered the impact of Brexit on the current reciprocal rights for UK and Irish citizens to live and work in each other’s countries. Such rights are underpinned in domestic law by the treatment of Irish nationals as non-foreigners under the Ireland Act 1949, and the acknowledgement of their special status in subsequent legislation including the Immigration Act 1971, as well as by the provisions of the British Nationality Act 1981 (see Box 3 below).193 In addition, under the terms of the Belfast/Good Friday Agreement, the people of Northern Ireland have the right to identify as British, Irish or both, and to claim citizenship accordingly. Those who claim Irish citizenship would, by extension, be able to claim EU citizenship.
Box 3: The status of Irish citizens under UK law
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Section 2(1) of the Ireland Act 1949 declares that “notwithstanding that the Republic of Ireland is not part of [Her] Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom.” It provides that “references in any Act of Parliament, other enactment or instrument whatsoever … to foreigners, aliens … shall be construed accordingly”. The 1949 Act was the UK’s response to Ireland’s declaration of a Republic, and its withdrawal from the Commonwealth. The purpose of section 2 was to maintain the status quo in the United Kingdom, by ensuring that the Irish state, and its citizens, retained the same legal position as independent Commonwealth states, and their nationals. Professor Ryan argued that it was not clear that section 2 could now be relied upon to claim specific legal rights. Irish citizens have been subject to UK immigration law since the Commonwealth Immigrants Act 1962 came into force on 1 July 1962. The core purpose of that Act was to permit control of immigration by Commonwealth citizens who lacked a personal connection to the United Kingdom. Its provisions concerning both control of entry and deportation were expressly extended to Irish citizens.194 Professor Ryan stated that in practice, it appeared that entry controls were not actually applied to travel from the Republic of Ireland after 1962, and neither were substantive limits placed on entry by Irish citizens arriving from elsewhere in the world. Deportation of Irish citizens did nevertheless occur under the 1962 Act, notwithstanding the practical difficulty of preventing persons subject to deportation orders from returning to the United Kingdom. Box 1 above sets out the provisions of the Immigration Act 1971, the Immigration (Control of Entry through Republic of Ireland) Order 1972 and its 2014 amendment. Irish citizens are treated as settled in the UK from the date they take up ordinary residence. This allows them to naturalize after five years’ continuous residence,195 and means that their children born in the UK are born British citizens.196 Professor Ryan also told us that the underlying position that Irish citizens were subject to immigration control had probably been obscured by Common Travel Area arrangements (including the original 1972 Order), and by Irish citizens having had EU free movement rights since 1973. |
Source: Written evidence from Professor Bernard Ryan (BUI0008) and the Immigration Law Practitioners’ Association (BUI0010)
127.David Davis suggested that the Government would be able to guarantee the rights of Irish nationals in the UK.197 However, when we pressed the Secretary of State for Northern Ireland to give a specific guarantee that the existing rights of Irish citizens would be maintained post-Brexit, he was less forthcoming:
“We have strong ties between the UK and Ireland that predate the EU and we remain fully committed to our obligations under the Belfast Agreement. We have no reason to suppose that the UK’s exit need affect them … It is very much the approach that we are taking into the negotiations.”198
128.Other witnesses suggested that the practical difficulties in ensuring that reciprocal rights were maintained might lie more on the Irish side, because of its continuing obligations as an EU Member State. Indeed, the Immigration Law Practitioners’ Association suggested that the EU might seek guarantees that entry into the Republic of Ireland from the UK would not become a back door to entry into the EU. Dr Soares said that, while the UK would be free to “do whatever it likes” in relation to the rights of Irish citizens, Ireland would be restricted in what it could do to reciprocate, for instance in relation to pension rights and child benefit rights: “it cannot be seen to be privileging UK citizens who are no longer within the EU unless, again, Ireland is able to argue for a special arrangement”.199
129.The Centre for Cross Border Studies called on the Irish Government to make clear to other Member States that the post-Brexit retention of these arrangements was not a matter of conferring preferential treatment on a departing Member State, but rather of the EU adopting a flexible approach to accommodate the specific needs of one of its Members in its geographical context, and in order to support the peace process in Northern Ireland.200
130.It is imperative that the longstanding rights of UK and Irish citizens to reside and work in each other’s countries be retained. We urge the Government to confirm that the rights of Irish citizens under domestic law will be maintained, whatever the outcome of the Brexit negotiations.
131.It is not a given that the EU will tolerate uncontrolled movement from the UK into the EU, via the UK-Irish border. Both the UK and Irish Governments must seek to convince EU partners of the necessity of maintaining the reciprocal rights enjoyed by UK and Irish citizens, both because of the unique nature of UK-Irish relations, and in view of the specific circumstances in Northern Ireland.
Other solutions
132.We asked our witnesses how the challenges identified above could be overcome. Ambassador Mulhall told us:
“The best possible outcome from an Irish point of view would be the status quo. It would be that the island of Ireland could continue to enjoy an open border, where people could move freely back and forth for various purposes—family, business, tourism et cetera—and that goods and services could also flow freely between the two parts of Ireland.”201
133.As we have seen, the consensus view of our witnesses was that the UK and Ireland needed to remain a customs-free area if the effect of Brexit on the land border was to be mitigated. None of the other potential solutions on offer is without difficulty.
Enhanced UK-Irish immigration cooperation
134.During the course of our inquiry, reports emerged in The Guardian that the UK Government was seeking to shift the front-line immigration control to Ireland’s ports and airports to avoid introducing a hard border between North and South.202
135.Many of our witnesses reacted to these reports with a mix of scepticism and incredulity. Bertie Ahern found the suggestion to be “frankly unbelievable”, as it showed a “total lack of understanding of how people think north and south in either tradition. It just would not happen”.203 Neither could David Ford see how the Irish authorities could be expected to police their ports and airports to stop EU citizens coming to Britain.204 The leader of the SDLP, Colum Eastwood MLA, agreed that there was no support for “the Irish Government taking on the immigration job of the UK Government”, both for practical and symbolic reasons.205
136.Some witnesses suggested that the UK Government might in fact have in mind a less overt (and less contentious) proposal to strengthen existing arrangements, whereby passengers arriving into Irish ports or airports from other EU countries have to show their passports, because Ireland is not in Schengen.206 Dr O’Connor suggested that the Irish authorities would be open to additional data-sharing, which would enable some tracking of people to see if they leave the Republic again, or whether they appear in the UK.207 Dr Hayward noted that Ireland already had stricter measures than the UK related to screening people on entry, in that immigration officers “can ask all passengers, including those from within the Common Travel Area, to produce identity documentation … A lot of this monitoring happens invisibly anyway.”208
137.Mike Nesbitt suggested that the situation where American customs could be cleared in the terminal at Dublin Airport, where “that piece of land has, in effect, been ceded to the United States”, might be the basis of a scheme to protect against people seeking to enter the UK via the Irish land border.209
138.The Secretary of State for Northern Ireland, who was quoted in the story in The Guardian, told us that the two Governments were examining how the Common Travel Area could be strengthened, particularly in terms of confronting terrorism and organised crime.210
139.Any enhanced cooperation between UK and Irish authorities, for instance in the field of information-sharing, in order to strengthen the Common Travel Area for mutual benefit, will be welcome. But it is not, in and of itself, enough to prevent a change to the current soft border arrangements. The UK Government needs to be aware of the risk of placing a disproportionate burden on the Irish authorities in providing a solution to issues arising from Brexit, and the negative political message that creating such a burden could convey.
Controls between Britain and Northern Ireland
140.We heard evidence that the only viable alternative to a harder land border was to introduce greater control of the sea boundary between Northern Ireland and Great Britain. Mike Nesbitt told us that the Troubles had demonstrated that it was not possible to secure the land border, and that therefore “the border will inevitably be at the ports and airports of Great Britain, from Cairnryan to Heathrow”. This, he said, “would disadvantage everybody travelling either way, but particularly the citizens of Northern Ireland making their way to the rest of the United Kingdom”.211 Colum Eastwood agreed that maintaining a border on the island of Ireland was practically impossible, and that the border would end up in ports and airports in Britain.212
141.Dr O’Connor, though, noted that full border checks would be unacceptable to many Unionists, as they would mean needing to show ID to move within the UK.213 Katy Hayward agreed, citing the then Labour Government’s unsuccessful attempts in the 2008 Borders, Citizenship and Immigration Bill to strengthen checks within the Common Travel Area, in particular at points of entry to and from Northern Ireland and Great Britain. The Bill was amended in the House of Lords to remove this provision because of concerns about internal UK checks.214
142.Political stability in Northern Ireland depends on the confidence of both communities that their interests are being respected. Just as any undermining of the current soft land border would be economically, politically and socially unacceptable, so strengthened checks for UK and Irish citizens at the sea boundary between Northern Ireland and Great Britain would be politically divisive and inherently undesirable. Other solutions must be identified, to ensure that the positive progress of recent years in developing UK-Irish relations and promoting stability in Northern Ireland is not undermined by Brexit.
Case studies of cross-border cooperation
143.The impact of Brexit is likely to be felt in a number of fields of cross-border cooperation. We focus here on two case studies: policing and security cooperation; and healthcare provision.
Police and security cooperation
144.The Police Service of Northern Ireland (PSNI) stated that its relationship with An Garda Siochána had never been better. A new Cross Border Policing Strategy had just been published, and a new Cross Border Joint Agency Task Force had been established. The PSNI stressed that continued cross-border cooperation was key to combating organised crime in Ireland.
145.While the PSNI asserted that Brexit would not adversely affect the culture of cooperation, it identified three principal potential risks:
- An inability to pursue wanted criminals in Ireland via European Arrest Warrants;
- Potential exploitation of the CTA by organised crime, in the event that UK immigration policies diverged from EU policy; and
- The loss of valuable investigation tools, including the Prüm database and Schengen Information System (SIS) II.
146.The first and third of these issues will be addressed in detail in the report of our Home Affairs Sub-Committee on the implications of Brexit for police and security cooperation: in this report we only touch on their specifically Irish aspects. In particular, the PSNI argued that European Arrest Warrants had proved vital in apprehending suspected terrorists and reducing the risk of flight. They were also essential to tackling lower levels of criminality such as burglary and traffic offences. If the PSNI were no longer able to use European Arrest Warrants, bilateral extradition procedures would be required to prevent suspects simply fleeing across the border to evade arrest.
147.David Ford, the former Northern Ireland Justice Minister, pointed out that there was no legislation in the Republic of Ireland to allow for extradition to the UK other than under the European Arrest Warrant.215 Mike Nesbitt agreed that the European Arrest Warrant had eliminated paperwork problems at the border which had resulted in suspected terrorists going free during the Troubles.216
148.The PSNI also warned that a divergence of immigration rules between the UK and the EU would create an increased risk of organised immigration crime and commodity smuggling. They cited the work of Operation Gull, through which 775 immigration offenders were intercepted in 2015/16.217
149.As for the third issue, the PSNI warned that Brexit could lead to a loss of access to SIS II unless a separate agreement could be negotiated. They noted that Ireland did not have access to the database at present, and so checks at Northern Ireland ports were key to ensuring dangerous persons did not travel on to Ireland or Great Britain undetected. The loss of access to the Prüm database would also present obstacles, although the PSNI argued that there would be an opportunity to develop bilateral agreements between the UK and Ireland.218
150.More broadly, the Centre for Cross Border Studies feared that a more tangible border would inevitably lead to increased levels of criminality, in the form of cross-border smuggling and terrorist violence focused on physical manifestations of the border.219 The PSNI also thought that any attempt to reinstate border checkpoints would be seen by extremists as a target for terrorist attacks.220
151.The Secretary of State for Northern Ireland told us that the UK Government was determined to maintain the current high level of cross-border cooperation on policing and security issues. The Government was focused on how these benefits could be retained post-Brexit, and he hoped that EU partners recognised that there were mutual benefits to such cooperation.221
152.Brexit has profound implications for the current high levels of cross-border police and security cooperation between the UK and Irish authorities. Our parallel report on Brexit: policing and security cooperation will consider the wider issues, but we note that, in the UK-Irish context, continued access to EU databases, and the ability to make use of the European Arrest Warrant, are vital if cross-border cooperation, and the fight against terrorism and organised crime, are not to be undermined.
Healthcare provision
153.Co-operation and Working Together (CAWT) is an organisation that, in partnership with health agencies on both sides of the border, seeks to provide an overarching framework for cross-border health care. CAWT told us that cross-border cooperation was increasing, helped by the availability of EU funds. Between 2003 and 2015, over €40 million was invested in cross-border health and social care initiatives via CAWT, with further project applications totalling €53 million submitted in relation to acute hospital services, prevention and early intervention, tackling health inequalities and other needs.
154.CAWT expressed concern at post-Brexit uncertainty in relation to cross-border recognition of qualifications, mobility of staff, cooperation of ambulance services and others in response to major emergencies, and the maintenance of ad hoc cross-jurisdictional communication.222
155.CAWT’s Chief Officer, Bernie McCrory, told us that patients in Cavan and Monaghan had formerly had to travel to Dublin for Ear Nose and Throat (ENT) treatment, with some children waiting four years for their first appointment. The appointment of two extra ENT consultant surgeons based in the border region of Northern Ireland meant that they were able to conduct rotations at a hospital across the border, with patients from the Republic also able to cross the border for more complex treatment. This created economies of scale in managing the scarce skill base of clinicians—a particular challenge in the border regions, given that young doctors gravitated towards regional centres.223
156.Ruth Taillon praised the work of CAWT in encouraging health authorities to work together. She pointed out that children regularly crossed the border for cardiac surgery in Dublin, while a new radiology unit in Derry was a crossborder initiative funded, staffed and available to patients on both sides of the border. She argued that such initiatives were under threat because of their reliance on EU funding.224
157.The increased and successful provision of cross-border healthcare is a demonstrable success story of effective cross-border cooperation. The launch of such projects has largely been dependent on the provision of EU funds, and it is vital that these and future projects are not placed in jeopardy by Brexit. Authorities on both sides of the border need to give assurances that these services will be funded in the future, that any practical issues arising from Brexit (such as the cross-border recognition of qualifications) are managed, and that formal and informal cross-border communication continues. It would be a tragedy if such cooperation, which improves peoples’ lives, were to wither on the vine.
138 This was a provisional boundary, which was subsequently confirmed by the Parliaments in London, Belfast and Dublin in 1925. The border location has remained static ever since.
142 The Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014 (SI 2014/2475)
150 Written evidence from Fianna Fáil (BUI0005), citing the report of the Northern Ireland Affairs Committee, Northern Ireland and the EU referendum (First Report, Session 2016–17, HC 48)
157 See para 247 below. The constraints of the Common Commercial Policy are explored in more detail in the report by our EU External Affairs and Internal Market Sub-Committees into Brexit: the options for trade.
171 See paras 144–152.
189 Written evidence from the Centre for Cross Border Studies (BUI0012); Q 58 and Q 61 (Anthony Soares)
191 Written evidence from Professor Derrick Wyatt (BUI0001) and the Immigration Law Practitioners’ Association (BUI0010)
194 Commonwealth Immigrants Act 1962, sections 1(4) and 6(3).
195 British Nationality Act 1981, section 6 (1)
196 British Nationality Act 1981 section 1(1)(b)
202 Henry McDonald ‘Britain to push post-Brexit UK immigration controls back to Irish border’, The Guardian (9 October 2016): https://www.theguardian.com/politics/2016/oct/09/britain-to-push-post-brexit-uk-immigration-controls-back-to-irish-border [accessed 30 November 2016]
214 Q 40. See also written evidence from Professor Derrick Wyatt (BUI0001) and the Immigration Law Practitioners’ Association (BUI0010).
217 See above, paras 120–125.