No Threat to the Common Travel Area from the UK
While the focus on Irish matters in the Brexit negotiations has been on future border arrangements between the Republic and Northern Ireland, the implications for the Common Travel Area (CTA) are starting to get more attention. The issue has been raised, in particular, by the Armagh born, Labour MP, Conor McGinn. He is seeking assurances that the present regime can continue, post Brexit. It is also a question which is exercising the minds of many of the over 500,000 Irish born (North and South) who live on the island of Britain. Any changes in the CTA would be likely to have negative implications for the Good Friday (Belfast) Agreement which was signed against the background of the CTA.
The CTA has never been fully defined in law but is based on a series of conventions, supported in some areas by legislation whereby Britain and Ireland confer rights on each other’s citizens which long predate the entry of both States into the European Union (or its predecessor the EEC). While there is some overlap between the rights enjoyed under the CTA and the EU freedom of movement, the CTA has a much wider remit.
Apart from the bilateral British/Irish arrangements, the CTA was also provided for in Protocol 20, annexed to the Treaty on the Functioning of the EU (1992).
Protocol 20 allows that UK and Ireland can ‘continue to make arrangements between themselves relating to the movement of persons between their territories (‘the Common Travel Area’)’.
While it is clear that this Protocol will fall once the UK exits the EU, both the UK and the EU have expressed general support for the continued operation of the CTA.
The UK Position Paper on “Northern Ireland and Ireland”, issued on 16 August, makes it clear that the UK wishes to maintain the full current arrangements of the CTA. The UK paper states that current rights enjoyed by British and Irish citizen include the following:
- the right to enter and reside in each other’s state without being subject to a requirement to obtain permission;
- the right to work without being subject to a requirement to obtain permission;
- the right to study;
- access to social welfare entitlements and benefits;
- access to health services; and
- the right to vote in local and parliamentary elections.
In addition, the UK has made it clear that it does not view the open border, under the CTA, between the Irish Republic and Northern Ireland as a potential backdoor which could help to thwart any new UK immigration controls on other EU citizens. The UK pointed out that other EU citizens will continue to be free to travel directly to the UK, visa free, post Brexit, and that any new restrictions will rely primarily on curbs on EU citizens entering the UK Labour market and/or accessing the social welfare system.
This is a very open and progressive approach to the CTA. It builds on assurances, given earlier by Brexit Secretary David Davis and Prime Minister Theresa May that the UK Government intended to preserve the full range of entitlements in the CTA. Speaking in the House of Commons on the debate to trigger Article 50, Davis said that the UK intended “without any qualification” to retain the CTA with Ireland after it leaves the European Union.
In essence, this means that the UK plans fully protect the position of Irish citizens in the Ireland Act 1949. The 1949 Act states “that, notwithstanding that the Republic of Ireland is not part of His 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 or in any colony, protectorate…..”
The UK Government has also committed itself to ensuring that the rights conferred by the CTA will be enshrined in any final EU/UK treaty.
The approach of the EU to the CTA, on the other hand, has not been anything like as explicit as the British offer. It produced its own paper, “Guiding Principles for the Dialogue on Ireland/Northern Ireland”. This is a very poor document. It offers no actual proposals on the future Northern Ireland/ Republic border. The former Irish Minister for Justice, Michael McDowell, rightly described it as “glib”. In the paper, the EU Task Force takes a more minimalist approach to the CTA which it describes in the following terms:
“The Common Travel Area is a long-standing arrangement between Ireland and the United Kingdom, predating either country’s accession to the Union, which enables Irish and British citizens to travel and reside in either jurisdiction without restriction and provides for associated rights and privileges in both jurisdictions.”
It goes on to state that continuation of the CTA arrangements, in conformity with European Law, should be recognised. It is certainly not nearly as forward a position as the UK. There is a further restriction contained in the EU negotiating guidelines which states that anything on Ireland “must maintain the integrity of the Union’s Legal Order”. This means that the EU is hedging its bets somewhat. However, there is no reason, at present, to believe the EU will be particularly difficult on this matter. In fact, agreement on the CTA should be one of the less difficult parts of Brexit.
The main danger to the CTA would be in a scenario where there was no deal between the EU and the UK and the EU authorities took a very punitive attitude to the UK, post Brexit. However, that would place the Irish Government in an impossible position and it is highly unlikely that the EU would go down that road.
Therefore, it would seem that the fears of Conor McGinn are not warranted at this stage.