14 - The Common Travel Area

Summary

This chapter considers the relationship between the Protocol and issues of identity. Brexit, in some accounts, does not change the 1998 Agreement’s citizenship provisions. The people of Northern Ireland remain able ‘to identify themselves and be accepted as Irish or British, or both, as they may so choose’. It does not alter the obligation on the UK government to maintain rigorous impartiality between these identities in Northern Ireland’s governance. On a deeper level, however, questions of identity in Northern Ireland are central to the idea of Brexit and have profoundly shaped the reality of Brexit.

14.1 Introduction

The Common Travel Area (CTA) is an arrangement among the UK, the Crown Dependencies (the Bailiwick of Jersey, the Bailiwick of Guernsey and the Isle of Man) and Ireland by which British and Irish citizens can move freely and reside in either jurisdiction and enjoy associated rights and privileges, including the right to work, study and vote in certain elections, as well as to access social welfare benefits and health services. These arrangements have been disrupted by Brexit even though these arrangements long preceded Ireland’s and the UK’s membership of the EU.

The retention of the CTA was largely uncontroversial for either state or for the EU when the UK chose to leave the EU. Nonetheless, Brexit has had two major effects: first, it heightened its visibility as it received considerable political and media attention in the early stages of the Brexit negotiations; second, Brexit crystallized the CTA through formalizing it while both governments and the EU have allowed for its continued development. Thus, the CTA has moved from being a highly informal arrangement to becoming a cluster of laws, with an intergovernmental Memorandum of Understanding (MOU) and the Protocol and legislation most notably found in the Brexit statutes of Ireland and the UK.¹ It is a distinct legal arrangement, recognized by and connected to but operating separately from the Withdrawal Agreement (WA) and the Trade and Cooperation Agreement (TCA) which should insulate it to some degree from concerns surrounding the Protocol.

14.2 The CTA Pre-Brexit

The CTA emerged over time and almost by default following the creation of the Irish state in 1922. Irish citizens were not classified as aliens under the UK British Nationality Act 1948,² and in Ireland a Statutory Instrument exempted British citizens from the Aliens Act 1935, with it remaining in place after the Immigration Act 2004.³ Citizens from either state were not subject to routine immigration controls and enjoyed extensive rights and privileges in the other state; so, in effect, there were no additional formalities for citizens from either state moving to live and work in the host state.⁴ This largely informal arrangement was disrupted only during the Second World War, being renewed by an exchange of letters between the governments shortly thereafter.⁵ The CTA seemed to work well for migrant citizens from both states, being largely invisible.

The first formal recognition of this arrangement was, ironically, in the 1999 EU Treaty of Amsterdam. Article 2 of what is now Protocol 20 noted that ‘the United Kingdom and Ireland could continue to make arrangements between themselves relating to the movement of persons between their territories (“the Common Travel Area”)’. The CTA was exempt from the application of those EU laws giving effect to Europe without Frontiers (Schengen) as it was itself an area without frontiers for the two islands. The exemption was justified by both geography and politics, given that the 1998 Agreement was only one year old at that stage and the demilitarization of the land border between Northern Ireland and Ireland was being effected.⁶

14.3 Brexit and the CTA

14.3.1 The Protocol

Echoing Protocol 20 of the Treaty on the Functioning of the European Union (TFEU), Article 3(1) of the Northern Ireland Protocol notes that the two states can continue to make arrangements under the CTA, subject to two related caveats. First, both states must fully respect the rights of natural persons conferred by EU law and second, the UK has to ensure that the CTA can apply without affecting the obligations Ireland has under EU law, in particular in relation to free movement to, from and within Ireland for EU citizens and their family members, irrespective of nationality.⁷ Subject to this caveat, it will be possible for British citizens coming to Ireland to enjoy more expansive rights than those of EU citizens living in Ireland. This retains the status quo, as British and Irish citizens have always had privileges that went further than those of other EU citizens whom they hosted. The difference is that British citizens are now third-country nationals under EU law and that the EU in the WA accepts the logic that led to Protocol 20 TFEU and the British/Irish exemption from Schengen. Ireland will remain outside Schengen, choosing an area without frontiers with the UK instead. This means that Irish, as well as British, citizens will be subject to passport controls on entry to other EU members.

14.3.2 The CTA Memorandum of Understanding

One key question for the UK–EU negotiations leading to the WA was to determine what encompassed the CTA.⁸ This question did not arise so starkly at the time of the Amsterdam Treaty, but, given the need to determine relations with the UK as a third country, the EU needed to know what it was acknowledging. To gain greater recognition for the CTA, it had to be formalized. This led to the MOU in May 2019 between Ireland and the UK.⁹ The MOU states that it builds on the ‘excellent and highly valued’ co-operation that already exists under the CTA.¹⁰ Both governments published a joint statement alongside the MOU asserting their mutual commitment to maintaining the CTA in all circumstances.¹¹ The scope and limitations of these expansive statements can then be seen in the remainder of the MOU and the fact that it expressly says that it is not legally binding.¹²

The MOU clarified that the CTA consists of two elements. First (see Section 14.3.3 for the second), the CTA itself is concerned with the ability to move freely.¹³ It was this ability to cross borders that came to the fore when negotiations began on Brexit, as the issue of how the border for goods was to be secured between the UK and the EU had to be determined. The CTA ensures no routine migration controls for Irish citizens at UK borders, although there may be checks for certain purposes,¹⁴ and passengers are required to produce ID when passing through Irish airports.¹⁵ There are no border posts at the land border with Northern Ireland, seen as an essential underpinning for, and consequence of, the 1998 Agreement. It is an invisible border.¹⁶ These aspects of free movement are referred to only obliquely in legislation in both jurisdictions, however, and neither jurisdiction confers a positive right in these respects. Hence in the UK statute, Irish citizens do not require leave to enter or remain in the UK, and in the Irish statute British citizens are not included in the definition of alien, or, more recently, non-national.¹⁷ It is no wonder that Hogan J (as he then was) referred to the CTA as requiring ‘legal archaeology’.¹⁸

14.3.3 The Memorandum of Understanding: Rights and Privileges

The second, and significant, aspect of the MOU is its clarification of the extensive reciprocal rights and privileges for British and Irish citizens in each territory which both governments state are of immense importance to them and, notably, will continue to evolve over time.¹⁹ Thus, the MOU, while formalizing arrangements, suggests both durability and flexible evolution. This future evolution was also allowed for under the Protocol, concluded six months later. These newly codified rights and privileges show the extent to which the CTA is not just concerned with travel across borders. As they are reciprocal, they should not be changed unilaterally, although they do not map exactly onto each other – a product in part of scattered legal bases and variation in legal frameworks as between the two states.²⁰ Both governments commit to taking any necessary steps to ensure provision of these rights and privileges and clarity around their availability for citizens and service providers, up to and including legislation or other bilateral agreements.²¹

The key reciprocal rights and privileges set out in the MOU are, first, the right to reside, a right which the two governments are to ensure that they continue to provide for in statute. The UK government did this in 2020; the Irish legislation remains more oblique: British citizens are not classified as non-nationals.²²

Second, the rights to work and to be self-employed are protected. As Irish and British citizens are regarded as settled in their host state, all that is required is proof of citizenship in order to secure a British national insurance number or an Irish personal public service number and to take up employment or set up a business. No special permissions are required. A more complex question is the mutual recognition of qualifications.²³ Both governments commit to comprehensive measures allowing for such recognition in line with national law.²⁴ Urgent calls for an overarching bilateral agreement or programme have not yet led to action.²⁵ Instead, with 182 regulated professions and regulation of them delegated, this is a slow and complex process.²⁶ In many instances, the relevant professional body needs to act; for example, the Law Societies of Ireland and England and Wales reinstated prior mutual recognition arrangements (governed by EU law), allowing admission of their respective solicitors without the need to take qualifying examinations.²⁷

Third, the right to health care is protected: citizens resident in the host state have the right to access emergency, routine and planned (specialized) publicly funded health services on the same basis as citizens of that state.²⁸ The two governments signed an additional MOU in December 2020 recognizing that health care would be available irrespective of citizenship, an MOU being necessary given that EU cross-border health care for residents would no longer be available.²⁹ The MOU addresses posted workers, frontier workers, students, state reimbursement arrangements and data protection.

Fourth, the right to social protection is provided for. This is one of the very few areas under the CTA where the governments concluded a number of (binding) agreements, most recently in 2019.³⁰ It sets out a principle of equality of treatment for the citizens of both states and their families. It lists the main benefits and allowances available in both jurisdictions, including any amendments to them in the future, while expressly excluding any rights or benefits arising under EU law, underlining the fact that the CTA exists in parallel to Irish rights and obligations as an EU member state.

Fifth, the right to housing is addressed: the CTA gives a right of access to social housing, including supported housing and homeless assistance, on the same basis as citizens of the host state.³¹

The principle of equality of treatment also applies in the realm of education, the sixth area mentioned in the MOU.³² It extends beyond access to all levels of education and training to associated student support, on a reciprocal basis.³³ The UK has left the ERASMUS scheme for students to study at another EU university for part of their degree.³⁴ The Irish government has offered to extend the scheme to all Northern Irish students (whether or not they are Irish citizens)³⁵ with discussions ongoing with Irish higher education institutions as to how best to implement this commitment.

Finally, the CTA confers political rights, particularly important in Northern Ireland as those who choose to identify as Irish under the 1998 Agreement can exercise the right of franchise on the same basis as those who identify as British. Citizens resident in either host state can register to vote in both parliamentary and local elections on the same basis as citizens of that state.³⁶

Thus, the scope of the CTA extends far beyond the freedom to travel. It encapsulates a significant number of social rights and the right to vote. While the MOU and the Social Security Convention have codified these arrangements, the underlying legislation remains scattered and can be either extended or reduced. The CTA remains fundamentally a pragmatic arrangement, albeit one now framed with an explicit and shared commitment by both governments to its importance. At the same time, it is not framed in terms of fundamental rights, it is legally scattered and it is limited to Irish and British citizens.³⁷

14.3.4 CTA Governance and Visas

Under the MOU, there is an oversight committee of officials that is to meet at least annually.³⁸ This complements the CTA Forum on Immigration Matters, which co-ordinates on visa and migration by citizens of other states. The Forum, consisting of senior officials from both states, meets at least twice a year, reporting to respective ministers on an ongoing basis.³⁹ Its operational and policy sub-groups share information on operation and enforcement and drive implementation of the programme of work on rendering secure external borders.⁴⁰ The operation of these bodies remains largely opaque.⁴¹ Each state enforces the other’s terms and conditions for entry for other citizens and works closely on protecting their borders.⁴² While there is close collaboration on border controls, the arguably greater significance of the CTA for the Irish government means that it has been seen to align itself with UK policy.⁴³ The states have a common visa policy for Indian and Chinese citizens and their separate visa policies are broadly consistent.⁴⁴ The lack of formality at the border can catch the unwary non-Irish or non-British citizen moving between the two states, especially across the invisible land border.⁴⁵

14.4 Conclusion

The issue of borders has grown more significant as Brexit emphasizes the external borders between the EU and the UK. Brexit drew attention to the CTA and its continuation was relatively uncontroversial. It is an exception to new constraints on free movement of people between the EU and the UK, allowing British and Irish citizens to move freely and to live and work in each state. The greatest source of concern is the land border which, following the 1998 Agreement, has become largely invisible, or, at least, frictionless.⁴⁶ The total number of person border crossings is around 110 million annually, with 15 main crossings on the 500 km border.⁴⁷ The frequency of border crossings (both land and air) highlights the strong basis for continuing this arrangement defined more by pragmatism than by law.

The CTA goes far beyond movement across borders, however. It is primarily concerned with facilitating citizens from the two states living and working in each state on a more-or-less equal basis. The earnest commitment of both governments to the significance of the CTA set out in the MOU is undermined by the fact that the MOU itself is not legally binding and by the complexity of the domestic legal rules in both states underpinning it. Nonetheless, the MOU does provide greater clarity as to the CTA principles and core rights and privileges. As a discrete, long-standing pragmatic arrangement between the two states that is 100 years old next year, the CTA is relatively robust and is likely to survive the political and legal challenges currently surrounding the borders between the EU and the UK.