Written evidence – Professor Bernard Ryan (BUI0008)

Submission to House of Lords European Union Committee inquiry on Brexit: UK-Irish Relations

Bernard Ryan, Professor of Migration Law, University of Leicester

This paper addresses the implications of United Kingdom withdrawal from the European Union for the British-Irish relationship, in so far as concerns (1) the Irish land border, (2) the common travel area and (3) the status of Irish citizens in the United Kingdom.

It draws upon a briefing paper on these questions produced by the author for the Immigration Law Practitioners’ Association in May 2016.[1] It also relies upon a previous publication by the author examining the history of the British-Irish common travel area up to 2001.[2]

Summary

The main points made below are as follows:

• The greatest risk to the current freedom of travel across the Irish land border is that the United Kingdom will be outside the EU customs union and/ or the single market in goods. To avoid that, special arrangements for the island of Ireland could be sought within Brexit negotiations.
• The British and Irish Governments are likely to want to continue with common travel area arrangements, particularly because of the difficulty of operating effective immigration control at the Irish land border.
• Protocols 19 and 20 to the Treaty on the Functioning of the European Union guarantee Ireland’s right to continue with common travel area arrangements, and not to join Schengen, after Brexit.
• In the event of a ‘hard Brexit’, EU free movement rights in the Republic of Ireland would pose a significant issue for the common travel area. This issue could be resolved through visa exemptions for EU/ EEA/ Swiss nationals within United Kingdom immigration policy. For other persons, a right to travel to the United Kingdom on the basis of Irish residence documents could be considered.
• The need to revise common travel area arrangements, and the wider political relationship between the United Kingdom and Ireland, make this an opportune moment to consider a comprehensive common travel area agreement.
• As Irish citizens are currently subject to immigration control in the United Kingdom, a special post-Brexit status for them will require a general amendment of the Immigration Act 1971. It would not be sufficient solely to amend common travel area legislation, as that would not protect Irish citizens who entered from places other than the Republic of Ireland.
• Any change to immigration law should include consideration of the treatment of Irish citizens within British nationality law.
• A ‘hard Brexit’ would require legislation to protect the social and economic rights of Irish citizens which are currently conferred upon all EU/ EEA/ Swiss nationals.  

1. The Irish land border

General comments

There are inherent difficulties with comprehensive state control upon traffic and travel across the Irish land border. The border does not correspond to geographical barriers such as mountains or rivers, and much of it is in rural areas. Moreover, because the border cuts across a large number of roads, any controls interfere with local connections of a personal and business nature. This second factor has acquired particular importance since the normalisation of cross-border travel, subsequent to the Belfast Agreement of 1998.

Customs controls were operated by both states from 1923, until their abolition on 1 January 1993 as a consequence of the EU’s completion of the single market. Security checkpoints operated on both sides of the border during the Northern Irish conflict, from 1970 to the late 1990s. In 2001, the Republic of Ireland[3] operated systematic controls at the Irish border to curtail the spread of foot and mouth disease.

In contrast, there has generally been reluctance to operate immigration controls at the Irish border. The historic United Kingdom 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. Irish Governments have taken a similar view of the difficulty of immigration control at the Irish border. Since 1997, however, the Republic’s authorities have operated selective controls upon those arriving by land from Northern Ireland.

The implications of Brexit

The greatest risk to the current freedom of travel across the Irish border is that, after Brexit, the United Kingdom will be outside the EU customs union and/ or the single market in goods. In that situation, Ireland would potentially be obliged under EU law to have controls on goods imported from the United Kingdom. The United Kingdom could be expected to introduce its own controls in response.

If this outcome is in prospect, there is a case for seeking special arrangements on the island of Ireland. One approach would be a special arrangement for Northern Ireland and the Republic of Ireland in relation to the customs union and/or single market, so as to reduce the need for new controls. An alternative would be to create an option for the United Kingdom and the Republic of Ireland not to operate customs controls at the Irish land border, on the basis of a bilateral arrangement.

2. The common travel area

Overview

Common travel area arrangements between the United Kingdom and the Irish state date from the foundation of the Irish state. The durability of those arrangements reflects the recognition on the part of the British and Irish authorities of the difficulty of operating effective immigration control at the Irish land border. A second factor is the desire to enable freedom of travel between all parts of the United Kingdom and 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 United Kingdom 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. Its Article 3 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

Of particular significance is an exemption within Article 4 to this ‘deemed leave’ arrangement. In its original version, Article 4 of the 1972 Order exempted Irish citizens, and only them. That provision was however 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.[4]

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 co-operate in various ways in immigration control. There is a high degree of co-ordination of visa policy: at present, 103 states are subject to visa requirements in both states, seven in the United Kingdom alone, and seven in the Republic of Ireland alone. The states each make provision in their immigration laws for refusal of entry to a person who intends to travel to the other state and who would not be admitted to there. Since 2014, the two states have had a joint British-Irish visa for Chinese and Indian visitors.

Against this background, it must be considered unlikely that either of the British or Irish Governments will wish Brexit to lead to a disruption of common travel area arrangements.[5]

The continuation of common travel area arrangements appears compatible with EU law. Protocol 19 to the Treaty on the Functioning of the European Union provides that Republic of Ireland and the United Kingdom are not automatically covered by Schengen rules, or by proposals to develop them. Protocol 20 allows the United Kingdom and Republic of Ireland to “continue to make arrangements between themselves relating to the movement of persons between their territories (‘the Common Travel Area’)”. 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.

Brexit and EU free movement rights

If, after Brexit, the United Kingdom is not fully bound by EU free movement of persons rights (here termed a ‘hard Brexit’), complex issues will arise from the exercise of those rights in the Republic of Ireland. After Brexit, EEA and Swiss nationals, and their family members irrespective of nationality, will continue to have rights to enter the Republic of Ireland. Under the current common travel area arrangements, there would not be any legal obstacle to their then travelling to the United Kingdom by air, sea or land, without passing through immigration control. In the case of persons subject to future visa requirements in the United Kingdom, carrier checks by airlines or ferry companies might create a practical barrier. Even then, the option of entering the United Kingdom by land through Northern Ireland would remain. 

A version of this situation does arise under the current common travel area arrangements, in the case of persons who are not covered by EU free movement rights, and who are visa nationals in the United Kingdom. Nevertheless, the dilemma posed by these cases would be greater in the event of a ‘hard Brexit’, for two reasons.

Firstly, the group of persons with residence in the Republic of Ireland and potentially lacking a right to enter the United Kingdom would be larger. That can be seen from the Irish census results concerning the nationality of persons resident in the Republic of Ireland. In 2011, there were 254,505 resident EU nationals from states other than the Republic of Ireland or the United Kingdom. That compares to 177, 593 from non-EU countries, many of whom will actually have had EU rights of residence and travel.[6]

Secondly, in the event of a ‘hard Brexit’, EU/ EEA/ Swiss nationals and their family members could enter the Republic of Ireland in order to circumvent United Kingdom restrictions. At present, the Irish immigration authorities can refuse entry to someone who is not protected by EU rights, and whom they consider is likely to travel on to the United Kingdom, but who would not be admitted there. It is however unlikely that that power could be relied upon in the same way in relation to persons exercising EU rights, post-Brexit.

The simplest solution to these issues would be for all EU/ EEA/ Swiss persons to be exempted from United Kingdom visa requirements for short-term stay. In the event of a ‘hard Brexit’, this may be an attractive option more generally for the United Kingdom, in order to promote tourism and business visits from the EU, and to guarantee visa-free travel by British citizens to the Schengen zone.

To the extent that any EU/ EEA/ Swiss nationals do not have a visa exemption in the United Kingdom, an alternative would be an exemption for those who actually reside in the Republic of Ireland. This appears less practical as a solution, not least because it would oblige those persons to obtain residence documentation in the Republic, something which would not otherwise be necessary.

It would be more difficult to use visa policy to cater for family members with EU free movement rights who were not themselves EU/ EEA/ Swiss nationals, and who were simultaneously visa nationals in the United Kingdom. In this case, a right of travel based on residence documentation issued in the Republic of Ireland appears the best way forward.

Brexit: the common travel area exemption

In the event of a ‘hard Brexit’, it will be necessary to revisit the United Kingdom’s common travel area legislation. As explained above, Article 4 of the Immigration (Control of Entry through Republic of Ireland) Order 1972 currently contains an exemption for all those with rights deriving from EU free movement law in the United Kingdom. That would make no sense in the event that free movement rights no longer applied in the United Kingdom.

One option would be to restore the original exemption for Irish citizens alone. We will see in section 3 below that there are wider issues concerning the lack of a clear status for Irish citizens in United Kingdom immigration law. For that reason, it would be preferable that this question be addressed together with a more general clarification in legislation of the status of Irish citizens.

A common travel area agreement?

A further point which may be raised is the possibility of a comprehensive common travel area agreement. One reason the timing appears opportune for such an agreement is that, in the event of a ‘hard Brexit’, adjustments will anyway have to be made to the common travel area arrangements to cater for EU/ EEA/ Swiss nationals, and Irish citizens.  Another is that, as a by-product of the normalisation of relationships between the two states since 1998, the two governments now publicise their co-operation over immigration control. A further potential benefit of such an agreement would be to give greater certainty to all those from, or living in, Northern Ireland as to their future position in each of the two states. 

Any such agreement could address some or all of the following points:

        the extent to which immigration control is to apply to travel by each of air, sea and land

        entry and residence rights of British and Irish citizens to the other state

        for those with a current right of residence in one state, the right to travel to the other

        for those with a current visa or visa exemption in one state, the right to travel to the other

        co-operation over the exclusion from the common travel area of individuals who are not British and Irish citizens

        co-operation over visa policy

        responsibility for international protection applications.

3. The status of Irish citizens in the United Kingdom

Ireland Act 1949

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 goes on to provide that “references in any Act of Parliament, other enactment or instrument whatsoever … to foreigners, aliens [etc..] … shall be construed accordingly.”

The 1949 Act was the United Kingdom’s response to the Irish state’s decision to declare itself a republic that year, which meant its definitive 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.

It is not clear that section 2 may now be relied upon to claim specific legal rights. Contemporary legislation is highly unlikely to differentiate between ‘aliens’ or ‘foreigners’ on the one hand, and British subjects or Commonwealth citizens on the other. At most, section 2 now reflects a political understanding within the United Kingdom, which may make a difference to the content of other legislation.

The clearest example of that ‘non-foreign’ understanding of the status of Irish citizens is the legislation relating to political rights, which treats them equivalently to the nationals of Commonwealth states. Specifically, resident Irish citizens and Commonwealth citizens have the right to vote in all elections, to stand for election to the House of Commons, and to be members of the House of Lords.

Irish citizens in immigration law

Irish citizens have been subject to British immigration law since the Commonwealth Immigrants Act 1962 came into force on 1 July 1962. The core purpose of that legislation 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.[7]

In practice, it appears 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 though occur under the 1962 Act, notwithstanding the practical difficulty of preventing persons subject to deportation orders from returning to the United Kingdom.

Under current law, Irish citizens are subject to immigration control under the Immigration Act 1971. The starting-point of the 1971 Act is that British citizens, and a small number of other Commonwealth citizens, have a right of abode in the United Kingdom. Those without a right of abode – i.e. the rest of the world, including Irish citizens – require leave to enter, or to remain in, the United Kingdom. 

The underlying position that Irish citizens are subject to immigration control has probably been obscured by common travel area arrangements (including the original 1972 Order, referred to above) and by Irish citizens having had EU free movement rights since 1973.

If Irish citizens are to have a special status after Brexit, that will need to be written into immigration law. Within the current legislation, that would appear to require an amendment to the Immigration Act 1971. It would not be sufficient to revert to the position set out in the original 1972 Order, as that would only protect entry from the Republic of Ireland, and not entry from elsewhere in the world.

Irish citizens and nationality law

If Brexit leads to a modification of the immigration position of Irish citizens, then it would be desirable that parallel consideration be given to the implications for the acquisition of British citizenship.

Within nationality law, a key question is whether a person is ‘settled’. That term is defined to mean that a person is ordinarily resident in the United Kingdom without any limit on the duration of their stay. The administrative practice is that Irish citizens are treated as ‘settled’ in the United Kingdom from the date that they take up ordinary residence.[8] This is in contrast to the position for persons with other nationalities, who can become settled only once they obtain the EU right of permanent residence (after five years) or indefinite leave to remain (after a minimum period of residence which is five years in some cases, and longer in others).

The consequences of this practice are twofold:

-          Irish citizens may naturalise after five years’ continuous residence, whereas other persons must reside for a minimum of one year after becoming settled (i.e. an absolute minimum of six years’ residence)

-          Children born in the United Kingdom to Irish citizens can readily acquire British citizenship. If an Irish citizen parent is resident on the date of birth, the child acquires British citizenship automatically. If the parent takes up residence while the child is a minor, an application for British citizenship may then be made.

The classification of Irish citizens as ‘settled’ from the date of residence lacks a clear foundation in legislation, however. It does not seem possible to base it on the Ireland Act 1949, as that does not address immigration status. In the past, an argument might have been based on the common travel area exemption, which was without time limits. As we have seen however that never applied to Irish citizens entering from elsewhere in the world, and was dispensed with in 2014.

Social and economic rights

At present, Irish citizens have a small number of social and economic advantages over other EU/ EEA/ Swiss nationals in the United Kingdom. One is that residence elsewhere in the common travel area, including in the Republic Ireland, counts towards the ‘habitual residence’ test of eligibility for non-contributory benefits in the United Kingdom.[9] Another is that employers and landlords may rely upon Irish birth certificates and adoption certificates, rather than a passport, in evidencing a right to work or reside in the United Kingdom.

Most economic and social entitlements of Irish citizens in the United Kingdom currently arise from their position as EU citizens, however. Leading examples are the use of travel documents to satisfy employer checks of the right to work, and landlord and DVLA checks of the right to reside. In the event of a ‘hard Brexit’, a number of the rights and advantages conferred upon all EU/ EEA/ Swiss nationals would probably be removed. If Irish citizens are to have a special status, it would be necessary to ensure that these rights and advantages continued to benefit them.

30 September 2016