British-Irish agreement on the future of the Common Travel Area offers much-needed clarity

In May 2019, the governments of Ireland and the United Kingdom have signed a Memorandum of Understanding to affirm the continuation of the Common Travel Area (CTA) arrangement that is currently in place between the two countries. On the basis of the Common Travel Area arrangement, Irish and British nationals benefit from a number of reciprocal rights and privileges, most importantly the right to entry and the right to take up residence in the other country. Although the extensive arrangement has been in place for nearly a century, it has never before been formalized. However, due to Brexit, freedom of movement is no longer taken for granted, which led to a willingness to confirm the existing arrangement.

In this article, it will be explained what the Common Travel Area entails and how it came into being. It will also be discussed how the newly signed Memorandum of Understanding will affect the Common Travel Area arrangement in future.

The origins of the Common Travel Area arrangement

In practice, freedom of movement has been the norm between the United Kingdom and Ireland ever since the founding of the Irish Free State in 1922. Unlike other free movement areas, it was not established through a comprehensive treaty, but through a series of mutual agreements and subsequent implementation in national legislation. This entailed that external border policies were harmonized between the two countries, which in turn made it possible to establish internal freedom of movement. Although freedom of movement was restricted during the Second World War period for security reasons, it was reinstated secretly through an exchange of letters between the two governments in early 1952.

On the British side, a special status was granted to Irish nationals on the basis of the British Nationality Act of 1948, which stated that any British law would have the same effect for Irish nationals as it would have for British nationality. In other words, nationals of both countries were to be treated equally. This provision was further consolidated by the Ireland Act of 1949, which stated that the Republic of Ireland would in principle not be considered as a foreign country for the purpose of any law in force in the United Kingdom. The question remains what the effects of this guiding principle are in practice. Firstly, arrivals from Ireland do in principle not require leave to enter the United Kingdom, although there are numerous exceptions to this (most importantly non-nationals who require a visa to enter). Secondly, Irish nationals arriving from Ireland have in practice the right to remain in the United Kingdom for an unlimited period of time, although a clear legal basis for this practice seems to be lacking. Thirdly, Irish nationals residing in the United Kingdom have the right to participate in elections. Fourthly, they are entitled to social security rights (e.g. access to healthcare and housing benefits).

On the Irish side, there is no generic provision in force similar to the British ones. Instead, British nationals are in principle exempted from Irish immigration law and can therefore freely remain in Ireland. Next to that, British nationals as well as non-nationals who enter Ireland from the United Kingdom are in principle exempted from leave to enter, although also in the Irish case, numerous exceptions apply. In Ireland, voting rights for resident British nationals are restricted to local and national parliamentary elections. In addition to that, British nationals are entitled to social security rights on the basis of reciprocity.

The Common Travel Area and Brexit

The prospect of Brexit makes the Common Travel Area of paramount importance for the future of British-Irish relations. As Ireland and the United Kingdom are currently EU Member States as well as CTA Member States, their nationals are doubly covered for a wide range of cross-border affairs. However, if Brexit becomes a reality, they can only rely on CTA provisions in this matter. Therefore, omissions of the CTA arrangement are now coming to light. For example, freedom of movement and settlement is de iure only applicable to Irish nationals who move to the United Kingdom from Ireland. Irish nationals who move to the United Kingdom from another country are currently covered by the provisions of EU law.

Next to that, the CTA arrangement does currently not cover access to higher education institutions. British and Irish nationals currently have access to higher education institutions in the other country under the same conditions as nationals under EU law, but Brexit is set to change this.

The way forward for the Common Travel Area

The newly signed Memorandum of Understanding is first of all a declaration of intention to maintain and further intensify the collaboration between the two States. The aim is therefore to provide more certainty for all the persons concerned. Therefore, it enshrines the most important areas that need to be covered by the Memorandum of Understanding (free movement, residence, work, health care, social protection and housing, education and political rights) and commits the countries to take “all necessary steps” to give effect to that. Progress in that regard will be monitored by an oversight group.

All in all, the signature of the Memorandum of Understanding on the CTA arrangement is an important milestone in the CTA’s long-standing history, as it for the first time formally enshrines what the arrangement exactly entails. Also, it strengthens the countries’ commitment to the arrangement. Although Brexit has kept us mostly in the dark, the CTA agreement might offer a glimpse of light in that respect.

Author: Luuk van der Baaren