Brexit Postmortem: Changes to the Common Travel Area with the UK inevitable

Immigration and free movement have been central to the Brexit vote debates, and continue to dominate speculation on post-Brexit negotiations. The Contingency Framework announced by the Irish Government in the wake of the vote prioritises the Common Travel Area (CTA) and an assessment of 'migration impacts' to include issues relating to social services and benefits, skills requirements and work permit systems.

If Brexit proceeds, Ireland will have a land border with a non-EU Member State. This, of course, is not unique. Sweden's land border with Norway, in the context of the Nordic Passport Union, is of interest in this context. Both Norway and Sweden opted to join the Schengen area, however, and free movement has not been as contested, to date, as in the UK.

The significance of citizenship and borders is one that is well recognised on this island. For non-nationals living in Ireland, the possibility of naturalisation arises, bringing with it the added benefit of availing of the privileges linked to the Common Travel Area. These include the distinct legal status recognised in the 1949 Ireland Act, enacted following Ireland’s withdrawal from the Commonwealth, whereby Irish citizens are not considered by UK law to be ‘foreign’.

Before we rush to criticise the anti-immigrant sentiment that has accompanied the Brexit vote, it is timely to remember the contested citizenship debates in Ireland. Speaking on the passage of the Irish Nationality and Citizenship Act in 1956, Deputy Esmonde noted that while the entitlement to citizenship by birth was desirable, 'in one sense', such an entitlement also carried with it an 'inherent danger'. It was undesirable he said, that 'we should have people in this country with rights of citizenship who might be not exactly satisfactory, from the standpoint of Irish culture and Irish thought, or to the overwhelming majority of the Irish people'.

We should remember that in 2004, the Irish electorate voted 4 to 1 to change the constitutional provisions on citizenship, removing the entitlement to birthright citizenship enshrined in the Irish constitution, post the Good Friday agreement. Those arguing in favour of the citizenship reforms at that time pointed not only to the need to curtail access to Irish citizenship, but also to the attendant rights of free movement linked to EU citizenship, and membership of the CTA.

Speaking in the wake of the post 2004 citizenship referendum, then Minister for Justice, Equality and Law Reform, Michael McDowell T.D., commented that residence would be granted to the immigrant parents of Irish citizen children if they were willing to commit themselves to becoming ‘economically viable’. And therein lies the crux of the matter. ‘Economically viable’ humans may not always be so. Migrants are human too, as the campaign slogan goes, and the safety net that is social security and universal health care, may also be needed by those who do not enjoy the privilege of citizenship.

From being a free market, facilitating free movement of workers, the European Union has recognised, often reluctantly, that workers bring with them their families and dependant others. The worker is not an isolated, atomistic being; she is embedded in networks of relationships, dependancies and vulnerabilities that the nascent concept of EU citizenship has sought to recognise - albeit not always as well as we might have hoped.

If Brexit proceeds, it will bring with it significant challenges for the commitment made in the Good Friday Agreement to an equivalent level of human rights protection across this island. Most attention has focused on the European Convention of Human Rights (ECHR) and proposals to repeal the UK Human Rights Act. However, the EU has also become a more rights protecting Union, and the Charter of Fundamental Rights provides significant protections for rights-holders North and South. It includes, for example, the right to asylum, a fundamental right that we do not see listed, as such, in the text of the ECHR.

Speaking at the Oireachtas Committee on European Affairs in early 2015, I highlighted the possible options for re-negotiation of free movement rights post-Brexit. At that time, a referendum vote in favour of Brexit seemed a possible but not probable outcome. That probability has now been realised, and immigration and free movement remain at the heart of the current political-legal impasse.

For Ireland, the maintenance of the special relationship that has underpinned the CTA is critical. Protocol 20 to the Treaty on the Functioning of the European Union allows the UK and Ireland to ‘continue to make arrangements between themselves relating to the movement of persons between their territories’. While it seems likely that the freedom of travel protected in this area will be protected, it will not be without its challenges. The porous border that we have enjoyed will not continue as is.

At least three possible negotiating positions on free movement may now be considered by the UK Government:

(1) The UK would remain within the EEA, and continue to participate in the Single Market. This would require little change to free movement rights, but appears to be an unlikely option given that proponents of BREXIT sought, in particular, to limit free movement.

(2) Following the model of the CTA - or a modified version - the UK could negotiate bilateral arrangements with selected EU Member States. This, however, would lead to significant fragmentation of free movement rights, creating difficulties for Schengen area states, not all of whom might be preferred UK partners. It is precisely this fragmentation that EU leaders are seeking to avoid.

(3) A third option would see EEA and Swiss citizens being treated similarly to citizens of third countries, subject to visa requirements and the application of the current Tier 5 points system. A compromise that seems likely, would see permanent residence or indefinite leave to remain being granted to EEA, Swiss citizens and family members, currently residing in the UK. An additional compromise would see the special status of Irish citizens continuing.

Any of these possible options would see significant changes for the Common Travel Area, given the likely necessity of tighter border controls between Ireland and the UK, including customs checks.

As political theorist, Wendy Brown, has noted, at a time when neoliberals, cosmopolitans and humanitarians fantasize a world without borders, nation-states exhibit a passion for wall building, and for the 'stark physicalism' of walls and fences. Citizenship and immigration laws allocate both the benefits of membership and the burdens of exclusion. Those burdens, post the Brexit vote have already increased. Whether or not an Article 50 exit from the EU is triggered, for non-nationals in the UK, the vote itself reflects a strong desire to limit access to the UK polity, and a willingness to exclude that is keenly felt.

Siobhán Mullally is Professor of Law at University College Cork and Director of the Centre for Criminal Justice and Human Rights.