Sunday 15 September 2019

Richard Curran: 'There are no guarantees for us in post-Brexit UK dealings'

Moving target: Traffic crosses the Border into Northern Ireland from the Republic alongside a Brexit Border poster on the Dublin road between Newry and Dundalk
Moving target: Traffic crosses the Border into Northern Ireland from the Republic alongside a Brexit Border poster on the Dublin road between Newry and Dundalk
Richard Curran

Richard Curran

The EU and the British governments are edging closer to something - but what? It is either a complex withdrawal agreement on Brexit or a cliff-edge exit for the UK. It could still all go wrong at any moment or fall at the hurdle of a majority in the House of Commons.

For many Irish businesses and individuals on this side of the Irish Sea, the uncertainty is likely to continue for some time to come. A successfully-negotiated withdrawal merely paves the way for the lengthy and tortuous discussions on the nature of the new relationship between the UK and the EU. A no-deal crash deepens the uncertainty even further.

In the midst of all of this confusion, Irish citizens, whether they are here or in Britain, can rest assured of one thing. No matter what happens they will be able to rely on the benefits afforded to them in their dealings with the UK by the Common Travel Area (CTA).

Well, perhaps not. The CTA has been in place in different guises for the best part of 100 years but the main pieces of legislation providing for right of travel and residency in each other's countries date from 1952.

The core benefits of the CTA are pretty limited but the arrangements and privileges that have flowed through it over many decades are more wide-ranging.

However, a new report produced jointly by academics in a number of British universities, questions how legally secure these arrangements could be over the long term.

'Discussion Paper on the Common Travel Area' by Sylvia de Mars, Colin Murray, Aoife O'Donoghue and Ben Warwick, says "there is not a single legal agreement establishing the CTA. The core arrangements for travel and residence between the CTA's members can be altered by any one of them without breaking international law and the rights and obligations which are so often linked to it can be altered by domestic legislation by a CTA member."

So, yes our right to travel to and reside in the UK is enshrined in law, but only through domestic British law which could be revoked at any time.

One of the key driving forces behind the Brexit referendum victory was the desire to reduce immigration. Even in a softer Brexit scenario, the British are likely to want to reduce migrant worker numbers.

EU citizens already working in the UK will be protected and allowed to continue working there, but future EU citizens may well have to apply for visas.

Irish citizens will escape those restrictions and the possible need for visas by virtue of the CTA. Their entitlement to residency in the UK entitles them to work there without a visa. But that is as long as the CTA lasts and as long as it is not altered by a future British government.

The report goes much further than just the right to work in each other's countries, but also looks at the legal basis underpinning a whole raft of benefits that flowed from both the CTA and EU Law but which are not necessarily covered directly by the CTA.

The CTA core arrangements cover common immigration rules, cross-border travel rights and common residency rights. But the report points out that other CTA-related arrangements look a little more shaky in that they are not underpinned by a bilateral Irish/UK agreement but have just evolved through EU law, other domestic legislation or even custom and practice.

These include rights in education, recognition of qualifications, health and social welfare, social security, rights to work, workers' rights, civil and political rights as well as security co-operation. Many of these are underpinned by EU law. Take one party out of the EU and something needs to replace them.

The CTA does not directly cover the movement of capital, the cross-border provision of services, moving across internal CTA borders only for work purposes or transporting goods across borders. The CTA doesn't secure access to medical care or education for citizens of one member of the CTA who has travelled to another, on the same terms as "home" citizens.

As things stand and based on what has been agreed in principle in the Brexit discussions so far, the British and Irish governments want to retain all of the arrangements and privileges that have flowed over the decades. But if they are not all codified, spelt out and included in a bilateral agreement, they could very easily be taken away at some point.

One needs only look at the Windrush generation who arrived in the UK decades ago without any issues, only to find they had "become a problem" for the British Home Office decades later.

According to one of the report's authors, Aoife O'Donoghue, professor at Durham Law School, uncertainty around all of these issues can be a little unnerving. She points to the fact that if there is a no-deal Brexit, any Irish person living and working in the UK would have to prove they are entitled to do so.

Under the CTA their Irish passport would make it alright, but they would have to prove it nonetheless. "Lack of certainty is an issue for people. They can see the approach taken by the Home Office which can contribute towards a hostile environment", she said. There is a somewhat unclear approach to the classification of Irish citizens living in Britain given that the CTA means they are technically not foreign, when it comes to their rights, but they are not British citizens either.

The real issues arise when it comes to cross-border travelling and working. What about those living on one side of the Border, but sending their children to a school or a university on the other side? Right now Irish Republic residents don't pay university fees in the North. Could that change in the future? University fees are a devolved government matter for Northern Ireland but they may feel forced to relinquish that right to Southern residents if a squeeze comes on their funding.

The CTA contains nothing specific relating to health and social care. Mutual recognition of qualifications in employment between Ireland and the UK could also become an issue.

The authors of the report make a number of specific recommendations for tying down all of these loose ends for once and for all. In broad terms they have a gold, silver and bronze standard set of solutions.

The gold standard would see both governments agree a Common Travel Area treaty encompassing common immigration rules, travel rights, residency rights and related rights to education, social security, work health, and security and justice.

A silver standard option would be a bilateral treaty on the core parts of the CTA - immigration, travel and residency rights.

Bronze would involve working together to enhance shared understandings of the CTA and its content, including a memorandum of understanding.

Right now, with the Brexit withdrawal negotiations and the future of Theresa May's government hanging by a thread, such considerations will be far down the list of priorities in Dublin and London.

But for truly protecting the interests of Irish people in Britain; those of us who live along either side of the Border and all British people living in Ireland, it is important that these measures are put on a legislative footing that makes them legally bulletproof.

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