An issue which has been aired in the run up to and aftermath of the referendum has been the fate of land border on the island of Ireland. At a level of political rhetoric the position of the Leave campaign was somewhat confusing, majoring on a platform of ‘taking back control’ of UK borders whilst also articulating that this would not lead to any border controls here. This article discusses this as well as the related issues of the potential impacts on freedom of movement between Northern Ireland and Great Britain, and the implications for the entitlements of Irish citizens, and others, in NI in general.
All these issues are shaped by the unique constitutional position of NI set out in the Belfast/Good Friday Agreement (GFA). In Article 1(vi) of the GFA treaty the British and Irish states recognised the birthrights of ‘the people of Northern Ireland’ to self-identify and be accepted as Irish or British (or both), and ‘accordingly’ the right to hold both British and Irish citizenship, a right which the GFA provides will “not be affected by any future change in the status of Northern Ireland” (the status of which would be changed by BREXIT). The preceding Article 1 (v) also provides that the power of the sovereign government with jurisdiction will be exercised with ‘rigorous impartiality’ on behalf of all the people in the diversity of their identities and be founded on full respect for economic, social and cultural, civil and political rights as well as ‘freedom from discrimination for all citizens’.
The arrangement that allows travel between the UK and Ireland without routine immigration control is known as the Common Travel Area (CTA). Essentially the CTA is largely a passport-free-zone between the UK and Ireland (and Isle of Man and Channel Islands – which are not in the EU). It is not as wide-reaching as the Schengen area arrangement elsewhere in the EU that has abolished internal borders in lieu of a single external border and has common rules and procedures for short stay visas and other matters. Save for a decade-long period of suspension around WWII a form of CTA has existed since partition and was maintained throughout the ‘Troubles’. The arrangement is however complex, changing and not copper-fastened by any treaty or the (absent) NI Bill of Rights but rather is left to convention and legislative reference. In the UK Section 1(3) of the Immigration Act 1971 provides that arrival in and departure from the UK from elsewhere in the CTA cannot be subject to (passport) control.
The CTA pre-dates and is separate to EU freedom of movement, but its future is far from secure. As recently as 2008 the then UK government sought to amend section 1(3) of the 1971 Act and end the CTA in all but name. The amendment would have permitted full border controls, but this was not the then policy intention given their cost and practical complexity. Rather the plan was to introduce ‘ad hoc’ checkpoints targeting non British and Irish citizens on the border, whilst assurances were simultaneously given that British and Irish citizens would still not have to carry passports.
The move rang alarm bells at the NI Human Rights Commission about the risks of widespread racial profiling (the form of racial discrimination where persons are singled out for scrutiny on the basis of skin colour or other attributes). The Commission pointed out you cannot tell who is a British and Irish citizen by looking at them and that the plans risked a situation whereby ethnic minorities north and south crossing the border were to be forced to carry passports or face potential arrest and detention. The UK government also planned to supplement the ‘ad hoc’ controls with similar arrangements on flights and ferries between NI and Great Britain, a form of internal immigration control which alarmed unionists. The combination of both sets of concerns led to the amendment being voted down in the House of Lords and retreated from entirely in the context of opposition in the Commons.
Since then the UK Border Force has nevertheless continued on an ad hoc basis to ask some passengers coming to and from Great Britain for passports at NI ports and airports, despite having no statutory power to do so. The issue was covered in a 2009 investigation report by the Human Rights Commission entitled ‘Our Hidden Borders’. A staggering 468 people accused of being irregular migrants were detained in 2014/15 in this way in NI. Seemingly unsatisfied by this, UKIP’s then NI MLA David McNarry called for troops with helicopter air support to be deployed to ‘make the border safe’. Before all of this Ireland had changed its own legislation and An Garda Síochána have undertaken their own ‘ad hoc’ selective controls, including on the land border, with all the same implications regarding racial profiling. In 2011 the two governments entered into a Memorandum of Understanding. This document largely concerned visa decisions prior to external entry into the CTA, including data sharing whereby persons could be refused entry to one jurisdiction on the basis of information from the other, an alignment of visa-free countries in both jurisdictions, and a proposal for a Schengen-style mutually recognised visitor visa. In 2014 the two governments announced a single British-Irish Visitor Visa scheme would be taken forward to “facilitate nationals requiring a short-stay visa to travel freely within the Common Travel Area using a single visa issued by either Ireland or the UK.”
Whilst international human rights standards generally permit border controls at the boundaries of a state, human rights are engaged where there is racial discrimination or internal border controls impacting on freedom of movement within a state (see for example Article 12, ICCPR). The complex constitutional context of Northern Ireland in light of the CTA and the mutual recognition rights regarding Irish or British citizenship, as well as the north-south and east-west arrangements under the GFA, provide an arguable case that the right to freedom of movement should be considered as applying across the CTA. This issue is also contextualised by the preferential arrangements Irish citizens have historically had in relation to the UK (and vice versa), which has led to Irish citizens having rights to work, settle and vote in the UK, and British citizens having a similar status in Ireland.
How will all of this be affected by a BREXIT which leaves a situation whereby there is continued freedom of movement for EU citizens to Ireland (which the Leave campaign have insisted will end for the UK)? It appears unlikely that the UK at present will have an appetite for full fixed controls across the land border given both the costs and political implications. However, there may be some who wish for this and in the absence of a treaty or NI Bill of Rights underpinning the CTA all it takes is for agreement in Westminster for such a change to be introduced.
What may well happen is that the UK government, emboldened by political context and UK Parliament even less sympathetic to migrant rights, revisits the 2008 proposals to legislate for ‘ad hoc’ checks, with all the implications for racial discrimination that entails. NI-GB checks could also be revisited, and freedom of movement within the CTA as a whole is far from guaranteed.
There is a further question as to what extent future arrangements between the UK and an Irish state within the EU will require customs controls. This is likely unless an arrangement can be reached between the UK and EU. Customs controls, whilst undoubtedly disruptive are not strictly a human rights issue. It should be noted however that customs officers and immigration officers are now part of the same agency, the two disciplines having been put together within a unified UK Border Force. Deploying such an agency on the border with an immigration role, even whilst officially there for customs purposes, is likely to lead to mission creep at the very least. It also remains to be seen how the ethos and accountability arrangements for the UK Border Force can sit with the post-GFA policing architecture.
There are broader questions regarding BREXIT and the rights of Irish citizens in NI. The vast majority of persons born in NI are, or are entitled to be Irish citizens, and hence EU citizens. (The GFA led to a change whereby persons born in NI were entitled to be Irish citizens rather than being automatically considered as such under Irish law, as had previously been the case. The entitlement is exercised by doing something an Irish citizen can do, usually applying for a passport). In 2004 in conflict with the text of the GFA this entitlement was restricted to exclude some persons with migrant parents. The UK meanwhile did not change its legislation after the GFA and section 1(1) of the British Nationality Act 1981 still automatically grants British citizenship to persons born in NI (again with similar exemptions to those of migrant parentage).
This then gets complicated in a number of ways. It is not universally known that Irish citizens born in NI (regardless of which passport is held) are also British citizens under British law (save in the uncommon event where a fee has been paid to renounce British citizenship). As alluded to above Irish citizens have had rights to settle in the in the UK and related entitlements for some time. Nowadays, however some of this is on the basis of exercising treaty rights as EU citizens. For example, the general criterion for full access to the NHS is on the basis of being ‘ordinarily resident’, a concept usually more easily met by persons exercising EU treaty rights – as is visitor access to the health service. A further example set out in an ILPA briefing paper by Professor Bernard Ryan – an authority on the CTA – is how an original provision of immigration legislation that exempted Irish citizens only from only having leave to enter the UK for three months, was amended in 2014 to instead apply the provision to all EEA nationals (including Irish citizens) exercising EU treaty rights.
In general post-Brexit once the UK ceases to recognise and grant entitlements based on exercising EU-treaty rights, and may move more to a system based on entitlements linked to British citizenship, the current such rights granted to Irish and other EU citizens on that will be discontinued. At the one level this does not affect Irish citizens who are also British citizens, as they will be able to rely on the latter (save for the question of whether it is compatible with the GFA to oblige those who identify as Irish to have to rely on British citizenship to access entitlements). However the practical impact is greater for all other Irish citizens – would it really be compatible with the GFA that persons from Dublin and beyond no longer have equal access to employment, and services as other Irish citizens in NI? The UK could legislate to ensure the entitlements for Irish citizens across all of these matters are maintained, but if and until this is undertaken it is not a given.
There are other entitlements vested in Irish citizens in NI that are EU-derived and hence far more vulnerable to regression. For example an Irish citizen living in the UK, including NI, should be entitled to be joined by their non-Irish/British partner under EU rules without having to subject themselves to the expense and increasing inflexibility of the UK immigration regime. BREXIT could not only regress this entitlement for those seeking to reside in NI but also place those already here in an uncertain position.
To conclude it is remiss not to mention that the post-Brexit environment has seen a marked increase in racist violence. This has a particular danger in Northern Ireland given the involvement of paramilitaries in far-right racist attacks. The implications for the CTA arrangements and the potential for already concerning ‘selective’ checks to be drastically increased and set up on a statutory basis risk the ascendency of racism in a more institutionalised form. The enhancement of NI-GB de facto immigration controls as well as the issue of racial profiling also impacts on freedom of movement, as arguably do such measures within the CTA in the context of the complex constitutional arrangements evolving from the GFA. The GFA-rights of Irish citizens in NI, and particularly the related rights of family members from elsewhere in the world, are also far from secure. Human rights activists need to pay close attention to all of these matters as grappling with these issues is only beginning.