What Brexit means for the future of the Common Travel Area

What Brexit means for the future of the Common Travel Area

They have done it. They’ve done it. The UK-EU withdrawal deal is still mired in controversy. However, this shouldn’t detract from the important steps being taken to create the Common Travel Area for the UK and Republic of Ireland.

All citizens are allowed to travel visa-free between the UK and Ireland, the Isle of Man, and the Channel Islands. In addition, to travel, legislation in each Common Travel Area member has allowed for many years that citizens from other members are treated as if they were their home country citizens for purposes such as work or residence.

The Common Travel Area used to be promoted by as a solution for virtually all the problems that Brexit would bring about in Ireland and Northern Ireland. Our research shows that despite the fact that the UK and Ireland have facilitated cross-border travel for their citizens for over a century now, this won’t be enough to keep the borders open in case of a no-deal Brexit.

Since the 1970s, these arrangements have been a patchwork. The Common Travel Area has received little attention, and the EU free movement law provides a more developed framework. In Northern Ireland, for example, the welfare provisions that disadvantaged cross-border workers were only changed after litigation was brought under EU law.

After March 29, or Brexit, we need a legal basis that is clear in both the UK’s and Ireland’s legal systems. A bilateral agreement should support this.

Social Security Agreement

A newly agreed Memorandum of Understanding on social security began the process of consolidating these arrangements in February 2019. These new measures provide certainty for those who live on both sides of the border or move from the UK into Ireland (or vice-versa).

The agreement on social insurance equivalence will be of great importance, especially in terms of establishing a shared set of rules. Currently, if someone claims benefits in Louth, they will be paid either by the UK or Ireland, depending on their “habitual resident.” After Brexit, if the two countries adopt substantially different rules, then people could claim benefits in both countries or be stuck in a gap where neither system considers them a resident.

The complexity of people’s work and lives is reflected in this scenario. This MoU marks the beginning of a bilateral understanding in these areas. Data sharing will be required to ensure that the benefits system works efficiently and fraud is avoided. In the event of a no-deal scenario, the UK would be unable to access the EU social security database. The new MoU provisions could save social security and pensions.

A new Immigration and Social Security Bill, which is currently before the UK Parliament, will also aim to clean up the Common Travel Area agreements that predate the age of mass travel. A strict interpretation of the law suggests that visa-free trips will only be available to Irish citizens who travel directly from Ireland to the UK after Brexit. This change will make a point of origin irrelevant for Irish citizens, so they can enter the UK visa-free, even if they are from France or the United States.

Both countries want UK and Irish citizens to be treated as if they were their citizens. Both governments have stressed that the area existed prior to their countries’ EU Membership and that its benefits must, therefore, continue after Brexit.

These arrangements do not replace a comprehensive agreement on withdrawal. This MoU is limited to the UK and Ireland. The full terms of the MoU only apply to UK and Irish citizens, so other EU nationals living in both countries will not be able to benefit. Third, it does not cover issues of regulation or trade. Since Ireland gave the EU the authority to handle these matters, the two countries are unable to address them bilaterally. All these issues will require that the UK and EU agree on a future Brexit agreement.

Brexit and Ireland: A complex puzzle. 

There is more work to be done.

Other problems remain. There is much in the pipeline, but the UK and Ireland need to urgently finalize agreements on areas such as education, security, and health.

Multiple technical legal documents do not adequately reflect the importance of the Common Travel Area and the rights that come with it. This is a part of our shared history as two nations. Ireland and the UK could resolve this issue by signing a general framework accord. The agreement could state their intention to treat UK citizens as equal to those of their home countries and to continue using the Common Travel Area to build a strong and cooperative relationship. This could allow any domestic law to be interpreted in light of this arrangement.

The MoU signed by the two governments shows that they can work together to smooth out administrative bumps even though the Brexit debate often portrays them at odds. Before we can breathe a collective sigh, there is still much to agree on. There are still issues to resolve, including the children, the house, and the car.

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