Common Travel Area

The Common Travel Area in green

The Common Travel Area is a passport-free zone that comprises the islands of Ireland, Great Britain, the Isle of Man and the Channel Islands. The area's internal borders are subject to minimal or non-existent border controls and can normally be crossed by Irish and British citizens with only minimal identity documents,^[1] although the use of a passport is required by the budget airline Ryanair.^[2] The maintenance of the Area involves considerable co-operation on immigration matters between the British and the Irish authorities.

The Irish government has imposed immigration controls on people entering the state from the United Kingdom since 1997.^[3] These controls have been compulsory for air travellers, selective on sea crossings and occasional for land crossings. In 2008, the British government announced that it planned to impose similar controls on travellers entering the United Kingdom, which would, if implemented, effectively bring an end to the passport-free zone.^[4][5]

History

The 1923 agreement

The Irish Free State seceded from the United Kingdom in 1922 at a time when the imposition of systematic passport and immigration controls was becoming standard at international frontiers. Although the British had imposed entry controls in the past – notably during the French Revolution^[6] – the imposition of such controls in the twentieth century dated from the enactment of the Aliens Act 1905, before which there was a system of registration for arriving foreigners.^[7]

Prior to the creation of the Irish Free State British immigration law was enforced in Ireland in the same way as in the rest of the United Kingdom. With the imminent prospect of Irish independence in 1922, the British Home Office was disinclined to impose passport and immigration controls between the Irish Free State and Northern Ireland. Doing so would have meant patrolling a porous and meandering land border. If, however, the pre-1922 situation were to be continued, the Irish immigration authorities would have to continue to enforce British immigration policy after independence. The Irish Department for Home Affairs was found to be receptive to continuing with the status quo and an informal agreement to this effect was reached between the two sides in February 1923. Under this agreement, each side would enforce the other's immigration decisions and the Irish authorities would be provided with a copy of Britain's suspect-codex (or 'Black Book') of any persona non grata in the United Kingdom.^[8]

The agreement was initially provided for in UK law by deeming the Irish Free State to be part of the United Kingdom for the purposes of immigration law.^[9] It was fully implemented in 1925 when legislation passed in both countries provided for the recognition of the other's landing conditions for foreigners.^[10] This may be considered to have been the high point of the Common Travel Area – although it was not called that at the time – as it almost amounted to a common immigration area. A foreigner who had been admitted to one state could, unless his or her admission had been conditional upon not entering the other state, travel to the other with only minimal bureaucratic requirements.

The Common Travel Area was suspended on the outbreak of war in 1939, when travel restrictions were introduced between Great Britain and Ireland.^[11]

The 1952 agreement

After the war, the Irish re-instated their previous provisions allowing free movement.^[12] However the British declined to do so pending the agreement of a "similar immigration policy"^[13] in both countries. Consequently the British maintained immigration controls between the islands of Ireland and Great Britain up until 1952, to the consternation of Northern Ireland's Unionist population.^[14]

No agreement on a similar immigration policy was publicised at the time, but a year after the then Irish Minister for Justice referred to the lifting of immigration controls between the two islands as "a matter for the British themselves", the British began referring to the Common Travel Area in legislation for the first time.^[15] The content of the agreement appears to be that a foreigner would be refused entry to the United Kingdom if he or she wished to travel onward to Ireland (and vice-versa)^[16] and is provided for in relevant immigration law.^[17]

The Common Travel Area has meant that Ireland has been required to follow changes in British immigration policy.^[8] This was notable in 1962 when Irish law was changed in response to the Commonwealth Immigrants Act 1962. The Act imposed immigration controls between the United Kingdom and Commonwealth countries while in Ireland the Aliens Order 1962 replaced the state's previous provision exempting all British subjects from immigration control,^[18] with one exempting only those born in the United Kingdom. The scope of the Irish provision was much more restrictive than the British legislation as it excluded from immigration control those in the United Kingdom who were not British citizens.^[19] This discrepancy between Britain's definition of a British citizen with a right to abode in the United Kingdom and Ireland's definition was not resolved until 1999.^[20]

Application

While British and Irish citizens enjoy the right to live in each other's countries under European Union law, the provisions that apply to them are generally more far-reaching than those that apply to other European Economic Area nationals. There now are identity checks at least for air travel, and people exempt from immigration control must prove so with a valid identity document.

British citizens in Ireland

Under Irish law, all British citizens – including Manx people and Channel Islanders who are not entitled to take advantage of the European Union's freedom of movement provisions – are exempt from immigration control and immune from deportation.^[21] They have, with limited exceptions,^[22] never been treated as foreigners under Irish law.^[23]

Irish citizens in Britain

Before 1949, all Irish citizens were considered by British law to be British subjects.^[24] After Ireland left the Commonwealth of Nations in that year, British law was amended to give Irish citizens a similar status to Commonwealth citizens in the United Kingdom, notwithstanding that they had ceased to be such. Thus, much like British citizens in Ireland, Irish citizens in the United Kingdom have never been treated like foreigners. Irish citizens have, however, like Commonwealth citizens, been subject to immigration control in Britain since the enactment of the Commonwealth Immigrants Act 1962. Unlike Commonwealth citizens however, Irish citizens have generally not been subject to entry control in the United Kingdom and have a presumed indefinite leave to remain if they move to the UK. They may, however, be subject to deportation from the UK upon the same lines as other European Economic Area nationals.^[25] In February 2007 the British government announced that a specially lenient procedure would apply to the deportation of Irish citizens compared to a more rigorous procedure for other European Economic Area nationals.^[26]

Other European Economic Area nationals

Nationals of member states of the European Economic Area other than British and Irish nationals have the right to freely enter and reside in the United Kingdom and Ireland under European Union law. Such nationals are required to carry a valid travel document, be that a passport or a national identity card for both entering the Common Travel Area and for travelling between Ireland and the United Kingdom.^[27]

Other nationalities

See also: Visa policy in the European Union

While the Common Travel Area has, for most of its history, involved an open or relatively open border, this has not, since the Second World War, meant that someone who legally entered one part of the Area was automatically entitled to enter the another part. Unlike the Schengen Agreement, the Common Travel Area provides no mechanism for the mutual recognition of leave to enter and remain, and the United Kingdom and Ireland operate entirely separate visa systems with distinct entry requirements. In general, a United Kingdom visa will not allow a traveller entry to Ireland, nor vice-versa.

The Channel Islands and the Isle of Man allow entry to holders of United Kingdom visas (with some exceptions). Guernsey and Jersey immigration authorities routinely check non-EEA nationals seeking to enter the UK via the crown dependencies to ensure they have valid UK permisions.

However, as of July 2011 Ireland has introduced a limited, pilot visa waiver programme under which the normal requirement for certain nationalities to hold an Irish visa is waived for visitors to the UK who hold valid UK visas.

The Common Travel Area and the Schengen Area

In 1985 five member states of the then European Economic Community signed the Schengen Agreement on the gradual dropping of border controls between their respective countries. This treaty and its implementation convention of 1990 would pave the way for the creation of the Schengen Area. Although not implemented until 1995, two years later during the Amsterdam Intergovernmental Conference, all European Union member states except the United Kingdom and Ireland, plus two non-member states Norway and Iceland, had signed the Schengen Agreement. During those negotiations, which led to Amsterdam Treaty and the incorporation of Schengen into the main body of European Union law, Britain and Ireland obtained an opt-out affirming their right to maintain systematic passport and immigration controls at their frontiers. If the United Kingdom or Ireland were to join Schengen, the Common Travel Area would come to an end. If one were to join without the other, the joining country would have to exercise border controls vis-à-vis the other thus ending the zone. If both were to join all the functions of the area would be subsumed into the Schengen provisions and the Area would cease to have any separate existence.

The British government has always refused to lower its border controls as it believes that the island status of the Common Travel Area puts the United Kingdom in a better position to enforce immigration controls than mainland European countries with "extensive and permeable land borders".^[28] In contrast Ireland, while not signing the Schengen Treaty, has always looked more favourably on joining but has not done so in order to maintain the Common Travel Area and its open border with Northern Ireland,^[29] though in 1997 Ireland imposed selective identity and immigration controls on anyone arriving from the United Kingdom,^[3] measures that would not have been permitted if both countries were part of the Schengen Area. The Irish position is reflected in the Schengen opt-out secured by the United Kingdom and Ireland in the Amsterdam Treaty. While the protocol applies unconditionally to the United Kingdom, it only applies to Ireland while the Common Travel Area is maintained.^[30]

Border controls

Main article: Republic of Ireland – United Kingdom border

The border at Killeen marked only by a speed sign marked in km/h, and no other sign

In Ireland

In 1997, Ireland changed its immigration legislation to allow immigration officers to examine (i.e. request identity documents from) travellers arriving in the state from elsewhere in the Common Travel Area and to refuse them permission to land if they are not entitled to enter.^[3] Although this is stated to apply only to people other than Irish and British citizens, both of the latter groups are effectively covered as they may be required to produce identity documents to prove that they are entitled to the Common Travel Area arrangements. Although it is difficult to be exact about the nature of current border checks fixed controls are only maintained at ports and airports^[31] while targeted controls are conducted along the land border in what are referred to as "intelligence driven operations".^[32] All passengers arriving in Ireland from the United Kingdom by air now pass through Irish border controls, administered by the Garda National Immigration Bureau (GNIB). While British citizens are not required to be in possession of a valid travel document as a condition of entry to Ireland, they may be required to satisfy immigration officials as to their nationality.

Attempted introduction in the United Kingdom

In July 2008, the UK Border Agency published a consultation paper on the Common Travel Area that envisaged the imposition of identity and immigration controls on all air and sea crossings between the island of Ireland and Great Britain. Being part of the proposed electronic borders system, these controls would be accompanied by an Advance Passenger Information System on all flights and sea journeys between the islands of Ireland and Great Britain.

While passport controls were planned to be brought in between the United Kingdom and Ireland, the nature of possible identity controls between Great Britain on the one hand, and the Isle of Man, the Channel Islands, and Northern Ireland on the other, is not altogether clear. The last of these is the most controversial as Northern Ireland is a constituent part of the United Kingdom, with a prominent Ulster Unionist describing the proposed arrangements as "intolerable and preposterous".^[4] The nature of identity checks between Northern Ireland and Great Britain was characterised by the British government as follows:

"Section 14 of the Police and Justice Act 2006 introduced a new power that will allow the police to capture passenger, crew and service information on air and sea journeys within the United Kingdom. ... It is expected that this police power will only apply to air and sea routes between Great Britain and Northern Ireland. Passengers will not be required to use passports, but may be required to produce one of several types of documentation, including passports, when travelling, to enable the carrier to the meet the requirements of a police request."^[33]

As far as the land border is concerned, the UK Border Agency indicated that the border would be "lightly controlled"^[34] and a joint statement in 2008 by both governments confirmed that there are no plans for fixed controls on either side of the border.^[35]

On 1 April 2009, an amendment moved by Lord Glentoran in the House of Lords defeated the British Government's proposal and preserved the Common Travel Area.^[36] The same clause—which Lord Glentoran thought would weaken the Common Travel Area—was successfully re-introduced by Home Office minister Phil Woolas in the Public Bill Committee in June,^[37] but again removed in July after opposition pressure.^[38]

See also

• British–Irish relations
  • Foreign relations of the Republic of Ireland
  • Foreign relations of the United Kingdom
• Irish nationality law
• British nationality and the Republic of Ireland
• British nationality law
• Republic of Ireland-United Kingdom border
• Schengen Agreement
• Schengen Area
• Nordic Passport Union
• Visa policy in the European Union
• UK Immigration Service

Notes

1. ^ "Common Travel Area between Ireland and the United Kingdom". Citizens Information Board. http://www.citizensinformation.ie/en/moving_country/moving_abroad/freedom_of_movement_within_the_eu/common_travel_area_between_ireland_and_the_uk.html. Retrieved 12 August 2011. 
2. ^ "Department of Foreign Affairs - Frequently Asked Questions: Q. Do I need a passport to fly to Great Britain?". dfa.ie. 2011 [last update]. http://www.dfa.ie/home/index.aspx?id=83929#19. Retrieved 2 October 2011. 
3. ^ ^{a b c} by the Aliens (Amendment) (No. 3) Order 1997 [1]; M. Wallace, Dáil Debates volume 510 columns 1400-1404 (16 November 1999) [2].
4. ^ ^{a b} Sharrock, David (25 October 2007). "New border control will abolish free movement between UK and Ireland". Times Online (London). http://travel.timesonline.co.uk/tol/life_and_style/travel/news/article2733487.ece. Retrieved 21 December 2007. 
5. ^ "Irish will need passports to visit Britain from 2009", Stephen Collins, October 24, 2007 [3]
6. ^ See the decision of the Judicial Committee of the house of Lords in Mark v. Mark [2005] UKHL 42 at para 17.[4]
7. ^ =Pellew, Jill (June 1989). "The Home Office and the Aliens Act, 1905". The Historical Journal (Cambridge University Press) 32 (2): 369. JSTOR 2639607. 
8. ^ ^{a b} See Ryan, page 857. The agreement was also, albeit indirectly, referred to in a Dàil debate on 4 June 1925 (Dáil Debates volume 12 columns 317-318) [5].
9. ^ Aliens Order 1923 (UK).
10. ^ Respectively by the Aliens Order 1925 (Ireland) [6] and the Aliens Order 1925 (UK).
11. ^ See Ryan.
12. ^ by the Aliens Order 1946 (Ireland) [7].
13. ^ Under-Secretary of State for the Home Department, Geoffrey de Freitas, House of Commons Debates volume 478 columns 842-849 (28 July 1950).
14. ^ House of Commons Debates volume 446 columns 1158-1166 (28 January 1948), volume 463 column 543 (24 March 1949), and volume 478 columns 842-849 (28 July 1950).
15. ^ in the Aliens Order 1953 (UK).
16. ^ The existence of the 1952 agreement was conceded in an Irish parliamentary question on 3 June 1980 (Dáil Debates volume 321 column 1379) [8].
17. ^ In the UK by section 1(3) of the Immigration Act 1971 (as amended) and by Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) and in Ireland by the Aliens Orders 1946 [9] (as amended; in particular by the Aliens (Amendment) Order 1975 [10]).
18. ^ the Aliens (Exemption) Order 1935 (Ireland)
19. ^ It excluded a large number of people who were not born in the United Kingdom but whose right to reside in the UK was not restricted by the 1962 legislation. It also excluded from immigration control anyone born in the United Kingdom who were not British citizens. Until 1983 the latter group only included children of diplomats and anyone who had formally renounced citizenship. However after the restriction of Jus soli in Britain by the British Nationality Act 1981 this group expanded to include the children of non-"settled" foreigners. For further information see: British nationality law.
20. ^ by the Aliens (Exemption) Order 1999 (Ireland), [11] which exempted all (and only) British citizens from immigration control.
21. ^ Per the provisions of the S.I. No. 97/1999 — Aliens (Exemption) Order, 1999 and Immigration Act 1999.
22. ^ The only exception being that between 1962 and 1999 those British citizens born outside the United Kingdom were not exempt. See History
23. ^ See #History.
24. ^ Under-Secretary of State for the Colonies, William Ormsby-Gore, House of Common Debates volume 167 column 24 (23 July 1923): "All the people in Ireland are British subjects, and Ireland under the Constitution is under Dominion Home Rule, and has precisely the same powers as the Dominion of Canada, and can legislate, I understand, on matters affecting rights and treaties." [12];
    Hachey, Thomas E.; Hernon, Joseph M.; McCaffrey, Lawrence John (1996). The Irish experience: a concise history (2nd ed.). p. 217. "The effect of the [British Nationality Act 1948] was that citizens of Éire, though no longer British subjects, would, when in Britain, be treated as if they were British subjects." 
25. ^ See British nationality law and the Republic of Ireland and Evans.
26. ^ Minister of State for Immigration, Citizenship and Nationality, Liam Byrne, House of Lords Debates volume 689 Column WS54 (19 Feb 2007) [13]. The matter is further detailed in a report by the BBC [14].
27. ^ Parliamentary Under Secretary of State at the Home Office, Mike O'Brien, House of Commons Debates volume 332 column 434-435 (11 June 1999) [15]; D. Wallace, Seanad Debates volume 154 columns 106 (4 February 1998) [16].
28. ^ Foreign Secretary, Malcolm Rifkind, House of Commons Debates volume 287 columns 433-434 (12 December 1996) [17].
29. ^ Minister for Justice, Nora Owen, Dáil Debates volume 450 column 1171 (14 March 1995) [18]; Minister for Justice, John O'Donoghue, Dáil Debates volume 501 column 1506 (9 March 1999)[19]; "Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland" attached to the Treaty of Amsterdam.
30. ^ Article 2 of the "Protocol on the application of certain aspects of Article 7a of the Treaty establishing the European Community to the United Kingdom and to Ireland" attached to the Treaty of Amsterdam.[20]
31. ^ D. Wallace, Seanad Debates volume 154 columns 106 (4 February 1998) [21].
32. ^ John O'Donoghue, Dáil Debates volume 12 columns 593-594 (12 February 2002) [22].
33. ^ Minister of State for Immigration, Citizenship and Nationality, Liam Byrne, House of Common Debates volume 470 Column 1051W (14 Jan 2008) [23].
34. ^ "Strengthening the common travel area: a consultation paper". UK Borders Agency. 24 July 2008. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/strentheningthecommontravelarea/travelareaconsultation?view=Binary. 
35. ^ Ford, Richard (25 October 2007). "Britain and Ireland agree to tighten border check". London: The Times. http://www.timesonline.co.uk/tol/travel/news/article4392963.ece. Retrieved 29 August 2008. 
36. ^ Lord Glentoran (1 April 2009). Borders, Citizenship and Immigration Bill (HL). Amendment 54 (Report stage). Hansard of the House of Lords. http://www.theyworkforyou.com/lords/?gid=2009-04-01a.1097.0 
37. ^ Public Bill Committee (18 June 2009). Borders, Citizenship and Immigration Bill (Lords): New Clause 3 (Common Travel Area). Hansard of the House of Commons. http://www.theyworkforyou.com/pbc/2008-09/Borders%2C_Citizenship_and_Immigration_Bill/07-0_2009-06-18a.2.0?s=%22Common+travel+area%22#g2.1 
38. ^ Ireland passport proposal shelved. BBC News. 14 July 2009. http://news.bbc.co.uk/1/hi/uk/8150930.stm 

References and further reading

• Bernard Ryan (2001). "The Common Travel Area between Britain and Ireland". Modern Law Review 64 (6): 855. doi:10.1111/1468-2230.00356. 
• J. M. Evans (1972). "Immigration Act 1971". The Modern Law Review 35 (5): 508. doi:10.1111/j.1468-2230.1972.tb02363.x. JSTOR 1094478. 

External links

• Irish Government description of the Common Travel Area
• Text of the Treaty of Amsterdam (see protocol B)