The Common Travel Area: Past, Present and Future After Brexit
| Date | 01 January 2019 |
| Author |
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e Common Travel Area: Past, Present and
Future aer Brexit
MICHAEL J. WALSH*
In the aermath of the United Kingdom’s referendum on leaving the European
Union, and the withdrawal negotiations that have followed, the issue of the Irish
border has loomed large. e spectre of customs and regulatory checks along the
border has come to dominate the negotiations and the proposed mechanism to
avoid them, the Irish backstop, has become a major sticking point in the attempts
to approve the Dra Withdrawal Agreement in the House of Commons.1 Less
attention has been given to the Common Travel Area. Both Ireland2 and the UK
opted out of the EU’s Schengen Area, and instead opted to continue to operate the
Common Travel Area on a bilateral basis. As the Common Travel Area functions
outside the European Union, it has not played a signicant role in the withdrawal
negotiations. In contrast with the controversy regarding Northern Ireland’s future
trade status, the European Union and the UK found it easy to reach an agreement
on the Common Travel Area. However, the text is permissive, not mandatory. Only
time will tell if it can survive what will be its most signicant stress test to date.
e Common Travel Area has its origins in the breakup of the former United
Kingdom of Great Britain and Ireland, and in Ireland’s gradual progress towards
independence between 1922 and 1949. It is an important part of the immigration
policy of both countries that is notoriously dicult to pin down. In 1975, the
European Commission described it as an ‘understanding’ concerning the free
movement of persons between the UK and Ireland based on an agreement ‘of which
there is no ocial text’.3 Many commentators appear to be of the opinion that
because the Common Travel Area predates Irish and British European Community
accession, it can continue unabated. is is not necessarily true. Neither longevity
nor precedence guarantees survival. Only an analysis of what caused the Common
* B.A., LL.B. (NUIG), Barrister-at-Law.
1 Dra Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern
Ireland from the European Union and the European Atomic Energy Community, as endorsed by
the European Council on 25 November 2018 (the ‘Dra Withdrawal Agreement’). At the time
of writing, the Dra Withdrawal Agreement has already been rejected three times by the House of
Commons, and may well be rejected on a fourth attempt if such a vote is held. Neither a referendum
to overturn the 2016 referendum nor the UK leaving without a withdrawal agreement can be
denitively ruled out. e information in this article is correct as of 29 March 2019.
2 References to Ireland mean the state of Ireland, both before and aer the 1937 Constitution.
3 EC Commission, ‘Implementation of point 10 of the nal communique issued at the European
Summit held in Paris on 9 and 10 December 1974 concerning a Passport Union’ COM(1975) 322
nal, Annex 1, 19.
24 .
Travel Area to come about in the rst place and what kept it together can give us an
insight into whether it can survive.
In this article, I will trace the history of the Common Travel Area within the context
of the introduction of immigration controls in the 20th century, and Ireland’s
Dominion status within the British Empire and Commonwealth. I will show how
it arose out of the mutual convenience of Ireland and the United Kingdom and
how it has changed to reect changes in UK immigration and citizenship law and
practice. I will look at how Irish citizens retained non-foreign status aer Ireland
le the Commonwealth and will describe the complex and inconsistent manner
in which Irish and British citizens are treated under each other’s immigration laws
today. European Union membership has had a signicant eect on Irish and British
immigration policy. Accordingly, the relationship between the Common Travel
Area and European Union law will be considered. I will examine the development
of the Schengen Area and the opt-out by Ireland and the UK from its provisions.
Finally, I will address the consequences of the UK’s impending departure from the
European Union and the provisions of the Dra Withdrawal Agreement.
History
e Origins of Immigration Controls
e Irish Free State was created as a Dominion within the British Empire in 1922.4
Had it been created twenty years earlier, the issue of passport and immigration
controls across the new frontier would not have arisen. is is because in the second
half of the nineteenth century, most European countries had either abolished
passport controls or ceased to enforce them.5 Even when the British Parliament
enacted the Aliens Act 1905, its application was limited to alien steerage passengers
arriving on ships carrying twenty or more such passengers.6 As a result, the controls
were fairly easy to avoid.7 It was not until the outbreak of the First World War, in
August 1914, that the UK introduced more substantial controls.
e Aliens Restriction Act 1914 was enacted as emergency wartime legislation. It
gave the British government sweeping powers to set whatever immigration policy
it saw t. e Home Secretary told the House of Commons that one of its main
objectives was to restrain the movements of undesirable aliens ‘especially with a
view to the removal or detention of spies’.8 However, rather than let it expire at the
4 Treaty b etween Great Britain and Ireland (signe d at London 6 December 1921) 26 LNTS 9 (the
‘Anglo-Irish Treaty’); Constitution of the Irish Free State, art 83; Irish Free State Constitution Act
1922 (UK), s 1.
5 Martin Lloyd, e Passport: e History of Man’s most Travelled Document (Sutton Publishing
2003) 115.
6 Aliens Act 1905, ss 1 and 8.
7 HC Deb 15 April 1919, vol 114, col 2748.
8 HC Deb 5 August 1914, vol 65, col 1986.
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