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The Common Travel Area and the special status of Irish nationals in UK law

Published Wednesday, October 16, 2019

The Common Travel Area is a special travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. It dates back to the establishment of the Irish Free State in 1922. This briefing focuses on how the CTA operates between the UK and the Republic of Ireland.

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The Common Travel Area

Nationals of Common Travel Area (CTA) countries can travel freely within the CTA without being subject to passport controls. The arrangements for non-CTA nationals are more complex. Although there are minimal immigration checks for journeys started within the CTA, non-CTA nationals must have the relevant immigration permission for the country they are seeking to enter. Until the UK exits the EU, citizens of EEA member states have prevailing rights of entry and residence in the UK and Ireland under EU ‘free movement’ law.

Although both the Republic of Ireland and the UK maintain their own visa and immigration policies, there is a significant degree of practical cooperation and policy coordination in order to ensure the security of the CTA. Controls on the Irish border are also generally regarded as impractical and undesirable.

Irish nationals’ special status in UK law

Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens.

In short, the Republic of Ireland is not considered to be a ‘foreign country’ for the purpose of UK laws, and Irish citizens are not considered to be ‘aliens’. Furthermore, Irish citizens are treated as if they have permanent immigration permission to remain in the UK from the date they take up ‘ordinary residence’ here.

This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. It is thought that, as a result, Irish nationals have more rights than other EU/ EEA nationals resident in the UK.

The implications of Brexit

The UK and Irish Governments have confirmed that the Common Travel area will continue after Brexit, regardless of the type of UK exit. In May 2019 the two Governments signed a new Memorandum of Understanding on the CTA which guarantees there will be no changes to the rights of British citizens in Ireland/Irish citizens in the UK as a result of Brexit.

Irish citizens have been advised by the Home Office that they do not need to apply for settled or pre-settled status to secure their residence rights in the UK. However, non-Irish and non-British family members of Irish citizens residing in the UK under EU free movement law will need to apply for status under the EU settlement scheme. Both the UK and Irish governments have maintained they wish to avoid a "hard border” in Northern Ireland.

Professor Bernard Ryan of Leicester University questioned the extent to which the rights of Irish nationals in the UK are secured by existing law. He argued that new legislation will be required to protect Irish nationals’ status in the UK post-Brexit.[1] The Johnson Government announced a new Immigration Bill in the Queen’s Speech on 14 October 2019. The background briefing notes for the Queen’s Speech suggest that the Bill will contain provisions to “clarify the immigration status of Irish citizens…this means that Irish citizens will generally not require leave to enter or remain in the UK”.[2]

 

[1]    Professor Bernard Ryan, ‘Law may be needed to preserve the rights of Irish in UK after Brexit’, the Guardian, 19 October 2016

[2]    The Queen’s Speech and associated background briefing, on the occasion of the opening of parliament on Monday 14 October 2019 p 25

Commons Briefing papers CBP-7661

Authors: Terry McGuinness; Melanie Gower; Hannah Wilkins; John Curtis

Topics: Immigration, Nationality

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