The Common Travel Area (“the CTA”) is a travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. Under the CTA, Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens.
This Insight addresses the special immigration status that Irish citizens have in the UK, and how this may be affected by Brexit. While the CTA provides more than immigration rights, this Insight only considers the CTA from an immigration context.
What are the travel and residence rights of Irish citizens under the CTA?
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.
Nationals of CTA countries can travel freely within the CTA without being subject to passport controls. The arrangements for non-CTA nationals are more complex.
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.
What will happen to the CTA after 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 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.
While the Memorandum is not legally binding, both Governments committed to take the necessary legislative measures to give it legal effect.
Do Irish citizens need to do anything to secure their residence rights in the UK?
The Government has implemented the EU Settlement Scheme (the “EUSS”) to give EEA citizens residing in the UK a new immigration status in the UK after Brexit.
Irish citizens are eligible to apply for status under the EUSS. However, the Government has advised that they are not required to apply for status as their residence is guaranteed under the CTA after Brexit. The Johnson Government announced a new Immigration Bill in the Queen’s Speech on 14 October 2019. The 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”.
Non-Irish and non-British family members of Irish citizens living in the UK will generally need to apply to the EUSS, even if their Irish citizen family member chooses not to apply under the scheme. They will need to prove that their Irish citizen ‘sponsor’ has been residing in the UK prior to 31 December 2020.
Dual British/EEA citizens, including dual British/Irish citizens, are ineligible to apply for EUSS.
Can Irish citizens be deported from the UK after Brexit?
Irish citizens can currently be deported, removed from, or excluded from entering the UK.
However, the British Government has long taken the position that it will not deport Irish citizens except when in exceptional circumstances in ‘the public interest’. The Government said that it will continue this approach after Brexit.
The UK has two separate deportation regimes. EU law currently applies to EEA citizens and their families including Irish citizens. There is also UK domestic law, which applies to non-EEA citizens. The threshold for deportation of non-EEA citizens is lower, meaning they are subject to stricter laws and are arguably ‘easier’ to deport. Under the UK Borders Act 2007, for example, the Home Secretary must issue a deportation order against non-EEA citizens in certain circumstances. These circumstances include when a non-EEA citizen has been sentenced to imprisonment for more than 12 months, if no exceptions apply.
After the UK leaves the EU, criminal conduct committed by EEA nationals will be subject to lower UK thresholds. This is because of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019/745. This is secondary legislation which will come into force on exit day under a no-deal, or the end of transition under a deal. The regulations will make changes to UK law to modify the provisions for deportation of EEA and Irish citizens.
As per the explanatory notes ‘the EU test of public policy or public security’ will continue to apply to the conduct of EEA nationals and their family members prior to commencement of these regulations. In the event of a no-deal Brexit, the Government has said that it will “keep out and deport more EU citizens who commit crimes by applying tougher UK criminality thresholds at the border and also when crimes are committed in the UK”.
While Irish citizens would become subject to stricter deportation laws, they would be excluded from automatic deportation provisions (unlike other EEA nationals). This would mean that the law would continue to allow Irish citizens to be deported in some circumstances, although the Government has committed to maintaining its approach against deporting Irish citizens after Brexit.
According to the Home Office’s immigration statistics there have been 180 Irish citizens ‘enforcedly removed’ from the UK in the period of 2004-2018.
This Insight has been adapted from House of Commons Library analysis originally published in the research briefing
- The Common Travel Area and the special status of Irish nationals in UK law, House of Commons Library.
About the author: This Insight was written by Hannah Wilkins, an immigration and asylum researcher, with assistance from Georgina Sturge. Both are senior researchers at the House of Commons Library.
Photo Credit NASA Earth Observatory images by Joshua Stevens.