Brexit, Employment & Immigration – The “Common Travel Area”

While nobody can predict the exact outcome of the Brexit negotiations, the UK is likely to leave the European Union at the end of next month (or a date shortly thereafter) and employers should plan accordingly. In a series of updates over the coming months, we will consider the employment and immigration implications of Brexit.

This article considers the Common Travel Area (CTA), an arrangement between Ireland and the United Kingdom (including the Channel Islands and the Isle of Man), which allows Irish citizens to freely travel, work and access social welfare benefits and health services in the UK (and UK citizens to have reciprocal rights in Ireland). The CTA pre-dates Irish and UK membership of the EU, and is not dependent on it. In this way, Ireland is in a different position to other EU countries in respect of its relationship with the UK, and specifically in terms of the right to travel and work following Brexit. 

The CTA has always been an informal arrangement and is not grounded in any specific treaty. The CTA has been recognized in Brexit negotiations and there is an agreement in the draft Protocol on Ireland and Northern Ireland that Ireland and the UK may “continue to make arrangements between themselves relating to the movement of persons between their territories”. The CTA has also been recognized in the Third Protocol to the Treaty of Amsterdam, and Protocol 20 of the Treaty on the Functioning of the European Union, which provides that the UK and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories.

The British and Irish governments have indicated their intention to preserve the CTA and all associated rights and privileges. On 24 January 2019, the Irish Government published a general scheme of proposed primary legislative measures as part of the Brexit Contingency Action Plan. In an associated press release, the Department of Foreign Affairs and Trade stated that:

“Protecting and maintaining the Common Travel Area and the associated rights and privileges is a key part of our contingency planning and preparations. This is vital in the context of the Good Friday Agreement and the Northern Ireland Peace Process, as well as broader UK-Ireland relations. Both the Irish and British Governments are committed to maintaining the Common Travel Area in all circumstances, and have committed to undertaking all the work necessary, including through legislative provision to ensure that the Common Travel Area rights and privileges are protected.”

In guidance updated on 19 December 2018, the British Government has confirmed that in the case of a “no deal Brexit”, Irish citizens will “continue to have the right to enter and remain in the UK, as now”. The guidance goes further to state that:

“[Irish citizens] will continue to have the same reciprocal rights associated with the CTA in the same way that British citizens in Ireland would if there is no deal. These rights include the right to work, study and vote, access to social welfare benefits and health services. Where required, domestic legislation and agreements will be updated to ensure that the CTA rights continue to have a clear legal basis.”

There is significant cross-pollination between Ireland and the UK. Irish census statistics in 2016 estimated that approximately 103,113 UK nationals were living in the State. British census statistics from 2011 estimated that 430,000 Irish born people were resident in Great Britain. Many thousands of people also commute daily between Ireland and the UK for work. The expectation is that the CTA will be protected, whatever the outcome of Brexit. Hopefully, that expectation will be fulfilled, as a failure to protect the CTA would cause havoc for employers in both Ireland and the UK.

By ByrneWallace, Ireland, a Transatlantic Law International Affiliated Firm.  

For further information, please contact Emmet Whelan at irelandlabor@transatlanticlaw.com

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