Irish Citizens and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Introduction

The position of Irish citizens as regards UK immigration law is anomalous. First, under arrangements known as the Common Travel Area (CTA), ordinarily, they are not subject to control and do not require leave to enter when arriving in the UK on a local journey from the Republic of Ireland, the Channel Islands, or the Isle of Man. Second, under EU law they have the right of admission to the UK as part of the body of rights associated with the EU free movement of persons. After the end of the Brexit transition period (31 December 2020), EU free movement rights will come to an end. In order to provide for Irish citizens seeking to enter the UK from any country or territory outside the CTA, the Immigration and Social Security Co-ordination (EU Withdrawal) Bill makes provision.

The Common Travel Area (CTA)

Prior to 31 March 1922, as a matter of UK law, the territory presently comprised in the Republic of Ireland formed part of the United Kingdom. There was a common travel area as all journeys within the British Isles were internal, i.e. they were within the same country. From 31 March 1922 the Irish Free State was constituted as a separate state from the UK, albeit still a part of the Crown’s dominions. Under administrative arrangements formalised in 1923 there remained a common travel area between the UK and the Irish Free State.

A further series of legislative reforms in Ireland, culminating in its 1937 Constitution, and its renaming as Eire or Ireland, weakened the link to the Crown, however the common travel area arrangements remained. At the time, as far as the UK (though from 1935 onwards, not Ireland) was concerned Irish citizens remained British subjects and therefore were free to enter the UK as a matter of common law, see my blog post Irish British Subjects for fuller consideration.

The termination of constitutional links with the Crown occurred when the Republic of Ireland Act 1948 was passed in Eire. Thereafter, on 18 April 1949, Ireland’s status as a Republic was affirmed in UK law by the Ireland Act 1949. However, the continuing intimacy between the two states is reflected in that Act, which provides that Ireland, while no longer a British possession or a Commonwealth member state, is nonetheless not to be treated as ‘foreign’ for the purposes of the law in force in the UK and in other British possessions. Further, although travel between the island of Ireland and Great Britain was disrupted by measures put in place during the Second World War, so that the common travel area was impaired, in 1952 further agreement was reached discretely to re-establish the common travel area on a new footing. Thus it seems that the common travel area arrangements survived and Irish citizens continued not to be treated as aliens (foreigners).

However, under the Commonwealth Immigrants Act 1962 Irish citizens, in common with most other Commonwealth citizens, became subject to UK immigration control and were exposed to UK deportation powers. Thereafter that state of affairs was further modified by the Immigration Act 1971 (‘the 1971 Act’), which put the CTA on a statutory footing.

The 1971 Act, section 1(3), provides that persons arriving in the UK on a local journey from the Republic of Ireland, the Channel Islands, or the Isle of Man (territories that unless otherwise excluded are, together with the UK, known as the CTA), are not subject to immigration control and do not require leave to enter. That broad approach is then cut down considerably by the Immigration (Control of Entry through Republic of Ireland) Order 1972 (‘the 1972 Order’), which regulates persons subject to immigration control who  arrive in the UK from Ireland and, further,  any person subject to an exclusion order who arrives in the UK. Apart for the latter provision for exclusion orders, the 1972 Order leaves Irish citizens free from immigration control when arriving in the UK from Ireland. Thereafter, section 9 of the 1971 Act allows for the deportation and exclusion of Irish citizens, notwithstanding the CTA provision.

Irish Citizens arriving in the UK from outside the Common Travel Area (CTA)

Prior to the end of the Brexit transition period (31 December 2020), EU free movement of persons provisions apply to Irish citizens (as EU citizens) who seek admission to the UK from anywhere outside the CTA. EU law provides a discreet regime regulating the position of EU citizens and their family members as regards admission to, residence in, and expulsion from, the UK. In other words, EU free movement law is a self-contained immigration control regime, albeit one of a liberal character. After the end of the Brexit transition period (31 December 2020) and the end of EU free movement, absent new provision, Irish citizens seeking to enter the UK from outside the CTA would become subject to the full force of UK immigration control and the UK Immigration Rules. Wisely the UK government has considered such an outcome undesirable and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill makes new provision.

In addition to the EU free movement regime, Irish citizens seeking to enter the UK, otherwise than on a local journey within the CTA, may be controlled and excluded as subject to a travel ban made under an international instrument (a UN Security Council Resolution or instrument of the Council of the European Union), see s 8B of the 1971 Act.

Immigration Controls on Irish Citizens arriving in the UK from anywhere

 At present, irrespective of whether an Irish citizen seeks to or has entered the UK from the CTA or the rest of the world, under the 1971 Act she may be made the subject of a deportation order, or an exclusion order in the interests of national security, see sections 3, 5, and 9 of the 1971 Act; albeit that the thresholds for such steps being taken are very high and rarely if ever reached.

The New Provisions in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill introduces provisions into the 1971 Act that will operate alongside the CTA regime provided for in that Act once EU free movement comes to an end. Clause 2 of the Bill introduces section 3ZA into the 1971 Act to provide that, absent one or more of three exceptional circumstances (see below), Irish citizens do not require leave to enter or remain in the UK.

Unlike those entering from within the CTA, those entering from outside the CTA will still be subject to immigration control but they will not require leave to enter or remain. As with those entering from within the CTA at present, there will be no time limit on the period for which they may remain. As with those entering from within the CTA at present, no restrictions on work, study, and residence may be imposed. In the result, from 2021 onwards (i.e. after the Brexit transition period comes to an end), an Irish citizen banker or self-employed journalist arriving in the UK from anywhere  for the first time will be free to work, whereas their fellow EU citizens, a German banker and a self-employed Italian journalist, similarly arriving for the first time, will not. Both will have lost EU free movement rights but the Irish citizens will have CTA rights, whereas the German citizen and the Italian citizen  (where not covered by the EU-UK Withdrawal Agreement) will be subject to UK Immigration Rules

In the proposed section 3ZA of the 1971 Act, the first exception to the freedom from the requirement for leave  is where an Irish citizen is subject to a deportation order; the second exception is where there are extant directions for the Irish citizen’s exclusion (on ‘conducive to the public good’ grounds, NB note the absence of any reference to national security criteria, thus it appears the power to exclude is now broader) and she has had notice of the same; and the third exception is where the Irish citizen is excluded by virtue of being subject to a travel ban made under an international instrument (NB from the end of the transition period (31 December 2020), the 1972 Order is amended so that this also applies to those who arrive in the UK from Ireland).

Further, section 3ZA of the 1971 Act will make explicit that where an exception applies, an Irish citizen arriving in the UK on a local journey from anywhere in the CTA, may not enter the UK without leave. In other words, a grant of leave to enter will be required.

Finally, there are further minor amendments. One removes Irish citizens from the exclusion that prohibits them from entering the UK without leave on a local journey from within the CTA, where they have at any time been refused leave to enter the UK and have not since been given leave to enter. This amendment is to ensure that from the end of the Brexit transition period (31 December 2020), the position of those Irish citizens arriving in the UK on a local journey from within the CTA, is the same as those arriving from elsewhere (i.e.  subject to new section 3ZA of the 1971 Act). The other minor amendment ensures a consistency of approach as between the UK immigration control regime and the equivalent regimes that apply in the other British territories in the CTA: the Channel Islands and the Isle of Man. It is made  in the context of clause 7 of the Bill, allowing for the provisions of clause 2 (providing for Irish citizens in respect of UK immigration control), to be extended to the immigration control regimes in those territories.

What’s missing?

There is no provision to capture the distinct position of Irish citizens (who are not also British citizens) who fall within the scope of the Good Friday Agreement as belonging to the people of Northern Ireland. Such persons ought not to be liable to deportation. Further, an opportunity has been missed to give statutory form to the high threshold (‘exceptional circumstances’) that that must be leapt over by the Secretary of State before an Irish citizen may be deported in the public interest.

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