Borders: Free Movement and the Common Travel Area

Imelda Maher | 17 March 2020

© 2019 SCER

Should Scotland leave the UK and look to apply to join the EU, could it remain part of the UK/Ireland Common Travel Area or would it have to join the Schengen area, that ensures frontier-free movement of EU citizens? Remaining in the Common Travel Area (CTA) Scottish citizens would be free to move in the UK and Ireland.[i] Irish and British citizens would have free movement in Scotland. However, like Irish citizens, outside of Schengen, Scottish citizens would be subject to border controls entering other member states and other EU citizens would also be subject to border controls entering Scotland.

Here we explore the CTA and what issues might arise for Scotland should it look to remain part of the CTA, after independence and if it joined the EU.

Borders matter. As Tankard reminds us[ii], the word as a noun constitutes a splitting apart while as a verb it suggests adjoining and it is this double quality that reflects the complexity of land borders. The history of the EU has been one of emphasising the adjoining quality of internal borders rendering it a Europe without frontiers.[iii] Hence, under the Schengen Convention, there are no frontiers between states for their citizens.[iv]

Ireland and the UK (when a member) always stood apart from these arrangements. This was because Ireland and the UK already had their own Schengen area: the Common Travel Area, which emerged initially from inertia around inserting barriers to free movement between the two jurisdictions after the creation of the Irish state in the 1920s.[v] In essence, the CTA allowed for the complete free movement of British and Irish citizens between the two states. In fact, it goes a lot further than free movement across borders with full access to social welfare and extensive voting rights for example.[vi] There are no systematic passport checks on either side of the land border.[vii]

The CTA remains intact although more formalised, following Brexit. The endlessly flexible and largely unwritten CTA has now been committed to a written but still formally non-binding memorandum of understanding (MoU) between the two states. Following Brexit, Ireland retains its opt out from the Schengen area so it can retain borders with its fellow member states and continue with the CTA, privileging free movement with the UK and of British citizens over frontier-free movement in the EU.[viii] The Withdrawal Agreement expressly allows the CTA to continue and develop subject to fully respecting the EU Law rights of natural persons.[ix]

For an independent Scotland, minimising the land border with England and Wales would be important for the same cultural, economic and political reasons as it is for Ireland. It also would have only one land border which would be external to the EU and that would be with England. These factors would suggest that Scotland could look to remain in the CTA and outside the Schengen Convention for the same reasons as the UK (when a member) and Ireland.

There are two main legal issues that arise. First, Ireland and the UK would have to agree to Scotland joining the CTA. As it is enshrined in an MoU and is not a binding international agreement this could be achieved legally without much difficulty provided there was a political willingness to do so and the continuation of Scotland within the arrangement was not seen as interfering with Irish obligations under EU Law. In other words, a provision similar to that in the Withdrawal Agreement between the UK and Ireland would need to be set out, indicating that the CTA can continue and develop provided the EU law rights of natural persons continue to be respected.

Scotland would need to secure exemption from Schengen and permission to retain borders with fellow EU member states. On accession, new member states are required to accept the acquis communautaire of the EU i.e. the entirety of its statute book. In addition, Article 7 of Protocol 19 TEU (the Schengen Protocol) expressly states that new member states must accept in full the Schengen acquis and any measures taken in relation to it.[x] If Scotland wanted to be a party to the CTA, it will require an exemption from Schengen which can only be achieved as an amendment to the Protocol. This would have to be agreed ultimately by all the member states as the accession agreements between the EU and the accession state is subject to ratification by all the member states in accordance with their own constitutional requirements.[xi]

At the moment, several states are outside Schengen. Bulgaria (2007), Croatia (2013), Cyprus (2004) and Romania (2007) all joined the EU on the dates indicated but are not yet fully integrated into Schengen as they do not meet the conditions for removal of internal border controls. On the other hand, non-member states (Iceland, Liechtenstein, Norway, and Switzerland) are members of the Schengen border-free area. The position of Ireland is different as it enjoys an opt-out and this opt-out is what Scotland would seek to rely on in negotiations.

It would be possible – if the political will is forthcoming – for Scotland to be treated like Ireland and to remain outside Schengen and in the CTA, ensuring free movement of Scottish citizens throughout the UK and Ireland.

Thanks to Ronan Riordan for research assistance.

 

[i] See I. Maher, ‘Crossing the Irish Law Border after Brexit: The Common Travel Area and the Challenge of Trade’ (2018) Irish Yearbook of International Law 51

[ii] L. Tankard, Review of Roy Jacobsen, Borders (2017) World Literature Today, January 2017.

[iii] Article 26 TFEU “an area without frontiers in which the free movement of goods, persons, services and capital is ensured”.

[iv] Schengen being the town where the first agreement around removal of border controls for people was signed in 1985 see European Commission Directorate-General for Migration and Home Affairs on the Schengen Area. https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen_en

[v] I Maher, Crossing the Irish Land Border after Brexit: The Common Travel Area and the Challenge of Trade, (2018) Irish Yearbook of International Law 13, pp. 6 – 7.

[vi] See the Memorandum of Understanding between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland concerning the Common Travel Area and associated reciprocal rights and privileges. Regarding social provision see paragraphs 4, 10 & 11. With reference to voting rights see paragraph 13. See generally S.de Mars, C. Murray, A. O’Donoghue and B. Warwick, Discussion Paper on the Common Travel Area, research commissioned by the Joint Committee of the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission. http://www.nihrc.org/uploads/publications/Discussion_Paper_on_the_Common_Travel_Area.pdf

[vii] Although checks can be carried out under anti-terrorism legislation see Independent Chief Inspector, Inspection Report on Countering Abuse of the Common Travel Area in Northern Ireland and Scotland, May 2011.

[viii] Protocols 19 and 20 TEU.

[ix] The revised Ireland/Northern Ireland Protocol (Article 3) and the Political Declaration (Article 54).

[x] Protocols are integral to the EU treaties and carry the same legal status see Article 51TEU.

[xi] Article 49TEU. On treaty amendment see D. Hodson and I Maher, The Transformation of EU Treaty Making: The Rise of Parliaments, Referendums and Courts since 1950 Cambridge University Press, Cambridge, 2018

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UCD Sutherland School of Law

Prof. Imelda Maher MRIA is Dean of Law and Sutherland Full Professor of European Law in the UCD Sutherland School of Law