LAW CENTRE (NI) INFORMATION BRIEFING March 2012 IMMIGRATION - Strengthening the Common Travel Area At a glance A few years on from the withdrawal of UK government proposals to increase immigration controls between the Republic of Ireland and the UK, and as the Republic pilots a new visa waiver programme for UK visa holders travelling from Northern Ireland to the South, Anna Morvern explores the benefits of strengthening the Common Travel Area, by way of a mutually recognised visa system or a single visa system. Please note that Law Centre (NI) is planning to host a North South Immigration Forum on this issue in spring 2012. For further information, please contact Geraldine Scullion, Policy Officer at Law Centre (NI).
The Common Travel Area The Common Travel Area (CTA) comprises the United Kingdom, the Republic of Ireland and also the Channel Islands and the Isle of Man. It dates back to the establishment of the Irish State in the 1920s and is a free movement zone that enables CTA nationals to travel freely through the zone without being subject to immigration control. 1 Strong opposition to Clause 46 In 2008, the UK government proposed to reform the Common Travel Area, suggesting the introduction of identity and immigration controls for all passengers on air and sea routes between the Republic of Ireland and the UK. Furthermore, passengers travelling across the land border would have been subjected to ad hoc border control checks, whilst those who could not satisfy the immigration checks may have been turned around at the border or, worse, detained while immigration checks were carried out. 2 The Borders, Immigration and Citizenship Bill was introduced in 2009. It included a clause, Clause 46, which effectively would have abolished the CTA by removing the legislative provision that exempts from immigration control those people departing from or arriving in the UK within the CTA. There was cross-party criticism of the proposals and opposition in the Lords. Lord Glentoran stated during the parliamentary debates: "The Government, perhaps with the exception of the Northern Ireland Office, do not have a clue about the scale of major transportation in and out of Ireland, with heavy goods vehicles carrying imports and exports that keep the economies of those two countries going... I invite noble Lords to imagine customs posts, searches and all the paraphernalia of immigration that will destroy those local economies. "3 Concerns about impracticability and the impact on trade and tourism were expressed by many. In its response to the 2008 Consultation proposals, co-ordinated by Law Centre (NI), the Immigration Law Practitioners Association (ILPA) noted that communities along the border, especially near the sea crossings and areas where tourism is a cross-border pursuit, such as the lakes of Fermanagh, would be severely inconvenienced if the measures were adopted. ILPA foresaw particular problems for those people who reside on one side of the land border and who work or undertake regular activities on the other: If they are to have to carry a passport at all times, against the possibility of a random check, and produce it, this is going to impede free movement and their day to day lives. 4 Page 2
The proposals would have signified the end of the CTA in practice, but they did not make it onto the statute books and Clause 46 was dropped. The question that remains significant now is how the CTA can be strengthened and one obvious way forward would be by developing a mutually recognised visa system or a single system. How the current situation affects individuals The Law Centre receives many advice calls and sees many cases where people are hindered by the current lack of such a mutually recognised or single visa system: the UK work permit holder who cannot attend meetings with her/his company in Dublin; the student with a visa to study at Queen s University who wants to attend NUI Galway for a conference; the person granted refugee status in the Republic of Ireland who has to go through a complicated transfer application process to move lawfully to live with a partner in Northern Ireland 5 ; those who unwittingly stray across the land border with permission to be in only one part of the Common Travel Area and then become an illegal entrant subject to removal; tourists in the Republic whose visa does not allow them to visit the Giant s Causeway and the Titanic Exhibition. Above all, affected are all those individuals and families subject to immigration control who live along the approximately 280 miles of land border, who cannot lawfully cross from the Republic to go to their local shop, a pub down the road or the nearest petrol station because it is in the UK jurisdiction. The case for mutually approved visas ILPA has argued that future developments of the CTA should be based upon the Schengen model principles of transparency of arrangements and freedom of movement. 6 Schengen The Schengen area and cooperation are founded on the Schengen Agreement of 1985. The Schengen area represents a territory where the free movement of persons is guaranteed, and checks at internal borders are removed. The signatory states to the agreement have abolished all internal borders in lieu of a single external border. Here common rules and procedures are applied with regard to visas for short stays, asylum requests and border controls. The UK and the Republic of Ireland are the only EU countries not signed up to implement Schengen, and do not make up part of the Schengen area. Page 3
The durability of the CTA is underpinned by the sharing of culture, history, language, as well as crucial economic relationships between the Republic of Ireland and Northern Ireland, justifying the tenet of freedom of movement within the CTA. Mutual recognition of visas by the two jurisdictions or a single visa makes very good sense in principle. There is a distinction between mutually recognised visas and a single visa system. The latter will be a clear procedure applicable to all CTA countries with one fee. The former suggests possible multiple fees for the applicant depending on which CTA countries the person intends to visit. Moreover, on a practical level, a mutually recognised visa system could diminish the current chaos of immigration checks at ports of entry and border crossings. That reality is depicted by the Chief Inspector of the UK Border Agency (UKBA) in his recent report on immigration operations in Scotland and Northern Ireland. 7 He describes chaotic scenes at Belfast City Airport on a date when: Belfast Local Immigration Team enforcement teams were asking for identification; passengers were having to stop and search their bags to retrieve documentation again, having already shown their identification and travel documents to airline check-in staff; Border Force staff were also present carrying out detection duties for flights arriving from destinations within the CTA where the journey had originated outside the CTA, whilst Special Branch police officers were simultaneously present conducting their own checks. 8 Immigration control and ethnic profiling The chaotic scenes described by the Chief Inspector point to the concentration of immigration and identity checks in Northern Ireland. Racial/ethnic profiling Racial/ethnic profiling refers to the discriminatory practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual s race, ethnicity, religion or national origin. Indeed, a report by the Northern Ireland Human Rights Commission (NIHRC) quoted one senior UK Border Agency employee as saying, Belfast is like a giant airport. 9 This quote implies that Belfast, and quite possibly Northern Ireland as a whole, can be perceived by the immigration authorities as an arena where increased identity checks, intensified surveillance and a concentration of security-led immigration enforcement powers are justified. The risk of this perception is that immigration officers monitor people undertaking journeys into and out of Belfast, and indeed across Northern Ireland, with an intensity that simply would not exist elsewhere within the UK jurisdiction. Page 4
In that actuality lies not only hindrance to travelling individuals and deterrence from travel to - or across - the island of Ireland, for tourists and businesspeople alike, but also the unacceptable potential for racial and ethnic profiling, which legal practitioners and human right monitoring bodies have encountered. In 2009, NIHRC said that immigration operations in the Belfast area raised serious concerns in relation to racial profiling 10. Although there have been subsequent procedural changes to identity checks for immigration purposes 11, there is continued evidence of non-white travellers being singled out for checks: a report by the Migrant Rights Centre of Ireland (MRCI) published last year gives insights into the treatment of ethnic minority individuals travelling to and from Northern Ireland and being subject to checks in the Republic. It notes the increase in immigration checks and their political ramifications: Following the Good Friday Agreement, border checkpoints were removed but are now gradually being re-introduced for the purposes of immigration control. Such measures undermine the spirit of the Good Friday Agreement and need to be stopped. 12 The MRCI report was published in the wake of an important judgement in the High Court of Ireland, which ruled unconstitutional a statutory provision which made it a criminal offence for non nationals not to produce ID on demand. 13 The report emphasizes the grave consequences of ethnic profiling for the individual; these include deeply worrying psychological repercussions as those stopped are made to feel conspicuous, embarrassed, humiliated, even criminalized. The noted social consequences extend to damage to integration and social cohesion, racism and xenophobia, fraught relationships between minority ethnic communities, the general public and the police. 14 Republic s short stay waiver programme A mutually recognised visa system, or single CTA visa, could provide a less chaotic, more transparent and comprehensible travel system within the CTA. It is noteworthy that the Republic of Ireland has introduced a short stay visa waiver programme, which is a small but significant step in the direction of increased freedom of movement for non-cta nationals within the CTA. 15 Being piloted between July 2011 and October 2012, and apparently introduced primarily for economic reasons, to promote tourism, the scheme allows tourist and business visitors from specified countries with UK visas to visit the Republic without fulfilling the usual requirement of applying for a visa for the Republic. 16 Long-term UK residents from the same countries may journey to the Republic with the appropriate visa but without having to pay the visa fee that would normally be demanded. Page 5
So far, the scheme lacks mutuality, as visas are still required by the UK for the same travellers going in the opposite direction, from the Republic to Northern Ireland. Nonetheless, in an arena where the rhetoric is all too often narrowly focused on control and defence, it is an encouraging sign that governments are considering the practical and economic rewards of increased freedom of travel and therefore looking to implement shared visa arrangements within the CTA. Growing support for strengthening CTA The introduction of the new visa programme in the Republic of Ireland and the wholehearted rejection of the negative reform proposals in 2008 and 2009 can be interpreted as demonstrating growing political recognition of the far-reaching benefits of more flexible visa arrangements and less immigration controls between Northern Ireland and the Republic. For all those who value the ability to travel freely within the Common Travel Area, future developments in this area should be followed with interest. Notes 1. There is no formal agreement between Ireland and the UK regarding the Common Travel Area, but for UK statutory recognition see ss 1(3), 11(4) and 33(1) Immigration Act 1971, The Immigration Rules HC395, para 15, and the Immigration (Control of Entry through the Republic of Ireland) Order 1972, SI 1972/1610, as amended. For an overview and detailed legal analysis of the Common Travel Area and its history, see Macdonald s Immigration Law and Practice, Eighth Edition, pp 62 63, pp 282-312. For a fascinating comprehensive analysis of the history and content of the CTA, see The Common Travel Area between Britain and Ireland, Bernard Ryan, Modern Law Review, 64(6) pp.855-874. 2. Home Office UK Border Agency Consultation, Strengthening the Common Travel Area (24 July 2008) 3. Lords Hansard, Volume No. 707, Part No. 32, Column 1184 (11 February 2009) 4. ILPA Submission to the Home Office Consultation on Strengthening the Common Travel Area (16 October 2008) at www.ilpa.org.uk 5. UNHCR recommended that the UK and the Republic of Ireland consider mutually recognising the refugee status given to individuals by the respective jurisdictions and the attached conditions such as leave to remain and the right to work in order to safeguard those individuals right to enjoy freedom of movement within the CTA. See: UNHCR: UK Home Office s Consultation Paper entitled Strengthening the Common Travel Area, October 2008 6. ILPA Submission, see note 4. 7. Inspection of the UK Border Agency in Scotland and Northern Ireland: Countering Abuse of the Common Travel Area. August 2010 December 2010, Independent Chief Inspector of UKBA, John Vine. 8. Vine, pp.23 24. Of note, when describing the immigration operation that his team observed, Vine highlights the voluntary nature of the immigration checks but states of the caution given to those who are stopped: It clearly indicates that the stop and questioning is voluntary and that the person is not under arrest [ ] however, we did not witness any of the passengers taking advantage of the Plus 2 Page 6
element of the caution and refusing to answer questions. Clearly, it is to be anticipated that those stopped may feel too vulnerable to refuse to be questioned, or too confused about their rights to assert to an officer that they do not have to answer her/his questions. This is of concern for civil liberties. 9. Our Hidden Borders, Northern Ireland Human Rights Commission, April 2009, p.62. 10. Northern Ireland Human Rights Commission, p.65. 11. See Vine, note 7. 12. Singled Out: Exploratory study on ethnic profiling in Ireland and its impact on migrant workers and their families. Migrant Rights Centre Ireland, 2011. 13. Dokie v D.P.P. [2010] IEHC 110 (25 March 2011); MRCI Press Release, 28 March 2011 14. MRCI, 2011, see note 12. 15. See Irish Naturalisation and Immigration Service at www.inis.gov.ie/en/inis/pages/wp11000005 16. The countries are: Belarus, Montenegro, Russian Federation, Serbia, Turkey, Ukraine, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, the United Arab Emirates, India, Kazakhstan, Peoples Republic of China and Uzbekistan. Copyright Law Centre (NI) March2012 Immigration Advice: Mon to Fri 9.30am to 12 noon, 9024 4401 and 7126 2433 For more information about the Law Centre: www.lawcentreni.org Law Centre Page 7