The Common Travel Area between Britain and Ireland
Despite its endorsement by the Treaty of Amsterdam, the origins and content of
the `common travel area'between Britain and Ireland remain largely unknown.
This article relies upon published and archive material in order to provide a
comprehensive analysis of the common travel area. It shows that the common
travel area has been founded upon administrative agreements (in 1922 and 1952),
that it has influenced the special status of Irish nationals in British law and vice
versa, and that it has been reflected in the law on entry to each state from the
other and in the enforcement by each state of the other’s immigration policy. It
goes on to argue that the existence of a land border between the two states has
been the primary reason for the common travel area. The implications for the
common travel area of the recent increase in immigration to Ireland are then
examined. Here, it is shown there have been significant changes to Irish
immigration law relating to the common travel area since 1997, and it is
suggested that these new circumstances may result in further reform of laws and
practices in both Britain and Ireland.
The common travel area has acquired new prominence since the 1997 Treaty of
Amsterdam confirmed that Britain and Ireland1would remain separate from the
Schengen system of open borders.2The special relationship between Britain and
Ireland in immigration matters was also specifically endorsed by a Protocol to the
European Treaties agreed at Amsterdam, which provides that the two states may
‘continue to make arrangements between themselves relating to the movement of
persons between their territories (the Common Travel Area)’.3The recognition
given to the common travel area by the Treaty of Amsterdam was highly unusual,
however. It fitted awkwardly with the prior reluctance of British and Irish
governments to admit that there were ‘arrangements . .. relating to the movement
of persons’ between them. Even after the Treaty of Amsterdam, it remains the case
that the content of those ‘arrangements’ has not been publicised by the two states.
This article sets out to provide a comprehensive analysis of the history and the
content of the common travel area. In order to do so, reliance is placed both upon
published sources and upon archive material obtained from the Public Record
ßThe Modern Law Review Limited 2001 (MLR 64:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 855
* Lecturer in Law, University of Kent at Canterbury. The part of the research for this article which was
conducted in Dublin was made possible by a grant from the Society of Public Teachers of Law and by the
facilities made available by the Faculty of Law of University College Dublin. I would like to thank them
for their support. I would also like to thank John Fitzpatrick, Steve Peers, Harm Schepel and Sophie
Vigneron for their valuable comments on the article in draft.
1 The term ‘Britain’ is used here as a synonym for the United Kingdom. The terms ‘Irish Free State’
and ‘Ireland’ are used to refer to the Irish state before and after the adoption of the 1937 Constitution
of Ireland, save that the terms ‘Eire’, ‘Irish Republic’ and ‘Republic of Ireland’ are used where they
appear in a quotation. The terms ‘Great Britain’ and ‘the island of Ireland’ are used to refer to each of
the two islands.
2 For a discussion of the legal provisions, see M. Hedemann-Robinson, ‘The Area of Freedom,
Security and Justice with regard to the UK, Ireland and Denmark: The ‘‘Opt-in Opt-Outs’’ under the
Treaty of Amsterdam’ in D. O’Keeffe and P. Twomey, Legal Issues of the Amsterdam Treaty
(Oxford: Hart, 1999) 291–294.
3 Protocol on the application of certain aspects of Art 7a of the Treaty establishing the European
Community to the United Kingdom and to Ireland, Art 2.