The Common Travel Area between Britain and Ireland

Published date01 November 2001
Date01 November 2001
AuthorBernard Ryan
The Common Travel Area between Britain and Ireland
Bernard Ryan*
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.
Office and the National Archives of Ireland.4The account begins with the
establishment of the common travel area – initially, after the creation of the Irish
Free State in 1922, and again after the introduction of restrictions on movement
during the second world war. This is followed by a summary of the main elements
of the law relating to the common travel area – specifically, the status of Irish
nationals in British law and vice versa, the law on entry to each state from the
other, and the enforcement by each state of the other’s immigration policy. The
underlying reasons for the durability of the common travel area are then
considered, before a final section examines the changes in Irish law relating to the
common travel area which have resulted from the increased immigration and
asylum applications there since the mid-1990s. It will be suggested by way of
conclusion that the common travel area now faces a qualitatively new set of
pressures, the likely result of which is further reform in the laws and practices
which relate to it.5
The establishment of the common travel area
The absence of immigration controls between Britain and the Irish state has been
the norm for most of the period since the Irish Free State was founded on 6
December 1922. Prior to that date, aliens law had been enforced at Irish ports in the
same way as elsewhere in the United Kingdom. When the Home Office was faced
with the imminent establishment of the Free State, its view was that it ‘would not
propose to require under the Aliens Order a passport system between this country
and Ireland, and could not make any use of such a requirement if they were asked
to impose it’.6The status quo depended however upon Free State agreement to
continue to participate in the British system of immigration control, and two Home
Office officials visited Dublin in November 1922 in order to persuade the new
Ministry of Home Affairs to do so.7The Irish officials appear to have accepted the
proposal with enthusiasm, believing that co-operation was the most effective
means for the Free State to control aliens in general and ‘Bolshevists’ in
particular.8The terms of the co-operation between the two departments were
resolved at a further meeting in Dublin in December 1922, and confirmed in a
letter from the Home Office to the Ministry of Home Affairs in February 1923.9
The new arrangements provided that each state would enforce the other’s
conditions of landing for aliens; that the British suspect index and circulars relating
to aliens would be provided to the Irish authorities; that aliens who moved between
the two states would be subject to at most minimal registration requirements; and,
4 The following abbreviations are used for the archive material: Cabinet Office (CAB), Dominions
Office (DO), Foreign Office (FO) and Home Office (HO) files of the Public Record Office (PRO)
and Department of the Taoiseach (DT) files of the National Archives of Ireland (NAI).
5 Note that the position of the Channel Islands and the Isle of Man are not examined. In British law,
the Immigration Act 1971, s 1(3) defines the ‘common travel area’ to include the Channel Islands
and Isle of Man. The benefits which Irish immigration law confers upon British nationals and entry
from Britain also extend to the Channel Islands and the Isle of Man: see in particular the definition of
‘Great Britain’ in the Aliens Order 1946 (SR&O 1946 No 395).
6 ‘Aliens Restriction Passports for Ireland’ memorandum of 2 March 1922 (PRO, HO 45/ 14630).
7 Under the Anglo-Irish Treaty of 1921 a Provisional Government had been established in Dublin on
14 January 1922.
8 Report of O.F. Dawson, 7 December 1922, including a memorandum submitted to the Ministry of
Home Affairs on 22 November 1922 (PRO, HO 45/ 15629).
9 Report of E.B. Cooper of 15 December 1922 and letter from Home Office to Ministry of Home
Affairs, 2 February 1923 (PRO, HO 45/ 15629).
The Modern Law Review [Vol. 64
856 ßThe Modern Law Review Limited 2001

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