Brexit: Theresa Villiers misleading on return of Border controls

Since the foundation of the Free State in 1922 the position of Irish citizens in the UK and of the citizens of England, Scotland and Wales in Ireland has been unique: nationals of each country are treated virtually identically to citizens. To date, there has been little for the EU to be concerned with regarding this special relationship.

But, the possible UK withdrawal from the EU means that a closer look at how the two countries' special relationship fits within EU rules and what Brexit could mean is needed. Northern Ireland Secretary Teresa Villiers now claims that, in the event of a Brexit, the border between Ireland and Northern Ireland will remain unchanged… but can she make that claim?

The openness of travel between the two islands dates from 1922 when the Free State decided to enforce the same travel restrictions as the UK. Neither country required passports for travel between each other. Following the Second World War, the UK’s 1949 Ireland Act formalised the special relationship by declaring that Ireland, while no longer a dominion of the UK, is not a “foreign country”.

In 1952, the Common Travel Area (CTA) came into place. This travel area covers the two states. The CTA enables UK and Irish nationals to be treated almost identically within both states. For example, UK citizens in Ireland and Irish citizens in the UK have the right to vote in local, national and European elections. Both sets of citizens enjoy unfettered access to employment, social welfare and healthcare.

Exceptions

The few exceptions to this equal treatment are political in nature: though Irish citizens can run for the UK Parliament, UK citizens cannot be elected to the Dáil, nor can they vote in constitutional referenda or Presidential elections.

The threat of Brexit has raised two very particular questions: first, does the special relationship still matter now that both countries are in the EU? And, second, if the UK leaves, what does this mean for Ireland? The welfare rights stemming from the special relationship are virtually identical to those that any EU citizen possesses. However, the UK’s welfare setup is very focused on the CTA: several UK welfare rights require prior residency in the CTA. While all EU nationals living within the CTA for a specific period can access these benefits, the rule is clearly there to benefit Irish and UK nationals living in Ireland who subsequently move to the UK.

So, while much of the ‘special relationship’ is now simply part and parcel of being an EU Member State, the CTA definitely still matters. This is why both states opted out of Schengen, which encompasses all other EU members as well as some non-EU states such as Norway, Switzerland, Iceland and Lichtenstein.

In pre-referendum negotiations, Prime Minister David Cameron promised not to apply any potential welfare restrictions for EU citizens to Irish nationals. EU law, however, requires equal treatment between all EU nationals, regardless of nationality. Cameron pointed to an EU Treaty Protocol permitting the CTA, but all it states is that ‘free movement’ between Ireland and the UK is allowed. It does not mention ‘special’ welfare arrangements-and it is optimistic to think that Brussels would go for a generous interpretation of this Protocol in the event of Brexit.

Difficult choices

If the UK fully withdraws from the EU, Ireland faces difficult choices. Should Ireland choose to join Schengen, the EU (and not Ireland) would determine how the Ireland-UK border would operate. This would also mean the EU would determine how UK nationals gain access to Ireland, whether as visitors or residents.

If Ireland did not join Schengen, the CTA might survive … but would this suit the UK? After all, EU nationals with a right to reside in Ireland can become Irish citizens and gain access to the UK that way. One of the primary reasons behind Leave campaign motivations is uncontrolled migration from within the EU. The ‘special relationship’ may be deemed as the last EU-related migration loophole that needs to be closed. Indeed, prominent leave campaigners such as former Chancellor Lord Lawson have suggested this will happen.

Teresa Villiers, also part of the Brexit campaign, argues that any risk of illegal migration through Ireland could be dealt with by UK authorities after such migrants arrive. However, this ignores two elements. First, that EU nationals with a right to reside in Ireland can become Irish citizens and gain access to the UK in a fully legal manner via the CTA. Second, that on Brexit, the UK-Ireland border would represent an external border to the EU as a whole. There are no other ‘external’ EU borders that do not come with concrete border controls, and while the UK and Ireland may have a special relationship, Ireland’s relationship with the EU will require it to protect the EU’s borders.

Minor exceptions

From the perspective of both the UK and Irish governments, the citizens of either country, with some minor exceptions, are identical. Passport-free travel and ease of access to employment has been the norm since Irish independence. Joining the EU did not change this; but one of the two countries leaving may have significant consequences on how free the movement between them remains. In the aftermath of Brexit, Ireland would have to think long and hard about which relationship to prioritise: the 27-member EU with its Schengen area, or the stand-alone UK?

Sylvia de Mars is a law lecturer at Newcastle University and Aoife O’Donoghue is senior lecturer in law at Durham University.