EU signals unique Brexit border arrangement for Ireland possible

When UK Brexit negotiators in Brussels last week agreed to safeguard a crucial element of the Common Travel Area (CTA) between Ireland and Britain it was an important negotiating advance in two key respects.

The guarantee that citizens from the rest of the EU would be able to continue travelling from Ireland to the UK without facing border checks meant that Ireland could maintain its own open door to all EU citizens, in conformity with its treaty obligations.

But in doing so the UK also addressed the problems likely to be caused by Brexit in a manner uniquely tailored to the problems faced in Ireland. It is certainly not going to maintain a similar open door at Dover to EU migrants.

The template for the CTA deal is an important acknowledgment by the UK of the viability of a central imperative articulated by the Commission in its “Guiding Principles” negotiating paper on Wednesday.

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The Commission task force insists that any solution involving the creation of a "frictionless" Border will have to be unique to the island of Ireland - the UK has seemed to insist in the past that Northern Ireland can not be treated differently to any other part of the UK.

But such a solution, the task force insists, will, like the broader UK Brexit deal, also have to respect the integrity of the EU’s legal order and single market. In other words, as a Commission source made very clear, there can be no question of suspending EU rules governing external borders: “What is clearly not ‘sufficient’ is what is on the table now [from the UK]. Notably to suspend all our controls and legal order in order to make this frictionless.”

Nor will the task force accept that a formula for the operation of the Irish border can be used as a precedent in the broader talks on Brexit. “We cannot have this talk of the Irish border as a test border,” the source close to the team said. “We cannot have the Irish border as something that can be easily replicated across all the other borders. Our starting point . . . it’s a unique situation. The starting point has to be that this is something specific that we have to find a specific solution and which can also work as a standalone solution. . .”

The other thrust of the Commission's four-page negotiating paper, which offers no specific solutions, remains its insistence that the responsibility for coming up with them lies with the UK. "The onus to present solutions which overcome the challenges created on the island of Ireland by the United Kingdom's withdrawal from the European Union and its decision to leave the customs union and the internal market remains on the United Kingdom, " the position paper argues.

That will involve a detailed mapping out by the UK of all the implications of Brexit on the areas of cross-Border and East-West co-operation which are spelled out in the Belfast Agreement - twelve in all - and which are for the most part now enshrined in legislation in the North which is predicated on membership by both parts of the island of the EU.

The work in untangling the number and ramifications of these legal obligations is now under way and a paper from the UK is expected soon. Only when the “mapping” of the scale of the problems is done can the talks move on to the technical discussions about how they are resolved.

The challenge remains huge and complex, not least in the area of agriculture and food, where strict veterinary and phytosanitary standards control the movement of products and will require border checks unless a specific deal can be done.

Although the UK has suggested that it may sign up to copying and then shadowing any changes in EU rules to obviate the need for border checks, Commission sources have warned that any acceptance of “equivalence” of standards also requires the third party country to have a regulatory/institutional regime in place to monitor and enforce them. In the EU, that means ultimately also a role for the European Court of Justice, which is anathema to the UK.

One way of dealing with this specific problem - and perhaps other North-South co-operation challenges - is to explore the possibility that, with the restoration of the Northern Executive - still a big “if” - the devolution of some new powers to the North, notably on agriculture and food standards, might allow a specifically tailored regime and institutions to be created in the North that mirrored those in the EU.

Such an approach would be complicated by the desire expressed by the UK to open up new agricultural product trade deals with states like the US which might insist on the right to sell its genetically modified produce into the UK market. There would have to be guarantees that such produce could not enter Northern Ireland if it was to maintain borderless trade on the island.

The emphasis on such distinctive and unique island-of-Ireland solutions to the Brexit challenge does not go as far as some politicians have suggested - the creation of a special EU status for Northern Ireland. But in a more pragmatic, case by case approach it does offer the opportunity to tailor-make solutions that have some of the advantages of the latter approach without necessarily triggering atavistic unionist political opposition.

Patrick Smyth is Europe Editor