With the end of Theresa May’s premiership the Withdrawal Agreement she had concluded with the EU receded out of her reach, in a “here’s-what-you-could-have-won” game-show moment. But what does she take home? What international agreement can be set against her three-year tenure in Downing Street? The Common Travel Area Memorandum of Understanding, concluded in May 2018, could be cast as her solitary “set-of-steak-knives” consolation prize, writes Colin Murray (Newcastle University).

The Common Travel Area Memorandum of Understanding deal is in many respects ancillary to the now seemingly defunct Withdrawal Agreement; substantive CTA arrangements are explicitly permitted in Article 5 of its Ireland/Northern Ireland Protocol. The MoU sat ready to action for months, awaiting the completion of the overarching Withdrawal Agreement. Only as Theresa May’s premiership slipped away did the Irish government anxiously seek sign off of the new CTA arrangements, likely out of (justified) concern over how her successor might approach the MoU, especially if issues relating to the Irish border played a prominent role in the Conservative leadership campaign. This post evaluates whether, against the backdrop of Brexit, the new MoU will have an impact which transcends the inauspicious circumstances in which it was signed. It begins by examining why Brexit put such strain on the existing CTA arrangements, before exploring effects of the new MoU for those who rely upon the CTA and for UK-Ireland relations.

Lacking foundation in international law

The CTA has existed (baring a hiatus during the second world war and its aftermath) for nearly a century, but in all that time it has not been the subject of a formal international agreement. It has instead functioned on the basis of backroom deals by the UK and Ireland to operate a free movement zone, which also encompasses the Channel Islands and the Isle of Man, thereby alleviating the need for immigration controls at borders and ports of entry. Over the decades, both countries also extended broadly reciprocal rights and obligations to each other’s citizens, which saw them treated much more like home citizens than other people from third countries. Because none of these arrangements, however, was the product of a binding international obligation, the CTA or associated rights could be ended abruptly. They might as well have been written in sand.

Many of the measures underpinning the CTA and the rights associated with it in domestic law, particularly the UK’s Ireland Act 1949 and Immigration Act 1971, are dated. These pieces of legislation, respectively, don’t correspond to the realities of international travel or provide an effective basis for litigation. Instead, since Ireland and the UK joined the then-EEC, the CTA has been reliant upon European Law, and particularly free movement law, to provide an operational basis for many of the rights enjoyed by Irish citizens in the UK and UK citizens in Ireland. The UK’s impending exit from the EU, therefore, poses something of a crisis for the CTA.

Crisis averted? Reforming the CTA

The CTA MoU amounts to Ireland and the UK’s most visible response to this crisis. Paragraph 14 commits Ireland and the UK ‘to ensuring that any necessary steps are taken to give effect to the associated reciprocal rights and privileges’ outlined within the memorandum. This commitment is important because it explicitly links to the CTA the provision of rights for each other’s citizens in fields such as healthcare, social security and education.

Prior to this agreement, the CTA might be best thought of as an immigration arrangement. The broader rights that the UK and Ireland extended to each other’s citizens were a matter of domestic law. They might have been roughly equivalent, but no international instrument obliged this reciprocity (outside the specific area of social security). Talking of such rights alongside the CTA could, therefore, be treated as an act of conflation.

This development stands out next to efforts by Prosperity UK’s Alternate Arrangements Commission to continue to characterise the CTA as primarily about managing movements of people at borders. Such statements, perhaps intentionally, simplify the nature of the CTA. They could be accused of playing to an audience which is intensely sceptical of any international commitments which tie the UK’s hands and prevent it from “taking back control” of its treatment of resident foreign nationals.

Following the conclusion of the MoU, the reduction of rights for UK citizens in Ireland, or Irish citizens in the UK, can be called out as a breach of the CTA commitments of the state in question. Beyond such clarifications, however, is there any more value in the new MoU?

The legal value of the CTA Memorandum of Understanding

The CTA MoU is an intergovernmental arrangement; an agreement amongst friendly parties. This makes it very different from a binding international agreement. As paragraph 17 of the MoU asserts, it ‘is not of itself intended to create legally binding obligations. The longstanding durability of the CTA has benefited from a degree of flexibility and the detail of the foregoing arrangements may continue to evolve’.

The excuse about the CTA’s flexible character conditioning the nature of the arrangement is flimsy. Treaty arrangements between the two countries can easily be flexible. The only part of the CTA covered by a binding treaty, the measures relating to social security, has been updated on multiple occasions since it was first concluded in 1960. The current UK-Ireland Convention on Social Security, for example, can be terminated by either party with six-months’ notice. What cannot be terminated in this way, however, are rights already accrued under the arrangements.

Which brings us to the main problem with the new CTA MoU; it remains written in sand. Its terms might bring additional clarity to the scope of the CTA, but a government in the UK or Ireland which is hostile to the arrangement can rapidly wash it away or pick holes in it. And if individuals who rely upon the CTA to support the life they have made for themselves (as Irish immigrants in the UK, or immigrants from the UK in Ireland) the terms of this commitment are unlikely to be as influential upon a court deciding upon litigation as an international agreement would be.

The CTA and the GFA

A further difficulty is the degree to which the UK Home Office is already struggling with the complexity of the rights of Irish citizens in the UK, a situation which Brexit will exacerbate. The Belfast/Good Friday Agreement provides that it is the birthright of the people of Northern Ireland to identify as British, Irish, or both. This means that a person born in Northern Ireland can choose to assert their identity by claiming an Irish passport rather than a UK one.

Such individuals have a right to be treated exactly as home citizens, as they belong to the people of Northern Ireland, a constituent part of the UK. Thus, even though they identify as Irish, they can, for example, apply for posts protected under the UK Civil Service Nationality Rules, whereas other Irish citizens cannot. An additional difficulty emerges, however, if such individuals seek to assert their rights as EU citizens (which both the UK and EU agreed to protect in the Joint Report of December 2017).

The ongoing importance of EU law

All of this means that, if Irish citizens in the UK want to secure their rights to access public services after Brexit, they should strongly consider registering under whatever settled-status arrangements cover EU citizens post-Brexit. If there is an agreement between the UK and EU on settled-status rights, then these terms will be binding upon the UK as a matter of international law. If the eventual settlement of these issues looks anything like the provisions of the Withdrawal Agreement presently on the table, it will provide avenues for challenging state failures with regard to these rights that are not available under the CTA.

It will also cover rights which the CTA does not allow for. At present, EU citizens are able to move to the UK for work and bring a third-county spouse (say, a Canadian or Nigerian citizen) with them. The UK imposes strict rules, including income thresholds, before it will grant residency to third-country spouses of its own citizens. In other words, EU citizens are in a materially better position than UK citizens. The CTA, with its grant of rough equivalence for Irish citizens in the UK (and vice versa) would therefore amount to a reduction in rights for affected people.

Not all Irish citizens, moreover, can register for such rights. The UK government insist that people from Northern Ireland exercising their GFA birthright to identify as Irish, are not eligible to apply for settled status, because they are treated as UK citizens under the British Nationality Act 1981. A legal challenge by Emma de Souza is ongoing over whether an individual would first have to formally renounce their UK citizenship before asserting EU citizenship rights (specifically, rights regarding third-country spouses). The UK’s efforts to maintain two distinct categories of Irish citizen is likely to become even more fraught against the backdrop of Brexit.

Flattering to deceive

At least, when questions are asked in future about the nature and scope of the CTA, there is now some level of clarity as to what the Irish and UK governments understand it to involve. Or perhaps that should be, at most. The CTA MoU does not, indeed cannot, prevent the ongoing turmoil over the nature of the Irish border after Brexit. An agreement to facilitate the movement of persons between the UK and Ireland (and some associated rights) will not, of itself, keep the land border in Ireland all-but-invisible for private purposes, irrespective of its legal status.

It could only do so alongside an agreement between the UK and EU on goods transit across the border in Ireland (to prevent customs infrastructure) and regulatory alignment (to prevent compliance checks). As a result, the CTA Memorandum of Understanding does little to diffuse the tension in UK-Ireland relations generated by Brexit. Even Theresa May’s consolation prize, her set of steak knives, turns out to be blunt.

This post represents the views of the author and not those of the Brexit blog, nor LSE. Image by Number 10 Some rights reserved.

Colin Murray is a Reader in Public Law at Newcastle University. He is Principle Investigator for the Performing Identities project, supported by an Economic and Social Research Council Governance After Brexit Grant (ref. ES/S006214/1). He is a co-author of Bordering Two Unions: Northern Ireland and Brexit (Policy Press, 2018) – available open access.