Elizabeth Meehan looks to Ireland in her analysis of the Common Travel Area and the possibility of borders between Scotland and the rest of the United Kingdom. 

As the debate between London and Edinburgh about independence enters into foghorn diplomacy, discussion of the possibility of border controls both underplays and overplays the issues at stake. The SNP relies too heavily on a notion that the CTA is solely about freedom of movement of persons and seems too ready to take at face value assurances by Irish government spokespersons that Ireland remains free to conduct its own immigration policy. Conversely, in raising the spectre of inevitable controls, the UK government[i] seems to fail to allow for the possibility of common interests in both potential new states in the absence of controls – relying heavily, as it does, on the threat to an rUK implied in current SNP immigration policy. On the face of it, the UK position is correct. From the little that has been written about the origins and development of the CTA,[ii] it is clear that it enables freedom of movement because it rests on coordinated immigration policies on the ‘common outer perimeter’ as it was called. It is perhaps more in the popular imagination that it is about maintaining what I suppose in the Scottish context is the ‘social union’ or, in Ireland (north and south), ‘the totality of relationships amongst these islands’.

One difference between Ireland and the UK and a putative Scotland and rUK is that each of the first pair of states saw it as in their respective national interests to cooperate over who was allowed or denied entry. This is clear in the public records of both countries. The UK feared that the creation of the Irish Free State was a security risk as it opened up Britain’s ‘back door’. Ireland was nervous that ‘Bolsheviks’ and then displaced continental refugees might seek entry. Some in Ireland saw both of these as an economic and cultural threat to the consolidation of a socially cohesive new nation-state. Moreover, both states would have found it impossible to have policed the border between Ireland and Northern Ireland with its arcane shape, hundreds of road crossings and scores of rail crossings. It was also in the interests of both governments – for shared and different reasons - to facilitate freedom of movement for their own citizens. Except when it was thought wise to discourage emigration, the Irish government believed freedom of movement was valued by its citizens with so many family ties in Great Britain. Equally, the UK government welcomed the fact that freedom of movement facilitated the recruitment of Irish labour. In contrast, Scotland and rUK seemingly have divergent interests in who, how many, and why people may be allowed entry. It should be noted, however, that the UK’s immediate rejection of the idea of free movement in a post-independence situation seems to assume that, after a vote for independence, the SNP would once again form a majority government. Who knows what a government of a different complexion would think about exercising coordinated immigration policies?

Another difference between the one pair of states and the other is that Irish governments from the 1920s saw themselves as susceptible to being accused of neo-colonialism – of ‘kow-towing’ to UK immigration demands. This was compounded by the fact that, to the chagrin of Irish governments, Irish citizens could enter the UK freely because, until 1948, British law continued to define them in the same way as all Commonwealth nationals and people born and bred in the UK - as subjects of the United Kingdom and Colonies.[iii] Until 1962, all had the same entry, residence and employment rights as one another. Such concerns underlie the Irish practice of coordinating immigration on the basis of ‘administrative arrangements’, rather than law, and a kind of studied indifference to any questions in the Dáil or elsewhere about the impact on Ireland of changes in British immigration law. Even though Irish governments became less reticent about openly referring to the CTA because of the Schengen opt-outs in the Amsterdam Treaty, this same apparent disinterest in UK immigration was reiterated in a recent statement by a an official in Ireland’s Department of Justice, Equality and Law Reform that: ‘The CTA in no way alters our control over immigration or visa matters and who can or cannot enter or reside in Ireland’.[iv] (It is also worth noting that the Irish government is deeply interested in the implications of both forthcoming referendums in the UK, while maintaining a tactful restraint in what it says.[v]) In the Scotland versus rUK situation, there is little antipathy on either side towards the coexistence in Scotland of Scottish and British citizenship that compares with the dislike in the young Ireland of the notion of the common citizenship or subjecthood of the UK and Colonies.[vi] Not only has the Commonwealth virtually disappeared as the root of free movement and rights, it has also been overtaken somewhat by EU principles. But, in current circumstances, the EU is a less certain basis for Scotland than the Commonwealth was for Ireland.

It is, indeed, true that, over the course of the CTA, Irish and British immigration policies have varied in both detail and substance; for example, in connection with CTA implementation details, visa requirements, conditions to be met by tourists, leave to remain on a longer-term basis, residence, work permits and employment permits, naturalization, deportation and over asylum-seekers and refugees. But striking consistencies are also evident.

From 1922-24 until the 1930s, aliens who would be excluded by one state were inadmissible in the other, to prevent them from making use of the absence of controls on routes between the two. With respect to admissible travellers, the two states provided each other with duplicate landing cards. The two states also agreed to share the names of people on each other’s ‘Suspect Index’ and to notify each other of action taken over the wish of a ‘suspect’ to land. At first, the two countries also had a common list of countries whose nationals would require visas. Both states were satisfied that the system worked well. Had it not, it would not have been possible to restore the system after restrictions to it during and just after the Second World War. Following this period of restrictions (which included controls between Northern Ireland, as well as Ireland, and Great Britain), the CTA was re‐established in 1952 after official‐level talks, authorized by the Irish cabinet to reach agreement on ‘informal arrangements’. Similar arrangements for the ‘Suspect Index’ resumed, as did the undertaking not to allow anyone to land in one state who would not be admitted to the other. But the new arrangements were to be stricter in various ways outlined in the sources at note 1. One departure from the previous arrangement was that there would no longer be a common list of countries whose nationals required visas to enter either state, though operational coordination would continue. This it did and an enhanced data-sharing system came in to effect in 2013.

In 1962, at the same time of the first applications by both states to the EEC, the UK introduced its first restrictions on rights of entry and residence for Commonwealth nationals. While formally applying to the Irish, British immigration officers were directed not to apply the controls at ‘Anglo‐Irish ports’. The single immigration unit was revisited between 1966 and 1975 when the UK introduced further restrictions on Commonwealth nationals. In between, the Irish amended its 1962 Aliens Order to counter the possibility of displaced East African Asians seeking to enter the UK via Ireland. At the time of actual accession to the EEC, the UK had just introduced a new Immigration Act in 1971 which came into effect via regulations in 1973. From the Irish point of view, this was an improvement; now, Irish passengers could travel to the UK without controls, not because of disregarding them at ports of entry from Ireland, but as a result of statutory recognition in the UK of the CTA, a position restated by the new Labour government in 1974. Things remained much the same for the next twenty years until the growth of concerns in both states about increased asylum-seeking and that Northern Ireland was a conduit for illegal immigration in either direction.

Various alterations by Ireland to the freedom of movement dimension to counteract illegal immigration took place at different times. These included practices condemned by British Irish Inter-Parliamentary Assembly Members[vii] as marking the end of the CTA by Ireland; random checks on busses and trains from the north, regular requirements on air passengers from Great Britain to show photographic identification (not necessarily passports) and, moreover, at immigration control desks (while passengers from Ireland to British airports continued to use domestic arrival channels). During this period, the two governments also agreed upon an enhanced programme of meetings of officials. The UK e-borders initiative put the boot on the other foot, appearing as it did in the Irish Times front page headline of 24 October 2007: ‘Electronic border control spells end of Common Travel Area’- by ‘sealing off the two islands’. These reactions are symptomatic of the popular view that the CTA is primarily for the purpose of free movement. What both governments intended to put in place, however, was a technological version of the ‘common outer perimeter’. By 2009, an electronic data‐collection system would be placed on all sea and air travel to and from the UK. This would raise an ‘alert’ if the person travelling were on a ‘watch‐list’. The Irish Border Information System was announced in January 2009 and expected to be effective by 2010 when passenger information collected by carriers would be sent in advance of travel to an Irish Operations Centre for screening against various ‘watch lists’. If matches were found, the relevant agency would be alerted and action taken ‘to monitor, intercept, question, stop or arrest the individual concerned’. How this would work in practice was of concern in both parts of the island. The only logical possibility seemed to be two electronic rings, one round Ireland, north and south, and the other round Great Britain. This could have entailed British citizens travelling between Northern Ireland and Great Britain being treated in the same way as aliens and all citizens crossing the north-south border being subject to ‘intelligence-led’ checks.

In contrast to Ireland where changes are a matter of administration, legislation was required in the UK. The Labour government’s proposal was to subject all CTA routes to passport controls and to operate intelligence‐led checks on the north‐south border. This appeared in the ‘portmanteau’ Borders, Citizenship and Immigration Bill (enacted in 2009) at clause 46 (later renumbered as 48). It was introduced first in the House of Lords, rather than the Commons. Clause 48 was defeated as a result of opposition led by Liberal Democrat and Conservative peers who were attached to the free movement leg of the CTA, keen to maintain harmonious British-Irish intergovernmental and popular relations, concerned about UK citizens in Northern Ireland, and concerned that intelligence-led checks could turn out to be little more than ‘racial profiling’. At the Bill’s third reading, the Home Office Minister (Lord West) stressed the immigration control dimension of the CTA, suggesting that security risks were so severe that the matter would have to be looked at again in the Commons.

The government’s threat to restore the defeated clause in the House of Commons did not materialize because of opposition there too. And then there was a new government. But the story of Clause 48 and the CTA’s history do highlight that, from the governmental points of view, the CTA is as much, if not more, about immigration control than popular convenience and enjoyment.