Brexit and the risks of a ‘racist’ land border in Ireland

The recent UK Government Northern Ireland and Ireland Position Paper describes the Common Travel Area (CTA) as “a special border-free zone comprising the UK, Ireland, the Channel Islands and the Isle of Man.” UK Immigration law prohibits passport control on journeys within the CTA, including those on the Ireland-Northern Ireland land border.

Save for a brief period of suspension in the Second World War, this arrangement has existed since partition in 1921-2. The CTA is, however, about the freedom of movement of people; before the accession of both countries to the EU and the establishment of the single market there were 17 HM Customs and Excise Posts at major crossing points, with 200+ other crossings not approved for vehicles. The peace process led to complete demilitarisation of the border and the opening of all border roads. The CTA as a passport free zone persisted throughout these developments.

Back in 2008 however the CTA was all set for change. A Bill before parliament was to amend the 1971 Act and allow for border control checks on journeys within the CTA. The proposal was for ‘ad hoc’ mobile immigration patrols which we were told would only target ‘non British and Irish citizens’. British and Irish citizens were to continue not to have to carry passports or other identity documents, but citizens from the rest of the planet would be expected to. This was to be complemented by ID checks of people travelling between Northern Ireland ports and airports and Great Britain.

The Northern Ireland Human Rights Commission raised concerns about the obvious question of how ‘ad hoc’ controls were going to tell who was a British and Irish citizen and who was not. Who would have to carry a passport, or face questioning, and even administrative detention, for not doing so?

This would clearly have led to widespread racial profiling – the form of racial discrimination whereby persons are singled out on the basis of skin colour or other ethnic indicators. Ultimately in 2009 these concerns proved too much and the House of Lords voted down the clause and government retreated.

UK Immigration Officers in Northern Ireland have nevertheless conducted some ‘ad hoc’ checks, arguing they were ‘voluntarily’ asking for ID. Such actions have borne out concerns about ethnic profiling. One recent example concerns the widely reported case of a black woman in Belfast City airport compensated after being singled out by an immigration officer for ‘looking foreign’. A staggering 468 people accused of being irregular migrants were detained in such Northern Ireland operations in 2014-2015.

Following the defeat in Parliament, the UK and Irish governments entered into a 2011 Memorandum of Understanding on convergence of their systems in the CTA. This dealt with visa decision-making prior to external entry to the CTA, data sharing, and potential mutual visitor visas.

Whilst ‘ad hoc’ checks continue they are not on the scale that would have been likely had the government succeeded in getting an actual clear legal power to conduct them. The overall policy direction was one of convergence between Irish and British immigration systems.

This direction of travel has been brought to an abrupt halt by Brexit. There will be no further convergence as Ireland has freedom of movement for 26 other EU member states, and the UK will not. Whilst the UK government points to the CTA pre-dating the EU, this overlooks that the CTA has existed when neither state was a member of the EU, and when both were members. Brexit brings a new situation: with one state in and one state out, the external frontier with the whole EU is to be drawn in the middle of the island of Ireland.

The Brexit campaign was in essence a successful mobilisation by those on the furthest right of the UK political and media spectrum, and centred on the politics of increased immigration control. Leave campaigners even used the slogan ‘Taking Back Control of our borders’, whilst at the same time senior figures sought to provide Northern Ireland with reassurance that there would continue to be no border controls in the only place there actually is a land border with the rest of the EU.

This flat contradiction could not continue post-referendum and the language subsequently began to change, with Theresa May’s stating that there would not be ‘any return to the borders of the past’, or that there would be ‘as seamless and frictionless a border as possible’.

With such assurances, and with the clear practical difficulty of re-hardening the border, will the government now re-visit the earlier plans to legislate for ‘ad hoc’ checks, and revive the prospect of a ‘racist border’?

The UK Position Paper says some nice things about wanting everything to remain the same, which somewhat overlooks the context of Brexit. This is the case with customs issues: the UK will exit the EU, the single market and the customs union, but would like there to be no, or minimal, customs checks. This seems to be unlikely, to say the least, and with customs and immigration officers now in one unified agency any checks on goods will inevitably creep towards checks on people.

In relation to border controls in the CTA, between the nice words there are some worrying signs in the position paper to a sceptical eye. The paper sets out that entry to the UK from the CTA will be “free from routine border controls” (emphasis added), that it wants to preserve the rights of British and Irish citizens “as enjoyed today” and that in relation to cross border workers the UK wants to protect the “ability of British and Irish nationals to work without hindrance across the border between Northern Ireland and Ireland”. But it also notes that the wider issue of the “whole border, [of] and immigration controls for EEA nationals (other than Irish nationals), can only be addressed as part of the future relationship between the UK and the EU.”

The paper also goes on to emphasise that immigration controls are not just about checks on the physical border, but will rather be implemented through measures in the labour market or through social security provision. The latter leads to the prospect that in addition to ‘ad hoc’ checks by immigration officers, immigration controls may be subcontracted to public services, employers and landlords – where there is likely to be even more racial profiling.

The proposals add up to indicating Northern Ireland will become the most immigration policed-area of these islands by stealth. Great efforts have been made in the peace process to reform law enforcement to ensure human rights compliance; imagine the regression with a ‘UK border force’ exercising powers in a discriminatory manner and using administrative detention on an industrial scale. The future appears anything but seamless and frictionless for ethnic minorities north and south of the border in the post-Brexit world.

By Daniel Holder, Deputy Director of CAJ. He is collaborating with our Brexit and Northern Ireland research team.

Disclaimer:
The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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