Securing control over the UK’s borders was the dominant theme of the Leave campaign in the run up to the 2016 EU referendum. A campaign which operated against an unashamedly anti-immigration narrative and centred on the politics of increased immigration control. Fast forwarding to the June 2017 UK general election, the Conservative Party Manifesto set out the government’s commitment to reduce net migration figures to the tens of thousands, in part by continuing to “bear down on immigration from outside the European Union. “
The question I will consider here is what such bearing down could look like in a post-Brexit Northern Ireland. To do so, I must first consider some of the different sources of free movement we enjoy on these islands.
The Common Travel Area (CTA) covers Ireland, Northern Ireland, Britain, the Isle of Man and the Channel Islands. First established in 1922 to facilitate the free movement of Irish and British citizens, it has been developed via administrative arrangements which are bilateral agreements between Ireland and the UK. The agreements allow passport free movement for Irish and British citizens on journeys within the UK and between the UK and Ireland. So what impact will Brexit have on the CTA?
In her March 2017 letter triggering Article 50, Theresa May stated a commitment to maintaining the CTA and avoiding a hard border on the island of Ireland. The UK’s Brexit Position Paper on Northern Ireland confirmed that the government is:
….firmly committed to protecting and maintaining the CTA and associated rights…. This means protecting the ability to move freely within the UK and between the UK and Ireland with no practical change from now.”
The Belfast Good Friday Agreement (the Agreement) enshrines the right of people born in Northern Ireland to self identify as British or Irish or both. The Strands of the Agreement contain specific North/South and East/West dimensions which, taken alongside the complex constitutional context of Northern Ireland in light of the CTA, and mutual recognition of rights in relation to British/Irish citizens, provides conditions whereby the right to free movement should be considered as applying across the CTA.
The UK’s Position Paper recognises this “unique constitutional framework.”
It is therefore important that the negotiations achieve our shared objective of upholding the Agreement itself, and also that, crucially, the UK and the EU do not do anything to obstruct the wide range of cooperation between Northern Ireland, Ireland and Great Britain in the future partnership.
It recognises that any restrictions imposed on the movement of Irish and British citizens within the CTA would raise issues regarding compliance with the Agreement.
The objective of a seamless border, with no return to the hard border of the past, has been repeated by the Prime Minster, the Secretary of State for Northern Ireland, and fully endorsed by politicians in Ireland, North and South. The Position Paper states:
The development of our future immigration system will not impact on the ability to enter the UK from within the CTA free from routine border controls.
While welcoming commitments to a frictionless border, it raises the question as to how immigration control will be carried out if there will be no physical border between the North and South. We believe a number of different means will be perused and measures will be implemented which could have serious human rights implications for minority ethnic communities here.
For example, ad-hoc checks conducted on the basis of racial profiling (the form of racial discrimination whereby persons are singled out on the basis of skin colour or other ethnic indicators), increased use of detention for persons who cannot ‘satisfy’ immigration officers as to their status and the possibility for increased criminalisation of the BME communities.
Racial profiling has been criticised by the Northern Ireland Human Rights Commission and the House of Lords in relation to Operation Gull, which targets domestic UK flights and ferries to and from Northern Ireland to identify and arrest undocumented immigrants who may intend to cross the border. The Operation, which arrested 775 people in 2015/2016, has also been criticised for its lack of transparency.
The Position Paper sets out another tool to be used in the absence of border controls, i.e. the extension of immigration control functions and duties into the private and public sector:
When considering the nature of the CTA as a border-free zone, it is important to note that immigration controls are not, and never have been, solely about the ability to prevent and control entry at the UK’s physical border… controlling access to the labour market and social security have long formed an integral part of the UK’s immigration system.
UK’s immigration legislation increasingly imposes duties on non-state actors, e.g. landlords and driving licence agencies, to check one’s immigration status at risk of penalty or criminalisation for failing to properly do so. The extension of immigration control functions into sectors where there is little or no oversight risks the use of racial profiling to determine eligibility, and possible denial of essential services.
Northern Ireland could become the most ‘immigration policed’ part of the UK. Devolved institutions do not have legislative control over immigration law, and related policy is predominantly a matter for the UK Home Office. However, we do have legislative competency in relation to health, for example, and can protect those who are subject to, and impacted by immigration control through the adoption of a more human rights focused approach.
Also, there is a growing call across the UK for immigration law to become a devolved matter so as to enable the creation of immigration systems which are more responsive to the needs of the local community. The development of regionally-led immigration systems would enable devolved administrations to adopt a more humane approach.
Northern Ireland must join this debate and support the call for control over immigration laws and policies in order to push against a regression of rights and enable us to progress towards increasing respect for human rights and equality for all in a post-Brexit world.
By Fidelma O’Hagan, solicitor with the Committee on the Administration of Justice. This piece originally featured on the BrexitLawNI website.