EU Referendum: Border impact of a Brexit on Northern Ireland
In the latest of a series of QPol articles around the forthcoming UK referendum on EU membership, Professor Dagmar Schiek asks what does the 23 June mean for Northern Ireland specifically in terms of border issues and highlights some legal truths that are being neglected in the debate.
At the EU referendum on 23 June, citizens poll whether the UK should remain a member of the EU or whether it should announce its intention to withdraw. This question clearly affects Northern Ireland just as other parts of the UK. Nevertheless, the term “Brexit” has become shorthand of the event – as if the decision is only about Britain (i.e. England, Wales and Scotland). The currency of the term Brexit indicates that the specific consequences of the 23 June for Northern Ireland are widely neglected. Thus, I will use this blog to highlight some of these consequences.
Northern Ireland differs from Britain in two aspects: it shares a land border with another EU Member State, and the peace process which is based on a series of agreements between the UK and the Republic of Ireland, partly brokered and implemented by the EU. This article focuses on the shared border.
Trans-border life after potential withdrawal – business as usual?
The shared border between the Republic of Ireland and Northern Ireland would become an external border of the European Union. Given the ragged line which constitutes this border, this is going to be a complex technological task as much as a legal one. From an EU perspective, controls of external borders are important for ensuring that customs tariffs are enforced and also for immigration control. Any UK citizen crossing the border to the Republic of Ireland would be a non-EU citizen after all. How this will play out exactly is of course subject to negotiations between the EU and the UK. Suggesting that nothing will change is either naïve or deliberate misinformation.
Maintaining the status quo by maintaining free movement and joining Schengen?
It is true that at some of the EUs external borders controls are relatively relaxed: the Swiss border is one example, as is the border between Norway and Sweden. However, both Switzerland and Norway, though not members of the European Union, maintain close relations to the EU via special agreements. Both are parties to the European Free Trade Agreement (EFTA), and Norway is also party to the European Economic Area (EEA). The latter agreement guarantees Norway’s membership in an Internal Market with the EU and Liechtenstein and Iceland, comprising full free movement of persons as well as a customs Union. Thus, from the perspective of the EU, Norwegians have equal free movement rights to EU citizens, and the movement of goods between EFTA and EU states requires no stricter controls than within the EU. The EFTA also guarantees free movement of persons, but only requires facilitation of customs administration. Also, Switzerland had registered some reservations to EFTA free movement rights, which mainly expire in 2016. While these were limited (and Switzerland excluded from advantages such as participation in higher education funding programmes), border controls were relaxed. This is where another agreement to which both Norway and Switzerland are party comes into play: the Schengen agreement. This agreement not only abolishes border controls for persons, but also introduces specific controls within countries in order to prevent crime (among others).
Maintaining the relaxed situation between Northern Ireland and Ireland after the UK withdraws from the EU might be just possible if the UK agrees that all EU citizens enjoy free movement rights as before, that free movement of goods is maintained and that both countries join Schengen. However, in the UK the desire to curb free movement of persons is one of the main reasons cited in favour of withdrawing from the EU. Thus, this is a very unlikely development. There will be border controls, probably combining electronic controls, checks at border posts, passport controls on ferries and any other elements that characterise an external border of the EU, including border guards patrolling borders with dogs and electronic teasers, for example.
Transborder life after the UK’s withdrawal from the EU – business as usual?
Trans-border life has many other aspects: people cross the border between the Republic of Ireland and Northern Ireland on uncountable occasions for work, business and leisure. EU membership provides a legal framework for these movements, which is very complex. Directives and regulations as well as the EU Treaties address myriads of questions, such as allocation of contributions to social security for workers, equal treatment in access to higher education, access of children to schools etc. Trade with farming products is not afflicted by specific custom duties, UK citizens living in the Republic of Ireland have equal access to health care and social services with Irish citizens, and Irish citizens living in Northern Ireland have equal access to the NHS and schools. Again, suggesting that withdrawal from the EU would not change any of these daily advantages of free movement rights is misleading.
In addition, a cluster of common usages referred to as “Common Travel Area” provides for a number of privileges enjoyed by UK citizens in Ireland and vice versa. For example, in contrast to other EU citizens, UK citizens may retire to Ireland without providing proof of sufficient resources and private health insurance. This privileged treatment of some EU citizens is tolerated on the basis of EU membership. Should the UK no longer be a member, there are limits for Ireland in this regard: an EU Member State is barred from granting privileges to non EU citizens which are not granted to EU citizens. Thus, the Republic of Ireland would have to decide whether to grant all these advantages to all EU citizens or withdrawn these privileges from UK citizens, if the special privileges for the UK citizens are not maintained in any withdrawal agreement. Given the difficult negotiations between the UK and the EU even before the 23 June, this is highly unlikely again.
The decision on 23 June is very grave indeed. Citizens vote on whether the UK withdraws from the EU, potentially starting the Union’s unravelling at a time when Europe once again is in dire need of common sense in the face of resurging right-wing populism. Citizens also vote about maintaining or giving up a myriad of small advantages of 60 years of ever closer union, which we tend to take for granted. Sacrificing them is a more troubling perspective than we often realise.