Policy engagement at Queen’s

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.

EU Referendum: Border impact of a Brexit on Northern Ireland

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.

 

In Conclusion

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.

 

The featured image in this article is used under a Creative Commons licence.

Professor Dagmar Schiek
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Dagmar Schiek is Professor of Law at Queen's University Belfast and holds a Jean Monnet ad personam Chair in EU Law and Policy. Professor Schiek directs the Centre of European and Transnational Legal Studies and convenes the Jean Monnet Centre of Excellence "Tensions at the Fringes of the European Union" as an interdisciplinary project.

6 Comments

THIS IS QUITE A PARTIAL PIECE WHERE IMPARTIALITY MIGHT HAVE BEEN EXPECTED – PARTICULARLY IN ITS CLOSING LINES. MANY ACADEMIC POINTS ARE MADE WHICH IN REAL LIFE – I SPEAK FROM FIRST HAND EXPERIENCE – ARE PRACTICALLY DEALT WITH ON A COMMON SENSE BASIS BY IMMIGRATION AND CUSTOMS OFFICIALS. THERE IS A COUNCIL OF THE ISLES WHICH DELIBERATES ON UK/ROI MATTERS, INCLUDING ALL DEVOLVED BODIES, AND THERE IS A COMMON TRAVEL AREA AGREEMENT BETWEEN UK/ROI WHICH WOULD NOT NECESSARILY CHANGE. A MORE BALANCED PERSPECTIVE WOULD HAVE BEEN more informative. SUPPORTERS OF THE EU STATUS QUO NEED TO ASK THEMSELVES – WHY IS THERE A RISE IN RIGHT-WING POPULIST NATIONALISM? THE ANSWER LIES IN THE image of the MONOLITHIC, UNRESPONSIVE supra-national superstate which overrides sovereign national parliaments and is perceived to deprive peoples of the right and means to defend themselves and their national interest – unable to deport those whose exclusion is conducive to the public good, unable to police its own laws – human rights seem to override the national interest on newspaper front pages and the public has had more than enough of this experiment. the need for safety and control over our national interest, and the perceived blocking of this by the eu gives rise to right-wing politics of identity.

    Thank you for your comment. The “Common Travel Area”, to which I do refer in my post, is a set of joint understandings between the Republic of Ireland (Ireland) and the United Kingdom of Great Britain and Northern Ireland (UK), aiming to avoid immigration controls for UK and Irish citizens if crossing borders between these states. There is no formal agreement, and neither country considers the CTA as legally binding, as is also specified in their first common declaration on the CTA. The CTA is also mentioned (in inverted commas and in brackets) in protocol No 20 to the Lisbon Treaty. Far from making the CTA legally binding, this reference highlights the need of EU approval for its continued operation between two EU Member States. This is testimony to the difficulties which would arise should the UK withdraw from the EU. While the UK would remain free to offer specific advantages to Irish citizens (save for violating any WTO commitments), Ireland would be barred from offering advantages to Third Country Nationals (UK citizens once the UK ceases to be an EU Member State) in social security and social advantages linked to movement into Ireland which it does not offer to all EU citizens as well.
    The point about right wing populism and its causes is also very relevant. It is often true that right wing populism is fed by fears of suffering social detriment from migration, as discussed in a different blog on QPoL very competently. You rightly comment that this is mainly a matter of perception, which seems to indicate that it is not necessarily related to facts. In actual fact, the EU certainly is not a suprastate, as you seem to perceive it. Instead it is a union of sovereign states which are sufficiently mature to pool their sovereignty in order to achieve aims which none of them would be able to achieve on their own. Granting an area of free movement (a “common travel area” between 28 states) is one of those aims. Refusing to allow members to discriminate against those moving with the EU by refusing access to the same social standards is a central element of this. It serves to protect citizens from negative repercussions of migration: allowing an underclass of migrants to undercut local wages would lead to downward spirals of social entitlements instead.

Firstly, well done on an informative and clear piece.

If we must go to the lengths of setting out the full names of the two neighbouring states, we ought to get it right. One is, as you correctly state, the United Kingdom of Great Britain and Northern Ireland; rather a mouthful. The other is Ireland; no ‘Republic of’ tag. I was disappointed to see this in an academic piece. The unacceptability of the ‘Republic of’ tag to the Irish government has been well established for many decades. The European Union itself never uses it. The UK government no longer does so in formal intergovernmental contexts either, such as the 2011 statement on the CTA you referenced. I suggest you drop “ROI” too. It has no official status. “IRL” is official, correct and appropriate.

Secondly, I think you meant to refer to Protocol no. 20 rather than no. 28 above.

    Kevin Fearon

    Thanks Nathaniel for the comments. My apologies for the Protocol reference; that was a typing error on my part. Professor Schiek’s comment has been updated.

The CTA includes non EU members the Isle of Man and the channel ISLES.

“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”

No stricter controls? That’s not my understanding, as non-EU member states are not bound by the Common Agricultural Policy, and thus Norway has customs controls along its borders. I agree that if the united Kingdom left the EU, then there would have to be a customs control along the Northern Ireland-Ireland border:

http://www.factcheckni.org/facts/would-brexit-lead-to-a-customs-frontier/

Interesting remark of the Common Travel Area from Ireland’s perspective. On one hand, Ireland and the UK will surely continue their shared external border policy. And the UK will certainly treat Irish citizens with privileges (too many to deport? Every person born in Northern Ireland entitled to Irish citizenship). But how much would be extent of Ireland preventing British citizens from retiring in Ireland?

As for border controls, it’s inconceivable to mount a hard border patrol along Northern Ireland. But passport checks will be enforced at all crossings with Great Britain:

http://www.factcheckni.org/facts/would-brexit-lead-to-northern-ireland-land-border-checks/

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