The Common Travel Area: The Limits of Codification

Brexit Institute Working Paper Series No 17/2021

11 Pages Posted: 5 Jan 2022

See all articles by Imelda Maher

Imelda Maher

University College Dublin (UCD) - Sutherland School of Law

Date Written: November 17, 2021

Abstract

The Common Travel Area (CTA) dates from the foundation of the Irish state and has survived and arguably even been improved as a result of Brexit. A mixture of pragmatism, political convenience and legal obscurity it is specifically acknowledged in Article 3 of the Ireland and Northern Ireland Protocol which also notes that it has the capacity to change over time. The UK recognises that the CTA exists within the confines of the EU obligations of Ireland. Already addressed in Protocol 20 of the Treaty of the Functioning of the EU, under which Ireland and the UK remained outside the Schengen border-free area, the CTA is now codified through a series of MoUs and scattered pieces of primary and secondary legislation. Going much further than simply unimpeded border crossings, it covers an array of social and political rights for British and Irish citizens (only) resident in either state. While its continuation is fairly certain irrespective of what happens in relation to the Ireland and Northern Ireland Protocol, its fragmented and legally diverse nature means it remains a creature of political and administrative expediency such that its flexibility could lead to a diminution of rights should the current strong political support fade.

Keywords: Brexit, Codification, Common Travel Area, Protocol on Ireland/ Northern Ireland, Withdrawal Agreement

Suggested Citation

Maher, Imelda, The Common Travel Area: The Limits of Codification (November 17, 2021). Brexit Institute Working Paper Series No 17/2021, Available at SSRN: https://ssrn.com/abstract=3965733 or http://dx.doi.org/10.2139/ssrn.3965733

Imelda Maher (Contact Author)

University College Dublin (UCD) - Sutherland School of Law ( email )

Dublin D04 V1W8
Ireland
+1 716 4135 (Phone)

HOME PAGE: http://www.ucd.ie/research/people/law/professorimeldapatriciamaher/

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