The Common Travel Area: The Limits of Codification

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