BrexitLawNI Policy Report: Brexit, Border Controls and Free Movement

Movement of People has been a Marginal Issue

Whilst the issue of ‘the border’ has become centre stage in the Brexit discussions, the focus has been almost exclusively on the freedom of movement of goods. The implications for the freedom of movement of people have by contrast been quite marginal, despite the prominence of ‘migration control’ in the debate.

Progress in this area is very limited at EU-UK level. There has been no tangible bilateral (UK-Ireland) progress to legally formalise the Common Travel Area (CTA). There is also a lack of transparency in relation to post-Brexit operational planning for both CTA and internal immigration controls in NI, with immigration policy officials not permitted to engage with the research, and little clarity provided even to Westminster committees.

The direction of travel for post-Brexit arrangements carries serious risks of facilitating widespread racial discrimination and undermining confidence in and the framework for policing introduced by the peace process.

The CTA as a Passport Free Zone – and ‘Non Routine’ Controls

The official UK Brexit position is limited to ruling out ‘routine’ passport controls within the CTA. Government has regularly expressed its desire not to have infrastructure on the land border and also given frequent assurances that there will be ‘no border in the Irish Sea’.

There is little clarity as to what ‘non routine’ controls in the CTA will look like. The concern is that there will be a resultant increase in selective checks that target persons on the basis of skin colour or other ethnic indicators – the form of discrimination known as racial profiling. Despite Ministerial assurances we have received testimony of this already happening.

We have also heard testimony of a detrimental shift in the treatment of NI-resident EU26 nationals returning to NI from journeys outside the CTA since the referendum.

The Lack of Codification of the Reciprocal ‘Associated Rights’ of the CTA 

There is varied understanding of what and whether reciprocal rights for UK and Irish citizens/residents are underpinned by the CTA. The UK assertion that such CTA rights are already underpinned in NI legislation is misguided. There has been no visible progress on a UK-Ireland basis towards codification and legal underpinning of such arrangements.

In-country Immigration Checks – the Hostile/Compliant Environment and ‘One Big Border’?

In addition to ‘non regular’ CTA checks, government’s intention is also to regulate post-Brexit migration in NI through ‘intensification’ of hostile/compliant environment measures. We have already heard testimony of significant racial discrimination and detriment created by the application of existing ‘hostile/compliant environment’ measures, and strongly caution against this.

Implications for Peace Settlement Reforms of Law Enforcement in NI

The increased role of the UK Border Force and Home Office Immigration Enforcement Directorate has provided a new focus on the extent such bodies sit outside the NI-specific framework for policing accountability. There are significant differences in ethos, the culture of human rights compliance and legal certainty in powers, with real risks expanded post-Brexit operations will lead to a return of the use of arbitrary and discriminatory powers and damage confidence in policing overall.

Recommendations:

• The UK and Ireland should initiate a process to codify and legally underpin the CTA both in relation to free movement and reciprocal associated rights. This should include a treaty with a clear dispute resolution mechanism, and be enshrined in domestic law including through the NI Bill of Rights.
• The CTA codification of rights of free movement should explicitly incorporate the existing UK policy position that there will be no passport checks on the land border or Irish Sea and no racial profiling. Both states should discontinue existing operations that lead to such checks (and racial profiling) and amend legislation to provide additional safeguards.
• The UK should review and remedy the apparent misuse of Schedule 7 ‘Port and Border Control’ powers under the Terrorism Act 2000, and abandon attempts in Parliament under the guise of ‘border security’ to introduce an unfettered no suspicion power of examination on any person a mile from the land border.
• The codification of CTA rights should ensure that as a minimum it reflects reciprocal rights currently provided under EU provisions, and should not prejudice or preclude existing entitlements to other persons with residence in particular in border areas where public services may be used on alternate sides of the border. Continued EU freedom of movement into NI should be returned to as an option given as it appears to be the only solution that is not going to create multiple differentials in entitlements and make further racial profiling and broader discrimination even more widespread.
• The UK should desist from its planned ‘intensification’ and roll out of ‘hostile/compliant environment’ measures in NI and retract those already in place.
• Border Force and Home Office immigration enforcement teams insofar as they exercise functions in NI should be made fully accountable to the law enforcement oversight architecture put in place further to the Patten Commission.
• Specific safeguards should be introduced, in accordance with international best practice, to prevent racial profiling across the public and private sectors.

*For a black and white version of the report, please email us: brexitlawni@qub.ac.uk*