Ireland and UK: Right to Work Across Borders Will Continue Post-Brexit

​A recent agreement between Ireland and the United Kingdom (U.K.) will allow citizens of both countries to retain the right to live and work in either country after the U.K.'s departure from the European Union (EU). 

There had been concerns that the U.K.'s withdrawal from the EU could affect the rights of Irish and U.K. citizens within the Common Travel Area (CTA). Free movement, including the right to live, work and access public services in the CTA, however, will now be protected, regardless of the outcome of the Brexit negotiations. 

A memorandum of understanding, the "Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2019," guarantees the reciprocal rights of Irish and British citizens under the CTA.

The agreement also ensures Irish and U.K. citizens' ongoing access to social security, health and education, with the continuation of the CTA scheme. The CTA, in existence for nearly 100 years, includes several pieces of legislation and bilateral administrative agreements. The U.K. and Ireland agreed that existing arrangements on social insurance, child benefit and pensions should continue, while new arrangements also should be made to ensure that British and Irish citizens continue to have uninterrupted and equal access to public health and education services in in their respective countries.

The Common Travel Area

The CTA allows Irish and British citizens to move freely between the two countries and reside in either jurisdiction. Irish and British citizens have access to employment, health care, education, social benefits, and the right to vote in certain elections. The CTA pre-dates Irish and U.K. membership in the EU and is not dependent on it. The governments of Ireland and the U.K. have expressed their commitment to maintaining the CTA.

The CTA arrangement was implemented in 1922, but it initially was not contained in any specific legislation. Instead, it was an understanding between the two countries based on their common history and the challenges related to immigration controls due to a shared border. Many of the rights were gradually incorporated into different pieces of legislation in Ireland and the U.K.

The CTA does not apply to goods or customs. Both countries' membership in the EU allows for the movement of goods and does not require customs posts on the border between Ireland and Northern Ireland or customs duties between the U.K. and Ireland.

CTA Rights

Only citizens of Ireland and the U.K. can exercise CTA rights and have the right to live, travel, work and study within the CTA. The U.K., for the purposes of the Common Travel Area, covers England, Scotland, Wales, Northern Ireland, the Isle of Man and the Channel Islands. 

Irish and U.K. citizens may reside in either country and have certain rights and privileges. In addition to access to social benefits, health care and the right to vote in certain elections, citizens have social housing supports.

As the CTA relates to immigration, a third country national, for example, could be denied permission to enter Ireland if he or she also intended to travel to the U.K. and would not be able to qualify for admission to the U.K. under the Aliens (Amendment) Order 1975. Irish immigration officers routinely carry out checks on individuals arriving in Ireland from the U.K. and may refuse them entry on the same grounds that apply to individuals who arrive from outside the CTA. 

Since December 2011, the Irish and U.K. governments have secured the external CTA border and regularly exchange biographic and biometric visa data and information regarding failed asylum seekers. A CTA Forum overseen by both countries implements these measures.

British Citizens in Ireland

British citizens may move to Ireland to live, work or retire. Unlike other EU citizens, British citizens do not have to demonstrate that they have sufficient resources or private health insurance to retire. This is because British citizens may use Irish public services in the same way that Irish citizens in Ireland can.

British citizens, including Manx people and Channel Islanders are not entitled to the EU's freedom-of-movement provisions, but are exempt from immigration control and cannot be deported. They may live in Ireland without any restrictions or conditions and have, except for certain exceptions, never been treated as foreigners under Irish law and are not subject to the Aliens Act 1935 or to the orders made under the act.

Irish Citizens in the U.K.

Unlike citizens in the U.K., Irish citizens have generally not been subject to entry control in the U.K. and, if they move to the U.K., are considered to have "settled status" (a status that goes beyond indefinite leave to remain). They may be subject to deportation from the U.K. upon the same basis as other European Economic Area nationals. But the British government implemented a more lenient procedure to apply to the deportation of Irish citizens compared to that of other European Economic Area nationals in February 2007. Today, Irish citizens are not routinely considered for deportation from the U.K. when they are released from prison, for example.

All Irish citizens were considered to be British subjects under British law prior to 1949. After Ireland was declared a republic the same year, a British law granted Irish citizens a similar status to Commonwealth citizens in the U.K., even though they had ceased to be such. Thus, similar to U.K. citizens in Ireland, Irish citizens in the U.K. have not ever been treated as foreigners. Irish citizens have, however—similar to Commonwealth citizens— been subject to immigration laws in U.K. since the Commonwealth Immigrants Act 1962 went into effect. 

EU citizens other than British and Irish nationals can freely enter and live in the U.K. and Ireland under EU law, but are required to carry valid travel documents. Residents of both the U.K. and Ireland are no doubt celebrating this deal between the U.K. and Ireland that will allow citizens of both countries to retain the right to live and work in either country after the U.K.'s departure from the EU.

Barry Crushell is an attorney with Tully Rinckey in Dublin. © 2019 Tully Rinckey. All rights reserved. Reposted with permission of Lexology.