- The Common Travel Area (CTA) is an agreement in principle, involving the UK and Ireland, featuring commitments to allow citizens of either territory to move between those territories freely.
- There is no central CTA Treaty or document. Instead, both jurisdictions have domestic laws which put the CTA in effect. Those laws are different in the two territories, but both allow for UK and Irish citizens to move over the border WITHOUT passports or other ID.
- People who are citizens of other countries are not necessarily afforded the same rights. This can lead to practical issues in application of the law.
On 11 January in posts on social media, campaign group End Deportations Belfast criticised the approach of An Garda Síochána officers carrying out checks on a bus travelling across the land border from Northern Ireland into the south.
The posts stated:
“The Derry to Dublin x4 bus has been boarded this morning by three Gardai. A UK/Irish passenger exercised their right under the Common Travel Area rules not to carry / produce ID and was cited false law by one of the Gardai officers to overstep the law and deny this right. [1/2]
“Know your rights and use our online tool to record these incidents if you experience or witness them. If you are UK or Irish citizens – you do not have to produce ID. Producing ID provides a cover for Gardai to carry out these discriminatory checks. [2/2]”
In particular, these posts claimed that citizens of either the UK or of Ireland are not required to produce or even carry ID when moving between the two jurisdictions.
The Common Travel Area (CTA) is an agreement in principle between the UK and Ireland (as well as the Isle of Man and the Channel Islands). It is not the subject of a Treaty and its specific terms are not laid down in a central document.
Instead, both the UK and Ireland have domestic laws which put the CTA into effect. In both cases, those laws allow citizens of the UK or Ireland to move directly between the two territories without any need for a passport or other ID.
However, given the same rights are not necessarily extended to people who are not citizens of any of the CTA territories, this leaves room for practical issues in the application of the law. How is a state agent, such as a police officer, supposed to know who is and who isn’t a UK or Irish citizen without asking for documentation? In addition to this, if this process is indeed at the discretion of individual police officers or the Gardaí, how could this impact perceptions of fairness of treatment of individuals? However, these are broader questions.
FactCheckNI has no direct knowledge of what was said or done during the incident described in the social media posts. This check focuses on the rights and rules associated with the Common Travel Area and citizens of the UK and/or Ireland.
The Common Travel Area (CTA) is a special zone that applies unique legal arrangements to the citizens of the territories it covers, which include: the United Kingdom, Ireland, the Isle of Man and the Channel Islands.
CTA arrangements have existed in some form since the establishment of the Irish Free State in 1922. This check focuses on CTA arrangements between the UK and Ireland.
A key part of the CTA is an agreement in principle to facilitate open travel for British and Irish citizens without any legal requirement to carry a passport.
Although the CTA arrangements are underpinned by domestic laws that apply in each of the jurisdictions it covers, its provisions are not set out in a single dedicated document of law such as an international treaty.
The most comprehensive articulation of what the CTA actually amounts to is contained in a Memorandum of Understanding on the subject signed by the UK and Ireland in May 2019. Regarding free travel – the subject of this check – the 2019 MOU simply states:
“The CTA allows British and Irish citizens to move freely between the UK and Ireland. The Participants [the UK and Ireland governments] are to continue to ensure that their national laws facilitate such movement.”
This means that the CTA derives from an agreement in principle between sovereign states. It is not, therefore, legally binding in international law. Instead, it is addressed in domestic law within both the UK and Ireland – with both jurisdictions taking a different approach.
This claim asserts that, because of the CTA, citizens of the UK or Ireland are not required to carry or produce ID when moving between the territories.
Because there is no CTA Treaty or other central document of law, assessing the claim means looking at a variety of domestic laws that apply respectively in the two states.
- UK law
Section 3ZA of the Immigration Act 1971 states that an Irish citizen “does not require leave to enter or remain in the United Kingdom”. However, exceptions to this general rule apply:
- If, for example, an Irish citizen is subject to a UK deportation order, then they are not covered by the ‘leave to enter or remain’ provision
- Under section 3ZA(3) the UK Home Secretary can “issue directions” for certain Irish citizens not to be granted access if doing so is deemed “conducive to the public good”
So while the default arrangement is for citizens of Ireland to be able to freely enter the UK, a small number may also legally be restricted from doing so.
When it comes to non-Irish (and non-UK) citizens travelling to the UK from Ireland, arrangements are more complex. Although the starting assumption is that, because the travel is taking place within the CTA, anyone making the journey would not be subject to controls under the Immigration Act 1971 (according to the Act’s own provisions) several caveats and complications are involved.
For instance, according to the The Immigration (Control of Entry through Republic of Ireland) Order 1972, it is a breach of UK immigration law for someone from a country on the UK’s visa national list to enter via Ireland without first obtaining a UK visa.
This is important to note because, while this does not affect the rights of Irish (or UK) citizens, it has practical implications for enforcement of the law.
- Irish law
In Ireland, immigration legislation regulates the arrival and status of ‘non-nationals’ or ‘aliens’. British citizens, under the Aliens (Exemption) Order 1999, are not considered aliens or non-nationals for the purposes of the application of Irish immigration laws.
According to the Immigration Act 2004, non-nationals arriving in Ireland by air or by sea are required to present themselves to an immigration officer to obtain permission to enter. Any non-nationals arriving in Ireland over land from Northern Ireland must have a visa if one is otherwise required; if they are visa-exempt, they cannot legally stay for longer than a month without seeking permission to remain.
Regarding the conduct of immigration authorities, in Irish law, officers have had the legal authority to conduct checks on people entering via land routes since 1997 – under the Aliens (Amendment) (No.3) Order 1997 – or from Great Britain as the case may be.
Separately, in Irish law, any individual arriving (by land, air, or sea) in Ireland is required to present a passport or equivalent document. Crucially, however, citizens of the UK, Ireland, or other EU countries are exempt from this rule if they enter from the UK.
For the purposes of this claim, the most relevant section of the 2004 Act provides that:
11. – (1) Every person (other than a person under the age of 16 years) landing in the State shall be in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality.
(2) Every person landing in or embarking from the State shall furnish to an immigration officer, when requested to do so by that officer—
(a) the passport or other equivalent document … and
(b) such information in such manner as the immigration officer may reasonably require for the purposes of the performance of his or her functions
… (4) This section does not apply to any person (other than a non-national) coming from, or embarking for, a place in the State, Great Britain, or Northern Ireland.
“non-national” means a person who is not—
(a) an Irish citizen,
(b) a citizen of the United Kingdom of Great Britain and Northern Ireland, or…
- The claim
Taken altogether, it is clear that under UK domestic law, in respect of the UK’s commitment to the CTA, Irish citizens who travel to the UK from Ireland are not obliged to have a valid passport or equivalent document.
It is also clear that the same is true in reverse. According to the section of the 2004 Act quoted above, it is the case that British and Irish citizens are not under obligation to have a valid passport or equivalent document when travelling across the land border on the island of Ireland.
This means that the original claim is accurate – however, this comes with some complications.
In Ireland, it is also the case that anyone considered a ‘non-national’ for the purpose of domestic law in Ireland, are required to carry identification documents and that Gardaí officers are legally empowered to conduct identity checks on anyone entering Ireland from the UK.
This creates ambiguity in practice because, in effect, application of these laws relies on the perception of state authorities (for instance, Garda officers) with regards to the nationality of anyone covered by CTA provisions and exercising their right to not carry identification.
Gardai have the right to ask anyone who is not a UK or Ireland national for ID – but how are they supposed to know an individuals’ nationality without seeing documentation?