Seanad Special Committee on the Withdrawal of the United Kingdom from the European Union debate -
Thursday, 23 Mar 2017

Engagement on Common Travel Area: Department of Justice and Equality

Chairman

I open the first public session of the Seanad Special Select Committee on the Withdrawal of the United Kingdom from the European Union. Before we get to the main item of business, I take a quick moment to think of our many colleagues and friends at Westminster following yesterday's awful attacks. We have had a great deal of discussion in recent weeks with our colleagues in both the House of Commons and the House of Lords and all of our thoughts are with them and, in particular, the security staff and police forces both in the United Kingdom and here, the role of which in protecting democracy we sometimes take for granted.

Apologies have been received from Senators Frances Black, Michael McDowell and Michelle Mulherin. Apologies have also been received from Senator Niall Ó Donnghaile who will not have a substitute as the entire Sinn Féin Seanad delegation are in Derry. We send our sympathy to them.

I remind all members and visitors to ensure mobile phones are switched off or set to airplane mode. Leaving them in silent mode will not work to prevent interference with the microphones.

I welcome members and, on their behalf, the officials who join us from the Department of Justice and Equality, Mr. Noel Waters, Secretary General, and his colleagues, Mr. James Martin and Mr. William O'Dwyer.

The meeting marks the beginning of a new, substantive piece of work for the Seanad. Since the referendum in the United Kingdom last June, there have been a number of debates. I note that several members are involved in very good technical work on each of the areas to be covered. This Seanad special select committee will add an important and different element to the work of the Oireachtas, building on the work that has already been done. In considering a number of important issues together the committee should have the capacity to bring a constructive, an holistic and a considered approach to bear. It is determined to focus on the most significant challenges identified, the solutions stakeholders and others are exploring and developments to address these challenges and the implementation of solutions. The committee was formed only recently and is determined to begin to engage quickly. As such, this session marks the beginning of its important contribution which will remain solution-focused and practical.

There are a number of substantial areas which the committee will cover but one which deserves early attention is the common travel area. This is an area of policy and a way of living, from which almost all of us have benefited in travelling to the United Kingdom. Those living in Border areas sometimes benefit from it on a daily basis. The easy movement of people across the Border has become essential to everyday life. As such, I am delighted to welcome the Secretary General and his colleagues. Senators are interested in the Department's work in preparation for negotiations and to safeguard the common travel area.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I ask Mr. Waters to make his opening remarks before I open the floor to members for questions and comments.

Mr. Noel Waters

I am very pleased to have the opportunity to attend the meeting to address the subject of the common travel area in the context of the United Kingdom’s exit from the European Union. I am accompanied by Mr. Jimmy Martin, assistant secretary, whose responsibilities include the Department’s Brexit unit, and Mr. Willie O’Dwyer, principal officer in the Irish Naturalisation and Immigration Service of the Department who looks at the issue of border control.

The decision of the United Kingdom to leave the European Union presents unprecedented challenges for Irish society and we can all agree that how we respond will shape our future for decades to come. Preparations are being led strongly from the centre through the Cabinet committee on Brexit which is chaired by the Taoiseach and of which the Tánaiste and Minister for Justice and Equality is a member. An interdepartmental group of senior officials, on which the Department of Justice and Equality is represented, reports to the Cabinet committee and takes forward the detailed co-ordination of analysis and preparations for the United Kingdom's exit. In turn, all Departments have structures in place to deal with issues of relevance to their policy areas. We are all active in consulting, engaging and preparing for the forthcoming negotiations and managing the impact of the United Kingdom's exit. This work has been aided greatly by the all-island civic dialogue process, as well as by public and stakeholder engagement.

The common travel area, CTA, has been identified by the Government as one of the four priority issues for Ireland, with the economy, Northern Ireland and the future of the European Union. Given the Department of Justice and Equality's responsibilities in immigration and border control matters, we have naturally been centrally involved in the analysis and management of this aspect of Ireland's preparations. We are working closely with other relevant Departments, including our colleagues in the Department of the Taoiseach and the Department of Foreign Affairs and Trade, in the context of the overall strategic approach to the forthcoming negotiations. The Government is unequivocally committed to maintaining the common travel area between Ireland and the United Kingdom. These arrangements have been in place since the foundation of the State and are an important feature of the close relationship between the two jurisdictions. Our entitlement to stay outside the Schengen arrangements and maintain the common travel area is recognised in Protocols 19 and 20 of the EU treaties. These arrangements are in place alongside and complement the special position of Northern Ireland and the provisions of the Good Friday Agreement on the citizenship rights of the people of Northern Ireland. The daily reality of the operation of the common travel area is one of deep and extensive interaction between the two jurisdictions, as the Chairman noted.

I will demonstrate the importance of the common travel area to the social ties and economic lifeblood of our respective jurisdictions. Of the 27.9 million passenger journeys through Dublin Airport in 2016, 9.9 million were from the UK to Ireland or from Ireland to the UK, which is 36% of the total. Averaged out over the year, it means 27,000 passengers have their journey facilitated by the common travel area every day. In 2015, 1.2 million residents of Northern Ireland used Dublin Airport, which averaged almost 25,000 people per week crossing the Border to catch flights, and 1 million visitors to Northern Ireland came into this State via Dublin Airport. All of these journeys, and the economic activity generated, are made possible by the common travel area arrangements so much so that it is taken for granted in facilitating movement of people North-South and east-west. The picture at other entry points to the State is the same. Cork Airport has over a dozen routes to the UK, with almost 1 million passengers, or 50% of the total, in 2016 taking a journey in either direction. The number of passenger journeys by sea through our ferry ports is also significant at approximately 2.8 million per year. It is estimated there are an average of 2.2 million monthly vehicular crossings on the North-South land Border. These vital statistics relate to the movement of people. We should not forget that in addition to people moving freely from jurisdiction to jurisdiction, the common travel area is also about allowing people to remain, work, access services and to be educated and so forth in either jurisdiction. Preserving those provisions in addition to travel rights is at the heart of maintaining the common travel area.

Prior to the UK vote on Brexit, the operation of the common travel area continued in the background of most people’s lives without a great deal of active consideration. Many of the entitlements it confers had become intermingled with rights derived from EU law on free movement. When this body of law ceases to apply insofar as the UK is concerned, the pre-existing relationship between Ireland and the UK will come to the fore. In order to outline the scope and nature of the CTA arrangements, it will be helpful for me to outline the approach we took in the Department to studying this issue, which is to go back through its history.

We can trace the origin of the common travel area to the history of the two countries as a common jurisdiction with a shared citizenship following the Act of Union. After Irish Independence, and up until 1948, as far as the UK was concerned, Ireland remained part of the Commonwealth and Irish citizens remained subjects of the British monarch with the same entitlements as British subjects. In that context it made little sense to impose passport controls. While the attitude of the Irish authorities was different in political terms, from the earliest days of the State the Irish Government wished to maintain the common travel area. British nationals were not treated as aliens in Irish law and for most matters were treated the same as Irish nationals. The word "alien" is an immigration word in ancient legislation. Even after Ireland left the Commonwealth, special provision was made in the Ireland Act 1949 which provided that Irish nationals were treated as non-foreign in UK law. On the Irish side, S.I. No. 1/1949 was made to the effect that UK nationals would enjoy similar rights and privileges to Irish nationals in the UK. These fundamental characteristics of the relationship have remained applicable to this date as a result of various reforms of UK immigration law in the 1970s and 1980s and by both countries becoming members of the then European Economic Community in 1973.

In practice, the most immediately concrete expression of the common travel area relates to the operation of border controls and the freedom of Irish and UK nationals to travel passport-free between the two jurisdictions. These arrangements have been in place since Irish independence, with the only period of interruption arising during and immediately after the Second World War. The common travel area operates to some degree like a mini Schengen zone, with the immigration authorities in both jurisdictions co-operating to protect the borders of the CTA and to prevent its abuse. Central to the operation of the common travel area is that each State enforces the other’s conditions of landing for non-EU nationals. I stress that it refers to non-EU nationals. This is a crucial point in the context of the forthcoming UK exit negotiations.

This co-operation has deepened in recent years under the aegis of the Common Travel Area Forum, which is an official body from both jurisdictions that meets on a regular basis. The information sharing systems we have put in place have made it possible to introduce the British-Irish visa scheme and the Irish short stay visa waiver programme, both of which make it easier for visa required nationals to visit both jurisdictions, with considerable benefits in terms of tourism and business travel. Tourism Ireland projects there will be 50,000 Chinese visitors to Ireland this year. The British-Irish scheme will enable all of these visitors to move between our two countries. In 2012 before it was introduced, that number was only 17,000. Our objective is to continue to operate these arrangements and to continue to co-operate closely with the UK. It is also important to emphasise that Ireland remains a committed member of the European Union and will operate these arrangements in a way that is compatible with EU law. In particular, we will continue to uphold the right of free movement of all citizens after the UK leaves the union.

The common travel area border control arrangements are complemented by a range of broadly reciprocal entitlements in terms of rights to reside, work and access services. These entitlements are closely associated with the freedom of movement between the two jurisdictions and have their roots in the historic associations and legal provisions I have outlined. While the policy responsibility for many of these areas rests with other Departments, we have been working closely with them in the analysis of this issue. All of this work is inputting into Ireland’s preparation for the forthcoming negotiations.

The Government’s objective is to ensure current CTA arrangements continue following the expected withdrawal of the UK from the EU. Pending the Article 50 process commencing, an extensive programme of engagement has been put in place to support this strategic objective. The importance of the common travel area has been highlighted through political and diplomatic engagement with other member states and the EU institutions. Considerable efforts are being made to build awareness and understanding of its significance, including in the context of North-South relations and the peace process. Members will also have seen the very clear commitments from the Taoiseach and Prime Minister May to maintain its benefits into the future. There are many aspects of the forthcoming negotiations on which it would not be helpful for me to speculate. However, I assure the committee that our preparations have been extensive and we will play our part alongside other Departments to ensure the best possible outcome for the Irish people.

I look forward to discussion with the committee and my colleagues over the next number of hours.

Chairman

I thank Mr. Waters for that detailed intervention. It is greatly appreciated. Two Senators have indicated they wish to speak. I will take those two first and allow the officials to respond before anyone else comes in with another round of questions. I will take Senator Joe O'Reilly first and then Senator Gerard Craughwell.

Senator Joe O'Reilly

It is a great privilege to attend the first meeting of our select committee on Brexit. It is a very important committee because Brexit is an issue for many people. In the part of Ireland that I come from there are 30,000 journeys across the Border on a daily basis for work, social and educational reasons so it is of huge significance there. It is a great privilege to be at this committee and it shows the Seanad being highly relevant to the people outside of it. I wish the Chairman well in the deliberations and congratulate him on his selection as Chairman. I wish him well in co-ordinating our discussions and ensuring they hit the spot to the extent that they become part of the negotiations and make an input into them directly.

I thank Mr. Waters and the other guests for their appearance before the committee today and I will put a number of specific questions to them. Does Mr. Waters anticipate negotiations between Ireland and the UK on the matters discussed will be separate to the overall negotiations between Mr. Barnier and his team and the UK Government? Will we be facilitated as a subset of the overall negotiations with separate negotiations to deal with these issues and the common travel area specifically? It merits mentioning, in the context of Mr. Waters's presentation, that the relationship between the UK and Ireland is at an all-time high and has been excellent in recent years. It would be a great pity for the outcome of these negotiations to jeopardise that because of the historic kinship, the fact that there are so many people of Irish extraction in the UK and the ties, bonds, trading and relationships. We have to be vigilant to achieve that and also to achieve our domestic interests.

It is interesting that Mr. Waters said each side in the common travel area should now adopt the same attitude to third parties, that is, when non-EU nationals try to come into either jurisdiction that the same rules would apply. Could he comment a little more on how that might play out in a situation where the UK in a post-EU membership scenario - we still cling to the hope that might not arise but, unfortunately, it looks like it will - would adopt a different immigration policy and that as part of the EU we would have the EU's immigration policy, and free movement for citizens of member states? Does Mr. Waters see an obstacle there and how does he think it could be overcome? I would like to be reassured by him that we can maintain the common travel area and yet operate those two different policies should that divergence arise. It would seem that is the raison d'être for Brexit in the first instance, and that it would apply to tourist visas to which he referred. I ask Mr. Waters to address those issues.

I was at a committee meeting on the Irish language recently, coiste na Gaeilge. One would assume that Brexit could not greatly impact there, but there was a presentation on how Brexit could impact on the Irish language community and it was pointed out that 9,000 students from Northern Ireland go to Gaeltachts in Donegal every year and that many other students transfer between the North and South in various colleges, for example, in Monaghan and Enniskillen, and to various university courses. That was just a practical day-to-day reality that would not have occurred to me had I not been at the meeting. Brexit has significant implications for ordinary life on a day-to-day basis. The discussion is highly relevant and very serious and I look forward to the responses from Mr. Waters on those issues. He might come back later on if issues arise.

Senator Gerard P. Craughwell

I too wish you well Chairman, as we go through this process, which is a very worthy use of our time in the Seanad. I also join with the Chairman in condemning what happened in Westminster yesterday. We have strong, close ties with the people in Westminster and what happened opens up the world to the dangers we now have, given that migration happens across the world. I do not for one moment suggest that the person behind the atrocity was a migrant into the UK but we are living in a very changed world, a dangerous one, and that will present problems as we move through Brexit, certainly based on a lot of the thinking that lay behind the referendum. I will not ask Mr. Waters to speculate on the thinking of the UK political system in driving towards Brexit.

While this committee is focused on solutions only I very much appreciate Mr. Waters coming here today and setting the context of one of the most serious problems we have. I understand that he is no position to show the Irish negotiating hand by offering anything by way of solutions today but he might offer some clarity and for that I am most grateful. The first issue of concern to me is that most people living in the North of Ireland have the opportunity to carry with them and Irish passport, a British passport or both. In other words, they can claim dual nationality. That will present serious problems, leaving aside the desire to travel, as we can have a situation whereby people who are subject to the protections of European laws by virtue of their Irish citizenship are living in a jurisdiction that has no truck with the European Union. The UK is leaving the club and when it leaves the club it is no longer a member and cannot expect to be treated in the same way as members of the club. Regardless of what we in Ireland or they in the UK think about borders, border checks or anything else, there are 26 other partners to be considered and what they want will be of great concern as we go forward.

However, there is a small group, 100,000 people in the North of Ireland, who were not covered by the Good Friday Agreement, who were not entitled to dual citizenship, mostly highly qualified academics or people in the catering sector. I speak of ex-pats who came into the North as consultants, university lecturers and restaurant owners of a myriad of different nationalities. They were naturalised in Northern Ireland and hold UK passports and their children are entitled to joint citizenship. Those people have now formed a lobby group because they feel extremely vulnerable in a post-Brexit world because they will only hold a British passport while their children are entitled to hold both a British and an-Irish based EU passport. One could have a ridiculous situation where a parent travelling with children will not be entitled to the same freedom of movement as their children. That might be a question for Mr. O'Dwyer. I do not know whether the issue has arrived on his desk yet but it has certainly come to mine and it is one that needs to be examined.

I accept there can be no bilateral negotiations outside the Brexit negotiations chaired by Michel Barnier. However, does Mr. Waters agree that under the auspices of the Good Friday Agreement our two jurisdictions have a common cause, namely the peace process? I ask his advice more than anything else but am happy to accept if he does not wish to deal with the issue. Could the Good Friday Agreement be leveraged in order to allow us to bring forward recommendations that could be brought to Michel Barnier? At a recent meeting in Brussels Mr. Barnier pointed out to us that he is open to solutions and it strikes me that one of the best places to find solutions is through common dialogue between ourselves and the UK, but Mr. Waters cannot do that because he is barred from having bilateral meetings. However, the Good Friday Agreement allows us to engage in conversations and perhaps come forward with recommendations.

The final issue of concern to me is education, coming from an education background as I do. I refer to the number of students travelling back and forth between the two countries. In the good old days of the HSS ferry in Dún Laoghaire there were many students getting on the boat in the morning to travel to Wales and coming back in the evening. I am not sure whether that happens any more. I estimate we have approximately 30,000 students in the UK. I am not sure how many students from Northern Ireland travel south but a considerable number travel North, which will create specific problems.

This is my final point. We try to mirror the rules in the UK and Ireland to enable the common travel area, yet in the case of Chinese nationals at one time the rules pertaining in the UK were slightly different and allowed easier access for Chinese students to access education programmes and then when we relaxed ours the British tightened up theirs. Is that a strategic thing or is it something that just happens by osmosis? I thank Mr. Waters for his time. I very much appreciate him taking the time to come here.

Chairman

I thank Senator Craughwell. Senators Boyhan and Paul Daly have both indicated but I will let the officials come back in at this stage and then we will have a second round of questions.

Mr. Noel Waters

Thank you Chairman. I also thank the members. Quite a lot was raised in the questions, including issues that cut to the heart of the challenges we face. I will start with what Senator O'Reilly said about the negotiations. I will also invite my colleagues to respond on the same issue. Clearly no formal negotiations can take place until such time as the Article 50 process has been triggered and no negotiations have taken place. Senator Craughwell made a similar point.

This is not to say that we have closed down conversations between the UK and ourselves. We have many fora in which Members of the Oireachtas, the Government, and we as officials are involved. Specifically, in our case, we have the Common Travel Area Forum where we meet with our equivalents in the Home Office every quarter to talk about issues relating to our respective jurisdictions and the common travel area. That process has continued because it relates to the operation of the common travel area. Clearly it would be nonsense for all of us to stop doing that when it is in our respective interests. What has not happened is a formal negotiation which would be triggered after the Article 50 process. We are committed and will remain as part of the EU and we will be part of that formal negotiation process.

Picking up on remarks by Senators Craughwell and O'Reilly on the case we have made to the EU Commission, the specific point that we have made relates to Northern Ireland and the unique circumstances around the peace process. We think we have made a very good case to the Commission for the common travel area issues to be addressed in a particular way. Clearly, I am not in a position to say what will happen on that eventually in the context of Article 50 but we believe we have made the strongest possible case, supported at political and Government level by Ministers and the Taoiseach, in stressing very strongly the question of Northern Ireland, the peace process, and that the arrangements that now exist between our two countries pre-date our membership of the EU by a very long time.

We have put our best foot forward and it will be some time in the not too distant future when we will have a better sense of what will happen with that. In the meantime, we will continue with the co-operation that we will need to have with our colleagues in the UK. Thinking of the appalling events in London yesterday, security and police co-operation has never been better. Senator O'Reilly mentioned that. That will continue, Brexit or no Brexit. There are issues around it relating to extradition and arrest warrants which we might return to later, but nevertheless there will be no diminution of the level of co-operation required to deal with matters such as the appalling events which occurred yesterday. It is in everyone's interest on this island, in the UK and around Europe. I have to confess I am not aware of Senator Craughwell's point about people with dual nationality. My colleagues may have further information on this. It strikes me that people who are living in Northern Ireland in that category may be able to apply for Irish naturalisation. That maybe a solution to it. If my colleagues cannot clarify that I will be happy to come back to him on that point.

Senator Craughwell also mentioned education and people travelling back and forward. That easy free movement back and forward cuts to the heart of the common travel area. That is what we want to preserve. We want no change in that. We have made the case as strongly as we can to ensure that continues. I should say our Department relates to the movement of people. Goods and services as they fall under the common travel area relate to the relevant Departments. No doubt, in due course this committee will want to talk to people from those Departments but the common travel area facilitates all those other activities and we have a session in respect of that.

Senator O'Reilly also mentioned non-EU nationals and what might happen after Brexit. Given that we operate a mini-Schengen area within the EU between ourselves and the UK, we police each others' border in regard to non-EU nationals. Immediately following the Brexit vote, there were some remarks - not in this jurisdiction - that were a little wide of the mark, which suggested that we would be operating border controls in respect of the UK in respect of EU nationals. No. That is a red line issue. We simply cannot do that because for us to do so would be a complete deviation from our responsibilities to the EU under freedom of movement. We will not do that and we have made absolutely clear that there are no circumstances under which we will do so. Whether the position changes under the UK's rules after Brexit, the rationale behind the common travel area is that we respect each other's borders in respect of the arrangements that other states may make in respect of non-EU nationals. Our systems tend to align very closely. If I recall correctly, and my colleagues might clarify, the only major departure in that area is that we do not have a visa requirement for citizens from South Africa whereas the UK does. That goes back to historic reasons to do with missionaries and religious orders. We work with them around that to ensure that we respect each other's responsibilities there. We need to have assurance from both jurisdictions that when someone is stopped at an Irish border, the person would not also be let into the UK. In fact, uniquely, when an Irish emigration officer stops someone at Dublin airport, for example, one of the grounds by which they can refuse the person entry into Ireland is that the person may intend to travel on to the UK. That is how that works in practice, but I stress that it is in respect of third-country nationals, that is non-EU nationals, and that will remain after Brexit. That is important.

Senator Joe O'Reilly

Will this work? Can this be successfully done?

Mr. Noel Waters

The issue around Brexit relates to how we handle EU-nationals. For non-EU nationals we are okay, I think we can resolve that, because there will be no change from where we stand at the moment and that is important. The challenge for us lies with EU-nationals and is where we have been making our case to the Commission.

If any of my colleagues wish to add anything or correct me if necessary, they might do so.

Senator Gerard P. Craughwell

I have one supplementary question on non-EU nationals. We were aware that there was a huge problem with non-EU nationals in Calais, for example. Is there a possibility of a similar problem arising in Drogheda or some part of our Border counties where non-EU nationals landing in Ireland get as far as the border with Northern Ireland and are turned back and have nowhere else to go?

Mr. Noel Waters

If the Senator is suggesting that there would be a border in Dundalk or something, we do not anticipate having border control points there. There are many possibilities. One may talk about what might happen and how our systems would operate post-Brexit. The nature of immigration means it can be quite unpredictable. I would not want to be alarmist. I have no sense of why a situation like the one outlined by Senator Craughwell would arise, it does not make sense to me. The nature of immigration is that what is not a problem today could well become a problem later. For example, last year or the year before, we had a major problem with very significant numbers of people from a far eastern country coming to Ireland after their immigration permission for the UK had run out of time. They used the common travel area. It took us about 18 months to get on top of that, with both jurisdictions working together to ensure that we respected each others' borders. We dealt with that appropriately and that problem has been solved but 18 months ago that problem was not there. It emerged and it was solved and that is the nature of the work we do.

Mr. Jimmy Martin

To add to my colleague's remarks, particularly on bilateral discussions, the negotiations are between the European Community and the United Kingdom. We are a part of the European Union. There would be many issues which are purely EU matters and they will clearly take the lead role. There will be other issues, possibly many relating to the common travel area, that may not fall within the competence of the EU and it might be happy for some kind of bilateral discussion between ourselves and the UK. It will be a matter for the Commission to decide that. We could not say now what the situation is. We would obviously explain the areas that we think are appropriate for bilateral as opposed to multilateral discussion but ultimately, that is a decision for the Commission.

It is too early for us to say what will happen in that regard.

Mr. Noel Waters

I will add something before my colleague replies. Senator Craughwell referred to students, particularly from China. As members are aware regarding the movement of students globally and into Europe and Ireland as an English-speaking country, we have had difficulties with many sellers of education leaving the market. We had concerns about it being used and abused. While I will never say that we are on top of the situation, we are in a better place thanks to the arrangements that we have put in place.

It is a competitive market and brings significant economic activity into a country, but rules change from one country to another. In Ireland, the normal visitor visa, not just for students, is for 90 days, which is the time one can remain without going anywhere near an immigration officer. In the UK, that period is normally 180 days. However, we are in a common travel area, so we have made arrangements. Similar arrangements apply in the case of our student population.

We target a cohort from this competitive market not just from China, but worldwide. It is a good business and we have addressed its more unsavoury aspects, namely, where some of those involved were using it as an opportunity to bypass other immigration controls and work without actually attending language schools or being interested in learning English.

Mr. William O'Dwyer

I will add to that. We work closely with third level colleges on encouraging students to come to Ireland. We facilitate that as much as we can, consistent with our immigration requirements. It has worked well and we have good relations.

Third country nationals and how we treat them were mentioned. It is important to emphasise that we are outside the Schengen border arrangements, which will likely continue. We have that flexibility to increase our co-operation with the UK while, as the Secretary General stated, remaining consistent with our requirements in terms of free movement.

Senator Victor Boyhan

I thank the witnesses for attending the Seanad's hearings. They are welcome. I also thank the Chairman and wish him well in his job. It is an important position. That we are meeting in the Seanad Chamber gives us a sense of the committee's importance. Establishing the committee was a decision of the Seanad. In time, we might tweak how we do our business.

In the meantime, I will stick to the topic, namely, the common travel area. I will make a few comments before asking three questions. The UK's decision to leave the EU presents unprecedented political, economic and diplomatic challenges to our peace and prosperity that we will be dealing with for months and years to come. This will be a slow, years-long process. These challenges will define the future of our island and our people for decades.

I read a document on Ireland's Brexit priorities that was circulated with our papers. I am glad that the four top designated issues are the future of the EU, the economy and trade, Northern Ireland and the peace process, and the common travel area. The document refers to the challenges of Brexit. No one in the Chamber underestimates those challenges. To be fair to parliamentarians, the Civil Service and the political establishment, we all know what the challenges are; we can keep rehearsing them, but it is important that we identify how best to move forward.

The Secretary General mentioned the all-island civil dialogue process. I acknowledge the good work that it and its stakeholders have done in preparing and feeding into the Brexit process and how we develop our priorities. They have made an invaluable contribution to discussions, including ours, on Brexit preparations. Arising from that extensive work, the document outlines important information.

I will raise a housekeeping issue before asking my three questions. It is important that, if this committee is to be effective, we communicate the message of what we are doing and have free-flowing engagement on our documentation, discussions, etc. The National Forum on Europe, of which I was a member for many years, is a model that worked well. The Department is familiar with it. The committee might consider its example of engaging with civil society and other groups in an open flow of information. Sometimes, we might as well be talking in a vacuum.

Will it be necessary to impose a border on travel? Where is the most practical point to impose that border, if required? Surely the witnesses have had thoughts on this matter. Given that Ireland does not participate in the Schengen Agreement, is there scope for us or the UK to operate a common visa or immigration system in our own right? Can we have a bilateral arrangement in that regard? The witnesses might tease out the logistics of these questions.

I welcome the witnesses. This is a good start. I wish the Chairman and the secretariat, which will support this forum, all the best.

Senator Paul Daly

I wish to be associated with the good wishes to the Chairman in this important process, which commenced this morning. I also want to be associated with the good wishes and sympathies expressed to those slain and injured in Westminster yesterday. Before I entered the Chamber, it was announced that one of the injured bystanders was Irish. That is the kernel of the topic of today's conversation. While our sympathies and thoughts are with all of the families affected, they are particularly with our fellow citizen.

Instead of asking questions, I will make a number of statements and raise a few ideas that I would like the witnesses to tease out. "Hypothetical" is not the right word regarding this debate, but there is no right or wrong answer. Article 50 has not been officially triggered yet, so we have no idea. Teasing out all of the positive and negative inevitabilities is the reason for our committee. There is an old saying - in life, one plans for the worst and hopes for the best. That should get people somewhere in between.

Were this situation to go badly from an Irish perspective and become a hard Brexit, with a stand-off between the 26 other member states and the UK and our common travel area not maintained, what would the consequences be and what actions would the witnesses deem necessary for us to take in respect of people who are essentially domiciled in Ireland? I am being hypothetical with this worst case scenario. When people think of the common travel area, they think of ease of travel, no visas, flying over in the morning and back this evening without having to apply to anyone, etc. It also means that there is no limit to a person's stay. There are Irish people who flew over to London 40 years ago and have not flown back yet. Where would they stand in this if the situation went wrong and became a hard Brexit?

Some Irish people living in England, citizens of the South living in the North and citizens of the North living in the South have set up businesses. What will happen in that scenario to the Irish passport holder and business person who is currently working under EU regulations? We are being told that the period will be two years. I do not believe that, but we must work with what we have been told. That person is still an Irish citizen and, hence, a European citizen, but what of tax and workers' rights issues?

Across the board everything changes. Will we see a case of an Irish citizen who is an employer or a business person who is domiciled in what will be a non-EU state taking a case for their rights as a European citizen? I know there is no right or wrong answer on this, but I would like to hear the witnesses opinions on what we will do if this is to happen, or if there is an action plan in place for the worst case scenario.

Chairman

I am going to intervene there. This is a discussion about the common travel area primarily, and we will come to these other issues at later meetings.

Senator Paul Daly

I am asking for comment on what has been in place. It will have consequences.

Chairman

We might refine it as much as possible.

Senator Paul Daly

I do not want to come across as negative but, considering worst case scenarios, if there is a hard border how do the witnesses see us handling the common travel area for our European friends who can come to Ireland but cannot go to the North?

Senator Mark Daly

Apologies, I had to go to the Committee on Foreign Affairs and Trade meeting, where Brexit is on the agenda as well. Our work here involves looking at the various options. We do not know what the EU will look for, and everyone is looking at the North being a back door into Britain and wondering how the common travel area can be sustained. The EU's concern is that it does not want us to be a back door from the UK into the EU, and that issue was raised at the House of Lords, where Mike Nesbitt brought up the issue of the Border being in the middle of the Irish Sea. I brought that up yesterday when we were having meetings with the Northern Ireland Affairs Committee in Westminster. They already have Operation Gull in place in Northern Ireland, where they have immigration officers checking people travelling from Derry, Belfast and Larne into Britain. Formalising that and having a standardised check so that everybody leaving the island of Ireland would be checked for immigration would mean that there would be no necessity for any checks on people going over and back across the Border. These are all different scenarios based on what the EU might propose. It was reported in The Guardian that it was proposed in the House of Lords that Ireland would install UK immigration officers at our ports and take an all-island approach, which is unacceptable. Has that been explored with the British authorities? It is an unwelcome piece of kite flying.

A professor with an interest in this area has spoken about Protocols Nos. 19 and 20 which allow the common travel area and said that it is not incompatible with EU law. Do the witnesses have a view on that? Are we going to have to enforce UK immigration law and EU immigration law on people who are entering and leaving this island?

The figures provided are interesting. We are working on it in the Joint Committee on the Implementation of the Good Friday Agreement. It is difficult to get accurate figures for the numbers of people travelling over and back across the Border. We hear of 20,000 or 30,000 or 40,000 people travelling over and back across the Border every day for work and study. When one looks at the census results from 2011 - I am sure the witnesses have seen them - there are 14,751 people doing this. Mr. Waters gave us figures. When we looked for research on those who leave the island of Ireland and going to Britain every day who are Irish passport holders the figure was 5,722.

Our position is based on the facts. Our first wish is for the status quo to remain because we would like to retain what we have. We then have to ask if we can retain the common travel area and ensure that whatever restrictions the EU might put on it do not impinge on people. If that is not possible, can we ensure that the Border between the North and South remains open and that all checks are carried out on the island of Ireland? That requires Britain to reinstate what it did during a period between 1939 and 1952, when it imposed what was effectively immigration controls between Northern Ireland and Britain.

Getting the hard facts and having a position based on them is the key to the common travel area. We have to consider the practicality of this. We all travel over and back between Ireland and Britain. People travel from France into Britain. France is in Schengen. What is the difference for somebody who is arriving from France into Britain today? What passport controls do they have to go through? Is it a simple matter of producing one's passport? Ireland is not in Schengen. France is in Schengen. Are citizens treated differently, and if so what is the difference? How does it compare to the people who travel over and back across the Border every day? At yesterday's meeting with the British Members of Parliament it was said that they could not possibly formalise an immigration control check that they have in Derry, Belfast and Larne. Some 792 people who were trying to get into Britain through Northern Ireland by travelling to the Republic and crossing the Border have been arrested in one calendar year. Once the word gets out that everybody trying to get into Britain through Northern Ireland will get caught then nobody is going to bother trying to get into Britain via that route. Britain seems to be saying that it might put seamless or frictionless controls on the Border. The only people that affects are people who are travelling back and forth and going about their daily business on this island, and it will not affect those people positively.

Is it the case that Protocols Nos. 19 and 20 mean that our common travel area does not affect EU law? We are having a big battle over the common travel area. Is there a difference in how a person from France who is travelling to Britain today is treated compared to a person from Ireland? Is it worth having this battle? The most important battle is making sure that we do not have border checks on this island. When we emphasise this to public representatives here and in America and elsewhere, it is said that if an electronic border checkpoint is put up and it is shot then a fence has to be erected. If the fence is taken down a soldier has to be installed to protect it. The soldier might then get shot. That is how these things can escalate. We are trying to convey to our European colleagues that this is not the border between Norway and Sweden. This is a post-conflict society that is still emerging from conflict.

Mr. Noel Waters

I thank the Senators. I will revert to Senator Boyhan first. I acknowledge the Senator's points on the question of having a separate visa within the common travel area post-Brexit to enable us to function as we are at the moment. In reality, when it comes to non-EU nationals, such as the Chinese people I referred to in my opening remarks, the British-Irish visa scheme is essentially a separate visa which enables them to come to London, to travel across the Irish Sea, to visit the Guinness Storehouse, to go to Killarney or Kilkenny or the Cliffs of Moher, and when they are done to go to the Titanic Centre in Belfast and then back down to Dublin completely seamlessly. The co-operation we have with the UK has enabled this to happen. That mirrors to a large extent what happens in Schengen.

As I understand it, when people apply for a Schengen visa, and we are not in Schengen now, they may apply for a visa in Riga and may travel from Riga in northern Europe, up on the Baltic coast, right down to the southern Mediterranean on the same visa. What we do with the UK in respect of the British-Irish visa effectively mirrors that. It is in our national interest, and it is a public policy prerogative for us, to retain that. We want to keep that. That is really important because that is generating genuine business in this country. It is important for tourism, for business and for ease of travel. We want to retain that and we anticipate that we should, because it relates to non-EU nationals or third-country nationals.

The challenge for us then relates to EU nationals, the people who come from the other member states into Ireland. We are not going to interfere in any way with their rights of free movement, whether into Ireland, Spain, the UK or any other country. We are not, in any way, going to interfere with that. For us to even attempt to go there would call into question our commitment as EU members and that is simply not going to happen. We are committed, completely and totally, to respecting the free movement rights of EU nationals.

Picking up on Senator Mark Daly's point, there is no question of UK officials acting as border agents in Ireland. That, again, is simply not on. There was some comment about that in the immediate aftermath of Brexit. Perhaps that comment was a little bit misinformed because we are not going to exercise a border control function for EU nationals on behalf of the UK. We do, to all intents and purposes, exercise that function in respect of non-EU nationals. The benefit of that, as I spoke about, is having a common visa to enable people to come into Ireland, to travel to the UK and the North and to move around the area without let or hindrance. Our intention is that would remain. I think that deals with Senator Boyhan's point if I understand it.

To address Senator Daly's comments on the hard Brexit, the Senator painted what I would call a dystopian scenario. There are no two ways of putting it. A situation where there was a completely hard Brexit, everything was off the table and the common travel area was gone would be very bleak. Major issues would immediately arise for the freedom of movement and the freedom to reside, work, educate and live on the island, North and South, not to speak of people being able to travel, as we have all our lives, to the UK and remain as long as we like. That would be an entirely bleak situation for Ireland in terms of our economic activity and ability to trade.

The Government is working as best it can to avoid that happening, hence, as I said at the outset, we have made our case very strongly to the European Commission to retain the particular arrangements we have in respect of the common travel area. We can only wait to see how that actually works out. I think that picks up a point by the Senator's colleague, Senator Paul Daly. There is no sugar coating this in terms of the scenario the Senator has painted. It would be a very difficult situation for our country if we found ourselves in the position of having to reintroduce border controls on the Border. We would have to reintroduce border controls at all our ports of entry because we would effectively be the border for the EU. The UK would be a third country. We would be enforcing the border for everybody with no regard to our own particular arrangements in the common travel area.

That actually speaks to another related point. Before Brexit, the question was often raised as to why do we not just leave the common travel area or why can we not be in Schengen and the common travel area. The simple answer is that we cannot be in both. It is actually to our advantage. It is an arguable point, and obviously a call made by Governments over the years, whether it was more beneficial to Ireland to be in Schengen or to be in the common travel area. The debate has gone on post-Brexit and the argument is essentially that it is in our national interest to be in the common travel area. The fact that we are not in Schengen is actually helpful in the context of the arguments that we are making to the Commission about the special nature of the arrangement between ourselves and the UK, not to speak of the peace process and the fact that so many people in the North, 1 million people, are entitled to Irish passports. All of those issues together make the argument, very strongly, for where we want to be. Again, the situation the Senator has raised would be very bleak.

There is another point which I am glad Senator Daly has brought out. It is in terms of how we actually operate at the moment. Not many people know about the amount of information that travels back and forth between our respective jurisdictions and which helps to make us all safer. We have advanced passenger information, API. I might ask my colleague, Mr William O'Dwyer, to talk about that in a moment. This is information shared by airlines with the immigration authorities, back and forth across the Irish Sea. This is an important reassurance for everybody to know who is coming into our jurisdictions. I think people need not have concerns around that because there are no issues, that information is destroyed instantly. There are not large banks of data being kept and collated for any other nefarious purpose. Perhaps my colleague, Mr. James Martin, might come in on this as well. There is a passenger name records directive coming into play in May of next year. We are obliged to sign up to it. This again will require all the authorities, both in Europe and outside of it, to share information about people who are travelling between jurisdictions.

Perhaps Mr. O'Dwyer will now come in on the matter of API.

Mr. William O'Dwyer

This goes to the point made earlier in respect of the importance of protecting the outer border of the common travel area, the CTA. On that basis, our UK colleagues share a lot of information on things like visas and people of concern to the CTA generally so that individual border officers have information at their disposal to make decisions on people arriving. Advance passenger information is essentially information taken off the machine readable zone of the passport plus a few extra flight details. That is sent in advance of a flight arriving in the State. It allows for advance checks to be done on arriving passengers. Last year we made arrangements with the UK that it would be able to collect this data on Irish-registered carriers flying in and out of the UK. That arrangement has worked very well. The UK is collecting the data from at least one carrier and is seeking to obtain it from the remaining carriers.

The other point is that, from our own perspective, we are looking at putting a similar system in place around the middle of the year. It will start collecting advance passenger information from flights arriving from outside the EEA, but the passenger name record, PNR, directive, which my colleague will speak on shortly, will allow us to expand that collection into flights arriving from within the EEA as well. In a way data-sharing is at the heart of preserving and protecting the CTA. Those arrangements that are in place are of a long-standing nature. As Mr. Waters said earlier in respect of our powers at the Border, we have specific power to refuse a third country national who intends to travel to the UK and who would not be acceptable for entry there. There are similar provisions in the UK in respect of people who might want to come here but would not be acceptable for entry into Ireland.

Mr. Jimmy Martin

I will pick up on the questions around Protocols No. 19 and 20 of the Schengen Agreement and the common travel area. I hope Members will forgive me for being slightly long-winded, but it is best to explain it from an historical perspective. First of all, before I start on that, the question about what the position of Irish people will be in the UK post-Brexit is really a question for the British to decide. They have said that they want to maintain the common travel area and, by implication, maintain all the rights, but it is purely a decision for the UK. It is not necessarily part of the negotiations. There are negotiations about reciprocal rights. If one looks at Ireland in 1922, the common travel area meant Irish people could go to Britain.

There was free travel and the right to work. When we joined the European Union in 1973, that gave us certain rights to free movement. It meant that we could move to France to look for a job under certain specific conditions. It did not provide for free movement in the sense that border controls remained in place between Ireland and France and between France and Germany. There was no free movement, even though there were certain rights such as a right to work and things like that, but one could not just cross a border. It was only following the signing of the Lisbon treaty that the Schengen area idea was introduced. In one context, it removed border controls. After the introduction of the Schengen area, a person living in France could cross into Germany without border controls. In a sense, it is mirrored in the common travel area.

There are no border controls between Ireland and the United Kingdom and we have the right to work there. The EU arrangements mirror that system. When the provision was included in the Treaty of Lisbon, there was a question for Ireland and the United Kingdom to decide, namely, did they want to, in effect, abandon the common travel area and join the Schengen area? A decision was made at that stage not to join. Protocols 19 and 20 stated Ireland and Britain could stay outside the Schengen area and have their own border controls. The Schengen area and the common travel area are very similar in terms of the arrangements applied. When we travel to France, we have to show our passports because we are entering the Schengen area, but once we are in France, we can move between Schengen area countries. When a French person travels to Ireland or Britain, he or she has to show a passport, despite having a right of entry. Our legal staff have examined Protocols 19 and 20 and their advice to us has been that they stand. Even though the United Kingdom is leaving the European Union, Ireland still has a right to have border controls separate from the Schengen agreement. No view from Brussels has stated that this is not correct. If that continues to be the case, we can decide to have whatever border controls we want. People living elsewhere in the European Union will still have a right to travel here, but we will have a right to check their passports. It is to be hoped that position can be maintained.

As Mr. Waters said, we cannot be in the Schengen area and the common travel area because there has to be a border between the two. Ireland is in the common travel area and the European Union, which means that we have reciprocal rights. People from Ireland and the United Kingdom have rights in the common travel area and the European Union. The problem will arise when the United Kingdom leaves the European Union. The rights of Irish people living in the United Kingdom will be the rights we have in the common travel area but not in the European Union. The rights of people from the United Kingdom who are living in Ireland will depend on what rights they will have in the common travel area rather than in the European Union. Citizens of the European Union will retain exactly the same rights in Ireland as they have now. Logic feeds from that which is connected to all other questions. The view is that Protocols 19 and 20 mean that Ireland can remain outside the Schengen area and retain border controls. That would mean that there could be no border controls with the United Kingdom. That would not cause any problem for Schengen area countries. Given that Ireland is outside the Schengen area, it would not be a back door. The countries in the Schengen area could have border controls for us.

Senator Alice-Mary Higgins

I thank the officials for their testimony. We have received some assurances for EU nationals to ensure their free passage within Ireland would not be affected. I am concerned for non-EU or third country nationals. We have heard about the British-Irish visa scheme which has been significant. As has been said, we have benefited from large increases in the numbers of tourists from China and elsewhere. Concerns have been expressed, however, by Irish diplomats about the operation of the scheme. For example, there are situations where Ireland wishes to issue a visa but there is a delay in processing on the other side. There is a concern that if these delays are extended and become more systematic, it will become a point of leverage. I ask the officials to outline their thoughts on the practical questions regarding the British-Irish visa scheme.

The United States recently introduced new policies on migration which are xenophobic and a source of serious concern. They have been highlighted both here and elsewhere. How do we ensure we will not be pressed, legally or practically? It is important that Ireland remain an internationally connected country with strong relationships around the world. It is important that we do not diminish our ability to engage with friendly countries and our right to issue visas. Has a risk analysis been carried out of the possibility that xenophobic or other constraints would be introduced by Britain and how they would affect Ireland? Many EU nationals have relationships with third country nationals which are recognised differently in different places. Will the officials outline their thinking on that issue? It is an important one.

I refer to advance passenger information systems within the European Union. There is concern about the information which it is appropriate to exchange between Ireland and the United Kingdom. If the United Kingdom is outside the European Union, how will we ensure we will be in line with our human rights and other commitments in the area of data protection in the provision of advance passenger information?

Scotland is very much an arrow to the future and may create another border on these islands. I do not know what is the extent of contact between Scotland and Ireland on negotiations. Do the officials know whether it is following our discussions in this area closely?

Senator Mark Daly

I thank the officials for their detailed response on Protocols 19 and 20 which was required owing to their complex nature. From what they have outlined, the fundamental point appears to be that EU countries are not concerned about what will happen between the North and the South. Whether controls are to be put in place is entirely at the will of the British Government. It is of no concern to the European Union because Ireland is outside the Schengen area, which happens to be to our advantage as otherwise we would have to impose border controls. Is my interpretation correct?

Mr. Noel Waters

On the Senator's final point, it would clearly be a breach of the arrangements for the common travel area. The British Government is completely committed, as is the Irish Government, to the retention of the common travel area. After the United Kingdom leaves the European Union the British Government could decide to impose whatever controls it wanted to have in place on its side, whether on the mainland or in the North. As I said, the Prime Minister has been abundantly clear that the British Government is committed to retention of the common travel area. The 11 points made on what it wanted to see post-Brexit included retention of the common travel area. We have to take it at its word that it would not wish to see any change. If, however, Britain wanted to impose border controls, it would be a sovereign matter for it to decide.

Mr. Jimmy Martin

On the issue of border controls, our view is that other EU countries have no particular interest in Ireland. Border controls in place between Ireland and the United Kingdom would not affect them.

They have border controls with us. It has to be remembered that the common travel area extends beyond mere border controls. That is where there may be a mixture of rights. As far as pure border controls go, we do not think that other member states will have a big concern about it. The other rights associated with it may cause problems.

Senator Mark Daly

Forgive me for labouring the point, but the very clear focus for the Joint Committee on the Implementation of the Good Friday Agreement is the issue of people going over and back across the Border. The EU does not have any real issue because we are outside the Schengen Agreement, and it is not going to request or require us to act. That had been a concern raised at the committee, and we could not quite get a clear answer. It has been answered quite clearly now that the EU is not going to ask us to put gardaí at the Border or immigration officers at the Border for people coming in. The only people who are going to be asking for that would be British, if they wish. It is up to them.

Mr. Jimmy Martin

I do not speak for the European Union.

Senator Mark Daly

Not yet.

Mr. Jimmy Martin

That would be my view. There is no political, practical-----

Senator Mark Daly

Or legal.

Mr. Jimmy Martin

-----or legal reason that they would have an interest in it.

Mr. Noel Waters

I will address Senator Higgins' comments. There were some issues and delays when the British-Irish visa scheme was initially introduced because part of the arrangement of the British-Irish visa scheme is a requirement that people give a fingerprint on their visa, which is a standard requirement in many countries. We had to put in place practical arrangements with our UK colleagues to ensure that information was channelled to us and it was checked against our databases. To the best of my knowledge, those issues have been resolved. Perhaps in a moment, my colleague, Mr. O'Dwyer, might be able to comment further on that.

A concern was raised about issues similar to those with the United States arising in the UK. We have to realise that we are ultimately a sovereign nation, subject to our participation in the EU and what goes through that with respect to our freedom of action and what policies we have. The idea that we would be obliged to follow suit if the UK, unlikely as it is, introduced punitive arrangements for some people is not a practical proposition. We part with them already on the matter of nationals from South Africa due to our historical relationships. That does not present a practical difficulty. It would suit us better with regard to ease of work from an immigration perspective, but it is a policy issue for us in Ireland that South African nationals do not require visas.

On the passenger name records issue, that is coming and has been debated at length in Europe. It will require all countries to exchange information with each other. It is essentially showing us that people know who is entering their territories. There are very strict guidelines around it on data and how long it is held. It is held for really short periods in most cases. It does not really arise for people where there are no hits on watch lists.

The UK having left the EU raises other issues with regard to the data protection regime that it will have post-Brexit, which is clearly one of the issues of concern to us and that we have not touched on today. Issues around European arrest warrants, data protection, enforcement of civil proceedings, and the underpinnings of all those relate to the exchange of data. The standard by which Europe operates is set down in various data protection directives. A new one is coming in next year. The UK would be required to be of the same standard as the European model for us to exchange information with the UK on that issue post-Brexit. Whether it continues to be part of what we have at the moment or a new standard remains to be seen post-Brexit. It is a clear issue which has to be addressed in the context of negotiations. The UK has already indicated that it wishes to remain outside the European Court of Justice. That is a problem of co-operation, because where there is a dispute with a European arrest warrant, it is ultimately resolved at the European Court of Justice. The UK is going to have to find some solution to that. We would like more detail from it on that, which we have not got yet. Senator Higgins' points are well-made.

I do not wish to comment on Scotland. It is probably watching developments here very carefully, as its people are fellow Celts.

Chairman

Does one of Mr. Waters' colleagues want to come in again?

Mr. William O'Dwyer

On the British-Irish visa scheme, BIVS, as the Secretary General has said, there would have been some technical issues in the early days that might have caused delays, but those issues have been ironed out at this stage. The tourism agency has certainly seen it as a great success. It is kept under constant review by us and the UK, and we are looking at extending it further at this stage.

Advanced passenger information, API, was mentioned, and I emphasise that all of these exchanges are subject to data protection requirements. The API, specifically, is the data that would otherwise be presented if one landed at the Border. It is the biographical data on a person's passport that is being exchanged.

Chairman

We have come to a conclusion at this stage unless anyone else has any more interventions. I thank our first three public witnesses for their appearance today.

The select committee went into private session at 12.25 p.m. and adjourned at 1.20 p.m. until 11 a.m. on Thursday, 6 April 2017.