The common travel area enables passport-free and legal travel between the United Kingdom (including Northern Ireland), the Republic of Ireland, the Isle of Man and the Channel Islands for British and Irish citizens and migrants with lawful status. Once a person is within the common travel area, there are no routine passport checks on local travel between the United Kingdom and other constituent parts of the area, whether travelling by sea or air, and no checks at all on travel by land between the Republic of Ireland and the United Kingdom province of Northern Ireland. Some passport checks do take place on travel by air or sea but these are said by the United Kingdom government to be targeted and ‘intelligence led’.

It is simple not to check passports. It is less simple to make sure that those permitted to cross the border are not breaking the law when they do so.

Background to the Common Travel Area

The fundamental idea of the common travel area is that immigration checks are conducted when a person enters the area from outside it but checks are not carried out on travel within the area.

Each of the constituent entities — the UK, Ireland, each of the islands — operate their own legal systems and immigration laws, although the immigration laws for the islands are largely derived from those of the United Kingdom. Provision is made for mutual recognition of immigration status between the United Kingdom and the islands but, with one exception, not between Ireland and the rest of the common travel area. The exception is the British-Irish visa scheme, which allows for a single joint visit visa for travel to both countries.

It is a complex arrangement that, as Bernard Ryan’s work has shown, evolved from non-statutory administrative agreements between the governments of the United Kingdom and Republic of Ireland dating back to the establishment of the Irish Free State in 1922. As Ireland achieved independence, the two states agreed not to introduce immigration border checks on travel for each other’s citizens. To make this work in practice, they also agreed to share information about travellers and broadly to enforce one another’s immigration laws and policies.

In the United Kingdom, for example, immigration officials are empowered to refuse permission to enter to a person intending to travel to another part of the common travel area if the official suspects the traveller will not acceptable to the immigration authorities there. Administrative policy is for the official concerned to contact the authorities of the relevant part of the common travel area for advice before issuing such a refusal and to record the response in writing.

The common travel area defined in law

In the United Kingdom, the legislative expression of the contemporary common travel area is far from clear. On the face of it, section 1(3) of the Immigration Act 1971 purports to exempt from immigration control all travellers entering the country from within the common travel area:

“[a]rrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to control under this Act, nor shall a person require leave to enter the United Kingdom on so arriving, except in so far as any of those places is for any purpose excluded from this subsection under the powers conferred by this Act”.

No distinction is made here between British, Irish or third country nationals.

A local journey is defined as one that begins and ends exclusively within the common travel area; it excludes a journey made by a ship or aircraft which began or will end its journey or has called or will call during its voyage at a place outside the common travel area.

Position of Irish citizens in UK immigration law

For many years, the position of Irish citizens in United Kingdom immigration law was unclear. Entry from Ireland itself or elsewhere in the common travel area would exempt an Irish citizen from United Kingdom immigration controls but entry from France or any other country would not. Administrative policy was to not apply immigration controls to Irish citizens at all; this was legally dubious given the mandatory nature of those controls.

In practice this mattered little while the United Kingdom and Ireland were both members of the European Union because free movement laws provided a separate, overlying right of entry and residence.

In order to resolve the potential issues that might arise upon the United Kingdom’s departure from the European Union, a new section 3ZA was added to the Immigration Act 1971 with effect from 31 December 2020 to state unambiguously that an Irish citizen ‘does not require leave to enter or remain in the United Kingdom’ unless the they are the subject of an extant deportation or exclusion order.

This provision is separate to the implementation of the common travel area, although it is certainly consistent with and gives life to the policy behind it.

Third country nationals and deemed leave

It is only therefore third country nationals who find themselves relying on the common travel area, meaning nationals of countries outside the common travel area.

The position of third country nationals entering the United Kingdom from the common travel area on a local journey is addressed primarily by the Immigration (Control of Entry through Republic of Ireland) Order 1972, made under section 9 of the Immigration Act 1971. No up-to-date and amended version of this is publicly available as far as I know.

Other key instruments of immigration control, including the immigration rules and the Immigration (Leave to Enter and Remain) Order 2000, also make provision for the operation of the common travel area in practice.

Broadly, the policy intention is that a third country national who is lawfully present in another part of the common travel area and is not a visa national may enter the United Kingdom without needing formal leave to enter.

They will instead automatically, by operation of law, have imposed on them a time limit and condition on their stay which are legally equivalent to leave to enter. It is sometimes referred to as ‘deemed leave’. The time limit is six months and the condition is a general prohibition on working. Business activities general visitors are permitted to undertake, such as attendance at meetings, negotiating and signing contracts and similar, is permitted. The deemed leave lapses when the person departs from the United Kingdom.

The same approach is adopted to a person who has limited leave in the United Kingdom, travels directly to Ireland, their leave expires while they are in Ireland and they re-enter the United Kingdom from directly from Ireland.

This all falls notably short of the hollow promise at section 1(3) of the Immigration Act 1971 that travellers from within the common travel area will be free from control.

To make matters worse, there are then two classes of exception to the general approach. The first requires some travellers to obtain a formal grant of ordinary leave before entering. This is not really about actually granting leave or about physically presenting entry — which is impossible without passport controls — but rather about illegalising those who enter even though they should not. The second exception enable some travellers to enter without the normal restrictions imposed by deemed leave.

Exceptions to deemed leave

Required to obtain leave

The first class of exception requires travellers to obtain leave to enter, failing which they become an illegal entrant upon entering. Given the nature of the exceptions, leave to enter is unlikely to be granted if sought.

Even where a person in this situation might potentially be eligible for leave to enter, obtaining it in practice may prove challenging. For example, a person might arrive by ferry at night where there are no immigration officers on duty or available to seek out at the relevant port in order to obtain leave.

Section 9 of the Immigration Act 1971 sets out the broad exceptions identified at the time the legislation was drafted. Lawful entry without leave from the common travel area does not apply to

• any person subject to a deportation order (including an Irish citizen)
• those who are notified on arrival that they are subject to a personal exclusion order; and
• those who have previously been refused leave in the United Kingdom and have not since then been granted leave.

Deportation orders against Irish citizens are extremely unusual in practice but remain possible in law. Personal exclusion orders at the direction of the Home Secretary need to be served on the person on their arrival for this exclusion to take effect, which may be unlikely in practice.

A further set of people are required by the Immigration (Control of Entry through Republic of Ireland) Order 1972 (no up-to-date version is publicly available as far as I know) to obtain leave, else they enter unlawfully:

• those who enter Ireland as air transit passengers from outside the common travel area
• are a visa national according to the United Kingdom immigration rules and have no valid visa
• enter Ireland unlawfully from outside the common travel area (including by use of deception even if undetected)
• left the United Kingdom with no leave when it was required and re-enter from the Ireland without admission or leave being granted in the meantime
• are excluded from entry to or residence in the United Kingdom by international obligations
• were refused admission or subject to a removal decision under the Immigration (European Economic Area) Regulations 2016 or the Citizens’ Rights (Frontier Worker) (EU Exit) Regulations 2020 and have not subsequently been granted admission or leave; or
• are a S2 health visitor in accordance with the Citizens’ Right Agreements with the EU, the other EEA states and Switzerland.

To make things even more complicated, where a person falling into one of these categories enters on this basis and receives six months of deemed leave then leaves and returns to the United Kingdom again without having left the common travel area, they are automatically granted two months of deemed leave.

Normal deemed leave restrictions do not apply

The second much smaller set of exceptions enable the traveller to enter without leave AND do not impose the normal deemed leave limitations on the person’s stay in the United Kingdom. These are outlined or introduced by the Immigration (Control of Entry through Republic of Ireland) Order 1972.

No time limit or restrictions are applied to

• British or Irish citizens or those with the right of abode in the United Kingdom
• those who are exempt from control, such as diplomats
• those who have been granted pre-settled or settled status under Appendix EU to the Immigration Rules (or have a pending application)
• a frontier worker as defined in the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020; or
• a person who has advance leave to enter under the Immigration (Leave to Enter and Remain) Order 1972 or has non-lapsing leave under that order.

Those who enter the United Kingdom on a local journey from Ireland in order to undertake a permitted paid engagement are automatically authorised to stay for one month rather than the normal six months of deemed leave. During that time they may undertake and be paid for the relevant engagement but no other work. If, having already entered on this basis, they leave the United Kingdom again, remain within the common travel area and then re-enter the United Kingdom, they will be subject to a maximum further stay on seven days and they may undertake the permitted paid engagement but no other work.

Conclusion

The modern common travel area is undoubtedly complex in its legal implementation. It’s a huge mess, quite frankly, and most of the operable law is unavailable to the public in any meaningful form.

In practice, though, the common travel area works smoothly for the vast majority of travellers, most of whom are British or Irish or are lawfully resident in or passing through a common travel area country and therefore benefit from the deemed leave approach.

Where a person enters the United Kingdom in breach of the common travel area system, either knowingly or unknowingly, they will usually be undetected because of the absence of routine passport checks. Some will be able to leave again in the same way and others will remain unlawfully resident.

Some unfortunate individuals may inadvertently fall foul of the way the common travel area operates by overstaying their deemed leave. With no official record of their entry, no signal as to their automatic period of stay or the conditions attached to it and no written statement of when they must leave, it is easy to end up in this situation.