Brexit and Ireland: will the border with Northern Ireland remain open?

By Bill Foster, a partner with immigration law firm, Fragomen. In this guest blog, Bill looks at whether Irish and UK nationals will be able to continue cross-border working

There has been much discussion on what the status will be, post Brexit, of Irish nationals living and working in the UK, and UK nationals living and working in Ireland. For organisations with employees who commute over the border on a regular basis, the desire to maintain free movement arrangements and an open border are paramount.

Irish and UK nationals

The common travel area (CTA) arrangements in place between the UK and Ireland allow Irish nationals to live in the UK without immigration controls. This right is enshrined in various pieces of UK legislation that are independent of European law. As with everything Brexit-related, there are many unknowns and much to be decided during the on-going negotiations, including the final status of the CTA. That said, the UK and Irish governments, as well as the EU, have all stated their commitment to maintaining these arrangements, a point reiterated by EU negotiator, Michel Bernier, in his statement to the Irish Parliament in May 2017, as well as the British government in its policy paper on EU citizens released in June. The UK government was keen to set out a clear position on Irish citizens in the policy paper, and stated from the outset its desire to “reflect the long-standing social and economic ties between the UK and Ireland and to protect the common travel area arrangements”.

This stance was reiterated by the British government in its Northern Ireland and Ireland position paper released on 16 August. Of particular note was a commitment to the “preservation of the rights of British and Irish citizens as enjoyed today”. Irish HR professionals concerned about their employees’ ability to access the UK or Irish labour markets post Brexit can take significant comfort from this statement.

In light of the most recent position paper there is no reason to believe the CTA should not remain in place following Brexit. If so, companies with Irish national employees in the UK (and British nationals in Ireland) should not expect those arrangements to be disrupted in the long term.

NI border

Both UK and Irish governments remain committed to a soft border. Should that commitment survive the negotiations (as is broadly anticipated, given the support so far offered by the EU) there should be little or no practical impact on the CTA, and even less for those traversing the border between Northern Ireland and the Republic.

One plan recently put forward by Taoiseach Leo Varadkar to facilitate this would be for the Irish Sea to form the border with the UK, and to maintain the soft border with the north in its current form. However, this has been ill received by some Northern Irish MPs, including the DUP and it was dismissed by the UK government in the August position paper, which also gives a much clearer indication as to how it proposes to control the border.

The proposal is to maintain a soft border and to control the flow of goods through the use of technology. This is certainly a novel approach but further details are needed as this solution is untried and untested. It is also viewed with scepticism by the Irish government, as evidenced by Foreign Minister Stephen Coveney’s comments in Brussels in July, where he expressed concerns that this would be unworkable. From the perspective of any employer, there is absolutely no guidance or indication from the UK government as to whether this technology will be used to monitor only the movement of goods or whether it will apply to people as well. Any attempt to monitor the flow of people would be an extremely unwelcome development for employers.

From an HR planning perspective, it is important to note that citizens in Northern Ireland are considered Irish citizens. This is enshrined as a principle of the Good Friday agreement and reinforced by the British government in the June policy paper, where it states that it will “continue to uphold…….. the rights of the people of Northern Ireland to be able to identify as British or Irish, or both, and to hold citizenship accordingly”.

As such, employees commuting to work from Northern Ireland into the Republic post Brexit can always retain access to the Irish labour market by confirming their Irish citizenship (for example, by securing an Irish passport). This should give comfort to any employer in the Republic that has employees crossing the border. The same is not true for Irish citizens working in Northern Ireland but, as noted above, the rhetoric from all sides remains in favour of maintaining the CTA. Of course, it remains to be seen whether this commitment survives the lengthy negotiations over the coming 18 months and, in turn, the final vote of the remaining 26 nations.

EU citizens post-Brexit

Unlike the situation regarding Irish citizens – where all parties involved in Brexit negotiations retain the will to continue the CTA – the final immigration status of other EU nationals in the UK remains less certain.

The UK government has also set out proposals on this. Those who have been living in the UK for at least five years on a specified date (yet to be determined) and exercising treaty rights (perhaps as a worker or student, for example) will be given ‘settled status’ in the UK, akin to ‘indefinite leave to remain’ status in UK immigration law.

The European Parliament’s Brexit steering committee has already expressed dissatisfaction with the proposed terms, but it’s important to remember this UK policy statement is very much an opening salvo.

What to do now

While the legal landscape remains unclear, there is little concrete advice to offer. However, time spent by HR professionals in the meantime on practical preparation (for example, gathering information on the number of cross-border commuters they employ) could be valuable. Newsletters or ‘town hall’ meetings to provide updates to staff may also serve to settle the nerves of anxious colleagues, and reassure them that HR is alive to the potential issues for Irish nationals as a consequence of the UK’s departure from the EU.

Bill would like to thank Gemma Hyslop and Alex Stanley, at Fragomen, for their support in researching and preparing this blog