The Memorandum of Understanding (MoU) concluded between the UK and Ireland in May 2019 provides one of the few clear legacies of Theresa May’s premiership. The Common Travel Area (CTA) between Ireland, the UK, the Channel Islands, and the Isle of Man provides the basis for domestic immigration and nationality laws which permit Irish citizens to reside in the UK and for them to be treated as “not foreign” in the context of UK domestic laws concerning access to healthcare, employment, social security, political participation, and education. Yet it has long lacked legal definition. The UK and Ireland reciprocate, to a rough extent, these rights for each other’s citizens. The MoU and related developments mark the first steps towards clarifying the CTA’s scope. The rush to conclude this MoU and alter parts of both countries’ domestic law relating to the CTA nonetheless illustrate the fragile state of Ireland–UK relations with Brexit looming. This Article explores whether these reforms will enable people who rely upon the CTA as a foundation of life outside their home country to protect their interests through litigation, and reflects upon the relationship between these arrangements and the protections for EU citizens proposed under the UK–EU Withdrawal Agreement.

In recent years, the Schengen Area—and the suppression within its territory of border controls—has become a strong focus of attention. This article focuses on another region of Europe where such controls have been suppressed: the Common Travel Area (‘CTA’). Historically, both Ireland and the United Kingdom have rejected membership of the Schengen system—albeit securing certain ‘opt-in’ rights—and instead maintained the CTA between their respective jurisdictions. The CTA has, however, garnered relatively little public attention until recently, when concerns as to the implications of Brexit for the maintenance of an open border between Ireland and Northern Ireland have gained ground, and threatened to be a deal breaker in the negotiations under Article 50 TEU on UK exit from the EU (‘Brexit’). This article examines the background to the CTA, exploring its surprisingly fluid legal framework; its development in the legal systems of Ireland and the United Kingdom; and subsequently, how it was exempted from what is now EU law as the Schengen arrangements were integrated into the Union. The recent introduction of the British-Irish Visa Scheme, which formalises some visa rules regarding citizens of third states, and which tends in the direction of consolidating CTA arrangements, is also examined. The article further explores the challenges that confront the CTA in coping with the outcome of the June 2016 Brexit referendum, which should result in the UK leaving the European Union in March 2019, and the implications of Brexit for the CTA. Finally, it seeks to identify some key characteristics of the CTA in light of experience to date.