Friday, September 18, 2020

Business as Usual? The Common Travel Area in the Era of COVID-19

    Colin Murray, University of Newcastle 

Last month, The Economist’s Charlemagne column warned of the threat that the COVID-19 pandemic posed to the long-term operation of the Schengen passport-free travel zone, as intermittent border closures accompanied new waves of the pandemic. The column noted, however, that these arrangements actually played very little role in the day-to-day lives of Europe’s populace, with only 2 million across the continent working and living on different sides of a border. It concluded that efforts to mitigate Europe’s internal borders for people mattered most Brussel’s ‘well-paid polyglots’, who ‘flit across the continent constantly, for work and pleasure.’ The view from Ireland is very different. Not only does the near century-old border remain a defining issue in politics North and South, but it is one that has become especially acute since the Brexit referendum outcome in 2016. 

Prior to the 1990s, an ‘all-island economy’, one of the hallmark phrases of Brexit negotiations, was virtually non-existent. Even though Common Travel Area (CTA) arrangements have permitted passport-free travel across the land border since partition, few people regularly crossed the militarised border for work at the height of the Northern Ireland conflict. Only the twin stimuli of the development of the European Single Market and the Belfast/Good Friday Agreement 1998 changed this situation. When travel across the land border was last subject to severe restriction, during the Foot-and-Mouth crisis of 2001, those arrangements were nascent. Twenty years on, thousands of livelihoods now depend upon the openness of the border.    

Unlike Schengen, there has been no restriction to travel across the land border in response to COVID-19. This fact might be taken to suggest, on a superficial reading at least, that the CTA is proving particularly stable even in the face of the pandemic. Ireland, however, has imposed quarantine restrictions on travellers entering the country directly from Great Britain (causing one unionist politician to fulminate that this amounts to a ‘a contradiction of the common travel area’); it is the land border which remains unaffected. Indeed, that border has been so destabilised by Brexit that any thought of interrupting passport-free travel across it is very difficult for politicians in Ireland to contemplate. In this instance, “business as usual” in the midst of the pandemic is a mark of deep dysfunction. 

Co-operation and coordination between the Irish Government and Northern Ireland Executive has not always been prominent during the pandemic. Although the two Health Ministers agreed a Memorandum of Understanding early in the crisis, most work has been at the level of officials (coordinated by the two Chief Medical Officers) rather than ministers. Indeed, Sinn Fein’s strong performance in the 2020 general election in Ireland has led to several barbed comments from ministers in Ireland about Northern Ireland’s record during the pandemic, which have hardly been conducive to cooperation. When, at the end of July, the North-South Ministerial Council met for the first time in over three years, the Taoiseach Micheál Martin could only make a vague commitment ‘to try and keep working together to optimum level of co-operation north and south’.

One of the most immediate points of divergence between the two administrations has been in terms of travel, with Ireland maintaining stricter international travel quarantine arrangements for a wider range of countries than Northern Ireland. In particular, Northern Ireland has resisted suggestions of imposing quarantine restrictions upon travellers from Great Britain, even when levels of community transmission have been higher in Great Britain than on the island of Ireland. For the Irish Government, this has created a Belfast loophole in its travel restrictions, in that as a result of the lack of restrictions at the land border travellers from Great Britain are able move into Ireland through Northern Ireland without being subject to quarantine requirements.  

This loophole, however, works both ways. Northern Ireland’s Coronavirus (International Travel) Regulationsimpose 14-day self-isolation requirements on travellers who enter Northern Ireland having been outside the CTA in the last 14 days (with exceptions). Whereas the operation of these rules at arrivals Northern Ireland’s two airports is straightforward, the same cannot be said for arrivals at airports in Ireland. There remains no workable system of information exchange between the relevant authorities. The Taoiseach’s response has, to date, been to shrug off these issues, asserting that ‘we must have a reality check of what is possible and what is not possible’.

The saga of Phil Hogan’s unceremonious resignation as EU Trade Commissioner for breaches of Ireland’s regulations having travelled from Belgium makes an interesting case in point; some of his breaches of the regulations would not have been breaches had he landed in Belfast and not Dublin. Perhaps this means that we are only one cause célèbre from these arrangements to come under sustained pressure (perhaps foreshadowed by grumblings about lockdown rules not being enforceable against cross-border travellers in April 2020). 

The spectre of Brexit, however, looms large over the lack of meaningful progress on information-sharing arrangements. The UK Government remains confident that at the end of the transition/implementation period on 31 December 2020, it will continue to ‘work closely with Ireland to secure the external CTA border, including data sharing and operational co-operation’. Such information sharing, however, remains entirely dependant on the UK striking a future-relationship deal with the EU which includes shared data protection standards. In short, if information sharing is proving difficult to operationalise under the umbrella of EU law, it will be impossible to achieve if provision is not made for its replacement. 

This is not some simplistic story of the Irish Government advancing the idea of an “invisible” border in the course of Brexit negotiations and finding itself hoisted on its own petard in its response to COVID-19. The openness of the border was a vital element in the everyday lives of many on the island before the pandemic, and became so once again in the months after the respective lock-downs were eased. The Irish Government did not invent the importance of this openness, and to date both parts of the island have been similarly affected by the pandemic. In the months ahead, however, business as usual might become increasingly difficult to sustain. Any divergences in the infection rate in Northern Ireland and Ireland as winter approaches, or moral panics sparked by outbreaks which are suspected to have resulted from cross-border movements on the island, will require the lack of restrictions at the land border to be justified North and South. The limits to cross-border cooperation to date do not augur well for a coordinated response to such challenges, and a no-deal Brexit could halt efforts to enhance cross-border information sharing.      

Colin Murray is a Reader in Public Law at the University of Newcastle. 

Suggested citation: Colin Murray, 'Business as Usual? The Common Travel Area in the Era of COVID-19' COVID-19 Law and Human Rights Observatory Blog (17th September 2020)

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