Professor Siobhán Mullally:

A number of speakers mentioned that free movement rights have been very much at the heart of the push to consider withdrawal from the European Union. Many of the proposals for reform that have been put forward as a possible condition to the UK remaining within the EU would require reform of the treaties and of the core fundamental freedom of free movement and so would be difficult to secure, although not impossible. They raise significant legal challenges and would be politically difficult given that free movement has been very much at the heart of the European project.

There is also concern that some of the proposals I mentioned would have significant implications for UK nationals living in other parts of the EU, including Ireland, Spain, France and Germany. For example, should the type of reforms being proposed be proceeded with, the cost to other EU members states of providing the type of publicly funded health care provided by Spain to ageing UK nationals living there would be significantly difficult. The desired approach of some UK parliamentarians is a type of à la carteapproach to free movement, in other words, free movement negotiated with some member states but not all. This, of course, would be legally problematic, would not fit with EU free movement rules and would be politically very difficult to secure. The preference would be for bilateral negotiations with selected member states but not including all 28 member states and, most specifically, not including the newer member states that have acceded to the EU.

There is significant misinformation circulating around immigration and free movement. There is little evidence to suggest that free movement is primarily for the purpose of, for example, securing access to social security rather than work and study opportunities. Unfortunately, this type of misinformation does take root and hold. With regard to third country nationals, non-EU and non-EEA nationals, there are already significant restrictions in place in terms of immigration under EU law. As such, movement is already restricted and regulated. In the UK context, the points system and five-tier system apply. While there are already significant restrictions in place, the UK and other EU member states have taken a selective approach in terms of prioritising immigration for highly skilled nationals who meet the requirements of their job markets.

The right to seek asylum, the position of asylum seekers and those seeking protection was raised. Withdrawal of the UK from the EU would not change the position in that regard in that the right to seek asylum and protection predates the coming into existence of the European Union. The UK will continue to have obligations under international refugee law, including the 1951 convention relating to refugees to which it is a party, the UN convention against torture to which it is a party and the European Convention on Human Rights which protects against refoulement,namely, return of a person to a country where he or she would face a serious risk of torture, inhumane or degrading treatment. The debate around the European Convention on Human Rights and the Human Rights Act is a related but separate debate.

Of course, that has also become very problematic in the UK and has significant implications for Ireland, given the requirements of the Good Friday Agreement.

With regard to the crisis concerning people fleeing from Syria, the burden of that is being borne primarily by Mediterranean states and with very little EU support in terms of meeting the significant responsibilities and burdens that have arisen.

Regarding the Abu Hamza type of scenario, this is something that arises under the European Convention on Human Rights and the non-refoulement obligations. It raises a core question as to whether we consider that human rights protections apply to all persons, including those persons we may not like and who may not be considered desirable. Is the protection from torture and inhuman and degrading treatment to be considered absolute? It is under European human rights law and, of course, it has been very much valued in Ireland as we saw most recently in the request to the European Court of Human Rights to re-open the Ireland and UK case. Again, significant misinformation circulates around something like that. That protection would remain regardless of withdrawal from the EU in that it is provided for under the UN Convention against Torture, the refugee convention and the European Convention on Human Rights, for example.

With regard to the position of movement between Northern Ireland and the Republic and the safeguarding of the common travel area arrangements, it is likely that there would be an attempt to secure that and that it could be secured in some way. However, managing that in practice would be very difficult given that there would be a need for strengthened border controls with regard to the movements of non-EEA nationals.