Dáil debates

Friday, 13 November 2015

Freedom of Movement (Common Travel Area) (Travel Documentation) Bill 2014: Second Stage [Private Members]


11:10 am

Photo of Terence FlanaganTerence Flanagan (Dublin North East, Renua Ireland) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I note it is Friday the 13th but I hope that will not go against me and the Minister of State might accept this Bill. The issue of a potential "Brexit" is on the mind of nearly every Member of the House. Earlier this week, the Taoiseach was in London and met British Prime Minister David Cameron, discussing the potential for a Brexit. The Bill before the House is timely, regardless of what will happen in that referendum in the United Kingdom, as it will enhance and secure our relationship with our closest neighbours with respect to open travel.

As I stated in the House when I introduced the Bill last year, it provides for passport-free travel for qualifying persons travelling within the common travel area. The common travel area can be a grey area in law and causes confusion for people travelling within it as to what types of identification are required. As we know, the common travel area is supposed to be a border-free zone - in theory at least - between the islands of Great Britain and Ireland. It is an abnormal area of the law with practical implications and associated political sensitivity.

Before I delve into the Bill and what it proposes, I will comment on the land border that Ireland shares with the United Kingdom in light of a potential Brexit. Many people have spoken about the implications of this land border, which cuts through many farmyards in Border counties. Some have said that if the United Kingdom leaves the European Union, passport controls will be reinstated. I do not believe that will be the case if the United Kingdom decides, unfortunately, to leave the European Union. Passport and border controls along the Northern Irish Border are not inevitable in the case of a Brexit. We know protocol 20, which deals with the application of certain aspects of Article 26 of the Treaty on the Functioning of the European Union to the United Kingdom and Ireland, which is annexed to the European Union treaties, means that EU law recognises the common travel area. It acknowledges the special travel arrangements between the countries in that borders in the traditional sense have never existed.

In the case of a Brexit, the Northern Irish Border would become an external EU border but this is irrelevant for passport and border control because neither the United Kingdom nor Ireland is party to the Schengen area. Instead, they operate the common travel area between them. If anything, the recent introduction of reciprocal visa arrangements for third state nationals through the British-Irish visa scheme has strengthened the ties that the two states have on their own border policies. British and Irish border policies between the two states as part of the common travel area will continue to be separate from either state's membership of the European Union. Customs matters, on the other hand, are relevant, but that is beyond the scope of the common travel area that we deal with today.

Although there is no absolute requirement to present a passport for travel within the common travel area for Irish or British citizens, the reality is very different.

The legislation I am proposing is to ensure that a transport operator, such as an airline, leaving from an Irish point of departure cannot demand the carrying of a passport from an Irish citizen travelling within the common travel area. I am going to outline two established practices that prove the common travel area has, over time, been weakened instead of strengthened.

The first is one of which all Deputies will be aware. On arrival in Dublin Airport, all persons, regardless of where they are flying from, must produce identification to enter the State. By not having a different stream in Dublin Airport for arrivals from other airports in Ireland and the United Kingdom, Irish airports are out of kilter with UK practice. When one arrives at any of the London airports from Dublin, for example, one does not enter through immigration managed by the UK Border Agency. Instead, one enters via a separate channel marked "Domestic UK flights and from Ireland." Dublin Airport provides no equivalent arrangements for "Domestic Irish flights and [those] from the United Kingdom." This clearly demonstrates that the practice adopted by the Irish National Immigration Service is not in the spirit of the common travel area.

The second practice is carried out by one prominent airline in particular, which does not let Irish citizens board its aircraft in Ireland without producing a valid passport. This applies to its flights to mainland Europe, entering the Schengen area, and this is fine; however, it even requires passengers to produce a passport on flights to the United Kingdom from Ireland, and, in the past when the airline operated flights within Ireland, on such flights, which is very wrong.

Current legislation does not prohibit any carrier involved in transporting people within the common travel area from seeking appropriate confirmation of their identity. I appreciate that these are the terms and conditions that travellers sign up to when they purchase tickets. However, the requirement for Irish citizens to produce a passport is an unnecessary hindrance to what the common travel area is supposed to be about. Other airlines flying between Ireland and the United Kingdom do not mandate all passengers to carry passports and they accept any other relevant identification matching the name on the passenger's ticket. These airlines operate in the spirit of the common travel area. If some airlines can do this, why is it not possible for all airlines to be mandated to do so for a better, more streamlined common travel area?

The immigration practice at Irish airports, and the operational methods used by a particular airline flying within Ireland and the United Kingdom, collectively undermine the common travel area. The crux of the matter here is that currently no real common travel area exists. My Bill aims to bring about a more inclusive, coherent and sensible common travel area. This would make travel between Ireland and the United Kingdom, within the common travel area, much easier for everyone. It would also prohibit a travel carrier from obliging persons entitled to avail of the common travel area to use passports. This would bring all airlines into line with established practices among the vast majority of airlines operating within the common travel area. It would allow means of identification other than a passport to be produced, such as a valid driver's licence, a student card, a Garda age card or a work identification card including a photograph. It would put an end to the current prohibitive and confusing practices.

There is currently no legislation specifically aimed at governing the travel documents required for travel within the common travel area. The common travel area operated for a long time under administrative arrangements between Ireland and the United Kingdom. It was the judiciary that legitimised it as a point of public policy in Kweder v.Minister for Justice in 1996. A significant judgment for the common travel area came from the High Court in 2011 in Pachero v. Minister for Justice and Equality. The presiding judge, Mr. Justice Gerard Hogan, called the common travel area "a misnomer," stating that "the common travel area has long ceased to be a genuine passport free travel area," and that ''[c]onfusion abounds regarding the limits of the common travel area." The court went as far as to say that further legal aspects of the common travel area will arise again beyond the immediate set of individual circumstances in that case.

While substantial legal overhaul of the common travel area may be needed, this Bill attempts to address some aspects of it. With the introduction of the new passport cards this year, travel between Ireland and the United Kingdom will theoretically be easier for those who possess the card. The introduction of this card had not been announced publicly when I introduced this Bill last year. However, it does not take away from the fact that problems still exist for real passport-free travel within the common travel area. Passports have a significant cost for the individual. They cost €95 over the counter, and a further €35 for a passport card, giving a minimum total of €130. That is a significant amount of money, especially for pensioners. It is becoming prohibitive. Previously, it was free for pensioners to get passports, but that was taken away a number of years ago as part of other cutbacks. Perhaps that is something that could be reconsidered in the future. For British citizens, no such passport card exists, and they do not have national ID cards, like other EU member states. Therefore, British citizens could be still mandated to carry their passports when visiting Ireland, within the common travel area, on certain airlines. Instead, we should be allowing passengers travelling within the common travel area to use the recommended acceptable forms of photo identification, instead of encouraging people to carry a passport.

This Bill would allow carriers to continue to operate identification checks for passengers for travel in the common travel area. However, they would no longer be allowed to compel qualifying persons transiting within the common travel area to present or carry a passport. I trust the Minister of State, Deputy English, along with his officials, will take what I have proposed into consideration. Perhaps we can look at other ways of ensuring the integrity of the common travel area by incorporating some of the ideas I and other speakers mention today into amendments in proposed future legislation. We must do all we can to preserve, protect, and enhance the common travel area. The common travel area is supposed to be passportless and we should do everything to make it this way. It is in Ireland's, and the United Kingdom's, interest that the common travel area be as meaningful and as bureaucracy-free as it can be.


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