Damien English (Meath West, Fine Gael) | Oireachtas source

I am delighted to be here on a Friday and am pleased to have the opportunity, on behalf of the Minister for Justice and Equality, Deputy Frances Fitzgerald, to address the House and to respond on behalf of the Government to the Freedom of Movement (Common Travel Area) (Travel Documentation) Bill 2014, which has been introduced by Deputy Terence Flanagan. I thank the Deputy for outlining the objectives of his short Bill and apologise that the Minister herself could not be here to take it, as she would have preferred. In a nutshell, the Deputy is seeking to provide for a situation in which carriers will not be allowed to request the passport of a passenger for identity purposes where the passenger is permitted to travel within the common travel area.

There is no statutory requirement on a person who is from Ireland or the UK, or who is subject to EU freedom of movement regulations, availing of the common travel area, CTA, to be in possession of a passport when entering the State. However, for a variety of practical reasons, most such nationals travelling by air or sea will have in their possession a passport, travel document or other form of identity that establishes their nationality.

In view of the changed nature of travel security, especially the heightened awareness of the security risks associated with airline travel since 9-11, air carriers require travellers on all routes, including within the CTA, to produce a satisfactory identification document for travel, usually a driving licence or passport, and a particular carrier will permit travel only on presentation of a passport or national identification card. The relevant provisions in this regard are set out in section 11 of the Immigration Act 2004 as amended by section 34(a) of the Civil Law (Miscellaneous Provisions) Act 2011.

The CTA has existed since 1922, except for a brief period during the Second World War years, reflecting the ties of history and kinship between our two countries, and also labour market and business needs. The protection of the CTA arrangement has long been regarded as a legitimate and fundamental public policy priority for both the Irish and UK Governments. Co-operation on CTA matters between the two jurisdictions is excellent and very strong.

Under this Government, this co-operation was given added impetus with the signing in 2011 between the then Minister for Justice and Equality, Deputy Shatter, and the then UK Minister for Immigration of a joint statement on common travel area co-operation, which included a joint work programme in the area of data sharing, visas and electronic borders management systems. The joint statement identified the following aims for CTA co-operation: to facilitate the movement of legitimate travellers within the CTA; to identify and develop further measures to enhance economic development between the two jurisdictions; to prevent individuals intent on abusing the arrangement from travelling to the CTA; to support and facilitate the return of individuals to their country of origin where they do reach or enter the CTA unlawfully; and to develop ways of challenging the credibility of visa and asylum applications where appropriate and develop mechanisms of re-documentation.

A fundamental feature of the CTA arrangement is the freedom of movement for persons travelling between Ireland and Northern Ireland, which continues to be of immense importance to the economic, social and cultural well-being of both jurisdictions. It is essential that the benefits derived from this arrangement are not undermined by illegal movement, criminal activity or threats to security in either jurisdiction.

A central feature of the operation of the CTA has been that each state enforces the others conditions of landing for non-nationals. The current manifestation of this requirement can be found in section 4(3)(h) of the Immigration Act 2004, which empowers an Irish immigration office to refuse entry to the State to a non-national where the officer is satisfied that the non-national intends to travel, whether immediately or not, to Great Britain or Northern Ireland, and would not qualify for admission to Great Britain or Northern Ireland if he or she arrived there from a place other than the State. To that end it is, and has always been, the case that there is close co-operation between the Irish and British immigration authorities on a strategic and operational basis.

The programme of work under the joint statement has given rise to the highly successful Irish short stay visa waiver programme, which was announced by the Government as part of its jobs initiative with a view to promoting tourism from emerging markets. It commenced on 1 July 2011. Under the programme, certain visas issued by the authorities of the United Kingdom are recognised for the purposes of travel to Ireland. However, it has some limitations, such as the fact that it allows for travel only in one direction.

Accordingly, in June 2014, the Minister formally announced the introduction of the British-Irish visa scheme, BIVS, between Ireland and the United Kingdom, which commenced in the autumn of that year. This was a landmark development in CTA co-operation. At the time, she stated that it marked an historic development in the relationship between Ireland and the UK and in the operation of the CTA. The BIVS allows for travel to and around the CTA on a single visa. The scheme applies to visitors from China and India, and the plan is to roll it out to other visa nationals in due course.

Under the scheme, visitors are able to travel freely within the CTA using either an Irish or UK visa. This means tourists, business visitors, etc., are able, for the first time, to visit both Ireland and the UK, including Northern Ireland, on a single visa. This co-operation not only results in greater facilitation of legitimate travellers than heretofore, but it has made a positive contribution to tourism and jobs, as the tourism industry has acknowledged.

Turning to the Bill before us, any proposal which has implications for the CTA requires close and careful scrutiny. While I understand the intention and motivation behind the Bill, it could have potentially serious consequences not intended by the Deputy which, in certain instances, could undermine the effectiveness of immigration control and put at risk the protection of the CTA. Section 1 provides for an amendment to section 11 of the Immigration Act 2004 by the insertion of a new provision for the current subsection (4). This new provision repeals the current subsection (4) and provides for the insertion of a new subsection (4A) which is the substantial provision of the Bill.

Section 11(1) of the 2004 Act, as amended, provides that every person, other than minors, landing in the State is required to have a valid passport. Section 11(2) requires every person landing or embarking from the State to furnish, inter alia, their passport. Section 11(3) makes it an offence to breach section 11. Section 11(4) provides that section 11 does not apply to persons, other than non-nationals, coming from, or embarking for, a place in the State, Great Britain or Northern Ireland.

The Department of Justice and Equality has consulted with the Office of the Attorney General on the Bill and a number of legal difficulties have been identified with the new section 4A which give cause for concern. Section 11(4) of the Immigration Act 2004 exempts persons, other than non-nationals, who are travelling within the CTA from the passport control measures provided for under section 11 of the 2004 Act. The provision in the new section 11(4A) purports to provide a general exemption from passport control cutting across all legislation, and not just section 4 of the 2004 Act.

In fulfilling their duties at the frontiers of the State, members of the Garda Síochána and INIS immigration officers utilise a range of legislative provisions under the Immigration Acts and, in the case of the Garda Síochána, other legislative powers such as the Air Navigation and Transport Acts. For example, under section 33 of the Air Navigation and Transport Act 1988, a member of the Garda Síochána as an authorised officer for the purposes of the Act, may, in the interest of the proper operation or the security or safety of an aerodrome, or the security or safety of persons, aircraft or other property thereon, require any person on an aerodrome to give his or her name and address and to produce other evidence of his or her identity; state the purpose of his or her being on the aerodrome; and account for any baggage or other property which may be in his or her possession. In circumstances where a garda has reason to believe that the person has a passport which would satisfy the requirements, it would be unreasonably restrictive that he or she cannot demand that it be produced in such circumstances. The situation becomes more invidious in cases involving criminality, including child abduction and human trafficking.

Whereas section 11(4) exempts persons, other than non-nationals, who are travelling within the CTA from passport control under section 11 of the 2004 Act, the new section 11(4A) would purport to provide a general exemption from passport control in respect of any "person who is entitled to avail of transit within the CTA without the requirement to carry a passport" which category is not restricted to persons excluding non-nationals and regardless of whether the person so entitled is travelling within the CTA. At the very least, the provision is ambiguous, and, conceivably, its implementation could cause chaos at our borders with passengers claiming a general exemption from passport controls. This scenario could have the further, albeit unintended, outcomes regarding the matter I mentioned earlier, namely, that a key feature of CTA co-operation is that each State enforces the others conditions of landing for non-nationals. The relevant legislative provision is section 4(3)(h) of the 2004 Act. The concern is that new section 11 (4A) could compromise the effect of section 4(3)(h) of the 2004 Act in that the latter provision operates on the basis that immigration officers have the power, inter alia, to confirm that a non-national has a valid passport.

Incongruously, the amendment could result in immigration officers being faced with non-nationals who might assert an entitlement to travel without a passport yet in respect of whom the immigration officer may have a concern that section 4(3)(h) applies. It is a key power in the protection of the CTA external border, and, were it to be compromised in any way, it would have serious consequences for the operation of the CTA.

The proposed section 11(4A) is predicated on the assumption that the "Common Travel Area" is a legislative term of art. It is not. Notwithstanding that it is referenced in the Treaty on the Functioning of the European Union, the CTA is an agreement between Ireland and the UK that has manifested in law, rather than itself being a matter of any legal treaty between the two states.

Accordingly, if the proposed provision is to be effective, the CTA will have to be defined in national law. Ultimately, and this applies to my earlier comments on the proposed section 11(4A) of the 2004 Act, it is not clear who would be "entitled to avail of transit within the Common Travel Area without the requirement to carry a passport" under the proposed section 11(4A). Such uncertainty would make it all but impossible to implement this provision. The explanatory memorandum makes it clear that this Bill is seeking to address conditions in respect of identity documents imposed by carriers which the Deputy considers should not be imposed by carriers. It is the view of the Office of the Attorney General that the proposed section 11(4A) would have no effect on carriers but would prohibit the Garda Síochána and other State agencies from exercising certain powers. Therefore, there is dissonance between the intent of the Bill and its effect, with its effect being potentially to undermine the capacity of immigration officers to protect the integrity of the CTA.

The Minister accepts that the matters I have set out with regard to the Bill were not the Deputy's intended outcome when he introduced this legislation. However, she hopes he will accept that the proposal is seriously flawed and is not something she or the Government could support. The Minister would reiterate the point that any legislation that has an impact on the CTA arrangement requires close and careful consideration. Her current legislative priority in the asylum and immigration area is the enactment of the international protection Bill. She hopes that Deputies will co-operate in the early passage of that Bill through the Dáil. The Minister for Justice and Equality proposes to introduce further legislation in the immigration area subsequent to the international protection Bill. Any issues concerning the CTA could be examined in that context at that stage. Perhaps the Deputy will be able to contribute to the debate on that legislation when it takes place.

See this speech in context