The Common Travel Area: The Limits of Codification

Chapter 6 by Imelda Maher examines Article 3 of the Protocol, entitled ‘Common Travel Area’ (CTA). Maher explains how the CTA is a long-standing arrangement which has allowed Irish and UK citizens to move freely between the two islands, and she underlines how Article 3 of the Protocol essentially enables the two countries to continue this practice, provided it respects the rights of natural persons conferred by EU law. At the same time, Maher shows how the CTA is a largely uncodified arrangement, which relies on multiple sources of law, including international agreements, bits of immigration legislation in the UK, and several memoranda of understanding (MoUs) on travel, access to health, and education. In fact, Maher stresses how the first legally binding recognition of the CTA could arguably be found in Protocol 20 to the EU Treaties, which exempted Ireland and the UK from joining the Schengen free movement zone, because of their CTA. While this provision of primary EU law will have to be removed at the next round of treaty revisions, according to Maher the CTA has today found a legal protection in the Protocol on Ireland/Northern Ireland. Yet, the CTA remains mostly a political commitment between the two governments, which suggests that its future remains somewhat uncertain.