Friday, April 28, 2006

Can Irish citizens be deported from the UK?

If you live in Ireland or the UK you're sure to have seen all the furore over foreign prisoners who were not deported at the end of their sentences. It's my understanding that foreigners are not automatically deported, but that - at least in part - the deportations happen on the recommendation of the judge at the person's trial. But are those orders necessarily legal in the case of Irish citizens? I don't think so.

The plurality of the prisoners came from either Jamaica or Nigeria (figures here) presumably largely involved in drug-running. But 50 of the prisoners were Irish. This is interesting. I haven't been able to google a case, but I know that, very often, when British people come before Irish courts, they are booted out of the country. And this obviously happens in the other direction too. But is it legal?

Well, I'm not sure. A Common Travel Area between Ireland and the UK, in place since the 1920s, ostensibly removes immigration control from between the two islands. In other words, free movement exists (in practice at least). As Lord Filkin said in the Lords (in reply to a question by Lord Kilkooney),
The objective of the common travel area is that all the territories should be treated as a single unit for the purpose of travel within the area. A person's arrival in the United Kingdom from within the common travel area is not, therefore, subject to control except under very specific circumstances as outlined in the Immigration Act 1971 and the Control of Entry through the Republic of Ireland Order 1972...
The specific circumstances include
persons who are subject to directions given by the Secretary of State for their exclusion from the United Kingdom on the ground that their exclusion is conducive to the public good.
I assume these are the grounds under which deportations take place. But I doubt they can be effective. After all, there is no formal procedure for passport control between the UK and Ireland (though the ROI has instituted some limited controls in recent years).

Moreover, I'm not so sure that those special circumstances can be upheld in law.

The status of Irish people in Britain is unclear. According to an article published by Bernard Ryan in 2001 in the Modern Law Review,1
Even after the treaty of Amsterdam [where Ireland and the UK gained a derogation from the Schengen Agreement], it remains the case that the content of [the Common Travel Area] 'arrangements' have not been publicised by the two states.
According to Ryan, the agreement, motivated by the status of Northern Ireland, the need for Irish labour and the sheer difficulty in enforcing a border, started off essentially with free movement on condition that the Irish remained under the British border control umbrella. With the exception of WW2, this freedom based on a 'shared' immigration policy continues.2

Moreover, as Ryan notes, under the 1949 Ireland act, "'the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom' and 'references in any Act of Parliament, other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, to foreigners, aliens, foreign countries...shall be construed accordingly.'" I don't know how this is supposed to sit with the idea that there are special conditions under which the Irish right of abode in the UK can be removed.

So we're left with a bizarre situation. First, removing Irish people from the UK is probably illegal. Second, it's unenforceable. Third, it's happening. How strange.

1. I have a copy of Ryan's article, so give me a shout if you want it, replacing [*at*] with '@'.

2. Which in part explains the Constitutional Amendment to the constitution, adopted in 2004, removing the automatic right to Irish citizenship from the children of non-national parents.

1 comment:

Anonymous said...

The criteria for pursuing deportation from the UK for foreign national prisoners is as follows:

Non - EU: Court recommendation or a 1 year sentence (or previous sentences amounting in total to 1 year)

Non - EU: Court recommendation or a 2 year sentence (or previous sentences amounting in total to 2 years)