Professor Colin Murray, University of Newcastle, and Professor Steve Peers, Royal Holloway University of London

Photo credit: Zairon, via [Wikimedia Commons](Photo credit: Zairon, via Wikimedia Commons )

Introduction

Recent disagreements between the UK and Ireland concerning the ramifications of the UK’s Rwanda asylum policy highlight the complex interplay between EU law and Common Travel Area (CTA) agreements that now govern immigration policies between the two nations. This analysis examines these interactions and the Irish Government’s legislative proposals following the Irish High Court’s decision in A v Minister for Justice.

The Realities of the CTA post-Brexit

The CTA has demonstrated remarkable resilience as a cornerstone of UK-Ireland relations for over a century. Following a tumultuous war of independence, both countries recognized the shared advantages of easy movement across their newly established borders. Even during the peak of the Brexit referendum, proponents of leaving the EU consistently downplayed concerns regarding the border, emphasizing the CTA’s continuation post-Brexit. While not solely responsible for maintaining an open border, the CTA was widely viewed as a crucial element in UK-Ireland relations. However, this perspective underestimated the challenges of implementing such arrangements post-Brexit.

The CTA’s enduring success stems from its two-tiered structure. Unrestricted movement within the CTA is contingent upon each member enforcing comparable external entry regulations. For many years, both nations harmonized their immigration policies, sharing a list of excluded individuals. After joining the EEC, various EU laws augmented these arrangements, though both the UK and Ireland retained opt-out clauses, enabling them to maintain certain immigration policy distinctions and affording each other’s citizens greater legal entitlements compared to other EU citizens (see here).

Post-Brexit, concerns arose regarding the UK’s commitment to the CTA. The common external arrangement would cease, as EU citizens could freely enter Ireland, while facing new restrictions in the UK. This presented a loophole: EU citizens could potentially use the CTA to circumvent UK immigration policy. UK officials, however, remained optimistic about managing this through non-border immigration enforcement (e.g., compelling banks and landlords to verify an individual’s status). Subsequently, a new CTA agreement was signed with Ireland in 2019.

A recent point of contention revolves around the potential displacement effect of the UK’s stricter immigration policies, particularly the rollback of EU-mandated refugee safeguards. This has prompted speculation about a surge in asylum applications in Ireland. Irish Justice Minister, Helen McEntee, attributed the sharp rise in applications (80% of which were allegedly from individuals crossing the Northern Ireland border) to the UK’s Rwanda policy. However, this figure lacks publicly available supporting evidence, a fact highlighted by some coalition government ministers, possibly more cognizant of the implications of such pronouncements for the CTA.

Organizations such as the Irish Refugee Council have clarified that a rise in in-country applications doesn’t necessarily equate to individuals crossing the border. Circumstances in an asylum seeker’s home country could also be a motivating factor. Nevertheless, the notion that the UK’s policies have directly impacted Ireland, demanding a response, has become a central concern for Irish ministers.

The position in Ireland

EU asylum law framework

Ireland grapples with the issue of returning asylum seekers to the UK, particularly with the UK’s recent legislation restricting asylum routes. As a participant in certain aspects of EU asylum law, Ireland opted into the initial asylum procedures Directive (2005) but not the second phase asylum procedures Directive (2013). These Directives offer Member States differing rules on “safe third countries” – nations where asylum seekers could potentially seek asylum instead of their origin country or current location.

Notably, the Directives’ “safe third country” rules pertain to non-EU nations. If an argument suggests an asylum seeker should have applied within an EU Member State or a Schengen-associated nation, the “Dublin rules” apply. These rules meticulously determine the responsible Member State for an application, the procedures for transferring asylum-seekers according to these responsibilities, and the asylum seekers’ right to challenge such transfers. Ireland, having opted into the latest iteration of these rules (the 2013 Dublin Regulation or “Dublin III”), can, instead of transferring an asylum seeker to a responsible Member State, opt to send them to a non-EU nation under the 2013 Directive’s “safe third country” rules. One way for Ireland to navigate the difficulties of returning asylum seekers to the UK could be to revert to the Dublin rules, attempting to send more back to other Member States. However, this approach has limitations, as evidence to apply these rules may be insufficient, or the responsibility window for the Member State of illegal entry may have lapsed.

Ireland plans to adopt the 2024 versions of the Dublin Regulation and procedures law – to be formalized as a Regulation – after their formal adoption, anticipated for May 14 (for details on the new Regulations, see here and here). These regulations will bring further changes to the “safe third country” rules. However, these will not be immediately effective, as the new Regulations come into force in mid-2026. Therefore, the current legal framework is the focal point.

The recent Irish High Court judgment revealed that while Ireland has had “safe third country” rules previously, it reintroduced this concept in 2020. A comprehensive Brexit law amended the International Protection Act 2015 to reintegrate the designation of “safe third countries.” This legal shift seemingly targeted the UK, as the Dublin rules ceased to apply to the UK following the Brexit transition period’s conclusion in late 2020. Subsequently, the Irish government utilized these new powers to designate the UK as a “safe third country.”

EU ‘safe third country’ rules

The 2005 “safe third country” rules, binding for Ireland, stipulate that a Member State can apply the concept “only” if “the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:”

a) assurance against threats to life and liberty based on race, religion, nationality, social group membership, or political opinion; b) adherence to the principle of non-refoulement as per the [Geneva [Refugee] Convention](https://www.unhcr.org/uk/about-unhcr/who-we-are/1951-refugee-convention); c) respect for the prohibition against removal that violates the right to freedom from torture and cruel, inhuman, or degrading treatment, as outlined in international law; and d) provision of the opportunity to seek refugee status and, if recognized as a refugee, receive protection as per the Geneva Convention.

The Directive further clarifies that “[t]he application of the safe third country concept shall be subject to rules laid down in national legislation, including:”

a) regulations necessitating a connection between the asylum seeker and the third country, justifying the expectation for the individual to seek refuge in that nation; b) methodologies employed by competent authorities to ascertain the applicability of the “safe third country” concept to a specific country or applicant, incorporating case-by-case safety assessments and/or national designations of generally safe countries; c) provisions, aligned with international law, enabling individual examination of a third country’s safety for a specific applicant, permitting the applicant to contest the “safe third country” concept’s application if they believe they would face torture, cruel, inhuman, or degrading treatment or punishment.

Subsequently, Member States are obligated to:

a) inform the applicant accordingly; and b) issue a document in the third country’s language, informing the authorities that a substantive examination of the application did not occur.

Finally, should the non-EU country refuse entry to the asylum seeker, Member States must “ensure that access to a procedure is given in accordance with the basic principles and guarantees described” within the Directive.

The 2013 Directive mirrors these points, with the addition of “no risk of serious harm as defined in Directive 2011/95/EU [the EU Directive on definition of refugee and subsidiary protection status” to the list of principles applicable in the non-EU nation. It also mandates allowing the applicant to argue that the non-EU country “is not safe in his or her particular circumstances” and “to challenge the existence of a connection between him or her and the third country” according to the Directive.

Designating a nation as a “safe third country” renders an application inadmissible on its merits, assuming it will be assessed in the designated country. This assumes the asylum-seeker will apply for asylum there post-expulsion. Consequently, the case is expedited, and remaining within the country during an appeal against the decision may be more challenging.

The Court of Justice has provided several rulings on interpreting the 2013 Directive’s “safe third country” rules: Cases C-564/18, C-821/19, and C-924/19 and C-925/19 PPU determined, among other things, that the principle doesn’t apply to transit countries and that Hungary hadn’t fully incorporated the Directive’s required guarantees related to the “safe third country” concept into its national law.

The High Court judgment

The Irish High Court ruled that the Irish government’s designation of the UK as a “safe third country” was unlawful. However, it didn’t pronounce on the UK’s actual safety. This seeming contradiction arises from administrative law’s focus on the public administration’s adherence to correct procedures rather than the decision’s merit. This is partly because courts are often more inclined to review procedural adherence in government decisions than the decision’s merit, which is perceived as falling under political discretion. Therefore, a government could potentially revisit a court-overturned measure, deemed unlawful on procedural grounds, and re-adopt the same decision lawfully by following the correct procedures. It’s important to clarify that a minister making an unlawful decision doesn’t automatically constitute a criminal offense.

The Irish government’s “safe third country” designation for the UK was deemed unlawful primarily because the 2020 Irish law granting such powers didn’t fully align with EU law. It lacked the guarantees stipulated in the 2013 Directive, which is cross-referenced in the Dublin III Regulation. (It’s noteworthy that the CJEU reached a similar conclusion about Hungary’s incomplete application of these guarantees; however, the High Court judgment makes no mention of this case law). Additionally, a consistent review of the UK’s situation was absent.

Despite a common misinterpretation, the High Court judgment didn’t rule the UK unsafe due to its Rwanda policy. The judgment explicitly refrains from making any conclusions about the Rwanda policy.

The Irish government’s response

The Irish government has announced its intention to introduce legislation redesignating the UK as a “safe third country.” Depending on the specifics, this might address the High Court’s reasons for finding the previous designation unlawful. However, this is not the end of the matter. The High Court did not address the UK’s safety, particularly given the developments surrounding the Rwanda policy. This new legislation could face challenges on these grounds. Further legal challenges might even prompt an Irish court to refer questions on interpreting the “safe third country” rule to the CJEU. (It’s crucial to understand that the Irish government, unlike the UK recently, is not legislating to overturn a court judgment on another country’s “safety” as the Irish High Court did not rule on the UK’s “safety”.)

Moreover, other elements of EU law, not extensively addressed in the High Court ruling, come into play. As previously mentioned, a “connection” must exist between the asylum seeker and the non-EU country (a point notably absent in the UK’s Rwanda policy), with case law stating that mere transit does not establish a connection. While the two asylum seekers in the previous High Court judgment were deemed to have spent enough time in the UK to establish a “connection,” this might not hold for all asylum seekers traveling through the UK to Ireland.

Another point, also disregarded in the UK’s Rwanda policy, is the requirement for the non-EU country to readmit the asylum seeker. The EU rules aim to prevent the very limbo experienced by numerous asylum seekers in the UK, whose cases are deemed inadmissible without any country willing or obligated to substantively assess their applications. Although the High Court judgment mentions the UK’s previous willingness to readmit asylum seekers (see para 44), the UK has since declared its unwillingness to do so, potentially because it views the CTA agreements as non-binding. This creates a further complication on the EU side (on the readmission/“safe third country” link in EU law, see the pending Case C-134/23).

Immigration Policy for the whole of the UK?

Beyond the Irish aspect, there’s a Northern Irish dimension. Despite ongoing debates, the UK’s policy under the Illegal Migration Act 2023, extended by the Rwanda Act 2024, raises questions about its application in Northern Ireland. As part of the EU-UK Withdrawal Agreement, the UK pledged to uphold rights and equality protections in Northern Ireland law derived from EU law, as per the Windsor Framework (Article 2). This commitment aimed to prevent claims that Brexit undermined the rights enshrined in the Belfast/Good Friday Agreement 1998, some of which relied on EU law in practice. By addressing this potentially contentious issue, the agreement garnered support and facilitated its implementation.

However, these arrangements mean that Northern Ireland now operates with a distinct (and potentially higher) threshold for rights protections compared to the rest of the UK. It can be argued that many EU laws pertaining to asylum seekers and offering them protection (including the Trafficking Directive) remain fully in effect in Northern Ireland post-Brexit. As highlighted in previous analyses (see here and here), courts can disapply statutes that contradict the Windsor Framework. Consequently, doubts arise about the uniform applicability of the UK government’s flagship asylum seeker policy across all parts of the UK. This issue has already been raised in the Northern Ireland High Court regarding the Illegal Migration Act (judgment pending). Even with the Rwanda Act potentially limiting legal challenges, asylum seekers within Northern Ireland are likely to leverage the Windsor Framework to challenge deportations under these measures for the foreseeable future.

Conclusions

Within this intricate web of post-Brexit arrangements, the UK and Ireland appear to be misinterpreting each other’s positions. The UK government perceives Brexit as absolving it from the Dublin III regulations and their provisions for returning asylum seekers to other EU countries. It cites post-Brexit limitations on returning individuals to France as evidence. Conversely, the Irish government views the underlying CTA relationship as resuming its full effect (though subject to its EU obligations) once the overarching EU law ceased to apply post-Brexit, even though the Dublin III process might have been the mechanism used while both nations were EU members.

In reality, the CTA’s reliance on shared understanding and reciprocity leaves much room for misunderstanding. Ideally, given their close collaborative relationship within the CTA framework, the two countries would have publicly established appropriate arrangements before Brexit (however, UK-Ireland relations haven’t reached that point—see Professor Bernard Ryan here).

With elections approaching in both Ireland and the UK, many politicians see political capital in appearing tough on immigration. However, with refugees and asylum seekers, it’s difficult to overlook that both countries process relatively few asylum claims compared to the rest of Europe. Yet, both remain at odds over policies that threaten the CTA and attempt to disregard the fact that conflict and persecution inevitably lead to more refugees. Ultimately, it seems both countries would prefer this to be someone else’s problem.