Ireland and Brexit


Of the challenges facing the UK as a result of the Brexit vote, few are as complex as the Irish border issue. Even we who live and breathe Brexit issues find it almost impossible to resolve. 

The ‘Ireland’ question is complicated because of two major issues – the border between Northern Ireland and the Republic of Ireland is huge; and even if it weren’t, voices on both sides have expressed a desire not to see any physical border infrastructure such as checkpoints or inspection posts.  


Secretary of State for Northern Ireland James Brokenshire recently wrote an article for Brexit Central which we are sad to say, sounds like he literally has no solutions to the issues at all: 

“We joined the Common Market in 1973 as one United Kingdom and we will leave the European Union in 2019 as one United Kingdom. And as the Prime Minister has made clear, leaving the EU will mean that we leave both the single market and the customs union.

But as we have made equally clear, we are determined to find bespoke solutions to Northern Ireland’s unique circumstances, not least as the only part of the UK to share a land border with an EU member state. We need to deliver an outcome that works for all parts of the United Kingdom. All of this requires creative and imaginative thinking by the UK and Irish Governments, along with negotiating partners in the EU.”

The UK Government’s ‘Northern Ireland and Ireland: position paper’ is similarly devoid of ideas. 

The Legatum Institute also wrote a document on these issues, with few concrete proposals but lots of smooth language:

“The most effective way to reduce border disruption for trade in goods between NI and the ROI is by the UK and EU agreeing a smooth customs arrangement, and using the best practice legal and technology tools. This is an opportunity to deploy the latest technology available in a limited area which could become a prototype for other regions—turning a challenge into an opportunity.

The UK should consider awarding a prize for technological solutions to incentivise the development of innovative solutions from the private sector, and universities.

The Governments of the UK and ROI, as well as the EU, should focus on the appropriate mechanisms to minimise the disruption to relatively low-volume, high frequency trading across the border.”

EFTA 4 UK Analysis:

In order to find a solution to this, we need to examine why borders between countries exist at all – to analyse the basic components of the issue at hand. 

Who is where?

First off, borders exist so that authorities know who is in their territories. There may be someone in country A who the authorities in country B don’t want to come into their country – or they might not want their own fugitives fleeing to other countries to escape domestic justice. 

Usually travelers between countries must present valid identification documents and Passports at ports, border crossings and Airports so governments know which citizens of which countries have entered or left their territories.

On the island of Ireland not only is the land border huge and porous, the question of citizenship is very complex –  anyone born in the Irish Republic, Northern Ireland or with an Irish parent or grandparent, is eligible for an Irish passport. 

Add to this the facts that until 2019 citizens in the ‘North’ and ‘South’ will both also be fellow citizens of not only the European Union but also the EEA (European Economic Area) and also the fact that there has historically been a Common Travel Area (CTA) encompassing both the Irish Republic and the UK and things get even more complex.  

According to a House of Commons Library report:

“The Common Travel Area is a special travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. It dates back to the establishment of the Irish Free State in 1922.
Irish nationals’ special status in UK law:
Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens.
In short, the Republic of Ireland is not considered to be a ‘foreign country’ for the purpose of UK laws, and Irish citizens are not considered to be ‘aliens’. Furthermore, Irish citizens are treated as if they have permanent immigration permission to remain in the UK from the date they take up ‘ordinary residence’ here.
This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. It is thought that, as a result, Irish nationals have more rights than other EU/ EEA nationals resident in the UK.”



Goods – safety and tariffs

Another reason for borders is public safety. Lets say that country A has lower safety standards than country B. Country B’s government doesn’t want people from Country A to sell their citizens medicines, devices, food and drink etc that they might view as unsafe.

Hence, products coming in from other countries are tested and sampled to ensure they meet the importing county’s standards. To stop unscrupulous people trying to get around these measures by illegally smuggling prohibited items across the border, some countries have manned checkpoints, walls, fences and cameras – this is known as a hard border.

Hard borders are also used to stop people travelling undetected or illegally between countries. 

Since both NI and ROI are in both the EU and EEA their product standards are theoretically the same, since the EEA countries agree a common set of ‘Single Market’ rules – a Microwave made and sold in France should be just as safe as one made and sold in Norway or Poland . 


Upon Brexit, the UK (including Northern Ireland) will be on the outside of the EU’s Customs Union and its goods travelling from ‘North’ to ‘South’ Ireland will be subject to its common external tariff.

Even if after Brexit there was a tariff-free arrangement (FTA) signed between the EU and UK, that on its own wouldn’t mean that a Hard Border was unnecessary. This is because countries trade with ‘third countries’.

Let us say for example that the UK signed a trade deal with the USA in the future but the EU didn’t, and as a result of this importers could get automobiles from the USA cheaply.

If you were a fan of American cars who lived in the ROI you would need to pay import duties on an American automobiles – or alternatively you could buy one via a company in NI and then get them to drive it over the border. This makes a mockery of having tariffs in the first place, since you would be circumventing the law. 

This is just a small portion of the potential issues involved – obviously there isn’t room for here to discuss issues such as quotas, Rules of Origin (RoO) and cumulation.

So – these are the reasons why a hard border between NI and ROI could potentially be necessary:

  1. So both authorities know who is in which part of the Island of Ireland.
  2. So goods that don’t meet health and safety standards of one authority aren’t sold in the other.
  3. So that duties and tariff rules aren’t circumvented illegally. 

If the UK (including Northern Ireland) was to stay in the EEA, it would reduce the need for a Hard Border, since product standards would be effectively the same across the whole Island of Ireland. 

As the EEA Agreement prohibits tariffs, that would also reduce the need for a Hard Border (since there would be few duties for officials to collect, and little incentive for smugglers).

“EEA Agreement

Article 10: Customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Contracting Parties.”

The EU principle of freedom of movement also has a mirror in the EEA agreement,  which coupled with the pre-existing Common Travel Area (which predates the EU) would again reduce the need for a Hard border, as people would be able to cross the border without being subject to passport controls.

If the UK didn’t diverge from the EU on Vetinary and Sanitary and Phytosanitary Measures (SPS) and signed an agricultural agreement with the EU (based on the precedents of the EFTA countries) these factors would  also reduce the need for a Hard Border. 

That leaves us with two final issues – what about third country goods and what about non-EU citizens who travel to one part of the Island of Ireland and then move to another part without telling people?

The second question is probably easiest to answer – according to the House of Commons Library report we mentioned earlier, there is already close co-operation between the Garda National Immigration Bureau and the Home Office, and:

“For some time, the UK and Irish governments have been discussing the potential to introduce mutual visa recognition, and to eventually introduce some joint visa arrangements for non-EEA nationals wishing to travel between CTA states.”

The final question then is what about controlling third country goods? Even Norway and Sweden, (which are both in the European Economic Area EEA) have border checkpoints with ANPR cameras, staffed with police and customs officials. 

While not the hardest border in the world, it still wouldn’t satisfy those who want no border equipment or visible signs of division. So how can we resolve this?

As the Irish Taoiseach has urged, Northern Ireland should stay in the Single Market. We believe the whole of the UK should stay in the EEA. 

We also believe that Ireland (North and South) should be given special status in EU and UK law to resolve the remaining issues by forming a unified North and South Customs collection and monitoring unit.

They could do this with the assistance and expertise of the World Customs organisation (WCO) which the EU has signed up to, and its creation could be justified by citing Article 8 of the Lisbon Treaty. 

This might seem bespoke but such a deal would not be unprecedented.

Several ‘one offs’ of various types exist in Europe – for example Vatican City uses the Euro as its official currency although the Vatican is not a member of the Eurozone or the European Union.

Jersey has a special relationship with the European Union. The Island is treated as “part of the European Community for the purposes of free trade in goods”, but otherwise is not a part of the EU.

A similar relationship exists for Guernsey. Guernsey is not a member of the EU and not part of the UK.

Under its Protocol 3 relationship with the EU Guernsey is part of the customs territory which allows for the free movement of goods. 

If the UK and Ireland maintain the CTA, the UK remains a EEA member and both sides commit to making the Good Friday Agreement (GFA) work, then and only then, can Brexit work for all the peoples of the island of Ireland. If you have better ideas, we’d like to hear them. 

One thought on “Ireland and Brexit”

  1. But this breaks both of UK’s red lines.
    Stopping FoM – even if not policed on the Irish Border because of CTA – is not respected.

    ECJ jurisdiction is left out of your discussion. While it would be possible to have a beefed-up EFTA Court with extra UK judge or custom EU/UK arbitration over non-tariff disputes, you need to say which and how.

    Otherwise, this article is helpful in laying out the issues but then says ‘of course this doesn’t matter if we are in the EEA’, which is avoiding the hard question as much as Legatum etc.

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