THIS WEEK STARTED with the postponement of a planned meeting between Ireland’s Justice Minister, Helen McEntee, and the UK’s Home Secretary, James Cleverly, ahead of the latest British-Irish Intergovernmental Conference.
Top of the agenda had been a discussion on the Common Travel Area (CTA), amid rising tensions between the UK and Ireland on the issue of asylum seekers entering Ireland via Northern Ireland.
That the meeting didn’t proceed was of significance given its timing, with this brewing row doing little to aid UK-Irish relations, already cooled in the wake of Brexit and the UK’s Legacy Act.
McEntee claims that over 80% of new asylum seekers in Ireland have travelled from the UK through Northern Ireland. While this number has not been verified, it does give a broader indication that there has been a notable change in the patterns being observed, and that the Irish Government is worried about it. The UK has ardently taken the position that it will not countenance accepting any asylum seekers returned from Ireland, meaning, in effect, that the two are in a stand-off on the issue.
There are a number of elements to this that make it difficult to resolve. Legally, the situation reflects a quagmire of overlapping considerations, namely the CTA, Northern Ireland’s specific post-Brexit arrangements, EU law, UK domestic law and international law. This immediately makes it complex and necessitates close cooperation between the UK and Ireland to reach a mutually agreeable outcome that is also compliant with these legal requirements.
Politically, the subject itself is deeply contentious in both places, making it difficult for either side to be seen to cede ground. The rise of the far right and anti-migrant views in Ireland have been making regular headlines. Meanwhile, the current UK Government has made immigration a cornerstone of its agenda, and post-Brexit – where the UK sits outside EU legal obligations with regard to asylum seekers – it has pursued drastic policies aimed at deterring migrants from seeking refuge in the UK. A particular focus of this has been individuals arriving from France to the UK’s southern shores.
Divisive legislation was passed, formalising what has been known as the Rwanda policy of the current UK Government. The purpose of this is to allow for the transfer of some asylum seekers to Rwanda while applications are being processed, and for permanent residence there if successful. This is despite the UK Supreme Court finding that Rwanda could not be considered a safe place to send asylum seekers – a finding circumvented by the subsequent Safety of Rwanda (Asylum and Immigration) Act 2024, which effectively acts as the UK’s formal means of declaring that it considers Rwanda to be a safe country for this purpose.
The picture is complicated further by a recent Irish High Court case, which found that Ireland’s basis for designating the UK as a ‘safe third country’ for the purposes of returning asylum seekers was incompatible with EU law. This has contributed to disagreement as to whether or not, and to what extent if so, formal post-Brexit arrangements exist for the return of asylum seekers from Ireland to the UK.
Britain’s Prime Minister Sunak has argued that the UK is under no legal obligation to accept asylum seekers back from Ireland/the EU; Ireland’s Justice Minister has argued that this is contrary to arrangements already in place that require Irish legislation in order to become effective, addressing the issue raised by the High Court.
As Murray and Peers note, the often informal nature of the CTA, which also sits at the heart of this issue, is such that there is scope for misinterpretations to arise. This suggests that there is some veracity in the arguments on both sides, however, it doesn’t make reaching a solution any easier, particularly with wider political contexts hardening stances.
The specific circumstances of Northern Ireland add further to this already complex picture. In respect of asylum seekers, Northern Ireland potentially presents an anomaly to the application of the UK’s Rwanda legislation. Under the post-Brexit arrangements for Northern Ireland, human rights protections have a different, and stronger, basis than elsewhere in the UK due to Article 2 of the Protocol on Ireland/Northern Ireland, which contains a commitment to non-diminution of pre-Brexit rights.
A legal case is already in progress challenging the UK’s Illegal Migration Act 2023 on the basis of incompatibility with, in part, Article 2 of the Protocol, and until the outcome of this is known, much remains uncertain in terms of how this controversial legislation applies in Northern Ireland.
It potentially means that Northern Ireland could become something of a safe haven for asylum seekers fleeing the Rwanda policy in Great Britain and fearful of being returned to the UK should they enter Ireland.
What is clear though, and equally as absent from wider discourse on the current issue, is that Northern Ireland is woefully unprepared for any such situation. It is also unlikely that any support would be forthcoming from Westminster given the current Government’s political plans to create as many deterrents as possible to any future migrants seeking refuge in the UK.
The political rhetoric around the issue has only further aggravated the situation. Elections are imminent in the UK and Ireland, and incumbent administrations are eager to be seen as tough on this problem. The difficulty is that the tougher they try to prove themselves to be domestically, the more divisive the matter becomes diplomatically.
And, as it ever feels, Northern Ireland is akin to being caught in the middle between two arguing parents, unable to do much, if anything, to help alleviate the situation for the human beings at the centre of it all.
The multilevel legal complexities alone always meant that any formalisation of the Rwanda plan would have ripple effects far beyond the UK. Neither the UK nor Ireland are likely to back down, and the longer exchanges at this level continue, the more difficult it will be to reach agreement on how to proceed.
Dialogue and cooperation are the only way forward.
Dr Clare Rice is an academic and a political analyst from Northern Ireland.
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