Nationality and Borders Bill

Baroness Ritchie of Downpatrick Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th February 2022 Lords Chamber

Moved by

[Baroness Ritchie of Downpatrick]

175: Clause 71, page 74, line 16, at end insert—
“(c) the individual is travelling to Northern Ireland on a local journey from the Republic of Ireland.” Member’s explanatory statement
Under this amendment, persons who are neither British nor Irish would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an Electronic Travel Authorisation.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the amendment is in my name and those of the noble Baroness, Lady Suttie, and my noble friend Lord Coaker. Its purpose is to ensure that persons who are neither Irish nor British would nevertheless be able to make local journeys from the Republic of Ireland to Northern Ireland without the need for an electronic travel authorisation. Clause 71 amends the Immigration Act 1971 to introduce electronic travel authorisations. It provides for a pre-entry clearance system which requires anyone who does not need a visa, entry clearance or other specified immigration status to obtain authorisation before travelling to the UK. This includes journeys within the common travel area; indeed, the clause has been expressly formulated to ensure that CTA journeys are captured.

This system does not apply to British or Irish citizens or those who have already been granted leave to enter or remain in the UK. The system will impact mainly non-visa nationals, including EU nationals, who can presently enter the UK visa-free for set periods. Almost all such persons are presently automatically considered to have deemed leave to enter the UK when crossing into Northern Ireland on the land border. It is believed that new subsection (4) in Clause 71 has been drafted intentionally to ensure that persons who are travelling within the CTA and consequently would not need leave to enter the UK will still require an ETA.

In preparing for this amendment today, I spoke to both the Human Rights Commission and the Equality Commission based in Belfast, which have commitments under Article 2 of the Ireland/Northern Ireland protocol in all these matters. I spoke also to the Committee on the Administration of Justice, and my noble friend Lord Coaker and I spoke to representatives of the Irish Government based in the Irish embassy, who are deeply concerned about the impact of Clause 71 on tourism, not only in the Republic of Ireland but in Northern Ireland —for those people who come in to have a holiday via Shannon and Dublin airports and then move northwards.

It appears that the UK Government intend the scheme to apply on the land border and, so far, are dismissive of concerns raised. This looks very much like it is in breach of Article 2 of the Ireland/Northern Ireland protocol, which deals with specific rights of individuals. The clause shows a total lack of understanding of the border, which has many crossings. The noble Lord, Lord Patten of Barnes, who served in Northern Ireland as a former Minister and was chair of the Patten commission on policing, will be well aware of the geography not only of Northern Ireland but of the border area. I am sure that he would very clearly see the issues involved.

The situation for some time has been that almost all EU, EEA and non-EEA citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland without any requirement for prior immigration permission. In some ways, the Bill conflates modern slavery issues with immigration, as well as with the necessities of an economy and tourism.

It has been the case for some time that citizens who are non-visa nationals present in the Republic of Ireland can cross the land border freely on local journeys into Northern Ireland, without any requirement for prior immigration permission. For EU-EEA citizens since Brexit, as was already the case with other non-visa nationals, permission in such circumstances is restricted to entry as a visitor and certain activities, such as work, are restricted when entering the UK this way. However, this system has allowed non-visa nationals resident in border areas in the Republic of Ireland to enter Northern Ireland freely for a range of activities, even visiting family members or for work purposes. I am aware of people who do that; they contribute to the economy in the Republic but have family in the north, and vice versa.

Under this new proposal, non-visa nationals resident in the Republic of Ireland will be required to apply in advance and pay for an ETA before crossing the border into Northern Ireland. It is clear that this will have a detrimental impact on non-visa nationals who need to enter Northern Ireland for activities such as visiting family, accessing childcare, carrying out permitted work engagements and accessing services and goods. This system will also impact the ability of members of the migrant community to take part freely in cross-border projects and programmes. I am sure the noble Viscount, Lord Brookeborough, living in County Fermanagh, will be well aware of these issues for people who are resident or working in Counties Monaghan, Cavan and Donegal.

Concerns have also been raised about the impact of the ETA system on business, health and tourism, plus recreational issues, as it would require non-visa nationals in the Republic of Ireland to obtain an ETA before a visit to Northern Ireland, a fact that has been recognised and raised directly with the Home Office by the Irish Government. This would have an impact on tourism in Northern Ireland, as many people travel via Dublin and Shannon airports and head northwards. Therefore, the Government’s ETA proposal will impact detrimentally on tourism and economic opportunities in Northern Ireland. It will act as a disincentive to people from North America coming northwards to visit the Mourne Mountains in my own area and the Giant’s Causeway in north Antrim, which are both geographical icons. My noble friend Lord Coaker will be aware of this from his time as shadow Secretary of State, when I travelled with him round the constituency of South Down.

In the context of an invisible land border that British and Irish citizens can freely cross, it is eminently foreseeable that many other persons who have hitherto been able similarly to cross the border without any prior permission will be largely unaware of the ETA requirement. There are legal impacts to this. I am a member of the protocol sub-committee in your Lordships’ House. We wrote to the noble Baroness, Lady Williams of Trafford, with a series of questions on 14 January. To my knowledge, we have not yet received an answer. We asked whether she would specify

“who will be required to have a valid ETA, and any exceptions to this; the form or manner in which an application for an ETA may be made, granted or refused; any conditions that must be met before an ETA application can be granted; the grounds on which an ETA application must or may be refused; the validity of an ETA (length of time and/or number of journeys); and the form, manner, or grounds for varying or cancelling an ETA”.

I hope the Minister answering this debate will be able to provide the Committee with some answers this evening and will exhort his colleague, the noble Baroness, Lady Williams, to reply to the chair of the protocol sub-committee. I ask again: can the Minister confirm whether holders of a frontier worker permit will be exempt from the requirement for a valid ETA? Will there be any other exemptions or special arrangements for people crossing the land border frequently from the Republic of Ireland?

It would be preferable if ETA requirements did not exist or were not applied when travelling from the Republic of Ireland to Northern Ireland. I understand that much discussion has taken place. I exhort the Minister to give such commitments here this evening. If he cannot, can he give a commitment that the Government are prepared to come back with an amendment on Report to deal with this matter and cancel ETA in such circumstances, because it is utterly crazy? Can the Minister specify what the results of those discussions have been? If the Government do not wish to adopt my amendment, will they bring forward an amendment on Report to deal with these issues?

I also agree with Amendment 175ZA in the name of the noble Baroness, Lady Hamwee. Although it is very much an exploratory amendment, it is a very important one that is allied to mine. I agree too with the amendment in the name of my noble friend Lady Chakrabarti, which I have also signed. It deals with the birthright commitment under the Belfast/Good Friday agreement and the onus on the Government to report on progress in giving effect to the nationality provisions of that agreement. We should always remember that the Belfast/Good Friday agreement states that people can identify themselves as

“and be accepted as Irish or British, or both, as they may so choose.”

For my part, I hold an Irish passport. I am Irish and I declare myself to be Irish, although I live in the UK—which I freely recognise.

I look forward to the Minister’s response. I thank noble Lords who will speak in support of these amendments, and I hope that the Minister brings us some positive news tonight, or that he indicates what the Government might do on Report.

[Baroness Suttie (LD)]

My Lords, I will speak in favour of Amendment 175 tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name. I also support Amendment 175ZA, in the names of my noble friends Lord Paddick and Lady Hamwee, and Amendment 186, tabled by the noble Baroness, Lady Chakrabarti.

I will be brief because I fully support and agree with the very powerful points made by the noble Baroness, Lady Ritchie. As it stands, the Bill does not give proper consideration to the economic and legal implications for the island of Ireland. Amendment 175 would amend the Bill so that all local journeys from the Republic of Ireland to Northern Ireland, including for people who are neither British nor Irish, could continue to be made without the need for electronic travel authorisation.

I will highlight three areas of concern about the proposals as they stand and would very much appreciate a response from the Minister. The first is the question of legal uncertainty. If the Home Office remains committed, as I sincerely hope it is, to no checks on the land border on the island of Ireland, how will it enforce this new measure in practice? As the noble Baroness, Lady Ritchie, has said, thousands of crossings are carried out each day by non-British and non-Irish residents in the Republic of Ireland who need to cross the border for work, leisure, family or educational purposes. There is currently no requirement or expectation that people carry passports if they live or work in the border areas. Given the very particular circumstances of the border areas in Ireland, I would be grateful if the Minister could explain how these measures will be enforced in practice.

The second area of concern is how these measures will sit with the existing commitments on the common travel area, as set out in the Northern Ireland protocol. The protocol sets out quite clearly that, irrespective of nationality, the rights and privileges contained within the common travel area will continue

“with respect to free movement to, from and within Ireland for Union citizens and their family members”.

Can the Minister confirm that this will continue to be the case?

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank noble Lords very much for participating in this short but powerful debate. I thank the noble Baroness, Lady Ritchie of Downpatrick, and second the point of view of the noble Lord, Lord Coaker, that you bring—I said “you” again; I am very sorry—an interesting and unusual perspective to this debate. I thank her for that. In answer to the noble Baroness’s question about the letter to my noble friend Lady Williams of Trafford, the noble Baroness will have a reply in a week that will outline the details she asked for.

The Government are clear: there will continue to be no routine immigration controls on journeys to the UK from within the common travel area, and none whatever on the land border between Ireland and Northern Ireland. That will remain the position when the ETA scheme is introduced.

It may be helpful if I explain that all individuals, other than British and Irish citizens, arriving in the UK, including those crossing the land border into Northern Ireland, already need to enter in line with the UK’s immigration framework. I think this goes some way to answering the point raised by the noble Lord, Lord Coaker, about the hypothetical American wife or French girlfriend. I think it also deals with the point made by my noble friend, Lady Neville-Rolfe. For example, visa nationals are required to obtain a visa for the UK when travelling via Ireland, otherwise they are entering illegally. We are therefore applying the same principle to individuals requiring an ETA who enter the UK via Ireland without one.

The noble Baroness, Lady Ritchie, referenced Article 2 of the protocol. The Government consider that the ETA scheme is compliant, and they will continue to consider their obligations under the protocol with regard to this. I want to reassure the noble Baroness that the process for obtaining an ETA will be quick and light touch. I am told that it will be not dissimilar to acquiring an American ESTA, which I am sure many noble Lords are familiar with. As many people will know, that is very straightforward and easy. Once granted, an ETA will be valid for multiple journeys over an extended period, minimising the burden on those making frequent trips, including those across the Northern Ireland border. I perhaps should have said that I have had considerable experience of crossing that border on numerous occasions.

In terms of the specific questions on the CTA, as far as I am aware, it has nothing to do with Brexit. It predates Brexit does it not? It goes back to 1923 and partition I think, from my dim and distant memory. I am sure I will be corrected if I am wrong. All CTA members are firmly committed to protecting the common travel area. I will reiterate this point: even with the introduction of ETAs, there will be no routine immigration controls on arrivals to the UK from elsewhere in the common travel area—only intelligence-led controls with no immigration controls whatever on the Ireland/Northern Ireland land border. Given the tone of the debate, I hope noble Lords will allow me to keep reiterating that point.

[Baroness Ritchie of Downpatrick (Lab)]

I thank the Minister for giving way. Could he outline to the Committee how these ETAs will operate. Where will the work be carried out? How will people complete the necessary requirements and what will be the cost? These are the issues that the people are asking. They do not want ETAs to be a disincentive to tourism, the local economy or business generally.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness for that intervention. I am going to come on to a number of those points subsequently. In terms of cost, I am told it will be competitive with international norms. I have just referred to the ESTA programme in the States. I looked that up this morning in anticipation of this, and it is currently $14, so it is not overwhelming. In terms of the enforcement, which I think is at the heart of the matter, I will come to that in a second if I may.

There will be no controls whatever on the Northern Ireland land border. Individuals will be able to continue to pass through border control at first point of entry to the common travel area. As is currently the case, individuals arriving in the UK, including those crossing the land border into Northern Ireland, will need to continue to enter in line with the UK’s immigration framework. Obviously, that includes the ETA.

Many noble Lords, including the noble Viscount, Lord Brookeborough, have asked about the impact on tourism. The Government acknowledge that a clear communication strategy is obviously going to be key to tackling any misunderstanding about the requirements to travel to Northern Ireland. We are planning to work across government, utilising internal and external stakeholders and a variety of communication channels to ensure that the ETA requirement is communicated very clearly.

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[Lord Sharpe of Epsom (Con)]

I completely agree with my noble friend: obviously it is important to have well-established protocols in place if such a thing happens. I can assure noble Lords that the Home Office will ensure that passengers are not disproportionately impacted or prevented travelling to the UK. As is already set out in Clause 72, we will not penalise carriers where, due to a Home Office systems outage, it is not possible for them to establish an individual’s status.

On Amendment 186, the Government are steadfastly committed to the Belfast agreement and the two distinct birthright provisions in it: the right to identify and be accepted as British, Irish or both; and the right to hold British and Irish citizenship. In recognising the birthright of the people of Northern Ireland in respect of identity and confirming their birthright in respect of citizenship, the Belfast agreement is clear in guaranteeing that these rights already exist. It expressly and clearly said how and where the law should be changed in many areas but it made no such stipulation on this particular matter of identity.

This amendment would require the Home Secretary to propose stipulating a particular view of identity in law. Doing so would risk impinging on the freedom of the people of Northern Ireland to choose what their identity means to them. It would also amount to treating an integral part of the United Kingdom differently. The Government cannot accept such a proposition; nor can they accept an amendment that is contrary to the intention of the Belfast agreement.

I am aware that some of these answers have not satisfied noble Lords. As I said, I will reflect the tone of this debate back to the Home Office very carefully. I am also aware that I have not answered my noble friend Lord Moylan’s question about reciprocity; I am sure that he will forgive me for not even attempting to do so.

I invite the noble Lords not to press their amendments.

[Baroness Ritchie of Downpatrick (Lab)]

I thank all noble Lords who have contributed to this debate from across the Committee. I say to the Minister that I happen to agree with the noble Viscount, Lord Brookeborough: the proposal in Clause 72 is a nonsense and will be unworkable, not because people will not want it work but because it will be dysfunctional both physically and operationally. It will act as a disincentive to tourism and business, as well as to societal arrangements because many non-Irish and non-British people who live in the Republic of Ireland have family in Northern Ireland. There will be preventions there.

I urge the Minister to reflect on all the contributions that have been made today in his discussions with the Home Office. Again, I suggest that we will probably come back on Report with a further amendment on this issue because we do not want impediments placed in the way of our tourism industry, our economy, our business and the normal day-to-day travel of people who live on both sides of the land border, which is largely invisible as it stands. Noble Lords who have travelled a lot will know exactly what we are talking about.

For those reasons, I rather reluctantly beg leave to withdraw my amendment but reserve the right to bring it back on Report.

Amendment 175 withdrawn.