How the UK plans to preserve the invisible Irish border after Brexit

How the UK plans to preserve the invisible Irish border after Brexit

The UK Government has followed up on its customs paper published yesterday with a position paper on Northern Ireland and Ireland. Unlike the customs paper, this is an official negotiating position paper, setting out the UK’s position ahead of the next round of talks on August 28th.

The paper makes clear that maintaining the invisible border between Northern Ireland and the Republic is the UK’s top priority, along with maintaining the Common Travel Area and writing the Good Friday Agreement directly into the UK-EU withdrawal agreement. The UK also commits to not installing any physical infrastructure at border crossings, even down to the level of number plate recognition cameras, in a firm commitment to the principle of a fully open and invisible border.

Ireland’s foreign minister Simon Coveney welcomed the UK’s position of avoiding a physical border, and described the issue as a “good test of the European Union in terms of protecting the interests of small countries as well as big ones”, putting pressure on the EU to work with the UK to come up with “imaginative and flexible solutions” to make an invisible Irish border possible.

The paper focuses more on high-level principles which the UK is seeking to reach agreement with the EU over, given the EU’s continued insistence that technical customs matters cannot be discussed at this stage of the negotiations, although it does offer some possible solutions for ensuring that businesses which rely heavily on cross-border activity are not disrupted.

Possible options would include an exemption for micro-, small- and medium-sized businesses which account for 80% of cross-border trade and primarily trade in local markets alone, as well as a continuation of the waiver scheme for pre-notification of movement of goods and continued UK membership of the Common Travel Convention, which would enable goods to pass through the UK as a “third country” more easily.

The UK’s two proposed customs models also offer possible solutions, with mutual recognition of Authorised Economic Operators and “trusted trader” schemes forming part of the “streamlined customs” approach, while the Government argues that its “new customs partnership” of parallel customs systems could eliminate the need for UK-EU customs processes altogether if implemented successfully. This is potentially a savvy negotiating move from the UK – if it can convince the EU of the merits of its customs proposals with regards to the Irish border, then it will be a comparatively smaller step to convince the EU to accept them at large.

However, the proposals are not without their challenges. Preserving the Common Travel Area, which predates the UK and Ireland’s memberships of the EU by many decades, is of paramount importance to all sides, but this has raised concerns about Ireland becoming a “backdoor” for illegal EU immigration into the UK after Brexit, since Ireland would still have free movement with the rest of the EEA.

While illegal entry to the UK would indeed be possible by this route, a closer look at the issue reveals it to be little more than a red herring. At present, there is nothing to physically stop nationals of any country from travelling to the UK, or indeed to any other country, on a short-term tourist or other visa and then simply failing to leave when their visa expires. This of course means becoming an illegal immigrant, which the vast majority of people looking to settle in a new country do not want to be.

If an EU citizen is nonetheless determined to migrate illegally to the UK after Brexit, they could just as easily do it by coming as a tourist and failing to leave, rather than going through the extra hassle of travelling via the Republic of Ireland. Hence, the idea that an open Irish border will open up a major new route of illegal immigration into the UK is ultimately built on flawed logic.

In any case, these minor concerns over the issue are easily trumped by the need to ensure stability in Ireland and Northern Ireland by preserving the fully open border, which is rightly the top priority of all sides in this area of the negotiations.

Another potential problem is over the issue of agri-food regulations. With the agri-food industry accounting for a huge proportion of cross-border economic activity, the UK paper moots the idea of “ongoing equivalence in regulatory outcomes” to avoid the need for sanitary and phytosanitary checks on agri-food at the border.

The devil will be in the detail here, but if it amounts to full regulatory equivalence with the EU, it could place constraints on the trade deals the UK is able to sign after Brexit, with agriculture often forming a major part of trade agreements. It could also prevent the UK from ditching the EU’s neo-Luddite restrictions on genetically modified organisms and other technological advances. More clarity is needed on this issue to ensure that this is not the case.

As the Government acknowledges, this paper does not offer detailed technical solutions for the Irish border, which the EU is currently refusing to discuss, but it does clearly set out the UK’s high-level priorities and objectives on the issue – objectives almost entirely shared with the EU.

Securing agreement with the EU on these overarching priorities therefore ought to be straightforward enough, although without delving down into the detail where disagreements will inevitably arise, it remains to be seen whether the EU would deem this to be “sufficient progress” for the negotiations to move on to their next phase. Both sides may ultimately need to accept the idea that a slightly “leaky” border with regards to goods and people may well be the best way to ensure continued peace and stability on the island of Ireland.