Why doesn't UK consider Ireland a foreign country for the purpose of British law?

Question

Why doesn't UK consider Ireland a foreign country for the purpose of British law? What is the philosophy behind it?

If we examine the history, it can be pointed out that more than half people in Northern Ireland considered themselves British and wanted to be part of the UK, while the rest wanted to join the Irish Free state to become United Ireland. This dispute was not easy to resolve. It happened that Northern Ireland was deemed UK territory for that time. Violent events followed and then came the Good Friday Agreement (I think everyone knows Irish history, so I am stopping here).

Considering this, a Common Travel Area was created wherein citizens of the UK and Ireland were not subject to immigration control and were not treated as aliens for the purpose of Immigration law. But the thing here to note is that if Northern Ireland was the chief reason for allowing Free Movement, then the UK should have allowed free movement from Northern Ireland, not the Republic of Ireland. But it is obviously the case that citizens of the Irish Republic who had absolutely no problem in losing British subject status or being a British citizen, were given free movement rights. And the British, who didn't really bother about all this chaos about NI, were granted the same movement rights.

What's more, the citizens of both countries are given rights that no 2 countries on the entire planet give to each others' citizens. (except obviously the European project; I am talking about countries which were not part of the EU (the EU didn't even existed then)). Why were such rights given to the people of the Irish Free State and the UK, when the whole debate was about the people of Northern Ireland? It were the Northern Irish people some of whom wanted to be with the UK and some with the Irish Republic. They could simply have given such rights to people born in or resident in Northern Ireland.

In British law, Irish people are not aliens (though they are not British). Similarly in Irish law, British people are not aliens (thought they are not Irish).

(1) The question: Why are British and Irish people not viewed as aliens in each others' countries? The whole issue was about Northern Ireland which was nicely solved by the Good Friday Agreement that granted the people of Northern Ireland the choice of claiming British or Irish or both citizenship(s), depending on which country they considered for themselves as "theirs". The whole issue was resolved by this. Why the extra special status?

For your information, Irish and British citizens have working rights, home student status (education rights), healthcare rights, free movement rights (without any condition like job offer or self sufficiency like the EU imposes), Social security rights, etc. in each others' countries. For a common man (and the majority of us are common people, aren't we?), these rights made effectively a common citizenship system if seen virtually. You're Irish? You have all the rights that people who are British have in UK without any conditions. You're British and you want to go and wander in Dublin and claim unemployment benefits? Well, you can and no one is stopping you!

(2) A consequent question would also arise: Is this practice of not viewing each other as aliens and giving equal rights in either country and the free movement right (due to CTA), all because of the Northern Ireland issue, or because of historically close connections? If the answer was "historical close connections", then it seems impossible to take away all the rights and end free movement in the event of Irish Unification. But if the answer was "because of Northern Ireland", then it is clear that all rights and special status and the free movement (CTA) will not be needed any more now that Northern Ireland has joined Republic of Ireland.

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Some important documents that might help:

1. Free Movement between the Ireland and the UK by Elizabeth Meehan, The Policy Institute

2. Joint statement of 8 May 2019 between the UK Government and Government of Ireland on the Common Travel Area

3. The Common Travel Area and the special status of Irish nationals in UK law

Answer 1

Ireland is a foreign country in British Law. But as a result of shared history and a succession of treaties, the two independent countries grant a variety of rights to each others citizens. This is a choice of the two independent governments. It is expedient because of the geographical and historical context.

From the middle ages until the 1920s, Ireland was part of the UK (legally since 1801, but since the time of King John, Ireland was a feudal domain of the English King, and in the middle ages, the king held the real power). In 1921 Ireland was partitioned into two self-governing territories (both within the UK) then in 1922 the Southern part became independent (as the Irish Free State) but still a commonwealth Dominion of the Crown with a Governor General (rather like Canada or Australia). Then in 1937, it declared itself a Republic.

The Irish government in the South did not recognize the legitimacy of the the 1921 partition, and claimed all the land in the North, thus they claimed all the people in the North were citizens of Ireland de jure.

Under the terms of the partition, and independence was rights of movement between the countries. The UK continues to recognise the right of Commonwealth residents to vote in elections, and continues to recognise the right of Irish citizen that are resident in the UK to vote.

However British law, and (since the Good Friday agreement) Irish law too, recognizes the countries as independent. In British Law, Ireland is "foreign". The common travel area between Ireland and the UK is a consequence of a closely aligned history, and the agreements made in the 1920, 1930s and 1990s, and the disruption that ending such an arrangement would cause to people living on the border.

So to deal with the individual questions in summary

1. Ireland is already a foreign country in UK law. It is special because it is the only European country to have a land border with the UK. The only one that was formerly part of the UK, and one of only two European countries that have commonwealth links to the UK (the other is Malta)
2. The UK could have chosen not to allow free movement in 1922 or any time after that. The UK chose to allow free movement as a result of the historic close connections, and a desire to promote good relations between the two countries, and not deny common rights that people had had since time immemorial.
3. The other commonwealth countries were never part of the UK. They are separated from Great Britain by oceans. People weren't used to walking from New Zealand to the UK and back everyday. People do walk from Ireland to NI everyday.

For a humorous example of how partition was done, and to understand why freedom of movement was essential, you could read the novel "Puckoon", about a village that finds itself divided between the Free State and the North.

This kind of border arrangement is not so unusual. Except at times of conflict, the border between Belgium and the Netherlands has been functionally open and in Baarle, it has always been possible to move from one country to the other. One could also note that until December 2022, Maltese citizens also have the right to free movement to the UK, the right to healthcare and education, and will continue to have the right to vote in the UK even after the end of the Brexit process.

Answer 2

In addition to the reasons listed in the accepted answer, the migration of Irish citizens to the rest of the UK, over hundreds of years, means that large numbers of UK citizens have Irish ancestry.

This article in the Belfast Telegraph claims that 20% of English people, 43.84% of Scots and 31.99% of the Welsh are part Irish.

Many areas of Britain have strong communities of Irish extraction. Many prominent British people are Irish or of recent Irish ancestry; the current captain of the English limited overs cricket team is Eoin Morgan who was born in Dublin. Most of us work with people who are Irish or have Irish parents or grandparents.

The people of the two countries are still so tightly connected that it is not surprising that they have such a close relationship.

Answer 3

In 1900 the British Empire was single state in international law and dominions like Canada and Australia had self-government within the British Empire. They did not have separate citizenship laws or diplomatic corps. From the UK perspective, there were "British countries" (part of the Empire) and "foreign countries" (everywhere else).

Over the course of the proceeding fifty years, the Empire became known as the Commonwealth and the dominions gradually became more and more independent, eventually resulting in independent citizenship laws and international representation. However the UK, in 1940s and '50s, still considered all Commonwealth citizens to be British subjects and thus exempt from immigration law.

Ireland (or about 4/5 of Ireland) became an unwilling dominion in 1922 and left the Commonwealth in 1949. This could have resulted in all Irish people in the UK becoming aliens and subject to immigration law. However, in the same year the UK parliament passed the Ireland Act 1949 which still to this day provides that:

"It is hereby declared that, notwithstanding that the Republic of Ireland is not part of His Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom..." Ireland Act 1949

Thus Ireland was to still to be treated as a Commonwealth country after it had ceased to be such, and Irish citizens as "not foreign".

As Prime Minister Clement Attlee explained to the House of Commons:

"As everybody knows, there are in Britain large numbers of people of Irish descent, some born in Eire and some born in this country, and there is a continual passage to and fro of people who come over to work or to study or for pleasure. It would be an extremely difficult thing to decide in every case from day to day as to what the exact status was of a person with an Irish name, and if we had had to attempt to make all citizens of Eire aliens, it would have involved a great expenditure of men and money and a great extension of the control of aliens. We had in particular also to remember the difficulties caused because of the fact of the land frontier between Northern Ireland, which is part of the United Kingdom and the Commonwealth, and Eire.

We therefore came to the conclusion that we should reciprocally decide that the people of Eire and the people of Britain should not be foreign to one another. Indeed, I go further. The same action may be taken by other Commonwealth countries. I do not pretend that the solution at which we arrived is completely logical—very few things in the relationship between these islands have been completely logical—but I believe they are practical and I believe that they are to our mutual benefit. I am aware, of course, that hitherto there has been this division in international law—it has come down from the past—in which one has recognised people as either belonging or foreign, but international law is made for men, not men for international law. We are moving into a time when various other relationships are being created. Therefore we thought this was the most practical solution." Hansard 11 May 1949

At the time this decision was quite significant as it exempted Irish citizens from UK immigration law. However, while the distinction between foreign and not foreign countries has been retained in UK law, it is now of little practical significance.

UK immigration law, for example, is no longer based on not whether you're foreign or otherwise, but rather on whether you have a right of abode in the UK. The citizens of Commonwealth countries in the UK are, like Irish citizens, not foreign but are, in contrast to Irish citizens, subject to immigration control.