Ireland-UK Travel: Common Travel Area (CTA) and Deemed Leave
This post explains what the Common Travel Area (CTA) and the related concept of “deemed leave” are in UK immigration law. In particular, it sets out who is entitled to deemed leave, the length of deemed leave periods, and the difference for non-visa nationals between entering the UK with deemed leave and entering the UK as a visitor.
What is the Common Travel Area?
The CTA is an arrangement between Ireland and the UK (as well as the Crown Dependencies of Jersey, Guernsey and the Isle of Man), allowing British and Irish citizens to move freely between and reside in either jurisdiction. It also gives British and Irish citizens certain rights and privileges in both jurisdictions, such as the right to work, study, and access health services and social welfare benefits.
The CTA also allows some people who are neither British nor Irish citizens to travel from Ireland to the UK without first seeking permission to enter the UK. This is possible through the automatic operation of a type of permission called “deemed leave”.
What is “Deemed Leave”, and Am I Entitled to It?
A key purpose of the CTA is to enable travel between the UK and Ireland free of border checks, in order to avoid the friction and violence that has historically troubled the Irish border (i.e. the border between Northern Ireland and the Republic of Ireland). The concept of “deemed leave” is one tool that facilitates this.
Deemed leave is a system of statutory permission for “non-visa nationals” who are travelling from Ireland to the UK. Non-visa nationals are nationals of countries that are not listed in the visa national list of Appendix Visitor to the Immigration Rules. As deemed leave arises automatically, if you are travelling from Ireland to the UK and you are a non-visa national entitled to deemed leave, then you do not need to seek permission to enter the UK. You will already have permission via deemed leave.
If you are a “visa national”, i.e. a national of a country that is listed in the visa national list, deemed leave is not available to you, and you need to meet standard UK visa requirements in order to enter the UK.
Further, even if you are a non-visa national and would normally be eligible for deemed leave, you are not eligible for deemed leave if, for instance, you are subject to a deportation order, or if you have been refused entry into the UK and have not since been granted permission to enter the UK.
For certain categories of people, deemed leave is simply not relevant. Most obviously, deemed leave does not apply to UK citizens, who have a right to enter the UK without having to rely on deemed leave. Another group to whom deemed leave does not apply is Irish citizens. Irish citizens have a special status under UK nationality law (see our earlier blog post on The Rights of Irish Citizens in the UK after Brexit), and do not need permission to enter or remain in the UK, regardless of where they are travelling from (though there are limited exceptions – for instance, if they are subject to a deportation order). Given that Irish citizens do not require any leave (i.e. permission) to enter the UK, it follows that they equally do not need deemed leave to enter the UK.
Similarly, deemed leave is not relevant to those with valid, pre-existing permission to enter or remain in the UK; these people are already able to enter the UK without having to rely on deemed leave. This category of people includes those with limited permission to enter or remain, indefinite permission to enter or remain, and those with status under the EU Settlement Scheme. However, if your existing UK permission has expired while you were in Ireland or elsewhere in the CTA, you would re-enter the UK with deemed leave, as you would no longer have valid pre-existing permission.
What Happens at the UK-Ireland Border, and Do I Need a Passport?
If you are travelling from Ireland to the UK and you are entitled to deemed leave, the deemed leave applies to you automatically upon entry to the UK. As deemed leave arises automatically, your permission will not be endorsed via a stamp in your passport.
The automatic nature of the permission also means that border officers cannot grant or refuse you deemed leave, nor can they cancel your deemed leave (except in particular circumstances involving a breach of the conditions of deemed leave).
In any case, the UK government’s policy position is that there are no routine immigration controls for travel from Ireland to the UK, and that there are no immigration controls at all on the Irish land border (the border on the island of Ireland, between the Republic of Ireland and Northern Ireland). The basic idea is that border checks are instead undertaken at your first point of entry into the CTA as a whole.
That said, you may still be required to provide a document to confirm your nationality and identity if you are encountered by an official at the border (though this cannot happen at the Irish land border, as there are no immigration controls there). Moreover, many airline and ferry operators require an official photo ID as a condition of carriage in any case. British and Irish citizens are not specifically required to present a passport to verify their nationality and identity, but most other nationals must present a valid passport if they are encountered by border officials. This means that, regardless of the automatic nature of deemed leave, it is always wise to carry your passport with you.
How Long Do I Get Deemed Leave For?
From the date that you enter the UK with deemed leave, you are generally treated as having a specific period of permission to enter the UK. Given that you will not have a passport stamp to show exactly when you entered the UK, your date of entry is normally established through your airline or ferry tickets instead.
As of 01 January 2021, for your first time entering the UK with deemed leave, you are entitled to 6 months of deemed leave. If you then travel to somewhere else in the CTA (such as Ireland) and then re-enter the UK without having left the CTA in the meantime, you will only be entitled to 2 months of deemed leave for this second time entering the UK with deemed leave.
Conversely, if you enter the UK with deemed leave and then leave the CTA altogether, your entitlement resets; the next time you enter the UK from Ireland with deemed leave, you are once again entitled to 6 months of deemed leave.
Whether you are entitled to 6 months or 2 months of deemed leave, your deemed leave lapses if you leave the UK. As explained, if you enter the UK from Ireland and are entitled to 6 months of deemed leave, but you then travel to Dublin and back, you would only be entitled to 2 months of deemed leave upon re-entry to the UK. In this situation, you cannot add your current 2 months of deemed leave onto (what is left of) your initial 6 months of deemed leave; the initial deemed leave would have expired at the point you left the UK. The same is true if you have your second, 2-month period of deemed leave, then travel to Dublin and back; you would no longer be entitled to deemed leave, but would likely be entering as a standard visitor.
What Can I Do in the UK While I Have Deemed Leave?
Just as with those entering the UK as a visitor, you cannot undertake employment or any other occupation for reward while you are in the UK with deemed leave. This includes doing any work for an organisation or business, establishing or running a business as a self-employed person, undertaking a work placement or internship, or fulfilling a contract to provide goods or services. Just as with the visitor rules, however, there are exceptions to these restrictions.
Is There Any Difference Between Entering With Deemed Leave and Entering as a Visitor?
In practice, for the majority of non-visa nationals, it may not feel like there is any concrete difference between entering the UK with deemed leave and entering the UK as a short-term visitor for 6 months, beyond the fact that deemed leave only applies when travelling to the UK from within the CTA. This seeming lack of difference arises because, while non-visa nationals entering the UK as a visitor do technically “apply” for permission to enter at the border, they generally do not need to make a formal application under the Immigration Rules, whether at the border or otherwise. Further, the ability of certain nationals to use the automatic ePassport gates may further give the impression that they are subject to essentially no immigration checks when entering the UK as a visitor.
However, the difference between the two types of entry is not simply a matter of semantics. This is because all visitors must satisfy the requirements of Appendix V to the Immigration Rules in order to enter the UK as a visitor, including a “genuine visitor” requirement and a financial requirement. These requirements apply to non-visa nationals and those entitled to use the ePassport gates, just as they do to visa nationals.
This means that, when a non-visa national is attempting to enter the UK as a visitor, there does always remain a possibility that they will be taken aside and required to explain the purpose of their visit, how they will maintain and accommodate themselves in the UK, and about their return travel arrangements. If it is found that a non-visa national does not satisfy the visitor requirements, they will not be permitted to enter the UK.
In contrast, this is something that is simply not possible for those entering the UK with deemed leave. Border officials cannot refuse you permission to enter if you benefit from deemed leave, even if you intend to enter for purposes that are not permitted under deemed leave (e.g. to undertake employment). Enforcement action can only be taken at a later point, if and when the person with deemed leave is actually found to be conducting the prohibited activity in the UK.
Similarly, while a visitor cannot live in the UK for extended periods via frequent or successive visits, or make the UK their main home, it does appear on the face of the Home Office guidance that this is technically possible through deemed leave (though unlikely to be advisable, or successful in the long term). Even if a border official has doubts as to your credibility as a visitor, they cannot refuse you permission to enter if you benefit from deemed leave. However, deemed leave can only take you so far, as it only permits you to stay for 6 months for the first entry with deemed leave, and 2 months for the second entry. After this, it would be necessary to leave the UK, and any subsequent visitor visa to re-enter the UK would be subject to scrutiny in relation to frequent and successive visits.
Contact our Immigration Barristers
This post only provides an overview of the most general form of deemed leave, under Article 4 of the Immigration (Control of Entry through Republic of Ireland) Order 1972. There are other, more tailored forms of deemed leave, including in relation to S2 Healthcare Visitor arrangements and Permitted Paid Engagements.
For expert advice regarding entry to the UK, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.