Brexit border deal ‘not legally possible’

Ireland is heading for Brexit “disaster” as Taoiseach Enda Kenny’s desired special deal between the Republic and the North is not legally possible, it has been claimed.

Customs legal experts' analysis undermines Kenny hope of deal

Customs legal experts Michael Lux and Eric Pickett, writing in today’s Irish Examiner, deliver a gloomy new analysis of British prime minister Theresa May’s Brexit white paper.

Their conclusions are far more grave than what was feared initially and undermine Mr Kenny’s hope that there will be no return to the borders of the past.

Expanding on their evidence to the UK’s House of Commons committee last week, they found profound consequences await those seeking to travel between the Republic and the North

. The white paper announced that the UK is aiming to conclude a “new comprehensive, bold, and ambitious free trade agreement” with the EU.

They say this could be misunderstood in the sense that trade between Ireland and the North would be “free”.

“Unfortunately, this is not true,” they wrote. “A free trade agreement only means that goods made entirely or substantially in the partner country are free from import duty. Import Vat and excise duty are still due and will be collected in the context of an importation.

“While a special deal just between Northern Ireland and Ireland isn’t legally possible and special EU customs rules for the border between Ireland and Northern Ireland are unlikely, the main goal now is to ensure that the customs procedures and formalities will be as seamless and frictionless as possible for private persons and businesses.”

When the UK exits the customs union of the EU, the border between Ireland and the North will become an external customs border.

The customs legislation of the EU will apply to movements of goods between the North and Ireland, they write. EU rules on Vat and excise duties (e.g. on alcohol and tobacco) on importation will also apply when goods are brought from the North to Ireland.

“It will not be possible to see the trade and everyday movements we have seen up to now,” they said. “Travellers can import goods from Northern Ireland duty and tax free only up to a certain amount [€300 with limitations for alcohol and tobacco] and will have to declare goods with a value above the threshold when entering Ireland.”

Irish traders will have to declare to customs goods to be exported to, or imported from, the North. In order to ensure customs, Vat, and excise rules are complied with, Irish customs will perform risk-based and random checks of private persons and lorries crossing the border. This may lead to queues and delays, they said.

This would be disastrous for Ireland, a former justice minister claimed yesterday.

Former Louth Fianna Fáil TD Dermot Ahern

Former Louth Fianna Fáil TD Dermot Ahern said: “There will be a hard border of some sort and there will have to be checks, particularly on the southern side.”

Despite assurances last week from the British prime minister that both governments want a “seamless, frictionless border”, Mr Ahern was critical of the British government’s failure to think of the impact on the island of Ireland.

“Whoever decided to put that referendum before the people in Britain didn’t think out the implications for Ireland, both north and south,” he added.

Echoing his concerns, Verona Murphy, president of the Irish Road Haulage Association, said 95% of goods in Ireland transfer over the border by road and that the introduction of a hard border would have significant implications.

“Time is money and if you have a return of borders you will destabilise the peace process,” she said. “When the border was there you never had foreign drivers willing to cross. Also, it is massively unproductive and drivers will not be willing to sit for four hours to do the run between Dublin and Belfast.”

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