The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is currently before the House of Lords and contains some interesting changes for Irish citizens…
Clause 2 of the Bill exempts Irish citizens from any requirement to obtain leave to enter or remain in the UK and if approved by Parliament, the clause will be added as section 3ZA to the Immigration Act 1971.
It may seem old news that Irish citizens can travel freely to and live in the UK, as they have never truly been restricted in doing so. Although interestingly, there has never been a clear legal basis to permit this. The position was complicated further when the UK and Ireland joined the EU. Remember too that Irish nationals may be subject to exclusion or deportation from the UK, usually where a UK court has recommended this as part of a criminal sentence.
Current laws surrounding the entry of Irish citizens to the UK are often criticised by immigration lawyers for lacking transparency. The law has arrived at this position following a long and complex political history which has influenced legal drafting.
Ultimately, the current position under the Immigration Act 1971 (before the Bill becomes law) does allow free entry for Irish citizens to the UK, but in a very longwinded way. The reading of additional statutory instruments and footnotes in conjunction with the 1971 Act is necessary to have any idea of what an Irish national must do for permission to enter. The approval of this Bill and implementation of a clause specifically relating to Irish rights into the 1971 Act will certainly clarify things.
Rights of Persons of Northern Ireland in the UK after Brexit
There are also further changes regarding Irish citizens to be aware of within the Statement of Changes to Immigration Rules of May 2020 which will come into force on 24 August 2020. The most interesting is the change to the definition of an EEA citizen, which now includes ‘a relevant person of Northern Ireland’.
The definition of a ‘relevant person of Northern Ireland’ includes a person who is a British citizen, Irish citizen or both. It also includes a person who was born in Northern Ireland and at the time of their birth, at least one of their parents was British, Irish, both or otherwise entitled to reside in Northern Ireland without any restriction on their residence.
The origins of the legal term ‘person of Northern Ireland’ comes from the Belfast Agreement in which British and Irish governments recognised the rights of people of Northern Ireland to identify as British, Irish or both. This issue became particularly interesting for Immigration lawyers in regard to the EU law rights of the third country national family members of people who identify as both British and Irish. This was brought to light in the cases of McCarthy and De Souza, which involved British/Irish dual nationals who sought to rely on their Irish citizenship to sponsor a family member under the EEA Regulations. This welcome change to the Immigration Rules clarifies that British/Irish dual citizens can sponsor family members through their EU rights as Irish nationals.
Important new concession for the family members of persons of Northern Ireland
A final important issue to be aware of is a concession relating to these family members of persons of Northern Ireland applying under the EU Settlement Scheme. Appendix EU includes a requirement for ‘dependent relatives’ and ‘durable partners’ of EU nationals to hold a relevant document confirming their residence in this capacity before being able to achieve Pre-settled or Settled status under the scheme. This is markedly different from the position for these family members under the EEA Regulations. The May 2020 Statement of Changes confirms a concession will be inserted to the definition of ‘relevant document’ at paragraph EU.7, permitting a durable partner or dependent relative of a person of Northern Ireland to simply provide the required evidence to satisfy the Secretary of State of the relationship, rather than already having obtained a residence document in this category. This is of course an important concession for lawyers to be aware of when advising persons from Northern Ireland.
It is clear that the position for Irish nationals had become complex in many ways and so it is hoped that these changes will clarify the position going forward. If you require further information or assistance regarding your rights as an Irish national, or any other immigration matter, please speak to our team of expert immigration solicitors.