When is an Irish citizen not an Irish citizen?

Irish citizens have always held a unique position from a UK immigration perspective.  Not only are they EU citizens, with rights of free movement in the UK, they are also automatically deemed to be settled from the moment of their arrival – something that in most cases takes foreign nationals five years to acquire. So, following the introduction of new rules on 24 October to make provision for a new European Temporary Leave to Remain (Euro TLR) status in the event of a no deal scenario, how are Irish citizens and their family members going to be affected?

Key themes

The government has been clear that Brexit should not affect the status of Irish citizens in the UK, whose status arises from the long, historic relationship between the two countries and the Common Travel Area (which allows borderless travel between the two).  It had been planned that this status would be clarified as part of a Brexit immigration bill but, with the dissolution of Parliament, that has been delayed at the very least.  However, the underlying and established right is unlikely to be changed.

Since they already have settled status, Irish citizens are not required to apply under the EU Settlement Scheme, but what about their family members?  Family members of Irish citizens currently have a couple of options for UK status – they can come to the UK as the family members of an EU citizen and make an application under the EU Settlement Scheme, or they can apply for a visa as family of a settled person (just as the family of a British citizen would).  The EU route has the advantage of being less rigid and document intensive and, perhaps more importantly, free.

The headline-grabbing declarations coming from the government have been that free movement will come to an end on Brexit day but, in practice, current plans mean that some form of free movement will remain in place until at least the end of 2020.  During this time, family members of Irish citizens can make applications under the EU Settlement Scheme if they are eligible.  If not, they may be able to apply for the new Euro TLR in the event of a no deal scenario.  After that they will need to meet the requirements of a new immigration system expected from the start of 2021 or may need to apply under the more complicated and costly domestic visa route currently used by families of British citizens.

But what about families of people from Northern Ireland?  People born in Northern Ireland normally have both British and Irish citizenship and would no doubt prefer to benefit from the easier and cheaper EU options. 

Unfortunately the law is clear that family members of a British citizen (including someone with dual nationality) cannot benefit from EU citizenship in this respect (except under narrow circumstances such as Surinder Singh cases) and must instead use the more stringent domestic visa route.  This principle was originally established in McCarthy v Secretary of State for the Home Department [2008] EWCA Civ 641 and was more recently tested again in EA066672016 [2019] UKAITUR.  The latter investigated the recognition in the Good Friday Agreement for the people of Northern Ireland to identify as Irish or British or both, but determined that identifying as Irish did not affect the underlying fact that the people of Northern Ireland are still British – their family members cannot benefit from the EU Settlement Scheme.  As currently drafted, family members of Irish citizens (even if also British) appear to be eligible for Euro TLR in the event of no deal.  However, given the previous legal battles over EEA status of dual nationals, this may be an oversight and changed before Euro TLR goes live.

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of November 7, 2019.