The government’s view is that Brexit will not affect Irish citizens at all. On 21 June 2018 the government published details of its plan to offer settled status to EU citizens who currently live in the United Kingdom. It confirmed the government’s position that Irish citizens have a general right to live in the United Kingdom which is entirely separate to their rights as EU citizens:
2.6. Irish citizens enjoy a right of residence in the UK that is not reliant on the UK’s membership of the EU. They will not be required to apply for status under the scheme (but may do so if they wish), and their eligible family members (who are not Irish citizens or British citizens) will be able to obtain status under the scheme without the Irish citizen doing so.
But the document gives no explanation of the legal basis for this right of residence in the UK after Brexit. Although it is clear that the government has no intention at present of enforcing immigration controls against Irish citizens, whether they will have a general legal exemption from UK immigration laws remains an important question.
Firstly, if there is no statutory exemption from immigration control then at least some Irish nationals would be vulnerable to a change in government policy. Secondly, if there are no amendments to the UK Borders Act 2007, the automatic deportation regime imposed by that act would apply to Irish citizens. That would force the government to deport Irish nationals who have committed a serious crime even if the Home Secretary did not wish to deport them.
The uncertain position of Irish citizens in UK immigration law
This issue is the product of a fundamental change in UK immigration law since Irish independence. Prior to the Immigration Act 1971, immigration control targeted people identified as foreign. Irish citizens were protected from immigration control by the Ireland Act 1949, which gives Ireland a unique classification as a non-foreign country, despite it not being part of the UK:
the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom… references in any Act of Parliament, other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, to foreigners, aliens, foreign countries, and foreign or foreign-built ships or aircraft shall be construed accordingly.
But the Immigration Act 1971 fundamentally altered the legal framework by, instead, authorising immigration control against anyone who could be identified as not having a “right of abode” in the UK. This switch from positively identifying foreign nationals to negatively identifying anyone who does not have a right of abode meant that the Ireland Act 1949 no longer protected Irish citizens from immigration control. This change was partially remedied by section 1(3) of the 1971 Act itself, which protects Irish citizens from immigration control if they enter the UK directly from Ireland. But this does not exempt them from deportation nor cover Irish people who arrive in the UK from a country other than Ireland.
1/ As this has come up again, here is my explanation (originally from 31 July 2017) of why the Ireland Act 1949 is insufficient to guarantee a special immigration status for Irish citizens in the UK.
— Bernard Ryan (@BernardRyan1) July 20, 2018
At the time the new vulnerability of Irish citizens was not a practical problem because the immigration powers granted to the Home Secretary were discretionary and successive governments did not seek to control Irish citizens. Moreover, both Ireland and the UK became members of the European Union on the same date that the 1971 Act came into force (1 January 1973). The development of the concept of citizenship in EU law meant that Irish citizens came to rely on their rights as EU citizens in the event of any dispute with the Home Office and were excluded from the automatic deportation regime.
Brexit removes this additional protection from Irish citizens and leaves them vulnerable to immigration control if they entered the UK from anywhere apart from Ireland or qualify for automatic deportation.
There is also the question of when Irish people legally become “settled” in the UK, which can be important for nationality purposes. Professor Bernard Ryan has explained on this blog previously that:
Irish citizens are treated as ‘settled’ in the United Kingdom from the date they take up ordinary residence. This permits Irish citizens to naturalise after five years’ continuous residence, and enables their children born in the United Kingdom to acquire British citizenship from the date of residence.
But, he writes, there is no obvious legal basis for this either. If this, too, is simply a matter of government policy with no legislative backing, that policy can always be changed. Only last week, a Belfast-based solicitor wrote to Free Movement as follows:
I had an appeal at the First Tier Tribunal in Belfast this morning and the Home Office presenting officer stated that the Home Office does not accept that Irish citizens are settled in the UK. We made our submissions to the contrary and a break was given, he then reiterated in his submissions that they do not accept Irish citizens are settled in the UK and that their right to reside in the UK falls under EU law and is a matter of evidence.
This may well be an isolated incident, but would surely have been avoided were the legal position beyond doubt.
Legislating to firm up Irish citizens’ rights
In reality it is extremely unlikely that a British government would seek to enforce immigration controls against Irish citizens, not least because the Irish government makes a reciprocal concession in favour of British citizens. This perception is reinforced by the government’s longstanding position that it regards Irish citizens as a special, privileged group within the category of EU citizens.
However, the government is wrong that all Irish citizens have a right of residence in the UK. It will be necessary for Parliament to legislate in various ways to resolve some of the anomalies in the position as it stands.
First, as we have seen, not all Irish citizens are covered by the exemption from immigration control in section 1(3) of the 1971 Act. In order to establish a overarching legal right of free movement for Irish people, this Act could be amended to provide that Irish as well as British citizens have the right of abode in the UK. Alternatively, the general exemption from immigration control could be modified so as to be based on Irish citizenship rather than movement from Ireland.
Section 32 of the UK Borders Act 2007 could be amended so that the definition of “foreign criminals” subject to automatic deportation excludes Irish as well as British citizens. That would permit the Home Secretary to continue operating the existing policy of only deporting Irish citizens in “exceptional circumstances”.
And legislators could explicitly address the question of when Irish people legally become settled in the UK for the purposes of British nationality law.
Better safe than sorry
Unless there is a change in the law, Irish nationals are likely to apply for settled status in the same way as other EU citizens to clarify their position. For most Irish citizens the legal problem created by Brexit will have little practical impact on their lives, but nevertheless it would be better for UK immigration law to clearly and unequivocally recognise the close relationship between the UK and Ireland.