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How does Brexit affect Irish citizens in the UK?

How does Brexit affect Irish citizens in the UK?

The UK government’s policy is that Brexit will not affect Irish nationals at all. Other EU citizens have to apply for a new “settled status” or risk losing their right to live and work in the UK after June 2021. But the government’s position is that Irish people, whether existing residents or future migrants, have a general right to live in the United Kingdom which is entirely separate to their rights as EU citizens:

Irish citizens enjoy a right of residence in the UK that is not reliant on the UK’s membership of the EU. This means that Irish citizens do not need to apply for status under the scheme. Nonetheless, Irish citizens can make an application under the scheme, should they wish to do so.

That policy is reflected in the Common Travel Area. The government uses this term to mean much more than passport-free travel in the British Isles: it also encompasses the idea that Irish people “are treated as if you have permanent immigration permission to remain in the UK”. That includes the right to vote, work, claim benefits and use the NHS.

Perhaps the most important guarantee of Irish citizens’ unique position in UK immigration law is the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which exempts Irish citizens from immigration control.

Irish people are exempt from immigration control…

Section 2 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 provides that Irish citizens, like British citizens, may enter and remain in the UK without requiring permission (ie a visa) from the Home Office. It inserts a new section 3ZA into the Immigration Act 1971, which reads:

An Irish citizen does not require leave to enter or remain in the United Kingdom, unless subsection (2)(3) or (4) applies to that citizen.

Prior to the 2020 Act, there had been concern that existing legislation would not be sufficient to implement the government’s policy on Irish citizens. An earlier version of this article canvassed these concerns in some detail. The basic concern was that the exemption from immigration control in the Ireland Act 1949 no longer did the job it was intended to do because of changes in the legal landscape over the years.

Anyone interested in a detailed history of immigration legislation affecting Irish people in the UK should take a look at Professor Bernard Ryan’s work on the subject.

… with an exception allowing deportation

The major exception is for deportation. In ordinary language, deportation just means removing someone from the country because they have no legal right to be here, but in immigration law it has a more specific meaning: removing someone because they have committed a serious criminal offence or their presence is otherwise “not conducive to the public good”.

Section 3ZA goes on to state:

(2) This subsection applies to an Irish citizen if the Irish citizen is subject to a deportation order made under section 5(1).

In practice, the significance of this exception is limited. The UK government’s longstanding policy is that Irish citizens will only be deported in exceptional circumstances. Nobody has been deported to Ireland in the past three years at least.

There are matching exceptions, in subsections (3) and (4), allowing Irish people to be excluded from the UK, ie prevented from entering in the first place. Again, this is not a power that the UK government uses regularly, if at all.

Remaining concerns

Parliament’s human rights committee, in its report on the Bill that would eventually become the Immigration Act 2020, said that the Common Travel Area gives Irish nationals fewer legal rights than those they used to enjoy as EU citizens in the UK:

We are aware that not all of the current rights flowing from the Common Travel Area mirror the EU free movement of persons rights that exist pre-Brexit… whilst clause 2 of the Bill is welcome in that it seeks to ensure Common Travel Area protections for Irish nationals to enter and reside in the UK, the overall effect is that some existing EU rights are diminished…

The Bill does not address other EU free movement rights that currently exist relating to employment, education, health and social security. Some of these are covered in arrangements relating to the Common Travel Area, but this is not comprehensive and is patchy.

These concerns are canvassed in much greater detail in a November 2018 report on the Common Travel Area, commissioned by the Irish and Northern Irish human rights watchdogs. It says that while Irish citizens are in practice able to work, vote, access education etc in the UK due to a patchwork of existing laws and policies, these rights would benefit from being put into an international treaty.

The authors recommended a comprehensive Common Travel Area treaty that put all the rights of Irish citizens in the UK (and vice versa) into international law. Failing that, they said that bilateral agreements between the UK and Ireland on specific issues would be better than nothing. Since then, the two governments have agreed a memorandum of understanding on the Common Travel Area, as well as a social security treaty. Hopefully this will ensure that there are no practical problems for Irish citizens post-Brexit.

Irish citizens and settled status

The government has set up an application system for EU residents to get “settled status”, allowing them to continue living and working in the UK after Brexit. Irish citizens are in a unique position when it comes to the settled status scheme: unlike all other EU citizens, they may apply for it but do not have to. That is because:

  • On one hand, Ireland is part of the EU, and settled status is open to all EU citizens
  • On the other hand, Irish citizens already have the special treatment outlined above and do not need an additional guarantee of their rights

Irish citizens may wish to apply for settled status if they think it is a realistic possibility that the UK would change its laws or policies to deprive them of Common Travel Area rights in the absence of a binding treaty. Some legal experts, including one of the authors of the November 2018 report mentioned above, have recommended this course of action.

In particular, Irish citizens with non-European family members may find that applying will help their family member’s application. The non-EU family member of an Irish citizen can apply for settled status without the Irish citizen applying, but would have to show that the Irish citizen would have been granted settled status if they had applied. There are also special arrangements for Irish citizens from Northern Ireland who have non-EU family members.

The deadline for settled status applications is 30 June 2021.

This article was originally published in July 2018 and has been updated so that it is correct as of the new date of publication. CJ McKinney contributed.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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