The special immigration status that Irish citizens enjoy in the UK, and how this may be affected post-Brexit

The Common Travel Area (“the CTA”) is a travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. Irish nationals have a special status in UK law which is separate to and pre-dates the rights they enjoy as EU citizens under the CTA. 

The Republic of Ireland is not considered to be a ‘foreign country’ for the purpose of UK laws, and Irish citizens are not considered to be ‘aliens’. A common term seen when applying for US visas. Further under the CTA, Irish citizens are treated as if they have permanent immigration permission to remain in the UK from the date they commence their ‘ordinary residence’.

Nationals of CTA countries can travel freely within the CTA without being subject to passport controls. The arrangements for non-CTA nationals are more complex.  The Republic of Ireland and the UK maintain their own visa and immigration policies and there is a significant degree of practical cooperation and policy coordination in order to ensure the security of the CTA.

The UK and Irish Governments have confirmed that the Common Travel area will continue post-Brexit. Both governments signed a Memorandum of Understanding in May 2019 guaranteeing no changes will take place between the rights of British citizens in Ireland and Irish citizens in the UK as a result of Brexit.  

While the Memorandum is not legally binding, both Governments committed to take the necessary legislative measures to give it legal effect.

EU Settlement Scheme (the “EUSS”)

The Government has implemented the EU Settlement Scheme which gives EEA citizens residing in the UK a new immigration status in the UK after Brexit. 

The Government has advised that Irish citizens are not required to apply for status as their residence is guaranteed under the CTA after Brexit. The Johnson Government announced a new Immigration Bill in the Queen’s Speech on 14 October 2019.

The briefing notes for the Queen’s Speech suggest that the Bill will contain provisions to “clarify the immigration status of Irish citizens…this means that Irish citizens will generally not require leave to enter or remain in the UK”.   

Non-Irish and non-British family members of Irish citizens living in the UK will generally need to apply to the EUSS, even if their Irish citizen family member chooses not to apply under the scheme. They will need to prove that their Irish citizen ‘sponsor’ has been residing in the UK prior to 31 December 2020.  Dual British/EEA citizens, including dual British/Irish citizens, are ineligible to apply for EUSS.

Hilary Lennox specialises in international human rights and family law. Hilary is instructed to bring cases on behalf of individuals before the European Court of Human Rights most recently against Ireland. She speaks French, Spanish and Irish.