The position of Irish nationals is unique
in UK law.
By way of background, on the Republic of Ireland’s
(ROI) separation from the United Kingdom, and then the
Commonwealth of Nations, it was decided by Parliament that
Irish nationals in the UK would retain certain rights not
available to other foreign nationals. This was really a
practical point – there were millions of Irish
nationals in the UK, as there are now, and it would simply
have not
been possible to treat them all as aliens. Further to
this, it would not have been possible to restrict movement
due
to the ease of passage between the ROI and Northern Ireland.
As a result, the UK and the Republic of Ireland (and
a number of other regions) formed what is known as the
Common
Travel Area. This confers upon Irish nationals the right
of free movement throughout the UK, and gives them the
right to vote in UK elections, a right which is unique
for non-Commonwealth nationals. This is the reason that
Irish nationals in the UK or coming to live in the UK
are treated as UK permanent residents for immigration
purposes.
When Ireland and the UK joined the Common Market,
and
subsequently both countries signed the Maastricht Treaty,
this conferred
upon Irish nationals the same rights of freedom of
movement that other EU nationals and their families
have.
So, we are left with a situation whereby Irish nationals
have a choice of whether to use UK or EU law when making
immigration applications.
UK Law
If you are an Irish national in a relationship with
a non-EEA national, and you both wish to settle in
the
UK, within
UK law you can apply for the fiancée visa (to marry
in the UK) or the spousal visa (if you are already married
by the time of your application). The Irish national will
be treated as someone with ILR for the purposes of this
application. You will need to meet the immigration rules
(maintenance, accommodation, etc) and the Irish national
should also show their intention to reside/continue to
reside in the UK. However, simply showing evidence of a
job or accommodation in the UK is sufficient.
The application will cost the usual visa fee (currently £585)
and will confer upon the applicant the usual period of
leave (6 months for fiancée, 27 months for spouse).
Because of changes to UK immigration law which will be
brought in in June 2011, we don’t actually know what
the applicant will have to do to be granted permanent residency
or probationary citizenship, but we expect that an applicant
will have to be made to extend status within the 27 month
period of a spouse visa, and that there will be some form
of ‘earned citizenship.
EEA law
If the Irish national wishes to use EU law to bring
their partner to the UK, then the process is the
same as with
any other EU national. An application can be made
for an EU family permit, if they are already married
or
have co-habited
for two years. The application is free of charge,
and theoretically the application should be more
straight
forward. Because
of the ‘Metock’ ruling, maintenance and accommodation
tests do not need to be met, so this is a better option
for those who have no job lined up in the UK. Also, the
application can be made in any EU country and should be
fast-tracked.
If the couple are merely engaged to be married then
the fiancée visa is the only option at this stage.
Once in the UK, the non-EEA spouse should apply for
a residence card within 6 months of entry. This is
also
free of charge,
and although it is not mandatory it will make life
easier as this card is the best way to prove the
right to be
in the UK and the right to work. Approval is usually
a formality.
If the non-EEA partner has come to the UK as a fiancée,
they must of course marry before they apply for the residence
card. No Certificate of Approval is necessary to marry.
If coming to the UK under the EU provisions, permanent
residency will be given after 5 years, and no Life
in the UK test is needed for this. Even if no application
is made,
both the Irish national and their partner will be
deemed to have permanent residency after 5 years.
12 months
after PR is granted (or deemed to have been granted)
both the
Irish national and their spouse can apply for citizenship.
A life in the UK test is needed for this.
If the Irish national and their spouse divorce within
the five years, they may be entitled to remain if
they are
deemed to have retained the rights of residency.
In order to qualify for this they need to have been
married
for
three years before divorce proceedings began, and
they need to have been living in the UK for 12 months
during
the marriage. If there are children, they need to
be in the custody of the non-EEA national. There
is no
right of residence available for unmarried partners.
Summary
In summary, there are pros and cons to each route.
If money is a consideration, the EEA route is likely
to
be the best.
If a swifter route to ILR, and not wanting to be
without your passport for a long period of time are
main issues,
then the UK route may be the best option. We advise
that every Irish national thinks carefully and weighs
up all
of the options before deciding which is the best
option for them, as there is certainly no right or
wrong answer
to this. It is important to note that it is usually
not possible to change routes, so, if you enter the
UK as
the spouse of an EEA national, you can’t then apply for
ILR after two years on the grounds that your spouse is
also a UK permanent resident. So once you have decided
on the route, it is usually the case that you must stick
to this. There are exceptions for Unmarried Partners, but
this should be discussed with an immigration practitioner.
Throughout this document we refer to ‘Ireland’ and ‘Irish’ as
shorthand for the Republic of Ireland and holders of
citizenship of the Republic of Ireland. The guidance
does not apply to those in Northern Ireland who are UK
nationals only; however, those born in Northern Ireland
may be automatically entitled to citizenship of the Republic
of Ireland on application.
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