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 marry 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 £515)
and will confer upon the applicant the usual period of
leave (6 months for fiancée, 2 years for spouse).
After two years in the UK as a spouse, the applicant
will be able to apply for ILR. However, unless the Irish
national is also a UK national, the applicant will not
be eligible for UK citizenship until they have resided
in the UK for 5 years and have had 12 clear months with
ILR. If the Irish national is also a UK national, then
the applicant can apply for UK citizenship after only
3 years residency and ILR for any length of time.
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 a fiancée or spousal visa. The application
is free of charge, and theoretically the application
should be more straight forward. However, in practical
terms, entry clearance on this basis is currently assessed
on the same basis as it is when applying under UK law,
so maintenance and accommodation tests still need to
be met. In some circumstances ECO’s are also demanding
that the Irish national and there partner have lived
in another member state for six months before allowing
the application – this is not a universal policy
but differs from UK mission to mission. It is also unlawful
and liable to be overturned at appeal.
Once in the UK, the non-EEA spouse must apply for a
residence card within 6 months of entry. This is also
free of charge, and usually takes six months to be approved,
however, approval is usually a formality. If the Irish
national applied for their residence card at the same
time then the application will usually take three months
or less. This can be confusing if the Irish national
is also a UK national, as it is unclear whether or not
a dual national can apply for a residence card of a country
they are also a national of.
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. This application may
also take 6 months to be approved; however, it is also
the case that, 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.
A Footnote on the Protectorates
Due to our complex history, the Common Travel Area includes
several British Protectorates, most significantly Jersey,
Guernsey, and the Isle of Man. Although closely associated
with the UK, these are sovereign states with their own
immigration laws, and the provisions in UK law for the
ROI are not applicable to these states.
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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