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The Home Office has confirmed that Irish citizens living in the UK are considered “settled” for the purposes of immigration law. The department said that officials in individual cases who had denied that Irish citizens were settled as soon as they took up residence in the UK were wrong to do so, and that it had send out guidance to ensure that decision-makers are aware of the correct position.
Irish nationals are treated differently in UK immigration law to any other nationality, as the Common Travel Area joins the UK and Republic of Ireland in a free movement zone independently of the European Union. This special status includes an Irish citizen being considered “settled” — having legal permission to live in the UK permanently unless deported for a criminal offence — as soon as they take up ordinary residence here.
Last month, however, a solicitor based in Northern Ireland contacted Free Movement about an immigration appeal in the First-tier Tribunal in Belfast. In the course of the appeal, the Home Office presenting officer claimed that Irish citizens may be settled, but only as a matter of EU law and if they fit the criteria.
— Conor James McKinney (@mckinneytweets) July 20, 2018
While, in practice, the issue of being settled or otherwise would not affect the rights of the vast majority of Irish people to continue living and working in the UK, it can be important in particular situations. The denial also called into question the Home Office’s commitment that Irish citizens will experience no change in their circumstances after Brexit.
The department has now moved to clarify the official position. It now says:
[application]
I can confirm that both the decision maker and Presenting Officer were wrong to say that your client’s child is not considered to be settled for the purposes of the Immigration Rules.
Irish citizens have a special status in the UK. The rights of Irish citizens in the UK are rooted in the Ireland Act 1949 but also provided for in subsequent legislation. These rights include the right to enter and remain without being subject to a requirement to obtain permission. Irish citizens are treated as settled from the date they take up ordinary residence in the UK. They are considered to be settled as they are free from any restriction on the period for which they may remain-paragraph 6 of HC 395.
The rights of Irish citizens will be protected as the UK leaves the EU. The Home Office Statement of Intent for the EU Settlement Scheme issued on 21 June 2018 stated:
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.
Please accept my apologies for this error and in order to prevent a mistake of this nature happening again an instruction on this issue has been reissued.
The solicitor involved, who prefers to remain anonymous, told us that “while I am relieved to have the Home Office position on Irish citizens clarified I have to express serious concern about the competence of Home Office representatives. We all know the catastrophic effects that a refusal can have and it is not acceptable that caseworkers and presenting officers are making these fundamental errors”.
CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.
