How Brexit affects UK immigration to Ireland
31 December 2020
As of 1 January 2021, British nationals visiting or working in the European Economic Area (EEA) will be restricted. With Schengen rules being introduced for visitors and work visas being required elsewhere in the EEA, we consider what the end of free movement looks like for British nationals looking to visit or work in Ireland and some further updates to Ireland’s immigration and work permit schemes.
Common Travel Area
Ireland has a unique relationship with the UK whereby the Common Travel Area (CTA) between Ireland and the UK (including Jersey, Guernsey and the Isle of Man) has existed since 1922 with its modern inception coming into force in 1952. The CTA is not and never has been reliant on Ireland’s or the UK’s membership of the European Union. It is based on legislation and bilateral agreements between Ireland and the UK. If an Irish or British citizen wanted to live or work in a part of the CTA, they were not required to take any action to protect their status or rights associated with the CTA.
Has the CTA been maintained?
In response to Brexit, the Government of Ireland and the UK signed a Memorandum of Understanding, reaffirming their commitment to maintaining the CTA in all circumstances. Through this Memorandum, both Governments committed to undertaking all the work necessary, including through legislative provision, to ensure that the agreed CTA rights and privileges continue to be protected.
Accordingly, the Irish legislature recently enacted the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020 (the Act). The Act is primarily designed to reduce the possibility of serious disturbance in the Irish economy in the event of Brexit. As part of the Act there is provision to maintain the integrity and operation of the CTA and to ensure that the rights associated with the CTA continue.
The operation of the CTA has been unaffected by Brexit and in fact the UK-EU Brexit trade agreement expressly states that the agreement is without prejudice to any arrangement made between the United Kingdom and the Republic of Ireland concerning the CTA.
There is agreement under Article 3 of the Protocol on Northern Ireland and Ireland that the UK and Ireland ‘may continue to make arrangements between themselves relating to the movement of persons between their territories’. It further states that the UK shall ensure that the CTA and the rights and privileges associated with it can continue to apply without affecting the obligations of Ireland under Union law.
Therefore, after 1 January 2021 Irish citizens and British citizens will continue to have the same reciprocal rights associated with the CTA. These include the right to work, study and vote, and access to social welfare benefits and health services. Irish and British citizens will be able to continue to travel freely within the CTA without seeking immigration permission from the authorities. The CTA has been unaffected by Brexit negotiations and there has been no change to the Irish or UK approach to immigration and travel that falls within the CTA rules. Consequently, British citizens will not be required to seek immigration permission from the Irish immigration authorities to travel to Ireland and there will be no routine immigration controls on journeys within the CTA post 1 January 2021.
Non-EEA family members and dependents of British nationals
In 2016, the Immigration Service Delivery (ISD) published its Policy Document on non-EEA Family Reunification (the Policy Document). The Policy Document outlines the circumstances in which certain categories of people may apply for residence in Ireland based on their relationship with some other person already entitled to live here. In accordance with the Policy Document, British citizens will have no automatic entitlement to have their non-EEA family member or dependent reside with them in Ireland. However, the Department of Justice has published the Scheme in relation to Non-EEA Family Members of UK Citizens intending to reside in the State (the Scheme). Under the Scheme a British citizen will be permitted to sponsor an application for permission for a specified non-EEA national family member(s) or dependent to reside with them in Ireland.
Under the Scheme, arrangements have been put in place by the Irish Government for non-EEA nationals who are a family member or dependent of a British citizen who as of 31 December 2020 hold a valid Irish Residence Permit (IRP) Card. These individuals will continue to hold the same residence rights to live, work or study in Ireland. They will simply be required to exchange their current valid IRP Card for a new one. This card exchange programme will apply from 1 January 2021 and be administered by the Immigration Service of the Department of Justice.
However, under the Scheme all non-EEA family members or dependents of British citizens who are seeking to join or accompany the British citizen to live in Ireland after 11pm on 31 December 2020 will need to apply for permission through a preclearance or visa scheme (depending on their nationality). Details of the Scheme can be found here. The Scheme applies to both visa required and non-visa required nationals. For individuals who are from a visa required country, the ISD has already confirmed that it won’t accept applications from a person who has come into Ireland on a visitor visa and then seeks to remain. The correct visa must be obtained before they travel. Individuals who are from non-visa requires countries must apply for preclearance before travelling.
In order to sponsor a specified non-EEA national family member or dependent, the British citizen must satisfy specific financial conditions set out in the Scheme. These financial conditions differ (and are subject to change) depending on whether the individual is married / in a civil partnership / in a de-facto relationship and for those who wish to be joined by their children. For those who do not have children, the net assessable income is €20,000. For those with children the net assessable income begins at € 27,092.00 for those seeking to reside with one child and is scaled up €68,016.00 for a family with 8 children.
In addition to these financial conditions, applicants are required to
- hold private medical insurance for the duration of their time in the State. The sponsor may include the family member in their group insurance scheme so long as this insurance plan covers the family member from the date of entry into Ireland at a level which provides for private healthcare for any period of hospitalisation in a private hospital; and
- provide a police clearance certificate or equivalent, not more than 6 months old for each country he/she has resided in within the past five years.
Further consideration will be given to the following in assessing the eligibility of the sponsor:
- the conduct of the sponsor;
- whether the sponsor has come to the adverse attention of An Garda Síochána or the immigration authorities;
- the capacity of the sponsor to support the non-EEA family member financially for the duration of their proposed stay in Ireland; and
- the closeness and genuineness of the relationship between the sponsor and non-EEA national.
Changes to the work permit application
Unlike other EEA Member States, the UK’s withdrawal from the EU will not affect the right of British citizens to work within the CTA. The associated rights and entitlements attaching to the CTA have been protected by the Act which include the right to work without being subject to any requirement to obtain permission. This means that British citizens won’t require a work permit to work in Ireland, and they will not require an equivalent to the recently introduced Frontier Work Permit in the UK to work in Ireland if they decide to primarily live in the UK.
While the CTA guarantees that British and Irish citizens will be able to work within the CTA without the need to obtain an employment permit, it does not remove the obligation of an employer to comply with the 50:50 rule under the Employment Permits Act 2006. This rule sets out that at the time of making an employment permit application, the Minister for Employment Trade and Enterprise must be satisfied that at least 50% of the employer organisation’s workforce are nationals of one or more EEA member state or the Swiss confederation, or a combination of both. Thankfully, the Act has amended this rule to ensure that employees who are nationals of the United Kingdom of Great Britain and Northern Ireland will be counted when calculating whether the employer organisation satisfies this rule.
Recognition of qualifications
In 2005 the EU adopted the Directive on Recognition of Professional Qualifications which allowed EA nationals to have their professional qualifications recognised in an EEA state other than the one in which the qualification was obtained.
The UK-EU Brexit trade agreement sets out guidelines for arrangements on the recognition of professional qualifications and does not provide that these are automatically recognised. However, the Memorandum of Understanding concerning the CTA includes a commitment on the part of the UK and Ireland to ensure that there is a continued mutual recognition of qualifications, including professional qualifications, as an essential facilitator of the right to work.
Brexit has substantial implications for immigration between the UK and the EEA/Switzerland (excluding Ireland). Businesses and individuals should ensure they have a plan in place for how to deal with the new immigration requirements that apply for EEA/Swiss (EEA) national workers and their family members from 11 pm on 31 December 2020, and for all other non-EEA national workers from 1 December 2020. Planning should also cover British nationals who are residing in the EEA, or who need to travel to the EEA from 11 pm on 31 December 2020.