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‘Relevant people from Northern Ireland,’ and the EU Settlement Scheme

– a week on

Last week saw the implementation of the amendments to the immigration rules applying to EEA citizens and their family members under the EU Settlement Scheme.  In simple terms non-EEA family members of ‘relevant’ people from Northern Ireland can now apply for leave to remain / indefinite leave to remain in the UK, otherwise known as pre-settled or settled status.  Here our immigration solicitor, Sarah Henry, provides a brief overview of our experience of this new route to settlement.

So, who is a ‘relevant’ person of Northern Ireland?’

The purpose of the amendments under the scheme, is, if only for a temporary period, to allow people here who are British, Irish or both to access similar rights to family reunification as those afforded to Irish citizens in the UK.  In this context, ‘Irish citizen’ refers to those EEA citizens born in Ireland who are not also entitled to British citizenship as those born in Northern Ireland are entitled to claim.  An Irish person living in Northern Ireland, would be able to apply for an EEA Family Permit (under Directive 2004/38EC) for their non-EEA family member to join them and reside with them in the UK.  A person born in Northern Ireland, in recent years, would have been prevented from accessing these rights granted to them by virtue of their membership of the European Union, because they were also deemed to have held British citizenship.  British citizens are generally not able to rely on EU Treaty Rights within the UK (there are some exceptions to this rule.)  To access these rights, many people from Northern Ireland sought to renounce their British citizenship so that they could bring their non-EEA family members into the UK on the same terms as an Irish person or indeed someone from another EU member state. This is no longer something they have to consider if they choose to apply to the EU Settlement Scheme. Now, people from Northern Ireland hold a unique status within the UK as they can access a more favorable route for their family members to live with them, outside the more restrictive domestic family reunification route that applies to British citizens who were not born in Northern Ireland.

Irish citizens, including those born in Northern Ireland, do not have to apply to retain their right to reside in the UK,  as their rights to travel and reside within the UK are protected outside of the scheme, however they may apply if they wish.  Some of our clients who are ‘relevant people’ for the purposes of the scheme, will apply when sponsoring their family member but they do not have to.  The non-EEA applicant family member can apply regardless once the relationship with the sponsor has been established and can be evidenced.

A ‘relevant person of Northern Ireland,’ Is defined in Annex 1 to Appendix EU as a person who both:

 (a) is:

(i) a British citizen; or

(ii) an Irish citizen; or

(iii) a British citizen and an Irish citizen; and

(b) was born in Northern Ireland and, at the time of the person’s birth, at least one of their parents was:

(i) a British citizen; or

(ii) an Irish citizen; or

(iii) a British citizen and an Irish citizen; or

(iv) otherwise entitled to reside in Northern Ireland without any restriction on their period of residence

All clear? In theory maybe but when it comes to providing documentary evidence to support a claim to be a relevant person of Northern Ireland, it’s not always straightforward. The guidance for caseworkers states that ‘the most reliable evidence that a person’s parent was a British citizen at the time of the person’s birth will be the parent’s British passport which was valid at the time.’  The same is true for someone who had an Irish parent at the time of their birth.  A passport.

The Home Office responded as follows to our request for further information as to documentation required in these cases:

To prove that one of your sponsor’s parents was British citizen and/or an Irish citizen at the time of their birth, you can provide:

 

  • Their parent’s passport which was valid at the time
  • Their parent’s certificate of citizenship/naturalisation

 

Many clients will not be able to present a parent’s passport that was valid at the time of their birth.

Upon further review of the caseworker guidelines, it would seem that a valid birth certificate should be acceptable. Assessing this evidence, i.e. deciding whether a person’s parent was Irish or British at the time of their birth will ‘depend on the rules in force at the time.’

Caseworkers are directed to the Irish Department of Foreign Affairs website or to the ‘British Citizenship: automatic acquisition guidance,’ to help them figure all of this out.  We have yet to encounter Northern Irish sponsors who have to establish that their parents were ‘otherwise entitled to reside in Northern Ireland without any restriction on their period of residence at the time of the person’s birth,’ but that is for another day!

With the announcement of the amendments to the immigration rules in May 2020 following the successful campaign led by Emma and Jake DeSouza, some eager applicants went ahead and applied for status through the scheme before this route opened on 24th August 2020.  We have been advised that the Home Office is working to create a ‘policy’ covering such applications which will include options to reapply or to continue the application in some way.  We await further clarification on this point.

Most applications, particularly those made within the UK (i.e. both the relevant person from Northern Ireland and their family member is in the UK) should be straightforward.  Practitioners will be faced with a range of possible scenarios leading to applications that could go in under this new route. Some typical scenarios might include:

(*sponsor refers to the relevant person of Northern Ireland)

  1. Sponsor and family member who is residing in the UK under a different immigration status (leave to remain based on family, working visa etc)
  2. Sponsor and family member who is in the UK on a visitor visa extended because of Covid-19
  3. Sponsor and family member in UK on a visa waiver (Covid-19 related)
  4. Sponsor and family member in the UK where family member does not have any lawful status
  5. Sponsor and close family member living in Republic of Ireland relocating to the UK (NI in most cases)
  6. Sponsor in the UK and family member residing overseas intending to join sponsor in the UK
  7. Sponsor and family member (spouse/children) residing overseas, not having resided in the UK for many years and certainly not within the last 6 months
  8. Sponsor and unmarried partner (other family members) residing in the UK / outside the UK

The Home Office has advised that until such time that an individual is able to submit a valid application through the EU Settlement Scheme, they should ensure that they always remain fully compliant with the immigration rules.

Each of the scenarios outlined above present certain anomalies and questions that may need further clarification and guidance and I won’t address each of these in turn here. We have been active in trying to access further information on behalf of our clients particularly those who are overseas but intending to relocate (normally as a family) to the UK through the EU Settlement Scheme.  Such potential ‘sponsors’ and their family members are normally directed to look at the EU Settlement Scheme Family Permit but there seems to be confusion around whether such families can enter the UK together, or if the ‘sponsor,’ must enter the UK to establish residency, a requirement under the EU Settlement Scheme.

We are just over a week into this new route so we are still grappling with the practicalities of making applications however we are keen to follow developments and review uptake of the scheme when it is further established.  As it currently stands, people interested in applying for leave to remain through the EU Settlement must remember that the EEA citizen must be in the UK before 31st December 2020, and the deadline for applications is 30th June 2021.

For more information contact our immigration team:

enquiries@granitelegalservices.co.uk

 

 

 

 

 

 

Granite Immigration Law

Granite Immigration Law is part of Granite Legal Services which is a newly established business law practice in Newry City. Our solicitors are UK / Irish dual qualified. We have a dedicated immigration team working on individual and business immigration matters covering a wide range of matters from citizenship to employment permits and EU Treaty Rights.