At a time when border control is more stringent than ever and immigration laws are becoming more onerous, the Prime Minister, Boris Johnson, has announced a significant pledge to improve family reunion rights for the people of Northern Ireland. In the New Decade, New Approach agreement, the Prime Minister addressed the commitment to restore the power sharing executive in Northern Ireland and acknowledges the “birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose”.
The text of the agreement confirmed that:
“The Government has reviewed the consistency of its family migrant arrangements, taking into account the letter and spirit of the Belfast Agreement and recognizing that the policy should not create incentives for renunciation of British citizenship by those citizens who may wish to retain it.
The Government will change the rules governing how the people of Northern Ireland bring their family members to the UK. This change will mean that eligible family members of the people of Northern Ireland will be able to apply for UK immigration status on broadly the same terms as the family members of Irish citizens in the UK.
This immigration status will be available to the family members of all the people of Northern Ireland, no matter whether they hold British or Irish citizenship or both, no matter how they identify”.
So what does this mean for family members of Northern Irish people, and how does the UK Government’s new stance differ from its previous policy?
Since 2012, there has been an obligation for British nationals to meet a minimum income threshold in order to bring their non-European family members to the UK. The financial requirement obliges the British national sponsor to evidence an annual income of at least £18,600 in order for their spouse (or civil partner, unmarried partner, or fiancé(e)) to satisfy the Immigration Rules. For any additional children that are included in the application, the level of income required increases accordingly. Additionally, applicants under this route are required to pay a Home Office application fee and a mandatory Immigration Health Surcharge.
In contrast, the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) do not impose any minimum income or financial requirement on EU nationals or their family members who seek to reside in the UK.
The financial discrepancies between the Immigration Rules and the EEA Regulations have far-reaching implications for people who hold dual British and European nationality, and who would naturally seek to benefit from the more generous provisions of the EEA Regulations. This has particularly affected the people of Northern Ireland, many of whom identify as both British and Irish nationals.
In response to this, it was held in the case of McCarthy that dual nationals living in a country of their nationality, and who had not previously exercised Treaty Rights, could not rely on EU family reunion rights. Effectively, dual EU/British nationals are treated solely as British and have to apply for family reunion under the Immigration Rules, unless they had previously exercised Treaty Rights in the UK as European nationals. The effect of this judgment particularly impacted Northern Irish people who have not been able to rely on their Irish citizenship to sponsor family members. The only available solution for many Northern Irish people, therefore, has been to renounce their British citizenship.
The UK Government’s family reunion concession therefore comes as a victory for the people of Northern Ireland and their family members, who will now be able to apply for immigration status in the UK under the EU Settlement Scheme, without having to renounce their British citizenship. The changes will take effect on 24 August 2020 and will apply to any British citizen, Irish citizen, or dual British-Irish citizen who was born in Northern Ireland. The proposed changes will also apply to any qualifying Northern Irish person who is presently living in England, Scotland or Wales.
Whilst the family reunion concession does present some relief for people of Northern Ireland, the delay in its implementation poses important questions regarding the status of those family members whose current leave to remain will expire before 24 August 2020. If you are in this situation, please do not hesitate to contact us for further information.
The EU Settlement Scheme is open to all EU nationals and their family members who are residing the UK before 31 December 2020. All qualifying applicants must register on the scheme before 30 June 2021, or must alternatively apply under a specified immigration route in the same way as non-EU migrants.
Gherson has extensive experience with EU Settlement Scheme, EEA registration and permanent residence applications, and family reunion applications under the Immigration Rules. Should you require any assistance or advice with regards to an application under any of these routes, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2020
Immigration Consultant and Trainee Solicitor in our Private Client department