The changes to the Immigration Rules today follow the commitments made by the British Government in the New Decade, New Approach agreement of 9 January 2020 and the earlier review promised by Theresa May into Irish citizens in NI being joined by their family members. These changes are driven by the legal challenge by Emma and Jake DeSouza, and related campaigning, over relevant UK law being incompatible with the Good Friday Agreement (GFA).
The Immigration Rules are secondary legislation. The part that has been amended is the same section that allows EU citizens and their family members to retain certain EU citizens’ rights under the EU-UK Withdrawal Agreement after Brexit. In practice, these rights are retained through application to the EU Settlement Scheme. In summary, under these changes to the Immigration Rules:
- The definition of a ‘relevant EEA citizen’ who is able to apply to retain such EU rights will be amended to include a ‘relevant person of Northern Ireland’;
- A relevant person of Northern Ireland is defined in line with the ‘the people of Northern Ireland’ under the two governments’ interpretation of this concept in the GFA;
- A relevant person of Northern Ireland is therefore a British citizen, an Irish citizen, or a dual British and Irish citizen who was born in Northern Ireland (and at the time of their birth had at least one parent who was a British citizen, an Irish citizen, or a dual British and Irish citizen; or who was otherwise entitled to reside in Northern Ireland without any restriction on their period of residence);
- This will mean that qualifying family members of the people of Northern Ireland will be able to apply for immigration status under the EU Settlement Scheme. Family members will be eligible to apply regardless of whether their family member is British, Irish, or a dual national;
- The changes will take effect on 24 August 2020. As the EU Settlement Scheme is open for a limited period, family members of the people of Northern Ireland will be required to apply before the deadline (currently 30 June 2021).
These provisions reverse the changes made in 2012 at the time of the introduction of the Home Office’s ‘Hostile Environment’ policy, which had blocked NI-born Irish citizens from exercising their EU rights to be joined by family members due to the Home Office treating all persons born in Northern Ireland as British, in conflict with the GFA. The rule changes, in accordance with the principle of equality of treatment for British and Irish citizens under the GFA, end this policy for now and also extend the same rights to be joined by family members to ‘the people of Northern Ireland’ who are British citizens.
For those who apply before the deadline, these EU rights can usually be retained for life. Once the scheme closes however the pathway will be closed off for new applicants. This is therefore a short term solution rather than one that addresses the retention of EU rights post-Brexit per se (in the context of people in Northern Ireland still being EU citizens or remaining entitled to be EU citizens by virtue of Irish citizenship). The new provisions do not address bringing British citizenship law per se in line with the GFA.