Details on Pre-Clearance Scheme for UK Nationals’ Non-EEA Family Members Published

The situation

The Irish authorities have now published full details of new pre-clearance scheme regarding non-European Economic Area (EEA) family members of UK citizens arriving after December 31, 2020, including a detailed policy document.

A closer look

Some of the main features of the scheme are:

• Applicability. It applies to both visa and non-visa non-EEA nationals.
• Lengthy processing time. The processing time is up to six months.
• No residency requirement for sponsorship. There are no minimum Irish residency requirements for UK citizens seeking to sponsor a non-EEA national family member.
• Income requirement. The UK citizen must not have been totally or predominantly reliant on social protection benefits in Ireland (or equivalent benefits in another State) for a continuous period of at least two years prior to the application. In addition, the UK sponsor must have earned a certain gross income in each of the three previous years. The minimum for couples without children is EUR 20,000 per annum, and this amount will be higher depending on the family size.
• Application location. Applications can only be made from outside Ireland, from the applicant’s country of legal residence, and applicants must remain outside Ireland while their application is being processed. However, it appears that non-EEA nationals who are already in Ireland on the basis of another immigration permission (e.g. student, employment permit holder etc.) should be able to switch status in country if they have a qualifying UK family member. This would not apply to visitors, who must leave and apply from outside Ireland.
• Authority discretion. There is no automatic entitlement to family reunification and the Irish authorities will have full discretion to grant or refuse applications. However, access will be facilitated as far as possible based on the status of the sponsor.

Background

EU Free Movement provisions will no longer apply to UK citizens from the end of the Brexit transition period under the Withdrawal Agreement on December 31, 2020.

While UK citizens have an unrestricted right to reside and work in Ireland due to the Common Travel Area arrangements, a new scheme under Irish domestic law is now necessary to allow UK citizens who wish to reside in Ireland starting January 1, 2021 to be joined by family members who are non-EEA nationals, as there was no scheme in place for this group.

Impact

The terms of the scheme are clear and give much-needed certainly to UK nationals and their non-EEA family members arriving after December 31, 2020. In addition, the policy document confirms the type of immigration permission/”stamp” that the dependent will receive, depending on the category of dependent.

However, the lengthy processing times are likely to be problematic for affected individuals and their employers. Notably, non-EEA spouses of UK citizens must undergo this exhaustive and lengthy pre-clearance procedure. In contrast, spouses of Critical Skills and Intracompany Transferee Employment permit holders (who would also be non-EEA nationals), can join the principal worker almost immediately via a much more straightforward process.

Looking ahead

This new pre-clearance process is in line with the Irish government’s efforts to move to online applications generally, although family-based applications (such as applications under this scheme) are likely to continue to require submission of hard copy documents even if the applications are initiated via an online portal. However, employment-based applications for non-EEA principal workers continue to be virtually paperless.

As noted above, the lengthy processing times announced for this scheme are likely to be problematic, and not in line with the processing times of dependent applications where the sponsor is a non-EEA Employment Permit holder. It is hoped that these processing times will be shorter in practice – Fragomen will report as the situation develops.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].