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In its June 2017 policy paper, the UK government specifically advised Irish citizens that they do not need to take steps to protect their entitlements, and that a person living in Northern Ireland can choose to continue to hold an Irish passport only.
Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements… We will continue to uphold in that context the rights of the people of Northern Ireland to be able to identify as British or Irish, or both, and to hold citizenship accordingly.
In an August 2017 position paper, the UK government again took the same stance, referencing the Ireland Act 1949.
The Ireland Act 1949 states that Ireland “is not a foreign country for the purposes of any law in force in any part of the United Kingdom”. … As a result of these historic arrangements, the reciprocal rights for UK and Irish nationals include:… the right to enter and reside in each others’ state without being subject to a requirement to obtain permission…
Neither paper discloses the legal reasoning behind these assurances. So, is the UK government right?
Section 2(1) of the Ireland Act 1949 states as follows:
It is hereby declared that, notwithstanding that the Republic of Ireland is not part of His Majesty's dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the United Kingdom or in any colony, protectorate or United Kingdom trust territory, whether by virtue of a rule of law or of an Act of Parliament or any other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, and references in any Act of Parliament, other enactment or instrument whatsoever, whether passed or made before or after the passing of this Act, to foreigners, aliens, foreign countries, and foreign or foreign-built ships or aircraft shall be construed accordingly.
To interpret the statement that Ireland is ‘not a foreign country’ it is necessary to understand the legislative context. The term ‘foreign country’ was used in the context of British nationality legislation and in then-prevailing immigration legislation. In the British Nationality Act of 1948 the term “foreign country” referred to any country other than the UK or a remaining UK territory, or a remaining Commonwealth country or the Republic of Ireland. Various consequences flowed from the distinction. For example, a person born within the UK and Colonies would become a citizen of the UK and Colonies (‘CUKC’) at birth unless their father possessed diplomatic immunity as an envoy of a foreign country. Also, a person born outside the UK and Colonies whose father was a CUKC by descent only would not in general acquire CUKC status, but if they were born in a foreign country their birth could be registered at a UK consulate within 12 months of the birth (or later with permission of the Secretary of State) – the registration would cause them to acquire CUKC. This route did not exist for those born in Commonwealth countries.
However, the legislation now underpinning UK immigration control simply does not make use of the concept of being a national of a foreign country. The position is dealt with by sections 1(1) to 1(3) of the Immigration Act 1971.
It is those who in the Act are expressed to have right of abode who are to be free from immigration control. The categories of people holding right of abode are set out in section 2 of the 1971 Act; as originally drafted this was to include certain categories of CUKCs (now mostly reclassified as British citizens) and Commonwealth citizens, but section 2 never made any use of the concept of “foreign country” at all.
Thus, the Ireland Act 1949 does not assist Irish nationals living in the UK. Ireland is not a foreign country, but neither is any country listed in Schedule 3 of the 1981 Act, which includes any Commonwealth country.
What is the position then of Irish nationals living in the UK? Are they in the same position as other European nationals?
In fact, their position is unusual, but not for the reason stated by the UK government, or to the same extent. The correct position based on section 1 of the 1971 Act is as follows. Arrival in the UK on a local journey from within the Common Travel Area (‘CTA’) is not subject to immigration control and those who so arrive do not require leave (permission) to enter. Arrival in the UK other than on a local journey from within the CTA is subject to control and those who so arrive do require leave unless they have right of abode, or are entitled to enter by virtue of an enforceable EU right. This is because of section 1(3) of the Immigration Act 1971:
(3) Arrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to control under this Act, nor shall a person require leave to enter the United Kingdom on so arriving, except in so far as any of those places is for any purpose excluded from this subsection under the powers conferred by this Act; and in this Act the United Kingdom and those places, or such of them as are not so excluded, are collectively referred to as “the common travel area”.
The general principle for entry to the UK via the CTA set out in section 1(3) is subject to the exceptions set out by order, currently in the Ireland Control Order 1972, however these do not apply to Irish citizens. Thus, Irish citizens who enter the UK from within the CTA do not require leave and are not subject to control. Irish citizens who enter the UK from other than within the CTA are currently able to do so as European citizens. In practice, since EU law gives them an unqualified initial right of entry for three months, Irish citizens are not stamped in at the border, and it is likely that they are not aware of any restriction on their permitted period of stay.
The operation of the CTA under the 1971 Act, and lack of effect of the Ireland Act 1949, has hitherto been concealed, since Ireland and the UK have always been part of the European Community, now the European Union, together. But from 29 March 2019 the situation must come to a head.
Current Home Office policy is that Irish nationals are treated as settled from the moment they take up residence:
Citizens of Ireland, whether exercising EEA free movement rights or not, are not normally subject to any form of immigration control on arrival in the UK because of Ireland’s inclusion in the Common Travel Area (section 1(3), of the Immigration Act 1971). (European Economic Area (EEA) and Swiss nationals: free movement rights, version 17.0, 20 October 2017)
As Professor Bernard Ryan has commented in a 2016 pre-referendum paper (ILPA EU Referendum Position Papers – The implications of UK withdrawal for immigration policy and nationality law: Irish aspects, 18 May 2016), “the precise rationale for this generous regime is uncertain, however, with neither the common travel area nor the Ireland Act 1949 appearing sufficient as an explanation.”
The Home Office policy itself only refers us back to section 1(3) of the 1971 Act. Clearly, a Home Office policy document, if founded on a legal mistake, simply cannot provide the proper legal protection. A December 2017 paper prepared by Simon Cox of Doughty Street Chambers on behalf of the Traveller Movement sets out the implications of this in detail, including the impact on the Belfast Agreement (Brexit and Irish citizens in the UK: How to safeguard the rights of Irish citizens in an uncertain future, The Traveller Movement, 4 December 2017.)
There will be legislative opportunities to make the required amendments. Primary immigration legislation will most likely be required prior to Brexit to implement the EU-UK Withdrawal Agreement. With the new immigration scheme for EU citizens scheduled to open to applicants on a voluntary basis from September 2018, it is hoped that the government will properly review the situation and take advantage of the time remaining before the UK leaves the EU to remediate the situation.