It has seemed in recent years that the UK Home Office has been unwilling to offer much in the way of concessions on immigration rights. However, in relation to Northern Ireland, two significant compromises have been made by the British Government in 2020 alone. Firstly there was the ‘olive branch’ contained within the New Decade New Approach in January. And secondly, there was a change of immigration policy following the lengthy case against the British Home Office brought by Northern Ireland national Emma DeSouza regarding the residency rights of her US-born husband, Jake.
‘The New Decade, New Approach Deal’, was drafted jointly by Rt Hon Julian Smith CBE MP, Secretary of State for Northern Ireland, and Simon Coveney TD, Tánaiste and Minister for Foreign Affairs and Trade. The ‘deal’ was intended to lay the basis for the restoration of the devolved Government in Northern Ireland and, of particular significance, offers an olive branch for family migration arrangements in the context of the Good Friday Agreement. The text states:
“The [UK] Government has reviewed the consistency of its family migration arrangements, taking into account the letter and spirit of the Belfast Agreement and recognising 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”.
In practical terms, this move by the British Government means that many from Northern Ireland will be able to sponsor non-European family members under the EU Settlement Scheme. It does not, however, fully align with the intent of the 1998 Good Friday Agreement (also known as the Belfast Agreement), which states recognises 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, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”, i.e. that people of Northern Ireland are not automatically British.
Emma DeSouza’s case started in 2015 following a refusal by the British Home Office to provide permanent residency to her husband. Core to this case is that Ms. DeSouza has been fighting to be recognised as Irish; a right conferred on her in the Good Friday Agreement. The Home Office had refused the application on the grounds that she is British and hence requested that she either reapply for permanent residency for her husband as a British citizen or renounce her British citizenship and then reapply as an Irish citizen. Ms. DeSouza challenged the refusal on the basis that she had never held a British passport and she was legally permitted to identify as Irish, British, or both.
In advance of the appeal hearing which was due in June 2020, a Statement of changes to the Immigration Rules was issued by the British Government in May 2020, confirming that those who are a ‘relevant person of Northern Ireland’ will now be included in the definition of an EEA citizen. This means that Ms. DeSouza’s husband can now apply under the EU Settlement Scheme, and hence will be able to legally remain in Northern Ireland. Furthermore, this now means that all people born in Northern Ireland, whether Irish or British, will be treated as EU citizens for purposes of UK immigration policy. In response to the decision, Ms. DeSouza expressed her considerable relief; “This is great news. To get a concession from the British Government and a change in the immigration law is no small feat. It is incredibly satisfying to be considered as EU citizens and will be a great help to all the other families in my situation”.
While the news was viewed as a positive step, it does have limitations. Firstly, the EU Settlement Scheme is finite and will close to applicants on 30th June 2021. Secondly, the decision still does not give full effect to the Good Friday Agreement. Ms. De Souza stated, “While this is satisfying, it has not given legal effect to the Good Friday Agreement right to be Irish. Ireland updated its immigration laws to bring them into line in 1998 but the British did not,” said de Souza. “It is still an uphill battle”.
In addition, Sinn Féin senator Niall Ó Donnghaile said of the decision, “many of us are concerned, however, with the time-limited nature of today’s announced changes – they only run until the end of the transition period – and more broadly with the British government’s continued failure to address our citizenship and identity rights by codifying the GFA provisions within their own domestic law”.
As confirmed by the Home Office, the new immigration rule changes mean that family members of British or dual British-Irish citizens from Northern Ireland can apply under the EU Settlement Scheme. The Home Office stated, “this delivers on the commitment the UK government made in the ‘New Decade, New Approach’ agreement in January 2020 which restored the power-sharing executive in Northern Ireland”. Applications under the new arrangement will commence on 24th August 2020, and will only be open to those living in the country at the end of the Brexit transition period (currently set for 31st December 2020). Given the number of recent changes of government policy in relation to Northern Ireland, it is highly recommended that anyone wishing to secure residency rights for family members in the country seek the guidance of our immigration Solicitors.
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