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A statement of changes to the Immigration Rules released on 14 May 20201 provides for specific family immigration rules for those born in Northern Ireland.

The statement follows the “New Decade, New Approach” deal between the governments of Ireland and the United Kingdom, as well as the political parties in Northern Ireland, which reinstated devolved power sharing in Northern Ireland.

The background to the changes:

Under the “Belfast Agreement” (often referred to as the “Good Friday Agreement”), anyone born in Northern Ireland is entitled to:

identify themselves and be accepted as Irish or British, or both, as they may so choose...2.

This created a situation where anyone born in Northern Ireland who asserted that he or she was an Irish citizen, could bring his or her non-EEA family members to the U.K. under the more favourable EU immigration rules, rather than the stricter U.K. immigration rules.

Since the McCarthy3 case, the U.K. position is that the Belfast Agreement did not amend British nationality law, and as such anyone born in Northern Ireland is a British citizen until he or she renounces British citizenship.  As a result of this position, a person born in Northern Ireland would be required to renounce British citizenship if he or she wanted to rely on the EU family immigration rules. This caused several issues which were highlighted in the recent DeSouza case4.

The “New Decade, New Approach” deal proposed to resolve the issue, and in relation to family immigration it set out the following:

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 [UK] 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 identify5.

What does this development mean?

The statement of changes announced on 14 May 2020 gives a legislative basis for the “New Decade, New Approach” provisions. These changes will take effect from 24 August 2020.

The statement of changes provides that the family members of those born in Northern Ireland (and who are entitled to British or Irish nationality by virtue of their birth in Northern Ireland) are now within the scope of the EU settlement scheme. As such, the immigration route will be available to the family members of those born in Northern Ireland, regardless of whether the person holds British or Irish citizenship. 

Consequently, a person born in Northern Ireland may be able to bring non-EEA family members to the U.K. under the more favourable EU immigration rules in comparison to those born elsewhere in the United Kingdom. In addition, any non-EEA family members of a person born in Northern Ireland who is already in the U.K., may make an application under the EU settlement scheme. Those born in Northern Ireland will not be required to renounce British citizenship in order for their family member to make an EU settlement scheme application.

The situation for those born in Northern Ireland and who are not automatically entitled to British or Irish nationality is more complex. They will not automatically be able to avail of the concessionary arrangements set out in the statement of changes. However, if at the time of their birth their parents resided in Northern Ireland without any restriction on their period of residence, they may be able to avail of these provisions.

KPMG NOTE

When making a U.K. family immigration application, employers and immigration practitioners should consider the unique circumstances of Northern Ireland. In particular, consideration should be given to whether a person was born in Northern Ireland before advising on or submitting an application.

FOOTNOTES

1 Statement of changes to the Immigration Rules: CP 232, 14 May 2020

2 The Belfast Agreement, 1998. Constitutional Issues, Section 1 (vi).

3 McCarthy v Secretary of State for the Home Department C-434/09.

4  De Souza (Good Friday Agreement: nationality) United States of America [2019] UKUT 355 (IAC) (14 October 2019).

5  New Decade, New Approach, page 48, paragraphs 13 – 15. 

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