Irish nationals and relying on the Common Travel Area Entitlement for British Citizenship

In a couple of previous blogs we highlighted the position of Irish nationals in the UK. Irish nationals can reside in the UK under the Common Travel Area entitlement.

This, we say, is important in the context of Brexit, since now many EU nationals are considering their rights to reside and in many cases seeking documentation under the Immigration (European Economic Area) Regulations 2016.

The reason that EU nationals are doing this is often to simply confirm their existing status. In a significant number of cases EU nationals are seeking permanent residence cards because by virtue of the amended British Nationality (General) Regulations 2003 they will require this document before they can apply for British nationality.

But what about Irish nationals? Whilst part of the EU, Irish nationals can reside on the basis of the Common Travel Area, which permits citizens of the Irish Republic to enter the UK and remain without restriction. This flows from the Immigration Act 1971, which states under section 1: "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."

Other provisions within the British Nationality Act 1981, confirm the position. It is perhaps worth citing them in full. The provisions, under section 50A, relate to the requirement of an applicant for citizenship not have been in the UK 'in breach of the Immigration law':

"(4)A person is in the United Kingdom in breach of the immigration laws if (and only if) the person—

(a)is in the United Kingdom;

(b)does not have the right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971;

(c)does not have leave to enter or remain in the United Kingdom (whether or not the person previously had leave);

(d)does not have a qualifying CTA entitlement;

(e)is not entitled to reside in the United Kingdom by virtue of any provision made under section 2(2) of the European Communities Act 1972 (whether or not the person was previously entitled);

(f)is not entitled to enter and remain in the United Kingdom by virtue of section 8(1) of the Immigration Act 1971 (crew) (whether or not the person was previously entitled); and

(g)does not have the benefit of an exemption under section 8(2) to (4) of that Act (diplomats, soldiers and other special cases) (whether or not the person previously had the benefit of an exemption).

(5)For the purposes of subsection (4)(d), a person has a qualifying CTA entitlement if the person—

(a)is a citizen of the Republic of Ireland,

(b)last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and

(c)on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area)."

A couple of points arise from this. Firstly as can be seen the CTA entitlement is different from an entitlement to reside under the European Communities Act 1972. This is significant, since the British Nationality (General) Regulations 2003 only require a permanent residence card where the applicant "is relying upon a right of permanent residence in the United Kingdom by virtue of an enforceable EU right or any provision made under section 2(2) of the European Communities Act 1972." Logically so, since there is no 'Permanent Residence' card for Irish nationals living here under the CTA rules. 

Equally it confirms that it should be theoretically possible for an Irish national to apply without a PR card. There is however a big anomaly in respect of 'local journeys'. You will note that the CTA is only engaged when the individual arrives from a location in the CTA. How things work when an Irish family who have resided in London long term take their yearly holiday to France and return not via Ireland is not clear. Does that mean when they return they are not under the CTA? Do they fall then under EU law? When they visit relatives in Dublin and return are they back under the CTA? 

As far as I am aware, and I might be wrong, there are no Home Office documents addressing this. Its not hard to see a very complex mixing of statuses. 

The additional word of warning is that the Home Office appear, at least on their enquiry line, not to recognise the significance of the CTA for Irish nationals applying for UK citizenship. They have been advising all Irish nationals, in our experience, to seek PR cards. This may not be a problem for some, and I suppose the application is cheap, but it is complex and arguably not required. It might also be a problem for some, for example students without health insurance.

It conflicts somewhat with the Home Office's published guidance on Brexit. In summary "PLEASE DON'T APPLY WE CAN'T COPE!", the guidance states:

"Irish nationals

Irish nationals continue to have separate rights which allow them to be treated in the same way as British nationals in most circumstances."

If so, then why is the advice line saying get a PR card?

For Irish nationals, this particular issue has stirred some debate and we have had many enquiries. It is a very complex subject. I can speak from experience and say that I successfully acquired nationality for a client based on the CTA entitlement, but perhaps this was itself an anomaly (it was also some time ago). The difficulty is that the nationality application is very expensive, and if it is refused remonstrance will be equally expensive and time consuming. So it is a risk to try the argument, and Home Office policy does not seem to address it. 

Perhaps all this will be resolved, the continuation of the CTA is a hot potato politically and there are a lot of Irish nationals living here long term, and equally a lot of UK nationals living in the Republic. A solution must surely be in everyone's interests. There may be merit is simply waiting until the position is clear. As it stands anyone seeking to rely on the CTA entitlement would be advised to seek specialist advice. This quick blog is just intended to flesh out some of the background. I cannot say with certainty I am correct about this complex subject.