Immigration Scheme for Non-EEA Family Members of British Citizens: An Information Note

Information for British Citizens and their Non-EEA family members living in Ireland or intending to live in Ireland

Stephen Kirwan of our Immigration and International Law team analyses some of the implications for various categories of Non-EEA Family Members of British Citizen Residing or Wishing to Reside in the Jurisdiction Post-Brexit.

The Withdrawal Agreement between the United Kingdom and the European Union entered into force on 1^st February 2020 with the transition period for its implementation officially commencing on the 31^st December 2020. To deal with this unprecedented situation the Immigration Service Delivery have offered guidance to the various categories of those effected. This short blog post offers an insight into how some of those effected categories will be dealt with by the immigration authorities.

Rights of British Citizens to Reside in Ireland

The rights of British citizens to reside in Ireland remains unchanged. British citizens are not considered ‘non-nationals’ for the purpose of Irish immigration law and will continue to enjoy arrangements under the Common Travel Area including the freedom to live in the State after the United Kingdom leaves the European Union.

Rights of Non-EEA Family Members of British Citizens Exercising Free Movement Rights and Already Residing in Ireland

Family members of British citizens who exercised their rights of free movement to Ireland pursuant to Directive 2004/38/EC and who held a valid Irish Residence Permit Card (IRP Card)prior to the 31^st December 2020 will continue to retain their right to reside in Ireland.

However there is an obligation on all of the eligible applicants to exchange their IRP Card through the INIS online renewal system prior to the 31^st December 2021.  When making this online application applicants are obliged to:

-Confirm that you have been exercising EU Treaty Rights to reside in Ireland on or before 31 December 2020 and continue to do so

-Submit their current valid IRP card which will be exchanged with a new one

Applications for Residence Cards Made by Non-EEA Members of British Nationals Exercising Free Movement Rights Prior to 31^st December 2020

The Department of Justice have confirmed that they will continue to process applications from non-EEA family members of British citizens resident in Ireland even if a final decision is not made until after the end of the transition period.[1] Successful applicants will be issued a Stamp 4 residence permission and not a Stamp 4 EUFam permission.[2]

Applications Made by Non-EEA Members of British Exercising EU Treaty Rights After 1^st January 2021

The Minister for Justice has also published a Scheme in relation to Non-EEA Family Members of UK Citizens intending to reside in the State[3] (herein ‘the Scheme’). British citizens who have moved to reside and work in Ireland and who wish to be joined by their Non-EEA family members from 1^st January 2021 onwards will have their family members applications considered and assessed under this newly published scheme.

Following the end of the Brexit transition period on 31^st December 2020, all non-EEA family members of British nationals seeking to join, or accompany, their British national family member in Ireland will need to obtain ‘prior sanction’ and must be ordinarily resident outside the State prior to making an application.[4] Importantly this scheme applies to both visa required and non-visa required nationals and must be gone through before travelling to Ireland

Minimum Residence requirement for British Citizens:

There is no minimum residency requirement of a British citizen[5]

Eligible applicants and financial requirements

Eligible family members are specifically listed under the Scheme are listed as follows:

Category 1: Spouse, civil partner or de facto partner

Category 2: Dependent child of sponsor, of spouse; of civil partner; or of de facto partner up to age of 22

Category 3: Elderly dependent parents of sponsor; of spouse; of civil partner; or of de facto partner.[6]

Financial thresholds:

In relation to all of the categories the Scheme notes that in to sponsor any of the abovementioned categories non-EEA national family member a UK citizen must not have been totally or predominantly reliant on social protection benefits in the State or to equivalent benefits in another State for a continuous period of at least 2 years prior to the application.[7]

Category 1: Spouses/de facto partners:

The Scheme notes that the sponsor must have earned a gross income in each of the 3 previous years in excess of that applied by the Department of Social Protection in assessing eligibility for Working Family Payment when applying for spouses/de facto partners.[8]

The Scheme further there if the couple have no children the minimum level of assessable income for couples without children is €20,000 per annum, over and above any entitlement to State benefits.[9]

Category 2: Dependent Children of the Citizen or Citizens Spouse/Partner

The Scheme requires that a sponsor who wishes to reside with their dependent children in the State requires the net assessable income per week for their family size as set out by the Department of Social Protection in assessing eligibility for the Working Family Payment.[10]

Category 3: Applications for Elderly Dependent Parents

Similar to the Policy Document on non-EEA Family Reunification published in 2016 Policy a sponsor will be required to have earned in each of the 3 years preceding the application, an income after tax and deductions of not less that €60,000 per annum in the case of one parent. €75,000 per annum applies where two parents are involved in order to benefit under the Scheme.

The expectation is that this minimum level of income will be maintained for the duration of any permission granted under this Scheme. Where such income levels are not maintained, permission may not be renewed under the Scheme. At the date of application, the sponsor is also required to show that he/she is capable of earning a sufficient level of income to support his/her dependent family members for the duration of their proposed residence in the State.

Main additional requirements:

The Scheme also notes that applicants will be required to hold private medical insurance from a company authorised by the Health Insurance Authority for the duration of their time in the State.[11] A duty is also placed on an Applicant to provide a police clearance certificate or equivalent, not more than 6 months old for each country they have resided in within the past five years.[12]

Conclusion:

The publication of a new Scheme as well as detailed guidance note from Immigration Service Delivery will act as a welcome relief to the family members of many British Citizens seeking to reside in Ireland.

Should you or a family member wish to re-locate to Ireland or to clarify the law in the area do not hesitate to contact Stephen Kirwan of this office at 01-6790780 or at stephen.kirwan@kodlyons.ie

 

[1] Impact of Brexit on UK Nationals and their non-EEA family members residing in Ireland: Frequently Asked Questions (inis.gov.ie)

[2] ibid

[3] Policy Document: Brexit Scheme for Non-EEA Family Members of British Citizens seeking Immigration Permission in the State (inis.gov.ie)

[4] Ibid 1.4

[5] Ibid

[6] Ibid 1.2

[7] Ibid 4.4

[8] Ibid 4.5

[9] Ibid 4.5

[10]Ibid 4.6

[11] Ibid 4.12

[12] Ibid 4.13