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Irish person settled in UK - Need to apply for ILR?

Use this section for queries concerning applications on any of the EEA series of forms, and also for applications for EEA Family Permits.

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

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flann
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Irish person settled in UK - Need to apply for ILR?

Post by flann » Sun Jul 03, 2016 10:28 am

Hi there. Born in the republic of Ireland - hold an Irish (RoI) passport. Have lived and worked in the UK since 1995. Married with a child born in the UK (British Passport holder).

Question: Given the risks around the Brexit negotiations (i.e. that status of Irish citizens and the Common Travel Area), should I apply for British ILR / Passport?

If so, do I have to use the EEA-PR form or is there an alternative route for an Irish settled person? Am I subject to the requirement that I first apply for ILR/PR and hold this for 12 months before applying for a UK Passport? I assume I would still be required to do the Life-in-UK test?

I'm concerned about being without my only (Irish) passport for an extended period of time - likely that UK HO going to be overwhelmed in next few months with applications.

Thanks,

Flann.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by secret.simon » Sun Jul 03, 2016 10:56 am

Interesting question.

Irish citizens are assumed to be settled on arrival in the UK for the purposes of Section 1(1)(b) of the BNA 1981. That is to say that their children born in the UK are automatically British.

However, clear documentation on that for the purposes of naturalisation is thin on the ground.

Richard W has looked into this point in multiple posts and may be able to advise further on this specific point.

I advise the following course of action.

a) Check your older (pre-2000) passports to see if any of them have an ILR stamp. Assuming that you have not left the UK for any two year period subsequently, that ILR is still valid and you can apply straightaway for citizenship.

b) Gather proof of the earliest possible five continuous years period that you exercised treaty rights (by working, for example) and submit that to get your PR card. If that period predates 2015, you should be able to apply for citizenship directly after getting the PR Card.
flann wrote:Am I subject to the requirement that I first apply for ILR/PR and hold this for 12 months before applying for a UK Passport?
You are, unless you are married to a British citizen. However, if you have exercised treaty rights for any five consecutive years ending before 2015, you will have acquired PR before 2015 and hence would already have met the requirement of holding PR 1 year before application.
flann wrote:I assume I would still be required to do the Life-in-UK test?
Yes.
flann wrote:I'm concerned about being without my only (Irish) passport for an extended period of time
You can apply for naturalisation through NCS, which will take a copy of your passport and other documents and return them to you there and then. I believe that Ireland also does an Irish passport card that allows for travel within the EEA. You may wish to invest in that.
flann wrote:likely that UK HO going to be overwhelmed in next few months with applications.
I agree with your expectation.
Last edited by secret.simon on Sun Jul 03, 2016 11:02 am, edited 1 time in total.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Casa » Sun Jul 03, 2016 10:58 am

You will need to pass the Life in the UK test for BC.
(Casa, not CR001)
Please don't send me PMs asking for immigration advice on posts that are on the open forum. If I haven't responded there, it's because I don't have the answer. I'm a moderator, not a legal professional.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Richard W » Sun Jul 03, 2016 6:34 pm

flann wrote:Question: Given the risks around the Brexit negotiations (i.e. that status of Irish citizens and the Common Travel Area), should I apply for British ILR / Passport?
I would say that being Irish is low risk if the UK stays together. Of course, should Scots come to need visas to work in England, then the Irish would also need them. Which country do you live in?
flann wrote:If so, do I have to use the EEA-PR form or is there an alternative route for an Irish settled person? Am I subject to the requirement that I first apply for ILR/PR and hold this for 12 months before applying for a UK Passport? I assume I would still be required to do the Life-in-UK test?
If you are settled in the UK, and have not had recent long absences, you will be eligible for naturalisation on the basis of three years lawful residence, being settled, and being married to a British citizen. LitUK is required, but the UK government takes the common-sense though potentially offensive view that the Republic of Ireland is an English-speaking country.

If I have misread your opening post, and your spouse is not British, then you will qualify by having been lawfully resident for 5 years and free of restrictions for the last 12 months.

Now, there is a very remote possibility that your settled status will be challenged on the basis of how you entered the UK. If you entered directly from Ireland, possibly via the Channel Island or the Isle of Man, then you are settled via the 1971 Immigration Act and its dependent regulations. If you entered via another country, e.g. directly from a holiday in Spain, your presence being lawful may depend on the EEA route. That is the point at which ILR/PR becomes relevant. As far as I am aware, it would not be abuse to have returned to the UK using your EEA right of an initial 3 months and then strolled across the Irish border and back to restore your settled status - but I haven't heard of that being done deliberately.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by ChIrl » Mon Jul 04, 2016 10:50 am

Thanks for this thread. I also like to know more details on this as I also fall under this category i.e Irish citizen living in UK.

I entered UK from Ireland and have been living here for the last Six years. I entered UK with an offer of employment and have been working since then.

Appreciate your help on below :
1) Can I directly apply for citizenship without having to wait for EEA PR ?

Regards

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flann
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Re: Irish person settled in UK - Need to apply for ILR?

Post by flann » Mon Jul 04, 2016 11:09 am

Thank you both for the very useful response. I'll just submit my Permanent Residency application using EEA(PR). I don't know whether NCS does Perm Residency applications or only Naturalisation.

Incidentally, I've checked my old Irish passports and none have ILR stamps.

Also, dont know whether this changes anything but:

1. I'm married to a non-EEA woman who is here in the UK with EEA ILR (based on me exercising my rights as a European citizen). She can apply for a British Passport one of these days (she's had her EEA ILR for about a year now)

2. I was previously married (since divorced) to a British woman but I never bothered to apply for a British passport at the time (I assume that I can't rely on that marriage to side-step the 1-year ILR requirement)?

Thanks,

Flann.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by ohara » Mon Jul 04, 2016 11:26 am

flann wrote:Thank you both for the very useful response. I'll just submit my Permanent Residency application using EEA(PR). I don't know whether NCS does Perm Residency applications or only Naturalisation.

Incidentally, I've checked my old Irish passports and none have ILR stamps.

Also, dont know whether this changes anything but:

1. I'm married to a non-EEA woman who is here in the UK with EEA ILR (based on me exercising my rights as a European citizen). She can apply for a British Passport one of these days (she's had her EEA ILR for about a year now)

2. I was previously married (since divorced) to a British woman but I never bothered to apply for a British passport at the time (I assume that I can't rely on that marriage to side-step the 1-year ILR requirement)?

Thanks,

Flann.
NCS cannot help you with PR application (to be honest though the application would probably cost less than NCS, and it's very easy anyway).

1. Your non-EEA spouse is not eligible for a British passport as she is not a British citizen.

2. Marriage to a British citizen does not confer the right to a British passport.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Obie » Mon Jul 04, 2016 11:27 am

PR is not required for Irish Citizen.

They only need to should they have resided in the UK for 5 years or 3 years if married to a British citizen, and have passed Life in the UK test, to qualify.

For as long as the Republic of Ireland Act 1949 remains in force, this will be the position..
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Re: Irish person settled in UK - Need to apply for ILR?

Post by ChIrl » Mon Jul 04, 2016 1:12 pm

PR not required for Irish citizen ? Did anyone applied for citizenship without PR recently ? I see all the documentations / application forms refers to PR for EEA citizens. Where can we confirm this requirements as I don't want to submit the application and getting this rejected.

Appreciate your responses.

Regards

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Richard W » Mon Jul 04, 2016 8:13 pm

What has this got to do with anything? It merely says that the Republic is not a foreign country and that therefore its citizens are not foreigners. If you read the relevant bit of Section 50 of the British Nationality Act 1981, you will find
“ foreign country ” means a country other than the United Kingdom, a British overseas territory , a country mentioned in Schedule 3 and the Republic of Ireland;
Schedule 3 is entitled "Countries Whose Citizens are Commonwealth Citizens", and is a list of commonwealth countries. Can you find me any British law that says that Canada (but not the Republic of Ireland) is a foreign country? On the other hand, Canadians residing in the UK are not necessarily settled.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Obie » Mon Jul 04, 2016 8:33 pm

It is got a lot to do with everything.

It is on the basis of this legislation that Irish citizen are considered settled from the day they take up residence, the children of Irish citizens are entitled to claim British citizenship.
An Irish person can be a referee for a British passport application or Naturalisation application in the same way as a British citizen.

You are seeking to mix up rights under the Regulations, which an Irish citizen has, from rights which the act confers on Irish citizens. This confers on them settled status from day 1. They do not need PR certificate to confirm this right.
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Re: Irish person settled in UK - Need to apply for ILR?

Post by ChIrl » Mon Jul 04, 2016 8:49 pm

Thanks Obie for the info. But, how can we confirm this and apply for citizenship. Iam sure most of the people not aware of this and also I don't see this in the naturalisation application as well.
Obie wrote:It is got a lot to do with everything.

It is on the basis of this legislation that Irish citizen are considered settled from the day they take up residence, the children of Irish citizens are entitled to claim British citizenship.
An Irish person can be a referee for a British passport application or Naturalisation application in the same way as a British citizen.

You are seeking to mix up rights under the Regulations, which an Irish citizen has, from rights which the act confers on Irish citizens. This confers on them settled status from day 1. They do not need PR certificate to confirm this right.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Obie » Mon Jul 04, 2016 8:54 pm

The question is whether you have lived here for 5 year.

For other EEA nationals, they need to establish lawful residence in accordance with the EEA regulation for 5 years, and this means exercising treaty rights. IRISH CITIZEN only need to show 5 years residence.

PR certificate will only be relevant to them for the purpose of their non EEA family member.
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Re: Irish person settled in UK - Need to apply for ILR?

Post by ChIrl » Mon Jul 04, 2016 9:02 pm

Just checked AN_Booklet and AN_guide which categories Irish citizens under EEA requirements and requires to submit Residency. How to provide that it is not required ? Thanks for your guidance once again, but, I am worried that Home Office will not accept the application with PR though Irish Citizen lived here for 5 years.
Obie wrote:The question is whether you have lived here for 5 year.

For other EEA nationals, they need to establish lawful residence in accordance with the EEA regulation for 5 years, and this means exercising treaty rights. IRISH CITIZEN only need to show 5 years residence.

PR certificate will only be relevant to them for the purpose of their non EEA family member.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Obie » Mon Jul 04, 2016 9:05 pm

Irish citizen are also EEA citizens , but the requirement that they have to have exercised treaty rights for 5 years does not apply to them as they are considered settled upon arrival in the UK.

Their status in the UK is different from the other 26 EU countries.
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Re: Irish person settled in UK - Need to apply for ILR?

Post by Richard W » Mon Jul 04, 2016 10:16 pm

Obie wrote:It is on the basis of this legislation that Irish citizen are considered settled from the day they take up residence, the children of Irish citizens are entitled to claim British citizenship.
Can you offer me a history lesson? When did Irishmen come to have greater privileges than Canadians and citizens of the United Kingdom and Colonies? When, if ever, before 1983 did some citizens of the United Kingdom and Colonies come to be foreigners?

At present, the rights of Irishmen in the UK may be derived from the Immigration Act 1971 as it currently stands.

The key part is the definition of settled, Section 33(2A):
Subject to section 8(5) above, references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain.
(Section 8 relates to exemptions from the IA 1971.)

The complementary part is Section 1(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 most significant exclusion is the Immigration (Control of Entry through Republic of Ireland) Order 1972, which almost limits beneficiaries to Irish citizens. I believe an American citizen who has spent his entire life in the Republic would benefit, but non-Irish beneficiaries seem to be limited to those born in the British Isles.
Obie wrote:An Irish person can be a referee for a British passport application or Naturalisation application in the same way as a British citizen.
But does this flow from the definition of 'foreign', or is it just part of the tradition of making no distinction?
You are seeking to mix up rights under the Regulations, which an Irish citizen has, from rights which the act confers on Irish citizens. This confers on them settled status from day 1. They do not need PR certificate to confirm this right.
I just don't see how the 1971 Immigration Act allows a young Irishman to enter England by ferry from Calais as though by right. (Irishmen resident in the UK when the act came into force automatically got ILR by Section 1(2).) The only rights I can see there are those under the EEA Regulations, which appear to spring from subsequent regulation. The special rights of Irishmen derive from the Common Travel Area, and that's not relevant to travel across the English Channel.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Obie » Mon Jul 04, 2016 10:53 pm

The above is wholly irrelevant to the straight forward explanation i have provided.
[b]Irish citizens[/b] wrote: Irish citizens are not subject to restrictions when they travel to the United
Kingdom. In order for their child to gain British nationality, they would have to
be considered as resident here in order to fulfil the requirements of the Act.
Irish citizens may be automatically accepted as settled for the purpose of
section (1)(1)(b) unless there is clear evidence to the contrary. For example,
if staff were advised that the parent was on a short visit to the UK, or that long
periods of residence had been spent outside the UK, it would be appropriate
to ask the applicant for further clarification.
Following the introduction of the full birth certificate policy, it will now be
necessary to be satisfied that the parent is an Irish citizen. In the absence of
an Irish passport, the parent’s birth certificate confirming birth in the Irish
Republic before 1 Jan 2005 will be required, together with the parents'
marriage certificate if status is obtained through the father.

Also see This

Also See NATIONALITY POLICY TEAM REPLY
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Re: Irish person settled in UK - Need to apply for ILR?

Post by Richard W » Tue Jul 05, 2016 12:47 am

secret.simon wrote:Irish citizens are assumed to be settled on arrival in the UK for the purposes of Section 1(1)(b) of the BNA 1981. That is to say that their children born in the UK are automatically British.

However, clear documentation on that for the purposes of naturalisation is thin on the ground.
By Jove, that ain't half true. There's the argument that it is because Ireland is not a foreign country that it's citizens are settled if ordinarily resident. However, that argument clearly doesn't apply for Commonwealth countries, so I am puzzled as to how it can apply to Ireland. Can anyone explain the logic? Remember that we have a 'Foreign and Commonwealth Office', and aliens can generally only be engaged in the Civil Service if they benefit under the Freedom of Movement Directive - Section 6 of the Aliens Restriction (Amendment) Act 1919, as overridden by EU law. Thus, the alien, non-EEA wife of a German may be employed, but the alien, non-EEA wife of a Briton may only be employed if she benefits from Surinder Singh. 'Alien' means neither an Irish nor a Commonwealth citizen. (The status of non-citizen British nationals looks a bit confused.)

The Secret Simon's quote above is from the Passport Office. I thought there might be some expansion on the issue in the Nationality Instructions, so I looked at the documents for Chapter 3 Acquisition by Birth, Adoption or Parental Order. The relevant section should be Section 3.5.1.4 (currently on p14):
Evidence of a parent's settled status in the United Kingdom is:
  • an immigration officer's stamp in a passport showing the holder has been given leave to enter the United Kingdom for an indefinite period or without any restriction on the period of stay; or
  • a Home Office stamp in a passport or Police Registration Certificate or on a personal file showing the holder has indefinite leave to remain in the United Kingdom or that there is no limit on the stay here; or
  • a Home Office letter to the effect that the addressee has been granted indefinite leave to remain in the United Kingdom; or
  • (if the child was born in the United Kingdom before 2 October 2000) evidence that one of the parents was an EEA national who, at the time of the birth, was exercising EC Treaty rights in the United Kingdom
Disturbingly, that list makes no provision for most relevant non-working Irish parents. I searched Chapter 3 for 'Ireland' and 'Irish', and found nothing. The list is out of date in that it makes no mention of stand-alone cards, but the position of the Irish has not changed over the past 40 years.

There have been very few Irishmen naturalising as British - there's been little point in doing so - and I'm not surprised the guides are unhelpful on that score. However, I finally found something helpful in the Nationality Instructions, Chapter 18 (Naturalisation at Discretion) Annex B Section 8.2.1:
8.2.1 The following persons are not regarded as being in breach of the immigration laws for the purposes of the BNA 1981 just because they do not have the right of abode or leave to enter or remain:
  • People who:
    (a) are citizens of the Republic of Ireland, and
    (b) last arrived in the UK on a local journey from the Republic of Ireland, entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971.
  • People who are entitled to reside here without leave under EC law as extended by the European Economic Area Agreement;
  • <snip>
We finally have some documentary support for the position that a DCPR is not needed for an Irish national to naturalise.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Obie » Tue Jul 05, 2016 12:54 am

I give up. Its like I am knocking my head against a brick wall.
Judge not, and you will not be judged.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Richard W » Tue Jul 05, 2016 1:00 am

Richard W wrote:
What has this got to do with anything?
OK, I disproved myself in one respect. It's what allows Irish citizens allowed to work in the UK to be employed in the Civil Service, and will continue to do so even if the CTA and the EU/EEA cease to be.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Richard W » Wed Jul 06, 2016 5:55 am

Richard W wrote:When did Irishmen come to have greater privileges than Canadians and citizens of the United Kingdom and Colonies?
I've now answered my own question, and I'll record the answer here as it has some slight relevance. The Commonwealth immigrants Act 1962 explicitly applied to Irish citizens just as it did to British subjects (as we then were). However, in return for Ireland applying the act to its own borders, the UK did not apply the act against Irish citizens moving within the CTA. In primary legislation, the privileged position was given by the Immigration Act 1971 to the CTA geographical entity of the Republic of Ireland, with the privilege being largely restricted to Irish citizens by the Immigration (Control of Entry through Republic of Ireland) Order 1972.

A remark (Question 7) in a blog entry by Professor Bernard Ryan (Professor of Migration Law at the University of Leicester) makes me wonder about the current form of that order. Can EEA nationals and their family members achieve the Irish privilege of instant settlement by taking a local journey from the Republic to the UK? It seems to me that under the Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014 Article 6 they can! If I am right, we have a new 'Irish route'! (It sounds too good to be true.) Visa nationals amongst the family members might be excluded; they would need a UK visa to qualify, and I am not sure that a family permit or residence card would count as a visa.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Richard W » Wed Jul 06, 2016 6:33 am

Richard W wrote:Article 6
Article 3(6). There is no article 6 in the amendment.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by ChIrl » Wed Jul 06, 2016 10:18 am

What is your final assessment then ? Can Irish living in the UK apply without Residency Certificate ? I am concerned about losing the fee of 1000+ or they return the application without taking the money ?

Regards
Richard W wrote:
Richard W wrote:Article 6
Article 3(6). There is no article 6 in the amendment.

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Re: Irish person settled in UK - Need to apply for ILR?

Post by ChIrl » Wed Jul 06, 2016 4:07 pm

I meant to ask Irish Citizens don't require Residency Certificate for applying for UK Citizenship ? I checked with few of the Solicitors and everyone is of the view that Irish also need Residency Certificate.

Regards
Richard W wrote:
Richard W wrote:Article 6
Article 3(6). There is no article 6 in the amendment.
[/quote]

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Re: Irish person settled in UK - Need to apply for ILR?

Post by Obie » Wed Jul 06, 2016 4:15 pm

With all the information I provided on the thread, it is a shame you were not in a position to educate your lawyers.
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