Overview of Brexit impacts on UK nationals looking to visit or work in Ireland?

Ireland has a special relationship with the UK because of The common travel area (CTA) which has existed between us since 1922 and formally brought about in 1952. The CTA exists between Ireland, the UK, Guernsey, Jersey and the Isle of Man. This CTA is independent of the membership of Ireland and the UK of the European Union. The CTA agreement is based upon legislation and bilateral agreements between Ireland and the UK. Due to Brexit, the Irish and UK Governments have signed a memorandum of understanding committing to ensuring that the rights derived from the CTA for the benefit of its citizens continue to be protected.

Ireland recently enacted the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020. There are provisions contained in that act to maintain the integrity and operation of the CTA thereby ensuring that the established rights associated with the operation of the CTA continue for its citizens. The UK-EU Brexit Trade Agreement expressly states that the agreement is without prejudice to any arrangement made between the two jurisdictions in respect of the CTA. Consequently, after 1st January 2021, the citizens of each jurisdiction will continue to have the same rights associated with the CTA to include the right to wok, study, vote and access to health and social welfare benefits. Citizens of both jurisdictions will continue to be able to travel freely between both States without the necessity of border controls on travel within the CTA post 1st January 2021.

The rights of Non-EEA family members and dependents of British Citizens who come to Ireland after Brexit

The rights of Non-EEA family members and dependents of British Nationals who wish to become resident in Ireland are currently outlined in a Policy Document on Non-EEA Family Reunification which was published by the Irish Naturalisaion and Immigration Service, now called Immigration Service Delivery in 2016. The policy document outlines the entitlements of certain categories of individuals to apply for residence in Ireland based on their relationship with another person already entitled to live in Ireland. As stated in the new Scheme in relation to Non EEA Family Members of UK Citizens intending to reside in the State and in line with the 2016 Policy Document, UK citizens have no automatic entitlement to have a non-EEA national family member reside with them in the State.

Application Scheme for Non EEA Family Members of UK Citizens to reside in Ireland

On 23rd December 2020, The Department of Justice published a scheme in relation to Non-EEA family members of UK citizens who intend to reside in the State. Under the scheme British Citizens will be permitted to make an application to sponsor an Non- EEA National family member or dependent to reside with them in Ireland. The new scheme policy document does not outline any automatic entitlement of British citizens to have their Non- EEA family member or dependent live with them in Ireland. Under the scheme British Citizens will be permitted to sponsor an application for permission for a specified non-EEA national family member or dependent to reside with them in Ireland.

The position for Non- EEA Family members of British Nationals that held a valid Irish Residence Permit on 31st December 2020

The position in respect of those individuals is that will continue to retain the same rights to live, work and study in Ireland under the Withdrawal agreement. People in that category will be required to exchange their current Irish Residence Permit (IRP) card for a new Residence card. The card exchange programme will be administered by the Immigration Service delivery unit of the Department of Justice and will apply from 1st January 2021.

New Pre-Clearance and Visa Scheme for Non- EEA family members and dependents of British Nationals

For those Non-EEA family members and dependents of British Nationals who are seeking to join or accompany that British national to live in Ireland after 11.00 p.m. on 31st December 2020, they will need to firstly apply for a pre-clearance or a visa depending on their Nationality. The requirement does not apply to those who intend to reside with the British national for less than three months.

The position regarding Visa Required Non- EEA family members and dependents of British Nationals

Visa required Non-EEA family members must obtain the correct Visa to travel to Ireland before they travel. The Department of Justice has already confirmed that it will not accept any application of a Visa required Non EEA family member of a British National who arrived in Ireland on a 90 day tourist visa and subsequently seeks to remain.

The position regarding Non- Visa Required Non- EEA family members and dependents of British Nationals

Non visa required Non EEA family members and dependents of British Nationals must apply for an obtain preclearance before travelling.

All applicants both Visa required and Non Visa required must be ordinarily resident outside the State for a period of 90 days and must remain outside of the State while the application is being processed.

If you need help with the Application Scheme for Non EEA Family Members of UK Citizens to reside in Ireland contact Sinnott Solicitors Dublin and Cork today, call us on +353 1 406 2862 or email info@sinnott.ie and a member of our team will get back to you.

The new stamp “4D” – permission for a Non-EEA family member of a British National to reside in Ireland

Successful applicants initial permission will be granted for a 12 month period. The permission is temporary and mat be renewed after the first year on a Stamp 4D basis and thereafter for a further two year period and thereafter for a further three year period.

Who can apply for a Stamp 4D  Permission for a Non-EEA family member or dependent of a British National to reside in Ireland?

Eligibility for the scheme only applies to the following types of relationship to the British National Sponsor or the Sponsors spouse / Partner:

• Spouse
• Civil Partner
• De facto Partner
• Either partners dependent children
• Dependent parents of either partner

Overview of Conditions of the Scheme

Conditions of the Scheme for the sponsor

The following matters will be taken into account:

• Overall immigration history of the sponsor
• The financial capacity of the Sponsor to support the applicant
• The Sponsors conduct and particularly whether the sponsor had come to the adverse attention of and Garda Siochana or the Immigration Authorities
• The genuineness of the relationship between the applicant and the sponsor

Financial Criteria of the Sponsor

The financial resources of the Sponsor must not have been totally or predominantly reliant on social Protection benefits in the State or the equivalent to social protection in another State for continuous at least two years prior to the application.

The  Immigration Service Delivery have set out the following criteria in relation to the Finances of the Sponsor:

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 (DSP) in assessing eligibility for Working Family Payment (WFP). The WFP does not apply in the case of a married couple, civil partner / de facto partnership where there are no children and consequently a minimum level of assessable income for couples without children is €20,000 per annum, over and above any entitlement to State benefits.

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 (DSP) in assessing eligibility for the Working Family Payment, as published on that Department’s website. The sponsor should comply with those limits including with respect to any changes to the WFP as published at (http://www.welfare.ie/en/Pages/Working-Family-Payment-Op.aspx.)

The Immigration Service Delivery have set out the following table for illustrative purposes, and noting that they are subject to continual change, the limits are set out below:

It should be noted that evidence of having maintained a family member in a country that has a comparatively low level of per capita income is not of itself an indicator of the capacity of the sponsor to provide for the family member if that person is permitted to reside in the State in circumstances where living costs are higher in this jurisdiction.

The expectation is that this minimum level of income will be maintained for the duration of any permission granted under this Scheme and that the non-EEA national family member(s) will not become an unreasonable burden on the State. Where such income levels are not maintained, permission may not be renewed under the Scheme.

In this regard, 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. Under this Scheme, the applicant and sponsor must provide evidence of expected earnings through employment, self-employment etc.

Declared and verified savings by the sponsor and/or the applicant may be taken into account in assessing cases that do not meet the income thresholds. The Department may annualise the savings as income spread over a 5-10 year period. Alternatively, a nominal income may be determined based on the amounts involved.

The onus is on the applicant to satisfy the Minister as to the level of earnings and to provide documentary evidence if requested.

Overview of Conditions for the applicant

Health Insurance

• The applicant mut have an adequate policy of medical insurance for the duration of their residence in Ireland for Private Healthcare including for any period of hospitalisation in a private hospital

Police Clearance

• The applicant must provide a police Clearance Certificate which is valid within the past 6 months for each Country in which they have resided within the past 5 years 

Applications for spouses, civil partners or de facto partners of British Citizens to reside in Ireland

The spouse, civil partner or de facto partner must be at least 18 years of age at the time of his / her application for family reunification.

A general principle that applies to immigration related decision-making is that marital relationships or those involving civil partnerships must be monogamous, freely entered into by both parties, lawfully conducted and recognised under Irish law. The marriage/partnership must also be capable of recognition under Irish law for other purposes outside of the immigration system.

Cases involving de facto relationships must be exclusive for the full duration of the qualifying period. Prior to the application under this Scheme, de facto partners must have cohabited in a relationship akin to marriage for a minimum period of two years prior to the application for family reunification.

For marriage or civil partnership, no minimum duration of marriage/civil partnership is required.

It should be noted that a commitment is required from both parties that they will reside together permanently in the State as spouses, civil partner or de facto partners immediately following the outcome of a successful application under this Scheme or as soon as circumstances allow. A declaration to this effect forms part of the application process.

For immigration purposes, a person may be considered the de facto partner, opposite or same sex partner, of another person if:

• they have a mutual commitment to a shared life to the exclusion of all others akin to a marriage or civil partnership in practice though not in law,
• the relationship between them is genuine and continuing,
• they live together or do not live separately and apart on a permanent basis, for two years prior to the application.
• they are not related by

The applicant must be in a position to provide evidence of a genuine, long-term, durable relationship.

Contact Sinnott Solicitors Dublin and Cork today for more information on conditions of the scheme. Call us on +353 1 406 2862 or email info@sinnott.ie.

Grant of permission as a spouse, civil partner or de facto partner

In the case of a successful application under this Scheme, initial permission will be granted for a 12-month period on Stamp 4D conditions. Permissions to reside are regarded as temporary but may be renewed after the first year, on a Stamp 4D basis, for a further 2- year period and thereafter on a 3-year basis. This is provided that, on each renewal, the conditions under which the initial permission was granted continue to be met. Holders of this permission are permitted to seek employment without the need to obtain an employment permit from the Department of Business, Enterprise and Innovation.

Applications for non-EEA dependents of British Citizens who are over 18

Applications can be made by a person 18 years of age or over who:

• is the direct descendant of the sponsor or of his/her spouse, civil partner or de facto partner,
• was adopted by the sponsor or by his/her spouse, civil partner or de facto partner, or
• in respect of whom a guardianship or other equivalent legal order has been made in compliance with the relevant jurisdiction in which the order was

Adult dependent applicants who claim dependency are not persons of independent means and rely on the sponsor and/or the sponsor’s spouse, civil partner or de facto partner.

For the purpose of this Scheme ‘dependency’ is demonstrated where the applicant is supported financially by the sponsor and/or the sponsor’s spouse, civil partner or de facto partner on a continuous basis. The dependency must be pre-existing, and sustained prior to  the making of the application for family reunification. Relevant financial, medical or other documentary evidence must be supplied in support of the dependency. For example, the sponsor and the applicant must provide information and documentary evidence to show that:

• the applicant is in full-time education in their country of origin or current country of residence and intends to continue in full time education in the State, he/she is under 23 years of age, and needs the financial support of the sponsor and/or the spouse, civil partner or de facto partner of the sponsor,
• where the applicant is not in full time education in the State, he/she is over the age of 18 and is dependent on the care of the parent sponsor, directly or indirectly, due to a serious medical condition that makes independent life impossible,
• having regard to health, financial or social conditions, the applicant could not meet his/her essential living needs (in whole or in part) without the financial or other material support of the sponsor and/or the spouse, civil partner or de facto partner of the sponsor,
• such support is being provided to the applicant by the sponsor and/or the spouse, civil partner or de facto partner of the sponsor, and
• the need for such support existed in the applicant’s country of origin or his / her country of residence immediately prior to coming to the State

Adult Dependants in exceptional circumstances

Applications that involve a claim of dependency or exceptional circumstances, as will be assessed in light of all relevant factors on a case- by-case basis. This will include the existence of other family members, particularly in the applicant’s country of origin or current country of residence who could, or should, provide alternative support to the applicant.

Contact Sinnott Solicitors Dublin and Cork today for more information on applications for non-EEA dependents of British Citizens. Call us on +353 1 406 2862 or email info@sinnott.ie.

Elderly dependent parents of the UK Citizen

Elderly dependent parents of the sponsor or of the spouse, civil partner or de facto partner of the sponsor

Elderly parents are those who have attained the age required for eligibility in the State for the non-contributory State pension. As of October 2019 this is 66 years of age but this is subject to change. It should be noted that the sponsor must demonstrate their ability to fulfil their responsibility to provide for elderly dependent parent(s) if they are to be permitted to reside in the State

A factor which the Department will consider is whether there is a reasonable alternative option of family members leaving the State to care for their elderly dependent parent in their country of residence.

The issue of dependency referred to in the Scheme in relation to dependent adults will also apply in the case of elderly dependent parents. The onus of proof as to the dependency is on both the sponsor and the applicant. For example, the family must show that:

• there is no viable alternative to the parent coming to the State,
• the parent does not have financial resources to meet their essential needs in their country of origin, or country of residence even with remittances from the sponsor,
• the parent is not physically capable of independent living,
• there are no other family members in the parent’s country of residence/origin capable of providing support,
• they can meet the financial thresholds for earnings to support the elderly parent(s) if they come to live in the

The following conditions also apply to applications for Elderly Dependent Parents:

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.

Where the elderly parent has a guaranteed income into the future, this can be used to partially offset the financial limits. However, it will also be taken into consideration that a person with sufficient personal income for their needs cannot reasonably be regarded as financially dependent so such means can potentially be a double edge sword.

Elderly dependent parents must be covered by private medical insurance at or above the level which provides for private healthcare in a private hospital.

The sponsor will be required to sign a legal undertaking to the effect that they will bear complete financial responsibility for the elderly parent and that any State funds availed of by the relative will be reimbursed by the sponsor.

The sponsor will be required to make detailed provision for the accommodation of the elderly parent.

Grant of permission as an elderly dependent parent of the sponsor or of the spouse, civil partner or de facto partner of the sponsor

Initial permission will be granted for a 12-month period on Stamp 0 conditions. Permissions to reside are regarded as temporary but may be renewed after the first year on a Stamp 0 basis, for a further 2 year period and thereafter on a 3-year basis. This is provided that on renewal, the conditions under which the initial permission was granted continue to be met.

If you need more information on elderly dependent parents of the UK Citizen, contact Sinnott Solicitors Dublin and Cork today, call us on +353 1 406 2862 or email info@sinnott.ie.

What to do if the Circumstances change or the relationship breaks down

The applicant must notify the Department of Justice (Immigration Service Delivery) of any material change in circumstances within 2 weeks of such change in circumstances arising.

This includes:

• death of the sponsor,
• departure from the State of the sponsor,
• divorce or annulment of a civil partnership,
• breakdown in de facto

Death of the British Citizens Sponsor or Divorce from the British Citizen Sponsor

A sponsor who is joined by a spouse, civil partner or a de facto partner in the State will, in the event of the termination of the marriage or partnership (by legal separation, divorce or on termination of de facto partnership), be ineligible to be joined by a further non-EEA national spouse or partner until a minimum of 7 years have elapsed from the date of the termination of the previous spousal relationship through legal separation / divorce/ or the termination of the de facto partner relationship. This condition also applies to the non-EEA applicant seeking to be joined in the State by a subsequent non- EEA national spouse / civil partner or de facto partner in such circumstances.

In a situation where the non-EEA spouse/ partner dies, the sponsor may make a further application.