HHD TO CHALLENGE UKBA 'LOOPHOLE' CLOSURE FOR DUAL CITIZENS

5 August 2013

ONE of the more notable effects of the Good Friday Agreement in Northern Ireland was the fact that it allowed its' people to effectively hold dual nationality - British and Irish.

This rule has had a wide ranging impact on many aspects of life here - not least from a sporting perspective, where footballers regularly jump from one ship to the next and golfers just can't make up their minds which team they will be teeing off for.

Another area where the impact has been somewhat surprisingly felt is in immigration law, to the extent that the European Courts and UKBA have felt the need to move swiftly to close down what they perceived to be a potential loophole for non-EEA foreign nationals moving to Northern Ireland.

They believed that the impact of dual nationality meant that spouses or dependants of those holding British and Irish identity could move to Northern Ireland under European immigration Regulations s rather than the more restrictive and expensive UK immigration rules.

Due to the UK's membership of the EU, dual nationals in Northern Ireland are entitled to claim to be EEA nationals - i.e people exercising their EEA treaty rights by living and working in another country within Europe - even if they had never left Northern Ireland.

This status would not be open to a British or Irish national single passport holder who had never lived or worked outside of their own country - they would be subject to UK or Irish immigration rules.

The recent tightening of immigration controls - particularly in the UK - has led to immigration regulations which are in their present form difficult for many planning to come and live in the UK to satisfy.

Foreign national spouses of British citizens using the UK immigration rules are no exception, with a new onerous financial requirement to meet and an application fee of £578 for a single applicant.

On the other hand, foreign national spouses of EEA nationals in the UK have no financial requirement to meet and pay a much smaller application fee (£55) under the European immigration rules.

The European Court of Justice addressed the issue in the 2009 case of McCarthy v SSHD by ruling that a British/Irish national - who had never left Northern Ireland and had always claimed state benefits there - could not be considered to be an EEA national as she was not exercising her treaty rights and living and working in another EEA state.

The focus of the McCarthy judgement may have appeared quite different from that of dual nationality - in that it related to the issue of a person who had not worked and whether or not this precluded them from claiming to be an EEA national ‘living and working' in another EEA state.
The wider impact of the case, however, has led to a seismic change for British/Irish nationals following subsequent changes to the UKBA's Immigration (EEA) Regulations 2006.

In July 2012 they amended their definition of an EEA national to eliminate all British nationals who held dual nationality - whether they have worked here or not - thereby closing off the European route completely to those British and Irish passport holders who have never exercised Treaty rights in another EU Member State.

This is a hammer blow to many from Northern Ireland who have married or are due to marry non-EEA nationals and who wish to return home to live but cannot meet the UKBA's financial requirements. Previously they would have sought solace in the European rules - now they have nowhere to turn.

The regulation change may be open to challenge, however. A spokesperson for the Law Centre Northern Ireland's Immigration department has stated that these cases must be brought before the Immigration Tribunals so that the issue can be highlighted.

"Given the very large number of people in NI who have dual Irish/British citizenship, the Law Centre (NI) believes that this amendment impacts disproportionately here," she said.

"Therefore cases need to be brought before the Tribunal and courts highlighting the complexities involved in cases in NI and seeking a more generous interpretation of McCarthy."

At Higgins Hollywood Deazley Solicitors, we are currently awaiting decisions on a number of applications from the family members of British/Irish citizens, made after the regulation change in July 2012. Please refer to our website for any future developments in this area.

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