by Kim Bowen, Senior Associate at Mason Hayes & Curran
A number of immigration issues arise for UK nationals, their non-EEA family members and their employers in Ireland when the Brexit transition period expires.
Common Travel Area
Under the Common Travel Area (CTA), Irish and UK citizens can move freely between the two islands. They can reside in either jurisdiction enjoying associated rights and entitlements including access to employment.
The CTA pre-dates Irish and UK membership of the EU and is not dependent on it. Both the Irish Government and the UK Government have committed to maintaining the CTA post Brexit. This essentially means that Irish and UK citizens do not need to take any action to protect their rights to live and work in the CTA post Brexit and their status will remain unchanged. UK citizens will therefore not need a visa, any form of residence permit or any form of employment permit to work and live in Ireland as is currently the case.
It should be noted that non-EEA nationals who have UK work permissions cannot use these permissions in Ireland. Separate Irish employment permits will be required if they relocate to Ireland.
Non-EEA nationals living in Ireland as family members of UK citizens
The position for non-EEA nationals living in Ireland as family members of a UK citizen and those who intend to move to Ireland is not as clear-cut as they do not benefit from the CTA. Until the transition period ends, EU rules and regulations will continue to apply to these individuals meaning that, until 31 December 2020, they are subject to the provisions of the Free Movement Directive and the entitlements as the family members of EU/EEA nationals.
From the end of the transition period however, non-EEA family members of UK citizens that are newly resident in Ireland will not come within the scope of the EU Free Movement Directive. Instead, a separate preclearance scheme will apply to people seeking to reside in the State. Details of this new preclearance scheme have not yet been announced.
There remains a lack of clarity however for non-EEA nationals who will have pending EUFam residence card applications on 31 December 2020. It is yet to be determined how they will be treated.
50/50 rule for employment permits
In Ireland, employment permits will generally not issue unless at the time of application at least 50 per cent of the employees in the company are EEA nationals.
An area of concern for companies is whether their UK employees will still be considered as part of the EEA headcount. The Department of Business, Enterprise and Innovation have confirmed that, in practice, they will not exclude UK nationals from the calculation of the EEA numbers and it is likely that the relevant legislation will soon be amended to reflect this.
Due to the CTA, the immigration status of UK employees will not be affected when the transition period ends. These employees will retain the right to live and work in Ireland freely without the need for an employment or residence permit. Furthermore, employers will not need to exclude UK employees from the headcount of EEA employees for the purposes of employment permit applications.
Non-EEA national family members of UK citizens seeking to enter Ireland after the transition period ends will however have to take part in the new preclearance scheme and obtain permission prior to entering Ireland.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
About the author
Kim is an Associate on the Employment Law & Benefits team at Mason Hayes & Curran. Her area of expertise is Business Immigration. Her diverse immigration practice covers the full range of corporate and private immigration matters including employment permit applications and all other Irish immigration permissions sought by non-EEA nationals in Ireland.
Kim has particular expertise in transferring non-EEA employees and their families to Ireland, citizenship applications, long term residency rights, visa applications, residency registration, EU treaty rights and family reunification. Kim also advises on the Immigrant Investor Programme working closely with both funds and private investors.
