Non-EU family of UK citizens in Ireland 'need residence card before Brexit'

Immigration law expert Louise Shaw of Pinsent Masons, the law firm behind Out-Law, said although there was little specific information about how the Irish government was going to deal with the rights of non-EU family members after Brexit, it looked as though they would need a residence card or an application before the UK's withdrawal to enable them to stay in Ireland.

The warning comes after Irish authorities sent letters to non-EU family members of UK citizens living in Ireland, saying their right to remain in the country could end if there is a no-deal Brexit. Currently this group are able to live in Ireland under EU free movement laws, which could end if the UK withdraws from the EU without a deal guaranteeing continued free movement.

According to the Irish Times, immigration bodies have raised the issue with the Irish Department of Justice, but there was still a lack of clarity. Earlier this year the department issued a note for those potentially affected, which said they should "have no concerns regarding your continued residence in Ireland" after 31 October unless the draft withdrawal agreement was ratified.

"In a no-deal scenario they would no longer be subject to the provisions of the Free Movement Directive and the exercise of EU Treaty rights and entitlements. However, arrangements are being put in place for non-EU/EEA family members of British citizens who have been exercising free movement rights here up to 31 October 2019 to facilitate their transfer under domestic immigration arrangements to provide for their continued residence in Ireland. Insofar as possible, the objective is to retain similar rights to those that they would have enjoyed as a family member of an EU national including access to the labour market," the department said.

Shaw said currently it appeared there was no draft legislation that would enable non-EU family members to stay in Ireland on this basis, although the Irish government was intending to bring forward necessary laws.

"The Department of Justice and Equality has indicated that holders of a valid residence card will be able to switch to a domestic right to remain in Ireland. Although there don't appear to be any specifics on this yet, the information available suggests the aim is to retain similar rights to those currently enjoyed, including the ability to work," she said. "It also suggests that those who have submitted an application for a residence card do not need to do anything else at the moment."

Shaw said it was expected that Ireland would introduce a similar scheme to the UK's EU settlement scheme to address the post-Brexit changes. Under UK rules, EU citizens and their family members are able to apply for 'settled status' to maintain their right to live and work in the UK after Brexit.

"In general, we would anticipate something similar to the UK's position being reciprocated in Ireland in the event of a no-deal Brexit, although it would appear that in Ireland a residence card or pending application will be required pre-Brexit. To that end, it's worth noting that non-EEA family members of Irish nationals living in the UK are able to apply under the EU settlement scheme," Shaw said.

"If a company has any employees affected by this, or whose family members are, it would be worth checking that they have a residence card or have applied for one. It seems that they will need to have, or have applied for, a residence card at the time of Brexit in order to be covered by domestic measures to be implemented. There is no indication what will happen if an individual has not done so before Brexit so they would be wise to do so as soon as possible in advance. They may also wish to seek legal advice on their other options, such as seeking Irish citizenship," Shaw said.