Are Irish Citizens in the UK Automatically Settled

[Richard W]

In the thread Renouncing British Citizenship to use EEA FP route, there was the unanswered (so far as I can see) question:

Then even if I am just Irish & if I don't move home for lets say another year ...would I be able to apply for the UK spouse visa under whatever the laws are at that time - seeing as the Irish are settled in the UK? I assume so, if that makes sense!

It's not at all clear that you Irish in the UK are all settled. I had intended to ask what, if anything, you ex-Britons are doing to secure your status as settled.

If you look at the British Nationality Act 1981, you eventually find that one of the requirements for being settled is not to be "in breach of the immigration laws". One advantage that the Irish have over the Maltese and the Cypriots is that you may have a qualifying CTA entitlement:

For the purposes of subsection (4)(d), a person has a qualifying CTA entitlement if the person—

(a) is a citizen of the Republic of Ireland,

(b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and

(c) on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area).

There are two commonly offered explanations of why the Irish are considered settled if 'ordinarily resident' (in the general sense) in the UK.

One is that the Republic of Ireland is not a foreign country - but then neither are Malta and Cyprus, and their citizens have no such advantage.

The second is that settled status is obtained via the 'qualifying CTA entitlement'. The problem is that that would not make all resident Irish citizens settled. I think the answer to that is that any shortfall in status can usually be put right by a trip to Ireland, so it may not be worth checking part (b) of the definition. However, there are three cases where it is impossible or expensive to remedy a lack of the entitlement:
1) Settlement visas dependent on the Irish sponsor being settled. UKVI could just pocket the roughly one thousand pound visa fee and tell the sponsor to go take a trip to the Republic first. If the UK stays in the EEA under the current free movement rules as far as family migration goes, it's normally only an issue for fiancée visas.
2) Applications for naturalisation as British. It's not relevant for ex-Britons; they can just apply for registration as British.
3) Automatic acquisition of British citizenship by your children. Now, the Passport Office currently can't be bothered to work out whether an Irish parent had a qualifying CTA entitlement. However, with recording of journeys in and out of Britain, it could become easier to check the status of parents living on the island of Britain.

[secret.simon]

You do have a bee in your bonnet about Ireland and the CTA. Could I ask why is that?

One is that the Republic of Ireland is not a foreign country - but then neither are Malta and Cyprus

The Republic of Ireland is not treated as a foreign country in British law due to the provisions of the Ireland Act 1949. There is no such provision in either the Cyprus Act 1960 or the Malta Independence Act 1964.

So, your assertion that Cyprus and Malta are on par with the RoI as regards treatment as a foreign country in British law is not correct.

In my opinion, the likely reason that Irish citizens are immediately considered settled in the UK is that it is assumed that they are here with a "qualifying CTA entitlement". The last part is harder to test because as EEA citizens, an Irish citizen is not stamped in when s/he comes into the UK. And in any case, all travel within the CTA is treated as being purely domestic, with fewer checks than proper international travel.

Therefore, it is easier to assume that an Irish citizen who is in the UK arrived within the CTA and hence has a qualifying CTA entitlement.

[Richard W]

You do have a bee in your bonnet about Ireland and the CTA. Could I ask why is that?

Largely because I put a lot of effort into understanding it. It does seem an unnecessarily complicated way of managing the status of the Irish. It may be a concession to the feeling that the Irish should not be explicitly given more rights than many citizens of the United Kingdom and Colonies; and it also preserves a stick to constrain Irish immigration policy.

One is that the Republic of Ireland is not a foreign country - but then neither are Malta and Cyprus

The Republic of Ireland is not treated as a foreign country in British law due to the provisions of the Ireland Act 1949. There is no such provision in either the Cyprus Act 1960 or the Malta Independence Act 1964.
So, your assertion that Cyprus and Malta are on par with the RoI as regards treatment as a foreign country in British law is not correct.

But there are such provisions!

The British Nationality Act 1948 as enacted declares, in Section 32(1):

"Foreign country" means a country other than the United Kingdom, a colony, a country mentioned in subsection (3) of section one of this Act, Eire, a protectorate, a protected state, a mandated territory and a trust territory;

This seems to be the basic definition of 'foreign country'. It is carried over into the British Nationality Act 1981, though that has very little to say about foreign countries.

Subsection (3) of section one of the British Nationality Act, 1948 (which specifies the Commonwealth countries whose citizens are British subjects or Commonwealth citizens) shall have effect as if the word "and" in the last place where it occurs were omitted and at the end there were added the words

“and the Republic of Cyprus”.

On and after the appointed day the British Nationality Acts 1948 to 1964 shall have effect as if in section 1(3) of the British Nationality Act 1948 (Commonwealth countries having separate citizenship) there were added at the end the words

“and Malta”.

Thus, Cyprus and Malta were declared not to be foreign countries. 'Foreign' means 'neither Commonwealth nor Irish', which is why we have the 'Foreign and Commonwealth Office'.