The Irish Individual Investor Programme: A key to post-Brexit Britain ?

In an earlier article, we discussed the Common Travel Area arrangement between Ireland and the United Kingdom, which facilitates freedom of movement between the two countries. Building on this discussion, one could raise the question whether persons who obtain a residence permit under the Irish Individual Investor Programme (IIP) can profit from the Common Travel Area in order to travel or take up residence in the United Kingdom.

The Irish IIP residence permit and the Common Travel Area

Under the Irish IIP, an applicant can obtain a residence permit if he invests at least one million euros in an Irish enterprise or an approved investment fund or two million euros in real estate investment trusts, or if he makes a philanthropic donation of at least 500,000 euro.

Accepted IIP applicants initially obtain a temporary national residence permit. Unlike the European Schengen Area, where residence permits can in principle be used for cross-border travel to and between all Schengen States, Irish or British residence permits cannot be used in a similar way within the Common Travel Area. This is even the case for IIP permit holders who eventually obtain a permanent residence permit. The only exception to this rule are visas issued under the joint British Irish Visa Scheme (BIVS). Under that scheme, eligible Chinese and Indian nationals can obtain a BIVS-endorsed Irish or British short-term visa which is also valid for travel to the other State. However, the Irish IIP permit is not short-term in nature and is therefore not covered by the BIVS.

Irish nationality and the Common Travel Area

All of this changes once the IIP permit holder naturalizes and obtains Irish nationality. The holder is applicable for naturalization if he has resided in Ireland for at five years during the nine years preceding the application, including the last year of that period. As Ireland does not require naturalized persons to renounce their other nationality, he can become a dual national, on the condition that his country of origin allows so. From the moment he becomes a national of Ireland, he is entitled to the rights and privileges that the Common Travel Area arrangement offers. In addition to that, as Ireland is a member State of the European Union, he is also entitled to the rights and privileges that EU citizenship brings. As Ireland and the United Kingdom are currently both part of the Common Travel Area as well as EU Member States, Irish-British cross-border mobility is now doubly covered by both arrangements. However, as the United Kingdom is set to leave the European Union, nationals of both countries would have to rely solely on the Common Travel Area arrangement in future. This has important implications, as the Common Travel Area arrangement only provides freedom of mobility from within the Common Travel Area. This entails that an Irish national who wishes to take up residence in the United Kingdom can do so under Common Travel Area arrangement from Ireland, but not from another country. An Irish national who takes up residence in the United Kingdom from another country can currently do so under EU law. Although these two scenarios result in different legal positions, this distinction is currently not enforced in practice. Yet, this distinction will become more pressing after Brexit. In order to clarify the position of affected Irish nationals after Brexit, legislative action would be required.

Another issue for Irish nationals is raised by British nationality law. Under British nationality law, a child whose mother or father is ‘settled’ in the United Kingdom at the time of birth is granted British nationality. Currently, Irish nationals have a privileged status and can automatically be accepted as ‘settled’ under this provision as long as they are ordinarily resident in the United Kingdom, which entails that their children can become British nationals. However, it remains unclear what the legal base of this privileged status is. Therefore, also for this issue, legislative action would be preferred.

In this regard, it is promising that Ireland and the United Kingdom have signed the earlier discussed Memorandum of Understanding regarding the Common Travel Area, which reaffirms the existing arrangement and commits the two countries to take “all necessary steps” to give effect to it.

All in all, it can be concluded that Irish IIP residence permit holders as such cannot make use of the Common Travel Area, but that this changes once they have obtained Irish nationality. Among others, that entails that they are able to move freely between Ireland and the United Kingdom and can take up residence in the United Kingdom as well. As it is well known that the United Kingdom (and London in particular) remains one of the most sought-after destinations among high net worth individuals, these rights could very much be of interest for potential IIP investors. As CBI programmes in other EU Member States will most likely no longer offer a similar key to post-Brexit Britain, this could prove to be a factor of importance the Irish IIP.

Author: Luuk van der Baaren