Leave to remain — outside the immigration rules?

We learned something new about the immigration system recently, the term “leave to remain outside of the immigration rules” or LOTR or lord of the rings as we now call it.

The Secretary of State has the power to grant leave on a discretionary basis outside the Immigration Rules from the residual discretion under the Immigration Act 1971. We didn’t apply for LOTR, we hadn’t heard of LOTR and as a couple who has been up against the Home Office for 3 years we were frankly, suspicious of a letter offering it.

There were words in this letter that we didn’t like, such as "dual national". We worried about the terms of the offer and how that might affect the stand we were taking. We imagined a million different intentions behind the letter and so too did our solicitor.

We sent for clarification and we got it. This offer has been made as -

“this must be an anxious and uncertain time for your client and his family, and for other dual British and Irish citizens with non-EU family members. The Home Office has given consideration to the position in which your client and his family find themselves and would like to invite your client to make an application for leave to remain outside of the Immigration Rules (‘LOTR’) to regularise his position ahead of any determination of his appeal."

Cue massive cheer with ALOT of disbelief.

It became clear this was genuine and we are deeply grateful and hugely relieved to have such a generous offer from the Secretary of State and surprised because we know there are countless other couples and families within the system that deserve this level of discretion and we hope their cases can be measured with the same consideration as ours.

Yet they are still continuing to appeal our case.

As of the 11th May a further appeal from the Home office has been granted and at some point within the next 12 months we’ll find ourselves back in court defending that most precious right, the right to self identify. The Home Office continue to claim all citizens born in Northern Ireland are British by birth and they lean on the British Nationality Act 1981 to assert it, but as Judge S Gillespie from the first tier tribunal said -

"under the terms of the Good Friday agreement people of Northern Ireland are in a unique position within the United Kingdom. The British and Irish governments recognised the birthright of all the people in Northern Ireland to identify themselves as Irish or British or both, as they may so chose."

"The constitutional changes effected by the Good Friday Agreement with its annexed British-Irish Agreement, the latter amounting to an international treaty between sovereign governments supersede the British Nationality Act 1981 in so far as the people of Northern Ireland are concerned. He or she is permitted to chose their nationality as a birthright. Nationality cannot therefore be imposed on them at birth."

This is the core of our case, our story “Identity in Northern Ireland - The British Nationality Act & The Good Friday Agreement” https://medium.com/nodust-on-brexit/the-dictionary-defines-the-term-identity-as-the-fact-of-being-who-or-what-a-person-is-39cfd34d9eab

It was natural to apply for a residence permit for the spouse of an EU national because I am an EU national. An Irish national and not for a moment did we think that choice, a choice afforded to all of us under the Good Friday Agreement would result in years of bureaucracy and ligation and that we’d find ourselves learning more about international treaties and immigration rules than we ever could of imagined. But that’s what happened and gaining leave to remain, whilst amazing, does not take away from the fact that my rights and others to identify as solely Irish in NI is being refused. The GFA needs protected and understood and valued, especially at a time when there are so many questions around citizens rights.

We accepted this offer with the clear understanding that it is not on the terms that I am a dual national, that it will not affect our appeal and that as long as the Home Office continue to refuse the right to be Irish in the North we will continue with our case and the pending court hearing.