Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Explanatory Notes

Policy background

3 There are currently two immigration systems in the UK: one that governs the immigration arrangements for EEA nationals and their family members and one that governs the arrangements for nationals from countries outside the EEA.

4 The movement of people between EEA member states is governed primarily by the EU Free Movement Directive 2004/38/EC. This sets out the rights of EEA nationals and their family members to move and reside freely within these territories. The European Court of Justice has the final say on how these rights are interpreted. The Directive is primarily implemented in UK law through the Immigration (European Economic Area) Regulations 2016 ("EEA Regulations"). As the EEA Regulations also extend to nationals of the European Economic Area (EEA) and Switzerland, measures in the Immigration Bill will extend to these nationalities as well, except clause 2 which relates specifically to Irish citizens. EU, EEA and Swiss nationals are collectively referred to as "EEA nationals" in these Notes for brevity, whereas those outside the scope of free movement are referred to as "non-EEA nationals". Unless the context requires otherwise, and/or it is stated otherwise, references to "EEA nationals" in these Notes exclude Irish citizens.

5 Non-EEA nationals (other than those who are family members of EEA nationals) require permission to enter and stay in the UK under the Immigration Act 1971 ("the 1971 Act"). The detailed requirements a person must meet to be granted leave to enter and remain are set out in the Immigration Rules, which are made under the 1971 Act.

6 The key difference between the two immigration systems is that, while the UK is a member of the EU, EEA nationals and their family members enjoy a right to enter and reside in the UK without the need to obtain leave under the 1971 Act. This is known as EU free movement of persons. Non-EEA nationals (other than family members of EEA nationals), on the other hand, generally need leave to enter and remain in the UK. This is given, or refused, on a case-by-case basis by the Home Office according to the UK Immigration Rules in place at the time of the decision.

7 The Bill will end the UK’s implementation of EU free movement - the underpinning legislation for which will have been saved in UK law by the EU (Withdrawal) Act .

8 When free movement ends, EEA nationals and their family members will become subject to UK immigration laws and will be required to have leave to enter and remain under the 1971 Act. The details of the future immigration arrangements (i.e. the requirements to be met to come to the UK as a worker, student, family member etc.) will be set out in the Immigration Rules, as they are now for non-EEA nationals.

9 The future Immigration Rules for EEA nationals have not yet been finalised and will take account of evidence, including from the Migration Advisory Committee , which published its report on the economic and social impacts of the UK’s exit from the EU on 18 September 2018, as well as stakeholder views, wider UK social and economic priorities and discussions with the EU and other countries (including on the nature of the UK’s future relationship with the EU). These Immigration Rules may be the same as those that apply to non-EEA nationals, or they may be different. They can be adapted to take account of any future trade arrangements with other countries.

10 The Government’s White Paper containing proposals for the UK’s future skills-based immigration system has been published. This provides further details on what the future system might look like for EEA nationals and how the Bill provides the legal framework to help deliver it.

11 The Bill also clarifies the status of Irish citizens in the UK once their EU free movement rights end. Since the 1920s British and Irish citizens have enjoyed a status in each other’s State, distinct from that later enjoyed as a consequence of EU citizenship. Section 2(1) of the Ireland Act 1949 declares that "notwithstanding that the Republic of Ireland is not part of Her Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the UK". The fundamental provisions for the immigration status of Irish citizens in the UK are provided for in the Immigration Act 1971, however these provisions only cover Irish citizens who enter the UK from within the Common Travel Area (CTA); Irish citizens travelling from outside the CTA currently enter under the Free Movement Directive 2004/38/EC. The Bill will rectify this disparity and protect the status of Irish citizens; confirming their right to enter and remain without permission when free movement rights end, irrespective of where they have entered the UK from, unless they are subject to a deportation order, exclusion order or an international travel ban.

12 The status for Irish citizens in the Bill supports the wider reciprocal rights enjoyed by Irish citizens when in the UK, mirrored by equivalent provision in Ireland for the treatment of British citizens who are resident there. The British Nationality Act 1948 provides the legal basis for the rights of Irish citizens in the UK, with subsequent legislation and bilateral agreements giving effect to these reciprocal arrangements. As a result of the historic arrangements between the UK and Ireland these rights include, in addition to the right to enter and reside as provided for by this new clause: the right to work and study; access to social welfare entitlements and benefits; access to health services; and voting rights. This Bill does not amend or otherwise modify those historical pieces of legislation; it sets out the immigration rights upon which some of these other rights depend.

13 The Bill also includes provision on social security co-ordination. The EU Social Security Co-ordination Regulations ("SSC Regulations"), as listed in clause 5(2), co-ordinate access to social security for individuals moving between EEA states (and Switzerland). The SSC Regulations deal with social security benefits that cover specific social risks such as unemployment, sickness or old age and cover UK contributory benefits as well as some non-contributory benefits.

14 The SSC Regulations provide for a reciprocal framework and apply to EEA and UK nationals in the UK and in the EEA (respectively) and to some non-EEA nationals. The SSC Regulations determine which member state’s social security legislation applies; the rules ensure an individual is only subject to a single member state’s legislation at any one time, and determine where contributions are due and which state is responsible for payment of certain types of benefit. The SSC Regulations provide for equal treatment of those in scope and for member states to consider periods of work, insurance or residence in another member state when determining entitlement to benefit, which is known as "aggregation". The SSC Regulations also enable individuals, in certain circumstances, to receive certain benefits from the UK irrespective of where they, or the person they are claiming in respect of, reside in the EEA (i.e. UK and EEA nationals can export benefits from the UK).

15 The SSC Regulations will form part of retained EU law post-Exit because they will have been saved in UK law by the EU (Withdrawal) Act. This Bill takes a power to allow the Secretary of State and the Treasury to make post-Exit policy changes to the retained social security co-ordination regime. This will allow the Government (and/or, where appropriate, a devolved authority) to reflect its preferred policy if no agreement is reached with the EU on social security co-ordination matters, or alternatively, to make changes to the regime covering those persons who fall outside the scope of any agreement that is made.


Prepared 19th December 2018