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

Commentary on provisions of Bill

Part 1: Measures relating to ending free movement

Clause 1: Repeal of the main retained EU law relating to free movement etc

24 This clause introduces Schedule 1, which repeals legislation relating to free movement and other EU law relating to immigration, which is retained in UK law by the EU (Withdrawal) Act. The details are set out under the Schedule 1 part of these Notes.

Clause 2: Irish citizens: entitlement to enter or remain without leave

25 The Bill protects the status of Irish citizens in the UK when free movement rights end, a status which existed prior to the UK’s membership of the EU. Currently, due to the interplay between domestic legislation and EU free movement rights, a distinction exists between those Irish citizens who enter the UK from Ireland or the Crown Dependencies (the Common Travel Area (CTA)) and those who enter from a point of departure outside the CTA.1 Under the Immigration Act 1971, Irish citizens entering the UK from another part of the CTA do not require leave to enter or remain in the UK but otherwise are subject to immigration control, for example if travelling to the UK from outside the CTA. It is the EEA Regulations and section 7 of the Immigration Act 1988, which provide that Irish citizens arriving in the UK from outside the CTA do not require leave to enter or remain in the UK, due to their enforceable EU rights. The Bill protects the rights of Irish citizens in the UK irrespective of where they have travelled from, providing the same immigration rights to all Irish citizens that are currently only provided for in the Immigration Act 1971 for those travelling from within the CTA.

26 Clause 2 introduces a new section 3ZA to the Immigration Act 1971 to confirm the status afforded to Irish citizens. Irish citizens will not require leave to enter or remain in the UK and will therefore not be subject to immigration controls unless one of the exemptions set out in new subsections (2), (3) and (4) applies. These exemptions are if the Irish citizen is subject to a deportation order, exclusion order or an international travel ban. This reflects current and long-standing practice. Irish citizens have been liable to deportation since the Commonwealth Immigrants Act 1962 and these powers, along with the powers to exclude or impose a travel ban on Irish citizens, exist in current legislation. It is worth noting that the Government’s approach to the deportation of Irish citizens since 2007 is to only deport Irish citizens where that deportation is in the public interest.

27 New section 3ZA is set out in subsection (2). The inserted 3ZA makes clear that where an Irish citizen is subject to one of the exemptions in its subsections (2), (3) and (4), that individual is not allowed to enter the UK without leave. The clause supports the Government’s commitments in the Belfast (‘Good Friday’) Agreement in relation to citizenship and identity, specifically the birth-right of the people of Northern Ireland to identify themselves and be accepted as Irish or British or both as they may so choose and that such persons have the right to hold both British and Irish citizenship.

28 The Bill does not affect the CTA arrangements set out in section 1(3) of the Immigration Act 1971, except as follows.

29 Subsection (3) amends section 9 of the 1971 Act which relates to further provisions about the CTA, to ensure a consistent approach to how Irish citizens are treated for immigration purposes in line with section 3ZA.

30 Subsection (4) amends Schedule 4 of the 1971 Act which deals with the integration of UK law and the immigration law of the Islands (Jersey, Guernsey and Isle of Man), to align the approach with Irish citizens as set out in section 3ZA.

Clause 3: Meaning of "the Immigration Acts" etc

31 Subsection (1) amends the UK Borders Act 2007 to ensure that this Bill, when enacted, will be covered by any reference to "the Immigration Acts".

32 Subsection (2) makes clear that the Bill is not retained EU law. This means that it is not part of the body of law that will have been saved in UK law by the EU (Withdrawal) Act.

Clause 4: Consequential etc provision

33 Clause 4 allows the Secretary of State to make such regulations as he considers appropriate as a consequence of, or in connection with, Part 1 of the Bill, including supplementary, incidental, transitional or transitory provision and savings. Subsection (2) provides that such regulations may modify any domestic primary or secondary legislation, as well as direct EU legislation which has been retained by the EU (Withdrawal) Act. Subsection (3) provides that such regulations may make supplementary, incidental, transitional, transitory and saving provision and make different provision for different purposes.

34 Subsection (4) states that regulations made under this clause may include provision in respect of persons who were not entitled to be in the UK under the EEA Regulations or under enforceable rights. For example, the provision could be used to make savings in relation to EEA nationals who are in the UK before EU Exit and who are before Exit treated for most purposes as though they were exercising Treaty rights, although they are not actually doing so. An example of such a person would be the spouse of an EEA national who does not have comprehensive sickness insurance and who is not otherwise exercising Treaty rights, such as the right to work, who is therefore not technically exercising EU rights of free movement.

35 Subsection (5) provides that regulations made under this clause can amend legislation relating to fees and charges which are connected with the wider repeal of free movement law.

36 Subsections (6) to (9) set out the Parliamentary scrutiny for regulations made under clause 4. Subsections (6) and (7) state that any regulations made under clause 4 which amend existing primary legislation will be subject to the affirmative procedure, which means they must be approved by both Houses of Parliament. In the case of the first set of regulations made under clause 4, they will be subject to the made-affirmative procedure, which means they will come into effect immediately but must then be approved by both Houses to remain in force. Subsection (8) confirms that any other regulations will be subject to the negative procedure. Subsection (9) specifies circumstances which will not count towards the scrutiny period set out in subsection (6) for regulations made under clause 4.

37 Subsection (10) states that if any regulations made under clause 4 cease to apply because they are not approved by both Houses of Parliament within 40 days, where this is required, this will not affect anything which has already been done under those regulations or prevent further regulations from being made.

Part 2: Social security co-ordination

Clause 5: Power to modify retained direct EU legislation relating to social security co-ordination

38 Clause 5 provides a power to an appropriate authority (defined, in subsection (7), as the Secretary of State or the Treasury, a devolved authority, or a Minister of the Crown acting jointly with a devolved authority) to modify, by regulations, the retained direct EU legislation listed in subsection (2) (commonly known as the EU Social Security Co-ordination Regulations). These directly applicable EU regulations provide for social security co-ordination across the EEA (including Switzerland).

39 This clause allows the Government (and/or, where appropriate, a devolved authority) to make regulations to implement any new policies regarding co-ordination of social security. This clause is intended to be used to implement new policies in situations where the UK has not entered into an agreement with the EU and/or another member state of the EU. It is also intended to be used to make provision for persons who fall outside of the scope of any agreement, but who are nevertheless within the scope of the EU social security co-ordination regulations, as retained in domestic law on exit via the EU (Withdrawal) Act.

40 Subsection (3) sets out that such regulations can make different provision for different categories of person and for different purposes, as well as making supplementary, incidental, consequential, transitional, transitory or saving provision.

41 Subsection (4) states that consequential (etc) provision includes modification to provisions made by or under primary legislation or to retained direct EU legislation not listed in subsection (2).

42 Subsection (5) ensures that any directly effective rights that will have been saved by the EU (Withdrawal) Act cease to apply insofar as they are inconsistent with, or are otherwise capable of affecting, the interpretation or application of provision made by regulations under clause 5.

43 Subsection (6) provides for the interpretation of terms included in subsection (5).

44 Subsection (7) defines an "appropriate authority" as being the Secretary of State or the Treasury, a devolved authority, or a Minister of the Crown acting jointly with a devolved authority.

45 Subsection (8) indicates that further provision about the power of devolved authorities to make regulations under this clause is set out in Schedule 2.

46 Subsection (9) indicates that further provision about the making of regulations under this clause is set out in Schedule 3.

Part 3: General

Clause 6: Interpretation

47 Clause 6 provides for the interpretation of terms included in the Bill.

Clause 7: Extent, commencement and short title

48 The provisions of the Bill extend to the whole of the United Kingdom. In the view of the UK Government, the immigration matters to which the provisions of the Bill relate are not within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly. However, it is within the legislative competence of the Scottish Parliament and Northern Ireland Assembly to amend limited elements of the retained SSC Regulations. Therefore, a Legislative Consent Motion (LCM) will be sought for clause 5, relating to social security co-ordination.

49 Subsections (2) to (4) enable the provisions of, and amendments made by, Part 1 of the Bill to be extended to the Channel Islands, the Isle of Man or the British overseas territories by Order in Council.

50 Subsection (5) provides that provisions of regulations made under clause 4 of the Bill which amend legislation that already extends directly to any of those territories have the same extent as the legislation being amended.

51 Subsection (6) sets out that this clause and clause 6 on interpretation will come into force on the day the Bill receives Royal Assent.

52 Subsection (7) sets out that clause 5 and Schedules 2 and 3 come into force on a day appointed by the Secretary of State or the Treasury by regulations. Subsection (10) provides that commencement regulations under subsection (7) may commence clause 5, and Schedules 2 and 3, on different days for different parts of the United Kingdom.

53 Subsection (8) provides that the other provisions in the Bill will come into force on a day appointed by the secretary of State by regulations.

54 Subsection (9) sets out that regulations commencing provisions of the Bill under subsections (7) and (8) may make transitional, transitory or saving provision and may make different provision for different purposes.

55 Subsection (11) states that the short title of the Bill when enacted will be the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2019.

Schedule 1: Repeal of the main retained EU law relating to free movement etc

Part 1: EU-derived domestic legislation

56 Part 1 of Schedule 1 repeals EU-derived domestic legislation relating to free movement; it revokes the EEA Regulations, which implement the EU Free Movement Directive 2004/38/EC, and omits section 7 of the Immigration Act 1988. This will have the effect of bringing EEA nationals and their family members within scope of the 1971 Act, thus requiring them to have leave to enter or remain in the UK.

57 Paragraph 2, sub-paragraph (1), omits the power in section 109 of the Nationality, Immigration and Asylum Act 2002 to make regulations to provide for, or make provisions about, an appeal against an immigration decision relating to free movement of persons. This reflects the position that free movement will have ended. Paragraph 2, sub-paragraph (3), makes further amendments to the 2002 Act to reflect the fact that section 109 has been omitted.

58 Paragraph 3 amends the Provision of Services Regulations 2009 which implement the Services Directive (2006/123/EC), that aims to simplify the establishment and movement of services within the Single Market. This paragraph inserts a new provision into regulation 5 (general exclusions and savings) so that nothing in those Regulations affects the operation of provision made by or under the Immigration Acts. This is necessary to ensure that free movement of persons is fully repealed.

Part 2: Retained direct EU legislation

59 Part 2 of Schedule 1 repeals direct EU legislation relating to free movement of persons, which will have been saved in domestic law by the EU (Withdrawal) Act . These measures are being revoked because they will no longer be recognised in domestic law once the UK leaves the EU.

60 Paragraph 4 deals with Regulation (EU) No. 492/2011 relating to freedom of movement for workers within the Union (the "Workers Regulation"), which provides for the freedom of movement of workers in various ways, including through rights to residency, equal treatment and access to education.

61 Paragraph 4, sub-paragraph (1), revokes Article 1 of the Workers Regulation, which is specific to immigration and provides a right to be in the territory of another member state to pursue employment. Paragraph 4, sub-paragraph (2), ensures that other provisions of the Workers Regulation, which are not specific to immigration, do not have ongoing effects for UK immigration law but continue to have effect for other purposes. For example, this will prevent an individual claiming that they have a right of residence in the UK under Article 10 of the Workers Regulation on the basis that their child is in education here; this does not prevent the resident child of an EU national who is legally resident and employed in the UK from being able to rely on Article 10 to access UK education on the same conditions as UK nationals.

Revoked Regulations

62 Paragraphs 5(a) and (b) revoke two Council Regulations which relate to harmonising formats for visas within the EU. These measures ensure that standards for issuing visas and resident permits are the same between all EU member states. As the UK is leaving the EU, the UK will no longer be obliged to meet the same requirements for issuing these documents as the EU and therefore these measures are being revoked.

63 Paragraph 5(c) revokes Council Regulation (EC) No 377/2004 of 19 February 2004 on the creation of an immigration liaison officers (ILO) network. This measure allows member states to send ILOs to non-EU countries to establish and maintain contacts with the relevant authorities of that country, with a view to combatting illegal immigration. Once the UK leaves the EU, it will no longer take part in the ILO network established under this Regulation; therefore, it is being revoked.  

Revoked decisions

64 Paragraph 6(a) revokes Commission Decision of 8 June 1988 setting up a prior communication and consultation procedure on migration policies in relation to non-member countries (88/384/EEC). This Decision requires member states to communicate to the other member states and to the EU Commission any measures which they intend to make in the areas of asylum and immigration, at the latest when they are made public. Although in force, this measure is no longer used by member states. The UK will no longer be required to provide this information once it leaves the EU and therefore the measure, as saved in domestic law, is being revoked.

65 Paragraph 6(b) revokes Council Decision of 26 May 1997 on the exchange of information concerning assistance for the voluntary repatriation of non-EEA nationals (97/340/JHA). This Decision requires EU member states that have developed national voluntary return programmes to report them to the General Secretariat of the Council of the European Union. The UK will no longer be required to report this information to the Council of the European Union in the future; therefore, the measure is being revoked.

66 Paragraph 6(c) revokes Council Decision of 23 February 2004 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of non-EEA nationals (2004/191/EC). This Decision sets out criteria and practical arrangements for the compensation of the financial imbalances which may result from the application of Directive 2001/40/EC where an individual cannot be removed at their own expense and payment is required from the member state which issued the removal decision. The UK will no longer be able to request financial re-payment from EU member states, for persons who are being removed after it leaves the EU; therefore, this measure is being revoked.

67 Paragraph 6(d) revokes Council Decision of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member states of non-EEA nationals who are subjects of individual removal orders (2004/573/EC). This measure aims to set out the procedures for coordinating joint removal operations by air of non-EU nationals. The UK will no longer be able to operate this Decision unilaterally after it leaves the EU; therefore, this measure is being revoked.

68 Paragraph 6(e) revokes Council Decision of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States’ Migration Management Services (2005/267/EC). This measure establishes a secure web-based Information and Coordination Network for the exchange of information on irregular migration, illegal entry and immigration and the return of illegal residents. The UK will no longer have access to this EU web-based network after it leaves the EU; therefore, the measure will not operate and is being revoked.

69 Paragraph 6(f) revokes Commission Decision of 29 September 2005 on the format for the report on the activities of immigration liaison officer networks and on the situation in the host country in matters relating to illegal immigration (2005/687/EC). This measure annexes a template for ILOs to use when reporting on activities on illegal migration in host countries outside the EU. The UK will no longer participate in the ILO network after it leaves the EU and will therefore not be required to provide reports on illegal migration in this format. Consequently, this measure is being revoked.

70 Paragraph 6(g) revokes Council Decision of 14 May 2008 establishing a European Migration Network (EMN) (2008/381/EC). This measure establishes the EMN network, which aims to provide up-to-date, objective and comparable information on migration and asylum, with a view to supporting policymaking in the European Union in these areas. This measure will no longer operate in domestic law after the UK leaves the EU because the UK will no longer participate in the EMN network as a member state.

71 Paragraph 7 relates to the Schengen area, which represents a territory where the free movement of persons is guaranteed. States which have signed the agreement have abolished all internal borders in lieu of a single external border.

72 Article 1(1) of Council Decision of 29 May 2000 concerns the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (2000/365/EC) (as amended) and Article 1 of Council Decision of 22 December 2004 (2004/926/EC) concerns the implementation of parts of the Schengen acquis by the UK (as amended). These Decisions gave effect to Article 26 of the 1990 Schengen Convention, which implements the original Schengen Agreement of 14 June 1985, and obliges the UK to:

• adopt national rules which oblige carriers to assume immediate responsibility for ‘aliens’ who are refused entry and to return those persons to the third state from which they were transported, the third state which issued the travel document on which that person travelled or to any other State to which they are certain to be admitted;

● adopt national rules which ensure that carriers are obliged to take all necessary measures to ensure that an ‘alien’ carried by air or sea is in possession of the travel documents required for entry into the territories of the contracting parties; and

● impose penalties on carriers who transport those who do not possess the necessary travel documents from a third state into the territories of the contracting parties.

73 The UK currently only takes part in some aspects of the Schengen Agreement, such as penalising of carriers for conveying inadequately documented passengers. Paragraph 7(1)(a) and (b) repeal these Council Decisions insofar as they relate to Article 26 of the 1990 Schengen Convention to ensure that the UK has the freedom to adopt its own approach to penalising carriers for conveying inadequately documented passengers.

Part 3: EU-derived rights etc

74 The EU (Withdrawal) Act saves as part of UK law directly effective rights that currently flow through section 2(1) of the European Communities Act 1972 (ECA). This includes rights set out in the Treaty on the European Union, the Treaty on the Functioning of the European Union (TFEU), the agreement with the European Economic Area (EEA) and in other international agreements, such as the Swiss Agreement on the Free Movement of Persons and the EU’s Association Agreement with Turkey. It also saves rights derived from Directives that have been recognised by the courts prior to Exit. A number of these rights could be relied upon in an immigration context.

75 Part 3 of Schedule 1 disapplies other retained EU law relating to free movement of persons. It deals with directly effective rights flowing from the Free Movement Agreement between the EU and Switzerland which will have been saved as part of domestic law by the EU (Withdrawal) Act . It ensures that the rights derived from the specific provisions listed in paragraph 8, sub-paragraph (1)(b), cease to be recognised and available in domestic law. As a result, Swiss nationals and their family members, like EEA nationals and their family members, will be subject to the immigration requirements set out in the 1971 Act and the rules made under that Act.

76 Paragraph 9 ensures that any directly effective rights that will have been saved by the EU (Withdrawal) Act cease to apply insofar as they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, immigration legislation or functions. For example, the right that is derived from Article 56 of the TFEU (free movement of services) will be retained EU law and, although it does not specifically concern immigration, unless it is revoked it may be argued that it provides a right to enter the UK to provide services. If such an argument were raised and that interpretation conflicted with the relevant immigration legislation, the right derived from Article 56 would cease to be recognised for that purpose. However, the right derived from Article 56 would continue to apply in non-immigration contexts unless revoked.

77 The following is a non-exhaustive list of the directly effective rights relevant to this Paragraph.

Schedule 2: Power of Devolved Authorities Under Section SSC01

Part 1: Scope of the Power

78 No power to make provision outside devolved competence - Paragraph 1 states that a devolved authority can only legislate alone if the provision is within its devolved competence. Paragraph 2 and 3 set out what is within devolved competence for the purposes of this Schedule.

79 Requirement for consent where it would otherwise be required - Paragraph 4 sets out that if a devolved authority is using the power in a way that would require consent if it were a provision in its own legislation, or where the devolved authority would normally require consent from the UK Government to make such a provision in secondary legislation, then that consent will still be required. This will not apply if the devolved authority has the power to make such provision without needing UK Government consent.

80 Requirement for joint exercise where it would otherwise be required - Paragraph 5 sets out that where a devolved authority would normally only be able to make legislation jointly with the UK Government, the devolved authority will still have to make such legislation jointly when exercising the power.

81 Requirement for consultation where it would otherwise be required - Paragraph 6 requires consultation with the UK Government on legislation made by a devolved authority in exercise of the power where the devolved authority would normally be required to consult the UK Government.

Part 2: Transitional Provision

82 Transitional Provisions - Paragraph 8 dis-applies section 57(2) of the Scotland Act 1998 (restriction on acting incompatibly with EU law and Convention rights) and section 24(1)(b) of the Northern Ireland Act 1998 (restriction on acting incompatibly with EU law) in relation to regulations made under clause 5.

Schedule 3: Regulations Under Clause 5

Part 1: Statutory Instruments

83 Statutory instruments - Paragraph 1 prescribes that the power is to be exercised by statutory instrument.

Part 2: Scrutiny of Regulations under Clause 5

84 Scrutiny where sole exercise - Paragraph 3 provides that where the UK Government or a devolved authority solely exercises the clause 5 power the procedure for regulations will be the affirmative. This means the regulations must be debated and approved by both Houses of Parliament before they have legal effect.

85 Scrutiny where joint exercise - Paragraph 4 provides that where the UK Government and a devolved authority exercise the power under clause 5 jointly, the affirmative procedure applies in both the UK Parliament and the devolved parliaments/assemblies.

86 Combination of instruments - Paragraph 5 permits other regulations subject to the negative procedure to be included in an instrument made under clause 5.