65 Rights in relation to entry and residence:
a. Free movement rights for EU citizens, EEA EFTA nationals, and Swiss nationals are underpinned by the EU Treaties, Directive 2004/38/EC (the Free Movement Directive), and the EU-Swiss Free Movement of Persons Agreement (FMOPA). These are implemented domestically primarily through the Immigration (European Economic Area) Regulations 2016 (the ‘EEA Regulations 2016’). The EEA Regulations 2016 are secondary legislation made under the ECA and the Nationality, Immigration, and Asylum Act 2002. The EEA Regulations 2016 provide for various citizens’ rights, including residence rights, appeal rights, and rights of frontier workers1, and set out thresholds for deportation and exclusion of EU citizens, EEA EFTA nationals, and Swiss nationals.
b. Free movement covers four broad areas: the right to enter the UK; the right to reside; the right to work; and rights to access benefits and services, and to equal treatment. The citizens’ rights provisions in the Bill, along with the EU Settlement Scheme established under the Immigration Rules, provide for the domestic implementation of the UK’s obligations under the Agreements in these four broad areas.
c. As free movement ends, the UK will move away from the EU law framework of rights defined in the EU Treaties, the Free Movement Directive, and FMOPA. The EEA Regulations 2016 will be revoked at the end of the implementation period. In place of the EU law framework of residence, a domestic law framework for residence will be established based on the skills people can contribute to the UK.
d. EU citizens, EEA EFTA nationals, and Swiss nationals, and their family members resident in the UK before the end of the implementation period are already able to apply for residence status under the EU Settlement Scheme.
e. EU citizens, EEA EFTA nationals, and Swiss nationals, and their family members who have been continuously resident in the UK for five years are eligible for settled status, which is also referred to as ‘indefinite leave to remain’ in current UK immigration law. EU citizens, EEA EFTA nationals, and Swiss nationals, and their family members who have been continuously resident in the UK for less than five years are eligible for ‘pre-settled status’, also referred to in UK immigration law as ‘limited leave to remain’. This means that the individual is granted five years limited leave to remain, and is eligible to apply for settled status as soon as they have completed five years continuous residence in the UK.
f. EU citizens, EEA EFTA nationals, and Swiss nationals with either settled status or pre-settled status will continue to be entitled to work, study, and access public services and benefits on the same basis as they do now. These entitlements for EU citizens, EEA EFTA nationals and Swiss nationals will be subject to future domestic policy changes which apply to UK nationals.
g. As set out in the policy summary section of these notes, the EU Settlement Scheme has been legislated for through Immigration Rules under the Immigration Act 1971. In addition, the Bill will enable certain parts of the EEA Regulations 2016 to be saved and modified so that they continue to apply for a specified period to persons within the scope of citizens’ rights protections as set out in the Withdrawal Agreement and the Bill. The interaction between the EEA Regulations 2016 and the citizens’ rights provisions in the Bill is explained in detail in the commentary on the provisions of the Bill below.
66 Professional qualifications:
a. Directive 2005/36/EC (Professional Qualifications Directive), Directive 98/5/EC (Lawyers Establishment Directive), Directive 2006/43/EC (Audit Directive), and Council Directive 74/556/EEC (Professions involving trade, distribution and professional use of toxic products) provide for the recognition of professional qualifications. EU citizens and EEA EFTA nationals and their family members residing or working in the UK at the end of the implementation period with recognitions under these Directives will continue to have qualifications recognised under the Withdrawal Agreement and EEA EFTA Separation Agreement.
b. Swiss nationals with recognised qualifications under Directive 2005/36/EC, Directive 98/5/EC, Council Directive 74/556/EEC, Council Directive 86/653/EEC (concerning self-employed commercial agents) will continue to have qualifications recognised under the Swiss Citizens’ Rights Agreement. Certain service providers will also, for a 5 year period after the end of the implementation period, be able to rely on Council Directive 77/249/EEC (to facilitate the effective exercise by lawyers of freedom to provide services) and Title II of Directive 2005/36/EC (temporary and occasional provision of services) to use their qualifications to continue to provide services if certain conditions are met.
c. In the UK, these directives are implemented via both primary and secondary legislation including the EU (Recognition of Professional Qualifications) Regulations 2015, the European Communities (Recognition of Professional Qualifications) Regulations 2007 and sector specific legislation such as the Medical Act 1983. The European Communities (Lawyer’s Practice) Regulations 2000 and the European Communities (Lawyer’s Practice) (Scotland) Regulations 2000 implement the Lawyers Establishment Directive. The rights of approved statutory auditors are implemented in domestic law under Part 42 of the Companies Act 2006.
d. During the implementation period, individuals with professional qualifications may continue to apply for recognition of those qualifications. For those in scope of the residence parts of the Withdrawal Agreement and EEA EFTA Separation Agreement, any qualifications recognised, or in the process of recognition, by the end of the implementation period will continue to be recognised. Decisions on recognition of qualifications sought after the end of the implementation period will be subject to the outcome of future relationship negotiations.
e. For those in scope of the Swiss Citizens’ Rights Agreement, any qualifications recognised, or in the process of recognition, by the end of the implementation period will continue to be recognised. It has also been agreed that any Swiss or UK national with a qualification, or in the process of obtaining a qualification at the end of the implementation period, can apply for recognition of their qualifications within four years of the end of the implementation period.
67 Co-ordination of social security systems:
a. This part is underpinned by the EU regulations on social security co-ordination, which protect the social security position of persons who move and work around the EU. These are Regulations (EC) 883/2004 and 987/2009, and Regulations (EEC) 1408/71 and 574/72 in respect of third country nationals in the UK.
b. The EU regulations on social security co-ordination will continue to apply in the UK at the end of the implementation period for persons in scope of the Agreements. The Bill will ensure that the EU regulations will have the same legal effect in the UK as they do in Member States. Further explanation as to the application of EU social security co-ordination regulations in the UK via the Bill is provided in the commentary section below.
68 Equal treatment:
a. Articles 18, 21, 45 and 49 of the Treaty on the Functioning of the EU (TFEU), Article 24 of Directive 2004/38 and Regulation (EU) 492/2011 provide for the prohibition of discrimination on the grounds of nationality and for equal treatment between EU citizens and nationals of the host state. There are similar protections in the EEA EFTA Separation Agreement and the FMOPA.
b. For persons residing and working in the UK on the basis of the Agreements, the prohibition on discrimination on grounds of nationality and rights to equal treatment will continue. Further explanation as to how the Bill provides for this is explained below.
1 Frontier workers are EU citizens, EEA nationals, or Swiss citizens who pursue employment (including self-employment) in the UK but are not resident in the UK.