Clause 7: Rights related to residence: application deadline and temporary protection
129 This clause provides Ministers of the Crown with a power to make regulations implementing the provisions in the Agreements which enable the UK to require individuals within scope of the Agreements or within scope of residence scheme immigration rules (the protected cohort) to apply for a UK immigration status (leave to enter or remain) conferring their residence rights under those Agreements by a specific deadline. It also enables regulations to be made that ensure that the protected cohort continue to enjoy the residence rights in the UK pending conferral of their new immigration status. The UK is giving effect to its commitments in the Agreements regarding residence status for EU citizens, EEA EFTA and Swiss nationals and their family members through the EU Settlement Scheme, which was established under Immigration Rules made under section 3(2) of the Immigration Act 1971.
130 Free movement rights for EU citizens and EEA EFTA nationals are set out in the EU Treaties and Directive 2004/38/EC and implemented domestically through section 7 of the Immigration Act 1988 and the EEA Regulations 2016. Free movement rights for Swiss nationals are set out in the FMOPA (as defined above), and also implemented domestically through the EEA Regulations 2016. In line with government policy, the Home Office will seek parliamentary approval to, at the end of the implementation period, end the UK’s participation in the free movement of people within the European Economic Area through the planned Immigration and Social Security Co-ordination (EU Withdrawal) Bill. By ending free movement, EU citizens, EEA EFTA nationals, and Swiss nationals will become subject to immigration control. Once free movement has ended, beneficiaries of the citizens’ rights part of the Agreements who have not yet secured leave to enter or remain in the UK under the EU Settlement Scheme would no longer have a lawful basis to reside in the UK unless further provision is made.
131 Subsection (1)(a) enables a Minister of the Crown to specify the deadline for applications for immigration status under the EU Settlement Scheme, as set out in Article 18(1)(b) of the Withdrawal Agreement, Article 17(1)(b) of the EEA EFTA Separation Agreement, and Article 16(1)(b) of the Swiss Citizens’ Rights Agreement. As provided for in the Agreements, this deadline must not be less than six months from the end of the implementation period. This provides for a grace period after the end of the implementation period in which EU law will no longer apply but the rights and protections flowing from the Agreements must be available in legal and practical terms to individuals under the Agreements and members of the protected cohort who have not yet obtained their immigration status under domestic law.
132 The powers under this clause may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.
133 Subsection (1)(b), (c) and (d) enable a Minister of the Crown, by regulations, to implement Article 18(2) of the Withdrawal Agreement, Article 17(2) of the EEA EFTA Separation Agreement, and Article 16(2) of the Swiss Citizens’ Rights Agreement. Those provisions apply all the rights provided for in the citizens’ rights parts of the Agreements to members of the protected cohort who have not yet obtained their immigration status under domestic law during the grace period.
134 Subsection (1)(e), (f) and (g) enable a Minister of the Crown to make regulations to provide that, where a person has made a valid application for immigration status under the EU Settlement Scheme, all the rights provided for in the citizens’ rights parts of the Agreements shall apply to that person until the application is finally determined, including procedures for judicial redress where applicable.
135 The Government intends that regulations under subsection (1)(b) to (g) will give effect to the relevant provisions in the Agreements largely by saving the necessary components of the existing regime in the EEA Regulations 2016 that protect the rights of EU citizens, EEA EFTA nationals, under the Free Movement Directive and Swiss nationals under Annex I of FMOPA during the grace period and pending resolution of individual applications for status under the EU Settlement Scheme.
136 Subsection (2) and (3) will enable regulations under subsection (1) to apply both to the persons whom the provision in question applies and to all those who are eligible for or in the case of subsection (3) have applied for leave under the EU Settlement Scheme. This will enable provision to be made, for example, to protect the position of certain groups who currently derive their residence rights from EU law, but who are not covered by the Agreements such as family members of British citizens who benefit from the Surinder Singh principle.1
137 Subsection (4) states that regulations made under this power may modify any provision made by or under an enactment.
1 Surinder Singh established the principle that nationals of Member States should not be deterred from leaving their country of origin to pursue an economic activity in another Member State. They would be so deterred if on returning to the Member State of which they are a national they did not enjoy conditions at least equivalent to those they would enjoy under community law in the territory of another Member State. In this case in respect of family reunification rights.