Explanatory Notes

Clause 9: Restrictions on rights of entry and residence

144 This clause provides Ministers of the Crown with a power to make regulations to implement provisions of the Agreements that relate to restrictions on rights of entry and residence. Articles 20(1), (3), and (4) of the Withdrawal Agreement, Articles 19(1), (3), and (4) of the EEA EFTA Separation Agreement, and Articles 17(1), 17(3), and 20(3) of the Swiss Citizens’ Rights Agreement outline the conditions for restrictions on rights of entry and residence in relation to protected persons.

145 These articles provide that the restriction of a protected person’s entry or residence rights on the grounds of conduct committed before the end of the implementation period must be made in accordance with Chapter VI of Directive 2004/83/EC, and Article 5 of Annex I of the FMOPA. These articles also provide that protected persons can continue to be removed from the UK as a result of fraud and/or abuse of their rights, as is currently the case under the EEA Regulations 2016.

146 This power may, among other things, be exercised by saving and modifying the current provisions for restricting admission and residence rights under the EEA Regulations 2016, to ensure that those provisions continue to apply in relation to restriction decisions made on the grounds of conduct taking place before the end of the implementation period. Specifically, where restriction decisions are made on the grounds of conduct that took place before the end of the implementation period, the public policy, public security or public health test will apply. The power may also be used to save and modify provisions within the EEA Regulations 2016 relating to the removal of EEA nationals and their family members on the grounds of fraud or abuse of their rights.

147 This power may additionally 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.

148 Subsection (1) provides for the power to make regulations to implement Articles 20(1), (3), and (4) of the Withdrawal Agreement, and the corresponding Articles 19(1), (3), and (4) of the EEA EFTA Separation Agreement, and Articles 17(1), 17(3), and 20(3) of the Swiss Citizens’ Rights Agreement.

149 Subsection (2) provides that regulations under subsection (1) can be applied both to persons to whom the provisions set out in subsection (1) apply and those not so covered but granted leave to enter or remain under residence scheme immigration rules, those who have entry clearance granted by virtue of relevant entry clearance immigration rules, and those who otherwise have leave to enter granted after arriving with entry clearance by virtue of relevant entry clearance immigration rules.

150 Subsection (3) states that references to a person who has entry clearance or leave to enter or remain include persons who would have had entry clearance or leave to enter or remain but for the making of a deportation order under section 5(1) of the Immigration Act 1971 or any other decision made in connection with restricting a right to enter the UK.

151 Subsection (4) states that the power to make regulations under this clause may be made by modifying the Immigration Acts, as defined in Schedule 1 of the Interpretation Act 1978, including secondary legislation made under those Acts or by modifying provisions made under any other primary legislation.

 

Prepared 19th December 2019