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

Explanatory Notes

Policy background

5 There are currently two immigration systems in the UK: one governing the immigration arrangements for EEA citizens and their family members and one governing the arrangements for non-EEA citizens. Although the UK is no longer a member of the EU, the EU’s rules on free movement of persons will remain in force until the end of the transition period (31 December 2020) and thereafter until the retained EU law on free movement is repealed.

6 The movement of people between EEA member states (EU member states and Iceland, Norway and Liechtenstein) is governed primarily by the EU Free Movement Directive 2004/38/EC. This sets out the rights of EEA citizens and their family members to move and reside freely within these territories. The Directive is primarily implemented in UK law through the Immigration (European Economic Area) Regulations 2016 ("EEA Regulations"). The EEA Regulations also extend to citizens of Switzerland and their family members whose free movement rights are governed by the EU/Swiss Agreement on the Free Movement of Persons. As the EEA Regulations extend to citizens of the EEA and Switzerland, measures in Part 1 of the Bill will extend to these nationalities as well, except clause 2 which relates only to Irish citizens.

7 Non-EEA citizens (other than those who are family members of EEA citizens) require permission to enter and stay in the UK under the Immigration Act 1971 ("the 1971 Act"). This permission is given, or refused, on a case-by-case basis according to the UK Immigration Rules. The detailed requirements a person must meet to be granted leave to enter and remain are set out in the Immigration Rules, which are laid before Parliament under the 1971 Act.

8 Following the UK’s exit from the EU on 31 January 2020, the free movement of people continues to apply in UK law by virtue of the EUWA 2018, as amended by the EUWAA 2020, until the end of the transition period. The Government’s intention is to repeal the free movement legislation at the end of the transition period so that from 2021, EEA citizens and their family members who come to the UK after that date will be subject to UK immigration laws and will be required to have permission to enter and remain under the 1971 Act.

9 The Government has legislated to protect resident EEA citizens and their family members through the EUWAA 2020, which protects the residence rights of EEA citizens and their family members who are resident in the UK by the end of the transition period. The Government fully opened the EU Settlement Scheme (EUSS) to all EEA citizens and their family members on 30 March 2019. The Scheme is set out in the Immigration Rules to enable EEA citizens and their family members to apply for UK immigration status, so their current rights continue, and their status is clear when the new global points-based immigration system begins. The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 made under the EUWAA 2020, provide individuals who apply under the EUSS or for an EUSS family permit or travel permit, after 31 January 2020, with a right of appeal against decisions affecting their entitlement to enter and remain in the UK under the EUSS, and against decisions in relation to applications for EUSS family permits or travel permits.

10 Those individuals who have a right to apply under the EUSS will have until 30 June 2021 to do so, provided they arrived in the UK by the end of 2020. This period of six months between the end of the transition period (31 December 2020) and 30 June 2021 is referred to as ‘the grace period’ and is a requirement of Articles 18(1)(b) and 18(2) of the UK-EU Withdrawal Agreement (and equivalent provisions in the EEA EFTA and Swiss citizens’ rights agreements). Statutory instruments to be made under the powers in the EUWAA 2020 will protect EEA citizens and their family members’ existing rights of residence, entry and exit until then. These savings will also extend to those with pending applications to the scheme and those with unresolved appeals. The Government will also bring forward a statutory instrument to ensure individuals who are in the UK as frontier workers by the end of the transition period can continue working from January 2021 onwards. Frontier workers are individuals who are resident outside the UK, but employed or self-employed in the UK.

11 The Government set out in its manifesto in 2019 that once free movement ends, it will deliver a new points-based immigration system to attract the brightest and best talent from around the world. The Government commissioned advice from the Migration Advisory Committee (MAC) on a points-based immigration system as well as on salary thresholds in the immigration system. The MAC published its report on both issues on 28 January 2020. The Government published its policy statement "The UK’s Points-Based Immigration System" on 19 February 2020 setting out further information on the new immigration system for EEA and non-EEA citizens. The future requirements which will apply to EEA citizens wishing to come to the UK from January 2021 (and who were not resident in the UK prior to that) will be set out in the Immigration Rules as is the case now for non-EEA citizens.

12 The Bill 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 unique 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 His 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 UK domestic law 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 address 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 from where they entered the UK, unless they are subject to a deportation order, exclusion order or an international travel ban.

13 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 and the Ireland Act 1949, as well as the Common Travel Area (CTA) legislation in the Immigration Act 1971, provide the legal basis for the rights of Irish citizens in the UK, with subsequent legislation and bilateral agreements also 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 the Bill: the right to work and study; access to social welfare entitlements and benefits; access to health services; and voting rights. The UK Government and the Government of Ireland signed a Memorandum of Understanding on 8 May 2019 which reaffirmed both Governments’ commitment to the CTA and to maintaining the associated rights and privileges of Irish and British citizens under this longstanding reciprocal arrangement. This Bill does not amend or otherwise modify those historical pieces of legislation; it sets out the immigration status upon which some of these other rights depend.

14 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).

15 The SSC Regulations provide for a reciprocal framework and apply to EEA and UK citizens in the UK and in the EEA (respectively) and to some non-EEA citizens. Amongst other things, the SSC Regulations determine which member state’s social security legislation applies, ensure an individual is only subject to a single member state’s legislation at any one time, determine where contributions are due and which state is responsible for payment of certain types of benefit. The SSC Regulations provide for member states to consider periods of work, insurance or residence in another member state when determining entitlement to benefits, 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 nationals and EEA citizens can export benefits from the UK).

16 The SSC Regulations will be retained in UK law by the EUWA 2018, as amended by the EUWAA 2020, at the end of the transition period.

17 The UK-EU Withdrawal Agreement (and equivalent provisions in the EEA EFTA and Swiss citizens’ rights agreements) establishes a cohort of citizens to whom the EU’s SSC rules will continue to apply after the end of the transition period, no matter what the future relationship covers or whether a future relationship is agreed. This cohort primarily consists of EEA citizens living or working in the UK, and UK nationals living or working in the EEA, at the end of the transition period, as well as certain other groups. Changes to the rules on SSC made under this Bill will not be applied to this group for as long as they remain in scope of the Withdrawal Agreement. The EUWAA 2020 also protects the social security position of individuals who have lived and worked between the UK and the EEA by the end of the transition period.

18 The social security co-ordination clause in the Bill takes a power to modify the retained SSC Regulations and to make consequential provision to other legislation. This will enable DWP or HM Treasury (or where appropriate a devolved authority) to make changes to retained SSC arrangements whether the UK has a future agreement with the EU at the end of the transition period or not. It would also allow provisions to be made for persons who fall outside of the scope of any future reciprocal agreements, for example, but are within the scope of the Withdrawal Agreement or the equivalent arrangements with the EEA EFTA States or Switzerland.

19 In February 2019 the UK and Irish Governments signed a further Convention on Social Security. The Convention preserves the reciprocal social security rights established through the historic CTA arrangements which, in so far as they relate to social security contributions, pensions and benefits are currently provided under EU law. It ensured the position of British and Irish citizens who move, or have moved, between the UK and Ireland will not change following the UK’s exit from the EU. It guarantees continued access to, and equality of treatment in relation to, social security provision for UK and Irish citizens and their qualifying family members in each country and thereby upholds the principles of equal treatment and reciprocity established since the 1920s. This Bill does not amend or affect the Convention on Social Security between the UK and Ireland.


Prepared 4th March 2020