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

28 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 EUWA 2018. The details are set out under the Schedule 1 part of these Notes.

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

29 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. 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. As legislation relating to free movement and other EU law relating to immigration is being repealed, the Bill protects the rights of Irish citizens in the UK irrespective of where they have travelled from, providing the same immigration status to all Irish citizens that are currently only provided for in the Immigration Act 1971 for those travelling from within the CTA.

30 Clause 2 introduces new section 3ZA to the Immigration Act 1971 to confirm the status of 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 subsections (2), (3) and (4) applies. These exemptions are that 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. The Government’s approach to the deportation of Irish citizens since 2007 is to only deport Irish citizens where recommended by a court in sentencing or in exceptional circumstances where that deportation is in the public interest.

31 The Bill does not affect the CTA arrangements set out in section 1(3) of the Immigration Act 1971.

32 Subsection (3) of clause 2 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.

33 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 to Irish citizens as set out in section 3ZA.

Clause 3: Meaning of "the Immigration Acts" etc

34 Subsection (1) amends the UK Borders Act 2007 to ensure that Part 1 (and associated provisions in Part 3) of this Bill, when enacted, will be covered by any reference to "the Immigration Acts".

35 Subsection (2) makes clear that Part 1 of the Bill is not retained EU law. This means that it is not part of the body of law that is saved in UK law by the EUWA 2018.

Clause 4: Consequential etc provision

36 Clause 4 allows the Secretary of State to make such regulations as she considers appropriate as a consequence of, or in connection with, Part 1 of the Bill. Subsection (2) provides that such regulations may modify primary or secondary legislation, as well as direct EU legislation which is retained by the EUWA 2018 at the end of the transition period. Subsection (3) provides such regulations may make supplementary, incidental, transitional, transitory and saving provision and make different provision for different purposes.

37 Subsection (4) states 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 citizens who are in the UK by the end of the transition period and who are 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 EEA citizen spouse of a British citizen who does not have comprehensive sickness insurance and who is not otherwise exercising Treaty rights, such as the right to work, and who is therefore not technically exercising EU free movement rights. They can apply for leave under the EUSS and this provision ensures they can be treated under these regulations in the same way as other groups covered by the EUSS.

38 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, for example removing reference to fees for EU residence documents.

39 Subsections (6) to (9) set out the Parliamentary scrutiny for regulations made under clause 4. Subsections (6) and (7) state 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, subsection (6) provides they will be subject to the made-affirmative procedure, which means they can be made and come into effect immediately, but must then be approved by both Houses within 40 days (excluding periods of dissolution and prorogation and adjournments of more than 4 days) to remain in force. Subsection (8) states 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 the first regulations made under clause 4.

40 Subsection (10) states that if the first set of 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

41 Clause 5 provides a power for 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).

42 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 subject to the outcome of future negotiations with the EU.

43 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.

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

45 Subsection (5) ensures any directly effective rights that will have been saved by section 4 of the EUWA 2018 at the end of the transition period 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.

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

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

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

Part 3: General

Clause 6: Interpretation

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

Clause 7: Extent

50 The provisions of the Bill extend to the whole of the United Kingdom. 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 from both the Scottish Parliament and Northern Ireland Assembly in respect of clause 5 of the Bill.

51 Subsections (2) to (4) enable the provisions of, and amendments made by, Part 1 and clauses 6 and 9 (to the extent relating to Part 1) of the Bill to be extended to the Channel Islands, the Isle of Man and the British Overseas Territories by Order in Council.

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

Clause 8: Commencement

53 Subsection (1) sets out Part 1 (i.e. clauses 1 to 4 and Schedule 1) will come into force on a day appointed by the Secretary of State by regulations.

54 Subsection (2) provides regulations commencing provisions of the Bill under subsection (1) may make different provision for different purposes.

55 Subsection (3) sets out that Part 2 (i.e. clauses 5 and Schedules 2 and 3) come into force on a day appointed by the Secretary of State or the Treasury by regulations.

56 Subsection (4) provides regulations commencing provisions of the Bill under subsection (3) may make different provision for different purposes or areas.

57 Subsection (5) sets out this clause comes into force on the day on which this Act is passed.

58 Subsection (6) provides commencement regulations under subsections (1) and (3) includes a power to appoint a time on a day, if considered necessary by the Secretary of State or the Treasury.

Clause 9: Short Title

59 This clause provides that the short title of the Bill when enacted will be the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.

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

Part 1: EU-derived domestic legislation

60 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 citizens and their family members under UK immigration control, which under the 1971 Act means they require leave to enter or remain in the UK.

61 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.

62 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 provisions made by or under the Immigration Acts. This is necessary to ensure free movement of persons is fully repealed.

Part 2: Retained direct EU legislation

63 Part 2 of Schedule 1 repeals direct EU legislation relating to Regulation (EU) No. 492/2011 on freedom of movement for workers within the Union (the "Workers Regulation") which is saved in domestic law by the EUWA.

64 This regulation provides for the freedom of movement of workers in various ways, including through rights to residency, equal treatment and access to education.

65 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 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 they have a right of residence in the UK under Article 10 of the Workers Regulation on the basis their child is in education here; this does not prevent the resident child of an EEA citizen 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 a British citizen.

Part 3: EU-derived rights etc

66 The EUWA at the end of the transition period, 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 the end of the transition period. A number of these rights could otherwise be relied upon in an immigration context.

67 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 of Persons Agreement between the EU and Switzerland which are saved as part of UK law by the EUWA. It ensures the rights derived from the specific provisions listed in paragraph 5, sub-paragraph (1)(b), cease to be recognised and available in domestic law. As a result, Swiss citizens and their family members, like EEA citizens and their family members, will be subject to the immigration requirements set out in the 1971 Act.

68 Paragraph 6 ensures any directly effective rights that will have been saved by the EUWA 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 residence rights that are derived from Articles 20 and 21 1 of the TFEU (rights of citizenship and free movement) will be retained EU law and , unless they are disapplied would provide a right to reside in the UK for certain groups, for example "Chen" carers who are primary carers of an EU citizen child who is in the UK and is self-sufficient. However, the rights derived from Articles 20 and 21 would continue to apply in non-immigration contexts unless disapplied.

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

Schedule 2: Power of Devolved Authorities under clause 5

Part 1: Scope of the Power

70 No power to make provision outside devolved competence - Paragraph 1 states 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.

71 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.

72 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.

73 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

74 Transitional Provisions - Paragraph 8 disapplies 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) so far as relating to EU law in relation to regulations made under clause 5.

Schedule 3: Regulations Under Clause 5

Part 1: Statutory Instruments

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

Part 2: Scrutiny of Regulations under Clause 5

76 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 in the case of the UK government, the regulations must be debated and approved by both Houses of Parliament before they have legal effect.

77 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.

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