Immigration and Social Security Co-ordination (EU Withdrawal) Bill (HL Bill 121)

A

BILL

TO

Make provision to end rights to free movement of persons under retained EU
law and to repeal other retained EU law relating to immigration; to confer
power to modify retained direct EU legislation relating to social security co-
ordination; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Measures relating to ending free movement

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

Schedule 1 makes provision to—

(a)5end rights to free movement of persons under retained EU law,
including by repealing the main provisions of retained EU law relating
to free movement, and

(b)end other EU-derived rights, and repeal other retained EU law, relating
to immigration.

2 10Irish citizens: entitlement to enter or remain without leave

(1)The Immigration Act 1971 is amended as follows.

(2)After section 3 insert—

3ZA Irish citizens

(1)An Irish citizen does not require leave to enter or remain in the United
15Kingdom, unless subsection (2), (3) or (4) applies to that citizen.

(2)This subsection applies to an Irish citizen if the Irish citizen is subject to
a deportation order made under section 5(1).

(3)This subsection applies to an Irish citizen if—

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 2

(a)the Secretary of State has issued directions for the Irish citizen
not to be given entry to the United Kingdom on the ground that
the Irish citizen’s exclusion is conducive to the public good,

(b)the Secretary of State has given the Irish citizen notice of the
5directions, and

(c)the directions have not been withdrawn.

(4)This subsection applies to an Irish citizen if the Irish citizen is an
excluded person for the purposes of section 8B (persons excluded
under certain instruments).

(5)10Where subsection (2), (3) or (4) applies to an Irish citizen, section 1(3)
does not permit the Irish citizen to enter the United Kingdom without
leave on arriving in the United Kingdom on a local journey from any
place in the common travel area.”

(3)In section 9 (further provisions about the common travel area)—

(a)15in subsection (2), in the closing words, after “British citizens” insert “or
Irish citizens”;

(b)in subsection (4), in the opening words, after “British citizen” insert “or
an Irish citizen”.

(4)In Schedule 4 (integration with UK law of immigration law of the Islands)—

(a)20in paragraph 1, in sub-paragraphs (1) and (2), after “British citizen”
insert “or an Irish citizen”;

(b)in paragraph 4, after “British citizen” insert “or an Irish citizen”.

3 Meaning of “the Immigration Acts” etc.

(1)In section 61 of the UK Borders Act 2007, in subsection (2) (which defines “the
25Immigration Acts”)—

(a)omit the “and” at the end of paragraph (j);

(b)after paragraph (k) insert “, and

(l)Part 1 of the Immigration and Social Security Co-
ordination (EU Withdrawal) Act 2020 (and Part 3 so far
30as relating to that Part).”

(2)This Part is not retained EU law.

4 Consequential etc. provision

(1)The Secretary of State may by regulations made by statutory instrument make
such provision as the Secretary of State considers appropriate in consequence
35of, or in connection with, any provision of this Part.

(2)The power to make regulations under subsection (1) may (among other things)
be exercised by modifying—

(a)any provision made by or under primary legislation passed before, or
in the same Session as, this Act;

(b)40retained direct EU legislation.

(3)The power to make regulations under subsection (1) includes power—

(a)to make supplementary, incidental, transitional, transitory or saving
provision;

(b)to make different provision for different purposes.

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 3

(4)Regulations under subsection (1) may (among other things) make provision
applying to persons who, immediately before the coming into force of the
repeal of section 7(1) of the Immigration Act 1988 by paragraph 1 of Schedule
1, were not entitled by virtue of section 7(1) of that Act to enter or remain in the
5United Kingdom without leave.

(5)Regulations under subsection (1) may (among other things) modify provision
relating to the imposition of fees or charges which is made by or under primary
legislation passed before, or in the same Session as, this Act.

(6)The first statutory instrument containing regulations under subsection (1)

(a)10must be laid before Parliament after being made, and

(b)ceases to have effect at the end of the period of 40 days beginning with
the day on which the instrument is made unless, during that period, the
instrument is approved by a resolution of each House of Parliament.

(7)Any other statutory instrument containing regulations under subsection (1)
15that amend or repeal any provision of primary legislation (whether alone or
with other provision) is not to be made unless a draft of the instrument has
been laid before, and approved by a resolution of, each House of Parliament.

(8)A statutory instrument containing regulations under subsection (1), other than
a statutory instrument to which subsection (6) or (7) applies, is subject to
20annulment in pursuance of a resolution of either House of Parliament.

(9)In calculating the period of 40 days for the purposes of subsection (6), no
account is to be taken of any time during which—

(a)Parliament is dissolved or prorogued, or

(b)either House of Parliament is adjourned for more than 4 days.

(10)25If regulations cease to have effect as a result of subsection (6), that—

(a)does not affect the validity of anything previously done under the
regulations, and

(b)does not prevent the making of new regulations.

Part 2 30Social security co-ordination

5 Power to modify retained direct EU legislation relating to social security co-
ordination

(1)An appropriate authority may by regulations modify the retained direct EU
legislation mentioned in subsection (2).

(2)35The retained direct EU legislation is—

(a)Regulation (EC) No 883/2004 of the European Parliament and of the
Council on the co-ordination of social security systems;

(b)Regulation (EC) No 987/2009 of the European Parliament and of the
Council laying down the procedure for implementing Regulation (EC)
40No 883/2004;

(c)Regulation (EEC) No 1408/71 on the application of social security
schemes to employed persons, to self-employed persons and to
members of their families moving within the Community;

(d)Regulation (EEC) No 574/72 fixing the procedure for implementing
45Regulation (EEC) No 1408/71;

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 4

(e)Regulation (EC) No 859/2003 extending Regulation (EEC) No 1408/71
to nationals of non-EU Member Countries.

(3)The power to make regulations under subsection (1) includes power—

(a)to make different provision for different categories of person to whom
5they apply (and the categories may be defined by reference to a
person’s date of arrival in the United Kingdom, their immigration
status, their nationality or otherwise);

(b)otherwise to make different provision for different purposes;

(c)to make supplementary, incidental, consequential, transitional,
10transitory or saving provision;

(d)to provide for a person to exercise a discretion in dealing with any
matter.

(4)The power to make provision mentioned in subsection (3)(c) includes power to
modify—

(a)15any provision made by primary legislation passed before, or in the
same Session as, this Act;

(b)any provision made under primary legislation before, or in the same
Session as, this Act is passed;

(c)retained direct EU legislation which is not mentioned in subsection (2).

(5)20EU-derived rights, powers, liabilities, obligations, restrictions, remedies and
procedures cease to be recognised and available in domestic law so far as they
are inconsistent with, or are otherwise capable of affecting the interpretation,
application or operation of, provision made by regulations under this section.

(6)“EU-derived rights, powers, liabilities, obligations, restrictions, remedies and
25procedures” means any rights, powers, liabilities, obligations, restrictions,
remedies and procedures which continue to be recognised and available in
domestic law by virtue of section 4 of the European Union (Withdrawal) Act
2018 (including as they are modified by domestic law from time to time).

(7)In this section, “appropriate authority” means—

(a)30the Secretary of State or the Treasury,

(b)a Northern Ireland department, or

(c)a Minister of the Crown acting jointly with a Northern Ireland
department.

(8)Schedule 2 contains further provision about the power to make regulations
35under this section.

(9)Schedule 3 contains provision about the making of regulations under this
section.

Part 3 General

6 40Interpretation

In this Act—

  • “domestic law” means the law of England and Wales, Scotland or
    Northern Ireland;

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 5

  • “Minister of the Crown” has the same meaning as in the Ministers of the
    Crown Act 1975 and also includes the Commissioners for Her
    Majesty’s Revenue and Customs;

  • “modify” includes amend, repeal or revoke (and related expressions are
    5to be read accordingly);

  • “primary legislation” means—

    (a)

    an Act of Parliament;

    (b)

    an Act of the Scottish Parliament;

    (c)

    an Act or Measure of Senedd Cymru;

    (d)

    10Northern Ireland legislation.

7 Extent

(1)Subject to subsections (2) to (5), this Act extends to England and Wales,
Scotland and Northern Ireland.

(2)Her Majesty may by Order in Council provide for any of the provisions of Part
151 of this Act, and of sections 6 and 9 (so far as relating to that Part), to extend,
with or without modifications, to—

(a)any of the Channel Islands;

(b)the Isle of Man;

(c)any of the British overseas territories.

(3)20A power listed in subsection (4) may be exercised so as to extend, with or
without modifications, to any of the Channel Islands or the Isle of Man any
repeal or other amendment, made by Part 1, of legislation to which the power
relates.

(4)The powers are the powers under any of the following provisions—

(a)25section 36 of the Immigration Act 1971;

(b)section 163(4) of the Nationality, Immigration and Asylum Act 2002;

(c)section 60(4) of the UK Borders Act 2007.

(5)Regulations under section 4 may provide that an amendment, repeal or
revocation made by those regulations has the same extent as the provision
30amended, repealed or revoked (ignoring extent by virtue of an Order in
Council under any of the Immigration Acts).

8 Commencement

(1)Part 1 comes into force on such day as the Secretary of State may by regulations
made by statutory instrument appoint.

(2)35Regulations under subsection (1) may make different provision for different
purposes.

(3)Part 2 comes into force on such day as the Secretary of State or the Treasury
may by regulations made by statutory instrument appoint.

(4)Regulations under subsection (3) may make different provision for different
40purposes or areas.

(5)This Part comes into force on the day on which this Act is passed.

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(6)The power of the Secretary of State or the Treasury to appoint a day under
subsection (1) or (3) includes a power to appoint a time on a day if the Secretary
of State or, as the case may be, the Treasury considers it appropriate to do so.

9 Short title

5This Act may be cited as the Immigration and Social Security Co-ordination
(EU Withdrawal) Act 2020.

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 7

SCHEDULES

Section 1

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

Part 1 5EU-derived domestic legislation

1Section 7 of the Immigration Act 1988 (exemption from requirement for
leave to enter or remain for persons exercising EU rights etc.) is omitted.

2(1)Section 109 of the Nationality, Immigration and Asylum Act 2002 (power to
make regulations about appeals against immigration decisions in respect of
10persons having, or claiming to have, EU rights) is omitted.

(2)The Immigration (European Economic Area) Regulations 2016 (S.I. 2016/
1052), made under section 2(2) of the European Communities Act 1972 as
well as under section 109 of the 2002 Act, are revoked.

(3)In consequence of the repeal made by sub-paragraph (1), in the following
15provisions of the 2002 Act, omit “or by virtue of section 109”—

(a)section 106(3) and (4);

(b)section 107(3).

3In the Provision of Services Regulations 2009 (S.I. 2009/2999), in regulation
5 (general exclusions and savings), after paragraph (2) insert—

(2A)20Nothing in these Regulations affects the interpretation,
application or operation of any provision made by or under
the Immigration Acts.”

Part 2 Retained direct EU legislation

4(1)25Article 1 of the Workers Regulation is omitted.

(2)The other provisions of the Workers Regulation cease to apply so far as—

(a)they are inconsistent with any provision made by or under the
Immigration Acts (including, and as amended by, this Act), or

(b)they are otherwise capable of affecting the interpretation, application
30or operation of any such provision.

(3)In this paragraph, “the Workers Regulation” means Regulation (EU) No
492/2011 of the European Parliament and of the Council of 5 April 2011 on
freedom of movement for workers within the Union.

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Part 3 EU-derived rights etc.

5(1)Any rights, powers, liabilities, obligations, restrictions, remedies and
procedures which—

(a)5continue to be recognised and available in domestic law by virtue of
section 4 of the European Union (Withdrawal) Act 2018, and

(b)are derived from Articles 1, 2, 3(1) to (4), 4, 6, 7, 12, 13, 17(b), 20, 23 or
24 of Annex 1 of the Swiss free movement agreement (or, so far as
relating to any of those Articles of that Annex, Articles 3 to 6 of the
10agreement),

cease to be recognised and available in domestic law.

(2)In sub-paragraph (1), “the Swiss free movement agreement” means the
Agreement between the European Community and its Member States, of the
one part, and the Swiss Confederation, of the other, on the free movement of
15persons (done at Luxembourg on 21 June 1999).

6(1)Any other EU-derived rights, powers, liabilities, obligations, restrictions,
remedies and procedures cease to be recognised and available in domestic
law so far as—

(a)they are inconsistent with, or are otherwise capable of affecting the
20interpretation, application or operation of, any provision made by or
under the Immigration Acts (including, and as amended by, this
Act), or

(b)they are otherwise capable of affecting the exercise of functions in
connection with immigration.

(2)25The reference in sub-paragraph (1) to any other EU-derived rights, powers,
liabilities, obligations, restrictions, remedies and procedures is a reference to
any rights, powers, liabilities, obligations, restrictions, remedies and
procedures which—

(a)continue to be recognised and available in domestic law by virtue of
30section 4 of the European Union (Withdrawal) Act 2018 (including as
they are modified by domestic law from time to time), and

(b)are not those described in paragraph 5 of this Schedule.

(3)The reference in sub-paragraph (1) to provision made by or under the
Immigration Acts includes provision made after that sub-paragraph comes
35into force.

Section 5(8)

Schedule 2 Further provision about the scope of the power under section 5

Part 1 Scope of the power of a Minister of the Crown acting alone or jointly

140No provision that would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament may be made—

(a)by the Secretary of State or the Treasury acting alone, or

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 9

(b)by a Minister of the Crown acting jointly with a Northern Ireland
department,

in regulations under section 5, unless that provision is merely incidental to,
or consequential on, provision that would be outside that legislative
5competence.

2In considering, for the purposes of paragraph 1, whether a provision would
be within the legislative competence of the Scottish Parliament if it were
contained in an Act of that Parliament, no account is to be taken of section
29(2)(d) of the Scotland Act 1998 so far as relating to EU law.

10Part 2 Scope of the power of a Northern Ireland department acting alone

No power to make provision outside devolved competence

3No provision may be made by a Northern Ireland department acting alone
in regulations under section 5 unless the provision is within the devolved
15competence of the Northern Ireland department.

4A provision is within the devolved competence of a Northern Ireland
department for the purposes of this Schedule if—

(a)the provision, if it were contained in an Act of the Northern Ireland
Assembly—

(i)20would be within the legislative competence of the Assembly
(ignoring section 6(2)(d) of the Northern Ireland Act 1998 so
far as relating to EU law), and

(ii)would not require the consent of the Secretary of State,

(b)the provision—

(i)25amends or repeals Northern Ireland legislation, and

(ii)would, if it were contained in an Act of the Northern Ireland
Assembly, be within the legislative competence of the
Assembly (ignoring section 6(2)(d) of the Northern Ireland
Act 1998 so far as relating to EU law) and require the consent
30of the Secretary of State, or

(c)the provision is provision which could be made in other subordinate
legislation by any Northern Ireland devolved authority acting alone
(ignoring section 24(1)(b) of the Northern Ireland Act 1998).

Requirement for consent where it would otherwise be required

5(1)35The consent of the Secretary of State is required before any provision is made
by a Northern Ireland department acting alone in regulations under section
5 so far as that provision, if contained in an Act of the Northern Ireland
Assembly, would require the consent of the Secretary of State.

(2)Sub-paragraph (1) does not apply if—

(a)40the provision could be contained in subordinate legislation made
otherwise than under this Act by a Northern Ireland devolved
authority acting alone, and

(b)no such consent would be required in that case.