Immigration and Social Security Co-ordination (EU Withdrawal) Bill (HL Bill 137)

A

BILL

[AS AMENDED ON REPORT]

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 10Impact of section 1 on the social care sector

(1)The Secretary of State must commission and publish an independent
assessment of the impact of section 1, and Schedule 1, on the social care sector
within six months of this Act being passed.

(2)The Secretary of State must appoint an independent Chair to conduct the
15assessment.

(3)The assessment must consider the impact of provisions in section 1, and
Schedule 1, on—

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

(a)the social care workforce;

(b)available visa routes for social care workers;

(c)long-term consequences for workforce recruitment, training and
employee terms and conditions; and

(d)5such other relevant matters as the independent Chair deems
appropriate.

(4)A copy of the independent assessment must be laid before both Houses of
Parliament within fourteen days of its publishing date.

3 Irish citizens: entitlement to enter or remain without leave

(1)10The 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
Kingdom, unless subsection (2), (3) or (4) applies to that citizen.

(2)15This 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—

(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
20the Irish citizen’s exclusion is conducive to the public good,

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

(c)the directions have not been withdrawn.

(4)This subsection applies to an Irish citizen if the Irish citizen is an
25excluded person for the purposes of section 8B (persons excluded
under certain instruments).

(5)Where 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
30place in the common travel area.”

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

(a)in 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
35an Irish citizen”.

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

(a)in 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”.

4 40Meaning of “the Immigration Acts” etc.

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

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

(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
5as relating to that Part).”

(2)This Part is not retained EU law.

5 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
10of, 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)15retained 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.

(4)20Regulations 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
United Kingdom without leave.

(5)25Regulations 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)Regulations made under subsection (1) must make provision to enable UK
citizens falling within the personal scope of—

(a)30the Withdrawal Agreement,

(b)the EEAEFTA separation agreement, or

(c)the Swiss citizens’ rights agreement,

to return to the United Kingdom accompanied by, or to be joined in the United
Kingdom by, close family members.

(7)35 Regulations under subsection (1) may not impose any conditions on the entry
or residence of close family members of UK citizens which could not have been
imposed under EU law relating to free movement, as on the day on which this
Act comes into force.

(8)For the purposes of subsection (6)

  • 40“close family members” means—

    (a)

    children (including adopted children), and

    (b)

    other close family members where that relation subsisted on or
    before 31 January 2020 and has continued to subsist;

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

  • “Withdrawal Agreement”, “EEAEFTA separation agreement” and “Swiss
    citizens’ rights agreement” have the meaning given in section 39 of the
    European Union (Withdrawal Agreement) Act 2020 (interpretation).

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

(a)5must 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.

(10)Any other statutory instrument containing regulations under subsection (1)
10that 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.

(11)A statutory instrument containing regulations under subsection (1), other than
a statutory instrument to which subsection (9) or (10) applies, is subject to
15annulment in pursuance of a resolution of either House of Parliament.

(12)In calculating the period of 40 days for the purposes of subsection (9), 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.

(13)20If regulations cease to have effect as a result of subsection (9), that—

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

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

6 Children in care and children entitled to care leaving support: entitlement to
25remain

(1)Any child who has the right of free movement removed by the provisions
contained in Part 1 of this Act, and who is in the care of a local authority or
entitled to care leaving support, is deemed to have and be granted indefinite
leave to remain within the United Kingdom under the EU Settlement Scheme
30(“the Scheme”).

(2)The Secretary of State must, for the purposes of subsection (1), issue guidance
to local authorities in England, Scotland, Wales and Northern Ireland setting
out their duty to identify the children of EEA and Swiss nationals in their care
or entitled to care leaving support.

(3)35Before issuing guidance under this section the Secretary of State must
consult—

(a)the relevant Scottish Minister;

(b)the relevant Welsh Minister; and

(c)the relevant Northern Ireland Minister.

(4)40The Secretary of State must make arrangements to ensure that personal data
relating to nationality processed by local authorities for purposes of
identification under subsection (1) is used solely for this purpose.

(5)Any child subject to subsection (1) who is identified and granted indefinite
leave to remain status after the deadline for applications under the Scheme will



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



be deemed to have had such status and all rights associated with that status
from the time of the Scheme deadline.

(6)This section comes into force on the day on which this Act is passed and
remains in effect for 5 years from the day of the deadline of the Scheme.

(7)5For the purposes of this section, children “in the care of a local authority” are
defined as children receiving care under any of the following provisions—

(a)section 20 of the Children Act 1989 (provision of accommodation for
children: general);

(b)section 31 of the Children Act 1989 (care and supervision);

(c)10 section 75 of the Social Services and Well-being (Wales) Act 2014
(general duty of local authority to secure sufficient accommodation for
looked after children);

(d)section 25 of the Children (Scotland) Act 1995 (provision of
accommodation for children);

(e)15Article 25 of the Children (Northern Ireland) Order 1995
(interpretation); and

(f)Article 50 of the Children (Northern Ireland) Order 1995 (care orders
and supervision orders).

(8)For the purposes of this section, a child “entitled to care leaving support”
20means a child receiving support under any of the following provisions—

(a)paragraph 19B of Schedule 2 to the Children Act 1989 (preparation for
ceasing to be looked after);

(b) section 23A(2) of the Children Act 1989 (the responsible authority and
relevant children);

(c)25section 23C(1) of the Children Act 1989 (continuing functions in respect
of former relevant children);

(d)section 104 of the Social Services and Well-being (Wales) Act 2014
(young people entitled to support under sections 105 to 115);

(e) sections 29 and 30 of the Children (Scotland) Act 1995 (advice and
30assistance for young persons formerly looked after by local authorities);
and

(f)Article 35(2) of the Children (Northern Ireland) Order 1995 (persons
qualifying for advice and assistance).

7 Leave to enter: family unity and claims for asylum

(1)35For at least such time as a relevant agreement has not been concluded and
implemented, a person to whom this section applies must be granted leave to
enter the United Kingdom for the purpose of making a claim for asylum.

(2)This section applies to a person who—

(a)is on the territory of any relevant Member State;

(b)40makes an application for leave to enter for the purpose of making a
claim for asylum; and

(c)would, had that person made an application for international
protection in that Member State, have been eligible for transfer to the
United Kingdom under Regulation (EU) No. 604/2013 by reason of a
45relevant provision if the United Kingdom remained a party to that
Regulation.

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 6

(3)An application for leave to enter under subsection (2)(c) shall be made in such
manner as the Secretary of State may prescribe save that—

(a) there shall be no fee for the making of such an application and no
requirements may be prescribed that are unreasonable having regard
5to the purposes of this section and the circumstances of persons to
whom it applies;

(b) in relation to such applications, the Secretary of State shall make
arrangements to ensure that applicants receive a decision regarding
their application no later than two months from the date of submission
10of the application.

(4)A claim for asylum made under subsection (2)(b) must remain pending
throughout such time as no decision has been made on it or during which an
appeal could be brought within such time as may be prescribed for the
bringing of any appeal against a decision made on a claim or during which any
15such appeal remains pending for the purposes of section 104 of the Nationality,
Immigration and Asylum Act 2002 (pending appeal); and a claim for asylum
remains one on which no decision has been made during such time as the claim
has been made to the Secretary of State and has not been granted, refused,
abandoned or withdrawn.

(5)20The Secretary of State must, within six months of the day on which this Act is
passed, lay before both Houses of Parliament a strategy for ensuring that
unaccompanied children on the territory of a relevant Member State continue
to be relocated to the United Kingdom, if it is in the child’s best interests.

(6)For the purposes of this section—

  • 25“applicant” means a person who makes an application for leave to enter
    under this section;

  • “claim for asylum” means a claim for leave to enter or remain as a refugee
    or as a person eligible for a grant of humanitarian protection;

  • “Regulation (EU) No. 604/2013” means Regulation (EU) No. 604/2013 of
    30the European Parliament and of the Council including the criteria and
    mechanisms for determining the Member State responsible for
    examining an application for international protection lodged in one of
    the Member States by a third-country national or a stateless person
    (recast);

  • 35“relevant agreement” means an agreement negotiated by a Minister of the
    Crown, on behalf of the United Kingdom, with the European Union in
    accordance with which there is provision for the transfer of a person
    who has made an application for asylum in a Member State of the
    European Union to the United Kingdom which is no less extensive than
    40Regulation (EU) No. 604/2013 insofar as that regulation operated to
    enable the transfer of a person to join a child, sibling, parent or other
    family member or relative in the United Kingdom before exit day;

  • “relevant Member State” means a Member State for the purposes of
    Regulation (EU) No. 604/2013;

  • 45“relevant provision” means any of the following articles of Regulation
    (EU) No. 604/2013—

    (a)

    Article 8,

    (b)

    Article 9,

    (c)

    Article 10,

    (d)

    50Article 16,

    (e)

    Article 17.

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

8 EU Settlement Scheme: physical documented proof

(1)The Secretary of State must issue physical proof confirming pre-settled status
or settled status to all EEA and Swiss nationals and their families who have
been granted such status under the EU Settlement Scheme and who request
5such proof.

(2)No fee may be charged for issuing physical proof under this section.

9 Time limit on immigration detention for EEA and Swiss nationals

(1)For the purpose of this section, a person (“P”) is defined as any person who,
immediately before the commencement of Schedule 1, was—

(a)10residing in the United Kingdom in accordance with the Immigration
(European Economic Area) Regulations 2016 (SI 2016/1052);

(b)residing in the United Kingdom in accordance with a right conferred by
or under any of the other instruments which is repealed by Schedule 1;
or

(c)15otherwise residing in the United Kingdom in accordance with any right
derived from European Union law which continues, by virtue of
section 4 of the European Union (Withdrawal) Act 2018 (saving for
rights etc. under section 2(1) of the ECA), to be recognised and available
in domestic law after exit day.

(2)20The Secretary of State may not detain P under a relevant detention power for a
period of more than 28 days from the relevant time.

(3)If P remains detained under a relevant detention power at the expiry of the
period of 28 days then—

(a)the Secretary of State must release P forthwith; and

(b)25the Secretary of State may not re-detain P under a relevant detention
power thereafter, unless the Secretary of State is satisfied that there has
been a material change of circumstances since P’s release and that the
criteria in section 10 are met.

(4)In this Act, “relevant detention power” means a power to detain under—

(a)30paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention
of persons liable to examination or removal);

(b)paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending
deportation);

(c)section 62 of the Nationality, Immigration and Asylum Act 2002
35(detention of persons liable to examination or removal); or

(d)section 36(1) of the UK Borders Act 2007 (detention pending
deportation).

(5)In this Act, “relevant time” means the time at which P is first detained under a
relevant detention power.

(6)40This section does not apply to a person in respect of whom the Secretary of
State has certified that the decision to detain is or was taken in the interests of
national security.

Immigration and Social Security Co-ordination (EU Withdrawal) BillPage 8

10 Initial detention: criteria and duration

(1)The Secretary of State may not detain any person (“P”) to whom section 9
applies under a relevant detention power, other than for the purposes of
examination, unless the Secretary of State is satisfied that—

(a)5P can be shortly removed from the United Kingdom;

(b)detention is strictly necessary to effect P’s deportation or removal from
the United Kingdom; and

(c)the detention of P is in all circumstances proportionate.

(2)The Secretary of State may not detain P under a relevant detention power for a
10period of more than 96 hours from the relevant time, unless—

(a)P has been refused bail at an initial bail hearing in accordance with
subsection (5)(b) of section 11; or

(b)the Secretary of State has arranged a reference to the Tribunal for
consideration of whether to grant immigration bail to P in accordance
15with subsection (2)(c) of section 11 and that hearing has not yet taken
place.

(3)Nothing in subsection (2) authorises the Secretary of State to detain P under a
relevant detention power if such detention would, apart from this section, be
unlawful.

(4)20In this section, “Tribunal” means the First-Tier Tribunal.

(5)In this section, “relevant detention power” has the meaning given in section 9.

11 Bail hearings

(1)This section applies to any person (“P”) to whom section 9 applies and who is
detained under a relevant detention power.

(2)25Before the expiry of a period of 96 hours from the relevant time, the Secretary
of State must—

(a)release P;

(b)grant immigration bail to P under paragraph 1 of Schedule 10 to the
Immigration Act 2016; or

(c)30arrange a reference to the Tribunal for consideration of whether to
grant immigration bail to P.

(3)Subject to subsection (4), when the Secretary of State arranges a reference to the
Tribunal under subsection (2)(c), the Tribunal must hold an oral hearing (“an
initial bail hearing”) which must commence within 24 hours of the time at
35which the reference is made.

(4)If the period of 24 hours in subsection (3) ends on a Saturday, Sunday or bank
holiday, the Tribunal must hold an initial bail hearing on the next working day.

(5)At the initial bail hearing, the Tribunal must—

(a)grant immigration bail to P under paragraph 1 of Schedule 10 to the
40Immigration Act 2016; or

(b)refuse to grant immigration bail to P.

(6)Subject to subsection (7), the Tribunal must grant immigration bail to P at a bail
hearing unless it is satisfied that the Secretary of State has established that the
criteria in subsection (1) of section 10 are met and that, in addition—

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

(a)directions have been given for P’s removal from the United Kingdom
and such removal is to take place within 14 days;

(b)a travel document is available for the purposes of P’s removal or
deportation; and

(c)5there are no outstanding legal barriers to removal.

(7)Subsection (6) does not apply if the Tribunal is satisfied that the Secretary of
State has established that the criteria in subsection (1) of section 10 above are
met and that there are very exceptional circumstances which justify
maintaining detention.

(8)10In subsection (6), “a bail hearing” includes—

(a)an initial bail hearing under subsection (2); and

(b)the hearing of an application for immigration bail under paragraph 1(3)
of Schedule 10 to the Immigration Act 2016.

(9)In this section, “Tribunal” means the First-Tier Tribunal.

(10)15The Secretary of State shall provide to P or P’s legal representative, not more
than 24 hours after the relevant time, copies of all documents in the Secretary
of State’s possession which are relevant to the decision to detain.

(11)At the initial bail hearing, the Tribunal shall not consider any documents relied
upon by the Secretary of State which were not provided to P or P’s legal
20representative in accordance with subsection (10), unless—

(a)P consents to the documents being considered; or

(b)in the opinion of the Tribunal there is a good reason why the
documents were not provided to P or to P’s legal representative in
accordance with subsection (10).

(12)25In the Immigration Act 2016, after paragraph 12(4) of Schedule 10 insert—

(4A)Sub-paragraph (2) above does not apply to the refusal of bail within the
meaning of section 11 of the Immigration and Social Security Co-
ordination (EU Withdrawal) Act 2020.”

12 Grant of leave to remain for confirmed victims of modern slavery who are
30EEA nationals

(1)Immigration rules must make provision for leave to remain in the United
Kingdom to be granted to a person aged 18 years or over when—

(a)the person is either a Swiss national or an EEA national who is not also
an Irish citizen; and

(b)35there has been a conclusive determination that the person is a victim of
slavery or human trafficking; and

(c)subsection (2) applies and subsection (8) does not.

(2)This subsection applies if the person meets one or more of the following
criteria—

(a)40leave is necessary due to the person’s circumstances, including but not
restricted to—

(i)the needs of that person for safety and protection from harm
including protection from re-trafficking;

(ii)the needs of that person for medical and psychological
45treatment;