Summary
The Immigration and Social Security Co-ordination (EU Withdrawal) Bill removes all EU free movement of persons rights, without addressing the rights of those who currently benefit from EU free movement of persons rights under EU law, including social security rights. This includes the rights of those who have resided in the UK for many years or even decades, working in the UK, paying into our social security system, and even having been born in the UK and lived here their whole lives. Removing their rights without any legislative protection in place to guarantee those rights raises significant human rights concerns. Without the necessary protections and guarantees, these provisions could leave individuals and families in a situation of precarity as to their futures, including housing, social security and property rights. The Committee proposes some suggested amendments to the Bill to address these concerns in a way which fits with the way in which the Bill operates. The proposed amendments are included in Annex 1.
Although the Government has said that it is not its intention to strip EU Citizens resident in the UK of their rights, that is the effect of this Bill as it stands. It is not right to leave those individuals in a rights limbo, subject to a subsequent negotiation. Neither is it adequate simply to offer weak protections in policy statements or secondary legislation, which are changed regularly. These rights can affect so many aspects of a person’s life and should be protected in primary legislation—whether by exempting those EU Citizens resident in the UK from the effects of this Bill, or by giving guarantees in the Bill that when the rights are removed by the Bill, equivalent rights will be put in place.
The Committee also raises concerns that whilst the Bill seeks to clarify the position for Irish nationals, the full range of rights available pursuant to the Common Travel Area with the Republic of Ireland is not clear or readily accessible post-Brexit. Further work needs to be done to clarify those rights and to ensure that the rights for nationals of both countries are not diminished following Brexit.
It is also worth recalling that the Committee undertook a recent inquiry into Immigration Detention and on 7 February 2019 produced the Report “Immigration Detention”.1 This report makes a number of recommendations to improve immigration law and immigration detention. All of these recommendations will also apply to those people who will risk becoming immigration detainees as a result of clause 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which ends rights to free movement of persons under retained EU law.
In particular, these recommendations cover the increased need for independent decision-making; the need to simplify immigration law; the need to improve the availability of legal advice (including for those detained in prisons); the urgent need to have a time limit on immigration detention; the need for independent reviews of detention; better safeguards for foreign national offenders against lengthy immigration detention; better video links for bail hearings; better protection for adults at risk of harm in immigration detention; and improved detention conditions and treatment. The changes proposed by the Immigration and Social Security Co-ordination (EU Withdrawal) Bill will make it all the more pressing to address the concerns raised in our Immigration Detention Report as speedily as possible so that this wider group of people is not subject to the current failings of the UK’s immigration detention system.
1 Joint Committee on Human Rights, Sixteenth Report of Session 2017–19, Immigration detention, HC 1484 / HL Paper 279
Published: 26 March 2019