Legislative Scrutiny: Immigration and Social Security Co-ordination (EU Withdrawal) Bill Contents

1EU Settlement Scheme

The Bill’s provisions on EU free movement rights and social security co-ordination

1.This is 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.”2 In clause 1, it removes all EU free movement of persons rights to enter the UK and to remain in the UK. It also provides specific powers to amend social security rights of EEA nationals living in the UK (clause 5). In clauses 4 and 5 it provides extensive Statutory Instrument-making powers, including to amend primary legislation to accommodate these changes to EU free movement of persons rights and social security rights.

2.In its ECHR Memorandum, the Home Office states that “insofar as [persons currently exercising EU free movement rights] will be affected by this Bill, the Department will ensure that the Convention rights of such persons are respected.”3 However, there are no legislative guarantees of this or as to the rights which they will retain in the Bill. The Bill operates at a very high level in removing rights (and providing wide Statutory Instrument -making powers in that respect). However, the Bill does not seek to address the situation of those people whose rights may be removed and therefore the Bill itself does not guarantee that such individuals will retain an adequate level of human rights protection. Whilst some of these issues may be addressed in secondary legislation, such an approach is piecemeal; it does not benefit from protections or guarantees that such rights will be retained for those with acquired rights and does not cover the full gamut of acquired rights. This includes the rights of those who could have resided in the UK for many years, working in the UK, paying into our social security system, and even having been born here and lived here their whole lives.4 Removing their rights without a legislative alternative in place raises significant human rights issues which the wide Statutory Instrument -making powers in clauses 4 and 5 do little to satisfy. The Bill is, in effect, a blank cheque.

3.In clause 1, the Bill removes all EU free movement of persons rights—this includes the right to enter the UK and the right to remain in the UK for all EEA and Swiss nationals and their family members. However, it does not address the practical impact of this removal of rights for e.g. EU citizens currently living in the UK (or moving to the UK). Consequently, it does not protect the existing rights of those who currently benefit from rights of free movement of persons under EU law in the UK.

4.In paragraph 8 of the Explanatory Notes to the Bill, the Government argues that the “details of the future immigration arrangements (i.e. requirements to be met to come to the UK as a worker, student, family member etc) will be set out in the Immigration Rules, as they are now for non-EEA nationals.”5 The Explanatory Notes further explain that those Immigration Rules have not yet been finalised. The outcome depends on future deals, as set out in the Government’s White Paper,6 as read in conjunction with the EU Settlement Scheme.7 Whilst the EU Settlement Scheme has, to an extent, been incorporated into an Annex of the Immigration Rules, this does not guarantee rights. The Bill itself removes rights and does not guarantee them.

5.The proposed EU settlement scheme relies on those who reside in this country applying for (and, until recently, paying for) a specific authorisation to remain living here. Given the difficulties of operating such schemes in the past, this raises concerns about how the scheme will be applied to people who may not realise that they need to acquire specific authorisation to continue living where they may have been settled for many years. The EU Settlement Scheme, as currently set out in policy and in the Annex to the Immigration Rules, relies on individuals knowing that they need to apply to the scheme—and if they do not, they risk losing their current status and associated rights. It also relies on the Home Office not making errors in processing. The EU Settlement Scheme does not adequately address the situation of those EEA Citizens resident in the UK who ought to be entitled to retain these rights, but perhaps were unaware of the need to apply to realise their rights.

6.Clause 5 provides significant powers to amend retained EU legislation in relation to social security rights. This raises ECHR issues such as the right to property under Article 1 of Protocol 1 ECHR were these powers to be used to alter the social security entitlements and rights of those who have already paid into the system and accrued rights. Again, it is not clear how any such amendments (which seem principally aimed at removing or altering rights) could secure an individual’s rights entitlements for the future. Moreover, we note concerns expressed in the European Scrutiny Committee’s Report on the process of social security coordination between the UK and the EU, which raised concerns that the Government could discriminate with respect to the type of social security entitlements that EU nationals would have compared to UK citizens.8 This therefore raises real concerns that the acquired rights of these individuals may not be guaranteed.

Human Rights Concerns and Acquired Rights

7.The Committee is concerned that the main provisions of the Bill, unless amended, will remove all EU free movement of persons rights, without addressing the rights of those who currently benefit from rights of free movement of persons under EU law, or social security rights. This includes the rights of those who have resided in the UK for many years, 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 with no equivalent legislative protection in place raises significant human rights concerns. These provisions could leave individuals and families in a situation of precarity as to their futures, including housing, social security and property rights.

8.The Chair of the Committee therefore wrote to the Home Secretary raising these concerns on 23 January 2019 and the Home Secretary replied in a letter of 8 February 2019. These letters can be found in Annex 2. The Home Secretary noted that he shared the Committee’s view that protecting the right of these EU citizens to stay and associated rights is important and is reflected in citizens’ rights protections in the draft EU Withdrawal Agreement and the EU Settlement Scheme that the Government has established. He noted that “EU nationals and their family members will have until 31 December 2020 to make an application under the Scheme”. He further noted that:

“In addition, we have given unilateral assurances to EU nationals and their family members resident in the UK that they can stay if the UK leaves the EU without a deal and this was set out in the policy paper ‘Citizens’ rights in the event of a no deal Brexit’ published by the Department for Exiting the EU on 6th December 2018: https://www.gov.uk/government/publications/policy-paper-on-citizens-rights-in-the-event-of-a-no-deal-brexit”.

“The consequential power in clause 4 of the Bill will enable us to make saving and transitional provisions to protect the position of those exercising free movement rights in the UK until EU Exit allowing them time to make their application.”

“Although future policy for social security co-ordination is yet to be decided, the Government has been clear that EU citizens and their family members in the UK at the point of Exit will continue to have broadly the same access to benefits and services as now. The social security provisions in this Bill do not remove the rights of individuals but provide the framework to make changes to retained social security arrangements at the appropriate time, to ensure we can respond rapidly to whichever scenario we find ourselves in. Future policy changes will be set out in regulations that will be subject to the affirmative procedure, ensuring that there is adequate scrutiny and consultation on any future policy proposals.”

9.Whilst we are pleased to hear these reassurances from the Home Secretary that the Government intends to use these powers in a human rights compliant manner, we are nonetheless concerned that those EU citizens currently living in the UK do not have the necessary legislative guarantees that they will continue to benefit from the rights they currently enjoy. It is only right that the legislation removing these rights more generally, should ensure that these rights are retained and guaranteed for those people who are resident in the UK and who have these acquired rights.

10.The Committee proposes amendments to the Bill to put protections and guarantees in the Bill itself by ensuring that those with acquired rights will be protected through the manner in which the SI-making power is used. Such an amending clause would require that any regulations made under clauses 4 and 5 should contain measures to protect the acquired rights of those who have rights within the United Kingdom deriving from EU free movement rights.

Box 1: Amendments to protect acquired rights of those subject to the EU Settlement Scheme

Clause 4, page 2, line 35, at the end insert:

(1A) The Secretary of State must exercise the power to make regulations under subsection (1) where this is necessary to protect the acquired rights of those persons who, prior to Exit Day, benefitted, in the UK, from right of free movement of persons under EU law.

(1B) Where the Secretary of State exercises the power to make regulations under subsection (1) those regulations must contain measures, as necessary, to protect the acquired rights of those persons who, prior to Exit Day, benefitted, in the UK, from right of free movement of persons under EU law.

(1C) For the purposes of this section, “acquired rights” means those rights which a person was entitled to flowing from EU free movement of persons laws.

Clause 5, page 3, line 37 at the end insert:

(1A) Where the appropriate authority exercises the power to make regulations under subsection (1) those regulations must contain measures, as necessary, to protect the acquired rights of those persons who, prior to Exit Day, benefitted, in the UK, from right of free movement of persons under EU law.

(1B) For the purposes of this section, “acquired rights” means those rights which a person was entitled to flowing from EU free movement of persons laws.

Explanation:

This Bill removes rights but does not ensure that affected individuals will retain an adequate level of human rights protection. In its ECHR Memorandum, the Home Office states that “insofar as such persons will be affected by this Bill, the Department will ensure that the Convention rights of such persons are respected.” The aim of these amendments is to put such protections and guarantees on a legislative footing in the Bill by ensuring that those with acquired rights will be protected under the Bill through the manner in which the SI-making power is used.

The EU Settlement Scheme

11.We would echo concerns raised in the letter of 27 February 2019 from the Chair of the Lords EU Justice Sub-Committee relating to the EU Settlement Scheme where that Committee considered that more needed to be done relating to awareness of the EU Settlement Scheme, assistance with applications, physical proof of status and transfer from pre-settled to settled status.9 We note the similarities of some of these concerns with problems that have arisen in other work that our Committee has undertaken relating to the Windrush scandal.

12.Concerns in relation to the EU Settlement Scheme have also been set out in the work of the Committee on Exiting the EU. We note in particular the concerns expressed in its 8th Report into “the Progress of the UK’s negotiations on EU Withdrawal: the rights of UK and EU Citizens.”10 In that Report that Committee notes that the lack of physical proof that an individual has the entitlements under the EU Settlement Scheme could risk impeding their access to their rights. We share this concern, and we would hope that the Home Office will rectify this issue, having already experienced the problems faced by the Windrush Generation who had difficulty in proving their rights and entitlements for similar reasons, as documented in our Committee’s Report “Windrush Generation Detention.”11 We very much hope that the Home Office has learned from the errors in the handling of the Windrush cases and that this will not be repeated for EEA nationals.

13.Furthermore, the Committee on Exiting the EU has expressed concern that the population of over 3 million EU citizens in the UK will include several categories of people who could find applying for, and being awarded, Settled Status to be a challenge. Many will not know that they are required to apply or will not have the documentary proof required. The Committee on Exiting the EU has described the need for effective information provision about the Settled Status Scheme to be “of paramount importance in ensuring its success.” [para 76]. This applies both to those who need to apply and those who may have reason to ask an EU citizen to demonstrate their immigration status. That Committee pointed out that:

“if even a small proportion of those eligible to apply do not do so, or are refused, there is a risk of a large number of EU citizens in the UK by July 2021 not having certainty as to their legal status. The UK Government needs to set out what it would do with thousands of EU migrants unable to demonstrate their legal status.”12

This is a particular concern in relation to certain categories of vulnerable people who may have difficulties in knowing about and accessing the EU Settlement Scheme.13

14.The Committee shares concerns expressed by other Committees that the EU Settlement Scheme as currently proposed creates problems relating to the lack of physical proof of status. We consider that more should be done to raise awareness of the EU Settlement Scheme and to assist individuals with applications. However, we do not consider that these steps alone will address the concerns around a lack of physical proof of status. The Home Office should ensure that physical proof of status is issued to those registered under the EU Settlement Scheme.

15.The Committee is also concerned at the ambiguity about the situation of those who miss the deadline for applications under the EU Settlement Scheme. These could be individuals who have lived and worked in the UK their whole lives. Their rights should not depend on subsequent registration with a scheme within a specific time limit. The Committee considers that steps should be taken either to make provision for registration outside of the EU Settlement Scheme time limit, or to ensure that the entitlement to this status is not dependant on registration, for example with the registration solely being used to assist with physical proof of status.

16.The Committee is particularly concerned that certain categories of vulnerable people may have difficulty in accessing the EU Settlement Scheme and therefore may be excluded from the rights to which they should be entitled under it. The Committee recommends that the Government take steps to ensure that vulnerable groups are made aware of their rights and are assisted in accessing their rights under the EU Settlement Scheme.


4 As noted by Coram Children’s Legal Centre “there are over half a million European national children living in the UK, 38% of whom were born here”. See The Children’s Legal Centre, Government plan for granting ‘settled status’ to EU citizens in the UK misses out vulnerable groups

6 Home Office, UK Visas and Immigration, Policy paper, Future skills-based immigration system: executive summary, December 2019

8 European Scrutiny Committee, Fifty-third Report of Session 2017–19, HC 301-lii, see in particular paragraphs 6.18 and 6.25.

9 Letter from Baroness Kennedy of The Shaws, Chair, EU Justice Sub-Committee, to Rt Hon Sajid Javid MP, Home Secretary, regarding EU Settlement Scheme, dated 27 February 2019

10 Exiting the European Union Committee, Eighth Report of Session 2017–19, The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens, HC 1439. See in particular the recommendations at paras 45 to 49 of that Report.

11 Joint Committee on Human Rights, Sixth Report of Session 2017–19, Windrush generation detention, HC 1034 / HL Paper 160

12 Exiting the European Union Committee, Eighth Report of Session 2017–19, The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens, HC 1439, para 92




Published: 26 March 2019