Annex 2: Correspondence between the Chair and the Home Secretary
Dear Sajid,
IMMIGRATION AND SOCIAL SECURITY CO-ORDINATION (EU WITHDRAWAL) BILL
I am writing in relation to the Immigration and Social Security Co-ordination (EU Withdrawal) bill recently laid before Parliament by your Department.
The main provisions of this Bill seem to remove the rights of certain individuals without ensuring that affected individuals will retain an adequate level of human rights protection in legislation. These provisions could also leave individuals and families in a situation of precarity as to their futures, including housing, social security and property rights.
In the Home Office’s ECHR Memorandum, your Department 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.” We further note statements that the Government has made to reassure such individuals that they will retain their current rights. However, on the face of the legislation this leaves affected people in an uncertain situation.
The Committee is therefore in favour of amendments to the Bill to put such protections and guarantees on a legislative footing in the Bill by ensuring that those with accrued rights will be protected under the Bill through the manner in which the SI-making power is used. Our draft amendments are contained in the Annex below and we would be grateful if you would consider supporting their inclusion in the Bill.
I will be writing separately to colleagues on immigration matters.
Yours sincerely
Rt Hon Harriet Harman MP, Chair
23 January 2019
Annex
PROPOSED AMENDMENTS:
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 accrued rights of those persons who, prior to 29 March 2019, 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 accrued rights of those persons who, prior to 29 March 2019, benefitted, in the UK, from right of free movement of persons under EU law.
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 accrued rights of those persons who, prior to 29 March 2019, benefitted, in the UK, from right of free movement of persons under EU law.
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 accrued rights will be protected under the Bill through the manner in which the SI-making power is used.
Dear Harriet,
IMMIGRATION AND SOCIAL SECURITY CO-ORDINATION (EU WITHDRAWAL) BILL
Thank you for your letter of 23 January in which you set out the Committee’s views on the Bill, specifically in relation to retaining adequate human rights protections, and proposed amendments to protect individuals who have accrued rights. My Rt Hon. Friend, the Immigration Minister, has replied to your separate request for additional information to support the Committee’s inquiry into detention.
I am grateful to you for raising important issues during the Bill’s Second Reading debate earlier this week. I have noted the specific amendments proposed to protect individuals who are resident in the UK when free movement ends, and I share your view that protecting their right to stay and associated rights is important. This has always been the Government’s priority and we have delivered on this commitment through our negotiations with the EU to secure protections on Citizens’ Rights which are included in the draft Withdrawal Agreement, and if that is agreed by Parliament, there will be legislation to implement it into UK law.
We have also opened the EU Settlement Scheme to allow EU nationals who are already living in the UK to obtain settled status or pre-settled status in the UK. This will provide them with a clear status once free movement ends and will ensure their rights are protected in UK law.
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
To deliver this we will continue to run the EU Settlement Scheme for those resident in the UK before Exit. EU nationals and their family members will have until 31 December 2020 to make an application under the Scheme.
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.
I want to assure you that I have considered the Bill’s compatibility with Convention Rights and I have made a statement under Section 19(1)(a) of the Human Rights Act 1998 confirming this. Any regulations made under the Bill will of course also be subject to our human rights obligations.
Yours sincerely,
Rt Hon Sajid Javid MP
8 February 2019
Published: 26 March 2019