Chapter 3: Citizens’ rights (Part 3)
Introduction
46.Part 2 of the Withdrawal Agreement (Articles 9–39) provides a scheme for ensuring that those exercising EU rights in the UK prior to withdrawal may continue to enjoy certain core rights to reside, work and otherwise remain indefinitely in the UK after withdrawal. The rights are guaranteed indefinitely by the Withdrawal Agreement and under the Bill, though references to the CJEU will end eight years after the expiry of the implementation period. The same is true of Title 2 of both the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement. The primary way the Bill ensures citizens’ rights is by giving these provisions direct effect and supremacy through clause 5. Part 3 of the Bill (clauses 7–17) provides additional powers of implementation for those provisions of the Agreements which require it.
47.Clauses 7–9 and 11–14 each create a delegated powers scheme, each accompanied by a Henry VIII power. These regulation-making powers are constrained by the terms of the Agreements and the direct effect of many of their provisions through Part 2 of the Bill. Clause 15 creates an Independent Monitoring Authority (IMA) to oversee the citizens’ rights agreements.
Specific clauses
48.Clause 7 provides an illustration of how the regulation-making powers are circumscribed topically and legally by the provisions of the Agreements. Article 18 of the Withdrawal Agreement (and corresponding provisions of the other agreements) permits a host state to require a person exercising residence rights to apply for documentation. Clause 7(1)(a) empowers a minister to “make such provision as the Minister considers appropriate for … specifying the deadline that applies for the purposes of … the first sub-paragraph of Article 18(1)(b).” That sub-paragraph of Article 18(1)(b) specifies that “the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period.” The regulation-making power in clause 7(1)(a) is therefore the power to set a deadline, subject to the requirement in the Withdrawal Agreement which itself has direct effect and supremacy. The powers under clause 7(1)(a) cannot be used to derogate from Article 18(1)(b) nor any other provision of the Withdrawal Agreement, Part 3 of which, covering citizens’ rights,48 spans 48 pages of the published Withdrawal Agreement.
49.This degree of specificity, and the relevance of the other provisions of the Agreements, are for the most part mirrored in the other delegated powers provisions of the Bill, except where specified in the analysis below. It further illustrates the point made in relation to Part 1 of the Bill that, although various delegated powers in the Bill appear to be very broad, the role they play in giving effect to directly effective obligations under the Agreement circumscribes their practical effect in important ways.
50.Clause 7(1)(b)–(d) creates a regulation-making power to provide protection to EU citizens in the period prior to the deadline for the submission of applications for new residence status. Clause 7(1)(e)–(g) extends protection to those applying for such residence status. The first regulations issued under clause 7(1)(b)–(g) are subject to the affirmative procedure (see paragraph 1 of schedule 4).
51.Clause 7(2)–(3) is intended to extend the protection afforded by the Agreements to EU citizens to persons not in that category but which have acquired rights as family members thereof under the Surinder Singh principle.49 Clause 7(4) confers a Henry VIII power to modify any provision made under an enactment. Regulations made under this clause are subject to the affirmative procedure where they amend or repeal primary legislation or retained direct principal EU legislation.50
52.Clause 8 confers powers to extend protection to frontier workers in line with Articles 24(3) and 25(3) of the Withdrawal Agreement, which guarantee the right to enter and exit the state and enjoy the rights they exercised there if they meet certain conditions specified in Directive 2004/38/EC.51 The Henry VIII power in clause 8(3) is limited to modifying any provision made by or under the Immigration Acts—which includes the power to amend the Immigration Acts themselves.52
53.Clause 9 provides powers to restrict rights of entry and residence as specified in Article 20(1), (3) and (4) of the Withdrawal Agreement. That article incorporates chapter VI of EC Directive 2004/38/EC, Articles 27–33 of which contain detailed provisions covering permissible grounds of public policy for restricting entry or exit for Union citizens and their family members. The powers in clause 9 must be exercised in conformity with those provisions. Clause 9(4) provides that regulations may modify any primary legislation.
54.Clause 10 (retention of existing grounds for deportation) is unique in Part 3 of the Bill in that it amends the Immigration Acts rather than creates regulation-making powers.
55.Clause 11(1) provides powers to make provision for appeals against citizens’ rights decisions. Clause 11(3) extends analogous powers in connection with reviews (and judicial reviews) of “any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom”.53 The scheme suggests that the judicial review procedure can be extended but does not imply that such powers could operate to circumscribe access to judicial review that is otherwise available under the common law.
56.Clause 12 provides powers to ministers and devolved authorities, acting jointly or separately, to make provision for the recognition of professional qualifications in accordance with Articles 27–29 of the Withdrawal Agreement (and analogous provisions of the other Agreements). Those articles of the Agreements themselves incorporate several provisions from applicable EU law standards. Clause 12(6) is a Henry VIII power allowing the amendment or repeal of any enactment, but clause 12(7) prevents it from applying to primary legislation passed after the implementation period.
57.Clause 13 similarly provides for a scheme to implement social security coordination. The Explanatory Notes indicate that these powers are intended to be operated in conjunction with a planned Immigration and Social Security Co-ordination (EU Withdrawal) Bill.54 Clause 13(5) provides a Henry VIII power to modify any provision made by or under an enactment. There is no sunset clause limiting the operation of the powers in clause 13. In light of the detailed statutory scheme that will be provided in a future bill, it is not clear why the powers in clause 13 are required beyond the implementation period. The Government should explain why these powers are necessary beyond 31 December 2020 or include a sunset clause in the Bill such that they expire at the end of the implementation period.
58.Clause 14 provides delegated powers empowering central and devolved authorities to implement articles of the Agreements relating to prohibiting discrimination on grounds of nationality, the right to equal treatment, and rights of workers, frontier workers and the self-employed. The articles detailing such rights are less technical and constrained than most of the other citizens’ rights articles of the Agreements. The Henry VIII power is not accompanied by a sunset provision. The powers are to implement the enumerated rights, rather than condition or restrict them. As with the powers in Part 1, and in line with the view of the DPRRC, we recommend these powers should be subject to a sifting mechanism.
59.Clause 15 creates a new corporate body, the Independent Monitoring Authority. Schedule 2 sets out its powers and functions. This body is established pursuant to Article 159 of the Withdrawal Agreement. Its primary functions include keeping the adequacy of the UK legislative framework for securing citizens’ rights under review and conducting inquiries on request from central or devolved government, in response to a complaint or on its own initiative. Paragraphs 27 and 28 of schedule 2 provide that where an inquiry is held, the IMA will report and the relevant public authority must publish a response, indicating what action it plans to take.
60.Paragraph 39 of schedule 2 enables the Secretary of State by regulations to transfer the IMA’s functions in their entirety to a new person or body. Although schedule 2 sets out a range of powers and criteria relating to appointments and the independence of appointed members, the transfer power contains no guarantee that such standards would be carried over to any transferee. It provides that the Secretary of State must “have regard to the need to ensure” that the transferee has “operational independence” and can make “impartial assessments”, and that the transferee has “appropriate funding”, but these are weaker requirements than the scheme set out for the IMA in the rest of schedule 2. Paragraph 39(1)(b) provides that the Secretary of State may, in view of any transfer of functions, “make any modification that the Secretary of State considers appropriate to the constitutional or funding arrangements of the transferee.” The Delegated Powers Memorandum states that the powers will allow the Secretary of State to “improve the efficiency, effectiveness or economy” of the functions of the IMA.55
61.The Independent Monitoring Authority is an important part of the scheme for protecting citizens’ rights in the Withdrawal Agreement. Its composition, independence and functions will be significant in discharging its complex mandate. The relationships between the IMA and the courts and with the devolved authorities will need to be monitored once it is in operation.
62.Paragraph 39 of schedule 2 effectively empowers the minister to dispense with the detailed scheme to establish the IMA in schedule 2 and substitute it with another. Such a power may create an impression that the body lacks adequate independence from Government. Given the importance of the IMA’s mandate and that it not only be independent, but be seen to be independent, we recommend that any transfer of its functions or alteration of its constitutional arrangements be carried out by primary rather than secondary legislation.
63.We agree with the Delegated Powers and Regulatory Reform Committee that, while the regulation-making powers in Part 3 are constrained by the terms of the Agreements and the direct effect of many of their provisions through Part 2 of the Bill, their significance warrants their exercise being subject to a sifting procedure.
64.Clause 16 provides that any power to implement a provision of the Agreements includes a power to supplement the effect of section 7A of the 2018 Act (a new section inserted by clause 5 of the Bill).
48 HM Government, New Withdrawal Agreement and Political Declaration, Articles 7–39
49 “Surinder Singh established the principle that nationals of Member States should not be deterred from leaving their country of origin to pursue an economic activity in another Member State. They would be so deterred if on returning to the Member State of which they are a national they did not enjoy conditions at least equivalent to those they would enjoy under community law in the territory of another Member State. In this case in respect of family reunification rights.” European Union (Withdrawal Agreement) Bill, Explanatory Notes, para 136.
50 European Union (Withdrawal Agreement) Bill, schedule 4, para 1(1)(b)
51 Directive 2004/38/EC concerns “the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”.
52 Schedule 1 to the Interpretation Act 1978 states that the “Immigration Acts” has the meaning given by section 61(2) of the UK Borders Act 2007.
53 See clause 11(2)(g).