50.The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, if enacted in its current form, will require new border controls in the UK after 31 December 2020 when EU free movement arrangements end and European Economic Area (EEA) citizens will be subject to UK immigration control in the same way as non-EEA citizens. These three draft affirmative Regulations set out some of the practical details that will be required:
51.This instrument proposes to end the direct effect of Article 3 of the Electronic Commerce Directive (“eCD”) on certain parts of the Communications Act 2003 (“the 2003 Act”) which deal with information society services and which would otherwise become retained EU law after the end of the Transition Period (TP). Article 3 of the eCD sets out “country of origin” rules which provide that these services must be regulated by the law of the EEA state in which the provider of the services is established, rather than the law of the EEA state in which the services are received. Member States have to notify the Commission and other Member States to get permission to derogate from this principle. The Department for Digital, Culture, Media and Sport says that after the end of the TP, UK businesses will no longer benefit from the country of origin principle when operating in the EEA and that retaining the principle unilaterally in the UK would give EEA based businesses preferential market access. The instrument therefore proposes to remove the direct effect of the country of origin principle on sections of the 2003 Act which set out the enforcement powers of UK regulators in relation to premium rate telephone services and persistent misuse of telephone networks. As a result of these changes, the regulators would be able to enforce breaches of the relevant UK law by EEA businesses in the same way as they enforce breaches by UK and non-EEA businesses, and without applying for permission to derogate from the EU’s country of origin rules. UK businesses would only have to comply with the law of the EEA state in which they provide the service and not UK law as well. There is some uncertainty regarding the impact of the changes. The Department expects small annual net direct costs to business of £0.6 million over 10 years but told the Committee that no data were available on how many of the 75,000 UK businesses that potentially fall into the scope of the instrument will be affected in practice, and that wider costs to UK businesses as a result of the UK becoming a third country in relation to the eCD will be a consequence of leaving the single market and customs union, rather than the instrument itself. The Committee first considered the Regulations when they were laid before Parliament as a proposed negative instrument and concluded that they should be subject to the affirmative procedure because of the uncertainty about their impact.
22 For these regulations “EEA citizens” means citizens of the European Union (EU), countries of the European Economic Area (EEA) (Iceland, Liechtenstein and Norway) and of the European Free Trade Association (EFTA) (the EEA countries and Switzerland).
23 Immigration (European Economic Area) Regulations 2016 ().