Introduction

For EU Citizens from other EU states who are concerned about their Social Security, Healthcare, and Pension rights in respect of the UK, the position is now clearer. The UK-EU Withdrawal Agreement sets out their rights for those who fall within its scope by the end of the transition period (31 December 2020). For a comprehensive treatment of Social, Security, Healthcare, and Pension rights under the Withdrawal Agreement itself, see me earlier post The Withdrawal Agreement: Social Security, Healthcare, and Pensions after Brexit.

The European Union (Withdrawal Agreement) Bill

 As at December 2019 the UK has published its European Union (Withdrawal Agreement) Bill. As the Government has a working majority in the House of Commons, the assumption is that it will pass into law as an Act in January 2020 and that the UK will leave the European Union on 31 January 2020. The Bill makes provision for the co-ordination of Social Security, Healthcare, and Pension rights found in the UK-EU Withdrawal Agreement.

Under the Bill, EU law is to continue in force in the UK during the transition period (called ‘the implementation period’) (ending on 31 December 2020) and beyond that time period where provided for under the Withdrawal Agreement, with some modifications (see clauses 1-4). That means that the provision for the co-ordination of Social Security, Healthcare, and Pensions, provided for under Regulation 883/2004 will continue as now during the transition period, and beyond that time for people who fall within the personal scope of the Withdrawal Agreement.

For the period after December 2020, Social Security, Healthcare, and Pension rights protected under the Withdrawal Agreement are given full force in UK domestic law, so that they may be relied upon by people when approaching UK public bodies about their rights,  and when seeking any redress through UK courts and tribunals (see clause 5, inserting provisions into the European Union (Withdrawal) Act 2018). The way in which this is done is similar to the way EU law is presently given effect in UK law under the European Communities Act 1972.

In the result, most people currently protected, will continue to be protected. The German economist employed by a bank will have his existing rights protected and extended beyond the end of the transition period, as will the self-employed Italian journalist who worked in Italy before she moved to the UK.

Rule-making for Social Security, Healthcare, and Pensions under the European Union (Withdrawal Agreement) Bill

The Bill makes provision for an appropriate authority (UK Ministers; or the devolved administrations in Scotland, Wales or Northern Ireland; or both) to make regulations to make ‘appropriate’ provision to implement the part of the Withdrawal Agreement concerning Social Security, Healthcare, and Pensions (clause 13).

The clause is drafted very, very, widely and also allows for such regulations to make provision to supplement the effect of the provision made to implement the Withdrawal Agreement in UK law. In addition, it allows for regulations to be madeotherwise for the purposes of dealing with matters arising out of, or related to that part of the Withdrawal Agreement and the provision made to implement the Withdrawal Agreement in UK law.

Not only may the regulations modify other regulations, they may also modify an Act of Parliament. Thus, the power to make such regulations is what is known colloquially as a Henry VIII power.

The ambition of Clause 13 is to allow the Ministers and devolved authorities to implement into UK law and to supplement the effect of the direct application of Withdrawal Agreement’s provision for the co-ordination of Social Security, Healthcare, and Pensions. It also allows them to make provision otherwise for the purposes of dealing with matters arising out of, or related to, that part of the Withdrawal Agreement.

Remember, that as far as the Withdrawal Agreement provides, the co-ordination Regulation 883/2004 (providing for Social Security, Healthcare, and Pensions) continues to apply in UK law for those who fall within its scope, even after the end of the transition period on 31 December 2020, see my earlier post The Withdrawal Agreement: Social Security, Healthcare and Pensions after Brexit.

It follows that the power to make regulations can be used also to update UK legislation to reflect future changes made by the EU legislature to the co-ordination Regulation 883/2004 that take effect in UK law under the Withdrawal Agreement long after 31 December 2020. Moreover, the power to make regulations  allows the UK to implement interpretations of relevant EU law contained in the judgements of the Court of Justice of the European Union (given after 31 December 2020) , and to permit the UK to give effect to the decisions of the (EU) Administrative Commission (given after 31 December 2020)that the UK decides to accept as an accurate interpretation of matters arising under the co-ordination Regulations, see my earlier post The Withdrawal Agreement: Social Security, Healthcare and Pensions after Brexit for coverage of the UK’s scope to depart from the Administrative Commission’s decisions.

The Healthcare Right of Entry

 While this post is not concerned with EU Citizens’ immigration and residence rights under the Bill, special mention must be made of the healthcare right of entry found in Article 32(1)(b) of the UK-EU Withdrawal Agreement. Most people who have the right to move from an EU state to the UK (or vice versa) for planned healthcare treatment under EU Treaty law will continue to have that right under the UK-EU Withdrawal Agreement because they continue to fall within the personal scope of the Withdrawal Agreement. However, some people will fall outside the personal scope of the Withdrawal Agreement. Generally speaking, they will lose any existing rights to healthcare after the end of the transition period (31 December 2020). But the Withdrawal Agreement makes provision for them as regards a limited area of healthcare protection.

For people who fall outside the personal scope of the Withdrawal Agreement, as regards planned healthcare treatment under Regulation 883/2004 (where resident in one state and seeking treatment in another), where a request for prior authorisation has been made before the end of the transition period (31 December 2020), the rules regarding such treatment will continue to apply until the end of the treatment, and reimbursement procedures continue to operate even after the treatment has been completed. Notably, this provision gives such persons (and those accompanying them) a right to enter and exit the state where treatment is received.  Thus, it contains an immigration right, which is enforceable in UK law.

The Bill makes provision so that beneficiaries of that right are subject to immigration control where issues arise as to deportation (clause 10)) so that EU standards rather than UK standards continue to apply. It also prohibits a criminal court from recommending deportation where the conduct leading to the offence took place before the end of the transition period (31 December 2020), and it exempts such persons from the automatic (though not the discretionary) deportation regime. The protection applies if the ‘foreign criminal’ may be granted leave to enter or remain in the United Kingdom as a person who has a right to enter the United Kingdom by virtue of a healthcare right of entry.

For people who fall outside the personal scope of the Withdrawal Agreement, as regards planned healthcare treatment under Regulation 883/2004, but who nonetheless have a healthcare right of entry under Article 32(1)(b) of the Withdrawal Agreement, provision is made to include them among the classes of person who may have a right of appeal to the First-tier Tribunal (to be conferred by regulations) against a refusal of their immigration rights (clause 11). This right of appeal extends to situations (i) where a decision is  made in connection with entry clearance (prior to travel)  for the purposes of acquiring leave to enter or remain in relation to a healthcare right of entry, and (ii) where a decision made in connection with leave to enter or remain in the UK in relation to a healthcare right of entry.