Introduction

Under the European Union (Withdrawal Agreement) Bill what restrictions may be placed on EU Citizens’ rights of entry and residence to the UK what deportation rules may apply?

For EU Citizens from other EU states who are concerned about their EU Citizens’ rights and Immigration rights in respect of the UK, the position is becoming 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). Further, in the UK, Appendix EU of the Immigration Rules sets out the scheme for granting leave to enter or remain in the UK for those qualifying for Settled Status or Pre-Settled Status. Finally, the European Union (Withdrawal Agreement) Bill makes provision to implement and supplement the Withdrawal Agreement in UK law.

The European Union (Withdrawal Agreement) Bill

 As at December 2019 the UK had 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 EU Citizens’ rights and Immigration rights found in the UK-EU Withdrawal Agreement, see my blog post on Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill . It also makes provision for restricting rights of entry and residence and for deportation.

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 EU Citizens’ rights and Immigration rights will continue as now during the transition period, and beyond that time for people who fall within the personal scope of the Withdrawal Agreement.

Restriction on Rights of Entry and Residence

 The European Union (Withdrawal Agreement) Bill (clause 9) makes provision for a Minister to make such regulations as she considers ‘appropriate’ in order to implement restrictions on entry and residence found in Article 20 of the UK-EU Withdrawal Agreement.

Under Article 20 the conduct of EU Citizens, their family members, and other persons, who exercise Citizens’ rights under the Withdrawal Agreement, where that conduct occurred before the end of the transition period (31 December 2020), shall be considered under the provisions of the Citizens’ Directive (Directive 2004/38/EC), the Directive that gives effect to the free movement of persons. In other words, where a person who falls within the personal scope of the Withdrawal Agreement is exercising or proposes to exercise rights of movement to or residence in the UK , and the UK proposes to exclude her from the UK or deport her from the UK on grounds of her conduct, then it is the EU standards and not the UK standards that apply to any decision to exclude her or deport her.

The safeguards that apply under EU law are much better than those applying under UK law and set a demanding standard when a decision is to be taken on public security, public order, or public health grounds. The EU safeguards also require the principle of proportionality to be taken into account, require notification of decisions, and provide procedural protection in the form of rights to administrative and legal remedies.

The conduct of EU Citizens, their family members, and other persons, that occurs after the end of the transition period (31 December 2020) is not protected by the Withdrawal Agreement and decisions to exclude a person or to deport them on grounds of conduct will be regulated solely by UK law and will not attract the protection of EU law standards even where that person falls within the personal scope of the Withdrawal Agreement. For example, a German citizen employed in the UK since 2015 but who is convicted of criminal offences such as a form of assault occurring in 2021, will be subject to UK deportation criteria alone  as regards the public policy standard that needs to be met to deport him and does not get the benefit of EU law.

UK regulations may also be made to implement other aspects of Article 20 of the Withdrawal Agreement. The UK may adopt necessary measures to refuse, terminate or withdraw any right conferred by the Citizens’ rights part of the Withdrawal Agreement in the case of the abuse of those rights or fraud (‘abuse of rights’ as defined in Article 35 of the of the Citizens’ Directive (Directive 2004/38/EC), the Directive that gives effect to the free movement of persons).

 

In other words, the EU standard on abuse of rights that currently applies, is also to apply under the Withdrawal Agreement, and regulations may be made to give effect to it. The EU standard on abuse of rights provides greater safeguards than the UK notion of misuse of rights and any UK regulations made will require careful scrutiny to see that they match the EU standard.

Moreover, the procedural protection that applies under EU law to exclusion, deportation, and removal decisions will apply to people who fall within the personal scope of the Withdrawal Agreement (Article 21 of the Withdrawal Agreement). Thus, a self-employed Italian journalist who has been working in the UK since 2010 and  who is convicted of income tax evasion at any time (before or after the end if the transition period on 31 December 2020) receives the full procedural protection and safeguards as regards administrative and legal remedies, remedies, as provided currently under EU law (the Citizen’s Directive).

UK regulations may also be made to implement another aspect of Article 20 of the Withdrawal Agreement. The UK, as the state in which a person resides or works, may remove applicants who submitted fraudulent or abusive applications from its territory under the conditions set out in the Citizens’ Directive on free movement (Directive 2004/38/EC), even before a final judgment has been handed down where  judicial redress has been sought against the rejection of such an application. However, any UK regulations to give effect to this power which are made will need to be consistent with the provision made in Article 31 (procedural safeguards against removal and deportation) and Article 35 (abuse of rights) of the Citizens’ Directive (in other word, the UK regulations will need to be consistent with current EU standards).

UK regulations made in respect of any of the matters set out above, may be made not only in respect of those people who fall within the personal scope of the Withdrawal Agreement but also in respect of other people who have been granted entry clearance (visa permission to come to the UK) under relevant entry clearance immigration rules; who have leave to enter or remain in the UK under residence scheme immigration rules; or who have otherwise been granted leave to enter after arriving with entry clearance granted under relevant entry clearance immigration rules.

Definitions

In the Bill:

‘residence scheme immigration rules’ means

• Appendix EU to the immigration rules except those rules, or changes to
  that Appendix, which are identified in the immigration rules as not having effect in connection with the residence scheme that operates in connection with the withdrawal of the UK from the EU,
  and
• any other immigration rules which are identified in the immigration rules as having effect in connection with the withdrawal of the UK from the EU.

‘relevant entry clearance immigration rules’ means any immigration rules which are identified in the immigration rules as having effect in connection with the granting of entry clearance for the purposes of acquiring leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules.

References to having leave to enter or remain in the United Kingdom granted by virtue of residence scheme immigration rules includereferences to having such leave granted by virtue of those rules beforethis [section of the Bill] comes into force.

Moreover, references to a person who has entry clearance or leave to enter or remain include references to a person who would have had entry clearance or leave to enter or remain but for a deportation order made  under section 5 of the Immigration Act 1971, orany other decision (e.g. an exclusion order)  made in connection with restricting the right of the person to enter the UK.

The regulations may modify any provision made by or under the Immigration Acts or other primary legislation (e.g. other Acts). Thus, they can modify an Act of Parliament. The power to make such regulations is what is known colloquially as a Henry VIII power.

Retention of Existing Deportation Grounds

The UK’s deportation laws are amended by the European Union (Withdrawal Agreement) Bill (clause 10) to maintain the EU standards for people who fall within the scope of the UK-EU Withdrawal Agreement.

The Immigration Act 1971 (section 3) is amended so that the Secretary of State may not deem a relevant person’s deportation to be conducive to the public good(and thus liable to deportation) if the person’s deportation would be in breach of the UK’s obligations under Article 20 of the Withdrawal Agreement or would be in breach of those obligations if Article 20 applied in relation to that person. Article 20 of the Withdrawal Agreement provides for restrictions on right of entry and residence (see above). The effect of the amendment to the Immigration Act 1971 is to prevent the UK from using UK deportation criteria to deport a person protected by EU standards under the Withdrawal Agreement, as such a person is not liable to deportation.

In addition, the Immigration Act 1971 (section 3) is amended so that acriminal court may not recommend that a ‘relevant person’ be deported if the offence for which the person was convicted consisted of or included conduct that took place before the end of the transition period (31 December 2020, actually 11 pm that day). The effect of the amendment to the Immigration Act 1971 is to prevent the UK from using UK deportation criteria to deport a person protected by EU standards under the Withdrawal Agreement, as such a person is not liable to deportation.

Among other criteria, a person is a ‘relevant person’ if:

• If the person is in the UK having arrived with entry clearance granted by virtue of relevant entry clearance immigration rules (see above);
• If the person has leave to enter or remain in the UK granted by virtue of residence scheme immigration rules (see above);
• If the person 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 (see my blog post on Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill) whether or not the person has been granted such leave; or
• if the person may enter the United Kingdom by virtue of regulations made for frontier workers (living in one country, working in another), whether or not the person has entered by virtue of those regulations.

Further amendments are made to the UK Borders Act 2007, to modify the provision made for the automatic (as opposed to discretionary) deportation of foreign criminals (sentenced to at least 12 months in prison) and to provide for exception for persons falling within the scope of the Withdrawal Agreement.

An exception is made where the foreign criminal is a relevant person, and the offence for which the foreign criminal was convicted (in the UK) consisted of or included conduct that took place before the end of the transition period (31 December 2020, actually 11 pm that day).

Among other criteria, a foreign criminal is a ‘relevant person’ if:

• If the foreign criminal is in the UK having arrived with entry clearance granted by virtue of relevant entry clearance immigration rules (see above);
• If the foreign criminal has leave to enter or remain in the UKgranted by virtue of residence scheme immigration rules (see above);
• 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 (see my blog post on Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill) whether or not the person has been granted such leave; or

• if the person may enter the United Kingdom by virtue of regulations made for frontier workers (living in one country, working in another), whether or not the person has entered by virtue of those regulations.

In the Immigration Act 1971 and the UK Borders Act 2007 references tohaving leave to enter or remain in the UK granted by virtue of residence scheme immigration rules include references to having such leave granted by virtue of those rules before[the interpretation section of this Bill] comes into force.