Statutory Magic and Appeal Rights for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill

The UK’s European Union (Withdrawal Agreement) Bill gives effect to the UK-EU Withdrawal Agreement. The Withdrawal Agreement creates rights for EU Citizens, their family members and others. How are those rights protected by the UK’s European Union (Withdrawal Agreement) Bill?

Keeping parts of EU law as UK law in the transition period to 31 December 2020

To give effect to the Withdrawal Agreement and the rights arising under it, the European Union (Withdrawal Agreement) Bill builds on and modifies the UK’s European Union (Withdrawal) Act 2018. It uses the same sort of methods found in the 2018 Act in order to do so.

Under the European Union (Withdrawal) Act 2018 the main UK Act that brought EU law into UK law – the European Communities Act 1972 –  is to be repealed on the day the UK leaves the EU (section 1). However, the 2018 Act also made provision to keep EU-derived domestic (i.e. UK) legislation (section 2), to incorporate into UK law directly applicable EU legislation (section 3), and to give effect to existing EU rights, powers, liabilities, obligations, restrictions, remedies and procedures, so that they continue to be recognised and available in UK law and may be enforced, allowed and followed (sections 4-5). The 2018 Act also made provision for the interpretation of  the parts of EU law retained in UK law (section 6), for the status of such law (section 7), and for its subsequent alteration by UK Ministers making regulations by statutory instrument to deal with so-called deficiencies arising from the UK’s withdrawal from the EU (section 8). As regards the latter, the sheer breadth of the power given to Ministers by section 8 is highly controversial and is considered by many to be excessive and unnecessarily broad.

The European Union (Withdrawal Agreement) Bill (section 1)  ensures that EU law continues to apply in UK law  beyond the date the UK leaves the EU on 31 January 2020 and through to the end of the transition period on 31 December 2020 by adding a new section 1A to the European Union (Withdrawal) Act 2018 that keeps the European Communities Act 1972 as part of UK until then. It also makes provision (section 2) to keep EU-derived domestic (i.e. UK) legislation as part of UK law until the end of the transition period on 31 December 2020 by adding a new section 1B to the European Union (Withdrawal) Act 2018. In the result, EU rights of free movement continue in the transition period. Thus the Bill  is the source of law that will enable a Polish worker or a German student to remain in the UK exercising an EU right to reside during this time.

In order to give further effect to the new provisions in sections 1A and 1B of the European Union (Withdrawal) Act 2018, the European Union (Withdrawal Agreement) Bill (section 3) makes provision for UK Ministers to make regulations by statutory instrument under a new section 8A into the European Union (Withdrawal) Act 2018. The regulations may modify any provision made by or under any enactment (though not primary legislation made after the end of the transition period (31 December 2020). Thus, they can modify an Act of Parliament. The power to make such regulations is what is known colloquially as a Henry VIII power. Attached to this power is a sunset provision so that no regulations under section 8A may made after the end of two years beginning with the end of the transition period.

General Implementation of the Withdrawal Agreement – Preserving EU Citizens’ Rights

The rights of EU Citizens, their family members, and others, as they are protected and provided for under the UK-EU Withdrawal Agreement are provided for in UK law by the European Union (Withdrawal Agreement) Bill (sections 8, 16 and 18); section 8 introducing a section 7A into the European Union (Withdrawal) Act 2018. This is the bit of statutory magic that gives effect to rights, powers, liabilities, obligations, restrictions, remedies and procedures, that arise under the Withdrawal Agreement, so that they are given effect in UK law and are recognised and available in UK law and may be enforced, allowed and followed (sections 4-5). Every enactment is to be read subject to this provision.

It is this provision that gives effect to the rights of free movement preserved by the Withdrawal Agreement for persons who fall within its personal scope before the end of the transition period. Thus, the self-employed Italian journalist, who has exercised freedom of establishment in the UK and who has secured Settled Status in the UK, has her right to reside in the UK protected by this provision. True it is that she has indefinite leave to remain (ILR) under the UK law. But that is merely permission to be in the UK. She also has rights protected under international law (the Withdrawal Agreement), which are legally effective in the UK and upon which she can rely before a UK public authority and in UK courts and tribunals. She is not solely here with ILR permission, she has a right to be here as well. The granting of leave to enter or remain (say by a grant of ILR) makes a person subject to immigration control in UK law; legally effective rights to reside arising under UK law arguably relieve a person from such a burden or alter narrow the ambit of such control in significant ways.

Further, such rights as she has under the Withdrawal Agreement’s provision for the co-ordination of social security, healthcare, and pension rights, are also protected, see my blog posts the Withdrawal Agreement: Social Security, Healthcare and Pensions after Brexit and Social Security, Healthcare and Pensions for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for further information on those rights.

Rights of Appeal, Review and Judicial Review

 The European Union (Withdrawal Agreement) Bill (section 11) gives a UK Minister the power to make regulations to make provision for appeals against EU Citizens’ rights decisions. A right of appeal would be to the First-tier Tribunal (Immigration and Asylum Chamber, the tribunal where EU Citizens and their family members currently appeal against entry, residence, and expulsion decisions made by the Home Office. When such regulations are made, they will need to be carefully scrutinised to see if they comply with the terms of the Withdrawal Agreement and are consistent with standards of procedural fairness in both EU and UK law.

The following decisions are specified as EU Citizens’ rights immigration decisions giving rise to a right of appeal (see my blog post Immigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for further details of these rights):

  • An entry clearance decision made under relevant entry clearance immigration rules
  • a decision on leave to enter or remain in the UK by virtue of residence scheme immigration rules (e.g. Appendix EU to the Immigration Rules)
  • a decision on entry clearance for the purpose of acquiring leave to enter or remain in relation to a healthcare right of entry
  • a decision on leave to enter or remain in the UK in relation to a healthcare right of entry
  • a decision made on a right to enter or remain in the UK by virtue of regulations made for frontier workers
  •  a decision to make, or a refusal to revoke, a deportation order in relation to a relevant person
  • any other decision made in connection with restricting the right of a relevant person to enter the UK (NB for this class of decision, a Minister may also by regulations make provision for reviews (including judicial reviews) of a decision

The regulations may modify any provision made by or under any enactment. Thus, they can modify an Act of Parliament. The power to make such regulations is what is known colloquially as a Henry VIII power. In addition, the regulations may apply (with or without modifications) any enactment that applies in relation to immigration appeals under section 82 of the Nationality, Immigration and Asylum Act 2002  (to the First-tier Tribunal) or section 2 of the Special Immigration Appeals Commission Act 1997 (to the Special Immigration Appeals Commission).

For the purposes of appeals, reviews, and judicial reviews, a relevant person is, among other things, not only a person with the personal scope of the Withdrawal Agreement (Article 20) (for example an EU Citizen working in the UK at the end of the transition period on 31 December 2020) but also a person who:

  • has entry clearance granted by virtue of relevant entry clearance immigration rules
  • has leave to enter or remain in the UK granted by virtue of residence scheme immigration rules (e.g. Appendix EU to the Immigration Rules), or
  • otherwise has leave to enter granted after arriving with entry clearance granted by virtue of relevant entry clearance immigration rules.

(see my blog postImmigration Rights of Entry and Residence for EU Citizens under the UK’s European Union (Withdrawal Agreement) Bill for further details of these rights)

A person who has entry clearance or leave to enter or remain includes a person who would have had entry clearance or leave to enter or remain but for:

  • the making of a deportation order, or
  • the making of any other decision made in connection with restricting the right of the person to enter the UK (e.g. an exclusion order).

 

4 comments

  1. […] The European Union (Withdrawal Agreement Act) 2020 was made on 23 January 2020. On commencement only certain provisions came into force immediately include the power under section 11 for a Ministers to make regulations to provide for appeals against EU Citizens’ rights immigration decisions, see my Blog Post Statutory Magic and Appeal Rights for EU Citizens under the UK’s European Union (Withdrawal Agreem…. […]

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  2. […] The UK is obliged to ensure compliance, including as regards the powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation (article 4). For consideration of the provision made in UK law by the European Union (Withdrawal Agreement) Act 2020 see my blog post Statutory Magic and Appeal Rights for EU Citizens under the UK’s European Union (Withdrawal Agreem…. […]

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