Introduction

The new Immigration and Social Security Co-ordination (EU Withdrawal) Bill (5 March 2020) contains measures for ending EU Citizens’ free movement, as well as measures in relation to Irish citizens, and measures and in relation to social security co-ordination.

The Bill has only nine clauses and if you exclude those concerning interpretation, extent, commencement, and short title, it has only four substantive clauses. In other words, there is not very much on the face of the Bill. However, it gives the UK government enormous powers to make regulations by statutory instrument (a form of secondary legislation)to change Acts of Parliament.

The End of Free Movement for EU Citizens

As regards the ending of free movement, where EU Citizens seek to come to the UK from 2021 onwards and are not protected by the UK-EU Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020, they will need UK immigration leave (permission) to enter or remain in the UK.

Clause 1 of the new Bill introduces  the provisions of  Schedule 1 that end EU rights of free movement of persons that had been retained under the EU (Withdrawal) Act 2018. In addition, it ends other EU-derived rights and repeals other EU retained law relating to immigration.

Key changes in Schedule 1 of the Bill include:

• The removal of the exemption from the requirement for leave to enter or remain for persons exercising EU rights (section 7 of the Immigration Act 1988)
• The revocation of the provision made for EU free movement rights of entry, residence and protection from expulsion (the Immigration (European Economic Area) Regulations 2016)
• The removal of the right to move to the UK to take employment (Article 1 of EU Regulation 492/11)
• The removal of EU-derived rights, powers, liabilities, obligations, restrictions, remedies, and procedures that would otherwise continue to be available in UK law under section 4 of the European Union (Withdrawal) Act 2018

These are the changes that end the free movement of persons between the EU and the UK and that strip EU Citizens of rights to come to the UK. In the future, the employed German banker, the self-employed Italian journalist, and the French student, who wish to come to the UK will have to submit to and satisfy the UK Immigration Rules.

Of course British citizen bankers, journalists, and students will lose their rights to move to the 27 EU states, the 3 EEA states, and Switzerland  as well. For more on this topic see my blog posts A Mortification of the Flesh: UK Immigration Policy for EU Citizens after Brexit and Anglo-Saxons amid the ruins: The UK’s Immigration Mandate for its Future Relationship Treaty with the EU.

For a detailed consideration of Clause 1 of the Bill, see my blog post The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: The Measures to End Free Movement.

Irish citizens

The Bill makes further provisions for Irish citizens to enter and remain in the UK without the need to obtain leave to enter or remain. Some provision is already made under the Immigration Act 1971, where an Irish citizen is entering the UK on a local journey from the Republic of Ireland, the Channel Islands, or the Isle of Man (the Common Travel Area).

Clause 2 of the Bill inserts section 3ZA in to the Immigration Act 1971 to make it clear that, other than in specified circumstances, an Irish citizen does not require leave to enter or remain in the United Kingdom. The specified circumstances relate to deportation, exclusion, and where notice of removal directions has been given. They also extend to persons excluded under certain international instruments (section 8B of the 1971 Immigration Act.). Where a specified circumstance applies, an Irish citizen may not enter the UK without leave (permission).

For a detailed consideration of Clause 2 of the Bill, see my blog post Irish Citizens and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.

Powers to change Immigration Law

Clause 4 of the Bill confers a power on the Secretary of State to make by Statutory Instrument, such regulations as she considers appropriate in consequence of, or in connection with, any provision of the part of the Bill concerned with ending free movement.

That power may, among other things, modify any provision made by or under primary legislation passed before or in the same Parliamentary session as this Act. Thus, it can be used to change an Act of Parliament; such powers are known colloquially as Henry VIII powers. The power may also be used to modify retained direct EU legislation.

It includes any power to make supplementary, incidental, transitional, transitory, or saving provision; and to make different provision for different purposes. This is a very widely drawn power and any regulations made under it will need to be carefully scrutinised.

Among other things, it may be used to make regulations that apply to persons who,  before the coming into force of the repeal of section 7(1) of the Immigration Act 1988 (which dispenses with the need to acquire leave to enter or remain if one is exercising an EU right to reside), were  persons who were not entitled by virtue of section 7(1) of that Act, to enter or remain in the United Kingdom without leave. In other words, it will extend to those EU citizens and their family members who were not exercising rights to reside before the end of the transition period (31 December 2020).

The clause includes powers to make regulations in relation to the imposition of fees or charges made by or under primary legislation passed before or in the same session as this Act. Thus, for example, it could be used to make regulations to make EU Citizens subject to the Immigration Health Surcharge when seeking leave to enter the UK.

The first statutory instrument containing regulations that make changes to laws is subject to the affirmative procedure; it must be laid before Parliament after being made. It ceases to have effect after the end of the period of 40 days beginning with the day on which it was made unless it is approved by a resolution of each House of Parliament.

Any other subsequent statutory instrument that make changes to laws is subject to the draft affirmative procedure;  it is not to be made unless a draft of that instrument has been laid before and approved by a resolution of each House of Parliament.

A statutory instrument containing regulations that make changes to laws, other than one to which the previous two observations apply, is subject to annulment in pursuit of a resolution of either House of Parliament. This is the negative resolution procedure.

For a detailed consideration of Clause 4 of the Bill, see my blog post The Immigration and Social Security (EU Withdrawal) Bill: The Immigration Provisions.

 Powers to change Social Security Law

Clause 5 deals with Social Security co-ordination and confers power to modify retained direct EU legislation in relation to Social Security co-ordination. It gives power to an appropriate authority to do so. An appropriate authority is the Secretary of State or the Treasury; a devolved authority (Scottish Ministers or a Northern Ireland department); or a Minister of the Crown acting jointly with a devolved authority.

For an introduction to the importance of social security co-ordination see my blog post Pensions, Healthcare and Social Security for EU Citizens after Brexit: the forgotten aspect of Free Movement

The retained direct EU Regulations that may be modified are:

• Regulation 883/2004 (and its implementing Regulation 987/2009)
• Regulation 1408/71 (and its implementing Regulation 574/72)
• Regulation 859/2003 (extending Regulation 1408/71 to nationals of non-EU Member States)

The power to make Regulations includes power:

• to make different provision for different categories of person to whom they apply (where such categories may be defined by reference to a person’s date of arrival in the UK, their immigration status, their nationality, or otherwise);
• otherwise to make different provision for different purposes;
• to make supplementary, incidental, consequential, transitional, transitory, or saving provision; and
• to provide for a person to exercise a discretion in dealing with any matter.

As regards the power to make supplementary, incidental, consequential, transitional, transitory, or saving, provision, it also includes power to modify:

• any provision made by primary legislation passed before or in the same Parliamentary session of this Act
• any provision made under primary legislation made before or in the same Parliamentary session as this Act is passed, and
• retained direct EU legislation (not otherwise mentioned in the list of EU Regulations above).

Thus, it can be used to change an Act of Parliament; such powers are known colloquially as Henry VIII powers. It is a very widely drawn power and any regulations made under it will need to be carefully scrutinised.

As regards the impact of regulations made using this power, EU-derived rights, powers, liabilities, obligations, restrictions, remedies and  procedures  (available in UK law under section 4 of the European Union (Withdrawal) Act 2018, and as modified by UK law)  cease to be recognised and available in domestic law in so far as they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, provision made by these regulations.

For a detailed consideration of Clause 5 of the Bill see my blog post Social Security and Pension aspects of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.