The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: The Measures to End Free Movement

Introduction

 The Immigration and Social Security Co-ordination (EU Withdrawal) Bill contains measures for ending the EU right of free movement of persons. The way in which it does so is important, for it affects provisions of EU law retained in UK law, as well as the operation of other UK immigration laws. Some of the techniques used leave it uncertain as to the operative functionality of parts of EU law retained in UK law; they also leave parts of UK immigration law not free from doubt as to their scope. In the result, much is left to the Courts to pick through on a case-by-case basis: ‘Does this rule derived from EU law still apply? What is its ambit? How is it to applied? What it its applicability where it conflicts with an immigration law? What is the scope of that immigration law?’ This is not a particularly desirable state of affairs. Good law is certain, well-expressed, and precise. But it is perhaps inevitable given the narrow policy ambition of ending the free movement of persons in all its liberal, purposive, open-ended glory.

For an overarching survey of all the provisions of the Bill, see my blog post The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: An Overview. What follows below focuses on the provisions for ending free movement. Those provisions are self-contained and their effect does notrequire regulations made under Clause 4 of the Bill to modify legislation.

The Main Task

 Clause 1 of the Bill gives effect to Schedule 1 in order to make provision to:

  • End rights to free movement of persons under retained EU law, including byrepealing the main provisions of retained EU law relating to free movement,
    and
  • End other EU-derived rights, and repeal other retained EU law, relating to immigration.

Note that the ambition is manifold. First, the ambition is to end free movement under retained EU law, by repealing the main (so not all) provisions of retained EU law relating to free movement. In this context, retained EU law (though not defined in the Bill) includes EU-derived domestic legislation under s 2 of the European Union (Withdrawal) Act 2018 (‘the 2018 Act’), as well as direct EU legislation (e.g. EU Regulations) retained by s 3 of the 2018 Act, and EU-derived rights retained by s 4 of the 2018 Act. All three continue to have effect after the end of the transition period (31 December 2020) unless modified.

Second, the ambition is to end other EU-derived rights, and repeal other retained EU law, relating to immigration. This is more problematic. There is no definition of what is meant by ‘relating to immigration’. The term is not limited to the Immigration Acts. Further, other EU-derived rights and other retained EU law must mean rights and laws other than those that form the main provisions of retained EU law relating to free movement. Thus, the ambit is wide enough to end EU-derived rights and other retained EU law, not part of retained EU law relating to free movement, so long as it is judged to be relating to immigration. That is very open-ended.

The ‘Immigration Acts’ redefined

 In order for the provisions ending free movement to work as intended, Clause 3 of the Bill modifies the list of ‘Immigration Acts’ found in the UK Borders Act 2007, s 61, so that it includes the immigration measures (clauses 1-4, and 6-9 as applicable) of the Bill. As amended the list of Immigration Acts will include: the Immigration Act 1971; the Immigration Act 1988; the Asylum and Immigration Appeals Act 1993; the Asylum and Immigration Act 1996; the Immigration and Asylum Act 1999; the Nationality, Immigration and Asylum Act 2002; the Asylum and Immigration (Treatment of Claimants, etc) Act 2004; the Immigration, Asylum and Nationality Act 2006; the UK Borders Act 2007; the Immigration Act 2014; the Immigration Act 2016; and Part 1 of the Immigration and Social Security Co- ordination (EU Withdrawal) Act 2020 (and Part 3 so far as relating to that Part).

EU-Derived Domestic Legislation

 Certain EU-derived domestic legislation is repealedby Schedule 1 of the Bill:

  • Section 7 of the Immigration Act 1988. This is the provision that provides for the exemption, for EU Citizens and their family members exercising EU rights, from the requirement for leave (permission) to enter into or remain in the UK. It is thelegislative provision that gives effect to EU free movement of persons. Its repeal means that no new German bankers, self-employed Italian journalists, French students, or self-sufficient Dutch citizens, will be able to be admitted to the UK and reside here as of right. As currently in force, s 7(1) provides ‘A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable EU right or of any provision made under section 2(2) of the European Communities Act 1972’.

 

  • Section 109 of the Nationality, Immigration and Asylum Act 2002. This is the provision that provides a power to make regulations about appeals against immigration decisions in respect of persons having, or claiming to have, EU rights. At present an EU citizen or their family member claiming EU rights may appeal to the First-tier Tribunal against an immigration decision on that basis. No more. NB this does not affect persons seeking to appeal against rights protected under the EU-UK Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020, see my blog post EU Citizens’ Appeal Rights under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
  • The Immigration (European Economic Area) Regulations 2016 (which implement Directive 2004/38/EC). These are the provisions that regulate the admission to, residence in (including residence permits), and expulsion from, the UK for EU Citizens/EEA nationals and their family members exercising EU rights. The repeal of these regulations removes the immigration regime that applies to such persons before the end of the transition period (31 December 2020). For those moving to the UK for the first time from 2021 onwards, not otherwise within the scope of the EU-UK Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020, the UK Immigration Rules alone will apply.

 

Further, the Provision of Services Regulations 2009 (which implements Directive 2006/123/EC) are amended so that regulation 5 (general exclusions and savings), now includes the following: ‘Nothing in these Regulations affects the interpretation, application or operation of any provision made by or under the Immigration Acts.’ Insofar as they form from of retained EU law, these regulations cannot be used to interpret, apply, or affect the operation of the any of the Immigration Acts or any secondary rules (statutory instruments) made under those Acts.

Retained Direct EU Legislation

 Only one piece of retained direct EU legislation is provided for in Schedule 1 of the Bill: the so-called Workers Regulation: Regulation (EU) 492/2011.

Article 1 of the Regulation is repealed. It bears directly on free movement rights. It provides:

  1. Any national of a Member State shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State.
  2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State.

Thereafter the Bill provides that the other provisions of the Workers Regulation cease to apply so far as they:

  • are inconsistent with any provision made by or under the Immigration Acts, or
  • are otherwise capable of affecting the interpretation, application or operation of any such provision.

The two remaining provisions  of the Workers Regulation that most obviously bear upon immigration law are:

                                                                     Article 7

  1. He shall enjoy the same social and tax advantages as national workers.

 

                                                                   Article 10

The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.

 

In the case law of the Court of Justice of the European Union, Article 7(2) (and its predecessor in the former Workers Regulation, 1612/68) has been used to facilitate equal access to domestic immigration rules for EU Citizens exercising EU rights, while Article 10  (and its predecessor in the former Workers Regulation 1612/68) has been used to derive rights of residence for the child of a former worker  in education and for her primary carer.

The remainder of the Workers Regulation remains in force as retained EU law but ceases to apply so far as its provisions are (1) inconsistentwith any provision of an Immigration Act or any secondary rules (statutory instruments) made under those Acts; or (2) otherwise capableof affecting the interpretation, application or operation of any such provision.

How is one to know if a retained provision is inconsistent with a provision of a particular Immigration Act or statutory instrument? Only by analysing the provision and, where two views are possible, by testing the matter in the Courts. The same is true for determining whether it is otherwise capableof affecting the interpretation, application or operation of such a law. If it is, then and only then will it cease to apply in that context; otherwise it will remain good law. Further, the operation of the remaining provisions of the retained Workers Regulation will in part depend upon which cases happen to reach the Courts and result in judgments determining the points in issue.

EU-Derived Rights

 Derived EU-Rights that cease to apply include those found in the:

  • Treaty on European Union
  • Treaty on the Functioning of the European Union
  • EEA Treaty
  • Swiss Free Movement of Persons Agreement
  • Association Agreement with Turkey (the Ankara Agreement)

As regards EU-derived rights applying to Swiss nationals and their family members, Schedule 1 of the Bill provides that any rights, powers, liabilities, obligations, restrictions, remedies and procedures which continue to be recognised and available in domestic law (by section 4 of the 2018 Act),  and which are derived from particular provisions of Swiss Free Movement Agreement cease to be recognised and available in domestic law. In this way free movement for Swiss nationals and their family members is ended, as it has been for EU Citizens/EEA nationals and their family members.

Thereafter, Schedule 1 of the Bill also provides that any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures (retained by virtue of section 4 of the 2018 Act,  as modified by domestic law from time to time) cease to be recognised and available in domestic lawso far as they:

  • are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including provision made after this provision comes into force), or
  • are otherwise capable of affecting the exercise of functions in connection with immigration.

First, one must identify a retained EU-derived right, power, liability, obligation, restriction, remedy, or procedure. Then one must consider its force. It ceases to apply insofar as it is (1) inconsistent with any provision of an Immigration Act or any secondary rules (statutory instruments) made under those Acts; or (2) otherwise capable affecting the exercise of functions in connection with immigration.

Once again, how is one to know if a retained provision is inconsistent with a provision of particular Immigration Act or statutory instrument? Only by analysing the provision and, where two views are possible, by testing the matter in the Courts. The same is true for determining whether it is otherwise capableof affecting the interpretation, application or operation of such a law. Separately, how is one to know if it is otherwise capable of affecting the exercise of functions in connection with immigration? What are these functions?

If one of these provisions is engaged, then and only then will the EU-derived right in question cease to apply in that context; otherwise it will remain good law. In the result, the operation of the EU-derived rights will in part depend upon which cases happen to reach the Courts and result in judgments determining the points in issue.

One example of an EU-derived right that would cease to apply for immigration purposes would be the right to reside of a non-EU citizen/third-country national primary carer of an EU Citizen self-sufficient minor child, see the case of Chen C-200/02. Other EU-derived rights similarly affected are those found in the cases of Zambrano C-34/09, andSurinder SinghC-370/90. In general, rights deriving from Article 20 (EU Citizenship) and 21 (free movement) of the Treaty on the Functioning of the European Union, and Directive 2004/38/EC (on free movement of EU Citizens and their family members) will be caught; as will EU-derived rights from the Workers Regulation, see the cases of Ibrahim C-130/08 and Teixeira C-480/08.

Some of the EU-derived rights caught include those derived from the:

  • Treaty on European Union: Article 9, Citizenship and equality
  • Treaty on the Functioning of the European Union: Article 18(1) Non-discrimination; Article 20(1) and (2)(a) Citizenship; Article 21(1) Free movement; Article 45(1), (2) and (3) Free movement of workers; Article 49 Freedom of establishment; Article 56 Free movement of services
  • EEA Agreement:Article 4 Non-discrimination; Article 28 (1), (2) and (3) Freedom of movement for workers; Article 31 (1) Freedom of establishment; Article 36 (1) Free movement of services
  • Treaty establishing the European Atomic Energy Community: Article 96(1) Abolition of restrictions based on nationality regarding employment in the field of nuclear energy; Article 97 Abolition of restrictions based on nationality regarding constructions of nuclear installations
  • Additional Protocol to the Turkey ECAA (Ankara Agreement): Article 41(1) Standstill clause
  • Decision 1/80 of the Association Council established under the ECAA (Ankara Agreement): Articles 6(1) and (2) Right to work; Article 7 Rights of family members Article 13 Standstill clause; Article 14 Limits on grounds of public policy, public security or public health
  • Swiss Agreement on Free Movement: Article 2 Non-discrimination; Article 5 Persons providing services; Article 11 Processing of appeals; Article 13 Standstill; Article 23 Acquired rights; Article 1 of Annex 1(immigration only) Entry and Exit; Article 2 of Annex 1 (immigration only) Residence and economic activity; Article 3 of Annex 1 (immigration only) Members of the family;Articles 4 and 24 of Annex 1 (immigration only) Right to stay and rules regarding residence; Article 5 of Annex 1 (immigration only) Public order; Articles 6 and 12 of Annex 1 (immigration only) Rules regarding residence; Articles 7 and 8 of Annex 1 (immigration only) Employed frontier workers; Articles 17 and 20 of Annex 1 Persons providing services; and Article 23 of Annex 1 (immigration only) Persons receiving services

 

4 comments

  1. […]  The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 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, see my blog post The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: An Overview. As regards measures to end free movement, see my blog post The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: The Measures to End Free Mo…. […]

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