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 Movement.
Under the Bill, power is conferred on the Secretary of State to make regulations to alter content of immigration-related laws. How broad is this power? What can the regulations do? How will immigration-related law be altered by its exercise?
Powers to alter Immigration-related laws
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. This includes not just the provisions to end free movement, see my blog post The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: The Measures to End Free Movement but also the provision made for Irish citizens, see my blog post Irish Citizens and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. Given that the provision made to end free movement includes provision for retained direct EU legislation and EU-derived rights (provisions that remain on the statute book) to cease to apply where inconsistent with statutory provision for immigration, the exercise of the use of Clause 4 to amend legislation will need very care scrutiny.
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 that has been incorporated into UK law by section 3 of the European Union (Withdrawal Act) 2018.
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.
It is likely that the power will be used to removeprotection that EU Citizens/EEA nationals and their family members have across a range of provisions made for them in UK statute law. For example, the Home Office has intimated that the power will be used to amend section 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 which makes it an offence to attend a leave or asylum interview with an immigration officer or the Secretary of State without a valid passport or equivalent document. Section 2 (4)(a), (b) and (5)(a), (b) provide defences for a person to prove that they are an EEA national, or a family member of an EEA national exercising EU Treaty rights in the UK. These defences will be removed and section 2 amended to provide a new defence for a person to prove that they have leave to enter or remain in the UK granted under the EU Settlement Scheme (found in Appendix EU of the Immigration Rules). However, this will not protect EU Citizens/EEA nationals and their family members who have not secured such leave. Such persons will now be liable to conviction.
Other changes that may be made include aligning the position of EU Citizens/EEA nationals with that of non-EU Citizens/EEA nationals as regards sham marriage law, and, further, making changes to the voluntary removal regime for EU Citizens/EEA nationals. Moreover, in the Home Office’s opinion, the power is broad enough to embrace amendments to legislation governing access to benefits and services to reflect the end of EU free movement, whilst ensuring protection for those with, or eligible for, leave under the EU Settlement Scheme (found in Appendix EU of the Immigration Rules).
An example of where the power may be used in relation to the new provision made for Irish citizens is where an Irish citizen was subject to an exclusion order under the Immigration (European Economic Area) Regulations 2016 immediately before those regulations are revoked. The power may be used to enable them to be treated for the purposes of new section 3ZA of the Immigration Act 1971, inserted by Clause 2 of the Bill, as a person who may be treated as excluded from the UK under that new provision so that they require leave to enter or remain in the UK under the new dispensation, notwithstanding that Irish citizens generally are not to require such leave.
More benignly, the power may be used to protect the rights of EU Citizens/EEA nationals who acquire EU rights in respect of the UK before the end of the transition period (31 December 2020). Where such a person would otherwise be affected by the Bill, the example given by the Home Office is where a person has an EU/EEA right of appeal pendingat the point at which EU/EEA appeal rights under section 109 of the Nationality, Immigration and Asylum Act 2002 are repealed, that right of appeal will not be lost.
Among other things Clause 4 states that 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 EU treaty rights to reside before the end of the transition period (31 December 2020).
Many if not most of such person will secured leave under the EU Settlement Scheme (found in Appendix EU of the Immigration Rules). As regards those not exercising an EU right to reside before the repeal of section 7 takes effect (likely to be the end of the transition period, 31 December 2020), the power in Clause 4 may be used to provision for those with leave under the EU Settlement Scheme, those eligible for such leave, and those ineligible for or excluded from such leave. However, a word of caution, for each of those classes, the Secretary of State may make different provision for different sub-classes. Not all may be treated alike. The provision made for access to benefits and services will require close attention. A Polish construction worker or a self-employed Italian journalist who has Pre-settled Status without having to prove the exercise of EU Treaty rights, or who fails to secure Settled Status in time (before the end of June 2021) may well be excluded from access to mean-tested benefits and services under these provisions.
Clause 4 also includes power 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/EEA nationals subject to the Immigration Health Surcharge when seeking leave to enter the UK. Such a change ought to be legislated for by way of primary legislation (i.e. provided for in an Act) and debated in Parliament on that basis. It is a matter of such seriousness that only primary legislation ought to be considered. Charges imposed on EU Citizens coming to the UK are likely to be reciprocated by charges imposed on British citizens migrating to any EU/EEA state. Thus, this is not just a matter of immigration policy and should not be left to Home Secretary to make regulations by statutory instrument. The sheer number of journeys by British citizens to EU states makes this a far more significant issue that the risk of reciprocal charges being imposed on states like India or China whose nationals ae already subject to the Immigration Health Surcharge.
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. If the regulations cease to have effect that does not affect the validity of anything previously done under the regulations or prevent the making of new regulations.
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.
The power in Clause 4 is broad enough not only to make regulations that alter Acts of Parliament and other regulations but also extends to the ability to make free-standing regulations that fulfil the condition that the Secretary of State considers them appropriate in consequence of, in connection with the provision made to end free movement and that made in respect of Irish citizens. Its use will need to be carefully watched.