Introduction

 This post focuses on problems with certainty, delegation and scrutiny in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. Other posts my blog that concern the content of the Bill are:

• The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: An Overview
• The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: The Measures to End Free Movement 
• The Immigration and Social Security (EU Withdrawal) Bill: The Immigration Provisions 
• Irish Citizens and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill
• Social Security and Pension aspects of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 

In what follows below a familiarity with the content of the Bill is assumed. Where a recommendation is made, it is underlined.

The Measures to End Free Movement – Problems with Certainty

 These provisions are found in Clause 1 and Schedule 1.

Clause 1, making provision for Schedule 1, aims to end free movement law, in particular by repealing the main provisions of retained EU law relating to free movement law. Implicitly other aspects of free movement law remain in force as retained EU law. It is unsatisfactory to leave unclear which parts of free movement law remain good law as retained EU law; instead the parts of free movement law remain good law as retained EU law should be specified in a Schedule.

In addition, Clause 1 aims to end other EU-derived rights and repeal other retained EU law, ‘relating to immigration’. It is not clear what is meant ‘relating to immigration’, it is a phrase that could extend the scope beyond the Immigration Acts but how far beyond? What is its limit? The term ‘relating to immigration’ should be given a precise definition.

Retained Direct EU Legislation

 In Schedule 1, paragraph 4, concerning retained direct EU legislation, only Article 1 (providing for free movement to take up employment) of the Workers Regulation (492/11) is omitted. Thankfully the rest is retained. But it is retained in an unsatisfactory way. It ceases to apply so far as its provisions are (1) inconsistent with any provision of an Immigration Act or any secondary rules (statutory instruments) made under those Acts; or (2) otherwise capable of 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 capable of 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. That is uncertain and unsatisfactory where the withdrawal of rights is being undertaken. It would be better if it remained for all purposes, save where were disapplied for specified purposes by a judgment of the High Court on an application for judicial review in a case where the outcome matters to the parties.

EU-Derived Rights

 Schedule 1, paragraph 5, concerning EU-derived rights, covers rights including the right to reside of a non-EU citizen/third-country national primary carer of an EU Citizen self-sufficient child, see the case of Chen C-200/02, and other EU-derived rights  for the primary carers of children found in the cases of Zambrano C-34/09, Ibrahim C-130/08, and Teixeira C-480/08; as well as the rights for a British citizen’s family members found in Surinder Singh C-370/90.

In Schedule 1, paragraph 5, EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures (retained by virtue of section 4 of the  European Union (Withdrawal) Act 2018 Act, as modified by domestic law from time to time) cease to be recognised and available in domestic law so far as they (1) 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 (2) are otherwise capable of 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 capable of affecting the interpretation, application or operation of such a law. The law is left uncertain as a result.

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?  Do they extend beyond functions conferred by the Immigration Acts? If so, how far and to what?  It is wholly unclear. ‘Functions in connection with immigration’ should be defined.

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. That is uncertain and unsatisfactory where the withdrawal of rights is being undertaken. It would be better if it remained for all purposes, save where were dis-applied for specified purposes by a judgment of the High Court on an application for judicial review in a case where the outcome matters to the parties.

The Immigration Powers – Problems with Certainty, Delegation, and Scrutiny

 Problems with Delegation

 Clause 4(1) 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. It includes any power to make supplementary, incidental, transitional, transitory, or saving provision; and to make different provision for different purposes.

The 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 a power us known colloquially as a Henry VIII power. 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.

This is too broad. It is left to the Secretary of State to determine whether is it ‘appropriate’ to make a regulation ‘in connection with’ ending free movement. ‘In connection with’ is not defined, its limits are uncertain, and the person who gets to choose whether a proposed provision is ‘appropriate’ is the Secretary of State. Given that she can use these powers to amend Act of Parliament and retained EU law made by the EU legislature, this is wholly unsatisfactory. The Secretary of State should not have the power to make regulations ‘in connection with’ ending free movement. ‘In connection with’ should be removed from clause 4(1).

Clause 4(2) provides that the power may, among other things, modify any provision made by or under primary legislation passed before or in the same Parliamentary sessionas this Act. Thus, it can be used to change an Act of Parliament; such powers are known colloquially as Henry VIII powers. In addition, the power may also be used to modify at any time retained direct EU legislation that has been incorporated into UK law by section 3 of the European Union (Withdrawal Act) 2018.

Both of these provisions are too open ended. As regards amendments to legislation, who knows when this Parliamentary Session will end? They can run for years. Further, as regards retained direct EU legislation, the power to amend what would very-likely have been primary legislation if made by Parliament rather than the EU Legislature should be strictly confined. If the Clause 4 power is to be retained, it should be subject to a sunset clause limiting its use to six months. If further time is required, then the case for using primary legislation has been made.

Problems with Certainty

 Clause 4 (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).

However, it is drafted so widely could extend to any person not entitled to enter the UK without leave under section 7(1) of the Immigration Act 1988. That could include British citizens and persons subject to immigration control from non-EU states who lack any potential connection to EU law. That is too broad.

First, any persons outside the scope of EU free movement law should be provided for on the face of the Act and not by regulation. They are outside the provisions of the EU Treaties and the EU-UK Withdrawal Act. If they are to be made the subject to legislation affecting their UK rights and status, then it should be by primary legislation in the usual way.

Second, the provision would appear to aim to capture those who were admitted to the UK under EU law but who did not go on to exercise EU rights of residence (as a Worker, Self-employer person, family member of such persons, etc.) if that is the case, it should say so and the scope of the provision should be narrowed accordingly. The most obvious way to capture the class of persons at whom the provision may be aimed is to define them as those eligible for Settled Status or Pre-settled Status.

Clause 4(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. The Secretary of State may make different provision for different sub-classes.

Further, the power could be used to prohibit access to welfare benefits, tax credits, and social services(‘in connection with’ ending free movement). 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. Such exclusion ought not to be permitted under these regulations. Clause 4(1) and (4) should be amended to provide that the provide that the power does not extend to the ability to alter eligibility for welfare benefits, tax credits, and social services.

Clause 4(5) provides that the power extends to making 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.

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. 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 than the risk of reciprocal charges being imposed on British citizens by states like India or China whose nationals ae already subject to the Immigration Health Surcharge.

There is no need for this power to amend fees or charges provisions. It should be removed from the Bill.  The statutory powers to make an order for an Immigration Health Surcharge are found in sections 38 and 74 of the Immigration Act 2014. Notably an Order so made is subject to the draft affirmative procedureand not the negative resolution procedurethat would apply under clause 4(5) (see below). The current order is the Immigration (Health Charge) Order 2015 (as amended).

The statutory power to charge other fees in connection with immigration is found in sections 68 and 74 of the Immigration Act 2014. Once again, an Order so made is subject to the draft affirmative procedure and not the negative resolution procedure that would apply here (see below). The current order isthe Immigration and Nationality (Fees) Order 2016 (as amended).

Problems with Scrutiny

 Clause 4(6) provides that the first statutory instrument containing regulations made under clause 4(1) 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. This is not necessary. There is plenty of time for such regulations to be laid before the end of the transition period (31 December 2020) and for the draft affirmative procedure to be used, so that they are considered by parliament beforethey are made. In this way the proposed use of the power to remove of rights hitherto provided under EU law can be scrutinised beforeit impacts on EU Citizens and their family members. The affirmative procedure should not be used; the draft affirmative procedure should be used.

Clause 4(7) provides that any other subsequent statutory instrument that make changes to primary legislation (i.e. an Act of Parliament)  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.

Clause 4(8) provides that 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. This is not necessary. All regulations made should be subject to the draft affirmative procedure, so that they are considered by parliament before they are made. In this way the proposed use of the power to remove of rights hitherto provided under EU law can be scrutinised before it impacts on EU Citizens and their family members. The negative resolution procedure should not be used; the draft affirmative procedure should be used.

Any regulation left subject to the draft negative resolution procedure should follow the sort of procedure used in section 22 and Schedule 7 of the European Union (Withdrawal) Act 2018, where a Committee of each House considers it in order to decide whether it should be up-graded to the affirmative procedure.

In any event, if the power to make regulations in respect of fees survives, it should be subject to the draft affirmative procedure, consistent with the provision made for immigration fees in the Immigration Act 2014 (see above).

Irish Citizens – Problems with Certainty, Delegation, and Scrutiny

 Problems with Certainty

 Clause 2 introduces section 3ZA into the Immigration Act 1971 Act to provide that, absent one or more of three exceptional circumstances, Irish citizens do not require leave to enter or remain in the UK. Among other things, new section 3ZA makes provision for Irish citizens in relation to deportation powers in the Immigration Act 1971.

 However, there is no provision to capture the distinct position of Irish citizens (who are not also British citizens) who fall within the scope of the Belfast (Good Friday) Agreement as belonging to the people of Northern Ireland. Such persons ought not to be liable to deportation. Clause 2 should be amended to provide that such persons ought not to be liable to deportation.

Further, an opportunity has been missed to give statutory form to the high threshold (‘exceptional circumstances’) that that must be leapt over by the Secretary of State before an Irish citizen may be deported in the public interest. Clause 2 should be amended to provide a statutory basis for the high threshold that must be met before an Irish citizen may be deported.

 Problems with Delegation

Clause 4 (see above, in relation to Immigration Powers) may be used to amend Acts of Parliament and secondary legislation such as statutory instruments, including in relation to the provision made under Clause 2. This is unnecessary. The rights and distinct position of Irish Citizens should only be altered by primary legislation. They should not be left to regulations that the Secretary of State considers appropriate in connection with Common Travel Area arrangements. Clause 4 should be amended to remove any power to make regulations in respect of Irish Citizens and the Common Travel Area.

 Problems with Scrutiny

 As Clause 4 powers extend to making regulations in respect of the provision made for Irish Citizens and the Common Travel Area, the same observations made in respect of the scrutiny of Immigration Powers (see above) apply here too.  Clause 4 should be amended to remove any power to make regulations in respect of Irish Citizens and the Common Travel Area. If it is not, such regulations ought only to be made using the draft affirmative procedure, so that they are considered by parliament before they are made. In this way the proposed use of the power to alter the rights of Irish Citizens can be scrutinised before it impacts on them.

Social Security and Pension Provision – Problems with Certainty, Delegation, and Scrutiny

Problems with Delegation

 Clause 5(1) deals with Social Security and Pension Co-ordination and confers power to modify retained direct EU legislation in relation to these areas. 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.

The EU Regulations making provision for the co-ordination of social security and pensions were directly applicable without transposition into domestic law.  They contain rights and entitlements. There is a strong case that such rights and entitlements embedded in retained direct EU legislation ought only to be taken away by primary legislation. To that extent Clause 5 should be omitted and any proposed modifications to retained direct EU legislation as regards pensions and social secuirty ought to be placed in a Bill and put before Parliament.

Moreover, in so far as Clause 5 is to be used to give effect social security and pension provision in future treaty arrangements between the EU and the UK, it should not be so used. There is no justification for not embodying such arrangements in primary legislation and subjecting them to the accompanying level of scrutiny.

In any event, if the substance of the power to amend by regulation is to remain available, Clause 5 is unnecessary and should be omitted. Section 8 of the European Union (Withdrawal) Act 2018 already contains a power to modify retained EU law where the Minister considers it appropriate to prevent, remedy or mitigate any failure of retained EU law to operate effectively, or any other deficiency in retained EU law, arising from UK withdrawal from the EU. That power has been used to make regulations modifying retained direct EU legislation, see for example the Social Security Coordination (Regulation (EC) No 883/2004, EEA Agreement and Swiss Agreement) (EU Exit) Regulations 2019.

Further, while section 8 of the European Union (Withdrawal) Act 2018 requires a Minister to consider that a modification is appropriate, Clause 5(1) lacks this limitation. Imposing such a test would lead to the Minister having to justify the use of the power to a certain standard when scrutinised. If clause (5) is to survive such a limitation should be introduced, so that a Minister must consider it ‘appropriate’ to make regulations.

Clause 5(3) provides that the power to make Regulations includes power (1) 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); (2) otherwise to make different provision for different purposes; (3) to make supplementary, incidental, consequential, transitional, transitory, or saving provision; and (4) to provide for a person to exercise a discretion in dealing with any matter. There is no reason why the ability to discriminate between categories of person as regards provision should be non-exhaustive. ‘Or otherwise’  and should be omitted from Clause 5(3).

Clause 5(4) provides that the power to make supplementary, incidental, consequential, transitional, transitory, or saving, provision, it also includes power to modify: (A) any provision made by primary legislation passed before or in the same Parliamentary session of this Act; (B) any provision made under primary legislation made before or in the same Parliamentary session as this Act is passed, and (C)  other retained direct EU legislation (not otherwise mentioned in the list of Social Security and Pension Regulations). Thus, Clause 5 can be used to change an Act of Parliament; such powers are known colloquially as Henry VIII powers.

These provisions are too open ended. As regards amendments to legislation, who knows when this Parliamentary Session will end? They can run for years. Further, as regards retained direct EU legislation, the power to amend what would very-likely have been primary legislation if made by Parliament rather than the EU Legislature should be strictly confined. If Clause 5 power is to be retained, it should be subject to a sunset clause limiting its use to six months. If further time is required, then the case for using primary legislation has been made.

Problems with Certainty

 Clause 5(5) provides that, 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.

How is one to know if any particular EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures that remain are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, regulations made under Clause 5? Only by analysing the provision and, where two views are possible, by testing the matter in the Courts. The law is left uncertain as a result.

If a provision made by regulation under Clause 5 is engaged, then and only then will any particular EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to apply in that context; otherwise they will remain good law. In the result, the operation of the EU-derived rights, etc.  will in part depend upon which cases happen to reach the Courts and result in judgments determining the points in issue. That is uncertain and an unsatisfactory position where the withdrawal of rights is being undertaken. It would be better if they remained for all purposes, save where were dis-applied for specified purposes by a judgment of the High Court on an application for judicial review in a case where the outcome matters to the parties.

Problems with Scrutiny

Regulations made by use of this power are subject to the draft affirmative procedure for statutory instruments. They are not to be made unless a draft of that instrument has been laid before and approved by a resolution of each House of Parliament. As stated above, the power to make regulation under Clause 5 ought to be omitted. If it is retained, then the draft affirmative procedure is the least-worst option.