Human Rights in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Introduction

 The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is a short bill with a vast effect: it ends EU free movement of persons, makes provision for Irish citizens, and allows Ministers to make changes to Acts of Parliament and retained EU law by making regulations by way of Statutory Instruments. For an overview of its provisions and links to detailed commentary see my blog post The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: An Overview. For a commentary of the main problems with the Bill see my blog post The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: Problems with Certainty, Delegation, and Scrutiny.What are the human rights implications of the provision made in the Bill?

Protecting Rights

 As noted, the Bill repeals the main provisions of EU free movement of persons law (as retained in UK law) and grants wide powers to Ministers to amend existing legislation. The detail of the new immigration system for EU Citizens and their family members moving to the UK for the first time from 2021 onwards is to be provided for by way of alteration to the Immigration Rules set to apply from the end of the transition period (31 December 2020). Consideration of the human rights implications of those altered Immigration Rules is separate exercise to consideration of this Bill.

The End of Free Movement

 As regards those EU Citizens and their family members who are protected by the EU-UK Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020 (‘the 2020 Act’), the question of the protection of their rights is regulated by international treaty (the Withdrawal Agreement) and the legislation made to give effect to it (the 2020 Act). The principal way of ensuring the rights of these persons will be to ascertain the scope of the protection afforded to them by the Withdrawal Agreement and to assess whether the legislative provision in the 2020 Act and the administrative action taken thereunder affords the necessary protection.

 

As regards the measures to end free movement in Clause 1 and Schedule 1 of the Bill, there are problems with the legislative techniques employed, see my blog postsThe Immigration and Social Security Co-ordination (EU Withdrawal) Bill: The Measures to End Free Movement and The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: Problems with Certainty, Delegation, and Scrutiny. The use of the techniques found in paragraphs 4(2) and 6(1) of Schedule 1, to limit the application of particular retained EU law or EU-derived rights only insofar as they are inconsistent with categories of other laws, may lead to breaches of human rights and will require careful scrutiny.

Irish Citizens

 As regards the provision made for Irish Citizens in Clause 2, the provision made discriminates in their favour as compared to nationals of other countries, see my blog posts Irish Citizens and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill and The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: Problems with Certainty, Delegation, and Scrutiny.

While the provision in Clause 2 requires consideration of Article 8 of the European Convention on Human Rights (‘ECHR’) (right to respect of family life, private life, etc.) taken together with Article 14 ECHR (securing rights without discrimination) as the difference in treatment is on grounds of nationality, Article 14 ECHR is not necessarily engaged. Arguably, Irish Citizens are not in an analogous situation to other EU Citizens or to foreign nationals more generally: Ireland is not to be treated as a foreign country (Ireland Act 1949, section 2), and the Good Friday Agreement (Belfast Agreement) makes particular provision for their position as regards Northern Ireland. Were Article 14 ECHR to be engaged,  no doubt the same points would form the basis for any justification advanced to account for the difference in treatment.

That said, Clause 2 of the Bill is arguably defective in another way: it contains no protection for the family reunion of Irish Citizens with family members who are not themselves Irish Citizens. Provision for family reunion is made in the Immigration Rules, which are statements of executive policy not legislation. For almost all practicalpurposes (save for a narrow class or expulsion and exclusion measures) Irish Citizens are similarly situated to British Citizens. At present, the Immigration Rules provide for family reunion with ‘settled’ persons as well as British Citizens; a provision of which an Irish Citizen’s family members may take advantage. But such protection is not entrenched in. law. That being so, there is a strong case for the Bill to contain measures to ensure that Irish Citizens’ family members have the same rights to family reunion as British Citizens’ family members (whatever those rules happen to be from time to time). Such provision would recognise the reality of the privileged position of Irish Citizens in respect of UK immigration control and ensure that they are able to live family life on as full a basis as their British Citizen counterparts regardless of future changes to the Immigration Rules.

Immigration Powers

 Clause 4 of the Bill gives Ministers a wide power to amend both legislation and retained EU law in relation to the ending  of free movement and in relation to Irish Citizens. The breadth of this power is highly problematic, see my blog posts The Immigration and Social Security (EU Withdrawal) Bill: The Immigration Provisions and The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: Problems with Certainty, Delegation, and Scrutiny.

The power may be used to alter legislation applicable to those who are notwithin the scope of the EU-UK Withdrawal Agreement.  The use of this power will need to be carefully scrutinised. It may lead to breaches of Articles 8 ECHR, taken together with Article 14 ECHR, in respect of unjustified differences in treatment as between classes of foreign nationals or on some other basis, as regards immigration control. Insofar as the exercise of the power to make regulations to end free movement advances into areas beyond immigration control, such as access to means-tested welfare benefits and community care services, it is possible that there will be breaches of other human rights provisions such the right to property under Article 1, Protocol 1 ECHR. There will need to be careful scrutiny not just of the regulations made but also of any administrative action permitted by those regulations, for example by way of decisions to confer or withhold access to such benefits and services.

Social Security Powers

 Clause 5 of the Bill gives the Secretary of State, a devolved authority (Scottish Ministers or a Northern Ireland Department), or a UK Minister acting  jointly with a devolved authority, as the case may be, a wide power to amend both legislation and retained EU law in relation to the provision for the co-ordination of social security and pension entitlements. The breadth of this power is highly problematic, see my blog postsSocial Security and Pension aspects of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill and The Immigration and Social Security Co-ordination (EU Withdrawal) Bill: Problems with Certainty, Delegation, and Scrutiny.

The power may be used to alter legislation applicable to those who are not within the scope of the EU-UK Withdrawal Agreement.  The use of this power will need to be carefully scrutinised. It may lead to breaches of Articles 8 ECHR, taken together with Article 14 ECHR, in respect of unjustified differences in treatment as between classes of foreign nationals or on some other basis such as date of arrival in the UK, or immigration status. An employed German banker or a self-employed Italian journalist may find their access to social security or pension entitlements depends upon the date that they arrived in the UK or whether they have Settled Status, Pre-Settled Status, or are dependent on some other form of leave to enter or remain.

Insofar as the exercise of the power to make regulations impacts upon entitlements to social security and pensions accrued by virtue of being insured under the public schemes in the UK (by way of national insurance) and/or EU states, it is possible that there will be breaches of other human rights provisions such the right to property under Article 1, Protocol 1 ECHR. There will need to be careful scrutiny not just of the regulations made but also of any administrative action permitted by those regulations, for example by way of decisions to confer or withhold access to social security or pension entitlements.

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