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 economic and social justice issues arising as a result of the Bill?

Equal Treatment in Respect of Social Advantages

 For EU Citizens and their family members not covered by the scope of the Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020, there is a real risk that they will lose a key EU right to equal treatment. Persons so affected may include not only those who move for the first time to the UK after the end of the transition period (31 December 2020) but also those present in the UK before that time but who do not secure Settled Status or Pre-Settled Status before the end of the UK’s deadline for applying to do so (30 June 2021).

The right to equal treatment in respect of social advantages in found in EU Regulation 492/11, article 7(2):

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

It forms a part of the EU laws retained in UK law by section 3 of the European Union (Withdrawal) Act 2018.

Prior to the end of the transition period, EU Citizens and their family members were entitled to equal treatment with British citizens in respect of access to social advantages when they were exercising an EU right to reside (or were otherwise lawfully resident). This was so whether or not they had any form of Registration Certificate or Residence Card to evidence such status. From 2021 onwards, the immigration status of EU Citizens and their family members who are first-time arrivals in the UK will regulated by the UK’s Immigration Rules and the attendant rights to social assistance (Universal Credit, homelessness assistance, etc.) will be regulated by UK legislation and UK retained EU law alone.

For EU Citizens and their family members present in the UK before the end of the transition period, who wish to access  social assistance on or after 30 June 2021, they will need to satisfy the requirements of UK law:  for example Settled Status but not Pre-settled Status confers eligibility for such welfare benefits, subject to satisfying the same conditions as apply to British citizens.

The social advantages protected under EU law, include but are not limited to equal treatment as regards access to cash benefits (means-tested benefits and universal benefits) and benefits in kind (homelessness assistance, social housing, community care, etc.). In the case-law of the Court of Justice, among other things, they extend also to equal access to immigration rules for family members, and equal access in other areas such as in relation to certain property rights.

The Position in UK law

 Application and Interpretation

As noted above, Regulation 492/11 forms part of the EU law retained in UK law by section 3 of the European Union (Withdrawal) Act 2018. However, further provision is made in Schedule 1 of the Bill.  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 Regulation (including Article 7(2)) 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 Regulation, apart from Article 1,  remains in force as retained EU law but 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. Further, the operation of the remaining provisions of the retained Regulation will in part depend upon which cases happen to reach the Courts and result in judgments determining the points in issue.

As regards eligibility for social assistance for EU Citizens and their family members on an equal basis with British citizens, for those who had a right to reside before the end of the transition period (31 December 2021) but who do not obtain Settled Status before 30 June 2021), there is a real prospect of Article 7(2) of the Regulation being judged to cease to apply on the basis that it is inconsistent with or otherwise capable of affecting the interpretation, application or operation of immigration laws that regulate their presence in the UK. Where that occurs, it will not be possible to make use of Article 7(2) of the Regulation, as retained in UK law, to secure eligibility for social assistance.

The position is likely to be the same for EU Citizens and their family members who move to the UK for the first time in 2021 under the UK Immigration Rules (made pursuant to a provision of the Immigration Act 1971), say perhaps as seasonal agricultural workers or under applicable work-permit provisions. For those admitted to the UK under its Immigration Rules from 2021, there is the prospect is that they will need to acquire permanent residence (indefinite leave) where possible  after five years in order to have access to social assistance, even though social assistance includes in-work benefits (e.g. Universal Credit, which among other things, replaces Housing Benefit and Working Tax Credits for new applicants) designed to keep the low-paid and modestly paid out of poverty.

New UK Regulations to Amend Laws

 A further problem arises. 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 is in addition to the provision referred to above whereby retained EU legislation ceases to apply where inconsistent with statutory provision for immigration.

The Clause 4 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.

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). Thus,  as regrds certain EU Citizens and their family members, were the Secretary of State to lose a court case that Article 7(2) of the Regulation  ceased to apply by virtue of the provision made in Schedule1 of the Bill (see above), she could exercise a Henry VIII power to modify it by statutory instrument and thereby secure her goal. By hook or by crook, she succeeds.

Further, the power in Clause 4 may be used to make direct provision for those with leave under the EU Settlement Scheme, those eligible for such leave, and those ineligible for or excluded from such leave. 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. It is a moot point whether that is compatible with the protection of the Withdrawal Agreement.

The Hostile Environment

 The end of EU free movement by the Clause 1 and Schedule 1 of the Bill and the imposition of UK immigration controls will bring the full force of the hostile environment to bear on all EU Citizens and their family members, when they seek to prove the right to work, the right to rent residential accommodation, or the right to study; to obtain a driving licence;  to obtain a bank account; or to access healthcare. No longer will it acceptable for an EU citizen merely to show their EU Citizen passport, it will now be necessary to provide documents that demonstrate a qualifying immigration status.

As a result, whether or not such persons can prove possession of a qualifying immigration status, there is a risk of prejudicial discrimination as between EU Citizens and British Citizens, and greater levels of prejudicial discrimination against those EU Citizens and their family members from black and minority ethnic backgrounds. The EU treaty protection of non-discrimination on grounds of nationality no longer applies as the UK has left the EU. Further. As noted above,  even for EU Citizens in work, the protection for equal treatment as regards matters that fall within the scope of social assistance  for the purpose of Article 7(2) of the Regulation is unlikely to assist those not protected by the EU-UK Withdrawal Agreement and the European Union (Withdrawal Agreement) Act 2020. All that remains is the protection of the Equality Act 2010, which can all too easily lead to cases where discrimination is found but thereafter found to be justified; something that affords no protection at all.

 Labour Exploitation

 The end of EU free movement by the Clause 1 and Schedule 1 of the Bill  and its replacement with UK Immigration Rules that tie a worker to a particular employer/sponsor leads to EU Citizens and their family members  who move to the UK for the first time from 2021being confined to a scheme that prevents the worker from switching employment or ceasing employment easily without prejudicing their lawful UK residence.

Broadly speaking, hitherto, an EU Citizen has been free to take any job, be self-employed, or to be without work while considering their position, without risk of being compelled to leave the UK or being prosecuted for unlawful presence. The application of the UK Immigration Rules to an EU Citizen arriving in the UK for the first time in 2021 changes the position radically. It increases the risk of exploitation of that EU Citizen as regards their UK employment as it gives the employer a degree of control that may lead to abuses as regards contractual terms, working conditions, hours, and wages. That the risk of such exploitation arises is an incident not just of the move from EU free movement to UK Immigration Rules but also of the narrow and inflexible way the Immigration Rules are constituted. One may accept the ending of free movement while arguing for an increase in migrant worker protection under the Immigration Rules. An unfettered right to switch employers and the preservation of  lawful residence during reasonable periods between employment with different employers would assist in protecting a migrant worker’s position.