UK Provision for EU Frontier Workers protected by the Withdrawal Agreement

Introduction

The UK’s EU Withdrawal Agreement makes provision for frontier workers who move back and forth between the EU and the UK before the end of the Brexit transition period (31 December 2020). Frontier workers live in one country and work in at least one other. EU citizens who are frontier workers exercise rights of free movement under the EU Treaties and need no special immigration rules (though special provision is made for them and their family members in the Co-ordination of Social Security Regulation (883/2004)). When the Brexit transition period ends on 31 December 2020 free movement between the UK and EU member states ends. For consideration of the provision made for frontier workers in the Withdrawal Agreement, see my post Frontier Workers in the UK and the EU after Brexit: Rights under the Withdrawal Agreement. How has the UK given effect to those rights and what problems arise in the domestic transposition? Is the provision made by the UK compatible with the Withdrawal Agreement and with EU law?

Frontier Workers in the European Union (Withdrawal Agreement) Act 2020

Provision for giving effect to the rights of frontier workers under the Withdrawal Agreement is made by the European Union (Withdrawal Agreement) Act 2020 (section 8).

A Minister may by regulations make such provision as she considers appropriate for the purpose of implementing Articles 24(3) and 25(3) of the Withdrawal Agreement. Those articles confer on employed and self-employed frontier workers (and those who retain the rights they enjoyed as workers or self-employed where they are in one of the circumstances where such status may be retained under the free movement Directive (2004/38/EC, article 7(3)(a (b), (c), and (d)) (temporary illness, unemployment, vocational training, etc.)) the right to enter and exit the state of work even where they do not move their residence to the state of work. Equivalent powers to make regulations are also conferred on Ministers in respect of the provisions made in other agreements for frontier workers who are nationals of EEA states and those who are Swiss citizens.

In addition, a Minister may be regulations make such provision as she considers appropriate for the purpose of implementing Article 26 of the Withdrawal Agreement, which provides for the issue of documents to frontier workers. By that article, the state of work may require EU citizens and United Kingdom nationals (as the case may be) who have rights as frontier workers to apply for a document certifying that they have such rights. Where it does so, such EU citizens and United Kingdom nationals have the right to be issued with such a document. Equivalent powers to make regulations are also conferred on Ministers in respect of the provisions made in other agreements for frontier workers who are nationals of EEA states and those who are Swiss citizens.

The power to make regulations may be exercised by modifying any provision made by or under the Immigration Acts. This is what is known as a Henry VIII power; it allows a Minister to modify an Act of Parliament (in this case an immigration Act).

The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020

Who is a Frontier Worker?

The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 (the Frontier Workers Regulations) (in draft at the time of writing) are made under the powers conferred by the European Union (Withdrawal Agreement) Act 2020 and make provision to transpose and give effect to parts of the Withdrawal Agreement relating to frontier workers.

While the Withdrawal Agreement merely requires an EU citizen frontier worker not to reside in the UK (in order to be classified as a frontier worker), the Frontier Workers Regulations (regulation 3) defines frontier workers so as to require them not to be primarily resident in the UK. The definition provides that the person must immediately before the end of the Brexit transition period (31 December 2020), and continuously since then, have been:

• An EU citizen (or EEA state national of Swiss citizen)
• not primarily resident in the UK, and
• either a worker or self-employed person in the UK or a person who retains such status

One problem with the requirement to be a worker or self-employed or otherwise retaining status as such immediately before the end of the Brexit transition period and continuously thereafter, is that it depends on applying EU law correctly as to when a person is a worker or self-employed and as to when they retain that status when without work. As regards the latter, the Frontier Workers Regulations are problematic (see below). A second problem is that that the word ‘immediately’ does not feature in the definition of frontier workers within the personal scope of the Withdrawal Agreement.

That said, significant periods of UK residence are allowed under the Frontier Worker Regulations. A person is to be treated as not being primarily resident in the UK at a particular point in time if:

• present in the UK for less than 180 days in the 12-month period immediately before that day; or
• they have returned to their country of residence at least once in the 6-month period immediately before that day; or twice in the 12month period immediately before that day; unless there are exceptional reasons for not having done so.

As regards the provision made for retained worker status and retained self-employed status, when out of work, the principal problem arises in respect of the provision made in respect of those involuntarily unemployed (as opposed to being ill or injured temporarily, undergoing vocational training, or on maternity leave). The Frontier Worker Regulations reproduce a vice first found the pre-Brexit Immigration (European Economic Area) Regulations 2016 of prescribing for how long a person may retain worker/self-employed status, and what evidential standard is required, for those previously employed for more than a year but now unemployed and seeking work for over six months.

Right of Admission

From 2021, a person in possession of frontier worker rights does not need leave to enter or remain in the UK (regulation 5). In this respect they are like all EU citizens arriving before the end of the Brexit transition period (31 December 2020) and unlike EU citizens arriving in the UK for the first time from January 2021. There is a right of admission on production of a valid identity document and (from July 2021 onwards, when the grace period has ended) a valid frontier worker permit (regulation 6). However, once the latter is required, there is no flexibility to prove entitlement by other means. From July 2021, a self-employed Italian journalist, resident in Italy but who has been flying in regularly to London to cover stories for the last few years, will require a valid frontier worker permit. So too the German banker who works in London 3 days a week. Where there is reason to believe that a person is not entitled to be admitted as a frontier worker or should be refused admission on public policy-type grounds, the machinery of the Immigration Act 1971 is deployed to exercise control over the person (regulation 7).

Frontier Worker Permits

The Secretary of State must issue a frontier worker permit to a frontier worker on receipt of a valid application (regulation 8). An application for a frontier worker permit must be made online; be accompanied by required biometric information, a valid identity document, and evidence the applicant is a frontier worker; and be complete. An application is invalid and must be rejected if it is submitted otherwise than in accordance with these requirements. However, the Secretary of State must not reject the application as invalid unless the applicant has been given the opportunity to remedy the deficiencies in the application and has failed to do so. Thus, there is some flexibility.

A frontier worker permit may be in electronic form (so there is no requirement for a hard copy document), is proof of the holder’s status as a frontier worker on the date of issue (only), and must state the name of the frontier worker and the date of issue.

The Secretary of State may refuse to issue a frontier worker permit where justified on grounds of public policy, public security or public health (as defined in EU law); on conducive grounds (under UK law) in relation to conduct after the end of the Brexit transition period (31 December 2020); or on grounds of misuse of rights (regulation 9). She must refuse to issue a frontier worker permit to a person subject to a relevant restriction decision (an exclusion direction or a deportation order).

A frontier worker permit is valid for 2 years from the date of issue where issued to a frontier worker who has retained status as a worker or self-employed person but is not economically active (temporarily sick or injured, unemployed and seeking work, undergoing vocational training, on maternity leave, etc.); and 5 years from the date of issue where economically active (regulation 10).

An application for renewal of a frontier worker permit must comply with the requirements applicable on initial application (see above), (regulation 8). The Secretary of State may refuse to renew or may revoke a frontier worker permit at any time on grounds of public policy, public security or public health (as defined in EU law); on conducive grounds (under UK law) in relation to conduct after the end of the Brexit transition period (31 December 2020); on grounds of misuse of rights; where the permit holder ceases to be or never was a frontier worker; or where the permit holder is subject to a relevant restriction decision (an exclusion direction or a deportation order). In addition, an immigration officer may revoke a frontier worker permit at port or while the holder is outside the UK on these grounds.

Refusal of Admission

An immigration officer must refuse a person’s admission to the UK where the refusal to admit that person is justified on grounds of public policy, public security or public health (as defined in EU law); on conducive grounds (under UK law) in relation to conduct after the end of the Brexit transition period (31 December 2020); on grounds of misuse of rights; on grounds that the person is subject to a relevant restriction decision (an exclusion direction or a deportation order); or (prior to July 2021) on grounds that person is not required to produce a frontier worker permit but the immigration officer is not satisfied that they are a frontier worker, (regulation 12). When refusing admission an immigration officer must revoke that person’s frontier worker permit.

Where a person who is in the UK and has been refused admission to the UK because they are not a frontier worker, because they do not produce a valid identity document or valid frontier worker permit, or on public policy-type grounds, the machinery of the Immigration Act 1971 is deployed to exercise control over the person (regulation 13). Complementary provision is made in respect of the use of the 1971 Act as regards the revocation of admission (regulation 14).

Removal from the UK

A frontier worker who has entered the United Kingdom may be removed if that person ceases to be a frontier worker; the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health (as defined in EU law); or where justified on grounds of misuse of rights (regulation 15). In relation to public policy, public security or public health matters the notice of a decision must state that upon execution of any deportation order arising from that decision, the person against whom the order was made is prohibited from entering the UK until the order is revoked; or for the period specified in the order. (NB the omission of reference to removal on ‘conducive’ grounds (under UK law) in relation to conduct after the end of the Brexit transition period (31 December 2020) is probably a slip and likely to be corrected). In respect of persons subject to removal, the machinery of the Immigration Act 1971 is deployed to exercise control over the person and effect removal (regulation 16).

A deportation order remains in force until the order is revoked or for the period specified in the order (regulation 17). A person who is subject to a deportation order may only apply to the Secretary of State to have it revoked on the basis that there has been a material change in the circumstances that justified the making of the order. An application must set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the UK. On receipt of an application the Secretary of State must revoke the order if she considers that the criteria for making such an order are no longer satisfied. Further, she must take a decision on an application no later than 6 months after the date on which the application is received.

Decisions taken on grounds of public policy, public security, or public health, are taken in accordance with the standard Home Office approach to the application of EU law to expulsion decisions where a person has EU free movement rights (regulation 18 and Schedule). A court or tribunal considering whether the requirements are met must in particular have regard to the considerations contained in the Schedule. Unfortunately, the laundry list of considerations in the Schedule are controversial. Not all may be compatible with EU law. The latitude given to national authorities to determine public policy considerations may have been exceeded.

In relation to conduct taking place after the end of the Brexit transition period, a decision may be taken on the ground that the decision is conducive to the public good (i.e. on UK not EU criteria.) (regulation 19). In practice EU citizens will have less protection.

As regards decisions taken by reference to misuse of frontier workers’ rights (regulation 20), these as said to occur where a person observes the requirements of the Frontier Workers Regulations in circumstances which do not achieve the purpose of the UK’s EU Withdrawal Agreement (or the EEA or Swiss equivalent) as they relate to frontier workers’ rights; and intends to obtain an advantage from the Regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria. Such misuse includes attempting to remain in the UK as a frontier worker for purposes other than exercising frontier workers’ rights.

Under the Frontier Worker Regulations, the Secretary of State may take a decision on the grounds of misuse of rights where there are reasonable grounds to suspect the misuse of frontier workers’ rights and it is proportionate to do so. But it is said that the provision to do so may not be exercised systematically.

This definition of ‘misuse of rights’ needs to be strictly confined, interpreted and applied within the EU definition of ‘abuse of rights’. Any attempt to apply it on a wider basis risks breaching the Withdrawal Agreement and the applicable provisions of EU law.

Administrative Review

A person may apply to the Secretary of State for a review of a decision to refuse to issue or renew a frontier worker permit, or revoke a frontier worker permit on the grounds that the person is not a frontier worker (i.e. not on public policy-type grounds or on misuse of rights grounds) (regulation 21). Where a valid application is made the Secretary of State must withdraw the decision and make a new decision where satisfied that the person is a frontier worker.

A person may not apply for a review where they have waived their right to do so by signing an administrative review waiver form. Further, a person may only apply for a review of a decision once. Where the Secretary of State withdraws the decision, a further application for administrative review may be made in respect of any new decision.

When considering an application for administrative review, the Secretary of State must not consider whether the applicant is entitled to leave to enter or remain in the UK on some other basis; it is expressly stated that nothing in the Frontier Worker Regulations means that the applicant may make or vary an application for leave, or make a protection (i.e. asylum-type claim) or human rights claim, by seeking an administrative review.

An application for review must be made online and submitted within 28 calendar days of the date of issue of the decision (not including the date of issue) and be accompanied by any fee required and a valid identity document (regulation 22). An application submitted otherwise than in accordance with these requirements is to be rejected as invalid and not considered.

An applicant may withdraw an application at any time prior to decision and an application is deemed to be withdrawn where an applicant submits a further application for a frontier worker permit. Note that where the applicant is held in immigration detention on the date of the decision, the application must be submitted within 7 calendar days of the decision.

A person who has submitted a valid application or who has not yet submitted an application but is within time to do so, may not be removed from the UK until that application has been determined or rejected as invalid (though this does not apply to a person who has withdrawn their application (regulation 23).

Appeals

Provision is made for appeals against decisions to be made to the First-tier Tribunal (Immigration and Asylum Chamber) (regulation 24) under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. For a discussion of the appeals regime, see my post EU Citizens’ Appeal Rights under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
.

A person may appeal against a decision:

• to refuse to issue a frontier worker permit
• to refuse to renew a frontier worker permit, or
• to revoke a frontier worker permit

In addition, a person may appeal against a refusal of admission decision. But a person cannot bring such an appeal (i) without producing a valid identity document; or (ii) where the refusal of admission decision was made before 1st July 2021 or the person bringing the appeal is an Irish citizen, sufficient evidence to satisfy the Secretary of State that they are a frontier worker.

In addition, a person who has been admitted to the UK as a frontier worker may appeal against a decision to revoke that admission. But a person cannot bring such an appeal without producing a valid identity document.

In addition, a frontier worker who has entered the UK may appeal against a decision to remove that person taken om the grounds that the person has ceased to be a frontier worker or on grounds of misuse of rights. But a person cannot bring such an appeal without producing a valid identity document.

Finally, a frontier worker who has entered the UK may appeal against a decision to make a deportation order under the Immigration Act 1971. A person cannot bring such an appeal without producing a valid identity document, and if they do not have a valid frontier worker permit, sufficient evidence to satisfy the Secretary of State that they are a frontier worker. A person is treated as having a valid frontier worker permit if they would hold such a permit but for its revocation following a decision to make a deportation order under the Immigration Act 1971 Act.

Where a person is required to hold or produce a valid identity document, the Secretary of State may accept alternative evidence of identity and nationality where the person is unable to obtain or produce the required document due to circumstances beyond the person’s control.

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