The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 received royal assent on 11 November 2020. Part one of the Act includes provisions which will repeal retained EU law on freedom of movement, bringing EU, EEA, EFTA (Iceland, Liechtenstein and Norway) and Swiss citizens within a single UK immigration system. Separate protections will exist for Irish citizens. The repeal of freedom of movement legislation will come into effect at the end of the transition period on 31 December 2020.
Section 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 also gives the Secretary of State the power to make regulations in connection with repealing retained EU law on freedom of movement. This power may be used as the Secretary of State “considers appropriate in consequence of, or in connection with, any provision” in part one of the Act. These regulations can amend primary as well as secondary legislation. As such, section 5 grants so-called ‘Henry VIII’ powers to the Secretary of State.
The scope of the powers delegated to the Secretary of State in section 5 of the bill were criticised during the passage of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill through the House of Lords. The House of Lords Delegated Powers and Regulatory Reform Committee’s report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, published on 25 August 2020, argued these regulation-making powers (then in clause 4 of the bill) were too broad in scope. It described the provisions as representing a “very significant delegation of power from Parliament to the Executive”. The House of Lords Constitution Committee report on the powers in the bill, published in September 2020, raised similar concerns. The report said:
We agree with the conclusions of the Delegated Powers and Regulatory Reform Committee about the powers in clause 4. A Henry VIII clause that is subject to such a permissive test as “appropriateness”, and which may be used to do anything “in connection with” in relation to so broad and important an issue as free movement, is constitutionally unacceptable. Such vague and subjective language undermine fundamental elements of the rule of law.
The Government said in its response to the Delegated Powers and Regulatory Reform Committee that the powers in clause 4 could only be used in relation to the ending of free movement and protecting the status of Irish citizens. A draft of the statutory instrument was published by the Government on 4 September 2020 to support consideration of the Immigration and Social Security Coordination (EU Withdrawal) Bill in the House of Commons. In a letter to MPs, Kevin Foster, the Minister for Future Borders and Immigration, said the powers were necessary and would be used in a limited way. He wrote:
This power is needed to align the immigration treatment of EEA and non-EEA citizens under the future global points-based immigration system from January 2021. The Government has no intention to use the powers to make wide-ranging changes to immigration policies or fees, as some reports have suggested.
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020
The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 were made on 17 November 2020 under the powers given to the Secretary of State in section 5 of the 2020 Act. The Government’s explanatory memorandum states:
The purpose of the instrument is to amend a range of domestic primary and secondary legislation as a consequence of, or in connection with, measures in Part 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 that repeals free movement law at the end of the transition period on 31 December 2020, and makes provision for the protection of Irish citizens. The legislation being amended relates to immigration, nationality and benefits and services. The effect is broadly to align EEA citizens with non-EEA citizens in the UK’s immigration system while making protections for Irish citizens and for EEA citizens and their family members granted status under the EU Settlement Scheme.
The regulations are subject to made affirmative procedure meaning they came into force before being laid in Parliament. However, the regulations must be affirmed by both Houses to remain in force. They were laid before both Houses on 18 November 2020. The approval period ends on 27 December 2020.
The Government also published an impact assessment, which said the policy objectives and intended effects of the regulations were as follows:
The intention is to ensure a coherent UK statute book after free movement ends. This will be done by removing references to EU law and institutions and aligning EEA citizens and their family members with non-EEA citizens in the immigration system. The effect is to remove preferential arrangements for EEA citizens and their family members which currently exist by virtue of free movement (and Turkish European Communities Association Agreement rights which will no longer apply to Turkish nationals and their family members), but continue protection for Irish citizens, those granted status under the EU Settlement Scheme and those eligible for Turkish European Communities Association Agreement transitional measures. The new immigration system will be provided for in Immigration Rules under the Immigration Act 1971.
The regulations were considered by the Secondary Legislation Scrutiny Committee on 1 December 2020. The instrument was not drawn to the special attention of the House.
Immigration following end of transition period
A points-based immigration system will be introduced following the end of the transition period. This will be introduced through changes to the immigration rules which will take effect from 1 January 2021.
EEA and Swiss citizens resident in the UK prior to the end of the transition period are able to apply for a new immigration status under the EU settlement scheme. The scheme grants applicants either settled or pre-settled status, depending upon how long the applicant was resident in the UK prior to their application date. Eligibility ends after 31 December 2020, although people in the UK prior to that date can continue to apply up until 30 June 2021. After 31 December 2020, EEA and Swiss citizens who arrive in the UK will be subject to the new points-based immigration system.
As mentioned above, separate protections will exist for Irish citizens. Under the Immigration Act 1971 (as amended), Irish citizens will not be required leave to enter or remain in the UK unless they were the subject of a deportation order, exclusion decision or an international travel ban. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 amended the 1971 Act to remove the existing distinction between Irish citizens entering the UK from Ireland or the Crown Dependencies (the common travel area) and those who entered from a point of departure outside the common travel area. Under the 2020 Act, the same protections will apply after the end of the transition period regardless of where an Irish citizen entered the UK.
- House of Lords Library, Immigration and Social Security Co-ordination (EU Withdrawal) Bill, 10 July 2020
- House of Commons Library, Immigration and Social Security Co-ordination (EU Withdrawal) Act, 10 November 2020
- House of Commons Library, The New Points-Based Immigration System, 11 May 2020
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