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Analysis of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Written by
Asad Ali Khan
Date of Publication:
20 February 2019

The crushing defeat suffered by Theresa May because of the rejection her Brexit Deal has left the UK in utter chaos. Uncertainty looms large in all spheres of UK life but the government is determined to carry through with Brexit at all costs. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is an important piece of upcoming legislation because it makes provision to end free movement rights under retained EU law and to repeal other retained EU law relating to immigration. As introduced, the Bill is divided into three parts and apart from seeking to end free movement it seeks to empower the government so as to modify, using regulations subject to the affirmative procedure, retained EU legislation on social security co-ordination. According to the government a power of this nature is required to enable the delivery of a range of options from Brexit day, particularly to put into action its preferred approach to social security co-ordination in a no deal scenario. The Bill consists of seven clauses and operates in linkage with the new White Paper entitled The UK's future skills-based immigration system. Clause 1 and schedule 1 contain provisions to terminate the law of free movement in the UK by repealing section 7 of the Immigration Act 1988 with the result that EU nationals and their non-EU family members will require permission to enter and remain here under the Immigration Act 1971.

This is said to enable the delivery of the future immigration system which is not specified in the Bill and will be implemented through future Immigration Rules relating to workers, students and family members. As things presently stand, free movement enables those from the European Economic Area (the "EEA", i.e. the EU and Iceland, Liechtenstein and Norway) and Swiss nationals and their family members to (i) enter the UK and reside here for an initial period of three months, (ii) reside in the UK as a "qualified person", such as a jobseeker, worker, self-employed person, self-sufficient person, or student, for as long as they have that status, and (iii) acquire permanent residence after completing five years lawful residence in the UK under the Citizens' Directive (2004/38/EC). But all this will be history once free movement law is repealed and new Immigration Rules are erected to generally keep Europeans out of the UK unless they have obtained employment in advance and are remunerated £30,000 per annum. As seen earlier, all this spells out the end of two immigration systems in the UK and a single system will be operated in the future.

On the present footing, the Citizens' Directive (2004/38/EC) or the "free movement directive" is implemented into domestic UK law by the Immigration (European Economic Area) Regulations 2016. The terms of the EU (Withdrawal) Act 2018 repeal the European Communities Act 1972 and convert current EU law into UK law ("retained EU law") and preserve existing UK law that implements EU law, to ensure legal continuity until Parliament changes the law. In other words, the EU's rules on free movement will survive in the UK after Brexit unless further legislation makes provision to the contrary. To that end, the Bill repeals retained EU law as regards free movement and the implementing regulations. Part 1 of schedule 1 revokes the EEA Regulations and omits section 7 of the Immigration Act 1988. The consequence will be to make EEA and Swiss nationals and their family members subject to UK immigration controls making their movements fall within the framework created by the Immigration Act 1971.

To fully signal the final end of free movement the Bill also repeals section 109 of the Nationality, Immigration and Asylum Act 2002 which provides a right of appeal for EEA and Swiss nationals and their family members against an immigration decision relating to free movement. As explained earlier, the deadline for the EU Settlement Scheme has been set as June 2021. Therefore EU citizens and their family members who do not apply to stay in the UK by the "grace period" ending on 30 June 2021 will not be in a position to demonstrate their rights to access work, benefits and services. The Bill also targets other areas of EU law that do not directly relate to free movement but impact immigration. Therefore, subject to negotiations about the UK's future relationship with the EU, the Bill will also remove or amend other EU-based law which is incompatible with the future UK immigration system.

By inserting a new section 3ZA (Irish citizens) into section 3 of the Immigration Act 1971, clause 2 amends the Immigration Act 1971 to confirm that the rights of Irish citizens prevail. Therefore, irrespective of the end of free movement, Irish citizens will not require any leave to enter or remain in the UK. Significantly, this development seen as quite a positive step by the Immigration Law Practitioners' Association because it enables "frontier workers" – i.e. Irish citizens working in Northern Ireland who cross the border frequently for work – to continue to carry on their activities without requiring leave. Clause 3 amends section 61 of the UK Borders Act 2007 to ensure that any references to "the Immigration Acts" across legislation include the Bill.

Clause 4 is a Henry VIII clause setting out the consequential provisions of the Bill. It very controversially allows the government to amend primary and secondary legislation by statutory instrument. ILPA has expressed great concern about the unrestricted manner in which the Home Office will be able to radically make a lot of changes to the future immigration system by repealing or changing primary legislation. Therefore, ILPA propose that clause 4 should expire on 31 December 2019 so that the opportunity for misuse can be limited. Overall, such sweeping provisions produce limitless scope for the government to change the law at will and the recent doubling of the Immigration Health Surcharge from £200 to £400 per year under the Immigration (Health Charge) (Amendment) Order 2018 very clearly exposes the weak parliamentary scrutiny under affirmative procedure for a statutory instrument to pass both Houses of Parliament. Indeed, the whole idea of an Immigration Health Surcharge is pretty dubious because migrants who are being forced to pay these charges are already paying large sums of money in tax and national insurance contributions.

Social security co-ordination is addressed in Part 2 of the Bill and clause 5 and schedules 2 and 3 will enable the government (and/or where appropriate, a devolved authority) to modify by regulations retained EU legislation on social security co-ordination. Clause 5 is also a Henry VIII power. The government's rationale behind this power is that it is seen as necessary to enable the delivery of a range of options from Brexit day, particularly to implement its preferred approach to social security co-ordination in a no deal/hard Brexit situation. Yet again, any regulations in that regard would be subject to the affirmative procedure. But again according to ILPA:

any modification of the passporting of social security contributions, owing to the drastic effects that such modifications would have, should only be able to take place through primary legislation.

ILPA finds that the power sought by "clause 5(1) would threaten to remove full pension rights from possibly hundreds of thousands of EU citizens and British citizens alike who have contributed to both the UK and the EU by working in the UK and other EU Member States." The Bill fails to provide a full and clear plan to co-ordinate "social security provision for new arrivals on and after the end of the transition period on 31 December 2020 (or after 29 March 2019 if there is no Withdrawal Agreement)." Therefore, an amendment is proposed to completely remove clause 5 from the Bill.

Amid all the ongoing chaos, the government still insists that in the event of a no deal Brexit the rights of EU citizens in the UK will be protected because "EU citizens are our friends, our neighbours, our colleagues, and we want them to stay". In a huge victory for campaigners for EU citizens' rights, the government has finally abandoned its plans to charge £65 for the EU Settlement scheme but it is far from friendly or neighbourly to require all the 3.5 million+ EU citizens present in the UK to comply with the onerous terms of the scheme to preserve residence rights they are already in possession of in any event. The strict nature of the scheme warrants that even those who have been living in the UK for more than 50 years must adhere to it or face being removed from the UK.

For example, Mrs Elly Wright came to the UK in 1967 from the Netherlands and worked for the NHS and local authorities for long years and paid her share of tax. Her late husband was British. However, she kept her Dutch passport because the acquisition of British citizenship would disentitle her from retaining her Dutch nationality. Apart from the indignity of having to make the application, Mrs Wright complains that the app for the EU Settlement Scheme is not compatible with apple devices and she is also very worried that no letter or residence permit is provided to successful applicants (and because the process is purely digital in nature). Mrs Wright thinks that many old people are terrified of the EU Settlement Scheme because they do not have the necessary technology related skills to manage the online process.

There is no requirement to actually hold a document certifying permanent residence to be in possession of the rights conferred by the Citizens' Directive. For example, the CJEU held in Wolzenburg (C-123/08, EU:C:2009:616) that a person can qualify for and possess permanent residence even if he did not hold the formal documentation mentioned in Chapter III of the Directive. The document does no more than certify that the individual has acquired permanent residence.

The document itself does not produce the effect of conferring any status on the individual and in Wolzenburg the CJEU confirmed at paras 50-51 that article 19 of the Directive does not require EU citizens who have acquired a right of permanent residence to hold a residence permit of indefinite duration, that there is no obligation to apply for permanent residence and the "document has only declaratory and probative force but does not give rise to any right." The same point was made at para 120 by Advocate General Kokott in Teixeira (C-480/08, EU:C:2009:642).

The public test phase of the scheme has opened today and will be fully functional by 30 March 2019. Campaigners such as Professor Tanja Bueltmann complain that all this is just another Windrush in the making. Equally, some applicants such as Jakub Krupa are complaining that the IT systems deployed do not recognise their longstanding residence in the UK and demand additional documents for the processing of applications. Significantly, an important report by British Future, Getting it right from the start: Securing the future of EU citizens in the UK, makes the important point that even a five per cent rejection rate will translate into 175,000 people living in the without lawful status. British Future warns that the ongoing experiments with the EU Settlement Scheme risk triggering a "new Windrush scandal".

The think-tank warned that EU nationals might be denied healthcare and be stopped from working because of confusion created by the Home Office. Most at risk are children in care and stay-at-home parents who could find it hard to prove their residence rights. Greater investment in the scheme is being urged and British Future called for greater transparency in procedures and proposed that naturalisation applications for British citizenship from EU nationals should cost only £300 rather than the £1,330 which is presently charged. Since the government has axed the £65 fee it will be interesting to see whether it will succumb to pressure from campaigners and reduce the fee for British citizenship from EU nationals.

In Dias (C-325/09, EU:C:2011:498), the CJEU held at para 49 that the declaratory character of residence permits means that those permits merely certify that a right already exists. It went on to hold at para 57 that periods of residence after 30 April 2006 take "effect from the actual moment at which they are completed." The Directive creates rights rather than the documents issued by member states and perhaps just like the £65 fee the whole EU Settlement Scheme should be scrapped altogether. Waiving the £65 fee does not erase the overall hostility of the immigration environment.

In addition to the above amendments, schedule 1 of the Bill seeks to bring about numerous other changes and Part 2 of schedule 1 addresses retained direct EU legislation. In particular, paragraph 4 addresses Regulation (EU) No. 492/2011 relating to freedom of movement for workers within the Union ("the Workers Regulation") which provides for the free movement of workers in various ways, including through rights to residency, equal treatment and access to education. In that regard, paragraph 4(1) revokes article 1 of the Workers Regulation, a provision specific to immigration providing a right to be in the territory of another member state to pursue employment.

Moreover, paragraph 4(2) ensures that other non-immigration specific aspects of the Workers Regulation do not have ongoing effects for UK immigration law but continue to have effect for other purposes. This change will stop people from claiming that they still have a right of residence in the UK within the meaning of article 10 of the Workers Regulation on the basis that their child is in education here. However, the government's position is that this change does not stop the resident child of an EU national with legal residence and employment in the UK from being able invoke article 10 to access UK education on the same conditions as UK nationals.

Furthermore, paragraph 5 of schedule 1 revokes (i) Council Regulation (EC) No 1683/95 laying down a uniform format for visas, (ii) Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by member states to persons holding travel documents unrecognised by the member state drawing up the form, and (iii) Council Regulation (EC) No 377/2004 on the creation of an immigration liaison officers (ILO) network. The reason behind these changes is that after Brexit the UK will no longer have to meet the same requirements for issuing these documents as the EU and so these measures are unnecessary and are being revoked. Council Regulation (EC) No 377/2004 enabled the member states to send ILOs to non-EU countries for the purpose of establishing and maintaining contacts with the relevant authorities of that state, with a view to halting illegal immigration. After Brexit, the UK will no longer participate in the ILO network operated under the regulation which is therefore being revoked.

Paragraph 6 of schedule 1 revokes Commission Decision of 8 June 1988 setting up a prior communication and consultation procedure on migration policies in relation to non-member countries (88/384/EEC) and it also revokes Council Decision of 26 May 1997 on the exchange of information concerning assistance for the voluntary repatriation of non-EEA nationals (97/340/JHA). This type of information will no longer be required of the UK after Brexit. Other revocations under paragraph 6 include:

§ Council Decision of 23 February 2004 on the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of non-EEA nationals (2004/191/EC). After Brexit, the UK will no longer be able to request financial re-payment from EU member states, for persons who are being removed and so this measure is being revoked.

§ Council Decision of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member states of non-EEA nationals who are subjects of individual removal orders (2004/573/EC). This measure aims to set out the procedures for coordinating joint removal operations by air of non-EU nationals. After Brexit, the UK will no longer be able to operate this Decision unilaterally and so this measure is being revoked.

§ Council Decision of 16 March 2005 establishing a secure web-based Information and Coordination Network for Member States' Migration Management Services (2005/267/EC) involves a secure web-based Information and Coordination Network for the exchange of information on irregular migration, illegal entry and immigration and the return of illegal residents. After Brexit, the UK will no longer have access to this EU web-based network.

§ Commission Decision of 29 September 2005 on the format for the report on the activities of immigration liaison officer networks and on the situation in the host country in matters relating to illegal immigration (2005/687/EC) which annexes a template for ILOs to use when reporting on the activities on illegal migration in host countries outside the EU. After Brexit, the UK will not participate in the ILO network and will therefore not have to provide reports on illegal migration in this format.

§ Council Decision of 14 May 2008 establishing a European Migration Network (EMN) (2008/381/EC). This measure establishes the EMN network, which aims to provide up-to-date, objective and comparable information on migration and asylum, with a view to supporting policymaking in the EU in these areas. After Brexit, this measure will no longer operate in domestic law because the UK will no longer participate in the EMN network as a member state.

Paragraph 7 of schedule 1 relates to the Schengen area, territory where the free movement of persons is guaranteed. Notably, signatory states to the agreement have abolished all internal borders in favour of a single external border. The UK only participates in some aspects of the Schengen Agreement, for example as penalising of carriers for conveying inadequately documented passengers and paragraph 7(1) repeals the relevant Council Decisions – i.e. (2000/365/EC) and (2004/926/EC) – insofar as they relate to article 26 of the Schengen Convention to ensure that the UK can freely to adopt its own approach to penalising carriers for transporting inadequately documented passengers.

EU derived rights are addressed in Part 3 of schedule 1, the EU (Withdrawal) Act 2018 preserves as part of UK law directly effective rights now flowing through section 2(1) of the European Communities Act 1972. This includes rights set out in the Treaty on the European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), the agreement with the EEA and in other international agreements, such as the Swiss Agreement on the Free Movement of Persons and the EU's Association Agreement with Turkey. The EU (Withdrawal) Act 2018 also saves rights derived from Directives that have been recognised by the courts prior to Brexit. Many of these rights can be invoked in an immigration context.

Part 3 switches off other retained EU law relating to free movement of persons by targeting directly effective rights flowing from the Free Movement Agreement between the EU and Switzerland which will have been saved as part of domestic law by the EU (Withdrawal) Act 2018. It ensures that the rights derived from the relevant provisions cease to be recognised and available in domestic law. Thus, Swiss nationals and their family members, like EEA nationals and their family members, will be subject to the immigration requirements set out in the 1971 Act and the associated Immigration Rules. Fortunately, these highly intricate and incomprehensible rules are being simplified.

Paragraph 9 ensures that in its absence any directly effective rights that will have been saved by the EU (Withdrawal) Act 2018 and would be retained, cease to apply insofar as they conflict with, or are otherwise affect the interpretation, application or operation of, immigration legislation or functions. The right that is derived from article 56 of the TFEU (free movement of services) will be retained EU law. While it does not specifically concern immigration, unless it is revoked it may be argued that it provides a right to enter the UK to provide services. In such circumstances conflict with any immigration legislation, the right arising out of article 56 would cease to be recognised for that purpose. On the other hand, unless revoked the right derived from article 56 would continue to apply in non-immigration contexts. Numerous directly effective EU law rights are relevant to paragraph 9 and some of these are:

§ TEU: article 9 on citizenship and equality.

§ TFEU, article 18: paragraph 1 on non-discrimination, article 20(1) and (2)(a) on citizenship, article 21(1) on free movement, article 45(1), (2) and (3) on free movement of workers, article 49 on freedom of establishment and also article 56 on free movement of services.

§ European Economic Area Agreement: article 4 on non-discrimination, article 28 (1), (2) and (3) on free movement for workers, article 31 (1) on freedom of establishment and article 36 (1) on free movement of services.

§ Treaty establishing the European Atomic Energy Community: article 96, paragraph 1 on abolishing restrictions based on nationality regarding employment in the field of nuclear energy and article 97, abolishing restrictions based on nationality regarding constructions of nuclear installations.

§ Additional Protocol to the Turkey ECAA: article 41(1) which is a standstill clause.

§ Decision 1/80 of the Association Council established under the Turkey Association Agreement: articles 6(1) (2) on the right to work, article 7 on rights of family members, article 13 which is a standstill clause and article 14 on limits on grounds of public policy, public security or public health.

§ Swiss Agreement on Free Movement: article 2 on non-discrimination, article 5 on persons providing services, article 11 on processing of appeals, article 13 which is a standstill clause, article 23 on acquired rights, article 1 of annex 1 on entry and exit, article 2 of annex 1 on residence and economic activity, article 3 of annex 1 on members of the family, articles 4 and 24 of annex 1 on right to stay and rules regarding residence, article 5 of annex 1 on public order, articles 6 and 12 of annex 1 on rules regarding residence, articles 7 and 8 of annex 1 on employed frontier workers articles 17 and 20 of annex 1 on persons providing services and article 23 of annex 1 of persons receiving services. (Articles 1 to 8 of annex 1 relate to immigration only changes.)

Clause 6 (interpretation) and clause 7 (extent, commencement and short title) will come into force on the day on which the Bill receives Royal Assent. The other provisions will commence on a day appointed by regulations. The commencing regulations may make transitional, transitory or saving provision in connection with commencing provisions of the Bill. With only two months to go, Theresa May is determined to conduct a hard Brexit. She refuses to extend article 50 because in her view this would only delay the inevitable and has also said that a second referendum would threaten the UK's "social cohesion".

The economic fall out of Brexit is massive and government documents from the Border Force demonstrate that in a no deal situation cross-channel freight trade may fall by 87 per cent for six months and operate at only 13 per cent of its current capacity. A no deal Brexit will also result in the degradation of the UK's border security. Significantly, Border Force officials are extremely concerned that without access to EU systems and data the UK will suffer compromises in its border security; exposing it to crime and diluting the rights of British nationals to enter EU countries. Of course under the CJEU's ruling in Wightman and Others (C-621/18, EU:C:2018:999), the UK is completely free to unilaterally revoke the article 50 notice at any time and end the insanity by cancelling Brexit before time finally runs out on 29 March 2019.