Implementing Brexit: An End to Free Movement
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Amongst all of the Brexit uncertainty over the last two and a half years, Theresa May, the architect of UK immigration policy since she became Home Secretary in 2010 and subsequently Prime Minister in 2016, has been clear about one thing: the free movement of people will come to an end when the UK leaves the EU.
With this aim in mind, the government introduced the Immigration and Social Security Co-ordination (EU Withdrawal) Bill in the House of Commons in December.
The aim of the Bill is to end the EU’s rules on free movement of persons into the UK and make EEA and Swiss nationals and their family members subject to UK immigration controls.
The Bill also protects the special status of Irish citizens in the UK when free movement ends by ensuring that Irish citizens will not require permission to enter or remain in the UK after Brexit, unless they are subject to a deportation order, exclusion or an international travel ban.
In order to ensure that UK legislation is coherent once the UK has exited the EU, the Bill gives Ministers powers to modify primary or secondary legislation as appropriate in consequence of the Bill.
Finally, the Bill makes changes to social security arrangements by allowing the government and devolved authorities to implement new benefit rules for EEA and Swiss nationals.
Ending Free Movement
There are currently two immigration systems in the UK: one that governs the position of EEA nationals exercising “treaty rights” and one that governs the arrangements for nationals from outside the EEA. The key difference between the two immigration systems is that EEA nationals and their family members enjoy a right to enter and reside in the UK whereas non-EEA nationals require permission to enter and remain under the Immigration Act 1971.
In June 2018 the EU (Withdrawal) Act 2018 was enacted. This Act repeals the European Communities Act 1972 and converts current EU law into UK law (“retained EU law”) and preserves existing UK law that implements EU law, to ensure continuity of law until Parliament changes it over time.
The Bill will repeal EU retained law relating to free movement of persons (including the implementing EEA regulations) and make EEA and Swiss nationals and their family members subject to UK immigration controls. This means they will require permission to enter and remain in the UK under the Immigration Act 1971.
The Bill will also remove or amend other EU-based law which is not compatible with the UK’s future UK immigration regime, subject to ongoing negotiations with the EU about the future relationship.
The legislation will create the framework for the future UK immigration system. It does not set out the details of the future system because those details will have to be set out in the Immigration Rules as they are now for non-EEA nationals.
Protecting Irish Citizens
The Bill includes a provision to ensure that when free movement ends the long-standing status of Irish citizens in the UK to enter and remain freely will be preserved. This means that, unlike all other EEA nationals, Irish citizens will continue to be free to enter and remain in the UK without restriction unless they are subject to a deportation order, exclusion order or international travel ban.
The Bill preserves the Common Travel Area (“CTA”) between Ireland and the UK and the Crown dependencies. Under reciprocal arrangements since Ireland’s independence, British and Irish citizens have enjoyed associated rights in each other’s state. These include the right to work and study, access to healthcare and social and welfare benefits and voting rights. This status also supports the birth right of the people of Northern Ireland to identify themselves and be accepted as Irish, British or both and have the right to hold both British and Irish citizenship.
The Bill confers on Ministers the power to make regulations to modify primary or secondary legislation in consequence of or connected to the measures in the Bill that repeal free movement law.
There are references to free movement and related matters across the statute book in both primary and secondary legislation, which will no longer be appropriate once the UK has left the EU. It is therefore necessary for the Bill to contain a power to make consequential amendments by secondary legislation.
The Bill will give a power to repeal, revoke, amend or otherwise modify and domestic primary or secondary legislation as appropriate, in consequence of, or in connection with, the Bill. The amendments will be delivered by regulations, which are a statutory instrument, which will be subject to parliamentary scrutiny.
Social Security Co-ordination
The government is bringing forward social security powers within the Bill to make suitable legislative provision for a range of post EU exit day scenarios that may arise. Policy changes may be needed to the retained social security co-ordination rules. For example the government may wish to consider:
- what access EU nationals have in future to certain UK benefits and pensions;
- the extent to which UK nationals can export certain benefits and pensions; and
- the administration and rules which govern entitlement and obligations when people live and work in more than one country.
The government aims to secure Royal Assent to the Bill before the UK is due to leave the EU on 29th March 2019.