European Union (Withdrawal Agreement) Act 2020

Section 10: Retention of existing grounds for deportation

151. This section ensures that the deportation provisions within the Immigration Act 1971 must be exercised in a way that is compatible with the Agreements. This means that the domestic threshold for the deportation of third country nationals (that is, on the grounds that deportation is conducive to the public good or following the recommendation of a court) will not apply to EU citizens, EEA EFTA and Swiss nationals, and their family members who are protected by the Agreements or by the UK’s domestic implementation of the Agreements where the decision relates to conduct taking place before the end of the implementation period. The section also creates an exception to the automatic deportation regime within the UK Borders Act 2007 (under which an individual must be deported if they are convicted of an offence with a custodial sentence of 12 months or more, unless certain exceptions apply) for persons protected by the Agreements or by the UK’s domestic implementation of the Agreements where the offence that would have justified deportation consisted of or included conduct that took place before the end of the implementation period.
152. As set out above, Article 20 of the Withdrawal Agreement, Article 19 of the EEA EFTA Separation Agreement, and Articles 17 and 20 of the Swiss Citizens’ Rights Agreement provide that any conduct committed by persons protected by the Agreements prior to the end of the implementation period must be considered in accordance with Chapter VI of Directive 2004/38/EC, and Article 5 of Annex 1 of the FMOPA. This means that the EEA public policy, public security or public health test must be applied to conduct committed before the end of the implementation period for the purposes of taking deportation decisions, rather than the domestic provisions at section 3(5) and 3(6) of the Immigration Act 1971 (that is, that the deportation is conducive to the public good or following the recommendation of a court).
153. Under Chapter VI of Directive 2004/38/EC, as implemented by the EEA Regulations 2016, when assessing whether the public policy, public security or public health test has been met there are a number of criteria that must be considered, including, in the case of public policy or public security, whether the individual’s conduct poses a genuine, present and sufficiently serious threat to one of the fundamental interests of society in the UK. The threshold to be met increases depending on length of residence and age. Deportation needs to be justified on ‘serious grounds of public policy or public security’ where they have permanent residence; or on ‘imperative grounds of public security’ where they are an EEA national who has been resident for over ten years or are under the age of 18, in the latter case unless the decision is in their best interests. The threshold for deporting an EEA national is, therefore, higher than that applied to third country nationals under section 3(5) Immigration Act 1971 or following the recommendation of a court under section 3(6) Immigration Act 1971 who are not exercising any EEA rights. This section ensures that protected persons continue to benefit from the EU law thresholds where the conduct justifying the restriction took place before the end of the implementation period.
154. Subsections (1) to (4) of this section amend section 3 of the Immigration Act 1971. In particular:
     1. subsection (2) inserts a new subsection (5A) into section 3 of the Immigration Act 1971 providing that a relevant person’s deportation may not be considered conducive to the public good if that deportation would be in breach of the UK’s obligations under the Agreements; or in the case of persons who are not technically protected by the Agreements but who are relevant persons, the deportation would be in breach of the Agreements if the Agreements applied to them;
     2. subsection (3) inserts a new subsection (6A) into section 3 of the Immigration Act 1971 preventing a court from recommending deportation of a relevant person if the offence for which they were convicted consisted of or included conduct committed before the end of the implementation period;
     3. subsection (4) inserts new subsections (10) and (11) into section 3 of the Immigration Act 1971:
        1. the new subsection (10) defines a ‘relevant person’. A relevant person includes anyone who has been granted leave to enter or remain under residence scheme immigration rules, anyone in the UK having arrived with entry clearance granted by virtue of relevant entry clearance immigration rules, frontier workers, and those who may be granted leave to enter or remain for a course of planned healthcare treatment; and
        2. the new subsection (11) ensures that certain definitions contained within the European Union (Withdrawal Agreement) Act 2020 apply for the purposes of section 3 of the Immigration Act 1971, as amended by the Act.
155. Subsection (5) inserts multiple new subsections into section 33 of the UK Borders Act 2007. In particular, it inserts:
     1. a new subsection (6B), which creates a new exception to automatic deportation for relevant persons, where the offence for which the relevant person was convicted consisted of or included conduct that took place before the end of the implementation period;
     2. a new subsection (6C), which defines a ‘relevant person’ in the same way as subsection 4 of this section provides;
     3. a new subsection (6D), which ensures that certain definitions contained within the European Union (Withdrawal Agreement) Act 2020 apply for the purposes of section 33 of the UK Borders Act 2007.
156. Subsection (6) clarifies the meaning of references to having leave to enter or remain in the United Kingdom in section 3(10) of the Immigration Act 1971 and section 33(6C) of the UK Borders Act 2007, which are inserted by this section, making clear that they include leave granted by virtue of those rules before section 17 of this Act comes into force.