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Immigration And Social Security Co-Ordination (Eu Withdrawal) Act 2020

Contents

Commentary on provisions of Act

Part 1: Measures relating to ending free movement

Section 1: Repeal of the main retained EU law relating to free movement etc

  1. This section introduces Schedule 1, which repeals legislation and related rights relating to free movement and other EU law relating to immigration, which is retained in UK law by the EUWA 2018. The details are set out under the Schedule 1 part of these Notes.

Section 2: Irish citizens: entitlement to enter or remain without leave

  1. The Act protects the status of Irish citizens in the UK when free movement rights end, a status which existed prior to the UK’s membership of the EU. Currently, due to the interplay between domestic legislation and EU free movement rights, a distinction exists between those Irish citizens who enter the UK from Ireland or the Crown Dependencies (the Common Travel Area (CTA)) and those who enter from a point of departure outside the CTA. Under the Immigration Act 1971, Irish citizens entering the UK from another part of the CTA do not require leave to enter or remain in the UK but otherwise are subject to immigration control, for example if travelling to the UK from outside the CTA. It is the EEA Regulations and section 7 of the Immigration Act 1988, which provide that Irish citizens arriving in the UK from outside the CTA do not require leave to enter or remain in the UK, due to their enforceable EU rights. As legislation relating to free movement and other EU law relating to immigration is being repealed, the Act protects the rights of Irish citizens in the UK irrespective of where they have travelled from, providing the same immigration status to all Irish citizens that are currently only provided for in the Immigration Act 1971 for those travelling from within the CTA.
  2. Section 2 introduces new section 3ZA to the Immigration Act 1971 to confirm the status of Irish citizens. Irish citizens will not require leave to enter or remain in the UK and will therefore not be subject to immigration controls unless one of the exemptions set out in subsections (2), (3) and (4) applies. These exemptions are that the Irish citizen is subject to a deportation order, exclusion decision or an international travel ban. This reflects current and long-standing practice. Irish citizens have been liable to deportation since the Commonwealth Immigrants Act 1962 and these powers, along with the powers to exclude or impose a travel ban on Irish citizens, exist in current legislation. The Government’s approach to the deportation of Irish citizens since 2007 is to only deport Irish citizens where recommended by a court in sentencing or in exceptional circumstances where that deportation is in the public interest.
  3. The Act does not affect the CTA arrangements set out in section 1(3) of the Immigration Act 1971.
  4. Subsection (3) of section 2 amends section 9 of the 1971 Act, which relates to further provisions about the CTA, to ensure a consistent approach to how Irish citizens are treated for immigration purposes in line with section 3ZA.
  5. Subsection (4) amends Schedule 4 of the 1971 Act, which deals with the integration of UK law and the immigration law of the Islands (Jersey, Guernsey and Isle of Man), to align the approach to Irish citizens as set out in section 3ZA.

Section 3: Protection claimants: legal routes from the EU and family reunion

  1. Section 3 requires the Secretary of State to carry out a review of legal routes for certain protection claimants to enter the UK– including for family reunion of relevant unaccompanied children who are seeking international protection. That review must include a public consultation on legal routes for family reunion of such children. Section 3 also requires the Secretary of State to lay before Parliament, within three months of the date of this Act, a statement providing further detail of the review and consultation. Following the review, the Secretary of State is required to prepare a report on the outcome of the review, publish that report and lay that report in Parliament.

Section 4: Meaning of "the Immigration Acts" etc

  1. Subsection (1) amends the UK Borders Act 2007 to ensure that Part 1 (and associated provisions in Part 3) of this Act, when enacted, will be covered by any reference to "the Immigration Acts".
  2. Subsection (2) makes clear that Part 1 of the Act is not retained EU law. This means that it is not part of the body of law that is saved in UK law by the EUWA 2018.

Section 5: Consequential etc provision

  1. Section 5 allows the Secretary of State to make such regulations as he or she considers appropriate as a consequence of, or in connection with, Part 1 of the Act. Subsection (2) provides that such regulations may modify primary or secondary legislation, as well as direct EU legislation which is retained by the EUWA 2018 at the end of the transition period. Subsection (3) provides such regulations may make supplementary, incidental, transitional, transitory and saving provision and make different provision for different purposes.
  2. Subsection (4) states regulations made under this section may include provision in respect of persons who were not entitled to be in the UK under the EEA Regulations or under enforceable rights. For example, the provision could be used to make savings in relation to EEA citizens who are in the UK by the end of the transition period and who are treated for most purposes as though they were exercising Treaty rights, although they are not actually doing so. An example of such a person would be the EEA citizen spouse of a British citizen who does not have comprehensive sickness insurance and who is not otherwise exercising Treaty rights, such as the right to work, and who is therefore not technically exercising EU free movement rights. They can apply for leave under the EUSS and this provision ensures they can be treated under these regulations in the same way as other groups covered by the EUSS.
  3. Subsection (5) provides that regulations made under this section can amend legislation relating to fees and charges which are connected with the wider repeal of free movement law, for example removing reference to fees for EU residence documents.
  4. Subsections (6) to (9) set out the Parliamentary scrutiny for regulations made under section 5. Subsections (6) and (7) state any regulations made under section 5 which amend existing primary legislation will be subject to the affirmative procedure, which means they must be approved by both Houses of Parliament. In the case of the first set of regulations made under section 5, subsection (6) provides they will be subject to the made-affirmative procedure, which means they can be made and come into effect immediately, but must then be approved by both Houses within 40 days (excluding periods of dissolution and prorogation and adjournments of more than 4 days) to remain in force. Subsection (8) states any other regulations will be subject to the negative procedure. Subsection (9) specifies circumstances which will not count towards the scrutiny period set out in subsection (6) for the first regulations made under section 5.
  5. Subsection (10) states that if the first set of regulations made under section 5 cease to apply because they are not approved by both Houses of Parliament within 40 days, where this is required, this will not affect anything which has already been done under those regulations or prevent further regulations from being made.

Part 2: Social security co-ordination

Section 6: Power to modify retained direct EU legislation relating to social security co-ordination

  1. Section 6 provides a power for an appropriate authority (defined, in subsection (7) as the Secretary of State or the Treasury, a Northern Ireland department, or a Minister of the Crown acting jointly with a Northern Ireland department) to modify , by regulations, the retained direct EU legislation listed in subsection (2) (commonly known as the EU Social Security Co-ordination Regulations). These directly applicable EU regulations provide for social security co-ordination across the EEA (including Switzerland).
  2. This section allows the Government (and/or, where appropriate, a Northern Ireland department) to make regulations to implement new policies regarding co-ordination of social security. This section is intended to be used to implement new policies subject to the outcome of future negotiations with the EU.
  3. Subsection (3) sets out that such regulations can make different provision for different categories of person and for different purposes, as well as making supplementary, incidental, consequential, transitional, transitory or saving provision.
  4. Subsection (4) states that consequential provision includes modification to provisions made by or under primary legislation or to retained direct EU legislation not listed in subsection (2).
  5. Subsection (5) ensures any directly effective rights that will have been saved by section 4 of the EUWA 2018 at the end of the transition period cease to apply insofar as they are inconsistent with, or are otherwise capable of affecting, the interpretation or application of provision made by regulations under section 6.
  6. Subsection (6) provides for the interpretation of terms included in subsection (5).
  7. Subsection (7) provides for the definition of "appropriate authority".
  8. Subsection (8) indicates further provision about the power of devolved authorities to make regulations under this section is set out in Schedule 2.
  9. Subsection (9) indicates further provision about the making of regulations under this section is set out in Schedule 3.

Part 3: General

Section 7: Interpretation

  1. Section 7 provides for the interpretation of terms included in the Act.

Section 8: Extent

  1. The provisions of the Act extend to the whole of the United Kingdom. The immigration matters to which the provisions of the Act relate are not within the legislative competence of the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly.
  2. Subsections (2) to (4) enable the provisions of, and amendments made by, Part 1 and sections 7 and 10 (to the extent relating to Part 1) of the Act to be extended to the Channel Islands, the Isle of Man and the British Overseas Territories by Order in Council.
  3. Subsection (5) provides provisions of regulations made under section 5 of the Act which amend legislation that already extends directly to any of those territories may have the same extent as the legislation being amended.

Section 9: Commencement

  1. Subsection (1) sets out that, subject to subsection (2), Part 1 (i.e. sections 1, 2 and 5 and Schedule 1) will come into force on a day appointed by the Secretary of State by regulations.
  2. Subsection (2) sets out that section 3(4) and 3(2) and 3(6) so far as relating to subsection (4) will come into force at the end of the period of two months beginning with the day the Act is passed.
  3. Subsection (3) provides regulations commencing provisions of the Act under subsection (1) may make different provision for different purposes.
  4. Subsection (4) sets out that Part 2 (i.e. section 6 and Schedules 2 and 3) come into force on a day appointed by the Secretary of State or the Treasury by regulations.
  5. Subsection (5) provides regulations commencing provisions of the Act under subsection (4) may make different provision for different purposes or areas.
  6. Subsection (6) sets out this section and sections 7, 8 and 10 come into force on the day on which this Act is passed.
  7. Subsection (7) provides commencement regulations under subsections (1) and (4) includes a power to appoint a time on a day, if considered necessary by the Secretary of State or the Treasury.

Section 10: Short Title

  1. This section provides that the short title of the Act when enacted will be the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.

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