Schedule 1: Repeal of the main retained EU law relating to free movement etc.
Part 1: EU-derived domestic legislation
- Part 1 of Schedule 1 repeals EU-derived domestic legislation relating to free movement; it revokes the EEA Regulations, which implement the EU Free Movement Directive 2004/38/EC and omits section 7 of the Immigration Act 1988. This will have the effect of bringing EEA citizens and their family members under UK immigration control, which under the 1971 Act means they require leave to enter or remain in the UK.
- Paragraph 2, sub-paragraph (1), omits the power in section 109 of the Nationality, Immigration and Asylum Act 2002 to make regulations to provide for, or make provisions about, an appeal against an immigration decision relating to free movement of persons. This reflects the position that free movement will have ended. Paragraph 2 (3) makes further amendments to the 2002 Act to reflect the fact that section 109 has been omitted.
- Paragraph 3 amends the Provision of Services Regulations 2009 which implement the Services Directive (2006/123/EC), that aims to simplify the establishment and movement of services within the Single Market. This paragraph inserts a new provision into regulation 5 (general exclusions and savings) so that nothing in those Regulations affects the operation of provisions made by or under the Immigration Acts. This is necessary to ensure free movement of persons is fully repealed.
Part 2: Retained direct EU legislation
- Part 2 of Schedule 1 repeals and disapplies certain Articles of Regulation (EU) No. 492/2011 on freedom of movement for workers within the Union (the "Workers Regulation") which is saved in domestic law by the EUWA 2018
at the end of the transition period.
- This regulation provides for the freedom of movement of workers in various ways, including through rights to residency, equal treatment and access to education.
- Paragraph 4 (1) revokes Article 1 of the Workers Regulation, which is specific to immigration and provides a right to be in the territory of another member state to pursue employment. Paragraph 4 (2) ensures Articles 2 to 10 of the Workers Regulation, which are not specific to immigration, do not have ongoing effects for UK immigration law but continue to have effect for other purposes. For example, this will prevent an individual claiming they have a right of residence in the UK under Article 10 of the Workers Regulation on the basis their child is in education here; this does not prevent the resident child of an EEA citizen who is legally resident and employed in the UK from being able to rely on Article 10 to access UK education on the same conditions as a British citizen.
Part 3: EU-derived rights etc
- The EUWA 20181 at the end of the transition period, saves as part of UK law directly effective rights that currently flow through section 2(1) of the European Communities Act 1972 (ECA), where those rights have been recognised by a domestic or EU court before then. This includes rights set out in the Treaty on the European Union, the Treaty on the Functioning of the European Union (TFEU), the agreement with the European Economic Area (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. It also saves rights derived from Directives that have been recognised by the courts prior to the end of the transition period. A number of these rights could otherwise be relied upon in an immigration context.
- Part 3 of Schedule 1 disapplies other retained EU law relating to free movement of persons. It deals with directly effective rights flowing from the Free Movement of Persons Agreement between the EU and Switzerland which may otherwise form part of UK law by virtue of the EUWA 2018. It ensures the rights derived from the specific provisions listed in paragraph 5 (1)(b) cease to be recognised and available in domestic law. As a result, Swiss citizens and their family members, like EEA citizens and their family members, will be subject to the immigration requirements set out in the 1971 Act.
- Paragraph 6 ensures any directly effective rights that will have been saved by the EUWA 2018 and would, in the absence of this paragraph, be retained, cease to apply insofar as they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, specified domestic immigration legislation or functions. For example, the residence rights that are derived from Articles 20 and 21 2 of the TFEU (rights of citizenship and free movement) will be retained EU law and , unless they are disapplied would provide a right to reside in the UK for certain groups, for example "Chen" carers who are primary carers of an EU citizen child who is in the UK and is self-sufficient. However, the rights derived from Articles 20 and 21 would continue to apply in non-immigration contexts unless disapplied.
- The following is a non-exhaustive list of the directly effective rights relevant to this Paragraph.
Title of Treaty Relevant article Subject area Treaty on European Union Article 9 Citizenship and equality Treaty on the Functioning of the European Union Article 18, paragraph 1 Non-discrimination Article 20(1) and (2)(a) Citizenship Article 21(1) Free movement Article 45(1), (2) and (3) Free movement of workers Article 49 Freedom of establishment Article 56 Free movement of services EEA Agreement Article 4 Non-discrimination Article 28 (1), (2) and (3) Freedom of movement for workers Article 31 (1) Freedom of establishment Article 36 (1) Free movement of services Treaty establishing the European Atomic Energy Community Article 96, paragraph 1 Abolish restrictions based on nationality regarding employment in the field of nuclear energy Article 97 Abolish restrictions based on nationality regarding constructions of nuclear installations Additional Protocol to the Turkey ECAA Article 41(1) Standstill clause Decision 1/80 of the Association Council established under the Turkey Association Agreement Articles 6(1) (2) Right to work Article 7 Rights of family members Article 13 Standstill clause Article 14 Limits on grounds of public policy, public security or public health Swiss Agreement on Free Movement Article 2 Non-discrimination Article 5 Persons providing services Article 11 Processing of appeals Article 13 Standstill Article 23 Acquired rights Article 1 of Annex 1 [Immigration only] Entry and Exit Article 2 of Annex 1 [Immigration only] Residence and economic activity Article 3 of Annex 1 [Immigration only] Members of the family Articles 4 and 24 of Annex 1 [Immigration only] Right to stay and Rules regarding residence Article 5 of Annex 1 [Immigration only] Public order Articles 6 and 12 of Annex 1 [Immigration only] Rules regarding residence Articles 7 and 8 of Annex 1 [Immigration only] Employed frontier workers Articles 17 and 20 of Annex 1 Persons providing services Article 23 of Annex 1 [Immigration only] Persons receiving services
1 http://www.legislation.gov.uk/ukpga/2018/16/contents/enacted
2 See the rights deriving from the following lines of CJEU case law: Ruis Zambrano C-34/09, Surinder Singh C-370/90, Chen C-200/02, Ibrahim C-130/08 and Texeira C-480/08 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/799562/Derivative-rights-of-residence-v5.0ext.pdf
