Author: Hannah Wilkins
The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 is due to have its second reading in the House of Commons on Monday 28th.
If passed, the Bill would repeal free movement and other related rights derived from the EU, which have become part of UK legislation. This means it would bring EU citizens living in the UK under domestic immigration law.
It would also confirm the rights of Irish citizens in the UK and allow the Government to modify retained EU legislation on social security coordination. But how will the proposed changes be implemented, and what they mean for EU migrants living in the UK?
Why a new Immigration Bill?
The UK currently has two distinct immigration systems: the EU law of free movement regulates immigration of EU citizens to the UK. Non-EEA (European Economic Area) nationals are regulated by UK domestic immigration law.
In the Queen’s Speech to Parliament in 2017 Her Majesty outlined the introduction of an Immigration Bill to facilitate the introduction of new national immigration policies. These policies would end free movement of EU nationals in the UK and make the migration of EU nationals and their families subject to UK law after Brexit.
Following this, the Prime Minister confirmed her intention to end freedom of movement in her Mansion House speech on 2 March 2018. Her speech maintained that free movement will end when the UK leaves the EU, regardless of whether a Brexit deal is agreed or not. However, as the European Union (Withdrawal) Act 2018 preserves EU law, to do so Parliament will need to legislate.
What’s in the Bill?
The Bill consists of seven clauses and three schedules and would apply to the entire UK. EU citizens would be brought under domestic immigration law.
While the Bill would repeal free movement in UK law, it would not set up the future UK immigration system. The future system will be implemented in the Immigration Rules, which are quasi-legislative rules made by the Secretary of State for the Home Office under the power of section 3 of the Immigration Act 1971. The White Paper (page 10), states that future immigration arrangements for EU citizens and their families will be set out in the rules, as is currently the case for non-EU nationals.
While the White Paper proposes the new visa routes will be opened in autumn 2020, the Department for Exiting the European Union (DExEU) stated in its no-deal policy paper that under a no-deal scenario, the new visa routes would not be implemented until January 2021.
What does the White Paper say?
On 19 December 2018 the Home Secretary set out the Government’s detailed proposals for “The UK’s future skills-based immigration system.” There will be a year-long consultation on the proposals.
By making provision to repeal free movement in the UK, the Immigration Bill sets up the legal framework for the Government to implement immigration rules for EU citizens.
The overview of the White Paper states: “As the UK leaves the European Union (EU) and we bring free movement to an end, different rules to the current ones must apply to migration here by EU citizens. We will take full control of migration by bringing all of it under UK law and institute a new border and immigration system, to serve the UK public and the economy, and to enable those who come to the UK to integrate and make a positive contribution.”
The Government is proposing a single, unified immigration system to apply to everyone who wants to come to the UK after Brexit. The system will be based on the current immigration rules for non-EU nationals, with many changes. The Government’s position is that the focus of the immigration system should be on skill and talent to ensure the UK can “welcome talent from every corner of the globe and demonstrates the United Kingdom is open for business.”
When will free movement end?
Clause 1 of the Bill would give the Home Secretary the power to repeal free movement law in the UK by amending primary and secondary legislation, on a day appointed by regulations. This power could be exercised whether we have a Brexit deal or a no-deal scenario.
If the Withdrawal Agreement is ratified, it could be expected that the Government would repeal free movement at the end of the transition period. This is because, under the Withdrawal Agreement, free movement between the UK and the EU will continue until the end of the transition period.
The situation under a no-deal Brexit is much less clear. DExEU’s policy paper ‘Citizens’ Rights – EU citizens in the UK and UK nationals in the EU’, states that in a no-deal scenario, the cut off for eligibility for settled status will be 29 March 2019.
This means that unless there is a deal, EU citizens who arrive in the UK after 29 March 2019 would not be able to apply for settled status.
However, continuous residence rights would be granted under the Withdrawal Agreement to those who arrive up to the end of the implementation period.
When will the new UK immigration system come into force?
The policy paper explains that in a no-deal scenario, “the new UK immigration system would be implemented from 1 January 2021 as planned.” This raises questions about when the Government would implement the Bill and repeal free movement.
If the Bill comes into effect and free movement is repealed from 29 March 2019 and the new immigration rules are implemented from 1 January 2021, it is unclear which visa rules EU citizens will come to the UK under between 30 March 2019 and 1 January 2021. If the Bill does not come into effect soon after 29 March 2019, it is not clear whether those EU citizens who move to the UK after this date do so under free movement laws and what their future status in the UK be.
What will happen to EU migrants living in the UK?
The Bill would make no changes to the proposed settled status scheme. The Government has said that settled status will be available to EU citizens living in the UK prior to 29 March 2019 in the event of a no-deal scenario.
What about British nationals living in the EU?
In the Withdrawal Agreement, the UK and the EU have agreed to reciprocal protection of those who reside in their host state prior to the end of a transition period – currently 31 December 2020.
UK nationals who have exercised free movement rights and are residing in their host state prior to the end of the transition period will have the right to remain under the same conditions set out under EU law and the Free Movement Directive, under Article 13 of the Withdrawal Agreement.
Their rights are protected regardless of whether they have acquired permanent residence.
It does not matter how long before the end of the transition period the UK national lived in their host state, as long as they are legally resident there under EU law prior to 31 December 2020. The residence rights of family members who are lawfully residing with their UK national ‘sponsor’ under EU law are also guaranteed by the Withdrawal Agreement.
It is harder to say what the situation would be in a no-deal scenario.
In a press release on December 19, the European Commission invited Member States to, “take a generous approach to the rights of UK citizens in the EU, provided that this approach is reciprocated by the UK.” It said that Member States should take measures to ensure that UK citizens legally residing in EU countries on the date of the UK’s withdrawal are considered legal residents.