Clause 7: Rights related to residence: application deadline and temporary protection

137 This clause provides Ministers of the Crown with a power to make regulations implementing the provisions in the Agreements which enable the UK to require individuals within scope of the Agreements or within scope of residence scheme immigration rules (the protected cohort) to apply for a UK immigration status (leave to enter or remain) conferring their residence rights under those agreements by a specific deadline. It also enables regulations to be made that ensure that the protected cohort continue to enjoy the residence rights in the UK pending conferral of their new immigration status. The UK is giving effect to its commitments in the Agreements regarding residence status for EU citizens, EEA EFTA and Swiss nationals and their family members through the EU Settlement Scheme, which was established under Immigration Rules made under section 3(2) of the Immigration Act 1971.

138 Free movement rights for EU citizens and EEA EFTA nationals are set out in the EU treaties and Directive 2004/38/EC and implemented domestically through section 7 of the Immigration Act 1988 and the EEA Regulations 2016. Free movement rights for Swiss nationals are set out in the FMOPA (as defined above), and also implemented domestically through the EEA Regulations 2016. In line with government policy, the Home Office will seek parliamentary approval to, at the end of the implementation period, end the UK’s participation in the free movement of people within the European Economic Area through the planned Immigration and Social Security Co-ordination (EU Withdrawal) Bill. By ending free movement, EU citizens, EEA EFTA nationals, and Swiss nationals will become subject to immigration control. Once free movement has ended, beneficiaries of the citizens’ rights part of the Agreements who have not yet secured leave to enter or remain in the UK under the EU Settlement Scheme would no longer have a lawful basis to reside in the UK unless further provision is made.

139 Subsection (1)(a) enables a Minister of the Crown to specify the deadline for applications for immigration status under the EU Settlement Scheme, as set out in Article 18(1)(b) of the Withdrawal Agreement, Article 17(1)(b) of the EEA EFTA Separation Agreement, and Article 16(1)(b) of the Swiss Citizens’ Rights Agreement. As provided for in the Agreements, this deadline must not be less than six months from the end of the implementation period. This provides for a grace period after the end of the implementation period in which EU law will no longer apply but the rights and protections flowing from the Agreements must be available in legal and practical terms to individuals under the Agreements and members of the protected cohort who have not yet obtained their immigration status under domestic law.

140 The powers under this clause may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

141 Subsection (1)(b), (c) and (d) enable a Minister of the Crown, by regulations, to implement Article 18(2) of the Withdrawal Agreement, Article 17(2) of the EEA EFTA Separation Agreement, and Article 16(2) of the Swiss Citizens’ Rights Agreement. Those provisions apply all the rights provided for in the citizens’ rights parts of the Agreements to members of the protected cohort who have not yet obtained their immigration status under domestic law during the grace period.

142 Subsection (1)(e), (f) and (g) enable a Minister of the Crown to make regulations to provide that, where a person has made a valid application for immigration status under the EU Settlement Scheme, all the rights provided for in the citizens’ rights parts of the Agreements shall apply to that person until the application is finally determined, including procedures for judicial redress where applicable.

143 The Government intends that regulations under subsection (1)(b) to (g) will give effect to the relevant provisions in the Agreements largely by saving the necessary components of the existing regime in the EEA Regulations 2016 that protect the rights of EU citizens, EEA EFTA nationals, under the Free Movement Directive and Swiss nationals under Annex I of FMOPA during the grace period and pending resolution of individual applications for status under the EU Settlement Scheme.

144 Subsection (2) and (3) will enable regulations under subsection (1) to apply both to the persons whom the provision in question applies and to all those who are eligible for or in the case of subsection (3) have applied for leave under the EU Settlement Scheme. This will enable provision to be made, for example, to protect the position of certain groups who currently derive their residence rights from EU law, but who are not covered by the Agreements such as family members of British citizens who benefit from the Surinder Singh principle.1

145 Subsection (4) states that regulations made under this power may modify any provision made by or under an enactment.

1 Surinder Singh established the principle that nationals of Member States should not be deterred from leaving their country of origin to pursue an economic activity in another Member State. They would be so deterred if on returning to the Member State of which they are a national they did not enjoy conditions at least equivalent to those they would enjoy under community law in the territory of another Member State. In this case in respect of family reunification rights.

Clause 8: Frontier workers

146 This clause provides Ministers of the Crown with powers to make regulations to put in place protections to the rights of EU, EEA EFTA and Swiss frontier workers who are economically active in, but not resident in, the UK at the end of the implementation period, and the ability to establish a permit scheme enabling the issuance of documents to frontier workers. This clause may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

147 Under the Common Travel Area (CTA), UK and Irish citizens will have the right to move freely and work across the Irish border, and so will not need to rely on these frontier worker rights. A Memorandum of Understanding between the UK and Ireland on the Common Travel Area was signed between the UK Government and the Irish Government on 8 May 2019. The Memorandum of Understanding is clear that the national laws of the UK and Ireland will continue to provide for the right to work afforded to British citizens in Ireland and Irish citizens in the UK.

148 This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement, adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

149 Subsection (1) provides Ministers of the Crown with a power to make regulations for the purpose of implementing Articles 24(3) and 25(3) of the Withdrawal Agreement, Articles 23(3) and 24(3) of the EEA EFTA Separation Agreement, and Article 20(2) of the Swiss Citizens’ Rights Agreement, concerning rights of employed and self-employed frontier workers to enter their state of work, and retention of the rights that they enjoyed as workers there before the end of the implementation period.

150 Subsection (2) provides Ministers of the Crown with a power to make regulations for the purpose of implementing Article 26 of the Withdrawal Agreement, Article 25 of the EEA EFTA Separation Agreement, and Articles 21(1)(a) and 21(2) of the Swiss Citizens’ Rights Agreement. These provisions allow for a permit system to certify EU citizens, EEA EFTA and Swiss nationals as frontier workers in the UK at the end of the implementation period.

151 Subsection (3) states that the power to make regulations under this clause may be made by modifying the Immigration Acts, as defined in Schedule 1 of the Interpretation Act 19781, including secondary legislation made under those Acts, or any other secondary legislation.

1 Schedule 1 of the Interpretation Act 1978 states that the ‘Immigration Acts’ has the meaning given by section 61(2) of the UK Borders Act 2007.

Clause 9: Restrictions on rights of entry and residence

152 This clause provides Ministers of the Crown with a power to make regulations to implement provisions of the Agreements that relate to restrictions on rights of entry and residence. Articles 20(1), (3), and (4) of the Withdrawal Agreement, Articles 19(1), (3), and (4) of the EEA EFTA Separation Agreement, and Articles 17(1), 17(3), and 20(3) of the Swiss Citizens’ Rights Agreement outline the conditions for restrictions on rights of entry and residence in relation to protected persons.

153 These articles provide that the restriction of a protected person’s entry or residence rights on the grounds of conduct committed before the end of the implementation period must be made in accordance with Chapter VI of Directive 2004/83/EC, and Article 5 of Annex I of the FMOPA. These articles also provide that protected persons can continue to be removed from the UK as a result of fraud and/or abuse of their rights, as is currently the case under the EEA Regulations 2016.

154 This power may, among other things, be exercised by saving and modifying the current provisions for restricting admission and residence rights under the EEA Regulations 2016, to ensure that those provisions continue to apply in relation to restriction decisions made on the grounds of conduct taking place before the end of the implementation period. Specifically, where restriction decisions are made on the grounds of conduct that took place before the end of the implementation period, the public policy, public security or public health test will apply. The power may also be used to save and modify provisions within the EEA Regulations 2016 relating to the removal of EEA nationals and their family members on the grounds of fraud or abuse of their rights.

155 This power may additionally be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

156 Subsection (1) provides for the power to make regulations to implement Articles 20(1), (3), and (4) of the Withdrawal Agreement, and the corresponding Articles 19(1), (3), and (4) of the EEA EFTA Separation Agreement, and Articles 17(1), 17(3), and 20(3) of the Swiss Citizens’ Rights Agreement.

157 Subsection (2) provides that regulations under subsection (1) can be applied both to persons to whom the provisions set out in subsection (1) apply and those not so covered but granted leave to enter or remain under residence scheme immigration rules, those who have entry clearance granted by virtue of relevant entry clearance immigration rules, and those who otherwise have leave to enter granted after arriving with entry clearance by virtue of relevant entry clearance immigration rules.

158 Subsection (3) states that references to a person who has entry clearance or leave to enter or remain include persons who would have had entry clearance or leave to enter or remain but for the making of a deportation order under section 5(1) of the Immigration Act 1971 or any other decision made in connection with restricting a right to enter the UK.

159 Subsection (4) states that the power to make regulations under this clause may be made by modifying the Immigration Acts, as defined in Schedule 1 of the Interpretation Act 1978, including secondary legislation made under those Acts or by modifying provisions made under any other primary legislation.

Clause 10: Retention of existing grounds for deportation

160 This clause 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 clause 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.

161 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).

162 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 clause 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.

163 Subsections (1) to (4) of this clause amend section 3 of the Immigration Act 1971. In particular:

a. 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 is a relevant person, the deportation would be in breach of the Agreements if the Agreements applied to them;

b. 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;

c. subsection (4) inserts new subsections (10) and (11) into section 3 of the Immigration Act 1971:

i. 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

ii. the new subsection (11) ensures that certain definitions contained within the European Union (Withdrawal Agreement) Act 2019 apply for the purposes of section 3 of the Immigration Act 1971, as amended by the Bill.

164 Subsection (5) inserts multiple new subsections into section 33 of the UK Borders Act 2007. In particular, it inserts:

a. 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;

b. a new subsection (6C), which defines a ‘relevant person’ in the same way as subsection 4 of this section provides;

c. a new subsection (6D), which ensures that certain definitions contained within the European Union (Withdrawal Agreement) Act 2019 apply for the purposes of section 33 of the UK Borders Act 2007.

165 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 clause, making clear that they include leave granted by virtue of those rules before clause 17 of this Bill comes into force.

Clause 11: Appeals etc against citizens’ rights immigration decisions

166 Articles 18 and 21 of the Withdrawal Agreement, and Articles 17 and 20 of the EEA EFTA Separation Agreement, provide for a right of judicial redress against decisions refusing to grant residence status under the EU Settlement Scheme, or to restrict residence rights.

167 The effect of Article 20 of the Withdrawal Agreement, and Article 19 of the EEA EFTA Separation Agreement, is to provide for a right of judicial redress against restrictions on rights of entry to the UK for frontier workers and those continuing a course of planned healthcare treatment.

168 Article 8 of the Swiss Citizens’ Rights Agreement provides for similar rights of judicial redress.

169 This clause provides a Minister of the Crown with a power to make regulations to make provision for, or in connection with, appeals against:

a. a decision made in connection with entry clearance by virtue of relevant entry clearance immigration rules;

b. a decision made in connection with leave to enter or remain by virtue of residence scheme immigration rules;

c. a decision made in connection with entry clearance for the purposes of acquiring leave to enter or remain in relation to a healthcare right of entry;

d. a decision made in connection with leave to enter or remain in relation to a healthcare right of entry;

e. a decision made in connection with a right to enter or remain by virtue of regulations for frontier workers;

f. a decision to make, or a refusal to revoke a deportation order under section 5(1) of the Immigration Act 1971 in relation to a relevant person; and

g. any other decision made in connection with restricting the right of a relevant person to enter the United Kingdom (citizens’ rights immigration decisions).

170 This power may also be used to make provision for, or in connection with, reviews (including judicial reviews) of decisions within (g) above.

171 Furthermore, it may be used to give effect to amendments to the Withdrawal Agreement and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

172 Subsection (1) states that a Minister of the Crown may make regulations to make provision for, or in connection with, appeals against citizens’ rights immigration decisions.

173 Subsection (2) defines ‘citizens’ rights immigration decisions’ in connection with which a Minister of the Crown may make appeals regulations under this clause.

174 Subsection (3) states that a Minister of the Crown may make regulations to make provision for, or in connection with, reviews (including judicial reviews) of decisions within subsection 2(g).

175 Subsection (4) states that the power to make regulations under this subsection (1) or (3) may, among other things, be exercised by modifying any provision made by or under an enactment.

176 Subsection (5) defines a ‘healthcare right of entry’ for the purposes of subsection (2) as a right to enter the UK that a person has by virtue of Article 32(1)(b) of the Withdrawal Agreement, Article 31(1)(b) of the EEA EFTA Separation Agreement, or Article 26a(1)(b) of the Swiss Citizens’ Rights Agreement.

177 Subsection (6) defines a ‘relevant person’ for the purposes of subsection 2(f) and (g) as a person to whom Article 20 of the Withdrawal Agreement, Article 19 of the EEA EFTA Separation Agreement, or Articles 17 or 20(3) of the Swiss Citizens’ Rights Agreement applies, or, if they do not fall within these Articles, a person who has entry clearance granted by virtue of relevant entry clearance immigration rules, has leave to enter or remain granted by virtue of residence scheme immigration rules or otherwise has leave to enter granted after arriving with entry clearance granted by virtue of relevant entry clearance immigration rules.

178 Subsection (7) states that references in subsection 6(b) to a person who has entry clearance or leave to enter or remain include references to a person who would have had entry clearance or leave to enter or remain but for the making of a deportation order under section 5(1) of the Immigration Act 1971 or any other decision made in connection with restricting the right of the person to enter the UK.

179 Appeal rights set up under this power will be to the First-tier Tribunal (Immigration and Asylum Chamber) with an onward right of appeal with permission to the Upper Tribunal on a point of law.

180 The Immigration and Asylum Chamber currently hears appeals in respect of protection and human rights claims and appeals under the EEA Regulations 2016. The procedure for residence scheme appeals (including the time limits for appealing) will be covered by the Tribunal Procedure Rules. The Tribunal Procedure Rules set out the rules of procedure of the First-tier Tribunal, including service of documents, the procedure for summoning witnesses, how the Tribunal may receive evidence, and other such procedural matters.

Clause 12: Recognition of professional qualifications

181 This clause gives Ministers of the Crown and the devolved authorities the power to make necessary regulations to implement:

a. Chapter 3 (Professional Qualifications) of Title II of Part 2 of the Withdrawal Agreement;

b. Chapter 3 (Professional Qualifications) of Title II of Part 2 of the EEA EFTA Separation Agreement; and

c. Article 23(4) (so far as relates to recognition of professional qualifications) and Part 4 (Mutual Recognition of Professional Qualifications) of the Swiss Citizens’ Rights Agreement.

182 The provisions in the Agreements set out that professional qualifications held by EU citizens and EEA EFTA nationals, who are resident or frontier working in the UK by the end of the implementation period, and recognised, or in the process of being recognised, by a UK professional regulator before the end of the implementation period, will continue to be recognised. Family members of EU citizens and EEA EFTA nationals who are resident in the UK will also have rights to have their qualifications recognised under these agreements.

183 Under the Swiss Citizens’ Rights Agreement, Swiss nationals who have had qualifications recognised or applied for recognition before the end of the implementation period will continue to have their qualifications recognised. Swiss nationals will have an additional four years from the end of the implementation period to make applications for recognition, so long as the individual has obtained, or was in the process of obtaining, a qualification before the end of the implementation period.

184 All persons with recognised qualifications under the Agreements will be entitled to practice the profession under the same conditions as UK nationals.

185 For the purpose of this clause, the devolved authorities are the Scottish Ministers, the Welsh Ministers and a Northern Ireland department.

186 For EU citizens and EEA EFTA nationals, this clause applies to recognition decisions made under UK legislation that implements the following EU directives:

a. Title III of Directive 2005/36/EC – right to practice a regulated profession based on the recognition of professional qualifications or professional experience gained in another EEA state;

b. Article 10(1) and (3) of Directive 98/5/EC – admission to the profession of lawyer in another EEA state;

c. Article 14 of Directive 2006/43/EC – approval of statutory auditors from another EEA state; and

d. Council Directive 74/556/EEC – recognition of knowledge and ability needed to engage in the trade and distribution of toxic products.

187 For Swiss nationals, this clause applies to decisions made under UK legislation that implements the following EU directives:

a. Title III of Directive 2005/36/EC – right to practice a regulated profession based on the recognition of professional qualifications or professional experience gained in another EEA state;

b. Directive 98/5/EC – admission to the profession of lawyer in another EEA state;

c. Council Directive 77/249/EEC – to facilitate the effective exercise by lawyers of freedom to provide services;

d. Council Directive 74/556/EEC – recognition of knowledge and ability needed to engage in the trade and distribution of toxic products; and

e. Council Directive 86/653/EEC in respect of self-employed commercial agents.

188 The recognition of professional qualifications provisions in the Withdrawal Agreement and EEA Separation Agreement only apply for the purposes of establishment, and not for the temporary and occasional provision of services. The Swiss Citizens’ Rights Agreement also makes provision for the purposes of establishment. In addition, Article 23 of the Swiss Citizens’ Rights Agreement provides that those providing services on a temporary basis from Switzerland to the UK or from the UK to Switzerland shall have the right to continue to do so after the end of the implementation period, provided certain conditions are met. Those in the scope of Article 23 may continue to rely upon the Council Directive 77/249/EEC, which facilitates the exercise by lawyers of freedom to provide services, and the provisions of Title II of Directive 2005/36/EC, which concerns the freedom to provide services for other regulated professions.

189 This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement, adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

190 Subsection (1) provides that the power may be made to make regulations to implement Chapter 3 of Title II of Part 2 of the Withdrawal Agreement, as well as to supplement the effect of section 7A of the EU (Withdrawal) Act 2018 in relation to that Chapter, and to deal with matters arising out of, or related to, that Chapter.

191 Subsection (2) provides that the power may be made to make regulations to implement Chapter 3 of Title II of Part 2 of the EEA EFTA Separation Agreement, as well as to supplement the effect of section 7B of the EU (Withdrawal) Act 2018 in relation to that Chapter, and to deal with matters arising out of, or related to, that Chapter.

192 Subsection (3) provides that the power may be made to make regulations to implement Article 23(4) (so far as relates to recognition of professional qualifications) and Part 4 of the Swiss Citizens’ Rights Agreement, as well as to supplement the effect of section 7B of the EU (Withdrawal) Act 2018 in relation to those provisions, and to deal with matters arising out of, or related to, those provisions. Article 23(4) sets out that Swiss service providers, providing temporary and occasional services in regulated professions in accordance with Article 23(1) can continue to do so.

193 Subsection (4) outlines that for the purposes of subsection (3) the professional qualification provisions of the Swiss Citizens’ Rights Agreement are Part 4 and Article 23(4) (so far as it relates to the recognition of professional qualifications).

194 Subsection (5) provides that an appropriate authority may make the regulations that apply not only to persons within the scope of the relevant provisions of the Withdrawal Agreement and EEA EFTA Separation Agreement but also to persons outside the scope of those agreements who have been granted leave to enter or remain in the United Kingdom under the residence scheme immigration rules (the protected cohort) (see clause 17).

195 Subsection (6) provides that the powers in subsections (1), (2) and (3) may be used to modify any provision made by or under an enactment but subsection (7) provides that primary legislation passed made after IP completion day is not caught by subsection (6).

196 Subsection (8) defines an ‘appropriate authority’ for the purpose of this clause as meaning a Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority.

197 Subsection (9) references Schedule 1 which makes further provision concerning the powers of the devolved authorities to make regulations under this clause.

Clause 13: Co-ordination of social security systems

198 The EU Social Security Coordination Regulations1 protect the social security position of persons who move and work around the EU. The Regulations coordinate the application of different Member States’ social security systems to avoid conflict or duplication, as well as providing for aggregation of periods of work, insurance (National Insurance contributions in the UK) or residence to help meet benefit entitlement conditions and for the payment of certain benefits to or in respect of a person living in another Member State (‘export’ of benefits). Individuals within scope will continue to benefit from coordination rules as set out in the Agreements.

199 These rules ensure that a worker (and their employer) or a self-employed worker only pay contributions into one Member State’s social security scheme at a time and determine which Member State is responsible for the payment of benefits and the cost of healthcare. They set out certain rights to healthcare cover in the UK, reimbursed by the Member State responsible for that cover, and equivalent rights for healthcare cover in Member States, reimbursed by the UK.

200 The EU Social Security Coordination Regulations will apply directly to those within scope of Title III of Part 2 of the Withdrawal Agreement by virtue of clause 5. They will also apply directly to those within scope of Title III of Part 2 of the EEA EFTA Separation Agreement and Part 3 of the Swiss Citizen’s Rights Agreement by virtue of clause 6. Future updates to these Regulations, where added to an Annex of the Agreements under a Joint Committee mechanism, will also apply directly.

201 Clause 13 provides Ministers of the Crown or a devolved authority (separately or jointly) with a power to implement these sections of the Agreements and supplement the effect of the Agreements as applied in domestic law and any matters which arise out of this, for example to remedy any unforeseen inconsistencies with domestic legislation.

202 This power will also be available in relation to future changes to the EU Social Security Coordination Regulations that are added to the Agreements and so take effect in domestic law directly by virtue of clauses 5 and 6. This will ensure that the UK can react to future changes and continue to meet its obligations under the Agreements.

203 The power may also be used to make changes to administrative and operational systems that implement the co-ordination of social security systems domestically. This could include, for example, providing for the sharing of data either with other states or between appropriate authorities in the UK, where it is necessary to give full effect to the Agreements (should provision be needed beyond the data sharing articles of the EU Social Security Coordination Regulations).

204 The power also enables a Minister or a devolved authority to supplement the effect of Article 7A of the EU (Withdrawal) Act 2018 in relation to Title III of Part 2 of the Withdrawal Agreement. Subsections (2) and (3) allow equivalent provision to be made in respect of Article 7B of the EU (Withdrawal) Act 2018 in relation to Title III of Part 2 of the EEA EFTA Separation Agreement and Article 23(4) and Part 3 of the Swiss Citizens’ Rights Agreement.

205 This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement, adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

206 Subsection (4) defines the social security co-ordination provisions in the Swiss Citizens’ Rights Agreement.

207 Subsection (5) states that the power to make regulations may be used to modify any provision made under an enactment.

208 Subsection (6) defines ‘appropriate authority’ for the purposes of this clause. Subsection (7) references Schedule 1 which makes further provision concerning the powers of the devolved authorities.

1 Regulations (EC) 883/2004 and 987/2009, and Regulations (EEC) 1408/71 and 574/72 in respect of third country nationals.

Clause 14: Non-discrimination, equal treatment and rights of workers etc

209 The Agreements provide for the protection of rights to equal treatment and non-discrimination for the protected cohort and frontier workers (as defined in clause 8). The non-discrimination, equal treatment and rights of workers power allows for provision to be made to ensure that domestic legislation is not inconsistent with these rights under the Agreements.

210 This clause provides Ministers of the Crown and the devolved authorities with a power to implement the equal treatment provisions in the Agreements, including ensuring that domestic legislation is consistent with these provisions. Subsection (1) restricts the scope of this power to implementing Articles 12, 23, 24(1), 25(1), 24(3) and 25(3) of the Withdrawal Agreement. Subsection (2) provides that the power may be used to implement Articles 11, 22, 23(1), 24(1), 23(3) and 24(3) in the EEA EFTA Separation Agreement. Subsection (3) provides that the power may be used to implement Articles 7, 18, 19, 20(1) and 23(1) in the Swiss Citizens’ Rights Agreement.

211 This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

212 Subsection (4) provides that regulations made under subsections (1), (2) and (3) may be made so as to apply both to persons who are covered by the relevant Articles of the Agreements, as well as persons to whom the provision in question does not apply but who may be granted leave to remain under the residence scheme immigration rules, whether or not they have been granted such leave.

213 Regulations made under this clause may be used, for example, to provide that EU citizens, EEA EFTA nationals and Swiss nationals with pre-existing access to benefits and services maintain the same access to benefits and services as they were entitled to under EU law before the end of the implementation period.

214 Under current rules, access to publicly funded benefits and services for EU citizens and EEA EFTA nationals and their family members may be linked to their status under the EEA Regulations 2016. Those with permanent residence under these Regulations are entitled to benefits and services on the same terms as UK nationals, subject to meeting the relevant eligibility criteria.

215 Where an individual does not have permanent residence, entitlement to these benefits and services is subject to eligibility tests. Eligibility may be linked to holding another status under domestic law, for example being a ‘qualifying person’ under the EEA Regulations 2016 (for example, a worker in genuine and effective employment). This power will be used to save the operation of the EEA Regulations 2016 and related domestic law for the purpose of preserving access to benefits and services based on the same conditions as now.

216 Subsection (5) states that the power to make regulations may be used to modify any provision made under an enactment.

217 Subsection (6) defines ‘appropriate authority’ for the purposes of this clause. Subsection (7) references Schedule 1 which makes further provision concerning the powers of the devolved authorities in respect of citizens’ rights provisions.

Clause 15: Independent Monitoring Authority for the Citizens’ Rights Agreements

218 This clause establishes an independent authority to monitor the implementation and application of Part 2 of the Withdrawal Agreement, and Part 2 of the EEA EFTA Separation Agreement.

219 Establishment of this authority is required to implement Article 159 of the Withdrawal Agreement, and Article 64 of the EEA EFTA Separation Agreement.

220 Subsection (1) establishes the body as the Independent Monitoring Authority for the Citizens’ Rights Agreements. Subsection (2) sets out the abbreviation of ‘IMA’.

221 Subsection (3) references Schedule 2, which contains provisions about the IMA’s constitution, the IMA’s functions, functions of certain public authorities in relation to the IMA and the abolition of the IMA.

Clause 16: Regulations: supplementary

222 Subsection (1) provides that in sections 7, 8, 9 and 14, a power to make provision for the purpose of implementing an Article or Chapter or Part of the Withdrawal Agreement, EEA EFTA Separation Agreement, or Swiss Citizens’ Rights Agreement includes a power to make provision to supplement the effect of sections 7A and 7B of the EU (Withdrawal) Act 2018 in relation to that Article, Chapter, or Part.

223 Subsection (2) states that the conferral of a power on a Minister of the Crown in sections 7, 8, 9 or 11 does not affect the extent of any power of a devolved authority under sections 12, 13 or 14 which overlaps with a power under sections 7, 8, 9, or 11 by virtue of section 17(4).

224 Subsection (3) states that regulations made under the citizens’ rights provisions may not provide for the conferral of functions or the delegation of functions to a person who is not a public authority.

225 Subsection (4) defines a public authority under subsection (3) as a person carrying out functions of a public nature.

Clause 17: Interpretation: Part 3

226 This clause provides definitions for terms used in Part 3 (Citizens’ rights) of the Bill.

227 Subsection (1) sets out the definition for ‘residence scheme immigration rules’.

228 Subsection (2) sets out the definition for ‘relevant entry clearance immigration rules’.

229 Subsection (3) provides that references to having leave to enter or remain in the UK by virtue of the residence scheme immigration rules (which provide for the protected cohort) includes leave granted by virtue of those rules before the citizens’ rights provisions in the Bill come into force.

230 Subsection (4) states that a reference to a Chapter, Title or Part or other provision of the Withdrawal Agreement, the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreements in the citizens’ rights provisions of the Bill includes a reference to any other provision in the Withdrawal Agreement, the EEA EFTA Separation Agreement, or the Swiss Citizens’ Rights Agreement that relates to that provision , as well as any provision of EU law which is applied by or referred to in that Chapter, Title, Part or other provision.

231 Subsection (5) sets out the definitions of ‘entry clearance’, and ‘immigration rules’.

Schedule 1: Powers of devolved authorities under sections 12, 13 and 14

No power to make provision outside devolved competence

366Paragraph 1 provides that the powers in respect of social security coordination, recognition of professional qualifications and equal treatment under clauses 12, 13 or 14 cannot be used outside of devolved competence, where exercised by devolved authorities acting alone. This maintains the status quo in respect of the competence of the devolved authorities and ability to act in these areas.

367Paragraph 2 relates to the competence of Scottish Ministers. Sub-paragraph (a) relates to legislative competence and sets out that the Scottish Ministers may exercise these powers where the Scottish Parliament has legislative competence. The definition of ‘legislative competence’ for the purposes of exercising these powers disapplies the normal restriction on the Scottish Parliament’s competence, which prevents the Scottish Parliament from legislating in a way that is incompatible with EU law. This disapplication is necessary to enable the Scottish Ministers to make all necessary regulations under these powers in devolved areas.

368Sub-paragraph (b) relates to those secondary legislation-making powers which are not within legislative competence but are within the executive competence of the Scottish Ministers. The definition of ‘executive competence’ for the purposes of exercising these powers disapplies the normal restriction on the Scottish Ministers’ competence which prevents the Scottish Ministers from legislating in a way that is incompatible with EU law. The restrictions relating to retained EU law are also disapplied for the purposes of defining legislative and executive competence.

369Paragraph 3 relates to the competence of the Welsh Ministers and makes the same provision for the Welsh Ministers as for the Scottish Ministers as set out in paragraph 2. The Welsh Ministers will be able to exercise these powers in areas within the National Assembly for Wales’ legislative competence (disapplying the restrictions preventing the National Assembly for Wales from legislating in a way that is incompatible with EU law or from modifying retained EU law) and to amend legislation which has been made under their executive competence.

370Paragraph 4 relates to the competence of Northern Ireland departments. Sub-paragraph (a) deals with transferred matters, providing that Northern Ireland devolved authorities may make regulations using the power in any areas which would be within the Northern Ireland Assembly’s legislative competence and which would not require consent of the Secretary of State for Northern Ireland. Sub-paragraph (b) deals with reserved matters, providing that where Northern Ireland legislation has previously been made in relation to reserved matters, Northern Ireland departments and Ministers will be able to use the power to amend this legislation. In both sub-paragraphs (a) and (b) the existing restrictions on legislative competence that would make it outside of legislative competence to act in a way that is incompatible with EU law, or to modify retained EU law, are disapplied in defining legislative competence for the purpose of these powers. Sub-paragraph (c) makes the same provision as for Scottish and Welsh Ministers so that Northern Ireland departments can exercise the power to amend legislation which has been made under their executive competence.

Requirement for consent where it would otherwise be required

371Paragraph 5 sets out that if a devolved authority is making a provision using these powers that would require consent if it were a provision in legislation of the relevant devolved legislature or where the devolved administration would normally require consent to make such a provision via secondary legislation, then that consent will still be required. This will not apply if the devolved authority already has power to make such provision using secondary legislation without needing the consent of the Minister of the Crown.

Requirement for joint exercise where it would otherwise be required

372Paragraph 6 sets out that where a devolved authority would normally only be able to make legislation jointly with the UK Government, the devolved authority will still have to make such legislation jointly when exercising the power.

Requirement for consultation where it would otherwise be required

373Paragraph 7 requires consultation with the UK Government on legislation made by a devolved authority in the exercise of the power, where the devolved authority would normally be required to consult with the UK Government when making those kind of changes in legislation.

Interpretation

374Paragraph 8 defines a Northern Ireland devolved authority as the First Minister and deputy First Minister in Northern Ireland acting jointly, a Northern Ireland Minister, or a Northern Ireland department.

Part 1: Constitution, proceedings etc

Status

375Paragraph 1 sets out that the IMA is not to be a Crown body.

Membership

376Paragraph 2 sets out the membership of the IMA (effectively its decision-making board). Sub-paragraph (1) lists this membership as a chair (a non-executive), a chief executive officer (an executive, who will be an employee of the IMA), and at least two but no more than six other non-executive members and at least one but no more than three other executive members. The Secretary of State is to appoint the non-executive members. The Secretary of State and the non-executive members must ensure, so far as is practicable, that the number of non-executive members exceeds the number of executive members, in order to ensure effective oversight. Sub-paragraph (7) provides that a member may not be a civil servant. Once the chair and at least two other non-executive members have been appointed, all of the appointed non-executive members are to appoint the executive members, who shall be employees of the IMA, but must consult the Secretary of State on the appointment of the chief executive officer.

Interim chief executive

377Paragraph 3 allows the Secretary of State to appoint a chief executive for an interim period prior to a chief executive being appointed in accordance with paragraph 2(3). Before the membership of the IMA is fully constituted in accordance with paragraph 2(1), the chief executive appointed by the Secretary of State may undertake matters on behalf of the IMA including incurring expenditure, subject to any directions given by the Secretary of State.

Requirements relating to appointment

378Paragraph 4 defines the desired expertise to be held collectively by the IMA’s members. When making appointments, the Secretary of State and the non-executive members must have regard to the desirability of IMA members having knowledge of conditions in the UK relating to matters in Part 2 of the Withdrawal Agreement (for example social security coordination, or the recognition of professional qualifications) and the equivalent Part in the EEA EFTA Separation Agreement, referred to as ‘relevant matters.’

379Sub-paragraph (2) sets out that the Secretary of State must ensure, as far as is possible, that the IMA membership includes non-executive members with knowledge of the conditions in Scotland, Wales and Northern Ireland respectively, in relation to Part 2 of the Withdrawal Agreement and EEA EFTA Separation Agreement. This is to reflect the fact that the IMA will exercise its functions across all areas of the UK.

380Sub-paragraph (3) provides that where the IMA exercises functions in relation to Gibraltar, the Secretary of State must ensure, so far as possible, that there is a non-executive member who knows about conditions in Gibraltar in relation to Part 2 of the Withdrawal Agreement and Part 2 of the EEA EFTA Separation Agreement.

381Sub-paragraph (4) and (5) requires the Secretary of State or non-executive members to be satisfied that an a person does not have a conflict of interest before appointing them. Conflict of interest is defined in sub-paragraph (5) as a person having a financial or other interest which is likely to prejudice their function as a member of the IMA, which might be, for example, a member who sits on another public body that has an interest in the IMA’s work.

Procedure for appointing members with knowledge of conditions in devolved areas etc

382Paragraph 5 sets out the procedures for appointing the non-executive members under paragraph 4(2) and (3). Sub-paragraph (2) requires the Secretary of State to tell the relevant authority (that is, the relevant devolved administration or Gibraltar Minister specified in sub-paragraph (8)) who they propose to appoint and why.

383Sub-paragraph (3) states that the Secretary of State must appoint that person if the relevant authority agrees to that appointment within a period of one month from the action set out under sub-paragraph (2), subject to sub-paragraph (4).

384Sub-paragraph (4) states that if the person is no longer available, or if the Secretary of State and the relevant authority agree that the person should not be appointed following the process set out in sub-paragraph (3) (for example, due to new circumstances that indicate that the appointment may no longer be appropriate), then the Secretary of State must propose to appoint a different person following the the process set out in sub-paragraph (2) and (3) again.

385Sub-paragraph (5) sets out the process following sub-paragraph (3), in the event that the relevant authority does not agree to the Secretary of State’s proposed appointee. The Secretary of State may either make the appointment without the agreement of the relevant authority (sub-paragraph (5)(a)) or the Secretary of State may propose to appoint a different person (sub-paragraph (5)(b)).

386Sub-paragraph (6) states that the process set out in sub-paragraphs (2) to (5) is repeated if the Secretary of State proposes to appoint a different person under subparagraph (5)(b).

387Sub-paragraph (7) states that the Secretary of State must publish a written statement explaining the decision to proceed with a proposed appointment without the agreement of the relevant authority under sub-paragraph (5)(a).

388Sub-paragraph (8) defines a relevant authority for the purposes of sub-paragraphs (1) to (7).

Non-executive members: terms of appointment and tenure etc

389Paragraph 6 provides that a person holds and vacates office as a member of the IMA in accordance with the terms and conditions of the person’s appointment. Terms and conditions will be set out in the person’s appointment letter, unless provided for in legislation.

390Sub-paragraph (2) requires the Secretary of State to set the terms and conditions for non-executive appointments, subject to the provisions contained in the Schedule.

391Sub-paragraphs (3) and (4) set the term limits for board members of the IMA. The chair will be appointed for a period of up to five years with any other non-executive member to be appointed for up to four years.

392Sub-paragraph (5) provides that non-executive members may resign by giving written notice to the Secretary of State.

393Sub-paragraph (6) gives the Secretary of State the power to remove a non-executive member of the IMA on the grounds specified in sub-paragraph (7). Before doing so, the Secretary of State is under a duty to consult the other non-executive members.

394Sub-paragraph (7) sets out the grounds upon which non-executive members of the IMA may be removed from office under sub-paragraph (6). These are:

a.absence from meetings for a continuous period of more than six months without the IMA’s permission;

b.if the member has a conflict of interest preventing the member from carrying out the functions of the office;

c.if the member has been convicted of a criminal offence;

d.if the Secretary of State is of the opinion that the member is unable, unwilling or unfit to carry out the functions of the office; and

e.on any other grounds set out in the member’s terms of appointment.

Remuneration of non-executive members

395Paragraph 7 provides for the Secretary of State to determine the remuneration, allowances and gratuities to be paid to non-executive members of the IMA. Sub-paragraphs (3) and (4) provide that the IMA must make a payment to a non-executive member as the Secretary of State may determine where the term of the non-executive member has not expired, they cease to hold office, and the Secretary of State thinks there are special circumstances that make it right for that member to receive compensation.

Staffing of the IMA

396Paragraph 8 sets out that the IMA may appoint employees and arrange for its staffing. Terms and conditions of employment, remuneration and paying of pensions, allowance and gratuities are to be determined by the IMA with the approval of the Secretary of State (except for in the case of a chief executive appointed by the Secretary of State, where these determinations are made by the Secretary of State), as set out in (2) to (4). Sub-paragraph (4) sets out that the IMA must pay or make provisions for payments of pensions, allowances and gratuities to be made, as agreed and approved by the Secretary of State (or, in the case of a chief executive appointed by the Secretary of State, as determined by the Secretary of State). Sub-paragraphs (5) and (6) ensure that the IMA is able to take part in superannuation schemes for its employees.

397Sub-paragraph (7) provides that the terms and conditions, remuneration and payment of allowances and expenses under sub-paragraphs (2) to (4) in relation to executive members of the IMA are to be determined by the non-executive members with the approval of the Secretary of State.

Procedure

398The IMA, as an independent authority, is permitted by paragraph 9 to determine its own procedures and decide how it will operate. This is subject to a number of conditions set out in this paragraph. These conditions are;

a.the establishment and maintenance of a register of members’ interests;

b.the publication of entries recorded in the register; and

c.the quorum for a meeting of the IMA being half the number of the members appointed for the time being, with the majority of those present being non-executive members.

399Sub-paragraph (5) provides that the IMA must establish procedures for dealing with conflicts of interests of its members.

400Sub-paragraph (6) states that the aforementioned arrangements must oblige each member to declare all financial interests and personal interests relevant to exercise of an IMA function and to withdraw from the exercise of an affected function unless the IMA is satisfied that the interest will not affect its exercise. Sub-paragraph (7) states that the validity of any proceedings of the IMA or of its committees or subcommittees is not affected by any vacancy or defective appointment.

Discharge of functions

401Paragraph 10 sets out who is permitted to exercise the functions of the IMA. The IMA can authorise its employees, members or committees to do anything the IMA may do apart from deciding to carry out an inquiry as set out in paragraph 25; deciding whether to bring an application for judicial review or intervene in other legal proceeding set out in paragraph 30; and approving an annual report as set out in paragraph 31 (which are all functions reserved to the IMA’s board). A committee of the IMA under sub-paragraph (2) can authorise a sub-committee, a committee member, a member of the IMA or an employee of the IMA to exercise a function the relevant committee is authorised to carry out. This ability to delegate is intended to ensure operational effectiveness.

402Sub-paragraph (3) provides that a committee and a sub-committee may include IMA employees who are not members of it.

Seal and evidence

403Paragraph 11 sets out how the IMA’s seal is to be authenticated, and how it should be treated once authenticated. This provision is needed to clarify how documents produced by the IMA can be verified as being official communications, and how these documents should be treated.

404The IMA’s seal is authenticated through the signature of the chief executive of the IMA or another person authorised by the IMA for that purpose. Any document that purports to be executed under the IMA’s seal or signed on its behalf is to be received in evidence and taken to be so unless the contrary is shown.

405Sub-paragraph (3) provides that paragraph 11 does not apply in relation to any document signed in accordance with the law of Scotland.

Funding

406Paragraph 12 provides that the Secretary of State must make such payments to the IMA as they consider appropriate for the IMA to be able to perform its functions. This is the mechanism through which the IMA receives its annual budget and means its budget will be supplied by the relevant Government department and accounted for to Parliament as part of that department’s spending.

Operational Independence

407Paragraph 13 provides that, when exercising their functions in respect of the IMA, the Secretary of State must have regard to the need to protect the IMA’s operational independence and ability to make impartial assessments.

Accounts and audit

408Paragraph 14 provides that the IMA must keep proper accounts and records and must prepare a statement of accounts for each financial year. It must comply with directions from the Secretary of State on how the statement of accounts should be prepared.

409Sub-paragraph (3) places a duty on the IMA to send a copy of each statement of accounts to the Secretary of State and the Comptroller and Auditor General by the end of August next following the financial year to which the statement relates.

410Sub-paragraph (4) sets out the duties of the Comptroller and Auditor General in relation to these accounts, which are to examine, certify, and report on each annual statement of accounts. They must also lay a copy of the statement and the report on the statement before Parliament within four months from when the Comptroller and Auditor General receives the statement.

411Sub-paragraph (5) defines the term ‘financial year’ for the purposes of the Schedule as commencing on the day the membership of the IMA is first constituted (in accordance with paragraph 2(1)) and ending on the next 31 March after that day if that results in the first financial year being a period of six months or more; or, otherwise, the second 31 March and each successive period of 12 months thereafter.

Annual plan

412Paragraph 15 places a duty on the IMA to prepare an annual plan for each financial year on how it intends to perform its functions, with the flexibility to revise the plan. The IMA must submit the annual plan or any revision to the Secretary of State.

413Sub-paragraph (3) provides that the first annual plan must be submitted within three months from the date the membership of the IMA is first constituted (in accordance with paragraph 2(1)). The plan must relate to the remainder of the financial year in which the IMA is established.

414Sub-paragraph (4) obliges the IMA to submit subsequent annual plans no later than one month before the beginning of the financial year to which the annual plan relates.

Public records

415Paragraph 16 ensures that the administrative records of the IMA will be public records.

Investigation by the Parliamentary Commissioner

416Paragraph 17 ensures that the IMA will be subject to investigation by the Parliamentary Commissioner (the Parliamentary Ombudsman).

House of Commons disqualification

417Paragraph 18 ensures that members of the IMA are disqualified from membership of the House of Commons.

Northern Ireland Assembly disqualification

418Paragraph 19 ensures that members of the IMA are disqualified from membership of the Northern Ireland Assembly. Similar provision will be made in relation to the Scottish Parliament and the Welsh Assembly via the appropriate secondary legislation, in line with the relevant provisions of the Scotland Act 1998 and Government of Wales Act 2006.

Freedom of information

419Paragraph 20 ensures that the IMA will be subject to the Freedom of Information Act.

Public sector equality duty

420Paragraph 21 ensures that the IMA will be subject to the public sector equality duty under the Equality Act 2010. Similar provision will be made in relation to Northern Ireland via the appropriate secondary legislation, in line with the relevant provisions of the Northern Ireland Act 1998.

Part 2: Functions of the IMA

General duties

421Paragraph 22 places a duty on the IMA to monitor the implementation and application of Part 2 of the Withdrawal Agreement and Part 2 of the EEA EFTA Separation Agreement by the UK.

 

422Sub-paragraph (2) outlines that the duty includes keeping under review the adequacy and effectiveness of the legislative framework which implements or otherwise deals with matters arising out of or relating to Part 2 and the exercise of functions by public authorities in relation to the same.

423Sub-paragraph (3) defines ‘Part 2’ as Part 2 of the Withdrawal Agreement or Part 2 of the EEA EFTA Separation Agreement (the citizens’ rights parts of these). The term ‘relevant public authority’ is taken to include the Secretary of State or any other person who exercises functions of a public nature, but for the exceptions in sub-paragraph (3)(a), (b) and (c).

424Sub-paragraph (3) provides that the following are not to be regarded as public authorities for the purposes of the IMA: (a) a court or tribunal; (b) either House of Parliament or a person who exercises functions in connection to proceedings in Parliament and; (c) the devolved legislatures or a person who exercises functions in connection to proceedings in the devolved legislatures.

425Paragraph 23 provides that the IMA must promote the adequate and effective implementation of Part 2 of the Withdrawal Agreement and EEA EFTA Separation Agreement. This could be done, for example, by the IMA exercising its functions in order to identify any potential breaches of Part 2 in the UK and bringing these to the attention of relevant parties. Paragraph 27, for example, obliges the IMA to publish any reports it produces subsequent to an inquiry, as soon as is practicable.

426Paragraph 24 provides that the IMA must have regard to the importance of addressing general or systemic failings in the implementation or application of Part 2.

Inquiries

427Paragraph 25 gives the IMA the power, but not the obligation, to carry out inquiries: in response to a request from a Secretary of State; in response to a request from a Scottish Minister when the request relates to a public authority that is devolved to Scotland; in response to a request from a Welsh Minister when the request relates to an inquiry that is devolved to Wales; in response to a request from the Executive Office in Northern Ireland when the request relates to a public authority that is devolved to Northern Ireland; following a complaint from a person under paragraph 29; or on its own initiative.

428Sub-paragraph (2) defines that the purposes of an inquiry are for the IMA to determine whether the UK has failed to comply with Part 2 or a relevant public authority has acted or is proposing to act in a way that prevents or would prevent a person from exercising a relevant right. The IMA will identify any recommendations it considers appropriate to be made to a relevant public authority to promote the adequate and effective implementation of Part 2.

429Sub-paragraph (3) prohibits the IMA from carrying out an inquiry other than one in response to a request from a Secretary of State (or a Scottish Minister, a Welsh Minister, or the Executive Office in Northern Ireland where the inquiry relates to a public authority that is devolved to their respective nations, as set out in paragraph 25), unless there are reasonable grounds to believe that the inquiry in question may conclude that the UK has failed to comply with Part 2, or that a relevant public authority has acted or is proposing to act in a way that prevents a person exercising a relevant right.

430Sub-paragraphs (4) and (5) give the IMA a discretion not to carry out an inquiry even if the conditions set-out in sub-paragraph (3) are satisfied. This discretion includes where the IMA considers there are no reasonable grounds to believe that an inquiry may identify general or systemic failures in the application of Part 2.

431Paragraph 26 places a duty on the IMA to publish its intention to carry out an inquiry by any means which it considers appropriate.

432Sub-paragraph (2) provides that where an inquiry is about matters raised by a person who has made a complaint regarding a relevant right as defined in paragraph 29(1)(a) or (b), the IMA must invite representations from the complainant, any relevant public authority about which the person is complaining and any other person the IMA considers appropriate (for example a relevant regulatory body).

433Sub-paragraph (3) sets out that in relation to inquiries not prompted by complaints, the IMA must invite representations from any person it considers appropriate. Sub-paragraph (4) requires the IMA to publish how and when people can make representations relating to an inquiry and (5) sets out that the IMA should consider any representations made to it in accordance with sub-paragraph (4) concerning any inquiry.

Reports following an inquiry

434Paragraph 27 requires the IMA to prepare a written report, including its conclusions and any recommendations to be made to a relevant public authority to promote the adequate and effective implementation or application of Part 2 following the conclusion of an inquiry. A report following an inquiry must then be published as soon as is reasonably practicable after preparing it.

435Sub-paragraph (3) places a duty on the IMA to give the Secretary of State an opportunity to require the IMA to remove from a report any material relating to border security or terrorism (including individual cases) that in the Secretary of State’s opinion should not be published on the grounds that its publication would be undesirable for reasons of national security or might jeopardise a person’s safety. For example, it may be necessary to remove information that could compromise or expose an ongoing counter-terrorism investigation.

436Sub-paragraph (4) sets out when an IMA report should be published and to whom it should be sent. A report should be published as soon as is reasonably practicable and must then be sent to:

a.the Secretary of State, the Scottish Ministers, the Welsh Ministers, and the Executive Office of Northern Ireland;

b.any relevant public authority which was invited to make representations in relation to the inquiry;

c.any relevant public authority of which a recommendation is made in the report; and

d.any other relevant public authority the IMA considers appropriate (for example if they have similar responsibilities).

437Paragraph 28 provides that where a report includes recommendations to a relevant public authority, the authority must have regard to the recommendations and publish a response expeditiously and in any event within three months beginning with the day on which the IMA published its report. The public authority must explain what it proposes to do in relation to each recommendation, giving reasons, including if it intends to take no action (for example because an issue identified has already been addressed).

Complaints

438Paragraph 29 allows a person who claims to have relevant right to complain to the IMA where they believe the UK has failed to comply with Part 2 or a relevant public authority has acted or is intending to act in a way that prevents the person from exercising a relevant right.

439Sub-paragraph (2) requires the IMA to carry out a preliminary review of each complaint to decide whether to carry out an inquiry in relation to it. That decision should be informed by sub-paragraph (3) among other relevant considerations.

440Sub-paragraph (3) places a duty on the IMA to consider whether it would be more appropriate to resolve a complaint through alternative means before initiating an inquiry. For example, an individual’s complaint may already be the subject of legal action or amenable to administrative review.

441Sub-paragraph (4) provides that the IMA must inform the relevant person if it decides not to carry out an inquiry. The IMA can advise the relevant person on the alternative ways the matters raised in the complaint can be addressed.

Applying for review or intervening in legal proceedings

442Paragraph 30 gives the IMA the legal interest and standing to (i) institute judicial review proceedings (and equivalent thereof in Scotland); or (ii) intervene in other legal proceedings, where it considers it appropriate to do so in order to promote the adequate and effective implementation or application of Part 2. Sub-paragraph (3) states that this will not create a new legal cause of action.

443Sub-paragraph (4) defines ‘application for review’ in England, Wales and Northern Ireland as an application for judicial review and in Scotland as an application to the supervisory jurisdiction of the Court of Session.

Annual reports for specialised committee etc

444Paragraph 31 places a duty on the IMA to provide annual reports on the implementation and application of Part 2 of the Withdrawal Agreement to the Specialised Committee on Citizens’ Rights (which reports to the Joint Committee established to oversee the Withdrawal Agreement), and annual reports on Part 2 of the EEA EFTA Separation Agreement to the Joint Committee established by that agreement.

445The Specialised Committee on Citizens’ Rights for the Withdrawal Agreement will, under its delegated functions from the Joint Committee, be responsible for supervising the citizens’ rights part of the Withdrawal Agreement. This committee will be composed of representatives from the UK and EU. It will meet at the request of either the UK or the EU and, in any event, once a year.

446The Joint Committee for the EEA EFTA Separation Agreement will be responsible for the implementation and application of this agreement. The Joint Committee will be composed of representatives from the UK and the EEA EFTA states. It too will meet at the request of the UK or of one of the EEA states and, in any event, once a year after the end of the implementation period.

447Sub-paragraph (3) requires the IMA’s annual reports to contain information on measures taken by relevant public authorities to implement or comply with Part 2, the number and nature of complaints made, the exercise of the IMA’s functions in relation to Part 2. Sub-paragraph (4) provides that the annual reports may contain any other information that the IMA considers appropriate.

448Sub-paragraphs (5) and (6) set out the time frames the annual reports must cover. The first annual report will cover the 12-month period starting with IP completion day; subsequent reports will relate to each successive 12-month period.

449Sub-paragraph (7) provides that the annual reports should be sent to the Specialised Committee on Citizens’ Rights and the Joint Committee as soon as is reasonably practicable after the period to which they relate. At the same time, sub-paragraph (8) requires the report be sent to the Secretary of State, Scottish Ministers, Welsh Ministers and the Executive Office in Northern Ireland. This is to provide for domestic, as well as international, accountability.

450Sub-paragraphs (9) and (10) direct the Secretary of State to lay the annual report before Parliament as soon as is practicable and to publish the report as soon as is practicable thereafter.

451Sub-paragraph (11) directs the Scottish Ministers, Welsh Ministers and the Executive Office in Northern Ireland to lay the report before the appropriate devolved legislature as soon as is reasonably practicable after receiving it.

Guidance

452Paragraph 32 requires the IMA to publish guidance on how it intends to perform its functions in relation to paragraphs 22 to 30, in particular how it will give effect to the importance of addressing general or systemic failings in the implementation and application of Part 2. In preparing the guidance, the IMA will have regard to the way the European Commission monitors and enforces citizens’ rights under EU law and any guidance the Commission provides on how it exercises its functions.1 This is in line with the requirement in Article 159 of the Withdrawal Agreement that the IMA have equivalent powers to the European Commission.

453Sub-paragraph (4) provides that the guidance must be first published within three months of the membership of the IMA being constituted (in accordance with paragraph 2(1)).

Gibraltar

454Paragraph 33 places a duty on the IMA to exercise any function the Gibraltar legislature confers on it, where this corresponds to a function which it has in relation to the UK. This has the effect that the IMA will only have roles and responsibilities in Gibraltar that are established through Gibraltar’s legislation, as opposed to the UK legislating on Gibraltar’s behalf.

Supplementary power

455Paragraph 34 gives the IMA the power to do anything it considers necessary or expedient in relation to the exercise of its functions with the exception that the IMA will not be allowed to borrow money or accept gifts of money, land or other property.

Cooperation by relevant public authorities

456Paragraph 35 places a duty on a relevant public authority to comply so far as is reasonably practicable with a request from the IMA to cooperate in the exercise of its functions, including any request to provide information or documents.

1For example ‘EU law: Better results through better application https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN

Part 3: Further Provisions

Disclosure of HMRC’s information

457Paragraph 36(1) permits Her Majesty’s Revenue and Customs (HMRC) to disclose information for the purposes of facilitating the IMA in the exercise of its functions or facilitating the exercise by the Secretary of State or another relevant public authority of functions relating to the IMA.

458Sub-paragraph (2) provides that where information is received by a person for the purposes set out in 36(1), they may not use the information they have received for any other purpose or disclose the information they have received except with the consent of HMRC Commissioners.

459Sub-paragraph (3) provides that the offence of wrongful disclosure under section 19 of the Commissioners for Revenue and Customs Act 2005 will apply where a person discloses information in contravention of sub-paragraph (2) where a person’s identity is specified in the disclosure or can be deduced from it. Sub-paragraph (4) clarifies that these provisions do not limit the circumstances in which information held by HMRC may be disclosed under other applicable statutes or rules of law.

Data Protection and disclosure of information

460Paragraph 37 provides that nothing in the Schedule authorises the making of a disclosure which contravenes the Data Protection Act 2018 or the making of a disclosure which is prohibited by the Investigatory Powers Act 2016.

Removal of IMA’s functions etc

461Paragraph 38(1) provides a power for the Secretary of State to make regulations to modify the functions of the IMA if it appears, having regard to the Withdrawal Agreement and the EEA EFTA Separation Agreement and the relevant provisions of such agreements that concern the ending of the IMA’s functions, that it is no longer necessary for the IMA to exercise functions in relation to Part 2 of the Withdrawal Agreement. This is to reflect the respective Joint Committees’ power under the agreements to decide that the IMA’s functions are no longer required.

462The Secretary of State may also make regulations for the IMA to cease to exist where, having regard to the Withdrawal Agreement and EEA EFTA Separation Agreement, it is no longer needed. As set out in Article 159 of the Withdrawal Agreement and Article 64 of the EEA EFTA Separation Agreement, the joint committees may decide to bring the IMA to an end from eight years after the end of the implementation period.

463Sub-paragraph (2) enables regulations made under sub-paragraph (1) to modify any provision made by or under an enactment, including this Act.

Interpretation

464Paragraph 39 defines ‘civil servant’ as a person employed in the civil service of the state, and sets out the definition for ‘domestic law’. The term ‘devolved legislature’ is defined as the Scottish Parliament, the National Assembly of Wales or the Northern Ireland Assembly. The terms ‘Part 2’ and ‘relevant public authority’ are defined under sub-paragraph 22(3).

465A ‘relevant right’ means a right created or arising under Part 2 of the Withdrawal Agreement or Part 2 of the EEA EFTA Separation Agreement (for example the right to apply for permanent residency if the criteria set out in Part 2 are met). It includes any right arising under Part 2, regardless of the legal means through which that right is given effect – it covers both rights that exist in Part 2 and are made directly effectively through this Bill (by virtue of clauses 5 and 6) and rights that result from the obligations on the UK created by Part 2, but which are given further effect by domestic law (for example, the settled status scheme created under the Immigration Rules). It also includes rights which ‘correspond’ to rights created or arising under Part 2 (but which are not in fact conferred by Part 2) and which are established in domestic legislation which has effect in connection with Part 2. For example, where the settled status scheme is extended to EU or EEA nationals not strictly in the scope of the relevant agreements and those people are accordingly given associated rights such as non-discrimination rights corresponding to those conferred on people directly covered by Part 2, those corresponding rights fall within the definition of ‘relevant right’.

466Sub-paragraph (2) sets out that any references referring to relevant public authorities acting include references to the relevant public authority failing to act.

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