Commons Paper WAB Citizens’ Rights – Brexit

Withdrawal Agreement Bill: Citizens’ rights

October 22, 2019 Melanie Gower, Steven Kennedy

Part 3 of the European Union (Withdrawal Agreement) Bill (the ‘WAB’) gives effect in UK law to the provisions for protecting citizens’ rights in the Withdrawal Agreement (WA), and the similar Separation Agreements with Switzerland and with the EEA EFTA states – Iceland, Liechtenstein and Norway.

(In this Insight, for simplicity where we refer to the WA we’re referring to the agreements collectively, and where we refer to the EU we mean not only the EU27 but also Switzerland and the EEA EFTA states).

The citizens’ rights provisions in the WA set out a framework for the continued legal residence (and associated rights) of EU citizens living in the UK, and UK nationals living in the EU, at the end of the transition (or ‘implementation’) period. Individuals will be able to rely on the WA directly to assert their rights. The provisions apply only to those in a cross-border situation at the end of the transition period (the Explanatory Notes for the WAB refers to them as the ‘protected cohort’).

The rights of those moving between the UK and the EU after the end of the transition period will be the subject of future negotiations – the Political Declaration sets out the broad framework agreed by the UK and EU for future mobility arrangements.

The section on citizens’ rights in the WA is unchanged from the WA previously negotiated by the May Government. Although some provisions may be controversial, citizens’ rights were agreed at a relatively early stage of EU-UK negotiations.

In this Insight we look at the measures in Part 3 of the WAB on citizens’ rights and some issues they raise.

Entry and residence rights

The WA permits either a ‘declaratory’ or ‘constitutive’ system for verifying an individual’s rights. The system introduced by the UK – the EU Settlement Scheme (‘EUSS’) – is ‘constitutive’. This means individuals must successfully apply to the EUSS in order to have the protections set out in the WA.

Certain categories of people with rights under EU law (e.g. ‘Surinder Singh’ cases) are not covered by Part 2 of the WA but have been included in the scope of the EUSS. They are also covered by the provisions in the WAB.

Clauses 7 – 9, which include some ‘Henry VIII’ powers, allow for regulations to implement provisions in the Agreements, including:

a deadline for applications to the EUSS (clause 7)
protections for frontier workers (clause 8)
scope to restrict rights of entry and residence, as per Article 20 of the WA (clause 9)

The WA states that the deadline for applications cannot be less than six months after the end of the transition (or ‘implementation’) period (30 June 2021, unless extended). This is in order to provide a grace period for individuals yet to obtain a post-Brexit status. The Government hasn’t yet officially set out in any detail its intended approach towards people who miss that deadline.

Deportation

Clause 10 amends provisions relating to deportation powers in the Immigration Act 1971 and the automatic deportation regime set out in the UK Borders Act 2007. This reflects provisions in the WA stating that conduct committed before the end of the transition period must still be considered against the higher EU law thresholds for deportation or refusal of right to enter.

A right of appeal

The WA grants a right of appeal against decisions to restrict residence rights.

These are reflected in clause 11 of the Bill which provides a power to make regulations (including Henry VIII powers) granting a right of appeal against certain specified “citizens’ rights immigration decisions”.

The Bill’s Explanatory Notes confirm that the appeals will be to the First-tier Tribunal (Immigration and Asylum Chamber). Onward appeals on a point of law would be for the Upper Tribunal.

Currently, people applying under the EUSS have the right to an administrative review (an internal review of the decision by Home Office staff).

The Immigration and Social Security Coordination (EU Withdrawal) Bill 2019-20, announced in the Queen’s Speech, was already expected to provide a right of appeal against decisions made under the EUSS. That Bill hasn’t been published yet. The Government has previously said that, in the event of a no-deal Brexit, refused EUSS applicants will have the option of administrative review.

Social security co-ordination, and equal treatment

The long-established EU Social Security Co-ordination Regulations provide a reciprocal framework to protect social security rights for people moving between EEA states (and Switzerland). The regulations clarify which state a person is insured in, require equal treatment in access to benefits, allow periods of insurance in different countries to be aggregated, and enable certain benefits to be ‘exported’. A well-established system of administrative co-operation underpins the rules.

The WA allows social security co-ordination to continue to apply to people after the end of the transition period, if they come within the scope of the WA. The UK Government’s Explainer for the previous WA said that this would ensure that people moving between the UK and the EU before the end of the transition period “are not disadvantaged in their access to pensions, benefits, and other forms of social security, including healthcare cover.”

Clause 13 of the WAB provides UK Ministers (and/or in areas of devolved competence a devolved authority) with regulation-making powers (including “Henry VIII” powers) to implement the WA provisions on social security co-ordination, to supplement their effect, and deal with any other related matters. The powers could also be used to implement future changes to the EU co-ordination rules (see the commentary on Article 36(2) of the WA in the Library’s July 2019 briefing, for the UK’s obligations in this regard).

Clause 14 provides regulation-making powers (including, again, ‘Henry VIII’ powers) to ensure that domestic legislation is consistent with the provisions on non-discrimination and equal treatment for persons residing and working in the UK on the basis of the WA. The Explanatory Notes state that the powers could be used, for example, to ensure that EU nationals currently accessing benefits and services can continue to do so on the same basis after the end of the transition period.

Schedule 1 concerns powers of devolved authorities under clauses 12 – 14.

Monitoring and enforcing citizens’ rights

Clause 15 establishes an ‘Independent Monitoring Authority for the Citizens’ Rights Agreements’ (IMA), as per Article 159 of the WA and Article 64 of the EEA EFTA Separation Agreement.

The IMA will monitor the UK’s implementation of the Citizens’ rights parts of the Agreements. The European Commission will perform the same role on behalf of EU Member States in respect of British citizens living in the EU. Like the Commission, the IMA will have authority (but not an obligation) to carry out inquiries in response to requests from the Secretary of State, Ministers of devolved areas, or complaints from individuals who fall within the scope of the Agreements. It can also initiate its own inquiries. The IMA also has the power to intervene in legal proceedings and to apply for judicial review (in Scotland, supervisory jurisdiction of the Court of Session).

The European Commission and IMA must report annually on the implementation and application of the citizens’ rights provisions in the WA, including the number and nature of complaints received.

Schedule 2 contains more detailed provisions for setting up the IMA, its membership and appointment process, functions, and its eventual abolition.

The IMA will be sponsored by the Ministry of Justice. The IMA’s non-executive members are to be appointed by the Secretary of State . They must ensure, “so far as possible”, that they include a member(s) who knows about conditions in Scotland, Wales, Northern Ireland and Gibraltar relevant to the Citizens’ rights part of the WA. The Bill sets out an approval process involving Ministers in the devolved governments, but their disagreement doesn’t automatically block the appointment.

Non-executive members appoint the executive members, including the chief executive. They must consult the Secretary of State before appointing the chief executive. The Secretary of State can appoint an interim chief executive until that appointment takes place.

A stakeholder group has expressed concern that these arrangements may compromise the independence of the IMA.

Article 158 of the WA specifies that UK courts can refer questions about the EU law referred to in the Citizens’ rights part of the WA to the Court of Justice of the European Union (CJEU) for eight years following the end of transition. Where such a reference is made, the CJEU’s interpretation of the relevant provision will be binding. This is provided for by clause 5 of the Bill.

Clause 17 provides the definitions for terms used throughout Part 3 of the Bill.

Entry and residence rights

Deportation

A right of appeal

Social security co-ordination, and equal treatment

Monitoring and enforcing citizens’ rights

Further reading