1.Powers relating to citizens’ rights
Clause 7(1)(a) to (g): powers to make regulations providing for the deadline for applications and temporary protections in respect of the EU Settlement Scheme
Power conferred on: A Minister of the Crown Power exercised by: Regulations made by Statutory Instrument Henry VIII power: Yes Parliamentary Procedure: (1) Negative resolution procedure for deadline power at 7(1)(a), unless amending, repealing or revoking any primary legislation or retained direct principal EU legislation, for which draft affirmative procedure applies; (2) draft affirmative procedure for first set of regulations provided for at 7(1)(b) to (g) and draft affirmative for subsequent regulations that amend, repeal, or revoke primary legislation, or retained direct principal EU legislation; otherwise subject to the negative resolution procedure.
Context and purpose
41. Article 18 of the Withdrawal Agreement provides that a host state may require those residing in its territory and within the scope of that Article to apply for new residence status (‘pre-‐‑settled status’ or ‘settled status’) which confers the rights under Title II of the Withdrawal Agreement (that is, rights related to residence) and a document evidencing such status. Article 19 provides for the issuance of residence documents during the implementation period and that host states may allow for applications for residence status or a residence document to be made voluntarily from the date of the coming into force of the Withdrawal Agreement. Articles 17 and 18 of the EEA EFTA Separation Agreement contain corresponding provisions. Article 16 of the Swiss Citizens’ Rights Agreement also contains a corresponding provision.
42. Under the Agreements, EU citizens, EEA EFTA nationals, and Swiss nationals and their family members who have been lawfully and continuously resident in the UK for five years will be eligible for settled status, which is also referred to as ‘indefinite leave to remain’ in current UK immigration law. EU citizens and their family members who have been lawfully and continuously resident in the UK for less than five years will be eligible for ‘pre-‐‑settled status’, also referred to in UK immigration law as ‘limited leave to remain’. This means that the individual will be granted five years limited leave to remain, and will be eligible to apply for settled status as soon as they have completed1
five years continuous residence in the UK.
43. The EU Settlement Scheme is being provided for under existing UK immigration law (in particular, rules made under section 3 of the Immigration Act 1971).
44. Subsection (1)(a) enables a Minister of the Crown to specify the deadline by which the protected cohort, that is, all persons who may be granted a status under the EU Settlement Scheme, must apply 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. This deadline must not be less than six months from the end of the implementation period. This gives rise to 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 members of the protected cohort who have not yet applied for immigration status under the EU Settlement Scheme.
45. Subsections (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 articles provide for all the rights provided for in the citizens’ rights part of the Agreements to apply to members of the protected cohort who have not yet applied for immigration status under the EU Settlement Scheme during the grace period.
46. Subsections (1)(e), (f) and (g) enable a Minister of the Crown to make regulations to implement Article 18(3) of the Withdrawal Agreement, Article 17(3) of the EEA EFTA Separation Agreement, and Article 16(3) of the Swiss Citizens’ Rights Agreement. Those articles require that, where a person has made an 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.
47. The Government intends that regulations under subsection (1)(b) to (g) will give effect to the relevant provisions in the Agreements by saving the necessary components of the existing regime in the Immigration (European Economic Area) Regulations 2016 that protect the rights of EU citizens, EEA nationals, Swiss nationals, and their family members during the grace period and pending resolution of individual applications for status under the EU Settlement Scheme.
48. Subsections (2) and (3) 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
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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, and are granted leave to enter or remain in the UK by virtue of the residence scheme immigration rules (as defined in clause 17 of the Bill) but who are not covered by the Agreements, such as family members of UK nationals who benefit from the Surinder Singh principle8.
49. Subsection (4) provides that the power to make regulations under this section may be exercised to modify any provision made by or under an enactment (this is therefore a so called ‘Henry VIII’ power).
50. This power may also be used to give effect to Joint Committee decisions amending certain parts of the Withdrawal Agreement, and the EEA EFTA Separation Agreement within the scope of the particular matters that this power is intended to address9.
51. Subsection (3) of clause 16 provides that regulations made under this power may not provide for the conferral of functions (including the conferral of a discretion) on, or the delegation of functions to, a person who is not a public authority (but may so provide if the person is a public authority).
Justification for the power
52. Implementation of Article 18 of the Withdrawal Agreement, Article 17 of the EEA EFTA Separation Agreement, and Article 16 of the Swiss Citizens’ Rights Agreement will involve significant technical detail. In particular, preserving the rights of those who have not yet made an application for immigration status during the grace period, and those whose application has not yet been determined, will involve detailed legislative provision. Such provision is currently set out in secondary legislation (the EEA Regulations 2016).
53. Article 18(1)(b) of the Withdrawal Agreement, and the corresponding provisions in the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement, specify that the deadline for submitting applications shall not be less than six months from the
8 SSurinder Singh (C-‐‑370/90 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. 9The Joint Committees may only adopt amendments to parts of the Agreements other than Parts One, Four and Six where such amendments are necessary to correct errors, address omissions or other deficiencies, or to address situations unforeseen when the Agreements were signed. Any such amendments may not amend the essential elements of the Agreements.
end of the implementation period (the ‘grace period’). However, there is a specific option in Article 18(1)(c) of the Withdrawal Agreement, and corresponding provisions in the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement, to extend the grace period, in addition to the general ability in Article 38 to make more favourable provisions. So, while we expect the grace period to expire six months from the end of the implementation period, it is prudent to provide the flexibility for an alternative date to be set, in line with the flexibility provided for in the Agreements.
54. The power at 7(1)(b) to (g) will be used to preserve the rights of those who have not made an application for immigration status during the grace period, and for those whose application has not yet been determined. Experience indicates that it may be necessary to modify the savings provision on a relatively frequent basis. For example, the EEA Regulations 2016 have been amended three times since they were made to respond to domestic legislative changes and developments in CJEU case law. Taking a power provides the scope to make appropriate savings, to make technical amendments as and when required and to respond to domestic and CJEU judgments on the interpretation of the citizens’ rights provisions of the Agreements, including the EU Settlement Scheme.
55. The clause is limited to making such provision as appropriate for implementing Articles 18 and 19 of the Withdrawal Agreement and equivalent provisions in the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement, that is, ensuring that certain substantive procedural powers and protections under Directive 2004/38/EC (and equivalent provision in respect of Switzerland) continue to apply. Directive 2004/38/EC has already been transposed in the UK via the EEA Regulations 2016.
56. Furthermore, any provisions made under the power in connection with restrictions on citizens’ rights will have to comply with the Articles 20 and 21 of the Withdrawal Agreement and the corresponding provisions in the EEA EFTA Separation Agreement (Articles 19 and 20), and the Swiss Citizens’ Rights Agreement (Article 17).
57. While the main detail of the immigration rights of EEA and Swiss nationals is currently set out in secondary legislation (the EEA Regulations 2016), it is supported by a large volume of primary legislation. It will be necessary to modify this primary legislation to make effective provision for the protected cohort during the grace period pending the resolution of their applications under the EU Settlement Scheme.
58. For example, section 7 of the Immigration Act 1988 provides that those with a right under EU law or under regulations made under section 2(2) of the European Communities Act 1972 (for example the EEA Regulations 2016) to enter or reside in the UK do not need leave to enter or reside. This is a key provision that ensures that those with rights under the EEA Regulations 2016 do not also require leave to enter or remain in the UK. It will be necessary to modify this provision to implement Article 18(2) and (3) of the Withdrawal Agreement, Article 17(2) and (3) of the EEA EFTA Separation Agreement, and Article 16(2) and (3) of the Swiss Citizens’ Rights Agreement.
59. Although the aforementioned powers are capable of amending primary legislation (in particular, the Immigration Act 1971, and the Nationality, Immigration, and Asylum Act 2002), the scope of the amendments that may be made are naturally constrained by the narrow scope of what may be done under the power.
Justification for the procedure
60. Paragraph 1 of Part 1, Schedule 5 provides for the parliamentary procedure applicable in respect of the exercise of these powers.
61. The power at 7(1)(a) to set a deadline for the submission of applications will be subject to the negative resolution procedure (unless it is used to amend, repeal, or revoke primary legislation or retained direct principal EU legislation).
62. The powers in clause 7(1)(b) to (g) will be used to preserve the rights of the protected cohort during the grace period. The first set of regulations to be made under the powers in clause 7(1)(b) to (g) are likely to be substantial and detailed. The first use of these powers is therefore subject to the draft affirmative procedure. The first set of regulations will, for example, provide that provisions in the EEA Regulations 2016 in relation to residence rights, powers in relation to refusal of admission and removal, procedures in relation to appeals and documentation continue to apply to the protected cohort during the grace period and pending the determination of any application to the EU Settlement Scheme. The main detail of the residence rights of EU citizens and EEA EFTA and Swiss nationals is currently contained in secondary legislation (the EEA Regulations 2016). However, this is underpinned by primary legislation, in particular the Immigration Acts.10
63. Thereafter, any changes are likely to be technical and minor. For example, consequential changes may be needed to reflect changes to domestic legislation as a consequence of developments in CJEU case law which is relevant to this area. The Government notes that at present the rights of EU citizens and EEA EFTA and Swiss nationals and their family members are provided for by regulations made under the
10 ‘The Immigration Acts’ is the defined term for a body of immigration legislation, as defined in Schedule 1 to the Interpretation Act 1978.
negative procedure (the EEA Regulations 2016). However, if this power is ever exercised for the purpose of amending or repealing primary legislation or retained direct principal EU legislation, the draft affirmative procedure shall apply, to provide for appropriate scrutiny for these types of amendments.
Clause 8(1) and (2): powers to make provision in regulations in respect of frontier workers
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Draft affirmative procedure for first set of regulations or if exercise of either power involves making regulations which are intended to amend, repeal or revoke any primary legislation or retained direct principal EU legislation; otherwise negative resolution procedure.
Context and purpose
64. Frontier workers are EU citizens, EEA EFTA nationals or Swiss nationals who are economically active, but not resident, in the UK. This clause provides for the protections of their rights where they are working in the UK at the end of the implementation period, in line with the Agreements. Under the Common Travel Area, 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 to work in and enter the UK11.
65. 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 provide for the rights of employed and self-‐‑employed frontier workers to enter and exit the state of work and to retain their status in certain circumstances to recover from an illness or accident or to allow them to find new employment in the state of work. These rights are currently underpinned by section 7 of the Immigration Act 1988 (‘the 1988 Act’) which exempts EU citizens, EEA EFTA nationals and Swiss nationals from UK immigration control, and in the EEA Regulations 2016 which transpose EU law relating to the free movement of persons. The planned Immigration and Social Security Co-‐‑ordination (EU Withdrawal) Bill will disapply section 7 of the 1988 Act and the EEA Regulations 2016, so these rights will need to be set out afresh in domestic legislation.
11 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.
66. Article 26 of the Withdrawal Agreement, Article 25 of the EEA EFTA Separation Agreement and Articles 21(1)(a) and (2) of the Swiss Citizens’ Rights Agreement permit the state of work to require EU citizens, EEA EFTA nationals and Swiss nationals who have rights as frontier workers under the Agreements to apply for a document certifying their rights.
67. Subsection (1) provides Ministers of the Crown with a power to make secondary legislation for the purpose of implementing Articles 24(3) and 25(3) of the Withdrawal Agreement and equivalent provisions in the EEA EFTA Separation Agreement (Article 23(3) and 24(3)) and the Swiss Citizens’ Rights Agreement (Article 20(2)) concerning the 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.
68. Subsection (2) provides for a power to make secondary legislation 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 Separation Agreement. These provisions allow for a permit system that can be used to certify EU citizens, EEA EFTA nationals and Swiss nationals as frontier workers in the UK after the end of the implementation period.
69. Subsection (3) provides that the power to make regulations under subsection (1) or (2) may be exercised by modifying any provision made by or under the Immigration Acts, as defined in Schedule 1 of the Interpretation Act 1978 (this is therefore a so called ‘Henry VIII’ power).
70. This power may also be used to give effect to Joint Committee decisions amending certain parts of the Withdrawal Agreement, and the EEA EFTA Separation Agreement, within the scope of the particular matters that this power is intended to address12.
71. Subsection (3) of clause 16 provides that regulations made under this power may not provide for the conferral of functions (including the conferral of a discretion) on, or the delegation of functions to, a person who is not a public authority (but may so provide if the person is a public authority).
Justification for powers
12The Joint Committees may only adopt amendments to parts of the Agreements other than Parts One, Four and Six where such amendments are necessary to correct errors, address omissions or other deficiencies, or to address situations unforeseen when the Agreements were signed. Any such amendments may not amend the essential elements of the Agreements.
72. It is proposed that the frontier worker provisions in Articles 24(3), 25(3) and 26 of the Withdrawal Agreement and relevant equivalent provisions in the EEA EFTA Separation Agreement (Articles 23(3), 24(3) and 25) and the Swiss Citizens’ Rights Agreement (Articles 20(2) and 21(1)(a) and (2)) should be implemented in secondary legislation because the detail will be highly technical. An example of this technical detail is the definition of when a person retains the status of a worker, such as the result of illness or an accident. This can be seen in the EEA Regulations 2016 which currently implement most of these rights as they exist now. Further, implementing in secondary legislation means necessary amendments can be made more quickly, ensuring the UK’s compliance with its international obligations as early as possible. With regard to amending primary legislation, the Government considers that the use of delegated powers is justified in the context of the limited scope of what the powers can do, that is, to implement Articles 24(3), 25(3) and 26 of the Withdrawal Agreement, Articles 23(3, 24(3) and 25 of the EEA EFTA Separation Agreement, and Articles 20(2) and 21(1)(a) and (2) of the Swiss Citizens’ Rights Agreement. This power is limited in that it may only be used to amend provisions made by or under the Immigration Acts.
73. The frontier worker provisions need to include the continued exemption from immigration control, the right of entry, and the procedures relating to the application process for documents certifying frontier worker status and the issuance and renewal of such documents. The latter will be a detailed technical regime.
74. Further, any of these provisions may require amendment in the future in light of jurisprudence from the CJEU, either by the end of the implementation period (for matters relating to frontier workers under EU law) or by 31 December 2028 (for matters relating to frontier workers in the Withdrawal Agreement).
75. Some restrictions on the rights of frontier workers as permitted by the Agreements will be set out in the same secondary legislation, but using the power in clause 9 (for example, the restriction on the right of entry). Other restrictions will be set out in existing instruments, either in the 2016 Regulations by virtue of savings provisions or in primary legislation (for example, the Immigration Act 1971 and the UK Borders Act 2007 which set out the framework for deportation).
Justification for procedure
76. Paragraph 1 of Part 1 of Schedule 5 provides for the parliamentary procedure applicable in respect of the exercise of these powers.
77. The first set of regulations made under the power at clause 8(1) are likely to be substantive and detailed, setting out the rights of employed and self-‐‑employed frontier
workers. The first set of regulations made under this power will therefore be subject to the draft affirmative procedure. Any subsequent regulations made under this power will be for the purpose of making minor technical amendments or corrections to the first set of regulations. For this reason, subsequent regulations will be subject to the negative resolution procedure, unless those regulations amend, repeal or revoke primary legislation or retained direct principal EU legislation, in which case the draft affirmative procedure will apply to provide appropriate scrutiny of the proposed legislation.
78. Exercise of the power at clause 8(2) will be subject to the negative procedure, unless the power is exercised to amend, repeal or revoke primary legislation or retained direct principal EU legislation, in which case the draft affirmative procedure will apply. There is precedent for the proposed approach: current registration schemes under EEA Regulations 2016 are made under the negative procedure. Subsequent regulations will only need to deal with technical matters such as those necessary to give effect domestically to decisions of the CJEU for the time-‐‑limited period that the CJEU has jurisdiction in respect of the citizens’ rights parts of the Withdrawal Agreement.
Clause 9(1): power to provide for restrictions of rights of entry and residence
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Draft affirmative procedure for first set of regulations, and for subsequent regulations which amend, repeal or revoke primary legislation or retained direct principal EU legislation; otherwise negative resolution procedure.
Context and purpose
79. Article 20 of the Withdrawal Agreement and relevant equivalent provisions at Article 19 of the EEA EFTA Separation Agreement, and Articles 17 and 20(3) of the Swiss Citizens’ Rights Agreement establish the legal basis on which a person’s entry and residence rights under the Agreements can be restricted.
80. Article 20(1) of the Withdrawal Agreement and its equivalent provisions at Article 19(1) of the EEA EFTA Separation Agreement provide that conduct before the end of the implementation period of persons in scope must be considered in accordance with Chapter VI of Directive 2004/38/EC. Article 17(1) of the Swiss Citizens’ Rights Agreement requires that conduct before the end of the implementation period of persons in scope shall be considered in accordance with Article 5 of Annex 1 to the EU-‐‑ Swiss Free Movement of Persons Agreement (‘FMOPA’). This means that the relevant public policy, public security or public health test under the Directive and FMOPA (i.e. the existing EU law test for restrictions of entry and residence) is to be applied to conduct by EU citizens, EEA EFTA nationals, and Swiss nationals and their family members committed before the end of the implementation period. Article 20(2) of the Withdrawal Agreement provides that conduct after the end of the implementation period is to be considered in accordance with national law. Article 20(3) provides that the UK may refuse, terminate or withdraw entry and residence rights in the case of abuse of those rights or fraud as set out at Article 35 of Directive 2004/38/EC. Article 20(4) provides for the removal of applicants who submit fraudulent or abusive applications under the conditions set out in Directive 2004/38/EC and even before final judgment where judicial redress is sought. Similar provisions are included in the EEA EFTA Separation Agreement (Article 19) and the Swiss Citizens’ Rights Agreement (Articles 17 and 20(3)).
81. This clause gives Ministers of the Crown the power to make regulations for the purpose of implementing the relevant provisions in the Agreements in connection with restrictions on entry and residence rights based on conduct committed before the end of the implementation period or on the grounds of fraud or abuse of rights. In particular it enables Ministers to ensure that decisions to restrict entry or residence rights based on conduct before the end of the implementation period can be made by applying the relevant public policy, public security or public health test. The power can be exercised, among other things, by saving the current provisions for removal and exclusion of EU citizens, EEA EFTA and Swiss nationals within EEA Regulations 2016 to the extent necessary to ensure those provisions continue to apply in relation to conduct before the end of the implementation period.
82. Subsection (1) provides the power to make regulations to implement 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.
83. Subsection (2) provides that regulations under subsection (1) can be applied to: a. persons to whom a provision identified in subsection (1) applies; and b. persons to whom those provisions do not apply, but who are otherwise protected by the UK’s domestic implementation of the Agreements i.e. they have been granted leave to enter or remain under the EU Settlement Scheme, as well as 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.
84. Subsection (3) provides that references to a person who has entry clearance or leave to enter or remain in sub-‐‑section 2(b) 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.
85. Subsection (4) provides that the power to make regulations under this clause may be exercised by modifying any provision made by or under the Immigration Acts (see the definition in s.61 of the UK Borders Act 2007) or any subordinate legislation made under any other primary legislation. This is therefore a so called ‘Henry VIII’ power but limited only to the modification of the Immigration Acts, not wider primary legislation.
86. This power may also be used to give effect to Joint Committee decisions amending Parts of the Withdrawal Agreement, and the EEA EFTA Separation Agreement, within the scope of the particular matters that this power is intended to address13.
87. Subsection (3) of clause 16 provides that regulations made under this power may not provide for the conferral of functions (including the conferral of a discretion) on, or the delegation of functions to, a person who is not a public authority (but may so provide if the person is a public authority).
Justification for taking the power
88. Implementing Article 20 of the Withdrawal Agreement, Article 19 of the EEA EFTA Separation Agreement, and Articles 17 and 20(3) of the Swiss Citizens’ Rights Agreement will involve significant technical detail. The volume and nature of the amendments required make them well suited to secondary legislation. Taking a power allows the Government to make appropriate savings, to make technical amendments as and when required and to quickly respond to domestic and CJEU judgments in coming years on the interpretation of the citizens’ rights provisions of the Withdrawal Agreements. Without a power, the Government would not be able to respond quickly to ensure correct implementation of its international obligations under the Agreements.
89. The clause is limited to the provisions of the Agreements on restrictions on rights of entry and residence, that is, ensuring that certain substantive and procedural protections under Directive 2004/38/EC (and equivalent provision in respect of Switzerland) continue to apply. Directive 2004/38/EC has already been transposed in the UK via the EEA Regulations 2016. The ability to modify primary legislation is further constrained to modification of the Immigration Acts only.
90. Any provisions made under the power in connection with restrictions on citizens’ rights will have to comply with the terms of the Agreements. The Independent Monitoring Authority (‘IMA’) will oversee the UK’s implementation of the citizens’ rights provisions in the Withdrawal Agreement and the EEA EFTA Separation Agreement. The power can be used to make technical amendments in response to IMA reports.
13The Joint Committees may only adopt amendments to parts of the Agreements other than Parts One, Four and Six where such amendments are necessary to correct errors, address omissions or other deficiencies, or to address situations unforeseen when the Agreements were signed. Any such amendments may not amend the essential elements of the Agreements.
91. This power can only be used in a way that provides protection in respect of the restriction of entry and residence rights for people in scope; it cannot be used in wider ways which act to their detriment.
Justification for procedure
92. Paragraph 1 of Part 1, Schedule 5 provides for the parliamentary procedure applicable to the exercise of this power.
93. The first set of regulations made under the power is subject to the draft affirmative procedure because the first set of regulations will be substantive and detailed, setting out how and when a person’s admission and residence rights can be restricted. Any subsequent regulations will be used to make technical amendments and corrections, and therefore the negative resolution procedure will apply for subsequent regulations, unless those regulations amend, repeal or revoke primary legislation or retained direct principal EU legislation, in which case the draft affirmative procedure will apply, to provide appropriate scrutiny of the proposed legislation.
94. The procedure provided for by this clause is based on the procedure under which the current restrictions provisions deriving from EU law were made. There is precedent for use of the negative procedure for subsequent regulations of this nature. The current provisions governing when and how a person’s EEA admission and residence rights can be restricted were made within the EEA Regulations 2016, by negative statutory instrument under section 2(2) of the ECA. They transpose powers and obligations within Directive 2004/38/EC.
95. The exercise of the power may include modifying any provision made by or under the Immigration Acts, as defined in Schedule 1 of the Interpretation Act 1978, or any provision made under other primary legislation. Where subsequent regulations are made for the purpose of amending or repealing a provision of the Immigration Acts, the draft affirmative procedure will be adopted.
Clause 11(1): power to make provision for appeals against citizens’ rights immigration decisions
Power conferred on: A Minister of the Crown
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Made affirmative procedure for the first regulations. Draft affirmative for subsequent regulations which amend, repeal or revoke primary legislation, or retained direct principal EU legislation; otherwise subject to the negative resolution procedure.
Context and purpose
96. Articles 18 and 21 of the Withdrawal Agreement provide the right to judicial redress in respect of decisions refusing to grant residence status under the EU Settlement Scheme or to restrict residence rights of persons protected by the Withdrawal Agreement. Corresponding obligations exist under the EEA EFTA Separation Agreement at Articles 17 and 20.
97. Further, the effect of Article 20 of the Withdrawal Agreement (and the corresponding provision at Article 19 in 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 planned course of healthcare treatment under Article 32 of the Withdrawal Agreement (and the corresponding provision at Article 31 of the EEA EFTA Separation Agreement).
98. Article 8 of the Swiss Citizens’ Rights Agreement provides for similar rights of judicial redress.
99. This clause provides a Minister of the Crown with a power to make regulations to make provision for, or in connection with, appeals against citizens’ rights immigration decisions, defined in subsection (2) of the clause as: 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 (as defined in subsection (5)); d. a decision made in connection with or leave to enter or remain in relation to a healthcare right of entry (as defined in subsection (5)); 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.
100.This power may also be used to make provision for, or in connection with, reviews (including judicial reviews) of decisions within (2)(g).
101.This power may also be used to give effect to Joint Committee decisions amending parts of the Withdrawal Agreement, and the EEA EFTA Separation Agreement, within the scope of the particular matters that this power is intended to address14.
102.Subsection (1) provides that a Minister of the Crown may by regulations make provision for, or in connection with, appeals against citizens’ rights immigration decisions.
103.The Government intends that regulations under this power will make provision for appeals to be made 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.
104.Subsection (2) defines the ‘citizens’ rights immigration decisions’ in connection with which a Minister of the Crown may make appeals regulations under this clause.
105.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 (2)(g).
106.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.
14The joint committees may only adopt amendments to parts of the Agreements other than Parts One, Four and Six where such amendments are necessary to correct errors, address omissions or other deficiencies, or to address situations unforeseen when the Agreements were signed. Any such amendments may not amend the essential elements of the Agreements.
107.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.
108.Subsection (6) defines a ‘relevant person’ for the purposes of subsections (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 the person does 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. 109.Subsection (7) provides 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.
110.Subsection (3) of clause 16 provides that regulations made under this power may not provide for the conferral of functions (including the conferral of a discretion) on, or the delegation of functions to a person who is not a public authority (but may so provide if the person is a public authority).
Justification for taking the power
111.There is a high level of technical detail involved in drafting appeal rights which will need to cover a wide range of different cohorts and a variety of decisions. Taking a power provides scope and flexibility to make technical amendments, better suited to being made by secondary legislation rather than requiring primary legislation, and to respond to domestic and CJEU judgments on the interpretation of the citizens’ rights provisions of the Withdrawal Agreement. Future uses of this power may arise in light of evolving interpretation of the Agreements, such as following investigation by the IMA. This power will ensure that the Government can respond by providing for any amendments required to ensure the UK’s ongoing compliance with its international obligations.
112.Taking a power is also consistent with the approach taken at section 109 of the Nationality, Immigration and Asylum Act 2002, under which the appeals provisions
are made in respect of a person who has or claims to have a right under any of the EU Treaties. This is the power that was used to create the appeal rights within the EEA Regulations 2016. The scope of the proposed power is wider than that included in section 109 of the Nationality, Immigration and Asylum Act 2002. This allows, for example, provision to be made in connection with section 3C of the Immigration Act 1971 to ensure leave can be extended while an appeal under the regulations is pending.
113.Subsection (4) provides that regulations under this section may modify any provision made by or under an enactment, including primary legislation. Where, for example, the regulations provide under subsection (1) for a power to certify a decision to deport, subsection (4) will allow any necessary amendment to be made to the Nationality, Immigration and Asylum Act 2002 regarding the effect of certification.
114.Regulations made under this power will have to comply with the protections built into the terms of the Agreements. Further, the IMA will oversee the UK’s implementation of the Withdrawal Agreement and the EEA EFTA Separation Agreement on citizens’ rights, including whether the right of appeal is properly legislated for.
Justification for procedure
115.Paragraph 2 of Part 1, Schedule 5 provides for the parliamentary procedure in respect of these powers.
116.The first regulations made under this power are subject to the made affirmative procedure, which will allow the power to be exercised so that regulations made under it are effective immediately. This approach is being taken to ensure that the UK is able to fully comply with its obligations when the Agreements come into force by providing for the availability of judicial redress relating to those citizens’ rights immigration decisions which need to be in place from that date. Under the made affirmative procedure the regulations will cease to have effect unless an affirmative resolution is received within the 40 day period of having been laid, thus ensuring Parliament must debate and approve the SI to allow it to remain in force, while allowing for operational functionality at the earliest opportunity.
117.Any subsequent regulations will be used to make technical amendments and corrections, or where appeal rights need to be added to be in place at the end of the implementation period, and therefore the negative resolution procedure will apply for subsequent regulations, unless those regulations amend, repeal or revoke primary legislation or retained direct principal EU legislation, in which case the draft affirmative procedure will apply, to provide appropriate scrutiny of the proposed legislation.
118.There is precedent for the approach of providing regulation-‐‑making powers under the negative procedure for appeals provisions, as regulations concerning current EEA appeals made under section 109 of the Nationality, Immigration and Asylum Act 2002 are made using the negative procedure.
119.The power does not provide the Government with the ability to change existing appeals legislation except in so far as provision is made for, or in connection with, appeals against citizens’ rights immigration decisions, and the review of decisions to restrict the entry rights to the UK of relevant persons, as provided for in the Bill. In the event that the power is used to amend, repeal or revoke primary legislation or retained direct principal EU legislation in subsequent regulations, the draft affirmative procedure will be used.
Clause 12(1): recognition of professional qualifications
Power conferred on: A Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Draft affirmative where amending, repealing or revoking primary legislation or retained direct principal EU legislation; otherwise subject to the negative resolution procedure.
Context and purpose
120.This clause gives Ministers of the Crown and devolved authorities the power to make regulations to implement Chapter 3 of Title II of Part 2 of the Withdrawal Agreement (Professional Qualifications) and the relevant provisions of the EEA EFTA Separation Agreement (Article 26, 27 and 28) and the Swiss Citizens’ Rights Agreement (Article 23(4) so far as relates to recognition of professional qualifications and all Articles under Part 4).
121.This will ensure that EU citizens and EEA EFTA nationals who are resident or frontier working in the UK, who hold professional qualifications which have been recognised, or are in the process of being recognised, by a UK professional regulator before the end of the implementation period, will continue to have their qualifications recognised in the UK. The clause allows these provisions to be extended to those in scope of the EU Settlement Scheme.
122.Under the Swiss Citizens’ Rights Agreement, Swiss nationals who hold professional qualifications which have been recognised, or are in the process of being recognised, by a UK professional regulator before the end of the four year period following the end of the implementation period will continue to have their qualifications recognised, so long as the individual had obtained, or was in the process of obtaining, a qualification before the end of the implementation period. 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.
123. The effects of these recognition decisions will remain the same as when the UK was a Member State – for example, entitling the holder of the recognition decision to practise the profession under the same conditions as UK nationals and allowing those who have been granted ‘partial access’ to a profession to retain this status. Article 39 of the Withdrawal Agreement provides that this recognition will be for the lifetime of the professional. The equivalent provision is found at Article 37 of the EEA EFTA Separation Agreement, and Article 4 of the Swiss Citizens’ Rights Agreement.
124. For the purpose of this clause, the devolved authorities are the Scottish Ministers, the Welsh Ministers and Northern Ireland departments.
125.For EU citizens and EEA EFTA nationals this clause applies to decisions made under UK legislation that implements the following provisions of EU law: a. Title III of Directive 2005/36/EC; b. Articles 10(1) and (3) of Directive 98/5/EC; c. Article 14 of Directive 2006/43/EC; and d. Council Directive 74/556/EEC.
126.For Swiss nationals, this clause applies to decisions made under UK legislation that implements the following provisions of EU law: a. Title III of Directive 2005/36/EC; b. Directive 98/5/EC; c. Council Directive 77/249/EEC; d. Council Directive 74/556/EEC; and e. Council Directive 86/653/EEC.
127.The Withdrawal Agreement and EEA EFTA Separation Agreement only make provision for the purposes of establishment, and not where recognition was made 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).
128.Subsection (1) provides that the power may be used 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 (inserted by clause 5 of theBill) in relation to that Chapter, and to deal with matters arising out of, or related to that Chapter.
129.Subsection (2) provides that the power may be used 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.
130.Subsection (3) provides that the power may be used 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.
131.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).
132.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 UK under the residence scheme immigration rules (see clause 17).
133.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 (as defined at clause 7(1)) but subsection (7) provides that primary legislation passed or made after IP completion day is not caught by subsection (6).
134.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.
135.Subsection (9) references Schedule 1 which makes further provision about the powers of the devolved authorities to make regulations under this clause.
136.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 particular matters that this power is intended to address.
137.Subsection (3) of clause 16 provides that regulations made under this power may not provide for the conferral of functions (including the conferral of a discretion) on, or the delegation of functions to, a person who is not a public authority (but may so provide if the person is a public authority).
Justification for taking the power
138.The power to make regulations may be exercised to amend primary and secondary legislation. However, the power is limited in that it can only amend primary legislation that relates to the implementation of the directives referred to in the Agreements (see above) and only in relation to persons in the scope of the Agreements or those granted leave to enter or remain under residence scheme immigration rules. Under the Swiss Citizens’ Rights Agreement recognition of qualifications held by Swiss nationals is not dependent on individuals being resident or frontier workers in the UK.
139.Amendments will mainly be technical in nature to give effect to the provisions in the Agreement. The purpose of any amendments will be primarily to facilitate the conclusion and winding up of the current system for recognition of professional qualifications. The power cannot be exercised to modify primary legislation passed after the end of the implementation period.
140.There is precedent in that parts of the Professional Qualifications Directive (2005/36/EC, as amended by 2013/55/EU) are implemented by amendments to primary legislation made by regulations under section 2(2) of the ECA (see, for example, European Qualifications (Health and Social Care Professions) Regulations 2016, which amends the Medical Act 1983 and the Dentists Act 1984).
141.The legislation that needs to be amended will include devolved secondary legislation and so a concurrent power has been conferred on the devolved authorities, to make regulations when it is within their competence to do so. The UK Government will not normally use the power in areas of devolved competence without the agreement of the relevant devolved authority.
Justification for procedure
142.Where the power to make regulations is used to modify primary legislation or retained direct principal EU legislation, the draft affirmative procedure will apply, otherwise the negative resolution procedure will apply. The purpose of regulations made under the negative procedure will be to give effect to the provisions in the Agreements. The scope of these provisions is constrained by the Agreements themselves and by the scope of the power itself. Where amendments are required to primary legislation or retained direct principal EU legislation, the draft affirmative procedure is adopted to provide for appropriate scrutiny of the proposed legislation. The devolved authorities have been consulted on the equivalent scrutiny procedures which apply in respect of their exercise of the power.
Clause 13(1): coordination of social security systems
Power conferred on: A Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Draft affirmative where amending, repealing or revoking primary legislation, or retained direct principal EU legislation; otherwise subject to the negative resolution procedure.
Context and purpose
143.Clauses 5 and 6 will ensure that EU Regulations 883/2004 and 987/200915 which govern social security coordination will continue to apply in domestic law as provided for by the Agreements. This includes future updates to these Regulations, which will be added to the relevant Annexes of the Agreements by the Joint Committees.16 This power is required to supplement the effect of those updates flowing through clauses 5 and 6 for those individuals within scope of Title III of Part 2 of the Withdrawal Agreement, Title III of Part 2 of the EEA EFTA Separation Agreement, and Part Three and Article 23(4) of the Swiss Citizens’ Rights Agreement.
144.The EU social security coordination regulations, as an overarching aim, protect the social security position of persons who have exercised their free movement rights within the EU. They do this in a number of ways, ensuring the equal treatment of UK nationals and EU citizens, and coordinating the application of different Member States’ social security systems to avoid conflict or duplication. They also provide for the aggregation of periods of work, insurance (National Insurance Contributions (NICs) 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’).
145.For instance, the EU regulations ensure that a worker (and their employer) or a self-‐‑ employed worker are only required to pay contributions into one Member State’s
15 EU Regulations 1408/71 and 574/72 will apply to nationals of third countries in situations covered by Title III.
16 Joint Committees established by Article 164 of the Withdrawal Agreement, Article 65 of the EEA EFTA Separation Agreement, Article 6 of the Swiss Citizens’ Rights Agreement.
social security scheme at a time and determines 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 healthcare, and equivalent rights for healthcare cover in Member States, reimbursed by the UK.
146.These rules also apply to the EEA States via the EEA Agreement, and Switzerland via the Free Movement of Persons Agreement (FMOPA).
147.Clause 13 provides Ministers of the Crown and devolved authorities (separately or jointly) with a power to modify domestic legislation to implement Title III of Part 2 of the Withdrawal Agreement, Title III of Part 2 of the EEA EFTA Separation Agreement, and Part 3 and Article 23(4) of the Swiss Citizens’ Rights Agreement. It will enable Ministers of the Crown and devolved authorities to supplement the effect of the direct application of these EU Regulations into domestic law, for example through remedying any unforeseen inconsistencies with domestic legislation which may occur and give rise to unfair treatment. It also allows Ministers of the Crown and devolved authorities to make provision otherwise for the purposes of dealing with matters arising out of, or related to, that Title. The UK Government will not normally use the power in areas of devolved competence without the consent of the relevant devolved administration. For the purpose of this clause, the devolved authorities are the Scottish Ministers and Northern Ireland departments.
Social security in Wales is a reserved matter.
148.This power will also be available to update domestic legislation to reflect future changes to the EU Regulations that take effect in domestic law under the Withdrawal Agreement. This will ensure that the UK can react to future changes and continue to meet its obligations under the Withdrawal Agreement. This will also allow the UK to implement, where required, interpretations of Union law by the CJEU and allow the UK to reflect decisions of the Administrative Commission17 that the UK wishes to accept as an accurate interpretation of matters under the coordination regulations.
149.Subsection (1) enables an ‘appropriate authority’ to make regulations to implement Title III of Part 2 of the Withdrawal Agreement, to supplement the effect of section 7A of the EU (Withdrawal) Act 2018 (inserted by clause 5 of the Bill), or to deal with matters arising out of or related to Title III of Part 2 of the Withdrawal Agreement. Subsections (2) and (3) contain equivalent provisions to be made in respect of Article
17 The Administrative Commission is responsible for dealing with administrative matters and questions of interpretation arising from the provisions of regulations on social security coordination. Decisions of the Commission are not legally binding.
7B of the EU (Withdrawal) Act 2018 for the EEA EFTA Separation Agreement and Swiss Citizens’ Rights Agreement respectively.
150.Subsection (4) defines which provisions in the Swiss Citizens’ Rights Agreement are ‘social security co-‐‑ordination provisions’.
151.Subsection (5) states that the power to make regulations under this section may, among other things, be exercised by modifying any provision made by or under an enactment (this is therefore a so called ‘Henry VIII’ power).
152.Subsection (6) defines an ‘appropriate authority’ as a Minister of the Crown, a devolved authority, or a Minister of the Crown acting jointly with a devolved authority.
153.Subsection (7) sets out that Schedule 1 contains further provision on the use of these powers by the devolved authorities.
154.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 Committees falling within the scope of the particular matters that this power is intended to address.
155.Subsection (3) of clause 16 provides that regulations made under this power may not provide for the conferral of functions (including the conferral of a discretion) on, or the delegation of functions to, a person who is not a public authority (but may so provide if the person is a public authority). Regulations that confer or delegate functions on a public authority may require amendments to existing legislation which refers to that public authority. For example, where ensuring that NHS bodies may continue to process reciprocal healthcare entitlements on a UK-‐‑wide basis.
Justification for taking the power
156.The interaction of the Agreements with existing and future domestic legislation has the potential to undermine the legal certainty of individuals rights to entitlements under the Agreements, or give rise to unexpected consequences for individuals or groups. There may be interactions between the Agreements and bilateral social security agreements that the UK may wish to enter into in the future, in relation to which domestic legislative provision needs to be made. The use of delegated legislation to rectify any unintended effects, or any inconsistencies in the domestic statute book, that could give rise to unfair treatment will ensure that the Government can respond as appropriate. This will ensure that the terms of the Agreements are fully implemented in domestic law at both the end of the implementation period and in the future. The power is constrained in that it may only be used in relation to implementation of Title III of Part 2 of the Withdrawal Agreement, Title III of Part 2 of the EEA EFTA Separation Agreement and Part 3 of the Swiss Citizens’ Rights Agreement or to supplement the effect of 7A or 7B of the EU (Withdrawal) Act 2018 (inserted by clauses 5 and 6 of the Bill) or deal with matters arising out of those provisions in the Agreements.
157.There will also need to be consequential amendments to the statute book. The purpose of this is to enable departments to administer obligations under the EU Regulations via other bodies, such as arms-‐‑length bodies. There are also references in primary legislation to the EU Regulations, which may have to be amended to refer to section 7A of the EU (Withdrawal) Act 2018, or to Title III of Part 2 of the Withdrawal Agreement and EEA EFTA Separation Agreement, or Part 3 of the Swiss Citizens’ Rights Agreement.
Justification for procedure
158.Where the power at clause 13(1) (and its equivalents at subsections (2) and (3)) is used to modify primary legislation or retained direct principal EU legislation, the draft affirmative procedure will apply. Otherwise, where the power at clause 13(1) is used to modify secondary legislation, the negative resolution procedure will apply. This is because the anticipated modifications will largely consist of technical amendments to secondary legislation required to implement and ensure compliance with the social security coordination obligations at Title III of Part 2 of the Withdrawal Agreement, Title III of the EEA EFTA Separation Agreement, and Part 3 of the Swiss Citizens’ Rights Agreement. Given the fully coordinated nature of social security coordination and that the power is tied to implementing the agreements, there is very little scope to make substantial provision using this power. However, where technical amendments are required for primary legislation or retained direct principal EU legislation, the draft affirmative procedure will apply to provide for appropriate scrutiny of the proposed legislation. The devolved authorities have been consulted and are content that equivalent scrutiny procedures should apply in respect of their exercise of the power.
Clause 14: non-‐‑discrimination, equal treatment and rights of workers
Power conferred on: A Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Draft affirmative where amending, repealing or revoking primary legislation, or retained direct principal EU legislation; otherwise subject to the negative resolution procedure.
Context and purpose
159.This clause makes provision to ensure that domestic legislation is compatible with the broad equal treatment and non-‐‑discrimination provisions in the Agreements. This includes the ability to make provision to ensure that EU citizens, EEA EFTA nationals and Swiss nationals (and their family members) currently resident in the UK maintain existing entitlements to publicly funded benefits and services following the end of the implementation period. EU citizens, EEA EFTA nationals and Swiss nationals and their family members could otherwise find themselves excluded from certain benefits and services after the implementation period when various provisions of free movement of persons are amended or repealed. Under current rules, access to certain publicly funded benefits and services for EU citizens, EEA EFTA nationals, Swiss nationals and their family members is, broadly speaking, linked to a status under the EEA Regulations 2016, or whether claimants have a right to reside under EU law. For example, Regulation 2 of the State Pension Credit Regulations 2002 makes reference to status under the EEA Regulations 2016, and amendments will be required to ensure that those covered by the Agreements are still eligible for this benefit when the EEA Regulations 2016 are repealed.
160.Under the current rules, those with permanent residence under the EEA Regulations 2016 are entitled to certain benefits and services on the same terms as UK nationals, subject to meeting relevant eligibility criteria.
161.Where an individual does not have permanent residence, entitlement to these benefits and services is subject to eligibility tests. Eligibility is linked to holding another status under the EEA Regulations 2016, such as being a ‘qualifying person’ (for example, a worker in genuine and effective employment), or having a right to reside by virtue of a directly effective treaty right. This power will be used to save the operation of the EEA Regulations 2016 (which will be repealed at the end of the implementation period as part of the wider repeal of legislative provisions implementing the free movement of persons) and related domestic law for the purpose of preserving access to benefits and services based on the same conditions as now.
162.Subsection (1) confers a power on an appropriate authority so as to enable it to make necessary regulations to implement 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.
163.Subsection (4) provides that regulations made under subsections (1), (2) and (3) may be made so as to apply both to persons who are persons covered by the relevant provisions of the relevant agreement, as well as persons to whom the provision in question does not apply but who may be granted leave to enter or remain under the residence scheme immigration rules whether or not they have been granted such leave.
164.Subsection (5) states that the power to make regulations may be used to modify any provision made under an enactment (as defined at 40(1)) (this is therefore a so called ‘Henry VIII’ power).
165.Subsection (6) defines appropriate authority for the purposes of this clause. Subsection (7)references Schedule 1 which makes further provision about the powers of the devolved authorities in respect of citizens’ rights provisions.
166.The UK Government will not normally use this power in areas of devolved competence without the agreement of the relevant devolved administration.
167.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 Committees falling within the scope of the particular matters that this power is intended to address.
168.Subsection (3) of clause 16 provides that regulations made under this power may not provide for the conferral of functions (including the conferral of a discretion) on, or the delegation of functions to, a person who is not a public authority (but may so provide if the person is a public authority).
Justification for taking the power
169.It is intended that provisions of domestic law that implement free movement of persons will be amended or repealed at the end of the implementation period by the planned Immigration and Social Security Co-‐‑ordination (EU Withdrawal) Bill. Provision therefore needs to be made under this Bill to amend, save (and if necessary modify) such legislation to ensure that it continues to comply with the UK’s obligations to afford equal treatment to people residing on the basis of the Agreements.
170.This power will be used to ensure continuity of eligibility for benefits and services. Eligibility for benefits and services is set out across a large set of cross-‐‑cutting legislation, including immigration legislation. The amendments required to implement equal treatment, non-‐‑discrimination and rights of workers provisions across this legislation will be of a complicated nature. The changes required, including regulations to define qualifying persons, are well suited to secondary legislation.
171.A power is required because of the volume of cross-‐‑cutting legislation which links eligibility to benefits and services with a person’s nationality, their status under the EEA Regulations 2016, or their exercise of EU law rights. The purpose of the power is to maintain the status quo with regards to eligibility, rather than to create new or remove existing entitlements. Maintaining this status quo will require a combination of complicated technical changes which will be subject to individual departments eligibility criteria.
172.There is also a requirement for this power to operate on future legislation in order to give effect to changes as domestic interpretation evolves, for example in response to reports by the IMA or litigation. The citizens’ rights cohort extends to future children (and dependent grandchildren) of those protected by the Agreements, and so the requirement for equal treatment stretches far into the future. These powers will ensure that we continue to be able to comply with our obligations.
173.Despite the fact that the power can be exercised to amend primary legislation, any such amendments can only amend UK legislation to the extent it is appropriate for the purposes of implementing specific provisions in the Agreements as well as for other relevant persons as defined in the clause.
Justification for procedure
174.Where the powers to make regulations in clause 14 are exercised to modify primary legislation or retained direct principal EU legislation, the Bill provides that the draft affirmative procedure will apply, otherwise they will be subject to the negative resolution procedure. The anticipated amendments will largely consist of minor and mechanistic amendments to secondary legislation required to implement and ensure compliance with the equal treatment and non-‐‑discrimination obligations under the Agreements for example amending references to EU instruments. Such amendments will be subject to the negative resolution procedure. However, where amendments are required to primary legislation or retained direct principal EU legislation, the draft affirmative procedure is applied, to provide for appropriate scrutiny of the proposed legislation. The devolved authorities have been consulted and are content that equivalent scrutiny procedures should apply in respect of their exercise of the power.
Paragraph 38(1) of Part 3, Schedule 2 : power to limit the functions of, or abolish, the Independent Monitoring Authority for the Citizens’ʹ Rights Agreements (IMA)
Power conferred on: Secretary of State
Power exercised by: Regulations made by Statutory Instrument
Henry VIII power: Yes
Parliamentary Procedure: Draft affirmative
Context and purpose
175.The UK has agreed as part of the Withdrawal Agreement under Article 159 for an IMA in the UK to monitor the implementation and application of the citizens’ rights part of the Withdrawal Agreement. It will be able to receive complaints from EU citizens and their family members and conduct inquiries concerning alleged breaches of citizens’ rights contained in Part 2.
176.A parallel obligation has been agreed under Article 64 of the EEA EFTA Separation Agreement.
177.As provided in the Withdrawal Agreement, there is the possibility for the UK and the EU to decide -‐‑ through the Joint Committee established by the Withdrawal Agreement -‐‑ that the IMA’s monitoring role is no longer required after a minimum period of 8 years has passed following the end of the implementation period. There is a parallel provision in the EEA EFTA Separation Agreement. Therefore, this power makes provision for the amendment of the IMA’s functions (where only one Joint Committee has decided that the IMA is no longer needed), or to end its operation (in the case where both Joint Committees have taken this decision).
Justification for power
178.The establishment of the IMA is a requirement of the Withdrawal Agreement and the EEA EFTA Separation Agreement and, accordingly, the body is being established solely for the purposes of complying with those agreements. In the circumstances where one or other of the relevant Joint Committees (which operate consensually as between the UK and the EU or EEA EFTA states) under the Agreements determines that the IMA is no longer necessary, and thus that an obligation in an international agreement no longer binds the UK, the functions of the IMA can be modified or extinguished. Reflecting this in domestic legislation would become a process of an orderly winding down of the IMA (or limitation of its functions), entailing no significant new policy decisions, but involving a great deal of technical provision such as that regarding the treatment of legacy assets and employees of the IMA. A power is therefore taken for this purpose.
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