On 22 October 2020, the House of Lords is due to debate three draft statutory instruments relating to rights for European Economic Area (EEA) (including EU) and Swiss citizens after 31 December 2020. These instruments are:

• Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020
• Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020
• Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020

These are draft regulations that are subject to the draft affirmative procedure. This means they must be approved by both Houses before they can be made and brought into effect. They would be made under powers conferred by the European Union (Withdrawal Agreement) Act 2020.

What do the instruments do?

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill contains provisions which would end freedom of movement to the UK for EEA nationals and their family members on 31 December 2020, the end of the Brexit transition period. If enacted in its current form, it will do this by revoking the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations 2016).

The three statutory instruments being debated give effect to some of the UK’s obligations to EEA citizens under the EU Withdrawal Agreement, the EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement.

The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 would set a deadline of 30 June 2021 for applications from EEA citizens for the EU settlement scheme. The period between the end of the transition period (31 December 2020) and 30 June 2021 is termed the “grace period”. Only “relevant persons” would be able to benefit from the grace period. The regulations define “relevant persons” as people who were lawfully resident in the UK by virtue of the EEA Regulations 2016 at the end of the transition period, or who had a right of permanent residence in the UK under those regulations.

The instrument would also preserve access to benefits and services for relevant persons for the duration of the grace period.

The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 concern the rights of EEA nationals who have been working in the UK while living outside the UK, termed “frontier workers”. The regulations would make it a requirement for frontier workers to obtain a permit certifying their rights to continue to enter and work in the UK. They would have to obtain the permit by 1 July 2021.

The regulations set out the circumstances in which a protected frontier worker’s rights could be restricted, or a permit refused or revoked. Irish citizens who are frontier workers would not be required to produce a permit to obtain entry to the UK.

The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 would make provisions concerning the deportation of people protected by the citizens’ rights provisions of the EU Withdrawal Agreement, the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement. The regulations would save certain provisions of the EEA Regulations 2016. The effect would be that when considering deportation cases, the UK would be required to consider conduct committed before the end of the transition period in accordance with the previous EU arrangements.

The regulations would also provide that deportation decisions made under these regulations could be appealed, in accordance with the UK’s obligations under the various treaties.

What parliamentary scrutiny has there been?

The Joint Committee on Statutory Instruments considered all three sets of regulations and did not require any of them to be reported.

The House of Lords Secondary Legislation Scrutiny Committee noted the three statutory instruments as instruments of interest, but did not draw them to the special attention of the House.

House of Commons Delegated Legislation Committee debate

A House of Commons delegated legislation committee considered the three statutory instruments together on 14 October 2020. In the course of this debate, the Minister for Future Borders and Immigration, Kevin Foster, stated that the Government would allow applications to the EU settlement scheme after the end of the grace period if there were “reasonable grounds” for not making an application earlier. He also said that there would be no time limit on this consideration.

During the debate, Shadow Minister for the Home Office Bambos Charalambous said that the opposition would not support the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. He said this opposition was on the basis that the regulations would not make provisions for EEA citizens or their family members who were not, at the end of the transition period, lawfully resident as defined by the regulations. Mr Charalambous argued that this would mean people eligible for the EU settlement scheme but not “lawfully resident” would not benefit from the grace period. This could include, for example, EEA citizens residing in the UK but not doing so in order to work. The Immigration Law Practitioners’ Association also made this argument in a letter to the Home Office on 2 October 2020.

Kevin Foster countered that the purpose of the regulations was to preserve rights and not extend them, arguing “we cannot really retain a right that free movement does not grant”. The Minister emphasised that employers would continue to be able to accept EEA citizenship as proof of entitlement to work in the UK until the end of the grace period. He said that “there is absolutely no penalty and no difference in the type of status that will be granted to someone who falls into the category we are discussing, in relation to whether they applied on 31 December or on 30 January”.

The committee divided on the motion that it had considered the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. The Government won the division by nine votes to six.

House of Lords Immigration and Social Security Co-ordination (EU Exit) Bill debate

During committee and report stage of the Immigration and Social Security Co-ordination (EU Exit) Bill in the House of Lords, eligibility for the proposed grace period in the draft Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 was discussed. During committee stage, Minister of State for the Home Office Baroness Williams of Trafford stated that clause 4(4) of the bill would allow the Government to make regulations for non-economically active EEA citizens. She said the clause would enable the Government “to make provision for those who are not exercising free movement rights at the end of the transition period but who are eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement”.

Baroness Ludford (Liberal Democrat) queried whether EEA citizens without comprehensive sickness insurance (CSI) would be excluded from the grace period under the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. The Minister replied that “there is no CSI requirement for the EU settlement scheme. The grace period SI does not affect the criteria for the EU settlement scheme. The SI protects the EEA rights of those who have arrived here at the end of the transition period”.

During report stage Lord Rosser again raised the issue of EEA citizens not being eligible for the grace period in the draft SI if they did not meet the criteria for ‘exercising their treaty rights’ to free movement. He said this could include people who were non-economically active for a variety of reasons. The Minister responded:

People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says. The statutory instrument will be subject to debate and approval by Parliament and will need to come into force at the end of the transition period. Where relevant, Home Office guidance will be updated to reflect the statutory instrument before the grace period commences.

Read more

• House of Commons Library, ‘The progress of the EU Settlement Scheme so far’, September 2020
• Letter from Kevin Foster MP to Holly Lynch MP, ‘Regarding the Government’s intentions in relation to those who are eligible to apply for the EU Settlement Scheme (EUSS) based on their residence in the UK, but are not exercising free movement rights by virtue of the EEA Regulations at the end of the transition period’, 14 October 2020, DEP2020-0602

Image by Rocco Dipoppa on Unsplash.