CHAPTER 14 – PATHWAY TO THE NEW SYSTEM
The nee for primary legislation
14.1 The journey to a single immigration system in UK law will be achieved in stages. The European Union (Withdrawal) Act 2018 will repeal the European Communities Act 1972 and the UK will leave the EU. It will also convert current EU law into UK law (‘retained EU law’) and preserve existing UK law that implements EU law, to ensure continuity of law until it is changed by Parliament.
14.2 For immigration, even after the UK leaves the EU, EU Free Movement will continue under UK law and EU citizens’ rights to live and work in the UK will carry on as now until Parliament changes the law and revokes the retained EU law.
The Immigration and Social Security Co-ordination (EU Withdrawal) Bill
The Bill will repeal section 7(1) of the Immigration Act 1988 which provides that EU citizens exercising Treaty rights are not subject to UK immigration control i.e. they do not need leave to enter and stay in the UK.
The Bill will also protect the status of Irish citizens once Free Movement ends. This means Irish citizens will be free to enter and remain in the UK without restriction unless they are subject to a deportation order, exclusion order or an international travel ban.
The Bill will also enable us to ensure that UK legislation is coherent once the UK has exited the EU and EU citizens and their family members become subject to UK immigration law. This includes, for example, repeal of references to EU legislation in our domestic law where they are no longer valid. The Bill will include a power to make consequential, transitional, transitory and savings provisions as required once the future immigration arrangements have been finalised – for example, to enable us to align our existing immigration laws for EU citizens arriving after the end of the Implementation Period, with non-EU nationals to the extent we wish to do so and depending on the final agreement about the future immigration system for EU citizens.
The Bill will also include provision allowing amendments to be made to retained direct EU legislation relating to social security co-ordination.
Detailed arrangements for how EU migration will be controlled once the UK leaves the EU will continue to be set out in Immigration Rules and secondary legislation, providing flexibility and allowing us to reflect changing circumstances.
14.3 We are introducing the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which will repeal retained EU law and, importantly, end free movement for EU citizens as well as protect the rights of Irish citizens. This will mean that once the Bill is enacted and commenced, EU citizens and their family members (excluding Irish citizens) will require permission to enter and remain in
the UK in the same way as non-EU citizens.
14.4 We will retain the ability to make more favourable provision for specific nationalities through the Immigration Rules – for example, as we agree trade deals.
14.5 There are other areas of retained EU law that do not relate specifically to free movement, but, nevertheless, have an impact on immigration. The Bill will revoke or disapply such law which is not compatible with our future UK immigration regime.
14.6 The requirements to be met by those wishing to enter and remain in the UK will continue to be primarily set out in the Immigration Rules and other secondary legislation.
Preparing for a future Social Security System
14.7 Leaving the EU means that for the first time in generations we can take control of the social security system we apply to EU citizens whilst making sure we continue to protect UK pensioners living in the EU. It is important that we maintain consistency between the future immigration system and the availability of benefit support for EU citizens entering the UK. That is why the Government is proposing
that in the future persons subject to immigration control will not routinely be able to access the benefits system. This means that EU citizens’ moving to the UK after the immigration system has changed should make significant contributions to the UK economy before they are able to access certain benefits. Full access to our benefits system will only be available after settled status is granted under the
immigration rules, usually after five years.
14.8 Pensioners should retain the option to export their state pension if they move to an EU country, and we would want to continue uprating these, but would need to take decisions in light of whether, as we hope and expect, reciprocal agreements with the EU are agreed.
14.9 These positions will deliver on the result of the 2016 referendum, where polling showed a clear desire from the British public to align EU migrants’ access to benefits with that of non-EU nationals. This is a fair principle, which treats all nations consistently. Our approach will be subject to further discussions with the EU as part of our future deep and special partnership.
14.10 The Immigration and Social Security Co-ordination (EU Withdrawal) Bill will enable us to repeal or amend the EU Social Security Co-ordination Regime as retained by the EU Withdrawal Act 2018 and provide powers for the Government to set out new rules on Social Security Co-ordination for EU nationals in the UK. This can only be achieved through primary legislation.
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