The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21

BREXIT - At the ABC we are working to find out more about what might happen in the event of a 'No Deal Brexit'.

This briefing paper below has been produced for the Houses of Parliament but our concern is not just immigrants and their rights to benefits but what is going to happen to UK Social Security after we have withdrawn from the EU.

Peers have called for power that enables Ministers to modify EU social security co-ordination regulations to be removed from the Immigration and Social Security Bill. 

 

BRIEFING PAPER
Number CBP 8706, 9 March 2020

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21

By Melanie Gower
Steven Kennedy

Contents:
1. Background
2. Free movement statistics
3. Part 1 of the Bill: Measures relating to ending free movement
4. Part 2: Social security co-ordination
5. Part 3: General provisions
Annex 1: Directly effective rights to be revoked
Annex 2: The new points-based system

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Contents
Summary
1. Background
1.1 The Bill
How is it different to the 2017-19 version?
1.2 The broader policy context
The EU Settlement Scheme
The new points-based system for the UK
Social security co-ordination
2. Free movement statistics
2.1 EU migrants living in the UK
2.2 British nationals living in the EU
3. Part 1 of the Bill: Measures relating to ending free movement
3.1 Repeal of retained EU law relating to free movement etc
3.2 Irish citizens
3.3 Meaning of "the Immigration Acts" etc
3.4 Consequential etc. provision
4. Part 2: Social security co-ordination
4.1 What is social security co-ordination?
4.2 The Withdrawal Agreement
4.3 Retained EU law on social security co-ordination
4.4 Co-ordination after the transition period
4.5 The Bill
4.6 Social security co-ordination and the 2017-19 Bill
5. Part 3: General provisions
5.1 Interpretation
5.2 Territorial extent
5.3 Commencement
Annex 1: Directly effective rights to be revoked
Annex 2: The new points-based system

Contributing Author: Georgina Sturge, statistics, section 2

Cover page image copyright attributed to : UK_border_control_EU_gates by Jim Larrison / image cropped. Licensed under CC BY 2.0

Summary

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill was introduced to the House on 5 March 2020. At the time of writing, the date for Second Reading has not been confirmed.

An almost identical Bill was introduced in the 2017-19 session. Its progress stalled after Committee stage and the Bill fell when Parliament was prorogued.

The Bill

The purpose of the Bill is to repeal EU free movement of persons and other related EU-derived rights in UK law, and make EU, EEA and Swiss citizens subject to UK immigration controls. It would also make provision to protect Irish citizens' immigration rights, and to amend retained direct EU legislation relating to social security co-ordination.

The Bill has three Parts. It comprises nine clauses and three Schedules.

Part 1 and Schedule 1 cover measures relating to the ending of EU free movement law in the UK.

• Clause 1 and Schedule 1repeal retained EU law relating to free movement. This will enable EEA nationals (and their family members) to become subject to UK immigration laws after the end of the Brexit transition period.
• Clause 2protects Irish nationals' existing rights, by clarifying their legal status in the UK after free movement ends. It does this by making various amendments to the Immigration Act 1971.
• Clause 3amends section 61 of the UK Borders Act 2007, in order to ensure that the definition of "the Immigration Acts" across legislation includes Part 1 (and associated provisions in Part 3) of the Bill.
• Clause 4gives the Secretary of State broad powers to make regulations in consequence of or in connection with the provisions in Part 1 of the Bill. These include "Henry VIII" powers to modify primary legislation, and powers to modify "retained direct EU legislation".

Part 2 and Schedules 2 and 3 make provision for social security co-ordination.

• Clause 5 and Schedules 2-3allow the Government (and/or a devolved authority) by regulations to modify retained EU law on social security co-ordination. The Government states that this power is necessary to enable it to make arrangements for social security co-ordination "whether the UK has a future agreement with the EU at the end of the transition period or not."

Part 3 sets out the Bill's defined terms, territorial extent, arrangements for commencement, and short title. The Bill applies to the whole of the UK. Provisions in Part 1 may be extended to any of the Channel Islands, the Isle of Man, and any of the British overseas territories. The Scottish Parliament and Northern Ireland Assembly will be asked for a Legislative Consent Motion in respect of clause 5.

Future immigration system

The Bill does not set out the future immigration system, which will apply to EU and non-EU citizens who move to the UK after the transition period. The future immigration system will be provided for in the Immigration Rules. The Immigration Rules have a status similar to secondary legislation, and their parliamentary approval process is similar to the negative procedure.

The Government intends to introduce the future immigration system from January 2021. A February 2020 Government policy statement gave some initial details of how it will work.

EU Settlement Scheme

The Home Office has established the EU Settlement Scheme to protect the legal status and associated rights of EU citizens (and family members) living in the UK before the end of the transition period, in accordance with the provisions in the UK's EU Withdrawal Agreement.

There had been just over 3.1 million applications to the scheme as of the end of January 2020. This number is higher than the number of individuals who have applied, since some people have applied for pre-settled status and then again for settled status. It is estimated that, as of mid-2019, there are around 3.4 million EU citizens currently living in the UK (excluding Irish nationals, who need not apply). Taking into account people who have migrated to the UK while the scheme has been open, the number of people required to apply could be closer to 4 million.

1. 1. Background

1.1 The Bill

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21 was introduced to the Commons on 5 March 2020. At the time of writing, the date for Second Reading has not been confirmed.

It is a Brexit-related Bill. It is necessary to end the effect of EU free movement law in the UK. It also gives powers to the Government (and/or a devolved authority) to amend retained EU law governing social security co-ordination. The Bill does not set out the future immigration system, which will apply to EU and non-EU citizens who move to the UK after Brexit.

The Bill as introduced is split into three Parts. It comprises of nine clauses and three Schedules.

The long title of the Bill is

A Bill to make provision to end rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration; to confer power to modify retained direct EU legislation relating to social security coordination; and for connected purposes.

Related documents

The Bill, its accompanying Explanatory Notes and details of its passage through Parliament are available from the Bill's pages on the Parliament website.

In addition, the Government has published a collection of overarching documents, including delegated powers and human rights memoranda; and an equality impact assessment. [1]

How is it different to the 2017-19 version?

An almost identical Bill, with the same title, was introduced in the 2017-19 session. Its progress stalled after Committee stage and the Bill fell when Parliament was prorogued.

This Bill's Explanatory Notes summarise the slight differences:

There have been no substantial changes to the content of the Bill since it was previously considered in the last Parliament. The only changes made are minor drafting clarifications in places, and updates to the list of retained EU law to be repealed to avoid duplication of changes already made through the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 (2019/745) which come into force on 31 December 2020. [2]

The Bill is being introduced in a significantly different environment to the 2017-19 version. Unlike then, there is no longer uncertainty over when the UK will leave the EU, and whether this will be in a 'deal' or 'no deal' scenario. Furthermore, the EU Settlement Scheme (the process for resident EU citizens and their family members to protect their status and entitlements post-Brexit) is well-established, having been fully operating for the past year. [3]

1.2 The broader policy context

The EU Settlement Scheme

The EU Settlement Scheme (EUSS) is a Home Office scheme which implements the Citizens' rights provisions (Part 2) of the UK's Withdrawal Agreement with the EU. This concerns the rights of UK/EU citizens who have exercised their 'free movement' rights to live in the EU/UK respectively before the end of the transition period.

The EUSS exists because, in most cases, people whose rights to reside in the UK are based on rights derived from EU law will no longer have a legal right to reside in the UK once those laws cease to apply. These individuals must apply to the EUSS for a new UK immigration status. If they do not then they could be unlawfully resident in the UK in the future.

The main categories of people who must apply are:

• EU (excluding Irish), EEA and Swiss citizens
• Family members of an EU citizen who are not themselves British or EU citizens

EU citizens must be resident in the UK prior to the end of the transition period to be eligible for status under the EUSS, with limited exceptions. The Withdrawal Agreement states that the EUSS application deadline cannot be less than six months after the end of the transition period. Consequently, the application deadline is 30 June 2021 (although the Government could extend this if it wishes).

The scheme should grant applicants either 'settled' (i.e. permanent) or 'pre-settled' status. The status granted should depend on whether the applicant has five years' continuous residence in the UK or less. The Home Office has emphasised that it is looking for reasons to grant, rather than reasons to refuse individual applications.

Pre-settled status allows the holder to remain in the UK for a further 5 years. They can then obtain settled status by submitting another application, subject to the eligibility requirements.

Since 31 January 2020, people applying to the EUSS have had a right of appeal against a decision to refuse an application, or to grant pre-settled rather than settled status. Appeals are considered by the First-tier Tribunal (Immigration and Asylum Chamber). [4]

The Government has said settled or pre-settled status will allow EU citizens to continue living and working in the UK after it leaves the EU on broadly the same terms as they do under EU law.

Various persistent criticisms and concerns have been raised by groups representing EU citizens living in the UK and other stakeholders. These include:

• The fact that people need to apply to protect their status – some have argued that they should be automatically granted settled status, as is permitted under the terms of the Withdrawal Agreement.
• The fact that successful applicants have a digital code, rather than a physical document confirming their status under the EUSS.
• The risk that some eligible people fail to apply before the deadline, the implications for their status and entitlements in the UK, and the absence of detailed information about how the Home Office intends to handle such cases.
• The absence of detailed information about arrangements during the "grace period" between the ending of free movement and the deadline for applying to the EUSS, such as what instructions will be issued to Border Force and third parties (airlines, employers, landlords, etc.) in relation to checking EU citizens' status.

Library briefing The EU Settlement Scheme gives a comprehensive overview of the EUSS.

How many people have secured their status so far?

As discussed above, the EUSS is open to EU, EEA and Swiss citizens, and some non-EEA citizens in certain circumstances. It is estimated that as of mid-2019 there are around 3.4 million EU citizens currently living in the UK (excluding Irish nationals, who need not apply). [5] Taking into account people who have migrated to the UK while the scheme has been open, the number of people required to apply in order to secure their status could be closer to 4 million. [6] Implementing a scheme with such a high number of potentially eligible applicants presents a significant challenge for the Home Office. [7]

Since June 2019, the Home Office has released monthly statistics on the number of applicants to the EUSS. These are analysed in the Library Insight 'The progress of the EU Settlement Scheme so far', which is updated as new statistical information is released.

By the end of January 2020, there had been just over 3.1 million applications to the scheme. The number of applications does not tell us how many individual people have applied. Some people have applied twice to the scheme: once when they had fewer than 5 years' qualifying residence and received pre-settled status; a second time when they had passed the 5-year mark and had to apply again to upgrade to settled status.

In October 2019, a Home Office spokesperson stated that, "[O]ur initial analysis of internal figures suggest that repeat applications currently represent less than 0.5% of applications." [8]

Of the 2.7 million applications that had been concluded at the end of January 2020, 58% had resulted in a grant of settled status, 41% in a grant of pre-settled status, and 0.7% in an 'other' outcome, which includes withdrawn and void applications and refusals. [9]

The new points-based system for the UK

The 2016 EU referendum result prompted the process of designing a new immigration system for the UK. [10]

Instead of simply incorporating EU nationals into the existing points-based immigration system for non-EU nationals, recent successive Conservative governments have instigated a more comprehensive overhaul of the various immigration routes for living and working in the UK.

The new points-based system is due to be introduced from 1 January 2021. Attention so far has primarily focussed on the 'economic' categories (i.e. 'work' visas), although wider changes to the UK's immigration and border control processes are also envisaged for further down the line.

It remains to be seen whether the new points-based system for immigration will be substantially more points-based than the current system (which, broadly speaking, attaches a fixed number of 'points' to a set of mandatory eligibility criteria for each visa category). So far, two of the proposed categories within the new system have been described as having 'tradeable' points elements. They would respectively cater for:

• Highly-skilled workers without a job offer (this will be a new visa category which the Government intends to consult on in 2020).
• Skilled workers with a job offer (this will be the 'new' version of the current Tier 2 General visa).

Most of the public debate and commentary so far has focused on the proposals relating to skilled workers with a job offer.

February 2020 policy statement

The Government published a policy statement, The UK's Points-Based Immigration System, on 19 February 2020. [11] This Command Paper gave some initial details of the new points-based system. [12]

The system outlined in the paper will apply equally to 'new' EU and non-EU nationals (i.e. people who migrate to the UK from that date).

The policy statement is considerably shorter, and narrower in scope, than the May Government's December 2018 immigration white paper, although further publication(s) are expected in the coming weeks/months. [13] Some of the plans mirror proposals previously outlined in the white paper (e.g. abolishing the resident labour market test and reducing the salary and skills threshold for sponsored skilled workers), but plans have changed in some areas. Notably, the Government does not intend to provide a temporary route for work at any skill level. The May Government had proposed maintaining a temporary immigration route to come to work at any skill level until at least 2025, as a transitionary measure to offset the ending of EU free movement law. Some employers considered that those proposals didn't go far enough.

Similarly, whilst the Government is broadly following the recommendations made by the independent Migration Advisory Committee (MAC) in recent successive reports, the MAC's January 2020 report on A Points-Based System and Salary Thresholds for Immigration did not support the idea of incorporating a tradeable points element to sponsored skilled work visas.

The Government's policy statement does not sketch out the overall architecture of the proposed new points-based system or identify all of the visa categories which it is likely to include.

The most detailed proposals relate to the immigration route for skilled workers with a job offer. Key differences to the current comparable visa category (Tier 2 General) include that:

• The 'resident labour market test' will no longer apply – this means that employers will be able to recruit migrant workers without first advertising the job to resident workers.
• The annual 'cap' on the overall number of visas available will be suspended
• The minimum salary and skills thresholds to be eligible for a visa will be lowered – to £25,600 (rather than £30,000) and RQF level 3 (A-level, rather than degree level).[14]
• Jobs paying less than the general minimum salary threshold might still qualify for a visa, if they are on the (new) shortage occupation list, or the applicant has a relevant PhD.

Annex 2 to this briefing provides a more detailed overview.

Some aspects of the proposals, such as reducing the minimum salary and skills thresholds, have been broadly welcomed. Many stakeholders have raised concerns about the proposed timescale for implementing the new system, the absence of a transitionary route for lower-skilled/lower paid work, and the very high costs associated with sponsoring work visas. Representatives of sectors with a large proportion of EU workers, and "low-skilled"/low-paid roles, such as care, construction and hospitality, have been particularly vocal in raising alarm about the new system's potential impact on their future viability and the wider economy. [15]

Library briefing paper Post-Brexit immigration system proposals: responses from stakeholders collates a selection of recent responses.

Social security co-ordination

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 for contributions and benefits purposes; and
• require equal treatment in access to benefits;
• allow periods of insurance in different countries to be aggregated; and
• enable certain benefits (including state pensions) to be 'exported'.

A well-established system of administrative co-operation underpins the rules. The UK also has a number of bilateral reciprocal social security agreements with individual states, including some non-EEA countries, but they vary widely in scope and (aside from the UK's February 2019 Convention of Social Security with Ireland) none is as comprehensive as the EU framework.

The Withdrawal Agreement (WA) allows the existing social security co-ordination rules to continue to apply to people after the end of the transition period, if they come within the scope of the Agreement. The intention is to ensure that people moving between the UK and EU countries 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." [16] The WA also provides protections in other circumstances so that, for example, where a UK national has previously worked and paid social security contributions in an EU country, rights flowing from those contributions, such as benefits, pensions and reciprocal healthcare rights, are protected.

For those moving between EU countries and the UK after the transition period (which is expected to end on 31 December 2020), the Political Declaration on the Future Relationship between the EU and the UK states that the parties will "agree to consider addressing social security coordination in the light of future movement of persons", as part of future mobility arrangements based on non-discrimination between the EU states and "full reciprocity." [17] While it recognises the importance of social security co-ordination, the UK Government's position is that any future agreement "should be similar in kind to agreements the UK already has with countries outside the EU." [18] This implies a much more limited system of co-ordination than the existing EU rules.

An absence of any system of social security co-ordination could cause problems for people moving between the UK and EU after the end of the transition period, such as confusion about which state a person is liable to pay social insurance contributions to, or which state is responsible for paying a person's benefits.

Under powers in the European Union (Withdrawal) Act 2018, the existing EU regulations on social security-coordination will be transposed into domestic UK law, with amendments to address "deficiencies" as a result of the UK's withdrawal from the EU. These "retained" regulations would come into force after the end of the transition period, if there is no Future Relationship agreement with the EU, or there is no agreement covering social security. This would ensure that social security co-ordination would continue in this scenario, but only to the extent that the UK can apply rules unilaterally. The UK would not, for example, be able to oblige EU states to share information on individuals' contribution records.

The Bill gives the Government the power to modify the retained social security co-ordination regulations, and to make consequential amendments to other legislation. The provisions are virtually identical to those in Part 2 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill introduced in the 2017-19 session, which did not proceed further than the Commons Committee Stage. The context is however different. Whereas the main justification for the power in the 2017-19 Bill was to allow the Government to implement its preferred approach to social security co-ordination if the UK left the EU without a Withdrawal Agreement, the current Government maintains that the power is necessary to enable it to make changes to the retained legislation whether or not the UK and EU negotiate an agreement on the Future Relationship at the end of the transition period.

2. 2. Free movement statistics

Migration is measured in terms of flows (the number of people migrating to and from a country) and stocks (the number of people living in a country other than that of their nationality or birth).

Migration flows are measured by the Office for National Statistics (ONS) and are estimates rather than a headcount. It is not a straightforward exercise to identify who is a 'migrant', since there are different definitions and all ways of measuring migration have their limitations. The ONS's approach is to use a survey at the UK border to capture long-term international migration, meaning people entering or leaving the country for 12 months or more. [19]

EU migration to the UK

In the year ending September 2019:

• Immigration of the EU nationals was 196,000,
• Emigration of EU nationals was net migration of EU nationals was 133,000, and
• Net migration of EU nationals 64,000.

The chart below shows net migration of EU nationals to the UK, over time, and includes events which may have had an impact on migration flows. It also shows net migration for non-EU and British nationals, for context.

Source: ONS, Provisional Long-term International Migration estimates, February 2020. Notes: The data in these charts does not reflect the revisions to net migration since the 2011 Census, so estimates of immigration and net migration of EU nationals in the period 2004 to 2008 are likely to be underestimates (see section 2.1 of the estimates of immigration and net migration of EU nationals in the period 2004 to 2008 are likely to be underestimates (see section 2.1 of the estimates of immigration and net migration of EU nationals in the period 2004 to 2008 are likely to be underestimates (see section 2.1 of the

Between 1992 and 2004, net migration of EU nationals was 12,000 on average per year. It rose substantially after 2004, with the accession of Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia (the 'A8' countries). The UK did not impose any restrictions on the free movement of nationals of these countries to the UK.

Net migration rose again in 2007 with the accession of Bulgaria and Romania (although free movement restrictions were imposed and work permits were required for these nationals until 2014) but fell again in 2008 after the global financial crisis.

It rose in 2013 and again in 2014, this latter rise being partly as a result of the removal of free movement restrictions for Bulgarian and Romanian nationals.

In the year ending June 2016, net migration of EU nationals was at its peak of 189,000. It fell following the EU referendum and in the year ending September 2019 was around one third of what it had been three years previously.

Net migration of EU nationals has been positive since the start of 1992, adding around 70,000 to the population on average per year.

2.1 EU migrants living in the UK

The most recent estimates of the EU migrant population of the UK are available from the Labour Force Survey and are published in an ONS annual statistical release on 'Population by Country of Birth and Nationality'. [20]

In June 2018, there were 3.7 million EU nationals, not including British nationals, living in the UK (6% of the population). The largest foreign EU nationality was Polish, with around 902,000 Poles living in the UK, followed by Romanian (457,000), Irish (322,000), Italian (297,000) and Portuguese (234,000).

The most recent Census results showed that in March 2011 there were 2.7 million people born in other EU countries living in the UK. [21] The Census is the most accurate source of data on the UK population, however it captures country of birth, rather than nationality, so they are not directly comparable with estimates by nationality.

2.2 British nationals living in the EU

The ONS estimates that in 2011, there were around 890,000 British nationals living in other EU countries in 2011, and around 1.14 million people born in the UK living in other EU countries in 2011. [22] These figures are based on the 2010 to 2011 round of censuses in Europe and other data from European statistical offices.

In April 2018, the ONS produced updated estimates using Eurostat's European Labour Force Survey (ELFS).

These estimates do not include Ireland, which was excluded because

"…citizenship is not a suitable definition and so the data would not be comparable. Irish and British citizenships are complex. There are many dual nationals and there are further, unknown, numbers of those who have rights to citizenship in both countries but have not yet exercised one of them. There have also been increases in applications for Irish citizenship of which it is not yet possible to take account in the available data." [23]

These figures show that in 2017, 785,000 British nationals were living in other EU countries excluding Ireland. [24] In a separate publication, the ONS estimated that there were 277,200 people born in the UK and resident in Ireland in 2016. [25]

Irish nationals in other EU countries

At the ONS's latest estimate, around 322,000 Irish nationals were living in the UK. [26]

There is no comprehensive dataset on Irish nationals living in other EU countries. The best indicator of where Irish people live in the EU is the UN's global migration database which estimates the number of people born in Ireland living in other countries. [27]

The UN estimates that, in 2019, around 530,000 people born in Ireland were living in other EU countries and a further 5,500 lived in non-EU EEA countries. [28] According to these estimates, 84% of these (443,000) were living in the UK.

After the UK, the highest number of Ireland-born were in Spain (15,000), Germany (13,000), France (10,000), and Poland (8,000).

The United Nations dataset is based on estimates from national censuses and population surveys, which have been rolled forward to account for population growth among migrant stocks in years since the last available data. This is supplemented with information from population registers and nationally representative surveys.

It is important to note that even though the number of Irish-born in the UK is higher than the number of Irish passport holders, it may well be the other way around in other countries. It is possible to acquire Irish citizenship without having lived in Ireland: for example, by having an Irish parent or an Irish grandparent who was born on the island of Ireland.

3. 3. Part 1 of the Bill: Measures relating to ending free movement

3.1 Repeal of retained EU law relating to free movement etc.

Background

EU free movement law

The right to move and reside freely in another Member State is one of the rights enjoyed by all those with EU citizenship.Treaty on the Functioning of the European Union (TFEU). It is also enjoyed by those non-EU citizens who hold Swiss citizenship or citizenship of states in the European Economic Area (Iceland, Norway and Liechtenstein). For ease of reference all will be referred to as 'EU citizens' in this briefing. [29] It is conferred directly on every EU citizen by Article 21 of the [30]

The detailed arrangements are set out Directive 2004/38/EC (the 'Free Movement' or Citizens' rights' Directive), transposed into UK law by the Immigration (European Economic Area) Regulations 2016, SI 2016/1052 ('the EEA Regulations'). [31]

EU citizens have an initial right to reside on the territory of another EU Member State for up to three months without any conditions other than the requirement to hold a valid identity card or passport. After three months certain conditions apply, depending on the status of the EU citizen. In order to have an ongoing "right to reside" an EU citizen must fit into one of the following categories:

• a worker or self-employed person
• a job-seeker (a person who is seeking employment and has a genuine chance of being employed)
• a self-sufficient person
• a student
• a family member accompanying or joining an EU citizen who fits into one of the above categories.

EU citizens who have resided legally for a continuous period of five years in another EU Member State automatically acquire the right to permanent residence there. Once acquired, the right of permanent residence is lost only through an absence from the host Member State for a period exceeding two consecutive years.

As well as conferring the freedom to move and reside freely throughout the EU under EU citizenship provisions, the TFEU specifies the free movement rights of workers and the self-employed. [32] This fundamental principle is supported by protections against discrimination in employment on the grounds of nationality and provisions co-ordinating social security rules so that citizens do not lose entitlements when they exercise their free movement rights in order to work elsewhere.

In practice, free movement law means that EU citizens do not require a visa in order to come to live, work or study in the UK. They are not subject to rules on English language proficiency. Exclusion of an EU citizen must be justified on the grounds of public policy, public security or public health.

Box 1: EU free movement law vs UK Immigration Rules The comparable provisions for non-EU citizens, including those who are family members of British citizens, are specified in the UK's Immigration Rules and are significantly more restrictive then EU free movement rights. For example, opportunities to come to work in the UK under the existing points-based system for non-EU nationals are generally restricted to skilled migrants who already have a job offer. Most non-EU visa categories require applicants to have some proficiency in the English language, and initially grant only a temporary permission to stay in the UK. The scope to extend the permission, to switch to a different immigration category or to stay in the UK permanently, depends on the visa category.

Relevant UK law implementing free movement

The majority of EU law of free movement has been implemented in the UK through statutory instruments, made under section 2(2) of the European Communities Act 1972. Section 2(2) of the 1972 Act provides a power to make orders, rules, regulations or schemes which implement the UK's EU obligations. It is under this provision that the Immigration (European Economic Area) Regulations 2016, SI 2016/1052 ('the EEA Regulations') were made. [33] It is the EEA Regulations which set out the bulk of EU free movement rights, and transpose Directive 2004/38/EC into domestic law.

Section 7 of the Immigration Act 1988 provides that people entering the UK by exercise of enforceable EU law rights or any provisions made under section 2(2) of the European Communities Act 1972 are exempt from the requirement to obtain immigration leave to enter or remain.

Section 109 of the Nationality, Immigration and Asylum Act 2002 gives a power, through regulations, to provide immigration appeal rights in respect of decisions concerning free movement rights.

Brexit

Although the UK left the EU on 31 January 2020, EU free movement of people law continues to apply in the UK during the transition period, and thereafter until it is repealed. This is in accordance with the European Union (Withdrawal) Act 2018 ('EUWA 2018'), as amended by the European Union (Withdrawal Agreement) Act 2020 ('EUWAA 2020)'.

The Bill's Explanatory Notes confirm that the Government intends to repeal free movement legislation at the end of the transition period (31 December 2020). [34] EU citizens coming to the UK after the end of the transition period would be subject to UK immigration laws. [35] They would be required to have permission to enter and remain in the UK, in accordance with the Immigration Act 1971.

Just as the UK intends to bring EU citizens within the scope of its national immigration laws, so UK citizens will no longer have free movement rights to travel to and within the EU after the end of the transition period. Instead, their opportunities will depend on the immigration requirements imposed by individual EU Member States (except where provided for by harmonised EU law).

As referred to in section 1.2 of this briefing, the rights of EU nationals living in the UK before the end of the transition period are provided for by the Citizens' rights section of the October 2019 Withdrawal Agreement. This has been implemented by Part 3 of the EUWAA 2020 and the establishment of the EUSS under the Immigration Rules. The deadline to apply to the EUSS is 30 June 2021. The Bill's Explanatory Notes set out how people eligible for status under the EUSS will be provided for between the ending of the transition period and the EUSS application deadline:

Statutory instruments to be made under the powers in the EUWAA 2020 will protect EEA citizens and their family members' existing rights of residence, entry and exit until then. These savings will also extend to those with pending applications to the scheme and those with unresolved appeals. The Government will also bring forward a statutory instrument to ensure individuals who are in the UK as frontier workers by the end of the transition period can continue working from January 2021 onwards. Frontier workers are individuals who are resident outside the UK, but employed or self-employed in the UK. [36]

The Withdrawal Agreement also applies to UK citizens living in EU Member States before the end of the transition period. It does not allow for them to keep their free movement rights after the end of the transition period (although this issue might arise in negotiations on the UK's future relationship with the EU).

The Bill

To end free movement, the Bill needs to repeal or amend any EU laws preserved by the EUWA 2018 as amended which would continue free movement.

Clause 1 introduces Schedule 1, which would dismantle the provisions in UK law which enable free movement and EU-derived migration rights. Specifically:

Part 1 of Schedule 1 would repeal UK primary and secondary legislation which implements free movement. The explanatory notes summarise:

Part 1 of Schedule 1 repeals EU-derived domestic legislation relating to free movement; it revokes the EEA Regulations, which implement the EU Free Movement Directive 2004/38/EC and omits section 7 of the Immigration Act 1988. This will have the effect of bringing EEA citizens and their family members under UK immigration control, which under the 1971 Act means they require leave to enter or remain in the UK.

Paragraph 2, sub-paragraph (1), omits the power in section 109 of the Nationality, Immigration and Asylum Act 2002 to make regulations to provide for, or make provisions about, an appeal against an immigration decision relating to free movement of persons. This reflects the position that free movement will have ended. Paragraph 2, sub-paragraph (3), makes further amendments to the 2002 Act to reflect the fact that section 109 has been omitted.

Paragraph 3 amends the Provision of Services Regulations 2009 which implement the Services Directive (2006/123/EC), that aims to simplify the establishment and movement of services within the Single Market. This paragraph inserts a new provision into regulation 5 (general exclusions and savings) so that nothing in those Regulations affects the operation of provisions made by or under the Immigration Acts. This is necessary to ensure free movement of persons is fully repealed. [37]

Part 2 of Schedule 1 concerns "retained direct EU legislation", specifically, Regulation (EU) No 492/2011, ('the Workers Regulation'), which is saved in domestic law by the European Union Withdrawal Act 2018. The regulation provides for a range of rights stemming from workers' free movement rights, such as rights to equal treatment and access to education. As set out in the Bill's Explanatory Notes, the Bill is only concerned with repealing the parts specific to immigration and ending the effects of the regulation for immigration law purposes:

Paragraph 4, sub-paragraph (1), revokes Article 1 of the Workers Regulation, which is specific to immigration and provides a right to be in the territory of another member state to pursue employment. Paragraph 4, sub-paragraph (2), ensures other provisions of the Workers Regulation, which are not specific to immigration, do not have ongoing effects for UK immigration law but continue to have effect for other purposes. For example, this will prevent an individual claiming they have a right of residence in the UK under Article 10 of the Workers Regulation on the basis their child is in education here; this does not prevent the resident child of an EEA citizen who is legally resident and employed in the UK from being able to rely on Article 10 to access UK education on the same conditions as a British citizen. [38]

Part 3 of Schedule 1 would revoke directly effective EU rights flowing from section 2(1) of the European Communities Act 1972 that are retained by the Withdrawal Act. Some of these rights have implications for UK immigration law. They include, for example, the EEA and Swiss agreements, and the EU's Association Agreement with Turkey (which has provided immigration rights for Turkish workers and businesspeople).

Paragraph 6 provides that "Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures" saved by section 4 of the EUWA 2018 would no longer apply to the extent that they are inconsistent with or would affect the operation of immigration legislation and functions. The Bill's Explanatory Notes provide the following example:

For example, the residence rights that are derived from Articles 20 and 21 of the TFEU (rights of citizenship and free movement) will be retained EU law and, unless they are disapplied would provide a right to reside in the UK for certain groups, for example "Chen" carers who are primary carers of an EU citizen child who is in the UK and is self-sufficient. However, the rights derived from Articles 20 and 21 would continue to apply in non-immigration contexts unless disapplied.

The Bill's explanatory notes include a "non-exhaustive" list of the directly effective rights relevant to Paragraph 6 which is reproduced in Annex 1 to this briefing. [39]

Previous scrutiny / commentary

There is considerably less uncertainty about the post-Brexit immigration rights of EU citizens resident in the UK than there was when the 2017-19 version of the Bill was before Parliament.

However it is likely that campaigners will take the opportunity of this Bill to continue to raise concerns about certain aspects of the design and functioning of the EUSS, as was the case during the passage of the European Union (Withdrawal Agreement) Act 2020.

3.2 Irish citizens

Background [40]

Irish nationals have a special status in the UK which is separate to and pre-dates British and Irish membership of the EU. In short, Ireland is not considered to be a "foreign country" for the purpose of UK laws, and Irish citizens are not considered to be "aliens". The special status of Irish nationals dates back to the establishment of the Republic of Ireland in 1949.

Furthermore, British and Irish citizens can travel freely within the Common Travel Area (CTA) without being subject to passport controls. The CTA is a special travel zone between the Republic of Ireland and the UK, the Isle of Man and the Channel Islands. CTA arrangements have existed (in various forms) since the establishment of the Irish Free State in 1922. As per section 1(3) of the Immigration Act 1971, journeys that start and end within the CTA are not subject to immigration control.

Irish nationals living in the UK have other reciprocal rights stemming from these special arrangements, such as the right to work and study, access to health services and welfare benefits, and voting rights.

Irish nationals are not wholly exempt from immigration controls. They are still subject to powers to deport, remove or exclude them from the UK. Since 2007, the British Government's policy (which is not reflected in statute) has been to only deport Irish citizens in exceptional circumstances in 'the public interest', or where recommended by a criminal court. [41]

The UK's exit from the EU and the ending of EU free movement law in the UK gave impetus to longstanding concerns about uncertainty over the legal basis for Irish nationals' immigration status in the UK.

The Bill's Explanatory Notes give a succinct explanation of the issue that the Bill seeks to address:

Currently, due to the interplay between domestic legislation and EU free movement rights, a distinction exists between those Irish citizens who enter the UK from Ireland or the Crown Dependencies (the Common Travel Area (CTA)) and those who enter from a point of departure outside the CTA. Under the Immigration Act 1971, Irish citizens entering the UK from another part of the CTA do not require leave to enter or remain in the UK but otherwise are subject to immigration control, for example if travelling to the UK from outside the CTA. It is the EEA Regulations and section 7 of the Immigration Act 1988, which provide that Irish citizens arriving in the UK from outside the CTA do not require leave to enter or remain in the UK, due to their enforceable EU rights. As legislation relating to free movement and other EU law relating to immigration is being repealed, the Bill protects the rights of Irish citizens in the UK irrespective of where they have travelled from, providing the same immigration status to all Irish citizens that are currently only provided for in the Immigration Act 1971 for those travelling from within the CTA. [42]

The Bill

Clause 2 of the Bill protects Irish nationals' existing rights, by clarifying their legal status in the UK after free movement ends. It does this by making various amendments to the Immigration Act 1971.

Clause 2(2) inserts new section 3ZA into the 1971 Act. This new section confirms that Irish nationals do not require permission to enter or remain in the UK (and are therefore not subject to immigration controls), unless they are subject to a deportation order, or have been excluded from the UK or are the subject of an international travel ban.

Clause 2(3) amends section 9, which concerns the CTA, to ensure that the approach taken towards Irish nationals is in line with section 3ZA.

For the same reasons, clause 2(4) similarly amends Schedule 4 of the 1971 Act, which concerns the integration of UK law and the immigration law of Jersey, Guernsey and the Isle of Man ("the Islands").

Previous scrutiny / commentary

The identical clause in the 2017-19 version of the Bill was welcomed for providing clarity over the legal basis of Irish nationals' position in the UK. [43]

3.3 Meaning of "the Immigration Acts" etc.

Clause 3 amends section 61 of the UK Borders Act 2007, in order to ensure that the definition of "the Immigration Acts" across legislation includes Part 1 (and associated provisions in Part 3) of the Bill.

Clause 3(2) confirms that Part 1 of the Bill is not "retained EU law". This means it is not part of the body of law that is saved in UK law by the EU Withdrawal Act 2018.

3.4 Consequential etc. provision

Clause 4(1) gives the Secretary of State broad powers to make regulations in consequence of or in connection with the provisions in Part 1 of the Bill. These include "Henry VIII" powers to modify primary legislation, and powers to modify "retained direct EU legislation".

As per the Explanatory Notes, "This will enable the alignment of treatment for [EU and non-EU] citizens as part of the future immigration system, subject to saving certain provisions where appropriate and in accordance with the terms of the UK's withdrawal from the EU". [44]

Clause 4(4) gives scope to make regulations applying to EU citizens who did not have a right to be in the UK under EU law immediately prior to the repealing of free movement law. The Explanatory Notes give the following example of how these might be used:

For example, the provision could be used to make savings in relation to [EU] citizens who are in the UK by the end of the transition period and who are treated for most purposes as though they were exercising Treaty rights, although they are not actually doing so. An example of such a person would be the [EU] citizen spouse of a British citizen who does not have comprehensive sickness insurance and who is not otherwise exercising Treaty rights, such as the right to work, and who is therefore not technically exercising EU free movement rights. They can apply for leave under the EUSS and this provision ensures they can be treated under these regulations in the same way as other groups covered by the EUSS. [45]

Clause 4(5) provides that regulations may amend legislation relating to fees and charges which is made by or under primary legislation made before or in the same Session as the passing of the Bill. The Explanatory Notes indicate that this could be used in respect of fees or charges "which are connected with the wider repeal of free movement law, for example removing reference to fees for EU residence documents". [46] The Lords Delegated Powers and Regulatory Reform Committee's report on the 2017-19 version of the Bill did not consider this to be an adequate justification (discussed in 'previous scrutiny/commentary' section below).

Clause 4(6)-(9) sets out the parliamentary approval process for regulations made under Part 1 of the Bill.

Regulations made under clause 4 to amend primary legislation would be subject to the made-affirmative or affirmative procedures.

The first set of regulations made under this clause would be subject to the made-affirmative procedure. The made affirmative procedure is usually used when changes to the law are required urgently. Under this procedure, statutory instruments take effect immediately but cease to have effect after 40 days if not approved within that time by a resolution of each House. However, as per clause 4(10), if the first set of regulations ceased to have effect in this way,

this will not affect anything which has already been done under those regulations or prevent further regulations from being made. [47]

Any subsequent regulations modifying existing primary legislation would be subject to the draft affirmative procedure (i.e., they must have a draft laid before Parliament and be approved by resolution of each House within 40 sitting days). As per clause 4(8), regulations which do not amend primary legislation would be subject to the negative procedure. This means they would automatically become law on the day they are signed by the Minister, but may be annulled by resolution of either House within 40 sitting days.

Previous scrutiny/commentary

Some people object to Henry VIII powers in principle, on the grounds that they transfer legislative power from Parliament to the Government. Some argue that they are even more objectionable in the context of Brexit and related arguments about Parliament "taking back" control. [48] The 2017-19 version of the Bill contained an almost identical clause 4. It was one of the most controversial parts of the Bill. [49]

The Lords Delegated Powers and Regulatory Reform Committee's report on the 2017-19 Bill expressed concern about the wide scope of the regulation making powers. They stated:

We are frankly disturbed that the Government should consider it appropriate to include the words "in connection with". This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation). [50]

In their view, the clause gave a 'very significant delegation of power from Parliament to the Executive.' [51] The Committee came to this view due to the 'the combination of the subjective test of appropriateness, the words "in connection with Part 1", the subject matter of Part 1 and the large number of persons who will be affected'. [52]

Arguing against a related amendment tabled by the SNP at the Bill's Committee stage, which would have removed the wording "in connection with", the then Minister for Immigration said:

(…) I note that the amendment was recommended by the Delegated Powers and Regulatory Reform Committee. As I have explained, references to EEA nationals occur in numerous places across the entire statute book and in numerous different ways, not always by reference to free movement rights. The inclusion of "in connection with" is more appropriate to describe the provision that needs to be made for some of those cases. It is also better suited than the phrase "in consequence of" for the making of transitional provision for those who arrive in the UK after the commencement of the Bill. [53]

The Lords Delegated Powers and Regulatory Reform Committee also raised "significant concerns" about clause 4(5) (which was identically worded to the current Bill's clause 4(5)). It considered that the then Government's explanation for the purpose of the clause

… downplays the significance of subsection (5): in fact, it confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who, pre-exit, would have had free movement rights under EU law. [54]

The Committee recommended that clause 4(5) be removed "unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power". [55]

4. 4. Part 2: Social security co-ordination

Part 2 of the Bill would allow the Government (and/or where appropriate, a devolved authority) by regulations to modify retained EU legislation on social security co-ordination. Regulations would be subject to the affirmative procedure.

The Government states that this power is necessary to make provision for social security co-ordination, whether or not there is an agreement on Future Relations between the UK and the EU. It would also allow it to make provision for persons falling outside the scope of any future reciprocal social security agreements.

This part of the Bill is almost identical to Part 2 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill which fell at the end of the 2017-19 session. [56] At that time, the main justification for the power was to allow the Government to implement its preferred approach to social security co-ordination if the UK left the EU without a Withdrawal Agreement. The House of Lords Delegated Powers and Regulatory Reform Committee, however, concluded that the Government had not made a convincing case for why the power was necessary, and recommended that the relevant clause be omitted from the Bill entirely on the grounds that it contained an "inappropriate delegation of power."

With the Withdrawal Agreement now in force, the existing EU social security co-ordination rules continue to apply to EU nationals in the UK, to UK nationals in the EU, and to others in a cross-border situation at end of the transition period. Any changes made under powers in the current Bill would not affect people in this "protected cohort", for whom the existing co-ordination rules will continue to apply for as long as they remain within the scope of the Withdrawal Agreement.

4.1 What is social security co-ordination?

The European Union Social Security Co-ordination Regulations do not establish a single, unified social security system across the EU, but instead provide a reciprocal framework to protect the social security rights of people moving between EEA states (and Switzerland). [57] The main purpose of the co-ordination rules is to ensure that people who choose to exercise the right of freedom of movement do not find themselves at a disadvantage in respect of social security benefits – for example should they fall ill or become unemployed while working in another Member State. The Regulations do not guarantee a general right to benefit throughout the EEA, nor do they harmonise social security systems. Member States remain responsible for their social security systems and it is up to them to decide which benefits are granted, at what rate, and conditions for entitlement.

The primary function of the co-ordination rules is to support free movement throughout the EEA by removing some of the problems people might encounter when moving between states. Given the vast range of personal situations that could occur, and differences between social security systems, the rules are necessarily complicated, but at their core are four key principles: [58]

• At any one time a person is covered by the social security system of one country and is only liable to make contributions in one country – the 'competent state' (the 'single stateprinciple');
• A person has the same rights and obligations as a national of the Member State where they are covered ('equal treatment');
• Periods of insurance, employment or residence in other Member States can be taken into account when determining a person's eligibility for benefits ('aggregation'); and
• A person can receive benefits from one Member State even if they are resident in another Member State ('exportability').

A well-established system of administrative co-operation between countries ensures the effective operation of the co-ordination rules, dispute resolution and secure data sharing. [59]

The EU Regulations governing social security co-ordination are:

• Regulation 883/2004on the co-ordination of social security systems, and its associated implementing regulation,Regulation 987/2009;
• Regulation 1408/71on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, and its associated implementing regulation,Regulation 574/72; and
• Regulation 859/2003extending Regulation 1408/71 to nationals of non-EU Member Countries.

The most important measure is Regulation 883/2004 – sometimes referred to as the 'Modernised' Co-ordination Regulations. The Regulation it replaced – 1408/71 – now only applies in limited circumstances. [60]

The co-ordination rules do not cover all welfare benefits. Benefits are classed as 'social security' – and therefore come within the scope of the co-ordination rules – if they provide cover against certain categories of 'risk' (such as sickness, maternity/paternity, unemployment, or old age). Some benefits – 'special non-contributory benefits' – fall within the co-ordination rules but cannot be exported. Benefits which are neither social security benefits nor special non-contributory benefits fall into the category 'social and medical assistance' and are not covered by the co-ordination rules. The UK Government does not specify all the benefits it considers to be social assistance, but it considers Universal Credit to be a social assistance benefit and as such outside the scope of social security co-ordination. [61]

The box below gives examples of how the social security co-ordination rules apply in different scenarios. As this indicates, the Co-ordination Regulations cover not only social security but also reciprocal healthcare rights. [62]

Box 2: Social security co-ordination in action Example 1: the competent state Albert lives in the UK and is sent by his employer to work in Germany temporarily for 18 months. As the posting is not expected to last more than 24 months, he can remain insured under the UK social security system. Albert continues to pay UK National Insurance contributions while abroad and doesn't have to pay social insurance contributions in Germany. Example 2: the competent state Magda is a Danish national in receipt of a Danish state pension. She moves to the UK and claims Attendance Allowance. As Denmark is responsible for reimbursing the cost of any NHS treatment she receives, it is also the competent state for cash sickness benefits. The DWP therefore decides that Magda is not entitled to Attendance Allowance, but forwards her claim to the Danish authorities for them to determine whether she is entitled to a Danish cash sickness benefit. Example 3: aggregation Barbara moves to the UK from Poland and starts work. After 12 months she is made redundant and makes a claim for contribution-based Jobseeker's Allowance. Barbara's UK NI contributions aren't sufficient for her to get contribution-based JSA, but she can use periods of insurance from her previous work in Poland to help satisfy the conditions. The DWP contacts the Polish authorities to get details of Barbara's insurance record. Example 4: aggregation Jo worked in France after leaving university, before returning to the UK in 2008. He continued to work and pay UK NI contributions until reaching State Pension age in November 2018. Jo doesn't have to make separate claims to get his French and UK state pensions – he submits a single claim to the DWP. The International Pension Centre in Newcastle contacts the French pension authority, which calculates his entitlement to the French state pension and put this into payment. It also calculates Jo is entitled to 9/35ths of the full amount of the UK State Pension (on the basis that he had nine of the 35 'qualifying years' required) and puts this into payment. His period of insurance in France meant he satisfied the minimum qualifying condition (ten qualifying years), although his actual entitlement is based on nine. Example 5: exportability Ana, a UK national, retires to Spain, having worked in the UK for 30 years. Her UK State Pension is paid to her in Spain and uprated annually each year, on the same basis as in the UK. As Ana is in receipt of a UK State Pension, she can also obtain an S1 form from the Department of Health's Overseas Healthcare Service. This entitles her to healthcare in Spain, with the UK reimbursing the cost of any treatment she receives. Further information:

European Commission, EU social security coordination Child Poverty Action Group, Welfare benefits and tax credits handbook 2019-2020, Chapter 70 TRESS network, A-Z of coordination E-learning tool

In 2018/19, UK benefits totalling over £2 billion were exported to around 500,000 claimants living in EEA countries. Over 90% of this expenditure was on State Pensions, and over 90% of the recipients of a DWP benefit or pension were UK or Irish nationals.

At February 2019, around 90% of the 482,400 UK State Pension recipients in the EEA were residing in EU Member States who joined prior to 2004. Three countries accounted for over 60 of the total: 132,000 recipients were resident in Ireland, 105,500 in Spain, and 65,800 in France. [63]

The EU Social Security Co-ordination Regulations are not the only provisions on which people moving between the UK and other countries can rely to protect their entitlement to benefits. The UK also has a number of bilateral reciprocal social security agreements with individual states, including some non-EEA countries.UK/Ireland Convention on Social Security agreed in 2019 – see section 4.3 below) none are as comprehensive as the EU rules. [64] While these may include similar provisions to the Co-ordination Regulations – covering for example equal treatment, aggregation, and uprating of exported pensions – the bilateral agreements vary widely in scope and (with the exception of the [65]

The social security agreements the UK has with EEA states [66] were superseded by the EU Co-ordination Regulations [67] but remained in force for limited purposes (e.g. in relation to individuals who did not come within the scope of the EU Regulations).

4.2 The Withdrawal Agreement

The United Kingdom's Withdrawal Agreement with the EU – given effect in the UK by Part 3 of the European Union (Withdrawal Agreement) Act 2020 – sets out a framework for the continued legal residence (and associated rights, including social security and healthcare) of EU citizens living in the UK, and UK nationals living in the

EU, at the end of the transition period (the "protected cohort"). Equivalent separation agreements have been made with Switzerland and with the EEA EFTA states – Iceland, Liechtenstein and Norway. Individuals will be able to rely on the Withdrawal Agreement and separation agreements directly to assert their rights.

The citizens' rights section in the Withdrawal Agreement negotiated by the Johnson Government was unchanged from the Withdrawal Agreement previously negotiated by the May Government. Citizens' rights were agreed at a relatively early stage of EU-UK negotiations.

The Withdrawal Agreement allows social security co-ordination to continue to apply to people after the end of the transition period, for those coming within the scope of the Agreement. [68] The UK Government's Explainer for the previous Withdrawal Agreement 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." [69] The Agreement also provides protections in other circumstances so that, for example, where a UK national has previously worked and paid social security contributions in a Member State, rights flowing from those contributions, such as benefits, pensions, and reciprocal healthcare rights, are protected.

For further background to the social security co-ordination provisions in the Withdrawal Agreement, see section 3 of Commons Library briefing CBP-8772, Citizens' rights provisions in the European Union (Withdrawal Agreement) Bill 2019-20, 3 January 2020. A more detailed analysis of relevant Articles in the Agreement is given in Library briefing CBP-8453, The UK's EU Withdrawal Agreement, 8 July 2019.

4.3 Retained EU law on social security co-ordination

The European Union (Withdrawal) Act 2018 converts EU law into 'retained EU law' in order to maintain a functioning statute book. This includes the EU Regulations relating to social security co-ordination.

Section 8 of the 2018 Act also gives Ministers a power to make regulations to prevent, remedy or mitigate-

• any failure of retained EU law to operate effectively, or
• any other 'deficiency' in retained EU law

As originally passed, the 2018 Act provided for retained EU law to come into force from the moment of the UK's exit from the EU. The European Union (Withdrawal Agreement) Act 2020 amended these powers so that retained EU law comes into force at the end of the transition period. The Withdrawal Agreement Act also amended the 'deficiency-correcting' powers in the 2018 Act to allow them to correct deficiencies arising both from the UK leaving the EU and ceasing to be a Member State, and from the termination of any other effect of the transition period or the Withdrawal Agreement.

In early 2019, the Government laid before Parliament four sets of regulations to remedy deficiencies in retained EU law on social security co-ordination:

• The Social Security Coordination (Regulation (EC) No 883/2004, EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2019; SI 2019/722
• The Social Security Coordination (Regulation (EC) No 987/2009) (Amendment) (EU Exit) Regulations 2019; SI 2019/723
• The Social Security Coordination (Council Regulation (EEC) No 1408/71 and Council Regulation (EC) No 859/2003) (Amendment) (EU Exit) Regulations 2019; SI 2019/726
• The Social Security Coordination (Council Regulation (EEC) No 574/72) (Amendment) (EU Exit) Regulations 2019; SI 2019/721

The regulations were subject to the affirmative procedure. They were debated in the House of Lords on 5 March 2019 [70], and in the Commons in a Delegated Legislation Committee on 20 March. [71]

At that time, the stated purpose of the four Statutory Instruments was to remedy deficiencies in retained EU law to ensure that retained EU law on social security co-ordination was operable in a 'no-deal' scenario where the UK left the EU without a Withdrawal Agreement, and with no Future Relationship agreement. The DWP's Explanatory Memorandum accompanying the regulations stated:

Why is it being changed?

2.4 The whole system of social security coordination relies on cooperation and reciprocity from other Member States ('MS'); but we cannot assume this would continue in a no deal scenario. It will not be possible to impose reciprocal obligations on MS when correcting deficiencies in the Coordination Regulations - such as requiring that they cooperate with the UK or provide information, or that they apply the rules contained in the Coordination Regulations to individuals moving to/from the UK.

What will it now do?

2.5 These instruments address deficiencies in retained law caused by the UK withdrawing from the EU, which would impact the operation of the retained Coordination Regulations in a no-deal scenario.

2.6 These instruments aim to ensure that citizens' rights are protected as far as possible in a no-deal scenario. As per the intent of the EU (Withdrawal) Act 2018, these instruments aim to maintain the status quo. These instruments are intended to ensure a functioning statute book in the event of a no deal scenario, by fixing deficiencies in retained EU law, in line with the power provided by section 8.

The regulations delete Articles referring to bodies at the EU level concerned with administrative or technical matters arising from social security co-ordination – such as the Administrative Commission – since these bodies would no longer have had any powers or functions in relation to the UK in a no-deal scenario.

The regulations also include provisions intended to ensure that, to the extent that the UK could do so unilaterally, social security co-ordination could continue to operate if there is no agreement with the EU. Changes made include:

• Provisions to enable the DWP to ask claimants themselves to provide evidence to help determine the 'competent state' for benefits, where the relevant Member State does not respond to a request for information. Provisions for people living in an EEA country to provide medical evidence where this is required for benefits purposes.
• Removing Articles covering provisional payment of benefits where there is a dispute between Member States regarding competence (although the Explanatory Memorandum stated that such payments are extremely rare – the DWP has only ever made provisional payments in two instances).
• Provisions relating to situations where people resident outside of the UK remain liable to pay UK National Insurance contributions.

Further information can be found in the Explanatory Memorandum accompanying the regulations.

Social Security Convention with Ireland

Whilst a failure of the UK and EU to negotiate a Future Relationship agreement covering social security co-ordination could be problematic for people moving between the two jurisdictions after the end of the transitions, the UK and Irish governments have made arrangements to ensure that the social security position for people moving between the UK and Ireland will remain broadly the same as now.

The Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland, signed on 1 February 2019, broadly replicates the provisions in the EU social security co-ordination regulations for UK and Irish nationals moving between the UK and Ireland. The DWP's Explanatory Memorandum on the Convention notes that the UK and Irish governments "recognise the special status that UK and Irish nationals have in each other's countries", stating that the Convention "upholds the principles of equal treatment and reciprocity created by the Common Travel Area in 1922." It adds:

The Convention demonstrates a continued commitment to the principles of the Common Travel Area and ensures that reciprocal benefit and social security rights for Irish and UK nationals and their family members continue to operate independently of those afforded to EU nationals from other Member States.

The Convention is expected to enter into force at the end of the transition period.

4.4 Co-ordination after the transition period

As explained in section 4.2 above, The Withdrawal Agreement protects the social security rights of the 'protected cohort' of people in a cross-border situation at the end of the transition period, and past rights accrued under the social security co-ordination regulations.

For people moving between the UK and the EU after the transition period, the situation will depend on whether a Future Relationship agreement covering social security co-ordination is agreed. If no agreement is reached on social security co-ordination, people moving between the UK and the EU could (unless the Social Security Convention with Ireland applies) encounter various problems, such as:

• Being unable to aggregate contributions paid or periods of residence in the UK and the EU states to satisfy the conditions for benefits;
• No clear rules about which country, if any, is responsible for paying a person's benefits where they have lived in more than one country, and no mechanism for resolving disputes; and
• Posted workers – i.e. employees working in another country temporarily – finding themselves liable to pay social security contributions in both countries, instead of remaining insured only under the scheme of their home country.
• State Pensions for UK pensioners moving to EU countries after the end of the transition period being frozen at the rate payable when they moved abroad.[72]

In the UK, the retained EU social security co-ordination regulations (amended to address 'deficiencies', as outlined in section 4.3 above) would come into force. Social security co-ordination would only operate to the extent that the UK can apply the rules unilaterally, however. The UK would not be able to impose reciprocal obligations on EU states, such as requiring them to provide information on individuals' social insurance records.

For some EU states, the UK has bilateral reciprocal social security agreements which pre-date their, or the UK's, EC/EU entry. These agreements were superseded by the co-ordination rules, but remain in force for limited purposes. Should the co-ordination rules cease to apply, it is possible that these bilateral agreements might become applicable again, although this is by no means certain. [73] These bilateral agreements are however far more limited in scope than the EU co-ordination rules, and vary widely in terms of the persons and benefits covered. They may also refer to benefits which no longer exist. Administrative mechanisms would also need to be established in tandem with each of the other countries for any reciprocal arrangements to work.

Failure to agree a future system for social security co-ordination could pose a major challenge for people working across borders and their employers. A January 2020 briefing note produced by consultants PWC voices concern that during the transition period negotiations are likely to focus on trade agreements, potentially leaving social security as a lower priority. It adds:

When the transitional and social security coordination rules cease to apply, employers could face the same uncertainty that the well-known 'No Deal' scenario created with an uncoordinated social security situation.

This 'No Deal' scenario could come in many different sizes, resulting in greater complexity and potentially increased costs relating to social security compliance after December 31, 2020 if no new arrangements are in place. This likely will depend on how each of the other European countries manages social security coordination going forward. There is an overarching hope that the UK and the EU27 come to an agreement to continue to apply rules that broadly mirror the existing rules, but this may or may not occur. [74]

The Political Declaration and negotiations during the transition period

The Political Declaration setting out the framework for the Future Relationship between the EU and the UK touches only briefly on social security co-ordination. For those moving between the EU and the UK after the end of the transition period, it states that the EU and the UK would "agree to consider addressing social security coordination in the light of future movement of persons", as part of future mobility arrangements base on non-discrimination between the EU states and "full reciprocity." [75]

A recent commentary suggests that while EU negotiators would prefer future arrangements to mirror as closely as possible the existing social security co-ordination regulations, the UK Government's preference is for a much less comprehensive agreement covering only some contributory benefits. [76] The Government's statement on 27 February on the UK's approach to negotiations on the Future Relationship with the EU would appear to confirm that this is indeed their starting point:

Mobility and Social Security Coordination

17. 17. Social security coordination can remove barriers and support mobility of labour between countries. Arrangements that provide healthcare cover for tourists, short-term business visitors and service providers, that allow workers to rely on contributions made in two or more countries for their state pension access, including uprating principles, and that prevent dual concurrent social security contribution liabilities, could be good for business and support trade. These arrangements could benefit UK nationals and EU citizens travelling or moving between the UK and the EU in future.
18. 18. The UK is ready to work to establish practical, reciprocal provisions on social security coordination. Any agreement should be similar in kind to agreements the UK already has with countries outside the EU and respect the UK's autonomy to set its own social security rules. These arrangements should support mobility by easing the process for those working across borders, including underpinning the reciprocal arrangements on the temporary entry and stay for business purposes ('Mode 4' provisions).[77]

The table below summarises the coverage – in terms of UK benefits – of the reciprocal social security agreements the UK has with countries outside the European Economic Area (EEA). [78]

Benefits covered in the UK's reciprocal social security agreements with countries which are not part of the EEA

Note
(a) The agreement with the former Yugoslavia was carried over to separate agreements with Bosnia-Herzegovina, Kosovo, North Macedonia, Montenegro and Serbia.
Source
DWP, Decision Maker's Guide, para 070333
Child Poverty Action Group, Benefits for migrants handbook, 10th edition, 2018, Appendix 5

Coverage of the UK's reciprocal agreements with non-EEA states varies widely from country to country – there is no single model. While all the agreements cover (at least to some degree) state pensions including annual uprating, none of the agreements with jurisdictions beyond the British Isles cover extra-costs disability benefits (Attendance Allowance, Disability Living Allowance, or Personal Independence Payment), or Carer's Allowance. In 2018/19, 5,000 people receiving DLA or PIP, 3,000 people receiving Attendance Allowance, and 1,000 Carer's Allowance claimants, were living in other EEA states. [79]

Further information on the UK's bilateral reciprocal social security agreements can be found in Chapter 15 of the Child Poverty Action Group's Benefits for migrants handbook. [80]

4.5 The Bill

Part 2 of the Bill (clause 5 and Schedules 2-3) covers powers to amend retained EU law governing social security co-ordination (as 'corrected' to address 'deficiencies' by regulations made under section 8 of the EU (Withdrawal) Act – see section 4.3 above), and make consequential changes to other legislation. Further background information can be found in the Explanatory Notes accompanying the Bill as introduced in the Commons [81], and other [82] policy documents published alongside the Bill.

Any changes to social security co-ordination made under the powers in the Bill would not affect those in the 'protected cohort' covered by the Withdrawal Agreement, provided they remain in scope of the WA (see section 4.2 above). Nor would they affect UK and Irish citizens moving between the UK and Ireland, for whom the Convention on Social Security with Ireland (section 4.3 above) maintains the status quo.

The Explanatory Notes state that the powers in Part 2 of the Bill would-

…enable DWP or HM Treasury (or where appropriate a devolved authority) to make changes to retained SSC [social security co-ordination] arrangements whether the UK has a future agreement with the EU at the end of the transition period or not. It would also allow provisions to be made for persons who fall outside of the scope of any future reciprocal agreements, for example, but are within the scope of the Withdrawal Agreement or the equivalent arrangements with the EEA EFTA States or Switzerland. [83]

Clause 5 provides a power to modify, by regulations under the affirmative procedure (see Schedule 3), retained direct EU legislation relating to social security co-ordination, specifically:

• Regulation 883/2004on the co-ordination of social security systems, and its associated implementing regulation,Regulation 987/2009;
• Regulation 1408/71on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, and its associated implementing regulation,Regulation 574/72; and
• Regulation 859/2003extending Regulation 1408/71 to nationals of non-EU Member Countries.

The power may be exercised by an 'appropriate authority.' This means the UK Government or a devolved authority, or both acting jointly. This is covered further below.

The power conferred by clause 5 is a broad one. The legislation may be amended, or repealed/revoked completely. [84] Regulations may make different provision for different categories of person and for different purposes, as well as making consequential, supplementary, incidental, transitional, transitory or saving provision. The power to make such provision also includes the power to modify any primary legislation [85], and retained EU legislation other than that listed above.

Regulations may also provide for a person 'to exercise a discretion in dealing with any matter.' There is no mention of the circumstances where discretion might be exercised in any of the documents published alongside the Bill.

Clause 5(5) allows any directly effective rights derived from retained EU law to be disapplied if they are inconsistent with, or would otherwise effect, any changes made by regulations. The ECHR memorandum states:

This allows effect to be given to policy changes after the end of the transition period which depart from the social security coordination regime that has been retained. This is broadly consistent with the approach adopted in other policy areas in relation to rights saved by section 4 of the [[EU (Withdrawal) Act 2018]. [86]

The Delegated Powers Memorandum states the power in clause 5-

…is necessarily broad so as to enable an appropriate authority to respond flexibly to the outcome of negotiations on the future framework and make changes to the retained social security co-ordination rules. These rules cover a wide range of issues and, in developing a framework for future social security co-ordination policy, the following matters may be under consideration:

• what access EEA citizens will have in the future to certain UK benefits and pensions;
• the extent to which UK nationals or EEA citizens can export certain benefits and pensions if they move to an EEA State; and
• the administration and rules which govern entitlement and obligations when people live and work in more than one country.

31. 31. This power will provide the appropriate authorities with the ability to deliver a range of policy options from the end of the transition period in any or all of these areas.[87]

The Delegated powers memorandum also emphasises that the power can only be used to modify retained EU legislation relating to social security co-ordination and for connected purposes, and that the affirmative procedure ensures that use of the powers is subject to "appropriate Parliamentary scrutiny." [88]

The Factsheet on social security co-ordination published alongside the Bill also states that the power in clause 5 will be necessary to deliver on the Government's commitment to restrict access to income-related benefits for people subject to the proposed new immigration system:

As set out in the UK's points-based immigration system: policy statement, access to income-related benefits will be the same for EU and non-EU citizens arriving after January 2021; it will only be permitted after indefinite leave to remain is granted, usually available after five years of continuous residence. As certain UK benefits paid to EEA/Swiss nationals in the UK fall under the scope of the SSC regulations as Special Non-Contributory Benefits, the government will need the power in [clause 5] of the bill to deliver on this commitment.

Schedule 2 covers the scope of the powers granted to devolved authorities, the circumstances where devolved authorities would require the UK Government's consent to exercise the powers, and when devolved authorities would only be able to exercise powers jointly with the UK Government. Schedule 3 would set out further detail on the scrutiny of regulations. Paragraphs 27-29 of the Delegated powers memorandum summarise the effect of these Schedules.

Devolved authorities would only be able to exercise powers to amend social security co-ordination legislation to the extent that it is within their legislative competence. Social security is not devolved to Wales, so the National Assembly for Wales would not be able to exercise powers in this area. Under the Scotland Act 2016, the Scottish Parliament now has full powers in relation to certain categories of benefits including disability and carer's benefits; and benefits for maternity, funeral and heating expenses. Social security is devolved in Northern Ireland, but the long-standing 'parity' principle – now enshrined in the Northern Ireland Act 1998 [89] – requires Northern Ireland to keep in step with the rest of the UK in social security matters. So the extent to which a Northern Ireland Assembly would be able to exercise powers to amend legislation in relation to social security co-ordination is unclear.

4.6 Social security co-ordination and the 2017-19 Bill

Virtually identical provisions on social security co-ordination were included in Part 2 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 introduced by the May Government. The Bill did not proceed beyond the Commons Committee Stage.

The Lords Delegated Powers and Regulatory Reform Committee, and expert witnesses who gave evidence to the Public Bill Committee, commented on the powers conferred on Ministers by Part 2 of the Bill.

Lords Delegated Powers Committee report

In its report on the 2017-19 Bill, the House of Lords Delegated Powers and Regulatory Reform Committee observed:

Part 2 of the Bill gives current and future Ministers almost absolute power to rewrite the Co-ordination Regulations at any time of their choosing. Parliament will have no opportunity to amend this Ministerial legislation; the two Houses would be asked only to approve or reject it under the affirmative procedure. [90]

In the Committee's view, the reasons given by the Government why such powers were needed were "an inadequate justification for a wholesale transfer from Parliament to the Government of power to legislate in a field that could…. have a major impact on large numbers of UK citizens resident in EEA members states, and EEA nationals resident in the UK…" [91]

The Committee's report continued:

The [DWP's Delegated Powers] Memorandum does not explain: • the necessity of Ministers having the clause 5 power immediately upon EU exit;

• how the Government might seek to use it;
• why it includes a power to amend primary legislation and retained direct EU legislation not listed in clause 5(2);
• why it is not time limited;
• why Ministers will have no duty to consult before making regulations.[92]

The report noted that the Committee had repeatedly made it clear that, if a bill is wholly or mainly a skeleton bill, it expected a full justification for the decision to adopt that structure of powers. It also noted that a recent report by the Lords Constitution Committee stated:

Skeleton bills inhibit parliamentary scrutiny and we find it difficult to envisage any circumstances in which their use is acceptable. The Government must provide an exceptional justification for them, as recommended by the DPPRC's guidance for departments; it cannot rely on generalised assertions of the need for flexibility or future-proofing. [93]

The Delegated Powers Committee's report stated (original emphasis):

This requirement to provide "an exceptional justification" applies even more strongly where, as in this case, Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton. [94]

The Committee said that there appeared to be "no particular need for Ministers to have these powers in the near future" given the expectation that retained EU law on social security co-ordination would be in place. Moreover, the Committee noted that there was no indication at all in any of the documents accompanying the Bill that the Government had at the time even begun to devise its policy on the future of social security co-ordination, adding that much would depend on what (if any) arrangements could be negotiated with the EU and Member States after the UK's exit from the EU. [95]

The Committee's report continued (original emphasis):

51. 51. The clear impression is that the Government are seeking these powers in order to avoid:

• having to prepare a detailed bill implementing their policy once it is settled, and any future arrangements with the EU are concluded; and
• then to submit that bill for full Parliamentary scrutiny.

52. 52. While the affirmative procedure would apply to the power in clause 5, this cannot remedy an inappropriate delegation of legislation power.
53. 53.The Committee therefore recommends that clause 5 should be omitted from the Bill on the ground that it contains an inappropriate delegation of power.

Committee Stage proceedings

Witnesses giving evidence to the Public Bill Committee for the 2017-19 Bill also commented on the breadth of the powers conferred by clause 5. Jodie Blackstock of the law reform and human rights organisation Justice said that clause 5 was the most concerning clause in the Bill, and ought to be deleted entirely. [96] Given that social security co-ordination was vital to protect the rights of EEA nationals in the UK and UK nationals in EEA states, Justice believed that it was "wholly inappropriate for the Bill to grant the Government unlimited power to legislate for policy in this important field." [97] It argued that the EU (Withdrawal) Act 2018 already provided sufficient powers to make regulations (as the Government had done) to maintain the status quo as far as possible until an agreement on social security co-ordination was reached with the EU, at which point further primary legislation would be required.

Professor Steve Peers of the University of Essex also thought that clause 5 "does seem like an awfully broad power", adding "It would be useful, I think, for Parliament to insist on some sort of statutory limits or guidelines in primary legislation as to how the Government might use their power." [98]

Jeremy Morgan, vice-chair of British in Europe, thought that the powers were "very open ended, and to my mind they are unnecessary, certainly at this stage." He added:

There is no need for any rushed legislation on this. The existing law, which we are told it is the intention of the Government to preserve, is in place. The amended statutory instrument is in place. The new regulations are simply there to make further changes, as yet unspecified. No policy reasons for that are put forward in any of the supporting documentation. It is unnecessary, very broad and very worrying. [99]

Clause 5 and Schedules 2 and 3 were considered at the Committee's 7th sitting on 28 February 2019. [100]

For Labour, Kate Green moved amendment 26 which was intended to prevent the Secretary of State from making regulations which might remove the ability of UK and EEA nationals to aggregate pension and social security rights. Speaking to her amendment, she sought clarification from the Government on-

• why the powers were considered necessary;
• what the Government's intentions were as regards their use;
• contingency plans to help returning UK nationals;
• future commitments to uprating State Pensions for UK nationals in EU countries; and
• continued protection for posted and frontier workers.

Kate Green concluded:

…through my amendment I seek to curtail Ministers' delegated powers in relation to social security co-ordination. The Government have stated that the anticipated policy changes, both in a no-deal scenario and in certain deal scenarios, could not otherwise be delivered by existing powers such as the European Union withdrawal agreement powers. However, in my view, such policy changes, or at least the principles of the policy, should be set out in primary legislation. That will be the case in a deal scenario, as the withdrawal agreement and its implementing primary legislation will address future policy on social security co-ordination. In a no-deal scenario, the European Union (Withdrawal) Act 2018 provides sufficient powers to make regulations—indeed, the Government have already drafted them—to maintain the status quo as far as possible until an agreement on social security co-ordination is reached with the EU for the future, at which point further primary legislation will be needed. [101]

For the Government, the then Minister for Employment, Alok Sharma, said:

The hon. Lady asked why future policy was not set out in the clause. She knows that the clause provides the legislative framework to deliver the future policy at the appropriate time. Future policy changes will be set out in regulations and will be subject, as she pointed out, to the affirmative procedure. If Opposition Members do not agree with any such regulations, they will have the opportunity to vote against them. Further impact assessments and appropriate consultation will follow those proposed changes. [102]

The amendment was defeated by 10 votes to 9. [103]

In the debate on whether clause 5 and Schedules 2 and 3 should stand part of the Bill, Labour and SNP members drew attention to the points raised by the Delegated Powers Committee and the organisations that gave evidence to the Public Bill Committee about the need for the powers and their scope. For Labour, Afzal Khan said:

…secondary legislation does not provide Parliament with an opportunity for adequate scrutiny and oversight of major policy changes. The rights in question were brought in by primary legislation, and it is only right that their removal should be possible only with the same level of scrutiny. [104]

For the SNP, Gavin Newlands said that the Government had already awarded itself too many broad Henry VIII powers and that all too often the justification for needing those powers was "wholly insufficient." The SNP firmly believed that clause 5 should not stand part of the Bill. [105]

Clause 5 and Schedules 2 and 3 were agreed without a vote. [106]

5. 5. Part 3: General provisions

Part 3 of the Bill sets out its defined terms, territorial extent, arrangements for commencement, and short title.

5.1 Interpretation

Clause 6 provides for the interpretation of terms referred to in the Bill.

5.2 Territorial extent

Clause 7 details the Bill's territorial extent. The Bill applies to the whole of the UK. Clause 7(2) gives scope to extend any of the provisions of Part 1, "with or without modifications" to any of the Channel Islands, the Isle of Man, and any of the British overseas territories. This would be done by Order in Council.

The Government will seek a Legislative Consent Motion from the Scottish Parliament and Northern Ireland Assembly in respect of clause 5. This is because they have legislative competence to amend elements of the retained social security co-ordination regulations.

They do not have legislative competence in relation to the immigration-related matters in the Bill.

5.3 Commencement

Clause 8 provides that the provisions in Parts 1 and 2 come into force on a date/dates (or time of a day) appointed by statutory instrument.

Part 3 comes into force on the day the Bill (Act) is passed.

Annex 1: Directly effective rights to be revoked

Directly effective rights relevant to Schedule 1, Part 3, paragraph 6

[…]

Annex 2: The new points-based system

Sponsored skilled workers

Salary and skill thresholds

The skills threshold for jobs covered by skilled worker visas will be reduced from RQF level 6 (e.g. honours degree/level 6 NVQ) to RQF level 3 (e.g. A/AS-level).

Applicants will need to be paid either the general salary threshold (£25,600) or the "going rate" for the profession in question (whichever is higher). A 30% reduction in the salary thresholds will be applied for "new entrants" (i.e. people aged under 26, people switching from student visas and recent graduate recruits). There will not be any regional variations in the minimum salary thresholds.

As an exception to the above, the minimum salary thresholds for certain specified occupations (in the NHS and schools) will be based on published pay scales.

Applicants with a job offer paying less than the general/going rate (but no less than £20,480) may still be able to acquire enough points to be eligible for a visa, by 'trading' other points-scoring attributes against their lower salary.

The points test

Applicants will need a total of 70 points to be eligible for a visa.

The core requirements that all applicants must satisfy will be:

• A job offer from an approved sponsor [20 points]
• The job must be at an appropriate skill level [20 points]
• English language ability [10 points]

There is a degree of flexibility over how the applicant can make up the remaining 20 points:

• By satisfying the general/going rate salary threshold (£25,600 or above) [20 points]; or
• By doing a job in a shortage occupation [20 points]; or
• By having a PhD relevant to the job [10 points] and a salary of £23,040 or above [10 points]; or
• By having a PhD in a STEM subject relevant to the job [20 points].[107]

Highly skilled workers

The policy statement indicates that there will be two distinct routes catering for highly-skilled workers:

• TheGlobal Talent route, currently open to non-EU nationals and open to new EU applicants from January 2021. This is for people endorsed as having exceptional talent or potential in certain specified fields • Anew unsponsored route "for the most highly-skilled workers". The Government intends to consult on the design of this route and it is unlikely to be implemented in January 2021.

Work below medium skill level (RQF level 3)

The Government does not intend to open a route for work classified at lower skill levels. It suggests that employers should invest in "staff retention, productivity, and wider investment in technology and automation" rather than relying on immigration.

The policy paper notes that there will still be some migrant workers with rights to work at any skill level. For example, EU nationals who moved to the UK before the end of the transition period, and young people entering through the Tier 5 Youth Mobility Scheme (a temporary visa, restricted to certain nationalities and valid for two years). Some stakeholders have questioned whether it is feasible or desirable to expect these groups of people to do the types of work that would be affected.

Sector-specific schemes

The Government has already opened a pilot visa category for Seasonal Agricultural Workers, which is due to be quadrupled in size to 10,000 places annually. There have been calls for tailored arrangements for certain other sectors, for example social care. [108] Similar calls have been made in the construction industry, which is also concerned about the impact of ending routes of entry for self-employed workers. [109]

___________________________________

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[1] Immigration and Social Security Co-ordination (EU Withdrawal) Bill: overarching documents, Gov.uk [accessed 6 March 2020]

[2] Bill 104-EN, para 3

[3] This briefing uses the term 'EU' nationals to cover EU, EEA and Swiss nationals.

[4] Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020, SI 2020/61

[5] ONS, 'Population of the UK by country of birth and nationality July 2018-June 2019', table 2.1, and 'Population of the UK by country of birth and nationality: individual country data July 2018-June 2019', table D

[6] More detailed estimates were made in House of Commons Library, Insights for the New Parliament 2019 (January 2020), p.16-17

[7] Independent Chief Inspector of Borders and Immigration, An inspection of the EU Settlement Scheme, November 2018-January 2019

[8] Home Office, Home Office in the media: Monday 28 October: 'EU Settlement Scheme statistics'.

[9] Home Office, EU Settlement Scheme statistics, January 2020, tables 1 and 2.

[10] The Library briefing paper The UK's future immigration system (October 2019) gives an overview of related developments under the May and Johnson governments up to the 2019 General Election.

[11] CP 220 of 2019-21

[12] A press release issued to selected journalists during the 2019 General Election campaign (and reproduced on the Free Movement immigration law blog) had also set out some details.

[13] HM Government, The UK's future skills-based immigration system, Cm 9722, 19 December 2018

[14] Lower salary thresholds will apply for "new entrants" (people under 26, people switching from student visas, and recent graduate recruits).

[15] For example, Politics Home, Points based immigration needs refinement - NFB, 19 February 2020; Scottish Care, Latest blog from our National Director: Immigration Workforce, 25 February 2020; London First, Lower salary threshold welcome, but businesses need time to adapt, 19 February 2020

[16] HM Government, Explainer for the agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union,

[17] Paras 52, 49

[18] HM Government, The Future Relationship with the EU: The UK's Approach to Negotiations, 27 February 2020

[19] Read more about the 'International Passenger Survey' in the Library's Insight, 'Migration statistics: where do they come from?'

[20] ONS, Population by Country of Birth and Nationality, June 2019

[21] This estimate covers all countries that were EU member states in 2011, so it does not include a small number of people born in Croatia, which joined the EU in July 2013.

[22] ONS, What information is there on British migrants living in Europe?: Jan 2017

[23] ONS, Living abroad: dynamics of migration between the UK and Ireland

[24] ONS, Living abroad: British residents living in the EU: April 2018

[25] ONS, Living abroad: dynamics of migration between the UK and Ireland

[26] ONS, Population by Country of Birth and Nationality, June 2019

[27] United Nations Global Migration Database, International migrant stock by destination and origin . Note that although the majority of EU countries submit 'country of birth' data to the UN's database, some submit citizenship figures instead.

[28] Iceland, Switzerland, Norway, and Liechtenstein.

[29] Any person who holds the nationality of an EU Member State is automatically also an EU citizen. EU citizenship is additional to nationality of a Member State and does not replace it.

[30] Unless stated otherwise, references in this briefing to EU citizens in discussion of clauses in Part 1 of the Bill exclude Irish citizens.

[31] The regulations also cover the free movement rights of non-EU EEA citizens and Swiss citizens.

[32] Articles 45-48 TFEU and Articles 49-53 TFEU respectively

[33] The regulations also cover the free movement rights of non-EU EEA citizens and Swiss citizens.

[34] Bill 104-EN, para 8. The transition period could be extended, but the Government has said it does not want to, and has legislated to prohibit itself from doing so.

[35] 'EU citizens' in this context excludes Irish citizens, who are subject to separate provisions discussed in the section on clause 2 of the Bill.

[36] Bill 104-EN, para 10

[37] Bill 104-EN, paras 60-62

[38] Bill 104-EN, para 65

[39] Bill 104-EN, para 69

[40] For a more detailed overview, see Commons Library Briefing 'The Common Travel Area and the special status of Irish nationals in UK law'.

[41] PQ HL14521 [on Immigration: Islamic State], answered 27 March 2019

[42] Bill 104-EN, para 29

[43] 'Immigration Bill to end EU free movement finally published', Free Movement, 20 December 2018

[44] Bill 104-EN, para 4

[45] Bill 104-EN, para 37

[46] Bill 104-EN, para 38

[47] Bill 104-EN, para 40

[48] For example, ILPA Briefing on Henry VIII Clauses at the Committee Stage of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, 19 February 2019

[49] For a summary of related discussions at second reading and Committee stage, see Commons Library Briefing CBP8532, Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19:Progress of the Bill, 22 March 2019

[50] 46th Report of Session 2017-19: Immigration and Social Security Co-ordination (EU Withdrawal) Bill, HL 275 2017-19, 30 January 2019, para 30

[51] 46th Report of Session 2017-19: Immigration and Social Security Co-ordination (EU Withdrawal) Bill, HL 275 2017-19, 30 January 2019, para 15

[52] 46th Report of Session 2017-19: Immigration and Social Security Co-ordination (EU Withdrawal) Bill, HL 275 2017-19, 30 January 2019, para 15

[53] PBC Deb 26 February 2019 c185

[54] 46th Report of Session 2017-19: Immigration and Social Security Co-ordination (EU Withdrawal) Bill, HL 275 2017-19, 30 January 2019, para 31

[55] 46th Report of Session 2017-19: Immigration and Social Security Co-ordination (EU Withdrawal) Bill, HL 275 2017-19, 30 January 2019, para 33

[56] The 2017-19 Bill did not proceed beyond the Commons Committee Stage

[57] Subsequent references in this paper to the EEA should be read as 'the EEA and Switzerland'

[58] For further background see TRESS network, Short introduction to the European Coordination of social security schemes [accessed 5 March 2020]

[59] European Commission, Electronic Exchange of Social Security Information (EESSI)

[60] Regulation 1408/71 applies to people who have been relying on it since before the Modernised Co-ordination Regulations came into force and have not asked to be transferred to the new rules, and to certain non-EEA nationals

[61] Home Office and DWP, Review of the Balance of Competences: Internal Market: Free Movement of Persons Call for evidence, May 2013, para 51

[62] Separate legislation – the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 – provides a legal framework for implementing reciprocal healthcare arrangements with EEA states and with Switzerland, following the UK's exit from the EU. For further information see Commons Library briefing CBP-8435, Healthcare (International Arrangements) Bill 2017-19, 9 November 2018

[63] All figures from the DWP Policy equality statement (social security co-ordination) published alongside the Bill

[64] See GOV.UK, Claiming benefits if you live, move or travel abroad: Where you can claim benefits, for a list of the countries which have social security agreements with the UK

[65] For an overview of the scope and content of bilateral agreements see Child Poverty Action Group, Benefits for migrants handbook, 10th ed, 2018, chapter 17 and Appendix 5

[66] EEA states with which the UK has historic bilateral social security agreements include Austria, Belgium, Croatia, Cyprus, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, Portugal, Slovenia, Spain, and Sweden. The UK also has a social security agreement with Switzerland

[67] Article 8 of EC Regulation 883/2004 provides that the co-ordination rules 'shall replace' any pre-existing social security convention entered into by a Member State

[68] For a summary of who comes within the personal scope of the Withdrawal Agreement see p12 of the European Commission factsheet The revised EU-UK Withdrawal Agreement explained

[69] HM Government, Withdrawal agreement explainer, 14 November 2018, para 37

[70] HL Deb 5 March 2019 cc552-566

[71] DLC Deb 20 March 2019 cc1-12

[72] The UK State Pension is only uprated annually abroad in countries with a reciprocal social security agreement with the UK requiring this – see Commons Library briefing SN01457, Frozen Overseas Pensions, 11 April 2019

[73] Article 8 of EC Regulation 883/2004 provides that the co-ordination rules 'shall replace' any pre-existing social security convention entered into by a Member State. It is not clear whether this means these conventions effectively ceased to exist, or merely remain 'dormant.' Speaking in the Lords on 5 March 2019, the DWP Minister Baroness Buscombe said that whether the pre-existing reciprocal agreements come back into force would be "subject to discussion and agreement between the UK and the relevant EU member state", adding that the agreements "will not automatically revive on exit" (HL Deb c564)

[74] United Kingdom: Social security – Transitional rules and then what?, PWC Global Mobility Services Insight, 29 January 2020

[75] Paras 52, 49

[76] Simon Roberts, 'Social security coordination after Brexit: trying to take an egg out of an omelette?', ERA Forum (2019); doi:10.1007/s12027-019-00591-9

[77] HM Government, The Future Relationship with the EU: The UK's Approach to Negotiations, CP211, 27 February 2020, p23

[78] The UK also has agreements with Chile, Japan and South Korea, but these only cover social security contribution liability and do not include benefits.

[79] Figures from the DWP Policy equality statement (social security co-ordination) published alongside the Bill

[80] 10th edition, 2018

[81] Bill 104-EN

[82] In particular the Policy equality statement (social security co-ordination), ECHR memorandum, Delegated powers memorandum, and Factsheet 4: social security co-ordination

[83] Bill 104-EN, para 18

[84] Clause 6

[85] The power to modify provisions made by or under primary legislation is limited to legislation passed before, or in the same Session as, the Bill itself. The corresponding clause in the 2017-19 Bill (see section 4.6) provided a power to modify any primary legislation. This is the only difference between Part 2 of the current Bill and Part 2 of the 2017-19 Bill.

[86] ECHR memorandum, para 16

[87] Delegated powers memorandum, paras 30-31

[88] Ibid. para 32

[89] section 87

[90] 46th Report of Session 2017-19: Immigration and Social Security Co-ordination (EU Withdrawal) Bill, HL 275 2017-19, 30 January 2019, para 38

[91] Ibid. para 45

[92] Ibid. para 46

[93] Constitution Committee, The Legislative Process: The Delegation of Powers, HL 225 2017-19, 20 November 2018, para 58

[94] HL 275 2017-19, para 48

[95] HL 275 2017-19, paras 49-50

[96] PBC Deb 12 February 2019 cc59-60

[97] Justice, Immigration and Social Security Co-ordination (EU Withdrawal) Bill: House of Commons Committee Stage Briefing, ISSB13, February 2019, para 42

[98] PBC Deb 14 February 2019 c123

[99] PBC Deb 14 February 2019 c145

[100] PBC Deb 28 February 2019 cc243-257

[101] PBC Deb 28 February 2019 c247

[102] PBC Deb 28 February 2019 c251

[103] PBC Deb 28 February 2019 c251

[104] PBC Deb 28 February 2019 c254

[105] PBC Deb 28 February 2019 c256

[106] PBC Deb 28 February 2019 c257

[107] If the occupation has a "going rate" higher than £25,600, all of the applicable salary thresholds will be adjusted accordingly.

[108] UNISON, Immigration plans 'spell disaster for care sector' says UNISON, 19 February 2020

[109] CITB, CITB comment on Home Office migration plan, 19 February 2020

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