Virginia, US

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 is currently at Committee stage before Parliament. The Bill makes EU citizens in the UK illegally present as soon as it comes into effect unless transitional regulations are enacted at the same time. Draft transitional regulations urgently need to be published so that the effect of the Bill can be understood.

It looks increasingly likely that the UK will leave the EU on 29 March without a deal. What will then happen to the immigration status of EU citizen and their family members already in the UK?

EU-derived rights of free movement are contained in various primary and secondary legislative vehicles, principally section 7 Immigration Act 1988 and the EEA Regulations 2016. The EEA Regulations provide both a right of entry for EU citizens and their family members arriving at the UK border. They also provide a continued right of residence in the UK for EU citizens and their family members who are already here.

What does the Immigration Bill do?

The Immigration Bill repeals all EU-derived domestic legislation on the day on which it is brought into force by a date determined by statutory instrument. The Bill itself contains no transitional provisions and repeals all the primary and secondary legislation on which free movement is based, including the EEA Regulations 2016. Once the Bill is commenced, therefore, the effect of section 1(2) Immigration 1971 combined with section 24B Immigration Act 1971 (as amended) then means that EU citizens present in the UK no longer have any right to “live, work and settle” in the UK and will be committing a criminal offence if they work, and employers will commit a criminal offence if they employ them. Either such offence is associated with a power of arrest without a warrant by an immigration officer.

This means that it is crucial to understand when the government intends to bring the Bill into force, in the event of a no-deal Brexit. The answer would seem to be clear from the government’s paper, Immigration from 30 March 2019 if there is no deal, published 28 January 2019, which states:

Once free movement has ended from 30 March 2019, EU citizens and their family members arriving in the UK will be admitted under UK immigration rules and will require permission (leave to enter or remain).

This can only mean that the intention is to bring the new Immigration Bill into force on 30 March 2019, because only by bringing the Bill into force will EU citizens arriving at the border require permission. (Otherwise, the EEA Regulations 2016 will continue to provide that no such permission is required, and free movement will continue.)

(As a side note; it is doubtful whether there is still enough time for the Bill to pass through Parliament before exit day on 29 March 2019. If by exit day the Bill has not received royal assent, then free movement would automatically continue until the Bill is enacted. But given the government’s position in the no deal planning paper, it would seem to be the intention to bring the Bill into effect as soon as practicable.)

Transitional Regulations

The Immigration Bill does contain a wide-ranging power to make regulations by statutory instrument. Such regulations can do anything that would normally require primary legislation, so what the Bill takes away it can re-provide in the form of new regulations containing transitional provisions. But there is no clear indication from the government as to whether they intend to create such transitional provisions, and if they do, what they will say. No new or transitional regulations were promised either in the Home Secretary’s speech introducing the Bill in December or in the White Paper on the UK’s future immigration system published at the same time. Nor was the matter covered when the Home Secretary opened the debate on the second reading on 28 January.

Perhaps the requirement for transitional regulations is clear, but it is not necessarily clear what they must say. Will existing applications under the EEA Regulations 2016 be discontinued? If they will continue, will there be a right of appeal against refusal? What recognition will be given, whether within the UK or at the UK border, to existing documentation issued under the Regulations? Will EU citizens still be required to provide EEA permanent residence documents when applying for naturalisation? Will physical presence in the UK on exit day (i.e. at 11 pm on 29 March) be a prerequisite for protection? What family reunion provisions will operate for third-country nationals of EU citizens already here?

Without knowing in detail what the accompanying regulations are to be it is impossible for the impact of the Bill to be assessed. It also, therefore, becomes impossible for the millions of individuals affected by the legislation to make appropriate arrangements, or for their interests to be properly represented and considered. This could only be solved by the Public Bill Committee seeing draft regulations in advance of deliberating on the legislation.

The Public Bill Committee began examining the Bill on Tuesday 12 February.

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