This briefing addresses the Immigration and Social Security Co-ordination (EU Withdrawal) Bill (the Bill), ahead of its Second Reading in the House of Commons on 21 April 2020. JUSTICE takes no position on the content of the UK’s post-Brexit immigration policy but believes the principles of it need to be properly debated and scrutinised. In this briefing we outline our concerns about the extraordinarily broad powers to legislate by way of secondary legislation in the immigration and connected social security co-ordination field, by-passing the full scrutiny of Parliament. Changes in this area have the potential to affect the fundamental rights of many individuals, both EEA nationals and UK citizens, and require careful scrutiny and justification. Furthermore the Bill removes the right to free movement without ensuring that affected individuals will be granted adequate protections of their accrued rights should they miss the application deadline within the EU Settlement Scheme. JUSTICE is concerned for those EEA citizens who are unable to engage properly with the application process, for example due to incapacity, age, homelessness or other vulnerabilities. As such, JUSTICE recommends the following amendments.
a. Include an obligation in primary legislation to protect the settlement rights of EEA nationals and their family members exercising their free movement rights in the UK prior to the end of the transition period who miss the application deadline within the EU Settlement Scheme (EUSS), currently 30 June 2021, and pursuant to such obligation, clarify:
i. the proactive steps it will take to avoid unjust measures taken against those who are legally resident in the UK in accordance with the Withdrawal Agreement but whose status is not determined through the EUSS before the application deadline;
ii. how it will “assess all the circumstances and reasons” of those who miss applications, and
iii. how it will approach the “reasonable grounds” test of any applications made after the application deadline.
b. Limit the potentially excessive delegated power in clause 4(1) to only making provisions that are necessary to:
i. ‘tidy up’ the statute book to ensure the proper transition and functioning of UK law as a result of the measures in Part 1 ending free movement; and
ii. make any further transitional arrangements required to protect the rights of those EEA citizens and their families.
c. Ensure appropriate scrutiny from Parliament before the first clause 4 regulations by removing the use of the 40-day “made affirmative” procedure.
d. Limit the power of the Government to create a new post-Brexit immigration policy without proper scrutiny from Parliament by circumscribing the power to make and amend the Immigration Rules in section 3 of the Immigration Act 1971.
e. Remove clause 5, thereby requiring new social security co-ordination policy to be given primary legislative footing and scrutiny.