The Immigration Act 2020^[1] – full title Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 – received Royal Assent earlier this week, meaning that it has been made into law. With many EU and Irish citizens facing a stressful and uncertain period with regard to their immigration status, every piece of legislation related to EU free movement is of extreme interest and importance.

In summary, the Act repeals EU legislation which gives effect to free movement and immigration rights to EU citizens, giving special status to Irish citizens, and bestows upon the Secretary of State wide-ranging powers to make further changes. Here, we summarise the key changes to the immigration system in the UK and look at some of the potential problems caused by the Act.

Repeal of Free Movement Legislation

Schedule 1 of the Act repeals (removes) certain important pieces of legislation which provided important immigration rights to citizens of the EU:

• S7 of the Immigration Act 1988, which allows EU citizens to enter and remain in the UK without having to have permission,
• Art 1 Workers’ Regulation, which gave EU nationals the right to work in the UK as if they were UK citizens,
• All rights which continued to be recognised in domestic law after the European Union (Withdrawal) Act 2018,
• Any other EU-derived rights which relate to free movement

This marks the end of free movement into and outside of the UK, where EU nationals can visit and remain in the UK without having to obtain prior permission or a Visa.

Irish Citizens

The Act confirms that Irish citizens will not require leave (permission) to enter or remain in the UK, except for where there is a deportation order and exceptional circumstances. Given the special relationship between the UK and Ireland, and the special circumstances between Ireland and Northern Ireland, this settles many of the questions raised by businesses and people who work and travel between in both countries on a frequent, if not daily, basis.

This right to enter without leave will apply to Irish citizens regardless of whether they have entered from inside or outside the Common Travel Area (Ireland, the UK, Isle of Man and the Channel Islands). 

Further Government Powers

S4 of the Act gives the Secretary of State to make provisions as they consider appropriate to change any legislation relating to free movement.

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^[1] www.publications.parliament.uk/pa/bills/cbill/58-01/0104/20104_en_2.html

Criticisms of the Act

This Act has attracted a lot of criticism from immigration lawyers. The first main issue is the provision in schedule 1 repealing all rights related to free movement. This is an incredibly broad, unspecific provision because it repeals any EU law which contradicts domestic immigration law. This means that the government has blindly repealed an unknown number of pieces of legislation. In fact, it may have unintentionally repealed some important pieces of legislation which are not to do with free movement. The Immigration Law Practitioners’ Association^[1] has suggested that the following may unintentionally have been repealed even though they are not about free movement:

• Protections for victims of trafficking in the Anti-trafficking Directive 2011/36/EU
• Protections for asylum seekers in the Reception Conditions Directive 2013/33/Eu
• Protections for victims of crimes in the Victims Rights’ Directive 2012/29/EU

This lack of precision leaves room for legal uncertainty where many people may not know where they stand in terms of being allowed into, or to remain in, the UK.

The second criticism is that the statement that the government will only deport Irish nationals in exceptional circumstances is one of policy, and not of actual legislation, leaving more uncertainty for Irish nationals.

Finally, the broad powers given to the Secretary of State have come under fire. These powers have no time limit and can be used where the Secretary of State deems it appropriate, rather than the more stringent necessary. Some of the provisions that the Secretary of State can make do not also need to be approved by Parliament – they will go into law unless they are rejected by one of the Houses of Parliament. The remaining provisions still have an inadequate level of scrutiny. The problem here is that the Act gives broad powers to the Secretary of State to make provisions largely unchecked and without any form of democratic process.

What does the Act actually mean for the future?

 This Act does not actually provide for the two main changes that will occur to the immigration system: The Settlement Scheme for EU nationals currently living in the UK and the new Points-based immigration system. Instead, for the public, it just means that EU nationals (apart from Irish citizens) will not have the right to enter and remain in the UK without leave from 31^st December 2020.

The Act does not tell us what the future Points-based immigration system will look like and how it will operate – this will be introduced by other legislation. It also does not provide any reference to the Settlement Scheme, where EU nationals are required to apply to remain in the UK. With a strict deadline to meet, many will be left without any immigration status – no provision for this has been made in the Immigration Act.

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^[1] www.ilpa.org.uk/ilpa-briefing-on-the-immigration-and-social-security-co-ordination-eu-withdrawal-bill-second-reading-13-may-2020/

If you are an EU national residing in the UK and are struggling with your immigration status, or have any other questions about immigration from either inside or outside the EU, please contact us via telephone on 01793 296118 or email at mail@stellamarissolicitorsllp.co.uk.