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The Immigration and Social Security Co-ordination (EU Withdrawal) Bill was introduced to the House on 5 March 2020. It is due to have its Second Reading in the Commons imminently.

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 1 repeal 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 2 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 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 4 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”.

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

  • Clause 5 and Schedules 2-3 allow 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.

UPDATE 12 MAY: This briefing was updated on 12 May to cover more recent developments, and to give links to further reading, in section 6. The remainder of the briefing has not been updated since it was first published on 9 March.

The Department for Work and Pensions has brought it to the attention of the Commons Library that the paragraph from the DWP factsheet on social security co-ordination first published on 5 March quoted on page 40 of the briefing – which begins ‘As set out in the UK’s points-based immigration system: policy statement…’ – was removed when an updated version of the factsheet was published on GOV.UK on 20 March.

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