Policy paper

ECHR memorandum

Updated 21 December 2018

European Convention on Human Rights

Summary of the Bill:

1. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill (“the Bill”) was introduced in the House of Commons on 20 December 2018. The Bill has three parts:

• Part 1: Measures relating to ending free movement
• Part 2: Social security co-ordination
• Part 3: General.

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

2. Part 1 of the Bill enables the establishment of the future immigration system following the UK’s withdrawal from the EU. Part 1 ends the EU’s rules on free movement of persons and other retained EU law on immigration which will have been saved as, and incorporated into, UK law by the EU (Withdrawal) Act 2018 (“EUWA”). Part 1 also makes provision to protect the position of Irish citizens once their free movement rights end (clause 2).

3. As a consequence of ending free movement, the Bill will move those within the scope of free movement of persons (“EEA nationals”: see paragraph 6 for further explanation) from a rights based immigration system derived from EU law into the domestic immigration framework established by the Immigration Act 1971 (“the 1971 Act”). The Bill will achieve this by repealing the provision at section 7 of the Immigration Act 1988 whereby such persons do not currently require leave to enter and remain in the UK. As a result of this change, EEA nationals will require leave to enter and remain in the UK, as is currently the case for those non-EEA nationals who do not fall within the scope of free movement: this will be the effect of clause 1 and Schedule 1 to the Bill.

4. The Bill sets the basis for the future immigration system for EEA nationals, but it does not set out the detail of this system. The details of the future immigration system (i.e. the requirements to be met to come to the UK as a worker, student, family member, etc.) will be provided for in the Immigration Rules and by other existing powers to make secondary legislation in due course.

5. Neither does the Bill make transitional, transitory or saving provision in relation to the position of EEA nationals currently in the UK; although it contains the necessary powers to do so.

Terminology

6. The term “EEA nationals” is used throughout this document in relation to Part 1 of the Bill:

• the changes made by the Bill generally apply to EEA nationals and not only to EU citizens. This is because (i) the free movement principles of EU law apply to the EEA States; and (ii) as a result, the majority of the provisions of retained EU law that will be repealed, revoked or amended by the Bill extend beyond EU citizens to EEA nationals.
• for these purposes, “EEA nationals” should be understood as including Swiss nationals, unless otherwise stated, as Swiss nationals are also within the scope of the UK’s implementation of EU free movement law – primarily through the Immigration (European Economic Area) Regulations 2016 (the “EEA Regulations”).
• the Bill will make provision for the position of Irish citizens in UK law. Unless the context requires otherwise, and/or it is stated otherwise, references to “EEA nationals” in this Memorandum excludes Irish citizens.
• for these purposes, and unless the context requires otherwise, “EEA nationals” includes non-EEA nationals who are entitled to rely on free movement rights, such as the family members of EEA nationals.
• when this Memorandum refers to “non-EEA nationals” it means, unless otherwise specified, those non-EEA nationals not exercising free movement rights.

The extent to which this Memorandum addresses the detail of the future immigration system

7. The intention is to rely on current domestic law powers, in particular, the power at section 3 of the 1971 Act to make Immigration Rules, to provide for the future immigration system in due course. As such, this Memorandum does not address Convention issues arising in relation to the future immigration system.

8. As regards EEA nationals who have exercised free movement rights before the UK’s withdrawal, the Department notes the Committee’s particular concern about such persons in its fifth report of the last session, The Human Right Implications of Brexit. Insofar as such persons will be affected by this Bill, the Department will ensure that the Convention rights of such persons are respected. As regards such persons, the UK reached an initial agreement with the EU as set out in the provisional (at the time of writing) UK-EU Withdrawal Agreement; if an agreement is not reached with the EU on such matters, the Government has nonetheless committed to protecting the rights of such persons in substantially the same manner as their rights would have been protected were there an agreement^{[footnote 1]}. In practice, the rights of EEA nationals who are in the UK before EU exit to enter and remain will be given effect via Appendix EU of the Immigration Rules^{[footnote 2]}, with appropriate savings provisions to enable EEA nationals to be able to submit applications for leave before they require leave to remain. As the Bill does not make provision for these issues, this Memorandum does not address Convention issues that might arise in this regard.

Part 2 of the Bill (Social security co-ordination)

9. Part 2 of the Bill makes provision, in light of the UK’s exit from the EU, to enable the UK Government (and/or, where appropriate, a devolved authority) to make legislative changes to the social security co-ordination regime that will be retained into domestic law, by the EUWA, on exit.

10. Clause 5 enables an “appropriate authority”, being the Secretary of State or the Treasury, a devolved authority, or a Minister of the Crown acting jointly with a devolved authority, to make regulations modifying specified direct EU legislation relating to social security co-ordination, which will have been retained (and fixed, using the section 8 deficiencies power) under the EUWA. The power is broad so that it provides the necessary flexibility to be exercised in a range of scenarios. The clause also provides for consequential provision to be made to any provision made by or under primary legislation or retained direct EU legislation not listed in the clause. This allows modifications made to the listed retained direct EU legislation to be reflected, where necessary, across the complex legal framework in this area.

11. The social security co-ordination regulations, which clause 5 takes a power to modify, govern the co-ordination of social security between EEA states (and Switzerland) and contain rules relating to individuals whose social security situation is not confined to a single state. This includes rules relating to the payment of social security contributions and access to benefits (including export and aggregation) across the EEA by EEA nationals, Swiss nationals and, in some cases, third country nationals.

12. The purpose of the clause is to provide the UK government (and/or, where appropriate, a devolved authority) with the powers that it may foreseeably need after EU exit in order to modify the retained social security co-ordination regime. The power may be used in a no deal scenario, in which the UK and EU fail to reach an agreement on withdrawal issues, but also in certain deal scenarios (for example, in order to provide for those people that fall within the scope of the retained social security co-ordination regulations, but are outside of the scope of any deal or agreement). The anticipated policy changes could not otherwise be delivered by existing powers, such as the EUWA powers.

13. The provision disapplying section 4 EUWA rights ensures that in so far as any such rights are inconsistent with, or otherwise capable of affecting the exercise of the power at clause 5, they shall cease to be recognised and available in domestic law. This allows effect to be given to policy changes after EU exit which depart from the social security co-ordination 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 EUWA.

European Convention on Human Rights

Statement under section 19 of the Human Rights Act 1998

14. The Secretary of State has made a statement under section 19(1)(a) of the Human Rights Act 1998 that, in his view, the provisions of the Bill are compatible with the Convention rights, on introduction of the Bill in the House of Commons.

Introductory comments

General approach to consideration of Convention rights in this Memorandum

15. This Memorandum includes general comments on issues, and an analysis of Convention issues in relation to the Bill. Where there is no significant Convention issue, or the Convention issue is covered by the general comments in this Memorandum, no mention is made of the provision.

General comments on article 8 and article 14 ECHR in relation to Part 1 of the Bill

16. The Department notes the general comments made in relation to articles 8 and 14 ECHR in its Memoranda to the Committee in relation to the bills that led to the Immigration Act 2014 and the Immigration Act 2016 respectively. In particular, these Memoranda set out the Department’s understanding:

• that case law on article 8 has established a number of propositions about the ability of a State to enforce immigration controls where they might affect a person’s right to respect for private and family life^{[footnote 3]};
• that differential treatment on grounds of both nationality and immigration status constitute an “other status” for the purposes of article 14, albeit that there is a wide margin of appreciation in assessing the extent to which differences of treatment are justified^{[footnote 4]}; and
• that in order for an issue to engage article 14 there must be a difference of treatment of persons in analogous, or relevantly similar, situations; for measures concerning actual immigration control there is no direct comparator between those subject to immigration control and those not, albeit for other measures regarding the enjoyment of Convention rights (for example, in relation to access to services), any differential treatment must be objectively and reasonably justifiable^{[footnote 5]}.

17. The Department’s position in relation to such matters remains unchanged. As such, and in view of the detailed exposition of the Department’s position in previous recent Memoranda, the Department does not repeat these matters here.

Alignment of the position of EEA nationals with non-EEA nationals

18. The department does not consider that the move from free movement to the domestic, leave-based immigration framework of itself raises specific article 8 issues in relation to EEA nationals: the domestic immigration law framework already protects article 8 rights for non-EEA nationals, and it will do so for EEA nationals.

Future policy decisions relating to matters arising out of both Parts 1 and 2 of the Bill

19. Close consideration will be given to Convention rights in relation to the future immigration system, and social security co-ordination system, as they are developed in order to ensure that policies are compatible with Convention rights and other obligations.

ECHR Articles engaged and potentially interfered with

20. This section includes an analysis of Convention issues in relation to clause 2 (Irish citizens: entitlement to enter or remain without leave). As regards the remainder of the Bill, no significant Convention issues arise. Where potential Convention issues arise in relation to policies that will be given effect by the exercise of powers under the Bill or existing powers, no mention is made. In the case of policies to be implemented in the future, for example, the future immigration system, or the exercise of powers in the Bill relating to social security co-ordination, consideration will be given to ensuring compliance with Convention rights throughout the development of those policies.

Clause 2: Irish citizens

Article engaged: article 14 in conjunction with article 8

Interference

21. Once the EEA Regulations are revoked some Irish citizens in the UK will no longer have any lawful immigration status (i.e. those whose most recent arrival was after 1973 and from outside the Common Travel Area (“CTA”)). The purpose of this provision in the Bill is to protect the rights of Irish citizens upon the cessation of EEA free movement by aligning the rights of Irish citizens in the UK irrespective of where they have travelled from.

22. The Irish rights provisions in the Bill specify that an Irish citizen does not require leave to enter or remain in the United Kingdom, unless that person falls within one of three categories: (1) they are subject to a deportation order, (2) have had exclusion directions issued against them by the Secretary of State, or (3) are subject to an international travel ban. If any of these categories apply, then the Irish citizen will need leave to enter or remain in the United Kingdom, even if they are travelling within the CTA.

23. These are the primary provisions relating to Irish rights. Clause 2 makes further consequential provisions aimed at harmonising the position of all Irish citizens. To the extent that these consequential provisions raise legal issues, they are explained below.

24. The Irish rights provisions discriminate in favour of Irish citizens in comparison with other EEA nationals. The Department has considered whether article 14 may be engaged^{[footnote 6]} because the provisions provide for immigration control for Irish based upon their nationality status, which is within the ambit of article 14.

25. In order for an issue to engage article 14, there must be a difference in the treatment of persons in analogous, or relevantly similar situations. Other EEA nationals would theoretically be the comparators who under the provisions in the Bill are treated in a less favourable manner than Irish citizens. However, the Department’s view is that Irish citizens have a long-held special status in UK law and are not therefore analogous to other non-British citizens, or to non-Irish EEA nationals.

26. This is because, first, since 1948 the UK government has been required by law to treat Irish citizens as if they are not ‘aliens’, that is, not British but not foreign. Section 2 of the Ireland Act 1949 also provides that Ireland is not to be treated as a foreign country for the purposes of UK law. Second, and perhaps more importantly, the maintenance of the CTA supports the provisions of the Belfast (‘Good Friday’) Agreement. The CTA is relevant to north/south co-operation and also the identity and citizenship provisions of the Belfast (‘Good Friday’) Agreement. The Belfast (‘Good Friday’) Agreement puts Irish citizens in a different position to non-Irish EEA nationals. For these reasons the Department does not consider Irish citizens to be a direct comparator to other EEA citizens for the purposes of travel to and stay in the United Kingdom, notwithstanding that Irish citizens may at present rely on rights under the EU Treaties as the basis of their stay in the UK. Accordingly the Department’s view is that article 14 is not engaged.

Justification

27. Notwithstanding the Department’s view that article 14 is not engaged, consideration has been given to whether, in the event that article 14 were found to be engaged, the measures could be justified. If these provisions do engage article 14 on the basis that all EEA nationals are in an analogous situation to Irish nationals, and another Convention right is also engaged^{[footnote 7]}, then the Department would consider there to be strong arguments that any interference with article 14 rights would be justified. The margin of appreciation afforded to states is relatively wide where differential treatment is based on immigration status and the difference in treatment can be said to be justified on an objective and rational basis, pursues a legitimate aim and is proportionate. The provisions in the Bill are intended to:

• support the historic and current treatment of Irish citizens in the UK as ‘not alien’ or ‘not foreign’, as per section 2 of the Ireland Act 1949
• support the terms of the Belfast (‘Good Friday’) Agreement and the peace process by maintaining close links between the UK and Ireland, particularly, to respect and provide protection for Irish citizens born or based in Northern Ireland; and
• support the continued functioning of the CTA. They avoid Irish citizens being subject to differential treatment based on where they travel from, which could undermine the ongoing co-operation and arrangements made between Ireland and the UK

28. The unique and particularly close political, economic and cultural ties between the UK and Ireland provide sufficient justification for treating Irish nationals more favourably than other nationalities, including other EEA nationalities. The historical relationship between the UK and Ireland goes back many centuries and has created a relationship between the UK and Ireland which is different to other EEA states. The legitimate aim being pursued is to maintain political stability and economic prosperity across the island of Ireland, and the policy of continuing the status quo for Irish citizens is a proportionate way of achieving this. The Department does not consider that these provisions would breach the ECHR.

EU Charter of Fundamental Rights

29. The EUWA does not incorporate the Charter into UK law but rather converts the underlying rights and principles of EU law into UK law. As this Bill repeals, revokes or otherwise disapplies retained EU law in relation to free movement and immigration and also in relation to social security co-ordination, any EU rights and principles saved as part of UK law by that Act will not continue to apply to the content of this Bill. Consequently, this Memorandum does not provide a detailed analysis of whether this Bill is consistent with the Charter.

Home Office, December 2018

1. Announced by the Prime Minister on 21 September 2018 ↩

2. The EU settlement scheme is already open on a ‘private beta’ basis to limited cohorts of persons; it will be fully open by EU exit day. ↩

3. See, for example, paragraphs 8 and 9 of the Memorandum to the Committee relating to the bill that led to the Immigration Act 2014 and paragraphs 8 and 9 of the Memorandum to the Committee relating to the bill that led to the Immigration Act 2016. ↩

4. See, for example, paragraph 10 of the Memorandum to the Committee relating to the bill that led to the Immigration Act 2014 and paragraph 10 of the Memorandum to the Committee relating to the bill that led to the Immigration Act 2016. ↩

5. See paragraph 10 of the Memorandum to the Committee relating to the bill that led to the Immigration Act 2014, the response of the Committee to that Memorandum in its Eighth report of 2013-14 (HL Paper 102 HC935), and paragraphs 11 to 13 of the Memorandum to the Committee relating to the bill that led to the Immigration Act 2016. ↩

6. In the circumstances in which another Convention right, most likely Article 8, is also in play. ↩

7. In practice a claim of breach of article 14 in these circumstances would be most likely to arise in the context in which article 8 is engaged. ↩