Post Brexit: Freedom of movement between UK and EU for citizens will end on 31 December

The UK Government bill ending rights for free movement of all UK and EU citizens has now completed its passage through the House of Commons, by 342 votes to 248.

Amongst its provisions, the ‘Immigration and Social Security Co-ordination (EU Withdrawal) Bill’ will enact this aspect of the Government’s Brexit policy on 31 December 2020.  The one exception is a continued right for Irish citizens to enter and to work in the UK.

Present EU law governing coordination of social security provisions – as with many other laws and regulations that were jointly established across the 28 EU states – is ‘retained’ for now.  The Bill, however, explicitly provides power to amend these provisions in future ‘via regulations’ at the Government’s discretion.

The bill’s two main purposes are:

  • to repeal retained EU law on free movement to bring EU, EEA EFTA (Iceland, Liechtenstein and Norway) and Swiss citizens within a single UK immigration system (part 1 and schedule 1); and
  • to provide a power to amend, via regulations, retained EU law governing social security coordination (part 2 and schedules 2 and 3).

After 31 December 2020, EEA and Swiss citizens will be subject to a new single immigration system that would apply to all arrivals in the UK.

The Government intends to introduce a new points-based immigration system, which would take effect from January 2021 and apply to anyone wishing to come to the UK as set out in a policy statement published on 19 February 2020:

“We will replace free movement with the UK’s points-based system to cater for the most highly skilled workers, skilled workers, students, and a range of other specialist work routes including routes for global leaders and innovators.  We will not introduce a general low-skilled or temporary work route.  We need to shift the focus of our economy away from a reliance on cheap labour from Europe and instead concentrate on investment in technology and automation.  Employers will need to adjust.

The settlement scheme for EU citizens, which opened in March 2019, has received 3.2 million applications from EU citizens who will be able to stay and work in the UK.  This will provide employers with flexibility to meet labour market demands.

The SSC regulations provide for a reciprocal framework but do not provide for a single EU system.  The European Commission has explained that there are four main principles:

  • You are covered by the legislation of one country at a time so you only pay contributions in one country.  The decision on which country’s legislation applies to you will be made by the social security institutions.  You cannot choose;
  • You have the same rights and obligations as the nationals of the country where you are covered.  This is known as the principle of equal treatment or non-discrimination;
  • When you claim a benefit, your previous periods of insurance, work or residence in other countries are taken into account if necessary; and
  • If you are entitled to a cash benefit from one country, you may generally receive it even if you are living in a different country.  This is known as the principle of exportability.”

The bill’s explanatory notes further explain that: “the SSC regulations provide for member states to consider periods of work, insurance or residence in another member state when determining entitlement to benefits, which is known as ‘aggregation’.  The SSC regulations also enable individuals, in certain circumstances, to receive certain benefits from the UK irrespective of where they, or the person they are claiming in respect of, reside in the EEA (i.e. UK nationals and EEA citizens can export benefits from the UK).

The bill allows the Government (or, where appropriate, a Northern Ireland department) to make regulations to implement new policies on social security coordination that might be necessary subject to the UK’s negotiations on its future relationship with the EU.

Background:  House of Commons debate on the second reading of the bill

Priti Patel, the Home Secretary, said that the bill delivered on the Government’s promise to end freedom of movement, “take back control of our borders and restore trust in the immigration system”.  She argued that the bill would pave the way for the Government’s new points-based immigration system.  This would be “firmer, fairer and simpler”.  The Home Secretary referred to the bill’s provisions on Irish citizens, saying that the Government was “enormously proud of our deep and historical ties with Ireland” which was why the bill would protect the rights of Irish citizens.  She said that the Government had been clear that any future arrangements on social security “must respect Britain’s autonomy in setting its own rules”.  As a result, arrangements would change.  Patel said that the right to export child benefits would end as announced in the budget, for example.  She stated that the bill would enable the Government to deliver on that commitment.

Speaking for the Opposition, Nick Thomas-Symonds, Shadow Home Secretary, argued that the bill sent a message that “the 180,000 EU nationals in the NHS and the care sector” were “no longer welcome”.  Citing a labour force survey by the Institute for Public Policy Research, he expressed concern that 69% of EU migrants who currently work in the UK would not be eligible for a visa if the Government’s proposed immigration system applied to them.

Symonds also expressed concern about the scope of the powers in the bill: “the bill allows the Government to create a new system through statutory instrument.  Ministers are asking this House for a blank cheque, for the trust of Members to go away and implement a new system, and for an executive power grab that reduces the role of this House in shaping it.  He said that Labour would be voting against the bill.

Stuart C McDonald, Shadow SNP Spokesperson for Immigration, Asylum and Border Control, argued that the bill would make it hard to recruit NHS, social care and other staff.  He argued that freedom of movement has worked well.  Instead of continuing this he argued the bill would “expand the reach of the UK’s domestic rules—a complicated mess of burning injustice and bureaucracy”, which is why the SNP would vote against the bill.

Christine Jardine, Liberal Democrat Spokesperson for Home Affairs, said she was disappointed that the Commons had been presented with a bill that would end freedom of movement “without offering a fair, compassionate and effective alternative”.  She argued that the bill could have “profound” and negative effects on society and culture which is why she would be voting against it.

There was no debate at third reading.  The bill was passed by 342 votes to 248 and is now with the House of Lords for scrutiny.

Post Brexit: UK first standalone ‘human rights’ sanctions announced

Forty-nine individuals and organisations, “involved in some of the most notorious human rights violations and abuses in recent years,” are now subjected to asset freezes and travel bans.

The sanctions have been imposed by UK Government under the ‘Global Human Rights Sanctions Regulations 2020’.  This is secondary legislation using powers granted within the Sanctions and Anti-Money Laundering Act 2018.  These are the first new sanctions created using the UK’s standalone sanctions regime.  Prior to leaving the EU, the UK had generally created sanctions using powers in the European Communities Act 1972 – which will be fully repealed by the end of the transition period.

As well as being the UK’s first new sanctions since Brexit, they are the first classified as ‘Magnitsky’ sanctions – named after Sergei Magnitsky, a Russian tax adviser who died in a Moscow prison after discovering a massive fraud conducted by Russian state officials.  Magnitsky legislation provides for sanctions against officials who carry out gross human rights abuses

The list of sanctioned individuals includes: Saudi Arabians allegedly involved in the killing of journalist Jamal Khashoggi in the Saudi Embassy in Istanbul; and Russian officials allegedly involved in the mistreatment of Sergei Magnitsky; and two high-ranking generals from Myanmar.  The two sanctioned organisations are both branches of the North Korean Ministry of People’s Security.

In its 2019 manifesto, the Conservative Party promised to “further develop an independent Magnitsky-style sanctions regime to tackle human rights abusers head on.”  The Global Human Rights Regulations 2020 set out the human rights sanctions framework in full.

While debating the Sanctions and Anti-Money Laundering Bill, UK Parliamentarians argued that the Bill should contain the specific purpose of deterring gross human rights abuses.  Various amendments to this end were added during its passage through the Commons.

Announcing the sanctions in the House of Commons, Foreign Secretary Dominic Raab said: “These sanctions are a forensic tool, they allow us to target perpetrators without punishing the wider people of a country that may be affected.”

‘Magnitsky’ sanctions target individuals and organisations.  By contrast, ‘trade’ sanctions ban certain transactions with an entire country.  The economic damage caused by trade sanctions impact the entire population of the target country – and hurt vulnerable but innocent people.

The measures represent a significant departure from the EU – and were made without overt or formal co-ordination with allies.

Sanctions policy has been an important part of the Brexit discussions concerning the future relationship between the UK and the EU.  The EU proposed co-ordination on sanctions policy as part of its draft partnership treaty with the UK.  The UK does not view co-operation on provisions covering foreign affairs and defence as requiring a new treaty framework.

External expert commentators, however, contend that to be effective as well as independent, sanctions should be imposed in co-ordination with allies.  Analysts at the Royal United Service Institute (RUSI) argued: “The consideration of sanctions coordination should be an important – and urgent – priority for the UK government as it considers its future independent sanctions policy.”

Time will tell.