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.