Factsheet 2: end of free movement
Updated 21 December 2018
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What does the Bill do?
The government introduced the Immigration and Social Security Co-ordination (EU Withdrawal) Bill in the House of Commons on 20 December. See Factsheet 1 for an overview of the Bill.
The Bill will end the EU’s rules on free movement of persons into the UK and make EEA and Swiss nationals and their family members subject to UK immigration controls. This means they will require permission to enter and remain in the UK.
Without the Bill, EEA and Swiss nationals would be able to continue to live and work in the UK in accordance with retained EU law on free movement of people.
What is free movement of people?
The free movement of people is one of the four ‘freedoms’ which together underpin the EU’s Single Market. Free movement extends to the members of the EEA (the EU and Iceland, Liechtenstein and Norway) and Swiss nationals and their family members and enables them to:
- be admitted to the UK and reside in the UK for an initial period of three months
- reside in the UK as a ‘qualified person’, such as a jobseeker, worker, self-employed person, self-sufficient person like a retiree or homemaker, or student, for as long as they have that status
- have the right to permanent residence in the UK if, for example, they have resided in the UK under free movement regulations for 5 years
Repeal of the main retained EU law relating to free movement
There are currently two immigration systems in the UK: one that governs the immigration arrangements for EEA nationals and their family members and one that governs the arrangements for nationals from countries outside the EEA. The key difference between the two immigration systems is that EEA nationals and their family members enjoy a right to enter and reside in the UK without the need to obtain permission to do so, relying on the EU Free Movement Directive which the UK has implemented through the European Immigration (European Economic Area) Regulations 2016. This is known as EU free movement of persons. Non-EEA nationals, on the other hand, generally need permission to enter and remain in the UK under the Immigration Act 1971.
In June 2018 the EU (Withdrawal) Act 2018 was enacted. This Act repeals the European Communities Act 1972 and converts current EU law into UK law (“retained EU law”) and preserves existing UK law that implements EU law, to ensure continuity of law until Parliament changes it. This means that the EU’s rules on free movement will continue to have effect in the UK after Brexit unless further action is taken.
The Bill will repeal EU retained law relating to free movement of persons (including the implementing EEA Regulations) and make EEA and Swiss nationals and their family members subject to UK immigration controls. This means they will require permission to enter and remain in the UK under the Immigration Act 1971. The Bill also repeals associated legislation such as section 109 of the Nationality, Immigration and Asylum Act 2002 which provides a right of appeal for EEA and Swiss nationals and their family members against an immigration decision relating to free movement, this is to reflect the position that free movement will have ended.
There are other areas of EU law that do not relate specifically to free movement but nevertheless have an impact on immigration. The Bill will remove or amend other EU-based law which is not compatible with our future UK immigration regime, subject to ongoing negotiations with the EU about our future relationship.
The Bill will deliver the legal framework for the future immigration system. It does not set out the details of the future immigration system because those details, such as the requirements needed to come to the UK as a worker, student or family member, will be set out in the Immigration Rules as they are now for non-EEA nationals. These Rules will be designed to meet UK objectives, command the confidence of the public and reflect the wider economic, social and political context. They will take into account any agreement we reach with the EU or other countries. You can read more about the future immigration system in the Immigration White Paper, which provides further details on what the future system might look like for EEA nationals and their family members and how the Bill provides the legal framework to help deliver it.
How will ending free movement affect EU citizens living in the UK?
Securing the rights of citizens has always been our priority and we have delivered on this commitment. Once free movement ends, resident EEA and Swiss citizens (excluding Irish citizens) will need to apply for a new immigration status under UK law through the EU Settlement Scheme. The process to obtain settled status is straightforward and streamlined and we are supporting applicants to get the right outcome. The government has committed to guaranteeing the rights of EEA and Swiss citizens and their family members resident in the UK before exit day as set out in the draft Withdrawal Agreement and the government’s policy paper on the rights of EU citizens.