Factsheet 4: consequential power (relating to ending free movement)
Updated 21 December 2018
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This publication is available at https://www.gov.uk/government/publications/immigration-and-social-security-co-ordination-eu-withdrawal-bill/factsheet-4-consequential-power-relating-to-ending-free-movement
The Government introduced the Immigration and Social Security Co-ordination (EU Withdrawal) Bill to the House of Commons on 20 December.
For an overview of what the Bill does see Factsheet 1.
What does the power do?
The power in the Bill is a power to make regulations to modify primary or secondary legislation as appropriate, in consequence of or connected to the measures in the Bill that repeal free movement law. It will enable amendments to ensure that legislation is coherent, for example by removing references to certain EU-derived immigration documents, such as in The British Nationality (General) Regulations 2003. It will also enable us to align our existing immigration laws for EEA nationals with non-EEA nationals to the extent we wish to do so, for example we plan to amend section 58 of the Nationality, Immigration and Asylum Act 2002 to remove the references to “EEA national”. This will enable the Secretary of State to provide assistance to all non-British citizens who voluntarily wish to leave the UK, as at present such assistance can only be given to non-EEA (and non-British) citizens.
Consequential etc provision
By ending free movement, the Bill makes a substantial change to immigration law. There are references to free movement and related matters across the statute book in both primary and secondary legislation, which will no longer make sense or which may no longer be appropriate once the UK has left the EU. It is therefore necessary for the Bill to contain a power to make consequential amendments to be made by secondary legislation. This can also include supplementary, savings, transitory and transitional measures. For example, when the Bill ends free movement and EEA nationals become subject to immigration control, there will no longer be a need to specifically exclude family members who are EEA nationals from being removed from the UK, as set out in section 10(5) of the Immigration and Asylum Act 1999. The consequential power will therefore allow us to repeal section 10(5) of the 1999 Act to ensure that an EEA family member will be liable for removal along with the main family member being removed if they cannot demonstrate that they are entitled to leave to enter or remain here in their own right. However, through use of the consequential provision, the power could save section 10(5) in respect of people with an entitlement to enter or remain in the UK by virtue of the EEA Regulations 2016.
The power may be used to make regulations which modify primary and secondary legislation, as well as EU legislation which will have been incorporated into UK law by the EU (Withdrawal) Act 2018. Such provision will be crucial to the implementation of the Bill.
The Bill will give a power to repeal, revoke, amend or otherwise modify any domestic primary or secondary legislation as appropriate, in consequence of, or in connection with, the Bill. The amendments will be delivered by regulations, which are a statutory instrument, which will be subject to parliamentary scrutiny.
The regulations must be approved by both Houses of Parliament if they amend primary legislation, which is known as the affirmative procedure. To enable the power to be used to deliver a coherent statute book in what may be a short window between Royal Assent of the Bill and Exit day, the first set of regulations can be made and then subsequently approved within 40 sitting days by both Houses of Parliament. After this, if Regulations do not amend primary legislation they are subject to the negative procedure, which means they will be made and may then subsequently be annulled by resolution of either House of Parliament.
How will the power be used?
Some examples of how the power may be used are:
- to ensure that people who have an EEA right of appeal pending when the Bill repeals section 109 of the Nationality, Immigration and Asylum Act 2002 do not lose that right of appeal
- to enable EEA nationals who are in the UK before Exit to continue to remain in the UK lawfully for a period of time before applying to the EU Settlement Scheme
- remove references to EU law, EU institutions etc to ensure that UK legislation is coherent once the UK has exited the EU.