Policy paper

Policy equality statement (immigration)

Updated 21 December 2018

This was published under the 2016 to 2019 May Conservative government

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1. Policy background

An Immigration Bill was announced in the Queen’s Speech on 21 June 2017 as one of the bills needed to ensure that the UK can make a success of withdrawing from the European Union (EU).

We need the Immigration and Social Security Co-ordination (EU Withdrawal) Bill to end the EU’s rules on free movement of persons in the UK and other retained EU law on immigration which will have been saved in UK law by the European Union (Withdrawal) Act 2018. Without the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, EU, EEA[footnote 1] and Swiss nationals (hereafter referred to collectively as EEA nationals) would be able to continue to live and work in the UK in accordance with the retained EU law on free movement as it is saved on Exit day. The Bill is also needed to enable the Government to amend retained EU law relating to social security co-ordination.

As well as ending EU free movement, the Bill makes EEA 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 Immigration and Social Security Co-ordination (EU Withdrawal) Bill (hereafter referred to as ‘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 the details (i.e. the requirements to be met to come to the UK as a worker, student, family member, etc) will be set out in the Immigration Rules and secondary legislation as is the position now for non-EEA nationals who are subject to immigration control, although the extent to which the future immigration system will differentiate between EEA nationals and non-EEA nationals is not yet decided. These Rules will be designed to meet UK objectives, command the confidence of the public and reflect the wider economic, social and political context and any agreement we reach with the EU or other countries. The Immigration White Paper sets out the detailed proposals for the future immigration system after EU Exit.

The Bill will provide the legislative framework for the post EU Exit immigration system by enabling UK immigration laws to be applied to EEA nationals and their family members. As the detailed future arrangements will be set out in Immigration Rules and other secondary legislation, it is difficult to assess the impacts of provisions in the Bill. Equalities considerations, including the public-sector equality duty, are being considered more widely throughout the development of the future immigration system and further Policy Equality Statements, or equivalent, will be prepared as necessary as proposals are finalised.

The Bill includes a provision allowing the Government to amend retained EU law relating to social security co-ordination. This retained law governs the co-ordination of social security between member states and contains rules relating to individuals whose social security situation is not confined to a single Member State. This includes rules relating to the payment of social security contributions and access to benefits (including export and aggregation) across the EU by EEA nationals, and in some cases third country nationals. The power in this Bill will allow post Exit policy changes to be made to the social security co-ordination regime which has been retained, and fixed, under the EU (Withdrawal) Act, enabling the Government to reflect its preferred policy. Detailed policy arrangements are yet to be determined, therefore it is difficult to assess the impacts of provisions in the Bill in a meaningful way. Equality considerations, including the public-sector equality duty, are being considered more widely throughout the policy development and any policy changes which may be considered under secondary legislation will result in updated equalities analysis.

During the period between EU Exit and the implementation of the future immigration system, measures will be in place to ensure a smooth transition to the new system. This includes ensuring that EEA nationals and their family members who were in the UK before EU Exit can remain in the UK. The EU Settlement Scheme enables EU citizens and their family members resident in the UK before a specified date to apply for leave under the Immigration Act 1971. This is part of our ongoing preparations for leaving the EU and bringing EEA nationals into the UK immigration system. The impact of the EU Settlement Scheme on people with protected characteristics has been evaluated in line with the public-sector equality duty, and remains under consideration throughout the scheme’s implementation.

Policy proposals contained in the Bill

Upon EU Exit, the Immigration and Social Security Co-ordination (EU Withdrawal) Bill will enable us to:

  • repeal principal retained EU law relating to free movement and immigration;
  • apply UK immigration laws to nationals of the EU, European Economic Area (EEA) and Switzerland following the end of free movement in the UK;
  • protect the position of Irish citizens in UK immigration law once their EU free movement rights end; and
  • the creation of new powers enabling amendments to be made to the rules governing social security co-ordination (as retained in UK law by the EU (Withdrawal Act) 2018).

1.1 Repeal of principal retained EU law relating to free movement

The EU (Withdrawal) Act 2018 provides for the retention of EU law relating to free movement as UK law following EU Exit. The Bill will repeal the key free movement provisions and end the operation in the UK of EU rules on free movement. This means that when the UK exits the EU, the UK Government will be able to set UK Immigration Rules for EEA nationals and their family members. The Bill removes the exemption from UK immigration control which currently applies to EEA nationals and their family members and requires them to apply for permission to enter and remain under the Immigration Act 1971.

Through the Bill’s provisions, certain directly effective EU rights, for example, those relating to the Swiss free movement agreement, cease to be recognised in domestic law. To the extent that directly effective EU rights are not expressly ended for domestic purposes, such as the right to provide services, which derives from Article 56 of the Treaty of the Functioning of the EU, are misapplied insofar as they are inconsistent with the UK’s immigration law.

1.2 Irish citizens: entitlement to enter or remain without leave

The Bill protects the status of Irish citizens in the UK which existed prior to the UK’s membership of the EU once free movement rights end. Since the 1920s British and Irish citizens have enjoyed a ‘special status’ in each other’s State, distinct from that later enjoyed as a consequence of EU citizenship. Section 2(1) of the Ireland Act 1949 declares that “…notwithstanding that the Republic of Ireland is not part of [Her] Majesty’s dominions, the Republic of Ireland is not a foreign country for the purposes of any law in force in any part of the UK…”. The fundamental provisions for the immigration status of Irish citizens in the UK are provided for in the Immigration Act 1971, but these provisions only cover Irish citizens who enter the UK from within the Common Travel Area (CTA); Irish citizens arriving from outside the CTA currently enter the UK under EU free movement law. The Bill will rectify this disparity and protect the status of Irish citizens when free movement rights end, irrespective of from where they have entered the UK. This means that Irish citizens will continue to be free to enter and remain in the UK without restriction unless they are subject to a deportation order, exclusion order or international travel ban. This status is consistent with the commitments in the Belfast (‘Good Friday’) Agreement in relation to citizenship and identity.

1.3 Consequential, transitional and savings provisions

The Bill includes powers to enable the Secretary of State to make to make consequential, transitional and savings provisions in respect of ending free movement.

1.4 Social Security Co-ordination

The Bill creates powers to modify retained EU law in relation to social security co-ordination. It allows the Government (and/or, where appropriate, a devolved authority) to modify the retained rules, as appropriate, and gives the government flexibility to respond to various post-Exit scenarios that might arise. This clause also provides for the disapplication of directly effective rights, which have been saved by section 4 of the EU (Withdrawal) Act, to the extent that they conflict with the exercise of this power.

Consequential, transitional and savings provisions (in relation to social security coordination)

The Bill includes powers to enable the Government (and/or a devolved authority where appropriate) to make to make consequential, transitional and savings provisions to primary legislation and other retained direct EU legislation which is not listed in the clause. This will allow the Government (and/or, where appropriate, a devolved authority) to ensure that changes made to the retained social security co-ordination regime can be reflected across the complex range of domestic primary and secondary legislation which governs this area.

2. Summary of the evidence considered in demonstrating due regard to the Public Sector Equality Duty.

A separate PES has been completed which analyses the equalities impacts of the social security co-ordination provisions in the Bill.

The Migration Advisory Committee report on the economic and social impacts of the UK’s exit from the EU, published on 18 September 2018, has been considered. As further data becomes available we will amend the PES to reflect any equalities impacts. Available data relating to specific clauses is listed below:

2.1 Repeal of principal retained EU law relating to free movement

Consideration has been given to the following:

2.2 Irish citizens: entitlement to enter or remain without leave

Consideration has been given to the following reports and pieces of research:

The views of a range of internal Government and external stakeholders have been sought as these proposals have been developed and no adverse impacts on particular groups have been identified. In particular, there have been regular bilateral discussions with Ireland’s Department of Justice and Equality and the Department of Foreign Affairs, with particular focus on the reciprocal nature of these rights. The last discussion was held in Dublin on 1 December 2017.

3. The public sector equality duty under s149 of the Equality Act 2010 requires that in exercising their functions public authorities must have due regard to the need to:

  • eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act;
  • advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
  • foster good relations between persons who share a relevant protected characteristic and persons who do not share it

Under s149 the eight specified protected characteristics are age; disability; gender reassignment; pregnancy and maternity; race (including ethnic or national origins, colour or nationality); religion or belief; sex; and sexual orientation.

A separate PES has been completed which analyses the equalities impacts of the social security co-ordination provisions in the Bill.

3.1 Consideration of limb 1 of the duty: Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Equality Act

Repeal of retained EU law relating to free movement

The repeal of retained EU law relating to the free movement of persons will apply to all EEA nationals (and their non-EEA national family members) and is the necessary consequence of leaving the European Union, subject to any future arrangements agreed with the EU. The Bill will make particular provision for Irish citizens, as considered below.

Much of the legislative framework for immigration already applies to non-EEA nationals. The Bill will align the treatment of EEA nationals and non-EEA nationals insofar as they will need permission to enter and remain in the UK. The rationale for the policy approach is set out below in order to demonstrate how such discrimination is a proportionate means of achieving a legitimate aim. To the extent that the policy may result in discrimination, we have considered how this can be minimised and/or mitigated. Where we have been able to put measures in place to mitigate discrimination we have set these out below. The exceptional circumstances of EU Exit and the requirement to bring EEA nationals within the UK domestic immigration system mean that is has not been possible to eliminate discrimination entirely. This is a matter which will be kept under review as policy for the future immigration system is further developed.

The end of free movement will align the position of EEA nationals (and their non-EEA family members) with that of non-EEA nationals as EEA nationals and their family members will no longer be exempt from the requirement for leave to enter or remain in the UK. As such, and subject to the detail of the future immigration system, the Bill reduces discrimination on grounds of race and nationality. Ending free movement will not directly discriminate on grounds of nationality as between EEA nationals and any discrimination which does arise is likely to be indirect discrimination.

In addition, the estimated resident population of EU nationals is estimated to be roughly half male and half female[footnote 2]. As a consequence, we estimate that ending free movement will not discriminate on grounds of sex, however, we cannot predict the volume and pattern of migration post EU Exit.

Currently, EU citizens in the UK tend to be young or of working age. Home Office estimates based on the Annual Population Survey for 2017 suggest that just under 20% of the resident population of EEA nationals (excluding Irish citizens) are aged under 16, just under 80% are aged 16-64 and the remainder are aged 65 or over[footnote 3]. Ending free movement may therefore be more likely to impact young people or people of a working age, however, we cannot predict the volume and pattern of migration post EU Exit.

There is nothing, at the present time, to indicate that those falling within the protected characteristic of disability, gender reassignment, pregnancy and maternity, religion or belief and sexual orientation will be particularly affected by the end of free movement.

Equalities considerations, including the public sector equality duty, are being considered more widely throughout the development of the future immigration system and a Policy Equality Statement, or equivalent, will be prepared as those proposals develop.

As a consequence of the end of free movement after EU Exit, the 3.5m[footnote 4] EU citizens living in the UK (excluding Irish citizens) and representing some 5% of the estimated total resident UK population in 2017) will need to apply for a new immigration status under UK law through the Settlement Scheme, otherwise they will be in the UK unlawfully. The equalities impacts of the Settlement Scheme have therefore been outlined below, although a separate PES which evaluates the detailed equalities impacts of the Settlement Scheme has also been completed.

Race

The EU Settlement Scheme will apply equally to all EU citizens and will not give rise to direct discrimination on grounds of nationality as between EU citizens in the application of the scheme, or on grounds of nationality as between their family members. We do not consider that the scheme would constitute direct discrimination between EU citizens and non-EU citizens who live in the UK, as they are not in a comparable position given their very different entitlements and expectations. Even assuming that they were in a comparable position, however, we consider any indirect discrimination which arises to be justified, as the scheme reflects the unique status of EU citizens resident in the UK.

Age

The digital application process may impact on smaller groups of older applicants who may not be able or inclined to use an online application process. However, the existing permanent residence online form has been tested and designed to include features for those not ‘digitally confident’ and the intention is to reflect these features in the design of the scheme. It is also planned that, as now, there will be an assisted digital process, with telephone and face-to-face support available to help complete the online application process. Applicants will be able to demonstrate their residence through, among other things, employment or self-employment. This will support those of working age, but may discriminate indirectly against older applicants who may not be in employment or are not economically active. Receipt of state pension will be included in the DWP data used to verify residence, once that becomes available in early 2019, which will further ease the evidential burden on those not working but in receipt of a state pension.

Disability

The EU Settlement Scheme involves a qualifying period of five years’ continuous residence. A concern arises that EU citizens with a disability may need to return to their member state for treatment or support and would find that they had broken their continuous residence impacting adversely on their ability to secure their status in the UK. As currently under the Free Movement Directive, continuity of residence for the purposes of the scheme will not be broken by certain temporary absences. This includes a single absence of up to 12 months for an important reason, which can include serious illness, and temporary absences not exceeding a total of six months in any 12-month period. In replicating the criteria under the Directive the scheme will mitigate potential adverse impacts of the continuous residence requirement on persons who share the protected characteristic of disability.

Pregnancy and maternity

The EU Settlement Scheme involves a qualifying period of five years’ continuous residence. A concern arises that EU citizens who wanted to return to their member state to have a child would find that they had broken their continuous residence, impacting adversely on their ability to secure their status in the UK, however, as currently under the Free Movement Directive, continuity of residence under the scheme will not be broken by certain temporary absences. This includes a single absence of up to 12 months for an important reason, which can include pregnancy or childbirth.

Sex

A woman who uses her maiden name for employment, banking or other purposes may have more difficulty evidencing their qualifying period of residence as a family member for the purposes of the EU Settlement Scheme, as they would currently if they decided to apply for documentation under the EEA Regulations. We will seek to learn from the approach taken in respect of other public services, e.g. voter registration, in mitigating this impact through the guidance for applicants and caseworkers as to the operation of the scheme.

There is nothing, at the present time, to indicate that the scheme will have differential impacts in relation to the protected characteristics of religion or belief or sexual orientation.

Protecting the status of Irish citizens in immigration law

The number of Irish citizens residing in the UK is estimated at 350,000[footnote 5]. The proposals on the status of Irish citizens will consolidate the existing legal position of Irish citizens by means of legislation that would positively discriminate in their favour by reason of their nationality. Direct discrimination on grounds of nationality does not contravene the Equality Act 2010 for equality purposes if it is set out in legislation (paragraph 18 of Schedule 3 to the Equality Act 2010).

These proposals support the Government’s commitments made in the Belfast (‘Good Friday’) Agreement in relation to citizenship and identity, specifically the birthright of the people of Northern Ireland to identify themselves and be accepted as Irish or British or both as they may so choose and that such persons have the right to hold both British and Irish citizenship.

Consideration has been given to how to eliminate or minimize discrimination in this regard, however, this discrimination is considered necessary in order to give effect to the UK’s international obligations in relation to Northern Irish born Irish citizens, and to give effect to the particularly strong historical, economic and cultural links between the UK and Ireland. If the Bill did not protect the immigration status of Irish citizens, this could adversely impact on UK-Ireland relations (as part of CTA arrangements British citizens enjoy a reciprocal immigration status in Ireland) and community relations in Northern Ireland.

There is nothing to indicate that those falling within the protected characteristics of age, disability, pregnancy and maternity, sex, religion or sexual orientation will be significantly affected by the proposals on the status of Irish citizens.

Consequential, transitional and savings provisions (relating to free movement)

Clause 4 of the Bill enables the making of consequential, transitional, transitory and saving provision to be made by secondary legislation. Subsection (4) of this clause expressly provides that regulations made under this section may include provision in respect of persons who were not entitled to be in the UK under the EEA Regulations or under enforceable EU rights. For example, the provision could be used to protect the position of EEA nationals who are in the UK before Exit and who are, before Exit, treated for most purposes as though they were exercising Treaty rights, although they are not actually doing so. This subsection does, on the face of it, enable regulations to be made that would indirectly discriminate in favour of certain EEA nationals. However, it is considered necessary to include such a provision in the Bill in order to ensure that the Government is able to affect a smooth transition to the future immigration system. Full consideration of the equalities impacts of the use of the regulation making power, including consideration of the public sector equality duty, will be given throughout the development of the policy in this regard.

3.2 Consideration of limb 2: Advance equality of opportunity between people who share a protected characteristic and people who do not share it

Schedule 18 to the 2010 Act sets out exceptions to the public sector equality duty. In relation to the exercise of immigration and nationality functions, s149(1)(b) – advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it – does not apply to the protected characteristics of age, race (insofar as it relates to nationality or ethnic or national origins) or religion or belief.

The repeal of retained EU law on the free movement of persons will, with the exception of Irish citizens, align the position of EEA nationals (and their non-EEA national family members) with non-EEA nationals, insofar as they will require permission to enter and remain in the UK under the Immigration Act 1971. As the future immigration arrangements for EEA nationals and their family members will be set out in Immigration Rules yet to be determined, it is difficult to identify how the Bill may advance equality of opportunity between persons who share a protected characteristic and those who do not share it; this will be considered in full as the future immigration system is developed. As set out above, the Settlement Scheme has been designed in such a way as to be accessible to all resident EU citizens and their family members, including those with particular protected characteristics, as a means of advancing equality of opportunity.

3.3 Consideration of limb 3: Foster good relations between people who share a protected characteristic

The repeal of retained EU law on the free movement of persons will, with the exception of Irish citizens, align the position of EEA nationals (and their non-EEA national family members) with non-EEA nationals, insofar as they will require permission to enter and remain in the UK under the Immigration Act 1971. The future immigration arrangements for EEA nationals and their family members will be set out in Immigration Rules. As this Bill does not set out the detailed future immigration arrangements it is difficult to identify how the Bill fosters good relations between persons who share a protected characteristic and those who do not share it; this will be considered as the future immigration system is developed. The Settlement Scheme is intended to support the transition of resident EU citizens and their family members to UK immigration status as smoothly and easily as is practicable. The policy intention is to provide certainty as soon as possible, enabling them to continue their established lives here with minimal disruption, and helping, among other things, to foster good relations between resident EU citizens and their family members and others living in the UK. In respect of Irish citizens, these proposals support the Belfast (“Good Friday”) Agreement in respect to identity and citizenship, fostering good relations between all communities in Northern Ireland and between Irish citizens and British citizens.

4. Foreseeable impacts of policy proposal on people who share protected characteristics

A separate PES has been completed which analyses the equalities impacts of the social security co-ordination provisions in the Bill.

As the details of the future immigration system will be set out in Immigration Rules, it is difficult to assess the impacts of the proposed at this stage. However, the impacts will be considered more widely throughout the development of the future immigration system and a full Policy Equality Statement, or equivalent, will be prepared as those proposals develop. We are committed to implementing a fair and transparent immigration system which complies with the equality duty.

5. Review date

SCS sign off: Sally Weston

Name/title: Sally Weston, Head of Legal Strategy

I have read the available evidence and I am satisfied that this demonstrates compliance, where relevant, with Section 149 of the Equality Act and that due regard has been made to the need to: eliminate unlawful discrimination; advance equality of opportunity; and foster good relations.

Directorate/Unit: Legal strategy, BICSPI

Lead contact: Alice Ioannou, Bill Manager

Date: December 2018

All completed PESes must be sent to the Talent & Inclusion Team.

6. Part 2 - Policy Equality Sign-off

N.B. The PES can be completed throughout the development of a policy but is only signed at the point the policy is made public i.e. finalised and implemented. To assist in evaluating whether there is robust evidence that could withstand legal challenge, the following questions must be asked prior to sign-off.

  • has ‘due regard’ been made to the three aims of the General Duty (Section 149 of the Equality Act 2010)?
    • eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act;
    • advance equality of opportunity between people who share a protected characteristic and people who do not share it; and
    • foster good relations between people who share a protected characteristic.
  • have all the protected characteristics been considered – age; disability; gender reassignment; pregnancy and maternity; race (includes ethnic or national origins, colour or nationality); religion or belief (includes lack of belief); sex; and sexual orientation?
  • have the relevant stakeholders been involved and/or consulted?
  • has all the relevant quantitative and qualitative data been considered and been subjected to appropriate analysis?
  • have lawyers been consulted on any legal matters arising?
  • has an appropriate date been established for reviewing the policy?

  1. European Economic Area. ↩

  2. Unpublished Home Office analysis of Annual Population Survey January-December 2017. ↩

  3. Unpublished Home Office analysis of Annual Population Survey January-December 2017. ↩

  4. Unpublished Home Office analysis of Annual Population Survey January-December 2017. Data is rounded to nearest 0.1m. ↩

  5. Internal HO analysis of the Annual Population Survey January – December 2017. ↩

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