On 11 November, the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, commonly known as the Immigration Act 2020 (the Act), was passed into law. The Act repeals all domestic legislation which provides for freedom of movement and paves the way for a new points-based immigration system, in which EU/EEA and non EU/EEA nationals will be treated the same. However, there are provisions in the Act which deal specifically with Irish citizens, recognising the special relationship between the two countries.
Below are five key facts everyone needs to know about the changes that will take place at the end of the Brexit transition period (1 January 2021).
For many people, the end of freedom of movement was a key factor in voting to leave the EU. In a statement released the day the Act received its Royal Assent, Home Secretary, Priti Patel said:
“This time last year the government promised to end free movement, take back control of our borders and introduce a new points-based immigration system.
Today we have officially delivered on that promise.
The Act of Parliament which ends free movement has completed its journey through Parliament and today achieved Royal Assent.
This is an historic day in our new direction outside of the EU – controlling our own borders and delivering on the people’s priorities.”
The statement went on to say:
“The points-based immigration system will encourage employers to focus on training and investing in the UK work force, driving productivity and improving opportunities for individuals, especially those impacted by coronavirus.
Those wanting to come into the UK to work will need to apply for permission in advance. They will be awarded points for a job offer at the appropriate skill level, if they speak English, and for meeting the appropriate salary threshold. Visas will be awarded to those who gain enough points.”
The Act repeals a raft of legislation which allowed freedom of movement to be integrated into UK law. For example, Article 1 of the Workers Regulation gave EU/EEA nationals the same rights to work in the UK as those enjoyed by British citizens.
In case any laws have been overlooked, Schedule 1, paragraph 6 of the Act provides:
Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law so far as—
(a) they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act), or
(b) they are otherwise capable of affecting the exercise of functions in connection with immigration.
And just to ensure that absolutely nothing gets in the way of ending freedom of movement, the Act provides for open-ended exceptionally broad powers.
One of the most criticised parts of the Act, as it passed through Parliament, was the provisions of Section 5 which states, in relation to freedom of movement:
“The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part.”
This effectively means that the government can make changes to legislation concerning freedom of movement without “substantive oversight” (i.e. having the changes pass through and be debated in Parliament). Furthermore, the provision has no time limit; therefore, changes could be made many years in the future, and in cases where a subsequent Secretary of State considers amendments are merely ‘appropriate’ as opposed to the usual higher threshold of ‘necessary’.
The UK, Ireland, Isle of Man, and the Channel Islands operate a Common Travel Area which allows citizens from each nation to freely leave and enter each other’s territory. Because Ireland is a member of the EU, the Common Travel Area provisions did not apply because they had leave to enter and remain in the UK under freedom of movement. There were fears that the ‘special relationship’ regarding the right of people from Éire to freely enter and leave the UK would not continue after 1 January 2021. These worries have thankfully been expunged by the provisions of the Act.
The Act does not set out the details of the new points-based system, it simply lays down the essential foundation for it, i.e. ending freedom of movement whilst protecting the ‘special relationship’ between the UK and the Republic of Ireland. It is a monumental piece of legislation as it sweeps away one of the fundamental anchors of immigration policy that has been part of Britain’s identity for nearly 50 years.
What matters now, more than ever is for businesses and people who will be affected by the end of freedom of movement to get prepared. For the former, that means obtaining a UK Sponsor Licence; for the latter, Settled or Pre-Settled Status. For advice and representation on these and any other immigration matters, talk to an experienced immigration law Solicitor.
Based in Birmingham and London, UK Migration Lawyers is one of Britain’s premier immigration law firms. Please phone our office on 0121 777 7715 to make an appointment with one of our immigration Solicitors.