House of Lords Shows Its Disapproval of Priti Patel’s Post-Brexit Immigration Bill

In recent months, we have written much about the proposed changes to the immigration system required once the UK fully ‘Brexits’. Rather like the story of Cinderella, at the stroke of midnight of New Year’s Eve 2020, the UK will come to the end of the Brexit transition period, meaning that our existing arrangements with the EU will cease, and we revert to the provisions which have been put in place (the scope of which is currently being negotiated). What we do know is that we will no longer be part of the EU customs system, and free movement, which allows any EU national to travel, live, and work freely in any country in the bloc, will come to an end. For businesses heavily reliant on hiring workers from the continent with ease, this may pose an existential risk. The new points-based post-Brexit immigration system, the details of which have been released in stages by the Home Office during 2020, has been designed to mitigate some of this risk by lowering the minimum salary, lowering the qualification threshold needed for a work visa, and removing the need to carry out labour market tests. There will not be, however, a route for low skilled labour, meaning that many businesses will be reliant on domestic labour and settled EU nationals (such as those who have EU Pre-Settled or Settled status). In early October 2020, the Government hit a substantial stumbling block with the House of Lords rejecting the post-Brexit immigration Bill (Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21 – “the Bill”). In this article, we will discuss why the House of Lords rejected the post-Brexit immigration Bill in its original form, and what this is likely to mean for the post-Brexit immigration system.

What is Contained in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21?

The main purpose of the Bill is not to explain all of the details of the post-Brexit immigration system (i.e. the points-based system), rather it is to detach the UK from EEA and EU immigration law, and remove the rights of free movement. Some of the key sections in the Bill are as follows:

• “Section 7 of the Immigration Act 1988 (exemption from requirement for leave to enter or remain for persons exercising EU rights etc.) is omitted” – this means that EU nationals will be subject to the same immigration policies as applies to those outside of the EU/EEA.
• “Section 109 of the Nationality, Immigration and Asylum Act 2002 (power to make regulations about appeals against immigration decisions in respect of persons having, or claiming to have, EU rights) is omitted” – the impact of this is that asylum seekers will no longer be able to rely on EU treaty rights in the UK to bring an appeal.
• “The Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052), ade under section 2(2) of the European Communities Act 1972 as well as under section 109 of the 2002 Act, are revoked” – as the UK will no longer be bound by EEA regulations on immigration, this domestic legislation is being revoked.

As the Migration Observatory at the University of Oxford observes, the Bill is almost identical to one introduced under Theresa May’s Government in 2018, and that beyond ending free movement, it really doesn’t do much more; “In addition to repealing EU free movement, the Bill also proposes to secure the right of Irish citizens to enter and reside in the UK freely after the Brexit transition period – though they could still be made subject to an exclusion or deportation order. The Bill also contains a third set of provisions on ‘social security co-ordination’ with the EU which would allow the Government to implement after the transition period new rules on benefits and healthcare entitlements for EU citizens in the UK”.

What are the Main Concerns Regarding the Bill?

One of the main concerns of the Bill is that because it does not include details of the new immigration system, including the new points-based system, these will be laid down in the Immigration Rules and, hence, will receive much less scrutiny than if they had been in the Bill. As the Migration Observatory states, “A contentious part of the Bill proposes to give the Home Secretary the power to amend primary or secondary legislation through subsequent regulations (i.e., delegated legislation) if it is considered “appropriate in consequence of, or in connection with, any provision of” the Bill. If these subsequent regulations amend primary legislation, they must be approved by vote in both Houses. If these regulations amend only secondary legislation, they will be made and then may subsequently be annulled by either the Commons or Lords”.

How did the House of Lords View the Bill?

The Lords have tabled a number of amendments to the Bill, including a requirement for the Government to commission and publish an independent assessment of the ending of free movement on the social care system (a key area of concern for many).

Another of the five amendments recommended by the Lords is the so-called ‘Dubs amendment’, named after Labour’s Lord Dubs. The Dubs amendment is intended to ensure that rights of refugee children to join their families in the UK are protected after Brexit.

The Lords have also supported calls for EU nationals to be presented with a physical document as proof that they hold the legal right to live and remain in the UK after it leaves the EU.

Final Words

With a large majority of 80, the Government will likely get the Bill passed, however, whether they will heed the recommendations of their peers will remain to be seen. What is for sure that if this Bill does pass, even with the amendments suggested, it will allow the Government to introduce immigration rules without a significant level of scrutiny going forward, and this should be of concern for everyone. As the Migration Observatory note, “given the long-held power of the Government to change the Immigration Rules as they see fit, with little parliamentary scrutiny, the substance of the points-based system that is to replace freedom of movement may be little debated in Parliament”.