1

Public Law and Brexit

22 February to 3 March 2021 2 and Brexit 22 February – 3 March 2021

DELEGATE PACK*

Contents Page

Agenda and speaker biographies 4-13

What are the enforceable provisions of the Withdrawal Agreement? (22 14 February, 9:00-10:30)  Presentation, David Heaton  Presentation, Leonie Hirst Delegated powers and statutory instruments (23 February, 9:00-10:30) 21  Plus ça change? Brexit and the flaws of the delegated legislation system, by Alexandra Sinclair and Dr Joe Tomlinson Environment (25 February, 14:00-15:30) 61  The agreement on the future relationship: a first analysis, by Marley Morris  Presentation, Carol Day 74 Immigration and the EUSS (1 March, 9:00-10:30)  What is the law that applies to EU nationals at the end of the 77 Brexit transition period?  The 3million submission to the Independent Monitoring Authority 89  What to expect for EU Citizens’ Rights in 2021 135

*Please note this pack may be updated throughout the conference. A final version will be circulated with all presentations and recordings after the fact. 4 Agenda Monday 22 February 9:00-9.10: Introduction Jo Hickman, Director and Alison Pickup, Legal Director, Public Law Project 9.10-10.10: The enforceable provisions of the Withdrawal Agreement Chair: Alison Pickup, PLP Professor Catherine Barnard, Cambridge University Faculty of Law David Heaton, Brick Court Leonie Hirst, Doughty Street Chambers 14.00-15.30: What is retained EU law? Chair: Alison Pickup, PLP Tim Buley QC, Landmark Chambers Professor Tarunabh Khaitan, Oxford University Emma Mockford, James Segan QC,

Tuesday 23 February 9.00-10.30: Delegated powers and statutory instruments Chair: Alison Pickup, PLP Adrian Berry, Garden Court Chambers Dr Ruth Fox, Hansard Society Tom de la Mare QC, Blackstone Chambers Alexandra Sinclair, PLP and School of Economics 14.00-15.30: Equality and human rights Chair: Lewis Graham, PLP Rachel Jones, Blackstone Chambers Shu Shin Luh, Doughty Street Chambers Karon Monaghan QC, Ollie Persey, Garden Court Chambers Professor Iyiola Solanke, Leeds University School of Law

Thursday 25 February 9.00-10.30: Trade Eleonor Duhs, Dr Brigid Fowler, Hansard Society Professor Dr Holger Hestermeyer, Kings College London Anneli Howard, Monckton Chambers

14.00-15.30: Environment Chair: David Wolfe QC, Matrix Chambers Ruth Chambers, Greener UK Carol Day, Leigh Day Marley Morris, IPPR Hatti Owens, ClientEarth

Monday 1 March 9.00-10.30: Immigration and the EUSS Chair: Christian Davies, PLP Paul Bowen QC, Brick Court Chambers Simon Cox, Doughty Street Chambers Luke Piper, the 3million Mala Savjani, Wilsons and Here for Good 5 14.00-15.30: International Perspectives on Brexit Dr Julinda Beqiraj, BIICL The Rt. Hon. The Lord keen of Elie QC Professor Anand Menon, Director, UK in a Changing Europe and King s College London

Wednesday 3 March 10.00-10.50: Closing Conversation, with Emma Foubister (Matrix Chambers) and Sir Jack Beatson 6 Professor Catherine Barnard, University of Oxford Faculty of Law Catherine Sarah Barnard, FBA is a British legal scholar, who specialises in European Union, employment, and competition law. She has been Professor of European Union and Employment Law at the University of Cambridge since 2008.

Sir Jack Beatson Sir Jack Beatson FBA studied law at Brasenose College Oxford and obtained first class degrees (BA and BCL). Called to the bar () in 1973, he became a bencher in 1994 and was appointed Queen’s Counsel in 1998. In 2000 he was awarded a higher doctorate (DCL) by the University of Oxford for distinction by original contribution to the advancement of the study of law. He was until February 2018 a member of the Court of Appeal of and Wales. Between 2003 and 2012, he was a Judge of the High Court, primarily sitting in the Commercial Court and the Administrative Court. He had previously combined academic and public roles with a mixed commercial and public law practice at what is now (which he joined in 1983). He was the Rouse Ball Professor of English Law at Cambridge University and a Fellow of St John’s College, Cambridge between1994 and 2003, a member of what is now the ’s Competition Commission between 1995 and 2001, a Law Commissioner for England and Wales between 1989 and 1994, and before that had been a Fellow of Merton College Oxford and a Lecturer in the Faculty of Law at the University of Oxford. His commercial litigation and arbitration practice included shipping, insurance, banking and finance, sales and energy law, and issues of construction and jurisdiction. His public law practice included economic regulation, trade union law and judicial review of decisions about the terms and conditions of public employees such as police officers. He led the Law Commission’s work on contract and commercial law, civil evidence, damages, administrative law, and financial services. At the Competition Commission the inquiries he served on included those into London Airports, the supply and pricing of milk, Northern electricity, and the provision of services such as chemotherapy at the homes of seriously ill patients. His arbitration experience included acting as counsel in an ICC arbitration about a claim for some £500 million under a contract of sale. Sir Jack was one of the founding editors of Arbitration International, serving between 1985 and 1989 when he had to resign on joining the Law Commission. He has authored and edited leading legal texts including Anson’s Law of Contract (27th – 31st eds.), Chitty on Contract, co-editor (25th – 28th eds.), Good Faith and Fault in Contract Law (author & joint editor OUP 1995). After retiring from the Bench, Sir Jack returned to Chambers and now accepts appointments as arbitrator or mediator; and as an expert on English Law.

Dr Julinda Beqiraj, British Institute of International and Comparative Law Dr Julinda Beqiraj is the Maurice Wohl Senior Research Fellow in European Law. She works on a number of projects, including one on the role of the rule of law in the context of the 2030 Sustainable Development Goals, and one on barriers and solutions to access to justice across jurisdictions. She is also involved in the organization of Bingham Centre events on these issues. Julinda also works as an expert consultant for the Council of Europe, Commission on the Efficiency of Justice (CEPEJ). Prior to joining the Bingham Centre in 2014, Julinda worked for several years as research fellow and lecturer in international law at the University of Trento, where she taught courses on public international law, EU law and international economic law. She holds a Ph.D. from the School of International Studies in Trento and her doctoral dissertation focused on the international protection of the economic and social rights of migrant workers. Julinda has published on topical issues of public international law and has carried out research in a series of projects covering subjects, such as, international migration, international economic law, regional human rights protection in Europe, European Union law, child labour issues, international humanitarian law and international criminal law.

Adrian Berry, Garden Court Chambers Adrian Berry is a at Garden Court Chambers. His practice spans a range of inter-related public law areas concerning citizenship and nationality, immigration, human rights, international protection, homelessness and destitution, equality, community care, and social assistance/social security. He has a particular interest in EU law and international mobility regimes. At the Court of Justice (CJEU) he has appeared in the free movement cases of Chen, Teixeira, and Dias among others. Recently he has been working on mobility issues arising out of the UK’s EU Withdrawal Agreement and the Trade and Cooperation Agreement. He writes a blog on migration, citizenship, and free movement called Cosmopolis (cosmopolismigration.com). He also has a blog on Nationality and Citizenship 7 law (nationalityandcitizenshiplaw.com). He was Chair of the Practitioners’ Association (ILPA) for eight years and is now a Patron of ILPA and Convenor of its Legislation Working Group.

Paul Bowen QC, Brick Court Chambers Paul Bowen QC practises across the spectrum of public and administrative law, often with significant human rights, EU or other international law elements. He has particular expertise in crime and regulatory cases with a public law flavour. His recent experience includes cases involving the privilege against self- incrimination in tax and fraud investigations, international transfer of prisoners, the legality of the death penalty, the government’s counter-extremism policy, cross-border taxation enforcement, privacy and data protection in relation to the harvesting of online profiles, the regulation of the telecoms industry and investigations in the renewable energy sector, among others.

Tim Buley QC, Landmark Chambers Tim Buley QC specialises in all areas of public and regulatory law, human rights, and planning and environmental law. He is recognised as a leading silk across eight areas in Chambers UK Bar 2021 and the Legal 500 2021. Immediately prior to his appointment to silk in 2019, Tim was the only junior named in Band 1 in both directories in Public Law (“probably the leading junior at the Administrative Law Bar”, ) and was top ranked in five practice areas. He was nominated as Chamber’s Public and Human Rights Junior of the Year in 2017. The current edition of the Legal 500 describes him as “clearly one of the most talented public lawyers of his generation of rising silks” and Chambers UK says that “when he’s your opposition, your heart sinks because he is so good”. Tim’s practice covers the full range of public law work, from commercial and regulatory matters, planning and the environment, through constitutional and EU law, local government and healthcare, to civil liberties and human rights, immigration, and social welfare. He is equally experienced acting for and against public bodies, and for commercial interests and individuals. The breadth of Tim’s practice is demonstrated by his clients, who include commercial organisations and developers, regulators, individuals, NGOs and pressure groups, most central government departments, devolved administrations, many local authorities, and a wide range of independent and non-departmental public bodies. He is currently a member of the Welsh Government’s Panel of Queen’s Counsel, the Equality and Human Rights Commission’s Panel of Counsel, and a Special . Prior to appointment to silk, Tim was a member of the Attorney-General’s A-Panel of junior counsel to the Crown and he continues to act for the government in significant cases.

Ruth Chambers, Greener UK Ruth joined Green Alliance’s Greener UK unit in October 2017 and leads the coalition’s work on the Environment Bill and the setting up of the Office for Environmental Protection. Before joining Greener UK, Ruth worked with a wide range of not-for-profit and public sector organisations, helping them to engage with and influence government and parliament. She has worked on a number of bills including the Modern Slavery Bill, Housing and Planning Bill, Criminal Finances Bill and the Welfare Reform and Work Bill. Prior to that, she was deputy chief executive of the Campaign for National Parks. In addition to her Greener UK role, she is a Trustee of the London Wildlife Trust, a board member of Hexagon Housing Association and the lay member on COMEAP, the expert committee that advises the government on the effects of air pollutants on health.

Simon Cox, Doughty Street Chambers Simon’s work includes judicial review, immigration, European Union and international law, social welfare and discrimination. He has appeared before United Kingdom and European courts and tribunals at all levels, including the UK Supreme Court, Court of Justice of the European Union and European Court of Human Rights, as well as the Court of Appeal and statutory tribunals. Over the last 25 years, Simon has acted in many leading cases for individuals, groups of victims and for NGOs. His cases as lead counsel include CEZ v Nikolova (Grand Chamber CEU judgment on collective race discrimination), Chowdury v (European Court of Human Rights judgment on forced labour of irregular migrant farmworkers), McCarthy (scope of EU law for dual nationals) and Patmalniece (UK Supreme Court: social security discrimination). Simon has extensive experience of public and administrative law in England and Wales, with many appearances before the UK Supreme Court/House of Lords, Court of Appeal, High Court, Upper and First- tier Tribunals and the Special Immigration Appeal Commission. His specialist practice includes all aspects of immigration, nationality, and social security law, as well as ‘cross-over’ issues, such as migrants’ eligibility to housing & community care; export & co-ordination of social security benefits and “hostile environment” practices. 8

Carol Day, Leigh Day Carol Day has worked in the environmental sector for over 25 years. She trained as a at Leigh Day and re-joined the firm to run the environmental litigation service in 2013. After completing an MSc in Nature Conservation (UCL), Carol started her career in the voluntary sector as a campaigner working on environmental policy. Through her employment with two County Wildlife Trusts (Warwickshire and Surrey) and a decade on planning and site safeguard work with WWF-UK, she developed an in-depth understanding of UK/EU environmental issues.

Christian Davies, Public Law Project Christian coordinates PLP’s EU Settlement Scheme support hub. His role includes providing second-tier advice to frontline organisations who assist vulnerable and disadvantaged applicants to the EUSS, and conducting related strategic casework. Before joining PLP, Christian trained and qualified as a solicitor at . He has also provided pro bono advice on a wide range of legal issues as a volunteer at the Islington Law Centre and the Legal Advice Centre (University House).

Eleonor Duhs, Fieldfisher Eleonor is the Director in the Technology, Outsourcing and Privacy team in Fieldfisher’s London office. She specialises in privacy and information law. She was the UK Government’s lead lawyer in EU negotiations on the GDPR. She has extensive, in-depth knowledge of the GDPR. She represented the UK in meetings in Brussels, drafted text for inclusion in the legislation, and worked with the European Commission, representatives from other EU Member States, regulators and stakeholders to develop the regime. She also has extensive experience of advising the UK Government on data protection and information law issues, including compliance and risk in high profile projects.

Dr Brigid Fowler, Hansard Society Brigid joined the Hansard Society in December 2016 to lead its work on Parliament and Brexit, as well as contribute to its ongoing research on the legislative process, parliamentary procedure and scrutiny, and public political engagement. From 2007 to 2014 she was a Committee Specialist for the House of Commons Foreign Affairs Committee, where she led on the Committee’s EU-related work. In the first six months of 2016 she was on the research team of Britain Stronger in Europe. She has also worked as assistant to an MEP in Brussels and as an analyst and researcher on EU and European affairs in the private sector and at the University of Birmingham and King’s College London. After completing BA and MPhil degrees at the University of Oxford in PPE and European Politics, respectively, she spent the first part of her career focusing on the politics of post-communist transition and EU accession in Central Europe, and completed her PhD at the University of Birmingham on the case of Hungary. She has given media comment, appeared before select committees and published several journal articles and book contributions. She is a Visiting Research Associate at ParliLinc – The Lincoln Parliamentary Research Centre, University of Lincoln; a Visiting Practitioner Fellow at Sussex European Institute, University of Sussex; and the Hansard Society’s representative on the Executive Committee of the Study of Parliament Group.

Emma Foubister, Matrix Chambers Emma has a broad practice in public law and human rights, crime and extradition, media and information law, and employment law. She is a member of the Equality and Human Rights Commission’s Panel of Counsel.

Dr Ruth Fox, Director, Hansard Society Ruth is Director of the Hansard Society. Her research focuses on parliamentary strengthening, constitutional reform, and public attitudes to politics. She is the co-author of ‘The Devil is in the Detail: Parliament and Delegated Legislation’, the first detailed study of the parliamentary scrutiny of delegated legislation for decades. In 2019-20 she was BBC Parliament’s commentator for its coverage of the major Brexit votes, providing viewers with a guide to the procedural twists and turns in the legislative process.

Lewis Graham, Public Law Project Lewis Graham is the PLP’s Research Fellow in Constitutional Law. He has degrees from the University of Bristol and University of Oxford and is finishing a PhD at the University of Cambridge, a project looking at the behaviour of judges on the UK Supreme Court. His academic research generally focuses on judges, human rights and administrative law. He has published on these topics in leading journals including Public Law and International & Comparative Law 9 Quarterly, and his work has been cited by judges in national administrative courts as well as judges in the European Court of Human Rights. His book, Counter-Terrorism and Human Rights in the United Kingdom (co-authored with Steven Greer and Lindsey Bell), is due to be published soon.

David Heaton, Brick Court Chambers David practises in commercial, public, EU and competition law and international arbitration. He has appeared in the Supreme Court, Court of Appeal, High Court and the County Court and assisted leading counsel before the Grand Court and Court of Appeal of the Cayman Islands. He has worked on matters in sectors including energy and resources (including oil and gas), banking and financial services (including funds management and cryptocurrencies), telecommunications, online services, software and information technology, shipping, insurance, transport and government.

Professor Dr Holger Hestermeyer, Kings College London Holger Hestermeyer is a Professor of International and EU Law at King's College London. He is also a Research Affiliate of the Max-Planck-Institute for Comparative Public Law and International Law. He has published widely in the areas of international, EU and constitutional law and won an Otto Hahn Medal, an Otto Hahn Award and, most recently, a British Academy Mid-Career Fellowship for his research. Holger advises on international and EU law, has served as a Specialist Adviser to the EU External Affairs Sub-Committee and the EU Select Committee of the House of Lords and is a past Co-executive Vice President of the Society of International Economic Law. Before joining King's College London, Holger was a Référendaire at the Court of Justice of the EU and a research group leader at the Max-Planck-Institute in Heidelberg. Holger has given expert testimony to parliamentary committees of the House of Commons, the House of Lords, the Scottish Parliament and the German Bundestag, is frequently cited in the domestic and international media and has appeared on the BBC and Euronews. Holger speaks German, Italian, Spanish and French and is admitted to the New York and German bars.

Jo Hickman, Public Law Project Jo Hickman was appointed PLP’s Director in 2015. She is a public law specialist with a background in both the private and voluntary sectors. Immediately prior to her appointment Jo was Head of PLP’s Casework team where she developed and led the pioneering legal aid project, and acted in a number of seminal cases. She is widely recognised for her strategic expertise, having been historically named Legal Aid Lawyer of the Year and Times Lawyer of the Week. Most recently she was shortlisted as 2017 Lawyer of the Year at both the Legal Business and Solicitor Journal awards. She is a member of the Law Society Access to Justice Committee, a Board member of the Legal Aid Practitioners Group, and sits on the Civil Justice Council.

Leonie Hirst, Doughty Street Chambers Leonie has a broad-based civil practice covering a range of areas including public law, immigration, Court of Protection, prison law, inquests, mental health, community care, and discrimination law. Her work has a particular focus on deprivation of liberty, mental capacity and equality issues. She is a strong technical lawyer noted for her oral and written advocacy and client skills. She is on the Equality and Human Rights Commission ‘B’ panel of counsel, and is ranked as a leading junior by Chambers & Partners in Court of Protection, Immigration, and Civil Liberties, and by the Legal 500 in Civil Liberties.

Rachel Jones, Blackstone Chambers Rachel accepts instructions in all of Chambers' main areas of practice. Before coming to Blackstone, Rachel worked as a lawyer at a leading human rights and law reform NGO for two years, in which role she worked with judges, policy-makers and MPs. She also taught EU Law at Balliol College, Oxford and Medical Law at the LSE. Prior to this, Rachel was Judicial Assistant to Lord Reed and Lord Carnwath in the UK Supreme Court, and spent a year at Harvard Law School as a Kennedy Scholar. Rachel was elected to the Council of the human rights organisation Liberty from 2018-2020.

Professor Tarunabh Khaitan, University of Oxford Faculty of Law Tarun Khaitan is the Professor of Public Law and Legal Theory at Wadham College (Oxford) and a Vice Dean at the Faculty of Law (Oxford). He is also a Professor & Future Fellow at Melbourne Law School, working on a project on the resilience of democratic constitutions, with a focus on South Asia. He specialises in legal theory, constitutional law and discrimination law. 10 He is the founding General Editor of the Indian Law Review, founder and Chief Advisor of the Junior Faculty Forum for Indian Law Teachers, and an Affiliate of the Bonavero Institute of Human Rights and an Associate of the Oxford Human Rights Hub. He completed his undergraduate studies (BA LLB Hons) at the National Law School (Bangalore) in 2004 as the 'Best All Round Graduating Student'. He then came to Oxford as a Rhodes Scholar and completed his postgraduate studies (BCL with distinction, MPhil with distinction, DPhil) at Exeter College. Before joining Wadham, he was the Penningtons Student (Fellow) in Law at Christ Church. He has also been a Global Visiting Professor of Law at NYU Law School. His monograph entitled A Theory of Discrimination Law (OUP 2015 hbk, South Asia edition and Oxford Scholarship Online, 2016 pbk) has been cited by the European Court of Human Rights and reviewed very positively in leading journals, including in Law and Philosophy, where Sophia Moreau said "In this magnificent and wide-ranging book ... Khaitan attempts what very few others have tried." In Ethics, Deborah Hellman said that its 'ambitious scope and the careful argumentation it contains make it one of the best in the field’. In his review in the Modern Law Review, Kasper Lippert-Rasmussen claimed that "Khaitan's account is sophisticated, extensive and among the best normative accounts of discrimination law available." Colm O'Cinneide's review in the Oxford Journal of Legal Studies says that "Khaitan’s quest shows up the inadequacies of previous attempts to track down this Holy Grail, and the path he has laid down will encourage others to follow in his footsteps." The book won the Woodward Medal (with a cash prize of 10,000 Australian dollars) in 2019 for making ‘a significant contribution to knowledge in a field of humanities and social sciences.’ A full list of reviews is available here. He helped draft the Indian Anti-Discrimination and Equality Bill 2017. His research on discrimination law has been quoted and relied upon by the Indian Supreme Court and the Canadian Supreme Court. He writes regularly for newspapers and blogs: links to his columns are available here. Prof Khaitan was awarded the 2018 Letten Prize, a 2 Million Norwegian Kroner award given biennially to a young researcher under the age of 45 conducting excellent research of great social relevance. He is using a part of the award towards setting up the Indian Equality Law Programme, aimed at capacity-building for early-career scholars. In 2020, he was awarded the Excellence in Engagement award by the University of Melbourne for his work on the anti-discrimination bill in India. Prof Pratap Mehta said in the context of this award that “No discussion of the rights of minorities in India is now conceivable without engaging with his conceptual and legal arguments”. He is currently on the advisory board of the United Nation’s Human Rights Office of the High Commissioner’s effort to draft ‘A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation’.

The Right Honourable the Lord Keen of Elie QC Richard Keen QC is one of the UK’s leading silks, with broad expertise spanning Commercial, Public & Regulatory, and International Law. He is a member of the Scottish Bar and the Bar of England and Wales. Richard was appointed Advocate General for Scotland by David Cameron and latterly Lords Minister at the Home Office. He was reappointed Advocate General by Theresa May and appointed Lords Minister for the Ministry of Justice. In the latter capacity Richard had responsibility for civil justice in England and Wales and for regulation of the legal profession. Richard resigned from Government in September 2020. Richard regularly appeared for the government in the UK Supreme Court; the CJEU and the Grand Chamber of ECtHR. This included R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland (2019), R (Miller) v Secretary of State for Exiting the European Union (2017) and Wightman and others v Secretary of State for Exiting the European Union (2018). Richard was responsible for taking a number of pieces of major legislation through the House of Lords including the European Union (Withdrawal) Act 2018.

Shu Shin Luh, Doughty Street Chambers Shu Shin practices in all areas of public law. Her practice has a strong human rights, civil liberties, and anti- discrimination focus. Her expertise covers a broad range of subject matters including community care, mental health and mental capacity, health care, education, housing, welfare benefits, human trafficking, immigration and asylum, and deprivation of liberty both in the context of immigration detention and the Court of Protection. She pursues significant public interest litigation on behalf of individuals and organisations. Shu Shin aims to act for her clients in a comprehensive way, advising where possible on the full range of legal issues impacting on different aspects of their lives in the context of judicial review, statutory appeals, and actions against public authorities, where relevant. This depth of experience and breadth of legal knowledge and expertise enables her to have a truly creative approach to a case. Shu Shin is committed to civil legal aid and to supporting individuals to have effective access to legal remedies. She is on the panel of junior counsel for the Equality and Human Rights Commission. She undertakes advisory and consultancy work for non-governmental and intergovernmental organisations and 11 state bodies in the UK and other jurisdictions on legal policy and draft legislation. She acted as the specialist legal advisor to the Joint Committee on Human Rights in its immigration detention inquiry in 2018/ 2019. She also regularly provides training to governmental departments, local authorities, and public interest groups in the UK and internationally.

Tom de la Mare QC, Blackstone Chambers Throughout his career Tom has worked in a wide range of areas. Tom has presented his cases in the ECJ/CJEU/General Court, the ECtHR, the House of Lords/Supreme Court, Court of Appeal and most divisions of the High Court. On the public law side most of Tom’s current work is for claimants. But Tom was on the Attorney-General’s ‘A’ Panel of Counsel until he took silk in 2012 (and before that the B and C Panels); he also acted as a Special Advocate in a significant number of national security cases, starting with the Belmarsh case and culminating in the Binyam Mohammed litigation. Tom was appointed as the Special Adviser to the Constitutional Affairs Select Committee when it reviewed the use of Special . After completing in Blackstone Chambers in 1996 Tom won the Bristow Scholarship which enabled him to work for c.9 months in the EU institutions, working both in the Commission Legal Service and in the Cabinet of AG Jacobs. Tom is recommended in both of the leading independent legal directories, Chambers and Partners 2019 and The Legal 500 2018, and is also ranked in Chambers Global 2017 in Competition/EU. In addition, he has been recognised as the Legal 500 2019 Silk of the Year for EU and Competition.

Professor Anand Menon, UK in a Changing Europe and Kings College London Anand Menon is Professor of European Politics and Foreign Affairs at Kings College London. He also directs the UK in a Changing Europe project (www.ukandeu.ac.uk). His areas of research interest include the policies and institutions of the European Union, European security, and British politics. He contributes regularly to both print and broadcast media. He is co-editor of the Oxford Handbook of the European Union (OUP, 2012), and co-author of Brexit and British Politics (Polity 2018). He is a trustee of Full Fact a member of the Strategic Council of the European Policy Centre, a Council member of the European Council on Foreign Relations and an associate fellow of Chatham House. @anandmenon1

Emma Mockford, Brick Court Chambers Emma has a busy practice spanning all areas of chambers’ work including EU and competition law, public law and commercial law. She is regularly instructed in complex and high-profile litigation across all of her core practice areas and has appeared in a range of tribunals including the Court of Appeal, High Court, County Court and Competition Appeal Tribunal. The directories recommend Emma as a leading junior in competition law, public and administrative law and civil liberties and human rights. They variously describe her as “really superb – a star of the future”, “an experienced lawyer [with] great judgment” (C&P 2021) and “an effective and efficient advocate, and a great asset to the team” (L500 2021). In 2020, Emma was also the first junior barrister to be profiled by , in its new ‘Barrister of the Week’ series, which described her as a “leading junior”, with a “cross- disciplinary practice” and “multi-faceted approach”.

Karon Monaghan QC, Matrix Chambers Karon practises principally in the fields of equality and human rights law. She has a broad, largely claimant, practice, encompassing public law, employment law and civil actions. She also acts for NGOs and statutory bodies. Karon has an extensive advisory practice and in addition acts in, conducts and advises on statutory and non-statutory inquiries and investigations. Karon has appeared in numerous cases at appellate level, including in the Supreme Court and Court of Appeal, and she has appeared in the CJEU. Karon has also appeared in the Hong Kong Court of Appeal and Court of Final Appeal. Karon is an A Panel member of the Equality and Human Rights Commission Panel of Preferred Counsel.

Marley Morris, IPPR Marley leads on IPPR’s work on migration and trade policy. His research includes studies on the new points-based immigration system, the impacts of the 'hostile environment', the distributional effects of Brexit, and public attitudes to immigration and trade. Marley is the author of numerous reports, articles and policy briefings on migration, Brexit and trade. He regularly provides expert analysis for the national and international press and for broadcast media, including appearances on BBC News, LBC, talkRADIO, Sky News, CNBC and Newsnight. 12 Prior to joining IPPR, Marley worked as a senior researcher at the consultancy and think tank Counterpoint, where his research focused on the populist radical right in Europe. Marley has an integrated master’s degree in maths and philosophy from Oxford University.

Hatti Owens, ClientEarth Hatti Owens joined our London office in May 2018. Her work focuses on environmental law issues associated with the UK’s exit from the EU. Before joining ClientEarth, Hatti worked as a commercial dispute resolution lawyer at international law firm Freshfields Bruckhaus Deringer. Hatti qualified as a solicitor in England and Wales in 2016 and holds a law degree from the University of Oxford.

Ollie Persey, Garden Court Chambers Ollie is a public law barrister. He joined Garden Court Chambers from Public Law Project, where he gained considerable experience of strategic litigation at all domestic levels including the Supreme Court. He has particular expertise in judicial review claims raising discrimination, education, EU citizens’ rights and retained EU law issues.

Alison Pickup, Public Law Project Alison is a barrister, and PLP’s legal director, overseeing the work of our casework and events teams. Alison is responsible for PLP’s legal strategy and leads our work on benefit sanctions and on upholding the rule of law. As well as advising and representing PLP and its clients, Alison regularly speaks, trains and writes on public law and access to justice. Before joining PLP, Alison was in private practice at Doughty Street Chambers where she had a claimant-focused public law practice with a particular focus on migrants’ rights. Alison was awarded the Outstanding Employed Barrister in an NGO award by the Bar Council in 2020.

Luke Piper, the 3million Luke is the head of policy at the 3million.

Mala Savjani, Wilsons and Here for Good Mala is a solicitor at Wilsons for Here for Good, assisting vulnerable EEA nationals and their family members.

James Segan QC, Blackstone Chambers James is recognised as a leading barrister in a total of nine practice areas by Chambers and Partners UK, Chambers Global, Legal 500 and Who’s Who Legal. He was appointed Queen's Counsel in March 2020 at the age of just 38. James has extensive experience of public law and regulatory matters. He was on the Attorney General's "A" Panel prior to taking silk and is recognised as a leading practitioner in the field by the Legal 500. He is regularly instructed in some of the largest litigation in the UK, including several of The Lawyer's Top 20 cases of recent years (such as Canary Wharf v European Medicines Agency; SFO v ENRC and ENRC v SFO; Unwired Planet & Conversant v Huawei; Breyer v DECC and Tchenguiz v SFO). His recent notable cases in the public law field include R (VIP Communications) v SSHD [2020] EWCA Civ 1564 (for the claimant); RXG v Ministry of Justice [2020] QB 703 (as amicus curiae) and R (Woolcock) v SSCLG [2018] 4 WLR 49 (for the defendant).

Alexandra Sinclair, Public Law Project and London School of Economics Alexandra Sinclair has an LLB(hons) from Victoria University of Wellington, and an LL.M from Columbia Law School where she studied as a Fulbright Scholar. Alexandra has worked as a judges’ clerk at the New Zealand High Court and as a barrister in Auckland, New Zealand. She was awarded the Cleary Memorial Prize by the New Zealand Law Foundation in 2015 for showing outstanding promise in the legal profession. She is dedicated to public interest legal work, she was a member of Columbia Law School’s Incarceration and the Family Clinic, she has worked as a legal intern at the Knight First Amendment Institute and she spent time as a Columbia Public Interest Fellow at the Center for Court Innovation in Manhattan. She is particularly interested in the intersection of public law and human rights.

13 Professor Iyiola Solanke, Leeds University Iyiola is a Professor of EU Law and Social Justice in the School of Law where she researches and teaches on EU Law, Discrimination Law, Race and Law and Alternative Dispute Resolution (ADR). Her research is socio-legal, historical and comparative. She graduated from the London School of Economics with a PhD in Law. She joined the School of Law at the University of Leeds in 2010. In 2017, she was elected an Academic Bencher of Inner Temple and appointed a member of the Valuation Tribunal for England (VTE). She founded the Temple Women’s Forum North in 2013 to extend the outreach work of Inner and Middle Temples to legal professionals in the North and North East. She is a Visiting Professor at Wake Forest University Law School and has been a Visiting Professor at Sciences Po, Grenoble in . She has held Fellowships at the University of Michigan Law School (Ann Arbor, USA), Pompeu Fabra Universidad (Barcelona, ), the University of Sydney Law School (Sydney, ), McGill University Law School (Montreal, Canada) and at New Hall, Cambridge University. In 2018 she was a Fernand Braudel Fellow at the European University Institute in Florence, and also a Visiting Professor at Harvard School of Public Health, working with STRIPED on weight stigma and anti-weight discrimination law. In addition to numerous articles in peer-reviewed journals, her published work includes a textbook on EU Law (Pearson 2015) as well as two monographs: ‘Making Anti-Racial Discrimination Law (Routledge 2011) and ‘Discrimination as Stigma – A Theory of Anti-Discrimination Law’ (Hart 2017). She is also an Editor on ‘Eutopialaw’ run by Matrix Chambers.

David Wolfe QC, Matrix Chambers David Wolfe works as a public lawyer (QC) at Matrix. He is also Chair of the Recognition Panel established by the Royal Charter in the light of the Leveson Inquiry into the culture, practices and ethics of the news publishers. Until April 2013, alongside his work as a barrister David was also a Commissioner (non-executive director) at the Legal Services Commission and a Board Member of the . Until July 2008, he was a part-time Chair of the Special Educational Needs and Disability Tribunal. David is an A-Panel member of the Equality and Human Rights Commission’s Panel of Preferred Counsel. David also trains lawyers and others, particularly in education and public law. He contributes regularly to general and specialist publications and radio broadcasts on legal issues. David is an ADR Group Accredited Civil and Commercial Mediator. David believes passionately that public bodies should act in a fair and open way, and that the law and lawyers have a key role in ensuring that happens. 22/02/2021

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OUTLINE

ENFORCEABLE PROVISIONS OF THE • Overview of the Withdrawal Agreement (WA) WITHDRAWAL AGREEMENT • Overview of domestic provisions implementing the WA in the European Union (Withdrawal) Act 2018

• Consideration of provisions of WA that remain in in force (and enforceable), how, and to what extent (illustrative examples)

David Heaton Brick Court Chambers

[email protected]

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OVERVIEW OF WITHDRAWAL AGREEMENT INCORPORATION INTO DOMESTIC LAW (1/3)

• Concluded in October 2019 to govern relationship between EU and UK from UK Obligation for UK to give direct effect to WA: ceasing to be a Member State (under TEU Art 50) to conclusion of agreement as to future relationship (now TCA) “ARTICLE 4 • Six Parts plus Protocols: Methods and principles relating to the effect, the implementation and the application of this Agreement Part 1 Part 2 Part 3 Part 4 Part 5 Part 6 Protocols 1. The provisions of this Agreement and the provisions of Union law made applicable Institutional Northern Ireland Common Citizens’ Separation Financial Transition and final Sovereign Base by this Agreement shall produce in respect of and in the United Kingdom the same provisions rights (Arts 9- provisions provisions (Arts 126-132) provisions Areas (Cyprus) (Arts 1-8) 39) (Arts 40-125) (Arts 133-157) legal effects as those which they produce within the Union and its Member States. (Arts 158-185) Gibraltar Accordingly, legal or natural persons shall in particular be able to rely directly on the • Expressly contemplates the making of the TCA – see, eg, final recital: provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law. • “CONSIDERING that there is a need for both the United Kingdom and the Union to take all necessary steps to begin as soon as possible from the date of entry into 2. The United Kingdom shall ensure compliance with paragraph 1, including as regards force of this Agreement, the formal negotiations of one or several agreements the required powers of its judicial and administrative authorities to disapply inconsistent governing their future relationship with a view to ensuring that, to the extent possible, or incompatible domestic provisions, through domestic primary legislation. those agreements apply from the end of the transition period, …” (and see Art 184) …”

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INCORPORATION INTO DOMESTIC LAW (2/3) INCORPORATION INTO DOMESTIC LAW (3/3)

Domestic provisions giving effect to WA – European Union (Withdrawal) Act 2018 (“EU(W)A”): Many provisions of EU(W)A provide (wide) powers to make regulations relating to the WA, including: • Section 1A(1)-(4): “Saving” which maintained effect of EU law during despite the repeal of the • Section 8 (general power to remedy deficiencies in retained EU law) – see s 8(9): “The reference in European Communities Act 1972 – now repealed subsection (1) to a failure or other deficiency arising from the withdrawal of the United Kingdom from the EU includes a reference to any failure or other deficiency arising from — (a) any aspect of that withdrawal, • Section 7A: including (among other things) — (i) the end of the implementation period, or (ii) any other effect of the “(1) Subsection (2) applies to — (a) all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under withdrawal agreement,…” the withdrawal agreement, and (b) all such remedies and procedures from time to time provided for by or under the withdrawal agreement, • Section 8A: Supplementary powers in connection with implementation period, including express power to as in accordance with the withdrawal agreement are without further enactment to be given legal effect or used in make appropriate provision “for any purpose of, or otherwise in connection with, Part 4 of the [WA]” the United Kingdom. • Section 8B: Power in connection with other separation issues, including express power (sub-s (1)) to (2) The rights, powers, liabilities, obligations, restrictions, remedies and procedures concerned are to be — implement WA Part 3, supplement the effect of s 7A in relation to Part 3 and “otherwise for the purposes (a) recognised and available in domestic law, and (b) enforced, allowed and followed accordingly. of dealing with matters arising out of, or related to, that Part (including matters arising by virtue of section 7A and that Part)” (and see sub-s (6)) (3) Every enactment (including an enactment contained in this Act) is to be read and has effect subject to subsection (2). • Section 8C: Power in connection with Northern Ireland Protocol, including express power (sub-s (1) implement the Protocol, to supplement the effect of s 7A in relation to the Protocol, and (again) “otherwise (4) This section does not apply in relation to Part 4 of the withdrawal agreement so far as section 2(1) of the European Communities Act 1972 applies in relation to that Part. for the purposes of dealing with matters arising out of, or related to, the Protocol (including matters arising by virtue of section 7A and the Protocol)” (5) See also (among other things) — …”

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TCA IS SUBJECT TO PREVIOUS UK–EU PROVISIONS THAT REMAIN ENFORCEABLE AGREEMENTS

Key areas where WA provisions remain enforceable as set out in the WA itself are: Article FINPROV.2: • Citizens rights (WA Part 3) “Relationship with other agreements • EU financial settlement (WA Part 5) This Agreement and any supplementing agreement apply without prejudice to any earlier bilateral agreement between the United Kingdom of the one part and the • Northern Ireland Protocol Union and the European Atomic Energy Community of the other part. The Parties reaffirm their obligations to implement any such Agreement.” But WA may require EU law to continue to be applied in other areas, depending (principally) on: • Inconsistency with TCA? • Scope of obligation to apply EU law under WA (always necessary to consider the relevant provision)

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EXAMPLES OF PROVISIONS THAT REMAIN EXAMPLES OF PROVISIONS THAT REMAIN ENFORCEABLE (1/4) ENFORCEABLE (2/4)

Provisions of Part 3, for example: Some examples of provisions that (appear to) remain enforceable (to at least some extent) include: • Goods: Goods lawfully placed on the market before the end of the transition period may further be placed on the market and circulate between markets until they reach their end users: Article 41. Other similar provisions: Articles 47, 48, 49. Provisions for citizens rights in Part 2, by virtue of WA Article 39: “The persons • IP rights: Intellectual property rights: Article 54(1): “The holder of any of the following covered by this Part shall enjoy the rights provided for in the relevant Titles of this intellectual property rights which have been registered or granted before the end of the Part for their lifetime, unless they cease to meet the conditions set out in those transition period shall, without any re-examination, become the holder of a comparable Titles.” registered and enforceable intellectual property right in the United Kingdom under the law of the United Kingdom: …” Similar/related provisions: Articles 54 (geographical indications), 55 (registrations to be free of charge), 57 (unregistered designs), 58 (databases). • MLA/European Arrest Warrants: Convention and Protocol on criminal mutual legal assistance apply “in respect of mutual legal assistance requests received under the respective instrument before the end of the transition period by the central authority or judicial authority” (Article 62(1)(a)). EAW regime applies “in respect of European arrest warrants where the requested person was arrested before the end of the transition period for the purposes of the execution of a European arrest warrant” (Article 62(1)(b)).

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EXAMPLES OF PROVISIONS THAT REMAIN EXAMPLES OF PROVISIONS THAT REMAIN ENFORCEABLE (3/4) ENFORCEABLE (4/4)

Provisions of Part 3 (continued), for example: Provisions of Part 3 (continued), for example:

• Applicable law / jurisdiction: • Representation before EU Courts: Article 91(1): “Without prejudice to Article 88, where, before the end • Rome I (applicable law for contractual obligations) “shall apply in respect of contracts of the transition period, a lawyer authorised to practise before the courts or tribunals of the United concluded before the end of the transition period”: Article 66(a). Kingdom represented or assisted a party in proceedings before the Court of Justice of the European Union • Rome II (applicable law for non-contractual obligations) “shall apply in respect of or in relation to requests for preliminary rulings made before the end of the transition period, that lawyer events giving rise to damage, where such events occurred before the end of the may continue to represent or assist that party in those proceedings or in relation to those requests. This transition period”: Article 66(b). right shall apply to all stages of proceedings, including appeal proceedings before the Court of Justice and proceedings before the General Court after a case has been referred back to it.” Article 91(3) requires that • Judgments Regulation (jurisdiction) and related instruments apply “[i]n the United when representing such a party “lawyers authorised to practise before the courts or tribunals of the United Kingdom, as well as in the Member States in situations involving the United Kingdom, Kingdom shall in every respect be treated as lawyers authorised to practise before courts or tribunals of in respect of legal proceedings instituted before the end of the transition period and in Member States representing or assisting a party before the Court of Justice of the European Union”. respect of proceedings or actions that are related to such legal proceedings”. Similar provisions: Articles 68, 69. • Access to EU institutional documents: Article 122 provides that for the purposes of “Union law on access to documents” of EU institutions, references to Member States include the United Kingdom “in • Data protection: Union law on data protection applies to personal data if the personal data respect of documents drawn up by or obtained by the institutions, bodies, offices and agencies of the “were processed under Union law in the United Kingdom before the end of the transition Union: (a) before the end of the transition period; or (b) after the end of the transition period in connection period” or “are processed in the United Kingdom after the end of the transition period on the with activities of the Union pursuant to this Agreement.” basis of this Agreement”: Article 71(1), subject to an adequacy decision under Article 71(2).

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KEY TAKEAWAYS

• Many provisions of WA remain enforceable or applicable post end of implementation/transition period • But how, to what matters and to what extent they apply depends on the particular provision, in particular, its express scope of application in WA • WA prevails over TCA • Domestic implementation under EU(W)A retains supremacy for WA provisions (as WA itself requires) and EU(W)A gives extensive powers to implement by regulation • Extent to which and precisely how provisions can be relied upon remains to be worked out by Courts

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Enforceability and Part II WA

• Citizens’ rights – Part II WA. Detailed framework preserving free movement rights – ‘Immigration and the EUSS’ session at 9am Monday 1 March • Enforceability of Part II – Preserving framework of Citizens’ Directive: Articles 18 and 21 WA – Independent Monitoring Authority: s159 WA – Joint Committee: Article 164

Enforceability and Citizens’ Rights • Article 4 WA: provisions of WA and applicable Union law have “same legal effects” in UK as within EU and member states, including direct effect Leonie Hirst [email protected]

Article 18 WA – residence decisions Article 21 WA – preserving Citizens Directive safeguards

• Article 21 WA preserves Article 15 and Chapter VI of Citizens Directive (2004/83/EC) (‘CD’) in respect of “any decision by the host State that restricts residence rights of the persons referred to in Article 10” • Article 18 WA - Redress procedures in respect of residence status refusal: • General principles in Article 27 CD therefore apply: – Article 18(1)(r): “access to judicial, and where appropriate, administrative redress procedures in the host State – Compliance with principle of proportionality – Decisions must be based exclusively on personal conduct of the individual concerned; general considerations including prevention not accepted and against any decision refusing to grant the residence status. The redress procedures shall allow for an past fact of convictions not sufficient examination of the legality of the decision, as well as of the facts and circumstances on which the proposed – Requirement that individual’s conduct present a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ decision is based. Such redress procedures shall ensure that the decision is not disproportionate.” • Article 28 CD – tiered protection against expulsion depending on length of residence • Article 29 CD – restriction of movement on public health grounds only on same terms as host state nationals – Article 18(3): Rights in Part II continue to apply pending final judgment or decision on redress procedure (but • Article 30 CD – notification in writing, with full grounds and right of appeal, for any decision restricting freedom of movement not in cases of fraudulent or abusive applications: Article 20(4) • Article 31 CD – access to judicial and/or administrative redress procedures against any decision taken on grounds of public policy, public security or public health, suspension of enforcement of expulsion pending redress procedure • Article 33 CD – enforcement of expulsion order more than two years after issue requires ‘check’ that individual is currently and genuinely a threat to public policy/public security and whether there has been any material change in circumstances 19

Implications for enforceability Article 159 WA – the Independent Authority

• Article 18 and 21 WA preserve previous framework in three important ways which impact on enforceability of WA in domestic proceedings: • Monitoring “implementation and application of Part Two” : Powers equivalent to those of the European Commission

– Specific procedural guarantees (written notice, appeal/redress procedures, suspensive nature of appeal) • Conduct inquiries regarding alleged breaches and receive complaints from citizens

– Constraints on decisions restricting free movement (limited grounds, principles in Article 27 CD) • Right to bring a legal action before competent court or tribunal in the UK with a view to seeking an adequate remedy

– Standard/nature of redress procedures • Residency, mutual recognition of professional qualifications, coordination of social security, equal treatment

• Rights of redress in Article 18 and 21 WA (via Part VI Citizens Directive) require procedures which • S15 and Schedule 2 of European Union (Withdrawal Agreement) Act 2020: monitoring Part II Withdrawal Agreement and Part II EEA EFTA – examine the legality of the decision separation agreement: includes keeping under review the adequacy and effectiveness of the legislative framework and the exercise of

– examine the facts and circumstances on which the proposed decision is based functions by public bodies. Duty to promote “the adequate and effective implementation and application” of Part II – Complaints by individuals: paragraph 29 of Schedule 2. Failure to comply with Part II or preventing exercise of rights – ensure that the decision is not disproportionate – Written reports ‘as soon as practicable’ following inquiry: paragraph 27. Public authority must ‘have regard’ to recommendations in a report and must • Redress procedure must therefore be fact-based and hard-edged, not deferent to view of decision-maker publish a response Proportionality is central: not ‘cost/benefit balance’, but ‘EU proportionality’: requires consideration of (i) legitimate aim to be pursued, (ii) • – Can apply for judicial review or intervene in legal proceedings: paragraph 30 whether measure necessary and least intrusive means of pursuing that aim

• BUT does specific reference to direct effect in Article 4 WA create potential conflict?

The IMA in practice – will it work? Joint Committee: Article 164 and Annex VIII WA

• Potentially highly effective enforcement mechanism

• Duty in Schedule 2 EUWA 2020 to review/promote adequacyand effectivenessof both implementing legislation and actions of public body • Supervising and facilitating implementation and application of the WA potentially preserves both requirement in Article 197 TFEU for ‘effective implementation’ of Union law and Marleasing principle • Aim of preventing problems arising and resolving disputes • But how effective will the IMA be? • Adopting decisions and recommendations (Article 166) – Launched 31 December 2020 (https://ima-citizensrights.org.uk/) BUT framework agreement and policies yet to be published – Decisions binding on UK and EU and have same legal effect as WA – Is it sufficiently independent? Funded by Secretary of State, who appoints Chair and non-executive members – Powers can be transferred to other bodies: will this affect willingness to challenge public authorities? • Specialist sub-committees, including Specialised Committee on Citizens’ Rights – May not be able to act quickly enough to protect/enforce rights (e.g. June 2021 cut-off for EUSS applications) • Unclear how matters brought to the attention of the Committee; only UK and EU may stipulate agenda and no mechanism for individuals to raise complaints 20

How might it work? • Example: EU national refused settled status under Immigration Rules • Redress procedure: appeal (to First Tier Tribunal) – Fact-based examination of legality and (EU) proportionality of individual decision – Can (depending on circumstances) raise allegation that Rules do not implement WA or Part VI Citizens Directive (Article 21 WA); similarly if appeal grounds limited by Regulations so as to deprive redress procedure of effectiveness – May be able to rely on direct effect of WA and/or Part VI Citizens Directive (Article 4 WA) • Complaint to IMA under paragraph 29 of Schedule 2 EUWA 2020 on basis that: – Decision prevents individual from exercising right, and/or – Rule(s) are not adequate or effective implementation of Part II WA / Part VI Citizens Directive • Judicial review challenging legality of Rule(s): brought by IMA, or with IMA as intervener 21

Plus ça change? Brexit and the flaws of the delegated legislation system

Alexandra Sinclair and Joe Tomlinson 22

If you have any questions arising from this report, please contact: Alexandra Sinclair [email protected] or Dr Joe Tomlinson [email protected] 23

Contents

The Public Law Project and The SIFT Project 2

Plus ça change? Brexit and the flaws of the delegated legislation system 3

Foreword 4

I Introduction 5

II Anxieties about delegated legislation 7

III Delegated powers for EU withdrawal 15

IV The problems with Brexit delegated legislation 20

V Towards reform? 29

References 31

| The SIFT Project | Plus ça change? Brexit and the flaws of the delegated legislation system 1 24

The Public Law Project and The SIFT Project

The Public Law Project (‘PLP’) is an independent national legal charity. We work through a combination of research, policy work, training and legal casework to promote the rule of law, improve public decision- making and facilitate access to justice.

PLP takes no position on the UK’s decision to leave the EU. Rather, our work on Brexit seeks to promote Parliamentary sovereignty, ensure that the Executive is held to account and protect the interests of disadvantaged groups.

The SIFT Project was established in January 2019 to scrutinise the statutory instruments created to facilitate Brexit, to check they conform to public law standards and do not undermine fundamental rights. SIFT stands for Statutory Instruments: Filtering and Tracking.

2 | The SIFT Project | Plus ça change? Brexit and the flaws of the delegated legislation system 25

Plus ça change? Brexit and the flaws of the delegated legislation system

Alexandra Sinclair* & Joe Tomlinson+

The UK’s withdrawal from the European Union led to a tsunami of delegated legislation, provoking a re-examination of long-held anxieties about the role of delegated legislation in the contemporary constitution. In this report, we provide an account of Brexit delegated legislation from the 2016 referendum until Exit Day, arguing that, while the system as a whole has coped surprisingly well during this time, anxieties about delegated law-making have gained fresh traction. While Brexit is a powerful case study, the problems are essentially structural design problems within the current system of delegated law-making. If Brexit is to be an opportunity for national legislative renewal, the moment is ripe for these anxieties to be confronted squarely. Through our analysis, we highlight areas in need of reform that will foster the making of better law in a modern state that often needs to make lots of law quickly.

* Research Fellow, Public Law Project. We are grateful to many people for discussions over the course of multiple years researching delegated legislation. We owe a particular debt of grattitude to Alison Pickup, Jeff King, Adam Tucker, Tom de la Mare QC, Ruth Fox, Brigid Fowler, Angela Patrick, Jack Simson Caird, Tom West, Tamara Hervey, Charlotte O’Brien and particularly the Hansard Society for its support. We would also like to thank the who assisted with reviewing statutory instruments: Jack Williams, Ciara Bartlam, Tim James-Matthews, Charles Bishop and Leonie James, All views are our own. + Senior Lecturer in Public Law, University of York; Research Director, Public Law Project. This report would not have been possible without the grants provided by Unbound Philanthropy and The Legal Education Foundation. The Public Law Project would like to thank them for their generous and continuing support.

| The SIFT Project | Plus ça change? Brexit and the flaws of the delegated legislation system 3 26

Foreword

The United Kingdom is not unique in struggling to provide effective scrutiny of executive law-making. Nor is that struggle a new one: the use of delegated legislation to make policy, and the grant to the executive of power to amend Acts of Parliament by “Henry VIII clauses”, were first recognised as problematic almost a century ago.

Yet by running the legislative system at unprecedented speed, it is Brexit that has laid its defects bare. The challenge of filling the void left by EU withdrawal has prompted several skeleton Bills, replete with Henry VIII clauses, and hundreds of Brexit statutory instruments, many of them highly significant. Even when insufficiently consulted upon, explained or justified, the latter are unamendable and cannot be voted down without a constitutional crisis – as the House of Lords was reminded last time it took such a step, in 2015.

The authors report that regulations withdrawn last year would have allowed officials to amend statute, astonishingly, “by updating a website”. Minds were concentrated on that occasion by the Public Law Project’s threat of judicial review. But the democratic legitimacy of our law-making process cannot be ensured by courts alone. Parliament needs to find better ways of making its own voice heard.

David Anderson Lord Anderson of Ipswich KBE QC

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I

Introduction

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Delegated legislation, not primary legislation, is, and has been for some time now, the principal law-making technique of the UK state. This is often seen as a necessary reality of maintaining a modern regulatory state. At the same time, this arrangement has been a persistent cause of anxiety over the last century.

The UK’s withdrawal from the European Union led to a tsunami of delegated legislation, provoking a re-examination of those long-held anxieties in the context of the contemporary constitution. Two questions sit at the heart of any such re- examination. The first is descriptive: how were Brexit statutory instruments (SIs) managed? The second is interpretive: what does the story of Brexit tell us about the role of delegated legislation in the modern constitution and the anxieties that have been expressed about its role?

In this report we address both of these questions. We provide an account of Brexit delegated legislation from the 2016 referendum until Exit Day,1 arguing that, while the system as a whole has coped surprisingly well during this time, anxieties about the delegated law-making process have gained fresh traction. We further argue that, if the UK’s withdrawal from the European Union is to be an opportunity for national legislative processes to be taken more seriously, the moment is ripe for these anxieties to be confronted squarely – not on the basis of the exaggerated fears about delegated law-making that characterised earlier debates, but with an experience-led view to incremental reform that will foster the making of better law in a modern state that often needs to make lots of law quickly. Our analysis can inform what reforms may be needed.

This report has three parts. The first part explores the various concerns that have arisen in relation to delegated legislation over the last century. We identify eight specific points of sustained anxiety. The second part considers the legal framework enacted to enable the making of Brexit delegated legislation, showing it to be both representative of but also sensitive to extant anxieties. The third part of the report analyses the experience with Brexit delegated legislation, focusing on areas of practice that have proven to be problematic and generated renewed concern.

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II

Anxieties about delegated legislation

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The delegated legislation system in the UK Parliament has a certain configuration which is important to explain at the outset (see Table 1 for a comparison of the key features of primary and delegated legislation). In practice, legislation is effectively made by ministers with the approval of Parliament. The parliamentary process that an instrument passes through varies. If an instrument is made negative (negative and affirmative are labels given to the instruments which determine the level of scrutiny required of them), an SI is laid before Parliament after it has been made into law by a minister. However, it can be annulled if it is prayed against in either House within 40 days. If an instrument is made affirmative, the SI is also laid before Parliament after it has been made into law by a minister. However, it will not continue to be law unless it is approved by the House of Commons and, typically, the House of Lords within a defined period (which is usually 28 or 40 days). If an SI is produced as a draft affirmative, it is laid before Parliament as a draft and cannot be made into law by the minister unless and until it has been approved by the House of Commons and, typically, the House of Lords. Delegated legislation is not amendable by MPs or members of the House of Lords but it is open to judicial review in the courts.

Since the early 20th Century, a similar bundle of concerns about delegated legislation’s uses and misuses have recurred. Many respected commentators of the day, including Sir Cecil Carr and Lord Hewart, who famously penned The New Despotism, saw the use of delegated legislation as in need of close examination.2 In 1932, the Donoughmore Committee was convened, following debate during the inter-war years.

Table 1: Key differences between primary and delegated legislation

Feature Delegated legislation Primary legislation

Who makes it? Ministers, with the approval of Parliament Parliament

By what Varies, specified in the parent act: Second Reading, Committee, procedure? all is subject to ‘technical’ scrutiny Report, and Third Reading in by the Joint Committee on Statutory Commons and Lords Instruments Scrutiny by Joint Committee The House of Lords Secondary on Human Rights and Legislation Scrutiny Committee Constitution Committee reports on significant legislation and other Committees

Is it No: MPs and peers cannot suggest Yes: much of the debate amendable? improvements is on amendments by MPs and peers

How long is Most is not debated at all. If there is Varies according to the debate? debate, it is strictly limited to 90 importance and complexity – minutes and rarely reaches that limit usually many days

Can the courts Yes: the courts may apply the normal Not generally: parliamentary review it? grounds of judicial review and quash sovereignty prevents this delegated legislation (but the courts may make a declaration of incompatibility under the Human Rights Act 1998)

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Table 2: Key anxieties about the delegated legislation system

Feature Description Primary anxiety

Volume The volume of delegated legislation Too much legislation has increased across recent decades presents an unmanageable scrutiny task for Parliament

Allocation of There is a lack of any central organising Inconsistent and potentially provisions to principles that are consistently applied insufficient scrutiny primary and to whether any given provision should procedures secondary be in primary or delegated legislation legislation

Significant The use of delegated legislation has Lack of appropriate policy is not in increasingly drifted into areas of parliamentary scrutiny for primary principle and policy important legal and policy legislation changes

Henry VIII There is growing use of Henry VIII Undermines parliamentary powers powers process and sovereignty

Skeleton There is growing use of skeleton bills Marginalises scrutiny legislation processes and pushes policy into delegated legislation

No serious risk Parliamentary processes are virtually Executive has a relatively of defeat habituated to approve statutory free political hand instruments

Limited Participation extremely difficult for Lack of external voice opportunity civil society organisations and a when laws are made and for public remote possibility for members of the scrutiny is potentially less participation general public or individual experts well-informed

Weak scrutiny Scrutiny procedures are extremely The scrutiny system, even procedures limited in time and level of detail at its most rigorous, is habituated to approve delegated legislation

The Donoughmore Committee had the task of ascertaining whether there were sufficient safeguards to prevent abuses of the legislative system by the executive. It concluded that delegated legislation was an ‘inevitability’ for modern government and limitations on parliamentary time made executive law-making necessary.3 It also recognised the benefits of the subject matter expertise possessed by drafters and the speed and flexibility delegated legislation offered in responding to emergencies and unforeseen events.4 These benefits of the system continue to exist today and their value should not be understated.

While recognising the benefits of delegated legislation, the Committee warned against the use of delegated legislation in circumstances where Parliament ‘abandoned its legislative functions.’5 The Committee considered the worst excesses of delegated legislation to include: where it was used to create policy; where skeleton legislation was used with the details left entirely to ministers; where Henry VIII powers allowed

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ministers to rewrite, delete, and amend primary legislation, which ought to be the role of Parliament; where delegated legislation ousted the role of the court’s supervisory jurisdiction; and where provisions of primary legislation were framed in such wide terms that it was impossible to know what Parliament intended when it delegated power.6

From one perspective, it could be said that the Committee’s complaints about secondary legislation are ‘exactly the same’ as those made today.7 However, much time has passed since 1932. We therefore start our analysis here by seeking to restate the distinct strands of anxiety that have sustained over time (see Table 2 for an overview). Our approach at this stage of our analysis is not to endorse these concerns in their general form but to conceptualise them in order to explore, in the later parts of this report, the extent to which they are valid in relation to Brexit delegated legislation in particular.

Perhaps the primary anxiety about delegated legislation stems from the simple fact of how much of it there is. While the number of Acts of Parliament has generally been in decline over the last 40 years, the number of SIs has increased (see Figure 1 and Figure 2).8 Between 1950 and 2019 the mean number of statutory instruments laid in any one year was 2,500. The volume peaked at 4,150 in 2001.9 By contrast, between 2006 and 2018 the UK mean was 33 Acts of Parliament per year.10 This means that, for a long time now, delegated law-making could be considered the ‘standard’ form of law-making in the UK.11 The high volume of delegated legislation gives rise to various concerns. Primary amongst them is that the amount of delegated legislation means there is insufficient parliamentary capacity for all of it to be appropriately scrutinised.

Second, there has long been concern about how certain provisions are allocated to primary and secondary legislation. It has been observed on multiple occasions that there is a lack of any central organising principles or criteria that can be consistently applied regarding whether any given provision should be in primary or secondary legislation. Instead, the determining factor is usually whether ‘Parliament will accept the delegation.’12 Parliamentary drafters will tend to exercise ‘feel’ and ‘judgement’ rather than apply objective criteria.13 What is placed in secondary legislation can also be a result of political horse-trading rather than a principled norm.14 In 2014, the then First Parliamentary Counsel, Sir Richard Heaton, observed that he was not sure ‘that there are really clear principles yet that everyone is agreed on.’15 This could be problematic because there is no consistent approach to determining whether primary or secondary legislation should be used for certain types of policy proposals. Ultimately, this risks laws that arguably ought to be in primary legislation being passed through the less demanding delegated legislation procedures.

A third and connected criticism is that governments routinely use SIs to implement important policy changes and Parliament ends up almost unavoidably rubber- stamping them.16 As the Hansard Society has put it, ‘delegated legislation by successive governments has increasingly drifted into areas of principle and policy rather than the regulation of administrative procedures and technical areas of operational detail.’17 There are a number of prominent recent examples, including bedroom tax reform and significant changes to legal aid eligibility.18 It has been observed that there are two main reasons why governments may seek to put

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Figure 1: Volume of statutory instruments and Acts of Parliament by individual pieces of legislation

Number

Acts of UK Parliament 3500 UK Statutory Instruments Scottish Statutory Instruments Northern Ireland Statutory Rules 3000

2500

2000

1500

1000

500

0 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016 Year

Figure 2: Volume of statutory instruments and Acts of Parliament by page number count*

Pages Acts of UK Parliament UK Statutory Instruments

12000

8000

4000

0 1911 1921 1931 1940 1950 1955 1960 1965 1970 1975 1980 1985 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 Year

*2009 is the last year for which figures in this data series are available due to changes in the way statutory instruments were published.

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matters of important policy in delegated legislation.19 The first is logistical: only around 60 Acts can be passed in a parliamentary session and so the rest must go in secondary legislation. The second relates to political strategy: it is possible to manage damaging or awkward political conflicts via delegated legislation which can be ‘safely, quietly and swiftly handled in an obscure political arena.’20 Whatever the rationale for the allocation of important policy change provisions to secondary legislation, the structure of the system effectively embeds incentives for governments to propose broad delegated powers in primary legislation that make it possible for ministers to effect significant policy changes in law while bypassing the full scrutiny afforded to primary legislation.21 The primary problem here is, again, that significant changes to law and policy risk receiving insufficient scrutiny.

Fourth, there is the well-known anxiety about the use of Henry VIII clauses – clauses which are a form of delegated power that can be used by the executive to change or repeal primary legislation.22 These clauses are widely seen as the most pernicious part of the system of delegated law-making because ‘they give the executive the authority to override the requirements of primary legislation and thereby directly violate the principle of parliamentary sovereignty.’23 Lord Judge, a fierce critic of such clauses, described every Henry VIII provision as a ‘blow to the sovereignty of Parliament.’24 From this perspective, prospective Henry VIII clauses which create a power to change Acts of Parliament passed after the empowering act are even more concerning, reaching into the province of future Parliaments.25 The use of Henry VIII powers is growing too. For example, only 9 were used before 193226 but there were 120 enacted in the 2009-2010 parliamentary session.27

Similarly, the use of skeleton bills has been a source of unease. Instead of enacting clear policies in the form of primary legislation, skeleton bills contain only broad empowering provisions allowing for delegated legislation to be made, yet those delegated powers are then ultimately used by the executive to act substantively in response to important policy questions.28 Skeleton bills make it difficult for parliament to exercise its scrutiny function because, on the face of a provision, ‘there is nothing to scrutinise.’29 Due to the weak scrutiny procedures for delegated legislation, there is often effectively very limited scrutiny at any stage of the legislative process when skeleton bills are used to make delegated legislation.30 The Constitution Committee has gone so far as to say that it is ‘difficult to envisage any circumstances in which their use is acceptable.’31 Wide delegated powers also potentially make it more difficult for the courts to review the use of delegated powers. In principle, if powers are widely drawn then it is more difficult for the courts to say that the secondary legislation is not within the specific wording of the empowering provision. Ultimately, skeleton bills risk marginalising scrutiny processes and create a legal framework which pushes significant policy into delegated legislation.

The fact that SIs face no realistic prospect of defeat within Parliament has given rise to an inevitable concern that the system is not fit for purpose. With only 17 SIs rejected in the last sixty-five years, and none in the Commons since 1979, it has been observed that Parliamentary processes are virtually ‘habituated’ to approve statutory instruments.32 The system is one where ‘debates are rare, and defeats are all but unheard of.’33 In practice, the only form of delegated legislation subject to any real

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risk of defeat are instruments subject to the affirmative procedure requiring the assent of the House of Lords. Even in that context, the House of Lords exercises great restraint in declining to pass a motion approving an affirmative statutory instrument. The fact that SIs are not meaningfully vulnerable to defeat has been said to put them on the edge of a ‘legitimacy precipice,’ as the executive appears to have a relatively free political hand.34

Another anxiety about the delegated legislation process is the lack of opportunity for the public to participate in the making of laws, either through consultations or via representatives in Parliament. Many statutory instruments have some sort of informal consultation process and fewer have a formal consultation. Edward Page describes three types of consultation processes, one or more of which are commonly undertaken in relation to an instrument: ‘indirect consultation’ where government consults committees and advisory boards who may themselves then conduct informal or formal consultation with outside groups; a ‘staged exercise’ which involves the government distributing a consultation paper to interested parties and seeking a response, normally conducted over an eight-week time frame; or an ‘at large consultation’ where ‘officials and sometimes politicians float ideas at different stages of their development to groups or individuals sometimes by letter or phone, sometimes at meetings on the topic, sometimes at meetings on an entirely different topic.’35 There is some evidence of consultations running well.36 However, consultation processes are not always well-publicised and can be difficult to keep tabs on.37 Consultations can also be managed sub-optimally. For instance, the government on occasion fails to publish the results of its consultations when it lays an instrument and in the past has come under fire from the Secondary Legislation Scrutiny Committee for such failures.38 Once an SI has been laid, the public also has limited abilities to influence its passage. In relation to primary legislation, civil society organisations often have their own Bill response groups, are familiar with the different stages of the legislative process and know when and how to provide their views on a Bill. Bills typically also take much longer to pass through Parliament, which gives organisations time to formulate a relatively detailed view and communicate. The delegated legislation process is much more opaque. NGOs, associations, and trade bodies can have little knowledge of the delegated legislation process and the complexity of the system does nothing to ease the burden. Often, the order paper in the House of Commons which lists the SIs being debated in Delegated Legislation Committees the following week is not published until Thursday, meaning that there can be only four or five days’ notice that an SI is being debated in that chamber. Organisations then need to find out which members are on the relevant Delegated Legislation Committee and contact them directly. This does not make for easy participation in the process.

A final area of consistent concern is the generally weak scrutiny of delegated legislation. While primary legislation processes are imperfect, they subject new laws to much more extensive scrutiny than delegated legislation processes do.39 The starting point is that the majority of delegated legislation receives no practical scrutiny at all. The delegated legislation that is subject to the most rigorous scrutiny (i.e. the SIs that pass through the draft affirmative procedure) is still subject to a relatively light-touch process. There are multiple ways in which scrutiny of delegated legislation could be said to be weak. For instance, the government of the day has

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control over whether debates on negative procedure SIs occur (only 3% were debated in the 2015-2016 parliamentary session)40 and also has control over the membership of Delegated Legislation Committees for affirmative procedure debates. The risk here is that ‘Government influence on the membership and the involvement of party whips stifles effective scrutiny.’41 Like the public, MPs receive very little notice of Delegated Legislation Committee debates and they are not placed in committees based on their technical knowledge. The result is that MPs are often debating SIs on which they have no subject matter expertise. There is also regularly insufficient time to debate the instruments to afford them proper scrutiny. For instance, the average length of debate in the 2013-2014 parliamentary session was 26 minutes but was as short as 22 seconds on one occasion.42 There is also a tendency to view Delegated Legislation Committee work as politically low prestige, risking a lack of meaningful buy-in from MPs. It is symptomatic of this situation that it has been reported that MPs have been told that it is acceptable to undertake constituency correspondence during Committee time.43 This risks a situation where, even at its most rigorous, the scrutiny system can be more like procedural window dressing than effective Parliament control.

Overall, the configuration of the delegated legislation system can be said to create a range of anxieties. These concerns about the system of delegated legislation must, however, be understood by reference to both the advantages of the same system and the fact that the extent to which any of these anxieties have traction may vary depending on the specific context being analysed. In the next parts of this report, we turn to analyse the specific experience with Brexit delegated legislation by reference to these anxieties.

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III

Delegated powers for EU withdrawal

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The starting point for the story of Brexit delegated legislation, or at least the part of that story we are examining in this report, is the EU (Withdrawal) Act 2018 (‘EUWA’).44 This Act provides the core legal framework for Brexit delegated legislation. It is a framework which is, in many ways, representative of some of the principal anxieties surrounding delegated legislation, while also showing some sensitivity to them. It is important to state at the outset of our analysis that the framework and the process, in many ways, got the job done. This fact underlines why it is important not to undervalue the virtues of the current system. However, that headline should not overshadow the reality that there have been multiple problems in how Brexit delegated legislation has been managed, and it is from exploration and evaluation of such problems that the system can be developed and improved.

First, it is worthwhile to set out the two key principles that were said to underpin the scheme of the EUWA when it was enacted. The first of these principles is continuity. There was a deliberate policy decision in drafting the EUWA that, to minimise disruption for the public, EU law would continue to apply on Exit Day. After Exit Day, the UK could then depart from EU law as it wished. The Act creates a ‘snapshot’ of all EU law in the UK on Exit Day, converting existing EU law into UK domestic law, thereby preserving legal continuity. The second principle underpinning the Act is the distinction between ‘the mechanical act of converting EU law into UK law,’ which is a technical exercise that can be conducted via delegated legislation, and the making of ‘substantive changes to certain areas currently covered by EU law,’ which can only be done via primary legislation in the form of the Government’s ‘Brexit Bills.’45 At the time the Bill was originally drafted, the Government guiding it through Parliament was at pains to reassure parliamentarians and civil society that this distinction would be respected. In the foreword to ‘The Repeal Bill’ White Paper (before that title was dropped in favour of the EUWA), the then Brexit Secretary, David Davis MP, said the Bill was ‘not a vehicle for policy changes – but it will give the Government the necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU.’46

The EUWA was the flagship Bill of the 2017-2019 parliamentary session but other Brexit Bills also passed during this session, concerning both the withdrawal process generally and specific policy areas (see Table 3).47 The Nuclear Safeguards Act 2018 replaced the legal framework that was provided by the UK’s membership of the European Atomic Energy Community. It delegated large amounts of power to the Secretary of State to make regulations in all areas of the UK’s nuclear program. The Healthcare (European Economic Area and Arrangements) Act 2019 gave the power to Government to negotiate ad hoc agreements with EU and EEA member states for the provision of healthcare for their citizens and for UK citizens resident in the EU. Parliament also granted the government new powers in the area of trade and customs. Even though the Trade Bill fell, the Taxation (Cross-Border Trade) Act 2018 created a host of new powers in a similar sphere. The Direct Payments to Farmers (Legislative Continuity) Act 2020 was passed in light of concerns that the EUWA would not lawfully allow the government to make direct subsidy payments to farmers after Exit Day. Other Brexit Bills were drawn up but fell before being passed at the end of the 2017-2019 parliamentary session. These included the Trade Bill, the Agriculture Bill, the Environment Bill, and theImmigration and Social Security Co-ordination (EU Withdrawal) Bill. The European Union (Withdrawal Agreement) Act 2020 passed

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shortly before Exit Day. This was approximately three months after the UK and the EU negotiated the Withdrawal Agreement.48 The Act contains 19 delegated powers and made some important changes to the EUWA which are discussed below.49

Table 3: Primary legislation related to Brexit passed between the referendum and Exit Day

Brexit process Specific policy area primary legislation primary legislation

European Union (Notification of The Sanctions and Anti-Money Laundering Withdrawal) Act 2017 Act 2018

The European Union (Withdrawal) Act The Nuclear Safeguards Act 2018 2018

European Union (Withdrawal) Act 2019 The Haulage Permits and Trailer (‘Cooper-Letwin Act’) Registration Act 2018

European Union (Withdrawal) (No. 2) Act The Taxation (Cross-border Trade) Act 2019 (‘Benn Act’) 2018

The European Union (Withdrawal The Healthcare (European Economic Area Agreement) Act 2020 and Switzerland Arrangements) Act 2019

It was widely recognised at the outset that the EUWA would – due to the need to adapt, amend, and revoke retained EU law in time for the UK’s departure – involve ‘a massive transfer of legislative competence from Parliament to Government.’50 Section 8 implements this transfer of power from the legislature to the executive and allows the government to adapt EU law. In short, the section 8 power gives Ministers extensive powers to make such regulations that they consider ‘appropriate’ to deal with ‘any failure of retained EU law to operate effectively or any other deficiency in retained EU law’ arising from withdrawal.51 To show its scope, it is worth reproducing here in extended form:

(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU.

(2) Deficien cies in retained EU law are where the Minister considers that retained EU law – (a) contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant, (b) confers functions on, or in relation to, EU entities which no longer have functions in that respect under EU law in relation to the United Kingdom or any part of it,

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(c) makes provision for, or in connection with, reciprocal arrangements between –

(i ) the United Kingdom or any part of it or a public authority in the United Kingdom, and

(ii) the EU, an EU entity, a member State or a public authority in a member State, which no longer exist or are no longer appropriate, ……… (3) There is also a deficiency in retained EU law where the Minister considers that there is – (a) anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2), or.

(b) a deficiency in retained EU law of a kind described, or provided for, in regulations made by a Minister of the Crown.

(4) But retained EU law is not deficient merely because it does not contain any modification of EU law which is adopted or notified, comes into force or only applies on or after Exit day.

(5) Regulat ions under subsection (1) may make any provision that could be made by an Act of Parliament.

This section represents many of the anxieties concerning delegated legislation that we have identified above. The provision is extremely broad. The types of deficiencies in EU law listed within section 8(2) are not exhaustive and are supplemented by any similar deficiency in subsection 3. Furthermore, the terms ‘prevent, remedy or mitigate’ are not defined in the Act. The main limitation is that the section 8 power can only be used in relation to ‘retained EU law.’ The category of ‘retained EU law’ is then itself defined broadly under the Act as EU derived UK domestic legislation, EU regulations, EU decisions and tertiary legislation and rights, powers and liabilities recognised in UK law on Exit Day including EU Treaty rights and general principles of EU law as defined in EU case law.52 Section 8(5) contains the Henry VIII power that allows regulations under section 8 to do anything an Act of Parliament could do, including amending other Acts of Parliament.

Criticism of the section 8 power (or clause 7 as it was in the Bill) was swift and severe. The Delegated Powers and Regulatory Reform Committee said section 8 was notable for its ‘width, novelty and uncertainty.’53 The Constitution Committee concluded its interim report by describing the powers contained within the EUWA as ‘an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw.’54 The Committee noted that the EUWA failed to distinguish between powers required to make ‘necessary amendments to the existing body of EU law’ and ‘substantive, more discretionary changes that the Government may seek to make to implement new policies in areas that previously lay within the EU’s competence.’55 It was further observed that section 8 provided ‘considerable scope for significant policy changes to be made’.56

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As the Bill progressed through Parliament, attempts were made to place limits on section 8, most of which were unsuccessful. The Government did agree to a sunset clause for the power to end two years after Exit Day. However, this provision was amended by the EU (Withdrawal Agreement) Act 2020. The government did not accept an amendment to section 8 to restrict delegated law-making to when a minister considered it ‘necessary’ rather than ‘appropriate.’ The Constitution Committee had argued that the benefits of a necessity test included that it offered ‘reassurance that the exercise of the power is more obviously litigable.’57 The most significant concession by the Government was the institution of a sifting procedure for the SIs laid as negative instruments under section 8. This came about after the Procedure Committee deemed the proposal for scrutiny of SIs made under the EUWA inadequate and the then Chair of the Procedure Committee, Sir Charles Walker MP, tabled amendments to the Withdrawal Bill setting out the sifting procedure.

The sifting procedure was enshrined in Schedule 7 of the Act. Under the procedure, the Secondary Legislation Scrutiny Committee in the House of Lords and the specially created European Statutory Instruments Committee in the House of Commons review each negative instrument made under section 8 and make a recommendation as to whether it should be upgraded to the affirmative scrutiny procedure. The Government did not accept that the recommendations from the sifting procedure should be binding.

The Act also provided for an urgency procedure.58 Under this procedure, the Government was able to lay an SI that would be normally be laid using the draft affirmative procedure via the made affirmative procedure, as long as the minister lays a statement with it explaining the reason for the urgency. This means the instrument comes into force immediately but only stays in effect if debated and approved by both Houses within 28 days. If it is not approved within 28 days, the instrument falls and is no longer law. The urgent case procedure also allows the Government to lay proposed negative instruments as made negatives, meaning they bypass entirely the sifting process. Under this procedure, the Government could also withdraw already laid proposed negatives and draft affirmatives and re-lay them as made negatives and made affirmatives.

This legal framework itself is an artefact of the continued tensions around the use of delegated legislation. The legal framework for delegated legislation is one thing, the law-making activity it furnishes in practice is another. In the next part of this report, we explore problematic issues that have arisen in the practice of making Brexit delegated legislation. It is worth noting at this point, however, that, shortly before Exit Day and shortly after a general election which provided a clear majority in Parliament, the European Union (Withdrawal Agreement) Act 2020 was enacted. This Act modified the existing Brexit delegated legislation framework in multiple ways, including by extending the sunset clause in the EUWA so that the section 8 power (including the power to make instruments under urgency) no longer sunsets until two years after Implementation Period Completion Day (which is defined as 11 pm on 31 December 2020) and by providing that none of the 19 delegated powers under the European Union (Withdrawal Agreement) Act 2020 are subject to the EUWA sifting mechanism. While it is not relevant to the making of Brexit delegated legislation in the period our study relates to, this Act appeared to extend powers and weaken checks as regards future Brexit SIs.

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IV

The problems with Brexit delegated legislation

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By Exit Day on 31 January 2020, there had been 622 Brexit statutory instruments laid. 297 laid in 2018, 318 in 2019, and 7 laid in January 2020.59 During the 2017-2019 parliamentary session, 1,835 instruments were laid in total. This means that Brexit SIs represented 34% of all instruments during that session. Of the 622 Brexit SIs laid up until Exit Day, 418 were laid solely under powers in the EUWA, 133 under other Acts of Parliament, and 71 with powers under both the EUWA and other Acts of Parliament. 142 of the 622 SIs amended primary legislation. Inevitably, the extraordinary politics of the period – including the unusual presence of both an unstable minority government and a referendum mandate, combined with the nature of the EU withdrawal process itself – means this case study has some peculiarities. However, long-held anxieties about the delegated legislation system generally have proven to have significant traction in the Brexit context.60

To state what is perhaps obvious, there was a large volume of Brexit delegated legislation. Not only were there lots of individual instruments but many of the instruments were particularly long and complex. The instruments laid were notably longer than in previous sessions. For instance, the word count of SIs made by Treasury and HMRC increased by 300% between the 2009-2010 and 2017-2019 parliamentary sessions.61 In the last session, the average page length of an EU Exit SI was 18 pages, in the 2015-2016 parliamentary session the average SI was 10 pages long.62 This ‘suggest[s] that there were consolidations of measures that were initially projected to be in different instruments into longer regulations’.63 The Secondary Legislation Scrutiny Committee referred to this consolidation of measures as ‘bundling’ and said at points it went ‘too far.’64

Given the limited capacity Parliament has to scrutinise SIs, many long and complex instruments were debated for relatively small amounts of time. For example, the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 are 619 pages long and were debated in the Commons for 52 minutes and the Lords for 51 minutes. The Human Medicines (Amendment etc.) (EU Exit) Regulations 2019 are 188 pages long and were debated in the Commons for an hour and 24 minutes and the Lords for 48 minutes. The Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 are 26 pages long and made 36 different amendments to existing legislation, which Lord Tunnicliffe described as having ‘no themes or interrelationship.’65 They were debated for 11 minutes in the House of Commons. It is patently impossible to fully debate such long and wide-ranging instruments in this amount of time, and those debates were still well above the average length for Delegated Legislation Committee debates.66 Committees have on occasion admitted that proper scrutiny of these instruments is impossible. In relation to the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, the Secondary Legislation Scrutiny Committee observed that ‘the exceptional size and complexity of the instrument inhibit effective parliamentary scrutiny of the proposals (both by this Sub-Committee and by the House in debate).’67

An important aspect of the scrutiny process has been the European Statutory Instruments Committee and the Secondary Legislation Security Committee which recommend negative statutory instruments for upgrade to the affirmative procedure. There were 246 instruments laid as proposed negative instruments under the EU Withdrawal Act. Of those, 70 or 29% were recommended for upgrade by either or

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both the ESIC or SLSC. The government has accepted all recommendations for upgrade so far. However, the use of non-EUWA powers to make Brexit statutory instruments circumvented the EUWA’s sifting procedure. It is illustrative of how many delegated powers the Government possesses in other Acts of Parliament that 133 Brexit instruments were passed without requiring the EUWA. The sifting procedure for statutory instruments has not been included in subsequent primary legislation facilitating EU withdrawal. Instruments made under powers in the EU (Withdrawal Agreement) Act 2020 are not subject to the sifting procedure unlike instruments made under section 8 of the EUWA.

Brexit SIs were also ‘invulnerable to defeat,’ despite the unstable parliamentary politics of the period. There were 9 prayer motions laid against over 300 negative instruments and only one of those prayer motions was debated, the Railways (Interoperability) (Amendment) (EU Exit) Regulations 2019, SI 2019/345. This was indicative of how the government can control whether debates over negative SIs occur. In relation to affirmative instruments, there was not a single debate on a fatal motion during the entire Brexit process.68 There were only ten debates on non-fatal motions (known as motions of regret) and for only two of those motions was there a government defeat (though motions of regret have no practical effect).69

There were consistent problems with the drafting of Brexit SIs. Not infrequently, instruments were withdrawn and replaced due to poor drafting, with the Secondary Legislation Scrutiny Committee noting that the replacement of instruments has increased on previous parliamentary sessions (with 9% of affirmative instruments requiring replacement).70 In the 2017-2019 session, the proportion of instruments needing correction ‘more than doubled from 3.7% in Year 1 to 8.4% in Year 2’ and some of those were ‘simply obvious mistakes.’71 As an alternative to replacing SIs, the Government has also laid many correcting SIs – also known as ‘wash-up’ SIs. Some of these instruments address important errors that managed to slip through the scrutiny process. For instance, The Environment (Miscellaneous Amendments and Revocations) (EU Exit) Regulations 2019 corrected a host of errors,72 including a ‘tick box’ that was ‘omitted in error’ but was crucial to enable endangered species to be moved within the UK and an amendment which ‘inadvertently altered the operation of an Article’ relating to pesticide products.73 A wash-up SI was also used to correct the accidental removal by the Department for Environment, Food and Rural Affairs of the prohibition on hormone disrupting chemicals being used in pesticides in the UK, which the Department later described as an ‘erroneous omission.’74 The Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2019 were necessary to rectify a mistake which prevented some Scottish claimants from being able to file for child maintenance in Scotland.75 Somewhat extraordinarily, The Animal Health, Plant Health, Seeds and Food (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 proposed amendments to a draft affirmative instrument that had not yet been laid before parliament.76 Some errors have even attracted wider public notoriety. For instance, the European University Institute Regulations 2019 were withdrawn. These regulations indicated the Government (wrongly) thought that membership of the European University Institute was contingent on EU membership.77 There were 97 wash-up Brexit SIs, to correct earlier mistakes, laid up until Exit Day. This compares with 4.6% of SIs being wash-ups in the 2015-2016 parliamentary session. Not only does this show that mistakes can slip through scrutiny processes, it means that the resulting legal framework is complicated further by layering regulations on regulations.

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During the passage of the EUWA, politicians were at pains to state that Brexit SIs would not be a vehicle for policy changes. Despite this, many Brexit SIs, both those made under the EUWA and under other Acts of Parliament, have legislated on matters of principle and policy rather than technical matters or operational details. For instance, the EU has requirements to review minimum residue levels of pesticides within 12 months of an active substance being authorised.78 The Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019 extends the 12-month review period to 36 months.79 It also states that current pesticides approvals may be extended further ‘where the competent authority considers it necessary.’80 This is a policy change which means the UK will not be applying the latest scientific advice because those products will exist on the market for longer and longer periods. Whether this change is justified or not, it is a clear policy change. The confusion around what should be in primary or secondary legislation also continued. For instance, the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 changed the grounds on which a decision can be made to restrict admission to, or residence in the UK of an EEA national or their family member, or to deport an EEA national or their family. They aligned the deportation threshold for non-EEA and EEA nationals.81 That includes a presumption in favour of deportation for any EEA national sentenced to 12 months’ imprisonment or longer, irrespective of the length or nature of their residence in the UK. This is a significant change to the treatment of EEA nationals. These regulations were laid on 11 February 2019, several weeks after the Immigration and Social Security Coordination (EU Withdrawal) Bill was introduced – a piece of primary legislation that was essentially a skeleton bill. During a debate on the Immigration and Social Security (Coordination) Bill on 28 February 2019, the then Immigration Minister Caroline Nokes MP said the Bill was required to ‘align the positions of EU nationals and non-EU nationals in relation to the deportation regime.’82 However this alignment had already been achieved via the Immigration, Nationality and Asylum Regulations, revealing a lack of clear thought on which provisions should be placed in primary or secondary legislation.

Some Brexit SIs straightforwardly deleted parts of retained EU law. As a result, it was difficult to know if the government had deleted certain provisions because it does not wish to be bound by that obligation any longer, because it planned to replicate that obligation in UK law in the future, or believed it is already replicated in an existing piece of UK law. Because the explanatory notes accompanying SIs tend to only describe substantive additions or alterations made, and therefore not deletions of provisions, many of these removals are not telegraphed or the rationale for removal explained. For instance, The Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc) (EU Exit) Regulations 2019 remove an article which requires the European Commission and member states to make applications for new food additives publicly accessible.83 It also deletes a clause which provides that ‘Member States shall maintain systems to monitor the consumption and use of food additives on a risk-based approach and report their findings with appropriate frequency to the Commission and the Authority.’ Perhaps the government has deleted this because it thinks its reference to the Commission and Authority no longer makes sense or maybe it has deleted it because the UK will no longer be monitoring food additive consumption. It was impossible to tell.

In terms of the procedures adopted, 272 (44%) of the 622 Brexit SIs laid during this period were affirmative and 350 (56%) were negative. This was well above the standard 80:20 ratio of negative to affirmative.84 There may be a number of explanations for this.

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Schedule 7 of the EUWA requires certain types of SIs to be laid as affirmative instruments and additionally, other negative instruments were upgraded to the affirmative resolution procedure by the Secondary Legislation Scrutiny Committee and European Statutory Instruments Committee. It has also been suggested that the government deliberately laid some instruments as draft affirmatives to avoid the sifting process because, if they had been laid initially as negatives and then had to be relaid as affirmatives, the government would have had insufficient time to pass them before Exit Day.85

The Government also repeatedly used the urgency procedure – which gives SIs legal effect immediately and before they have been debated – to lay statutory instruments prior to the initial 31 October Exit Day and immediately prior to Parliament’s prorogation, which was later declared unlawful.86 The government laid 30 SIs under this procedure, 11 of these did not remain as law because they were not debated within 28 days after being made. For example, in the Explanatory Memorandum to the Specific Food Hygiene (Regulation (EC) No. 853/2004) (Amendment) (EU Exit) Regulations 2019, it was stated that ‘[d]ue to the prorogation of Parliament, we are required to use the urgent, made affirmative procedure for this SI.’87 The Capital Requirements (Amendment) (EU Exit) Regulations 2019 were also made using the made affirmative procedure and came into force prior to debate.88 These Regulations implement EU Directives which mandate the amount of liquid assets that a bank must hold and were created in direct response to the fact that banks were under-capitalised during the global financial crisis. The explanatory memorandum makes clear that without this SI ‘significant aspects’ of the UK’s ‘regime would become less effective or legally inoperable… the UK’s ability to regulate the financial sector effectively would be compromised, affecting market confidence and creating instability.’89 Amongst other purposes, the SI transfers enforcement functions to HM Treasury, the Prudential Regulation Authority, and the Financial Conduct Authority. These changes were brought into force under urgency in September and only debated weeks afterwards. It was unclear why many of the instruments concerned could not have been made sooner, given that many of them were not urgently responding to a new state of affairs.

A recurring problem with Brexit SIs was the provision of inadequate supporting material. The Delegated Powers and Regulatory Reform Committee and the Secondary Legislation Scrutiny Committee complained about the inadequacy of explanatory memoranda – which should make clear the purpose and content of an instrument – so often that criticism of explanatory materials was eventually added to the latter’s terms of reference.90 Explanatory memoranda need to be of a high quality because it is often difficult to understand what a statutory instrument is doing on the face of its provisions alone. As Fox and Blackwell note, ‘as long as the quality of [explanatory memoranda] are below what Parliament ought to expect, it almost ensures that individual MPs and Peers are unlikely to take up issues of concern because much of the process is impenetrable.’ 91 Given the nature of the role that many Brexit SIs had to perform (i.e. adjusting existing rules), these problems were inevitably exacerbated. Many of the instruments, when read alone, are simply a string of amending provisions referring to the provisions of other legal texts. The memoranda are therefore crucial for understanding the practical effects of these omissions and substitutions. As Lord Tunnicliffe put it:

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The problem with British legislation is that so much of it is a statutory instrument that modifies another that amends another that amends a previous Act of Parliament which is by now a decade or so old. It is almost impossible to understand the meaning of this particular statutory instrument from looking to the instrument itself; one is entirely dependent on the Explanatory Memorandum to bring out the essence.92

Poor explanatory memoranda have been pervasive in the Brexit process. A particularly egregious example is the explanatory note to The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019, which was initially longer than the 75-page instrument. The Secondary Legislation Scrutiny Committee described it as ‘impenetrable’ and asked the Home Office to re-lay it.93 The Committee pointed out that the instrument gave no assessment of the costs of the instrument on the UK’s criminal justice or policing systems. As a result of these problems, the Committee relied on a BBC News article in order to assess the impacts of the legal changes and criticised the Home Office for failing to put into the explanatory memorandum information that was generally available.94 Even after the Home Office laid a second explanatory memorandum, the Committee still found that ‘unfortunately, neither EM1 nor EM2 has proved adequate.’95 In another episode, the explanatory memorandum to the REACH etc. (Amendment etc.) (EU Exit) (No. 3) Regulations 2019 wrongly stated that all devolved administrations had consented to the instrument when the Scottish Parliament had not yet provided such consent.

Another crucial piece of supporting material for SIs are impact assessments. Impact assessments need to be laid when a policy proposal will have more than de minimis effects.96 Such assessments help MPs and peers get to grips with the changes the instrument is making, how they differ from the status quo, and what the economic impacts of the changes will be. Impact assessments have repeatedly not been laid during the Brexit process or have been laid too late – often after committees have reported, severely undermining their value.97 The Treasury came under fire on this front. The Secondary Legislation Scrutiny Committee wrote to the Treasury about its straightforward failure to publish impact assessments.98 The Committee also observed, when reviewing The Credit Rating Agencies (Amendment, etc.) (EU Exit) Regulations 2019, that the Treasury had laid a single impact assessment in order to cover 10 different statutory instruments, assessed at collectively having a financial impact of over £140 million.99 However, the Treasury has not been the only culprit as regards the mismanagement of Brexit SIs and both the Secondary Legislation Scrutiny Committee and Delegated Legislation Committees in the Commons and Lords have been critical of the lack of impact assessments more widely. There are multiple examples of where an impact assessment was necessary but not produced. For instance, the Government gave no financial analysis of the impacts of transferring the regulation of the UK’s chemicals industry, which makes up around 7% of UK GDP, from the European Chemicals Agency back to the UK.100 The Government also removed the rights of EU, EEA, Swiss and Turkish nationals to be self-employed, own, and manage companies or provide services in the UK on the same basis as UK nationals and undertook no impact assessment of this change.101 This failure was said to be justified on the basis that ‘[t]here is no, or no significant, impact on business, charities or voluntary bodies.’102 The Government did not lay impact assessments for regulations altering how pesticides, food safety, or genetic modification are regulated.103 Ultimately, the lack of impact

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assessments, or problems in when or how they are produced, make reviewing the effect of an SI very difficult for both Parliamentary committees and the wider public.

Participation remained difficult for civil society organisations and a remote possibility for members of the general public or individual experts in relation to Brexit SIs. In the normal course of legislative business, delegated legislation is often subject to a consultation process prior to it being laid in Parliament. This is in recognition of the fact that it is often industry experts, members of civil society, or other external actors who are best placed to comment on what can be highly specialised and technical instruments. Consultation has been minimal during the Brexit process. Full, formal consultation has been incredibly rare; we estimate only around 10% of Brexit SIs were formally consulted on but there is not clear data on the point. The consultations that were held were generally open for about a month, though some were much shorter. For instance, in the case of the Nutrition (Amendment) (EU Exit) Regulations 2019, the consultation was open for only 11 days. In some cases the Government published a draft of the proposed SI but did not formally consult or invite comments on the draft from stakeholders. Most of the SIs consulted on were financial services SIs and the Government’s principal purpose seems to have been to provide information about its intentions. Lord Balmacara and Lord Hope both criticised the lack of consultation on The Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019.104 Lord Hope noted that the consultation section of the memorandum gave no consideration of the effects on businesses or the self-employed and only mentioned satellite decoders. The Secondary Legislation Scrutiny Committee highlighted the importance of consultation in its second interim report: We acknowledge that during the Brexit period, where many instruments were intended simply to adapt EU retained law, consultation was often not undertaken because no new policy was being introduced. That said, in a small number of cases omissions, unintended policy effects or technical changes to make the legal text operate correctly were identified by interested parties outside of government and Parliament after the instrument had been published. This benefit of consultation is often overlooked.105

There were, however, many examples throughout the Brexit process of government departments withdrawing SIs and re-laying them in amended form after feedback from parliamentary committees, civil society, or industry. For instance, The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019 removed a provision which contained a blanket ban on hormone disrupting chemicals in pesticides.106 After ChemTrust wrote to the Department for Environment, Food, and Rural Affairs, the Department reinstated the prohibition on endocrine disrupting chemicals and stated that the removal had been an ‘erroneous omission.’107 The REACH etc (Amendment etc.) (EU Exit) (No 2) Regulations were laid as a direct result of representations from the chemicals industry that the transitional import provision in the initial REACH SI would still lead to disruption in the supply chain.108 The Jurisdiction and Judgments (Family) (Amendment Etc.) (EU Exit) (No.2) Regulations 2019 were laid in response to concerns by family law practitioners. There had been no formal consultation with the family law sector and practitioners were concerned that the initial SI prevented the courts from being able to issue certain financial remedies and maintenance orders.109 The government laid the No. 2 regulations in response to these concerns. While there is

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something to be welcomed in the responsiveness demonstrated in these examples, the underlying issue is the dysfunction of consultation and wider participation.

While there have been fewer challenges to the legality of SIs than was initially predicted by some commentators, there have still been issues around ensuring instruments are lawful. Perhaps the most notable success in challenging an SI has been The Cross- border Trade (Public Notices) (EU Exit) Regulations 2019.110 This instrument was challenged as being ultra vires its parent act, the Taxation (Cross-border Trade) Act 2018, because it sub-delegated powers to Treasury civil servants to change primary legislation via public notice. In simple terms, had these regulations stood they would have allowed officials to change primary legislation by updating a website. The government revoked these regulations at the pre-action stage of litigation. Other challenges to or questioning of the legality of instruments related to the scope of the section 8 power in the EUWA. For instance, the House of Lords strongly pushed back against the idea that ending the rights of EU nationals to be self-employed on the same basis as British nationals was a ‘deficiency’ in retained EU law that could be addressed via the section 8 power.111 Lord Anderson, supported by Lord Pannick and Lord Balmacara, stated in the course of debate: There is some suggestion in the Explanatory Memorandum that the deficiency consists of lack of reciprocity, but it is not clear… how a deficiency could arise from the possibility that others might choose to withhold equivalent rights in their own law. If that were the case, then the scope of Section 8 would be very broad indeed.112

One case has gone to the Administrative Court challenging the use of the section 8 power. ClientEarth and the Marine Conservation Society brought a challenge to the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019.113 The claim was ultimately refused permission as it was deemed premature.114 However, as the vast majority of Brexit SIs do not come into force until 31 December 2020, it is therefore likely that actions taken in the future will be more likely to generate challenges.

All of the problems detailed here align with the anxieties set out in the first part of the report. 359 Brexit SIs were laid in the four months leading up to March 2019. Those SIs touched on every part of UK life, from haulage to equality to food safety. Very significant policies such as alterations to deportation thresholds or changes to social security law were placed in secondary legislation and the rationale for why they deserved to be in delegated legislation was not explained. The decision to place important laws in delegated legislation was particularly notable because at the same time the government was passing flagship Brexit bills that were conspicuously empty of substantive policy. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill is a skeleton bill that contains only two substantive clauses, both of them Henry VIII powers. The Delegated Powers and Regulatory Reform Committee said when reviewing it that: The clear impression is that the Government are seeking these powers in order to avoid: having to prepare a detailed bill implementing their policy once it is settled, and any future arrangements with the EU are concluded; and then to submit that bill for full Parliamentary scrutiny.115

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Parliamentary scrutiny and public input could act as vital checks and balances if they played greater roles in the delegated legislation process. The Brexit statutory instrument process has caused a significant spike in problems with the instruments themselves and the explanatory memoranda. Effective explanatory material is crucial to the quest for meaningful scrutiny as it assists parliamentarians in being able to appraise complex instruments. Industry and civil society experts who could explain to MPs the on-the-ground effects of these instruments, are all too often shut out of the process, not deliberately but due to the ad hoc nature of consultation. Statutory instruments remain invulnerable to defeat and until the Government is afraid an instrument could genuinely fall, it may have little incentive to change the current system. Brexit was one of the defining debates of the decade, it created significant, extensive and complex political disagreement within Parliament. Despite this, not one statutory instrument was even subject to a fatal motion debate.

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V

Towards reform?

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Each of the anxieties discussed in part one of this report have been evident in some form in the Brexit statutory instrument process. The impacts of this massive exercise in legal change will resonate in almost every aspect of society and the economy. While Brexit is a powerful case study, the problems we have explored here are essentially structural design problems within the current system of delegated law-making.

It was unsurprising that, within less than a year of Exit Day, delegated legislation was provoking a similar range of concerns, this time in the context of the COVID-19 pandemic (alongside the continuing Brexit negotiations). With COVID-19 delegated legislation we are again witnessing the advantages of the current system, such as speed and flexibility during a time of crisis, but also its drawbacks, leading to claims of “government by decree.”116 Events such as the pandemic or the outcome of the Brexit referendum may be unexpected, but the flaws of the delegated legislation system remain constant.

Through our analysis of the experience with Brexit, we have articulated both the long-running anxieties about the delegated law-making system and how they manifest in current practices. Addressing these problems should be at the centre of the contemporary reform agenda within Parliament. It is entirely possible for many of the problems we have identified to be avoided or minimised while retaining the benefits of the current system. If Brexit is to be an opportunity for national legislative renewal, the moment is ripe for incremental reform that will foster the making of better law in a modern state that often needs to make lots of law quickly.

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References

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1 This represents the period from 23 June 2016 to 31 January 2020. 2 Gordon Hewart, The New Despotism (Ernest Benn Limited 1929); Cecil T Carr, Delegated Legislation: Three Lectures (CUP 1921), 2. 3 Ivor Jennings, The Law and the Constitution (University of London 1943). 4 The Earl of Donoughmore (Chair), Report of the Committee on Ministers’ Powers (Cmd 4060, 1932) 6. 5 ibid. 6 Jeff King, ‘The Province of Delegated Legislation’ in Liz Fisher, Jeff King and Alison Young (eds), The Foundations and Future of Public Law: Essays in Honour of Paul Craig (Oxford University Press 2020) 150. 7 Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 33. 8 Philip Loft, Acts and Statutory Instruments: The volume of UK legislation 1950 to 2019, House of Commons Library, Commons Briefing papers (CBP-7438 2019). 9 Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 48. 10 Philip Loft, Acts and Statutory Instruments: The volume of UK legislation 1950 to 2019, House of Commons Library, Commons Briefing papers (CBP-7438 2019). 11 Adam Tucker, ‘The Parliamentary Scrutiny of Delegated Legislation’ in Alexander Horne and Gavin Drewry (eds), Parliament and the Law (Hart Publishing 2018) 350. 12 Constitution Committee, The Legislative Process: The Delegation of Powers (HL 2017–19, 225) 2 13 Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 61. 14 ibid, 63; Edward C. Page, Governing by Numbers: Delegated Legislation and Everyday Policy Making (Hart Publishing 2001) 187. 15 Delegated Powers and Regulatory Reform Committee, 7th Report; Special Report: Quality of Delegated Powers Memoranda (HL 2014-15, 39) para 33. 16 Constitution Committee, The Legislative Process: The Delegation of Powers (HL 2017–19, 225) para 110. 17 Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 28. 18 Adam Tucker, ‘The Parliamentary Scrutiny of Delegated Legislation’ in Alexander Horne and Gavin Drewry (eds), Parliament and the Law (Hart Publishing 2018) 351-352. 19 Edward C. Page, Governing by Numbers: Delegated Legislation and Everyday Policy Making (Hart Publishing 2001) 186. 20 ibid, 186. See also: Jeff King, ‘The Province of Delegated Legislation’ in Liz Fisher, Jeff King and Alison Young (eds), The Foundations and Future of Public Law: Essays in Honour of Paul Craig (Oxford University Press 2020) 156. 21 Constitution Committee, 9th Report; Delegated Legislation and Parliament: A response to the Strathclyde Review (HL 2015-16, 116) para 40. 22 Nicholas W. Barber and Alison L. Young, ‘The Rise of Prospective Henry VIII Clauses and their Implications for Sovereignty’ [2003] PL 112. 23 Adam Tucker, ‘The Parliamentary Scrutiny of Delegated Legislation’ in Alexander Horne and Gavin Drewry (eds), Parliament and the Law (Hart Publishing 2018) 359. 24 Lord Judge, ‘Ceding Power to the Executive: the Resurrection of Henry VIII’ (King’s College London Lecture, 12 April 2014). 25 Nicholas W. Barber and Alison L. Young, ‘The Rise of Prospective Henry VIII Clauses and their Implications for Sovereignty’ [2003] PL 112. 26 Jeff King, ‘The Province of Delegated Legislation’ in Liz Fisher, Jeff King and Alison Young (eds), The Foundations and Future of Public Law: Essays in Honour of Paul Craig (Oxford University Press 2020) 155. 27 Lord Judge, (Lord Mayor’s Dinner for the Judiciary, The Mansion House Speech, 13 July 2010). See also: Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 30.

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28 Aileen McHarg, ‘What is Delegated Legislation?’ [2006] PL 557. 29 Lord Judge, ‘Annual Bingham Lecture 2017: A Judge’s View on the Rule of Law’ (2017). See also: Delegated Powers and Regulatory Reform Committee, 7th Report; Special Report: Quality of Delegated Powers Memoranda (HL 2014-15, 39) para 38. 30 Lord Judge, ‘A Judge’s View on the Rule of Law’ (Annual Bingham Lecture, 2017). 31 Constitution Committee, The Legislative Process: The Delegation of Powers (HL 2017–19, 225) para 58. 32 Between 1950 and 2017, the House of Commons has rejected 11 SIs, and the House of Lords, 6. This is a rejection rate of 0.01% of the total number laid from 1950 to 2017. See: Hansard Society, ‘Westminster Lens: Parliament and delegated legislation in the 2015–16 session’ (2017) 5; Philip Loft, Acts and Statutory Instruments: The volume of UK legislation 1950 to 2019, House of Commons Library, Commons Briefing papers (CBP-7438 2019). 33 Edward C. Page, Governing by Numbers: Delegated Legislation and Everyday Policy Making (Hart Publishing 2001) 175; Jeff King, ‘The Domain of Delegated Legislation’ in Liz Fisher, Jeff King and Alison Young (eds), The Foundations and Future of Public Law: Essays in Honour of Paul Craig (Oxford University Press 2020) 162. 34 Adam Tucker, ‘The Parliamentary Scrutiny of Delegated Legislation’ in Alexander Horne and Gavin Drewry (eds), Parliament and the Law (Hart Publishing 2018) 370. 35 Edward C. Page, Governing by Numbers: Delegated Legislation and Everyday Policy Making (Hart Publishing 2001) 129. 36 ibid, 155-153. 37 Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 217. 38 The Committee’s Guidance for Departments emphasises that any supporting information such as Impact Assessments (IA) or analysis of consultation responses should be published on the day the instrument is laid. See Secondary Legislation Scrutiny Committee, Work of the Committee in Session 2017–19: Second Interim Report (HL, 2017-19, 376) para 33. 39 Adam Tucker, ‘The Parliamentary Scrutiny of Delegated Legislation’ in Alexander Horne and Gavin Drewry (eds), Parliament and the Law (Hart Publishing 2018), 361. 40 Hansard Society, ‘Westminster Lens: Parliament and delegated legislation in the 2015–16 session’ (2017) 5. 41 Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 182. 42 ibid. 43 ibid. 44 For an excellent general analysis of this Act, see: Paul Craig, ‘Constitutional Principle, the Rule of Law and Political Reality: The European Union (Withdrawal) Act 2018’ (2019) 82(2) MLR 320. 45 Constitution Committee, 9th Report; The ‘Great Repeal Bill’ and delegated powers’ (HL 2016-17, 123) para 16. 46 See foreword by Rt Hon David Davis MP, Secretary of State for Exiting the European Union, to Legislating for the United Kingdom’s withdrawal from the European Union (Cm 9446 2017) 7. See also paras 3.10 and 3.17 of the White Paper and para 14 of the Explanatory Notes. 47 The legislation relating to the general process including legiation passed by the government and legislation passed against the government’s will, to restrict it from purusing certain options. 48 Agreem ent on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community 2019/C 384 I/01. 49 Constitution Committee, 9th Report; Report on EU (Withdrawal Bill) (HL 2017–19, 69) para 196. 50 Consti tution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, 123) [47]. 51 Constitution Committee, 3rd Report; European Union (Withdrawal) Bill: Interim Report (HL 2017–19, 19) para 38. 52 EU (Withdrawal) Act 2018, ss 2, 3, 4, and 5. 53 Delegated Powers and Regulatory Reform Committee, 3rd Report; European Union (Withdrawal) Bill (HL 2017-2019, 22) para 15.

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54 Constitution Committee, 3rd Report; European Union (Withdrawal) Bill: Interim Report (HL 2017–19, 19) para 44. 55 ibid, para 39. 56 ibid. 57 Constitution Committee, 9th Report; European Union (Withdrawal) Bill (HL 2017-2019, 69) para 163. 58 EU (Withdrawal) Act 2018, sch 7, para 5(2). 59 We define Brexit statutory instruments as all those where the explanatory memorandum stated the instrument was being made to facilitate the UK’s departure from the EU. 60 For further analysis of Brexit delegated legislation and what it means for the rule of law see: Jack S. Caird and Ellis Patterson, ‘Brexit, Delegated Powers and Delegated Legislation: a Rule of Law Analysis of Parliamentary Scrutiny’ (Bingham Centre for the Rule of Law, 20 April 2020). 61 Joe Marshall and others, ‘Parliamentary Monitor 2020: Secondary Legislation’ (Institute for Government, 20 May 2020), citing the work of Dr Matthew Williams, University of Oxford. 62 Hansard Society, ‘Westminster Lens: Parliament and delegated legislation in the 2015–16 session’ (2017) 13. 63 Jeff King, ‘The Judicial Review of Delegated Legislation under the European Union (Withdrawal) Act 2018’ 12 (forthcoming). 64 Secondary Legislation Scrutiny Committee, Work of the Committee in Session 2017–19: Second Interim Report (HL, 2017-19, 376) para 24. 65 HL Deb 21 March 2019, vol 796, col 1576. 66 The average length for a DLC debate in the 2013-2014 Parliamentary session was 26 minutes but they can be as short as 22 seconds. See Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 80. 67 Second ary Legislation Scrutiny Committee, 17th Report (Sub-committee B) (HL 2017-19, 293) para 55. 68 A fatal motion was tabled agaisnt The REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, SI 2019/758 but withdrawn in advance of debate. 69 Those instruments were The REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, SI 2019/758 and the Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019, SI 2019/1401, see: HL Deb 26 March 2019, vol 796, col 1755 and HL Deb 23 October 2019, vol 800, col 640. 70 Secondary Legislation Scrutiny Committee, 60th Report (HL 2017-2019, 420) para 11. 71 Secondary Legislation Scrutiny Committee, Work of the Committee in Session 2017–19: Second Interim Report (HL 2017-19, 376 ) para 41. 72 The Environment (Miscellaneous Amendments and Revocations) (EU Exit) Regulations 2019, SI 2019/559. 73 Explanatory Memorandum to The Environment (Miscellaneous Amendments and Revocations) (EU Exit) Regulations 2019, SI 2019/559, para 2.13. 74 The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019, SI 2019/556 removed the prohibition which was reinstated by The Pesticides (Amendment) (EU Exit) Regulations 2019, SI 2019/1410 see also the accompanying Explanatory Memorandum at para 7.10 which describes the ‘erroneous omission’. 75 The Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2019, SI 2019/1338. 76 The Animal Health, Plant Health, Seeds and Food (Amendment) (Northern Ireland) (EU Exit) Regulations 2019, SI 2019/(draft) see Secondary Legislation Scrutiny Committee, 19th Report (HL 2017-19, 305) para 1. 77 The European University Institute (EU Exit) Regulations 2019 (withdrawn). 78 Regulation of the European Parliament and of the Council (EC) No 396/2005 of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin [2005] OJ L70/1. 79 Explanatory Note to The Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019, para 7.25. 80 Explanatory Note to The Pesticides (Maximum Residue Levels) (Amendment etc.) (EU Exit) Regulations 2019, para 7.25.

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81 The Immigration, Nationality and Asylum (EU Exit) Regulations 2019, SI 2019/745. 82 Caroli ne Nokes, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Deb 26 February 2019, vol 655, cols 183-184. 83 The Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc) (EU Exit) Regulations 2019, SI 2019/860. 84 Secondary Legislation Scrutiny Committee, 60th Report (HL 2017-2019, 420) para 11. See also Hansard Society, ‘Westminster Lens: Parliament and delegated legislation in the 2015–16 session’ (2017) 4 which showed 19% of SIs were affirmatives in the 2015-2016 parliamentary session. 85 Joe Marshall and others, ‘Parliamentary Monitor 2020: Secondary Legislation’ (Institute for Government, 20 May 2020). 86 R (Miller) v The Prime Minister [2019] UKSC 41, [2020] AC 373. 87 The Specific Food Hygiene (Regulation (EC) No. 853/2004) (Amendment) (EU Exit) Regulations 2019, SI 2019/1247. 88 The Capital Requirements (Amendment) (EU Exit) Regulations 2019, SI 2019/1232. See also: Jack S. Caird and Ellis Patterson, ‘Brexit, Delegated Powers and Delegated Legislation: a Rule of Law Analysis of Parliamentary Scrutiny’ (Bingham Centre for the Rule of Law, 20 April 2020) 19. 89 The Capital Requirements (Amendment) (EU Exit) Regulations 2019, SI 2019/1232. 90 Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) 213. 91 ibid, 214. 92 HL Deb 7 October 2019, vol 799, col 1938. 93 Secondary Legislation Scrutiny Committee, 17th Report (HL 2017-19, 292) para 7. 94 Secondary Legislation Scrutiny Committee, 17th Report (Sub-committee A) (HL 2017-19, 292) para 18. 95 ibid, para 23. 96 De minimis is defined is having an impact of less than £5 million as defined in the Better Regulation framework. 97 The Impact Assessment for the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019, SI 2019/696 was not originally laid with the SI. It was laid after BEIS corrected the instrument and revised the EM. 98 Letter from SLSC to Philip Hammond Chancellor of the Exchequer, 19 February 2019. 99 Secondary Legislation Scrutiny Committee, 11th Report (HL 2017-19, 260) para 5. 100 Secondary Legislation Scrutiny Committee, 15th Report (HL, 2017-19, 281) para 23. 101 Freedo m of Establishment and Free Movement of Services (EU Exit) Regulations 2019, SI 2019/1401. 102 Explanatory Memorandum to Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019, SI 2019/1401, para 12.1. 103 See The Food Additives, Flavourings, Enzymes And Extraction Solvents (Amendment Etc.) (EU Exit) Regulations 2019, SI 2019/860, The Animal Health And Genetically Modified Organisms (Amendment) (EU Exit) Regulations 2019, SI 2019/1229 and The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019, SI 2019/556. 104 HL Deb 23 October 2019, vol 800, cols 620 and 631. 105 Secondary Legislation Scrutiny Committee, Work of the Committee in Session 2017–19: Second Interim Report (HL 2017-19, 376 ) para 30. 106 The Plant Protection Products (Miscellaneous Amendments) (EU Exit) Regulations 2019, (SI 2019/1410). 107 The Pesticides (Amendment) (EU Exit) Regulations 2019, SI 2019/1410 and its Explanatory Note, para 7.12. 108 The REACH etc (Amendment etc.)(EU Exit) (No 2) Regulations SI 2019/858, Explanatory Memorandum, para 2.3. 109 Explanatory Memorandum to The Jurisdiction and Judgments (Family) (Amendment Etc.) (EU Exit) (No.2) Regulations 2019, para 7.3.

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110 The Cross-border Trade (Public Notices) (EU Exit) Regulations 2019, SI 2019/1307. 111 Freedo m of Establishment and Free Movement of Services (EU Exit) Regulations 2019, SI 2019/1401. 112 HL Deb 23 October 2019, vol 800, col 626. 113 The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019, SI 2019/579. 114 Client Earth and the Marine Conservation Society v Secretary of State for the Environment, Food and Rural Affairs [2019] EWHC 2682 (Admin). 115 Delegated Powers and Regulatory Reform Committee, Report on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill (HL 2017-19, 275) para 51 . 116 Keith D. Ewing, ‘Covid-19: Government by Decree’ [2020] KLJ 1.

36 | The SIFT Project | Plus ça change? Brexit and the flaws of the delegated legislation system 59 60 61 Institute for Public Policy Research

The agreement on the future relationship: a first analysis

Marley Morris

December 2020

Find out more: https://www.ippr.org/research/publications/the-brexit-eu-uk-trade-deal-a-first-analysis

SUMMARY

After 11 months of intense negotiations, the UK and the EU have struck a deal on their future relationship at the eleventh hour. This deal is one of the most critical agreements the UK will negotiate in the post-Brexit era, given it comprises the basis of the future economic and security relationship with its nearest trading partner. For this reason, it is important that the deal comes under proper scrutiny.

This briefing, published shortly after the text of the agreement has been released, offers a first attempt at assessing the deal and its implications. We recognise that, given the tight time frames, this is not a complete analysis of the agreement. Instead, this briefing aims to highlight some of the key provisions in the text and their significance for the future UK-EU relationship, as well as for the UK’s own domestic policy.

As expected, our assessment finds that the agreement offers clear benefits to the UK and the EU, which would have been lost if no deal had been negotiated. For instance, the agreement provides for:

The progressive policy think tank 62

• Tariff-free and quota-free trade in goods between the UK and the EU

• Continued social security coordination between the UK and the EU, including healthcare coverage for EU and UK visitors

• Continued UK and EU data-sharing for security purposes, including sharing of information on DNA profiles, fingerprints, vehicle registrations, and passenger name records

However, it is clear that under this deal the UK and the EU’s economies will no longer be as integrated as now, which is likely to have a significant impact on trade flows. Due to the UK’s exit from the single market and customs union, there will still be a range of new trade barriers between the UK and the EU, starting from January 1 next year. There is no agreement on mutual recognition of professional qualifications, equivalence of SPS (sanitary and phytosanitary) measures, or passporting for financial services. Businesses trading into the EU will have to contend with new customs checks and formalities, technical regulatory barriers, as well as animal and plant health requirements for agri-food products.

The agreement also has important implications for future UK policy on labour and environmental protections, as well as rules for state aid. A key element of the negotiations was the so-called ‘level playing field’ – the rules for fair competition designed to underpin the trade agreement. However, the commitments on labour and environmental standards are considerably weaker than expected; there is only a commitment not to lower current levels of protection to the extent that any reductions may affect trade or investment. Given it is notoriously difficult to prove that any lowering of protections affects trade or investment, the deal is unlikely to prevent the UK government from weakening EU-derived labour and environmental policies if it so chooses.

In summary, the agreement secures critical benefits for the UK, most notably through maintaining tariff-free trade. Yet as the foundation for the future relationship between the UK and its closest neighbour and trading partner, this is a strikingly thin deal. In aiming for an agreement which guarantees maximal sovereignty, the UK government has watered down the ‘level playing field’ requirements on areas such as labour and environmental protections and secured only limited benefits in market access. In the short-term, this is likely to lead to disruption to trade flows, including at the border. Over the longer term, the economy will adapt to the new arrangements, but barriers to UK-EU trade will likely lead to slower growth and a more prolonged economic recovery.

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THE AGREEMENT ON THE FUTURE RELATIONSHIP

The agreement is broken into different parts, which we look at in turn. Each part includes a number of sections called ‘headings’, broken down into subsections called ‘titles’. We do not include every title and heading in this analysis; instead we focus on some of the key elements of the agreement.

Part One: Common Provisions

The agreement opens with some common provisions which underpin the future UK-EU relationship. This includes a ‘good faith’ clause, which commits both the UK and the EU to taking the appropriate measures to fulfil the obligations of the agreement, and by the same token refraining from taking measures that could jeopardise the objectives of the agreement. However, this part also makes clear that there is no obligation for the UK to interpret the text in accordance with EU law (and vice versa).

This part also contains the overarching arrangements for governing the agreement on the future relationship. It creates a framework for managing the implementation and development of the agreement, based on a Partnership Council made up of UK and EU representatives and co-chaired by a UK government minister and a member of the European Commission. Alongside the Partnership Council, the agreement also establishes a number of specialised committees, focusing on various elements of the future relationship. The Partnership Council and the specialised committees have the power to make decisions in certain areas which are binding on both the UK and the EU.

Outside these core elements of the framework, the agreement provides for a Parliamentary Partnership Assembly, made up of MPs and MEPs, which can make non-binding recommendations to the Partnership Council. There are also provisions for domestic advisory groups, made up of civil society organisations, which are meant to advise on relevant issues in the agreement, such as the level playing field conditions on labour and environmental protections. The agreement additionally includes the creation of a Civil Society Forum to discuss the implementation of the agreement, involving civil society organisations such as NGOs, business groups, and trade unions.

Part Two: Economy and Trade

Trade in goods

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At the heart of this title is a commitment to maintain tariff-free and quota-free trade in goods between the UK and the EU, including all industrial and agricultural goods. This is an important commitment within the overall agreement, because without it the UK and the EU would be required to impose stringent tariffs on a range of goods from January 2021.

However, accompanying the commitments on tariffs are provisions on ‘rules of origin’, which are the arrangements for determining where goods traded between the UK and the EU originate and so whether they are eligible for tariff exemptions. These provisions are complex, but the core principle is that products exported to the EU qualify for preferential treatment if they have been wholly obtained in the UK, if they have been produced from materials exclusively from the UK, or if they have been sufficiently processed in the UK (provided certain conditions are met – eg the amount of non-UK materials used does not exceed a particular value). The same principle applies in relation to EU imports to the UK.

Importantly, there are provisions for full bilateral cumulation, which allow for any materials from the EU used in making UK products to be considered as UK materials for the purpose of determining whether the product counts as originating from the UK. Similarly, they allow for any production carried out in the EU to be taken into account when assessing whether a UK product meets the rules of origin. This is an important provision which should help to preserve UK- EU supply chains.

But the complexity and challenges involved in documenting that a product meets the relevant rules of origin will likely be arduous for many businesses; indeed, some will find it easier and less costly to forgo preferential exemptions and alternatively to accept tariffs on their products. For now, the EU has agreed to offer flexibility in documenting origin for the first year of the agreement, which should help business to adapt to the new rules.

Also within this title is a chapter on sanitary and phytosanitary standards (SPS) – ie plant and animal health. This chapter aims to affirm the rights of the UK and the EU to introduce conditions on importing animal and plant products for the protection of food safety and animal welfare, while at the same time ensuring these do not create unnecessary barriers to trade. The chapter contains certain rules to limit the extent of new trade barriers and to reduce the risks of delay, but it will not prevent new SPS checks on imports at the end of the transition period, including physical checks at the border.

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Similarly, the chapter on technical barriers to trade (TBT) seeks to manage how the UK and the EU impose technical regulations, labelling requirements and conformity assessment procedures (ie processes for determining whether a product meets a standard) on imports in order to facilitate trade. This is done through provisions on transparency and cooperation, on the continued use of self-certification where this already takes place, and on the promotion of international standards. There are also some specific commitments on reducing non-tariff barriers relating to particular sectors, including medicine products, motor vehicles, and wine. In general, however, this chapter does not prevent new technical barriers to trade. For instance, it will not prevent UK regulatory and conformity assessment bodies from losing their ability to certify goods for the EU market in January 2021.

Finally, the chapter on customs facilitation aims to ease trade in goods between the UK and the EU through cooperation on customs. This includes a commitment on working towards simplified customs procedures, basing customs controls on risk management (in order to target high-risk consignments), and creating a partnership programme for Authorised Economic Operators (‘trusted traders’ which benefits from fewer checks due to their reliability). There are also commitments on how to manage roll-on, roll-off traffic at ports – for instance, by agreeing to allow for import documents to be processed in advance of goods arriving. But this does not prevent the need for new customs controls from January 2021 onwards.

Services and investment

This title includes a number of chapters aimed at supporting cross-border services trade and investment between the UK and the EU, including specific provisions on telecommunications, legal services, and financial services. There are commitments on ensuring market access for investors and service suppliers and on treating each party’s investors and service suppliers in the same way as its own investors and service suppliers. There are also provisions to allow for temporary business travel, intra-company transfers, and other relevant forms of short-term mobility between the UK and the EU.

However, there are a number of exemptions to these commitments for specific sectors (for instance, audio-visual services), and in general they do not prevent either the UK or the EU imposing licensing or qualification requirements which affect trade in services. The provisions in this title are therefore not comparable to the current principle of free movement of services. For instance, in financial services, the agreement does not protect UK passporting rights (ie the right of firms authorised to sell financial services in the UK to be able to operate in an EU member state without further authorisation). There is also no firm agreement on

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mutual recognition of professional qualifications – a key ask by the UK in the negotiations.

Digital trade

The agreement includes an additional title on digital trade, which aims to facilitate cross-border data flows. This includes a number of provisions on data flows and electronic transmissions, such as prohibiting any requirements for data to be stored or processed in a particular country. The title on digital trade also includes joint commitments on consumer protection, such as restrictions on unsolicited direct marketing communications (spam), as well as commitments on the protection of personal data and privacy.

Alongside the main sections on trade in goods and services, this part also includes titles in a number of further areas related to the future economic partnership, including in intellectual property, public procurement, energy and transport:

Intellectual property

This title specifies joint rules on the protection of intellectual property rights, covering areas such as copyright and related rights, trademarks, and patents. There is no agreement, however, on recognising and protecting new geographical indications (ie a sign or a name on a product corresponding to its origin where the product has certain qualities or a reputation as a result of that origin – such as Cornish Pasties). Existing geographical indications were protected under the previous Withdrawal Agreement.

Public procurement

As with intellectual property, public procurement is another common cross- cutting area in modern trade agreements. This title aims to ensure that either party can access each other’s public procurement markets. It goes beyond WTO rules by ensuring non-discriminatory treatment for small-value procurement for locally established suppliers (ie EU suppliers established in the UK and vice versa). However, these rules do not require the UK to continue following EU legislation on public procurement and give it significant flexibility to diverge from current rules.

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Energy

This title includes arrangements for trade in energy, including the gas and electricity industries. In particular, it promotes fair competition in gas and electricity markets and encourages the efficient use of interconnectors (ie physical cables connecting electricity across borders) between the UK and the EU. However, it does not allow for continued UK membership of the single electricity market, which will result in the less efficient distribution of electricity across interconnectors in future.

As part of this title, the agreement includes broad commitments on the use of safe and sustainable energy and energy efficiency. For instance, there are provisions reaffirming the UK’s ambitions on its share of energy coming from renewable sources.

Level playing field

The ‘level playing field’ has been one of the most contentious areas of the negotiations. The EU has argued that an agreement which maintains tariff-free and quota-free trade must be underpinned by rules on fair competition (ie a ‘level playing field’). They have sought agreement on strict conditions covering state aid and competition rules, labour and social protections, environmental and climate change measures, and taxation policy. The UK, for its part, has supported the principle of upholding fair competition and high standards, but has resisted any commitments which it considers as impinging on its sovereignty.

The results of these challenging negotiations are a complex compromise. On labour and environmental protections, the UK and the EU have agreed to a non- regression clause which prevents either party from reducing or weakening their own levels of protection at the end of the transition period in a manner “affecting trade or investment” between the two parties. This means that in order to demonstrate a breach of the non-regression clause either party would have to show that any attempt to lower labour or environmental standards affects trade or investment, setting a very high bar for proof. The text also includes commitments on implementing a system of carbon pricing, as well as on effectively implementing certain international agreements, such as the fundamental Conventions of the ILO (International Labour Organisation) and the Paris agreement.

Where there are disputes over a potential breach of the non-regression clause, the UK and the EU do not have recourse to the standard dispute resolution

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mechanism for the agreement. Instead, the UK and the EU are expected to first attempt to resolve the dispute through consultations and then, if this is unsuccessful, through convening a ‘panel of experts’ to issue a report on whether the party in question has conformed with the relevant obligations. The agreement also provides scope for either side to take remedial action (eg through temporary tariffs) if the panel of experts’ report is not acted upon. This means that there is the possibility of imposing sanctions where there has been a breach of the non-regression clause.

On state aid, the UK and the EU have agreed to a set of principles for managing subsidies. These in large part reflect the underlying rules and case law which currently apply to EU state aid measures. However, compared to current arrangements, it gives considerably greater flexibility over how these principles can be delivered. To enforce the agreement, there is a commitment to maintain an independent body to manage controls over subsidies and there is scope for formal dispute settlement through an arbitration tribunal. Either side can also unilaterally take remedial measures if there is evidence that a subsidy will cause (or there is serious risk it will cause) a significant negative impact on trade and investment between the UK and the EU. This can then be challenged through an arbitration tribunal.

A particularly contested issue in the negotiations was how to resolve future divergences in legislation – for instance, what to do if workers’ rights in the UK do not keep pace with EU protections over time. To address this, the text includes a ‘rebalancing clause’ which allows either party to take action to rebalance the agreement where serious divergences in the areas of labour or environmental standards (or state aid) create material impacts on trade or investment. This means that, where the UK fails to keep pace on EU levels of labour or environmental protection and this affects trade or investment, the EU could take necessary and proportionate measures (eg introducing tariffs) in response. The criteria for being able to use these rebalancing measures is strict: any assessment of the impacts of divergence must be based on “reliable evidence” and not on “conjecture or remote possibility”. Moreover, when one side intends to take rebalancing measures, the other side can request an arbitration tribunal to decide whether such measures are allowed before they are enacted. This means that rebalancing measures are only likely to be used in a rare number of scenarios.

Finally, there is also an option for either side to request a review of the agreement after a minimum of four years, if they consider that there have been repeated divergences and rebalancing measures or if a measure having material impact on trade or investment has been in place for 12 months. The review would focus on whether the agreement has the appropriate balance of rights and obligations, in light of the divergence between the two sides, and whether a modification to the deal is necessary. If no modified agreement can be reached

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after a year of negotiations, then either party has the option of terminating the trade part of the agreement altogether.

Transport

These headings include important provisions on maintaining transport connectivity, particularly in the aviation and road transport sectors. The heading on aviation includes an agreement on the third and fourth air traffic rights, allowing UK air carriers to make scheduled or unscheduled flights to EU countries, and vice versa. It does not, however, allow UK air carriers to make journeys transporting people or cargo between two different parts of the EU.

On road transport, this heading includes an agreement allowing the transport of goods by road hauliers between the UK and the EU, provided they have a valid operator’s license and the driver has a Certificate of Professional Competence. UK road hauliers are also granted the right to make up to two additional laden journeys within the EU before returning (including one laden journey within a member state), allowing them to travel back to the UK loaded with goods.

As a condition for continued air and road connectivity, there are specific rules for fair competition, extending beyond the more general ‘level playing field’ provisions discussed above. This includes provisions on maintaining current levels of consumer protection in relation to air travel and on complying with rules on driving and working time, rest periods, and breaks in relation to road haulage.

Social security coordination and short-term visas

This title includes provisions on short-term visas and social security arrangements. At the UK’s choice, it does not include a long-term commitment to provide reciprocal visa-free travel. Instead, it simply notes that the UK and the EU have agreed to provide visa-free travel for short-term trips for the moment, leaving open the possibility of this changing in future.

A separate protocol includes arrangements for how to coordinate benefits for UK and EU citizens in a number of situations – for instance, UK citizens living in the UK and working in the EU, UK citizens temporarily visiting the EU, and UK citizens moving residence to the EU (and vice versa). This covers a range of benefits, including sickness benefits, maternity benefits, and pensions. It also

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covers healthcare for people on temporary trips to the UK or EU (ie replicating the European Health Insurance Card).

Fisheries

Fisheries has been another area of contention throughout the negotiations on the future relationship. While the UK will regain control of its exclusive economic zone (EEZ – the area extending to at most 200 nautical miles from a country’s shore where it can claim exclusive rights for fishing), there is still a strong mutual interest in the UK and the EU continuing to access each other’s EEZs. The main dispute has related to the issue of quota shares – ie for each fish stock, the proportion of the total allowable catch (the catch limit) which the UK and the EU can catch. The EU had asked for the quota shares to be fixed over time and to be based on historical arrangements to ensure stability for member states. The UK, for its part, had asked for annual negotiations on quota shares based on ‘zonal attachment’ – that is, based on where different fish stocks are located in the UK’s and the EU’s EEZs – in order to increase quota shares for UK fishers.

The resulting compromise involves a 5 ½ year transition period to allow for EU member state fisheries industries to adjust to the new arrangements. UK quota shares will gradually be increased over this period. Beyond this point, negotiations on access arrangements will take place on an annual basis. The agreement also includes specific arrangements for dispute resolution. Where one side believes there has been a breach, they may respond by suspending access to its water or imposing tariffs on fisheries products (or suspending other aspects of the agreement if this is justified by the scale of the breach). An arbitration tribunal must also be urgently convened to make a ruling on the matter.

Parts Three and Four: Law Enforcement and Judicial Cooperation in Criminal Matters; and Thematic Cooperation

The future relationship does not simply cover economic ties. There are also a number of agreements in relation to security, including cooperation on both internal law enforcement and on health and cyber security.

Law enforcement and judicial cooperation in criminal matters

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This part aims to facilitate cooperation between the UK and the EU in a number of areas of policy in order to tackle crime. Of particular importance are the UK’s continued participation in the Prüm legal framework, allowing exchange of data on DNA profiles, fingerprints, and vehicle registration, and an agreement on continuing to share Passenger Name Record data (PNR) used for flights between the UK and the EU. However, there are no provisions for continued access to SIS II, an EU database of alerts on individuals and objects of interest to law enforcement.

There are also agreements on continued cooperation and information exchange with Europol and Eurojust, respectively the EU’s law enforcement and criminal justice cooperation agencies. The title includes further arrangements on how the UK or EU member states should respond to arrest warrants, including specifications on the grounds on which arrest warrants can be refused. This is not, however, equivalent to continued participation in the European Arrest Warrant.

This part of the agreement is contingent on both sides continuing to uphold the European Convention on Human Rights. Where there are any deficiencies in the UK or the EU’s protection of fundamental rights or the rule of law, either party has the right to suspend it. In addition, where there are serious deficiencies in the protection of personal data – for instance, if the EU withdraws an adequacy decision on data protection permitting cross-border data transfer – then it may also be suspended.

Thematic cooperation

Alongside this part, there is a further part covering other areas of UK-EU cooperation, including cooperation on health and cyber security. There is, however, no agreement on irregular migration and no replacement of the Dublin Regulation, which helps EU countries manage responsibilities for asylum applications. This will make it harder for the UK to return asylum seekers to EU countries and will create new barriers for asylum seekers looking to reunite with family members in the UK.

Part Five: Participation in Union Programmes

This part of the agreement covers the arrangements for the UK to participate as a third country in EU programmes, such as the Horizon Europe programme. It includes various rules guiding the participation of the UK in these programmes,

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including the condition that the UK must make annual payments into the EU budget, in the form of a participation fee and an operational contribution.

Part Six: Dispute Settlement and Horizontal Provisions

Core to this part is the title on dispute resolution, which sets out the process for resolving disagreements on the interpretation or application of the agreement. The approach laid out here is similar to the one taken for the UK-EU withdrawal agreement. At first, if either the UK or the EU believes that the other has breached the agreement, they should enter into consultations. If consultations do not resolve the dispute, then it may go to an independent arbitration tribunal, which makes an objective assessment and a binding decision on the issue.

If the arbitration tribunal finds that either party has breached the agreement, then they must act to comply with its ruling. Where the party does not comply, they are obliged to present an offer of “temporary compensation”. If there is no agreement on temporary compensation, then the other party can choose to temporarily suspend some of the obligations of the agreement – eg through the imposition of new tariffs.

Finally, this part of the agreement includes provisions for either the UK or the EU to unilaterally take ‘safeguard measures’ where it faces serious economic, societal or environmental difficulties. This allows for a temporary ‘emergency brake’ in moments of extreme difficulty, though if ‘safeguard measures’ appear disproportionate they can be counteracted through ‘rebalancing measures’ or challenged through the agreement’s arbitration procedure.

REFERENCES

Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (2020). https://www.gov.uk/government/publications/agreements-reached-between- the-united-kingdom-of-great-britain-and-northern-ireland-and-the-european-union

European Commission (2020) ‘Questions and answers: EU-UK Trade and Cooperation Agreement’. https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_2532

Prime Minister’s Office (2020) ‘UK-EU Trade and Cooperation Agreement: Summary’. https://www.gov.uk/government/publications/agreements-reached-between-the-united-kingdom- of-great-britain-and-northern-ireland-and-the-european-union

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ABOUT IPPR

IPPR, the Institute for Public Policy Research, is the UK’s leading progressive think tank. We are an independent charitable organisation with our main office in London. IPPR North, IPPR’s dedicated think tank for the north of England, operates out of offices in Manchester and Newcastle, and IPPR Scotland, our dedicated think tank for Scotland, is based in Edinburgh.

Our primary purpose is to conduct and promote research into, and the education of the public in, the economic, social and political sciences, science and technology, the voluntary sector and social enterprise, public services, and industry and commerce. Other purposes include to advance physical and mental health, the efficiency of public services and environmental protection or improvement; and to relieve poverty, unemployment, or those in need by reason of youth, age, ill-health, disability, financial hardship, or other disadvantage.

Registered charity no: 800065 (England and Wales), SC046557 (Scotland)

This paper was first published in December 2020. © IPPR 2020

The contents and opinions expressed in this paper are those of the authors only.

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This contribution will cover … Public Law and Brexit: The implications of Brexit for environmental law and protections – why is Judicial Review important?

– How successful is JR for claimants?

– Role of JR post-Brexit

– What are the Government’s plans for JR?

Carol Day, Consultant Solicitor, the RSPB and Leigh Day

The importance of Judicial Review Environmental Judicial Reviews – Numbers and success rates

• The process (very often the last) under which executive or legislative actions are subject to • Approx 120 applications per year (peaked in 2015/16 at review by the judiciary. 180)

• Vital importance in checking the abuse of power and maintaining an effective democracy • Approx 39% claims issued are granted permission to proceed (peaked at 45% in 2016 but has fallen following CJCA 2015). • Environmental Protection and access to justice

• Permission filter weeds out unmeritorious and • Approx 4% of claims issued ultimately successful for the frivolous cases claimant (proportion peaked at 12% in 2016 but has fallen since then). • Restrictions to JR should not be made in the interests cutting red tape or costs or political • What is causing the fall in success rates? expediency 75

Environmental JRs – what does success look like for claimants? What does success look like for claimants?

• Claire Stephenson v Secretary of State for Housing and Communities and Local •Gamebirds – 60 million gamebirds and HRA Government [2019] EWHC 519 (Admin) – Talk Fracking argued Paragraph 209(a) of the NPPF (which promoted fracking) Wild Justice v Secretary of State for the Environment, Food & Rural Affairs was unlawful because it failed to consider recent evidence on the contribution and (1) Natural England (2) Minister for Environment, Energy and Rural that shale gas development made to climate change. Affairs (3) The Clovelly Estate (4) The Hampden Estate (5) The Grosvenor – Court held the SoS had acted unlawfully by failing to undertake a proper public Estate (6) British Association for Shooting and Conservation (7) Game consultation or to take account of that evidence. Para 209(a) quashed and Farmers’ Association (8) National Gamekeepers Organisation (9) The NPPF updated June 2019. Countryside Alliance (Interested Parties)

• RSPB and others v Secretary of State for Justice [2017] EWHC 2309 (Admin) •General Licences – RSPB, FoE and CE argued amendments to Part 45 CPR were in breach of the R (oao Wild Justice v Natural Resources Wales and (1) Secretary of State PPD regarding “prohibitive expense”. The Hon Mr Justice Dove held: for the Environment, Food and Rural Affairs and (2) British Association for • Current arrangements guarantee reasonable predictability but judge Shooting and Conservation (Interested Parties) (judgment 18th January recommended amendments to the CPR to clarify (which were effected); 2021) • PD39 required amendment to ensure hearings concerning financial information will be held in private; and • the assessment of whether or not proceedings are “prohibitively •Heathrow, A40, Cumbria coal mine – JR as a component of campaigning expensive” may include the claimant’s own costs in bringing the claim.

Remember the CJEU and the The importance of JR post-Brexit EU complaints mechanism?

The first taste of the deregulatory agenda? • Anyone can submit a complaint (including non-EU citizens) about any potential breach of EU law. Commission can initiate infringement proceedings (letter of formal notice, reasoned opinion and then referral to the Court of Justice) •8 January 2021 – SoS issued an emergency authorisation for Syngenta’s Cruiser SB for use on sugar beet seeds • If the CJEU finds A Member State has breached EU law, it must comply with the judgment. If it fails to do so, the case can be referred back to the Court, which can •Plant Protection Products Regulations 2019 - Article 53 permits impose financial penalties, which can be either a lump sum and/or a daily payment derogation from the prohibition in Article 28 on placing items on the market in very limited circumstances • Two WWF Complaints • – Prohibitive expense - Commission v UK (Case C-530/11) TWTs Concerns: – – SACs and Harbour Porpoise - Commission v UK (Case C-669/16) Risk to bees and pollinators – Failure to assess risk of other environmental harms • How will the OEP complaints procedure and ER compare? •Climate Change and Biodiversity Emergency – importance of JR not diminished post Brexit 76

The Government’s plans for JR A New Law for Environmental Rights?

• Role of the HRA in effecting change • Conservative Manifesto commitment: “ … JR is available to protect the rights of the individuals against an overbearing • The three pillars of Aarhus state, while ensuring that it is not abused to conduct politics – Access to information by another means or to create needless delays” – Public participation in decision-making – Access to justice in environmental matters • 31 July 2020 – Independent Review of Administrative Law (IRAL) panel of experts chaired by Lord Faulks QC to • Removed from principles section of original Environment Bill examine data, evidence and caselaw to consider whether reform is justified • March 2020 - Welsh Government established Environmental Governance Stakeholder Task Group, which provided recommendations to Welsh Ministers • Panel’s Report submitted to Government early February 2021 • November 2020 - Minister advised Members of the Senedd that she had accepted the majority of the Task Group recommendations, including Rec • Reasons to be nervous? Consider JR reforms of 2013 (time 4, which states: “The Aarhus Convention rights (access to information, limits, TWM), CJCA 2015 (no significant difference) and public participation and access to justice) should be articulated in any 2017 (costs) – death by a thousand cuts forthcoming legislation for environmental governance”

Concluding remarks

• Who will maintain a comprehensive overview of environmental protections and how do we hold the line on statutory instruments?

• Increasing importance of JR in environmental and access to justice terms following the loss of the EU complaints mechanism and the CJEU in the UK

• How do we protect JR as the last mechanism to check unlawful behaviour?

• How effective will the OEP and ER be - and can ER be improved?

• What will be the relationship between JR and ER? 77

WHAT IS THE LAW THAT WILL APPLY TO EU NATIONALS AT THE END OF THE BREXIT TRANSITION PERIOD?

The purpose of this summary is to describe the law applicable to EU nationals1 residing in the UK, or who arrive in the UK, after the end of the Brexit transition period. The position is stated on the basis of the law (including domestic primary and secondary legislation as well as retained EU law) and the stated intentions of the Government as at 22 December 2020. This summary does not attempt to address every scenario and should not be taken to constitute legal advice: it is an attempt to summarise the position on the basis of the legislative provisions that have been adopted or proposed to date, and Government policy statements.

Immigration

(1) EU free movement rights will come to an end in the UK at the end of the transition period (referred to in the legislation as the ‘implementation period’ or 'IP’) at 11pm on 31 December 2020 (‘IP completion day’). 2 This is the effect of s.1 and Schedule 1 of the Immigration and Social Security Co-ordination Act 2020 (‘ISSCA’). (2) The ISSCA will revoke the Citizens’ Directive, the Immigration (European Economic Area) Regulations 2016 (EEA Regulations) and all other retained EU law which is inconsistent with domestic immigration law (as it is amended from time to time, including by regulations made under the ISSCA).3

EEA nationals4 resident in the UK before IP completion day (3) Part 2 (Citizens’ rights) of the Withdrawal Agreement between the UK and the EU (‘WA’) protects the rights of EEA and Swiss nationals, their family members and certain other people with derivative rights of residence who are in the UK before IP completion day. (4) Under Article 18 of the WA, the UK has opted to implement a ‘constitutive’ scheme, which requires EEA nationals to apply for residence rights, rather than a ‘declaratory’ scheme, under which residence rights would be granted automatically to those eligible. The UK has implemented this by introducing the EU Settlement Scheme under Appendix EU of the Immigration Rules. (5) EEA and Swiss nationals (and their family members) resident in the UK before IP completion day (11pm on 31 December 2020) are eligible to apply to the EU Settlement Scheme and to be granted a form of leave to remain in the UK. Individuals that have been continuously

1 Save where indicated otherwise, this includes nationals of EEA states and Switzerland, and the family members of EU, EEA and Swiss nationals, to the extent that they have or would have had a right of residence under EU law by reason of their relationship. 2 Section 39(1) EUWA 3 Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, Section 1 4 The EEA includes EU countries and also Iceland, Liechtenstein and Norway. 78

resident in the UK for five years are eligible to receive “settled status” which is indefinite leave to remain in the UK.5 Those granted settled status are able to leave the UK for up to five consecutive years without losing that status.6 (6) EEA and Swiss nationals who arrive before IP completion day and have been in the UK for less than five years are eligible for limited leave to remain in the UK for five years which is referred to as “pre-settled status”.7 They will then be eligible to apply for settled status once they have been continuously resident in the country for five years. Settled and pre-settled status both confer on holders the right to work in the UK and the right to rent in the UK. (7) Applications to the settled status scheme are free of charge. Applicants under the Settlement Scheme do not have to pay the immigration health surcharge.8 Successful applicants to the EU Settlement Scheme will be issued with a digital record of their status. (8) As an exception to the foregoing, the rights of residence of Irish citizens in the UK are unaffected by Brexit. Irish citizens enjoy a right of residence separate to UK membership of the EU. They can, but do not need to, apply for status under the EU Settlement Scheme.9 The ISSCA exempts Irish citizens from immigration control by amending the Immigration Act 1971. There are three exceptions to this right (deportation, exclusion from entry by the Secretary of State, and exclusion under certain instruments). However, the UK government has a long- standing policy of only deporting Irish citizens in exceptional circumstances, and the other powers are not regularly used.10 Non-European family members of Irish citizens are able to apply to the EU Settlement Scheme whether or not the Irish citizen has applied. However, in practice, it may be helpful to the prospects of the family member’s application if the Irish citizen also applies. (9) Eligible individuals who are resident in the UK before IP completion day will have until 30 June 2021 to apply to the Settlement Scheme, and continue to have free movement rights until that date, or until an application to the EUSS made before 30 June 2021 has been decided (whichever is later). This is known as the ‘grace period’.11 During the grace period, EEA

5 The criteria for the grant of “settled status” are set out in Appendix EU of the Immigration Rules and associated guidance and are not addressed in further detail here. 6 The Immigration (European Economic Area Nationals) (EU Exit) Order 2019, Part 2, Chapter 2, Article 8. 7 Immigration Rules: Appendix EU. 8 The Immigration (European Economic Area Nationals) (EU Exit) Order 2019, Part 4. 9 EU Settlement Scheme caseworker guidance, updated 24 August 2020 10 Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, Section 2(1)-(5) 11 The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 79

nationals who arrived in the UK before IP completion day should be able to use their EU passport to prove their right to work and rent.12 (10) Applicants will be able to make a late application to the settlement scheme after 30 June 2021 if they have “reasonable grounds” for missing the deadline.13 The Government has indicated that it intends to publish non-exhaustive guidance as to what would constitute a “reasonable ground” for failing to apply by the deadline in early 2021 (examples are expected to include children in care and people who were unable to apply due to being unwell).14 However, such individuals will not have a right to reside in the UK between 1 July 2021 and the date on which their late application is determined. (11) Applicants to the EUSS have a right to administrative review in relation to the outcome of their application.15 This is a reconsideration of the application by a separate team within the Home Office. The fee for administrative review is £80, which is refundable if the decision is changed as a result of case-worker error. Applicants who submitted an application to the settlement scheme on or after exit day (31 January 2020) have a right to appeal the decision to the First-tier Tribunal.16 Where an applicant appeals the decision on their application to the First-tier Tribunal, the fee for the appeal is £80 without a hearing and £140 with a hearing. (12) For EEA nationals who are resident in the UK before 31 December 2020 (IP completion day), conduct that occurs before that date is to be considered in accordance with EU law (specifically, the Citizens’ Rights Directive) for the purposes of refusing entry to, and deportation from, the UK.17 This includes proportionality assessments, notification obligations, and procedural protection through rights to administrative and legal remedies. (13) However, all EEA nationals, regardless of how long they have spent in the UK, will be subject to lower deportation thresholds for any conduct committed after IP completion day. This means that, as is the case currently for non-EEA nationals, there will be a presumption of deportation where an EEA national has received a custodial sentence of 12 months or more for an offence committed after IP completion day.18 In addition, after IP completion day, the

12 See for example this Home Office guidance on right to work checks: https://www.gov.uk/guidance/employing-eu-citizens-in-the-uk 13 Statement of changes in Immigration Rules, Changes to Appendix EU, updated 22 October 2020 14 Home Affairs Committee, Oral evidence: Work of the Minister for Future Borders and Immigration, HC 919, Q55 15 Appendix AR (EU) of the Immigration Rules 16 See The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 and The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 17 Article 20 WA; Article 19 EEA EFTA Separation Agreement. 18 The UK Borders Act 2007, section 33 and 33(6B). 80

Home Office can exclude or deport any EEA national for post-IP completion day conduct where they deem it to be conducive to the public good.19 (14) EEA nationals and Swiss nationals and their family members who have been granted, or may be granted, leave under the EU Settlement Scheme are able to enter the United Kingdom from Ireland without being subject to the Control of Entry through Republic of Ireland Order 1972 which provides that people who enter the UK from Ireland who are outside the common travel area can only enter the UK for a defined period and without the right to work.20 In other words, the rights and status of EEA nationals are not affected by the fact that they enter the UK from Ireland. (15) EEA and Swiss nationals are able to apply to the settlement scheme from overseas if they are able to show they were previously resident in the UK in line with the eligibility requirements21 (including that they meet the requirements for having a ‘continuous qualifying period’ of residence, and, if applying for settled status, have not been absent for a period of more than 5 consecutive years since meeting the eligibility requirements). (16) Third country nationals who before IP completion day have a derivative right to reside in the UK under the EEA Regulations are also eligible to apply to the EUSS.

EEA nationals arriving in the UK after IP completion day

(1) EEA nationals will be able to enter the UK after IP completion day as they do now using their biometric passport or identity card until 1 October 2021.22 The UK will phase out the use of EEA national identity cards for travel to the UK. After IP completion day the UK government will also remove the blue EU customs channel for customs declarations.23 (2) EEA and Swiss nationals and their family members arriving after IP completion day will be subject to ordinary UK immigration rules, which are the same as those that apply to non-EEA nationals.24 For all activities other than short-term visits, EEA citizens will require a visa. From January 2021, new routes under the Points-Based System, as provided for by Part 6A of the Immigration Rules, will be available for the main economic migration routes, including working, studying, and setting up a business in the UK. The main conditions attached to the various routes include an English language requirement, an Immigration Health Surcharge,

19 The Immigration, Nationality and Asylum (EU Exit) Regulations 2019, regulation 43; The Immigration Act 1971, section 3 and 3(6A). 20 The Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019, regulation 2(4)(b). 21 The Immigration (European Economic Area Nationals) (EU Exit) Order 2019, Part 2, Chapter 2, Article 7. 22 “The Border with the European Union: Importing and Exporting Goods”, Annex G (Passengers), updated 8 October 2020 23 “The Border with the European Union: Importing and Exporting Goods”, updated 8 October 2020 24 “The UK's points-based immigration system: policy statement”, dated 19 February 2020 81

and a maintenance requirement. European Temporary Leave is no longer being implemented as an immigration status for EU nationals (as was proposed if there had been no transition period): those arriving after IP completion day are subject to same immigration rules as non- EEA nationals.25 (3) EEA citizens who arrive after IP completion day will no longer be able to show their EU passport or identity card in order to prove their right to rent and work.26 However, it is not clear in practice how employers and landlords will distinguish between EEA citizens who were resident in the UK before IP completion day, and therefore benefit from the grace period referred to above, and those who would not. (4) Non-EEA nationals holding EEA state residence cards issued by EU member states under articles 10 or 20 of the Free Movement Directive will not be able to use these cards to accompany or join their EEA citizen family members in the UK.27 These nationals will now require a visa to enter the United Kingdom. Non-EEA national family members accompanying or joining EEA citizens will need to cross the UK border with a valid passport and a valid UK- issued EEA family permit or biometric residence card or biometric residence permit. After IP completion day, EEA citizens and their family members will not ordinarily be admitted to the UK without such documentation.28 (5) Those British citizens moving to an EEA country after IP completion day, will no longer be able to return to the UK with a spouse or family member who is not a British or European citizen using the EU free movement rules.29 Where a UK national moves to an EEA Member State after IP completion day, their family members who resided there with them will only be able to return to the UK with them where they meet the UK’s family Immigration Rules. However, non-EEA nationals who settled in the UK with a British family member prior to IP completion day using EU free movement rules are eligible to apply to the Settlement Scheme. Furthermore UK nationals residing in an EEA Member State before IP completion day will continue to be able to return to the UK with their family members after IP completion day.30 In such a case, close family members who do not have UK citizenship or settled status may

25 See EU Citizen’s Rights after a No-Deal Brexit, November 2019. 26 “Recruiting people from outside the UK from 1 January 2021”, dated 24 September 2020 27The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, Regulation 6 28 The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, Regulation 6 29 Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, Section 1 and Schedule 1. 30 “Living in Europe”, updated 1 December 2020 82

move to the UK without applying for a visa until 29 March 2022, but other dependents must apply for a visa after IP completion day.31

Healthcare for EU/EEA citizens in the UK32

EEA nationals arriving in the UK before IP completion day

(1) EEA nationals who arrived in the UK before IP completion day will be “ordinarily resident” in the UK for the purposes of section 175 of the NHS Act 2006 until at least the deadline for applications to the EUSS on 30 June 2021 and therefore not subject to NHS charging. (2) Those who are granted settled status under the EUSS will continue to be “ordinarily resident”. In addition, although individuals with limited leave to remain in the UK are generally not treated as being “ordinarily resident” in the UK under section 39(1)(b) of the Immigration Act 2014, those with pre-settled status under the EUSS will be treated as “ordinarily resident” and will also not be subject to NHS charging. 33 (3) The regulations also provide that where an individual has reasonable grounds for missing the deadline and submits a late application, no NHS charges will be made from the date on which the late application is submitted to the date on which it is determined.34 Such individuals would, however, be subject to charging from 1 July 2021 until the date on which their late application is submitted. (4) There is a transitional provision that means that all EEA and Swiss citizens accessing healthcare in England using the European Health Insurance Card (“EHIC”), or the S1 European healthcare certificate or the A1 healthcare certificate or any equivalent document issued by the UK who arrived before IP completion day are entitled to continue using that document for free NHS healthcare until the end of their visit (regardless of whether their visit continues past IP completion day) but they will not be entitled to use the document the next time they arrive in the UK after IP completion day.35

31 Statement of changes in Immigration Rules, Changes to Appendix EU (Family Permit), 22 October 2020 32 Please note that because NHS charging policy is a devolved matter the National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) Regulations 2020 do not apply to NHS charging in Scotland, Northern Ireland or Wales. Wales has laid The National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019. Scotland is yet to lay equivalent regulations. 33 Regulation 20 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020. 34 The National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) Regulations 2020, regulation 7. 35 The National Health Service (Charges to Overseas Visitors) Regulations 2015, regulation 13, as amended by the 2020 Regulations, regulation 7. This is also the position in Wales, see The National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019. 83

(5) EEA and Swiss visitors who are students in England whose course of education or study began before IP completion day can access needs-arising treatment until the completion of their course of study.36 (6) Frontier workers who arrive before IP completion day are exempt from NHS charging.37 Frontier workers are defined as a person who works in the UK, resides in an EEA state or Switzerland and returns to their residence in that EEA state or Switzerland (as the case may be) at least once a week.

EEA nationals arriving in the UK after IP completion day

(1) EEA nationals who arrive after IP completion day (and who are not ordinarily resident) will be “overseas visitors” and subject to charges for using the NHS under the National Health Service (Charges to Overseas Visitors) Regulations 2015. They will be subject to the same charges as non-EEA nationals who are not ordinarily resident in the UK.38 This position could change in the future if the UK Government negotiates individual reciprocal healthcare agreements with other EEA countries.

Benefits claimants in the UK

EEA nationals resident in the UK before IP completion day

(1) The entitlement of EEA nationals to benefits depends on their immigration status. Those with settled status will have a “qualifying right to reside” for the purposes of the relevant social security legislation and will therefore have the same welfare rights as British citizens. (2) However, in order for an individual with pre-settled status to access many types of benefits and tax credits, as well as housing assistance, they require a right to reside in the UK, in addition to the limited leave to remain they obtain under pre-settled status.39 This exclusion

36 Explanatory Memorandum to National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) Regulations 2020 at paragraph 7.11. It appears that full time students in Wales and Scotland will also remain entitled to free NHS hospital treatment after exit day but no SIs expressly addressing NHS charging for EEA students after exit day have been laid in Scotland or Wales. See also, NHS, ‘Moving to England from EU countries or Norway, Iceland, Liechtenstein or Switzerland’ 37 Explanatory Memorandum to National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) Regulations 2020 at paragraph 7.10 This is also the position in Wales, see The National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) (EU Exit) Regulations 2019. 38 Explanatory Memorandum to National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) Regulations 2020 at paragraph 7.7 39 See The Child Benefit and Child Tax Credit (Amendment) (EU Exit) Regulations 2019, and The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) (EU Exit) Regulations 2019 and The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019. The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 exclude access to the 84

of pre-settled status from a qualifying right to reside for benefits purposes was the subject of the Court of Appeal decision in R (Fratila & Tanase) v SSWP,40 handed down on 18 December 2020. The Court held that the requirement for those with pre-settled status to hold another EU qualifying right to reside in order to access benefits was unlawful direct discrimination on the grounds of nationality under EU law. As the decision is based on EU law, it appears that its application is technically limited to the period before IP completion day, after which EU law will cease to apply in the UK. However, it is arguable that the same conclusion should be reached in relation to the period after IP completion by virtue of the equal treatment provisions in Article 23 of the Withdrawal Agreement. It remains to be seen whether the decision in Fratila will be appealed to the Supreme Court, and if not how it will be implemented. (3) The government has laid regulations under ISSCA which provide that those with pre-settled status will be treated in the same way after IP completion day as they are now for the purposes of accessing benefits.41 This preserves the rule that anyone with pre-settled status or their family members requires an additional qualifying right to reside in order to access benefits; however, it also ensures that individuals with pre-settled status who are currently eligible for benefits continue to be so after IP completion day. Explicit provision has been made for the preservation of this status quo until at least the end of the grace period (30 June 2021), or the period of time until a pending application for status under the EUSS is decided, where an EEA national can demonstrate that they were lawfully residing in the UK and had a qualifying right to reside before IP completion day.42 Government correspondence states that the protection of entitlement to benefits under these regulations applies for as long as an EEA national holds pre-settled status.43

EEA nationals arriving in the UK after IP completion day (1) After IP completion day, EEA nationals arriving in the UK will only have access to right to reside benefits where they have been granted a form of limited/indefinite leave to enter/remain without a prohibition on recourse to public funds as a condition. Regulations made under the following benefis for those whose only right to reside in the UK is via pre-settled status: Income Support, Jobseeker’s Allowance, Housing Benefit, Employment and Support Allowance and Universal Credit.

40 R (Fratila & Tanase) v SSWP [2020] EWCA Civ 1741. 41 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, Part 7 and Schedule 4; The Immigration (Citizen’s Rights etc) (EU Exit) Regulations 2020, Part 3 42 The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, Part 3 43 See: Letter from Ministry of Housing, Communities & Local Government at para 12, dated 19 November 2020 but note, the letter relates specifically to eligibility for social housing and homelessness assistance 85

ISSCA align newly arriving EEA and non-EEA nationals by making them persons subject to immigration control when accessing benefits.44

Social Security Co-ordination

(1) If an EEA or Swiss national has been paying into the social security scheme of another EU member state and now lives in the UK those nationals will still be able to claim social security benefits in the UK after IP completion day. These benefits include sickness benefits, maternity benefits, disability benefits, unemployment benefits and the pension. This is the effect of s. 7A of EUWA 2018, which ensures that social security co-ordination rights continue for individuals covered by the WA.45 Regulations revoking EU social security co-ordination regulations have been made under s. 6 of the ISSCA; 46 however, the government has said that this does not affect individuals covered by the WA.47 (2) In determining the entitlement amount that an EU/EEA or Swiss national is entitled to claim in the UK, the government will add up all the social security contributions that individual has made in every EU/EEA member state.48 (3) However after IP completion day, the UK will not have full information sharing between itself and particular EU member states as each information sharing agreement will need to be negotiated on a one to one basis with each individual EU member state. EEA nationals in the UK may be required to pay National Insurance Contributions (‘NICs’) in the UK, under UK legislation, as well as in an EU member state if that country’s legislation continues to apply to them.49 (4) The UK no longer has to make provisional payments to an EU/EEA national in the UK while a dispute is being resolved between the UK and EU member states relating to who has the obligations to make social security payments to the claimant.50

44 The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, Part 2 45 European Union (Withdrawal) Act 2018, Section 7A 46 The Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020 47 Explanatory Memorandum to The Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020, at paragraph 7.9 48 Explanatory Memorandum to The Social Security Coordination Regulation (EC) No 883/2004. EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2019. 49 Explanatory Memorandum to The Social Security Coordination Regulation (EC) No 883/2004. EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2019 at paragraph 7.11. 50 Explanatory Memorandum to The Social Security Coordination Regulation (EC) No 883/2004. EEA Agreement and Swiss Agreement) (Amendment) (EU Exit) Regulations 2019 at paragraph 7.11. 86

(5) Where EEA nationals who have spent a period of time residing and working in the EU, but who now live in the UK, make a claim for a UK benefit or state pension , the UK government can ask the claimant to provide information within a reasonable period of time showing that they paid into another country’s social security regime in order to determine the amount they are entitled to. This is a transferring of the burden to the individual to provide the information to the state. However, in the event that the Government decides that the information provided by the claimant is not proof that they paid into another country’s social security scheme, the UK will no longer have to compensate the national for payments made into another EEA country’s social security scheme 51 (6) The EU has Association Agreements with some third countries which means that workers from those countries receive equal treatment for social security provision in the UK. The Social Security, Child Benefit and Child Tax Credit (Amendment) (EU Exit) Regulations 2019 ensure that where the UK Government has negotiated a new agreement with those non-EU countries those nationals will still be able to access child benefit, child tax credit, and certain disability and carer’s benefits (listed at paragraphs 7.2 to 7.10 of the explanatory note) including Zambrano carers.52 (7) As of yet, the Government remains in discussion with EEA countries about social security arrangements that will apply between the UK and those countries after IP completion day. Draft regulations have been laid revoking the EU Social Security Co-ordination Regulations to create space for new agreements. In its proposed approach to negotiations, the government has stated that any agreement reached should resemble those that the UK has with non-EEA countries.53 In the absence of an agreement, the rules applying to individuals moving between the UK and EU after IP completion day will be the same as those applying to non-EU countries.54

51 See Schedule 1 Article 1A of the 883/2004 Regulations and there is an equivalent provision in Art 2A of the 987/2009 Regulations (The UK domestic instruments). 52 Explanatory memorandum to The Social Security, Child Benefit and Child Tax Credit (Amendment) (EU Exit) Regulations 2019 53 “The Future Relationship with the EU; The UK’s Approach to Negotiations”, Part 2, at paragraph 17, updated 19 May 2020 54 Explanatory Memorandum to The Social Security Co-ordination (Revocation of Retained Direct EU Legislation and Related Amendments) (EU Exit) Regulations 2020 at paragraph 7.4 87

Self-employment and services (1) After IP completion day EU, EEA, Swiss and Turkish nationals will no longer have the right to be self-employed in the UK, to own and manage a company in the UK or provide services in the UK on the same basis as UK nationals.55 (2) EU, EEA, Swiss and Turkish nationals will no longer be able to bring a claim of discrimination on the basis of nationality in relation to their rights to set up companies, be self-employed or to provide services in the UK.56 The Government said in relation to The Freedom Of Establishment And Free Movement Of Services (EU Exit) Regulations 2019, that “The regulations do not impose any new restrictions on EU, EEA, EFTA, Swiss or Turkish nationals or on EU, EEA, EFTA, Swiss or Turkish-based businesses at the point at which we exit the EU, and we do not expect disapplying these rights to have a direct impact on the ability of EU, EEA, EFTA, Swiss or Turkish nationals to establish or provide services.”57

Education (1) EEA and Swiss nationals continue to be eligible for home fee status and student finance support for courses which started in the 2019/20 academic year on the same basis as before IP completion day.58 The Government has confirmed that this will remain the case for the duration of their courses. However, for courses starting in autumn 2021, EEA and Swiss nationals will no longer be eligible for home fee status and student finance support.59

Independent Monitoring Authority (1) In accordance with Article 159 of the Withdrawal Agreement, the UK Government has established the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA).60 (2) From 1 January 2021, the will IMA have powers, equivalent to those the European Commission has as “guardian of the Treaties”, to conduct inquiries on its own initiative concerning alleged breaches by the UK Government of its obligations as to citizens’ rights under the Withdrawal

55 Explanatory memorandum to The Freedom Of Establishment And Free Movement Of Services (EU Exit) Regulations 2019 at paragraphs 2.1 and 2.5 to 2.7 and The Freedom Of Establishment And Free Movement Of Services (EU Exit) Regulations 2019. These Regulations were made on 28 October 2019. 56 Explanatory memorandum to The Freedom Of Establishment And Free Movement Of Services (EU Exit) Regulations 2019 at paragraphs 2.8 to 2.9 and The Freedom Of Establishment And Free Movement Of Services (EU Exit) Regulations 2019. 57 https://publiclawproject.org.uk/latest/plp-update-on-freedom-of-establishment-regulation/ 58 Explanatory Memorandum to The Education (Student fees, awards and support) (Amendment) (EU Exit) Regulations 2019 at paragraphs 7.1-7.3. 59 Statement by Michelle Donelan, Minister of State for Universities, 23 June 2020. 60 Section 15 and Schedule 2, European Union (Withdrawal Agreement) Act 2020. 88

Agreement and to receive complaints from EEA citizens and their family members for the purposes of conducting such inquiries. (3) The IMA will also have the power to bring judicial review proceedings, or to intervene in any legal proceedings, where it considers it appropriate in order to promote the adequate and effective implementation of the UK’s obligations as to citizens’ rights.

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the3million submission to Independent Monitoring Authority February 2021

Who is the3million? the3million is the leading grassroots organisation representing EU citizens in the UK, formed in 2016 after the Brexit referendum. Our work ranges from monitoring the implementation of the Withdrawal Agreement implementation, advocating for the integration of EU citizens through a pathway to citizenship, informing people of their rights, and giving EU citizens a voice in British society to change the narrative on migration.

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Contents

1 Introduction ...... 3 2 The Withdrawal Agreement and the Independent Monitoring Authority - A Brief History ...... 5 3 Those who have not applied to the EU Settlement Scheme ...... 7 3.1 Introduction ...... 7 3.2 Those who do not know they need to apply ...... 8 3.3 Those who know they need to apply but are struggling to do so ...... 12 3.4 Those who want to apply but are not allowed to ...... 14 4 Those who have applied but are awaiting grant of status ...... 19 4.1 Long waiting times, together with choice of legislation, leaves many without legal protection ...... 19 4.2 Breach of Article 18(3) of the Withdrawal Agreement ...... 21 4.3 The Hostile Environment and those awaiting grant of status ...... 22 4.4 Late applications (after 1 July 2021) ...... 23 5 Those who have been granted (pre-) settled status ...... 27 5.1 Introduction ...... 27 5.2 Those who have been granted pre-settled status ...... 28 5.3 Those who have been granted settled status ...... 31 5.4 Applying for National Insurance numbers (NINo) ...... 32 5.5 Lack of physical proof of EU Settlement Scheme status ...... 34 Appendix A: Contraventions of Withdrawal Agreement 18(3) ...... 41 A.1 - Effect of Rules/Regulations on citizens exercising treaty rights on 31 Dec 2020 ...... 41 A.2 - Effect of Rules/Regulations on citizens not exercising treaty rights on 31 Dec 2020 ...... 42 Appendix B - Comprehensive Sickness Insurance (CSI) ...... 43 Appendix C – Consolidated list of recommendations ...... 44

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1 Introduction

Brexit and Citizens’ Rights At 11:00 pm on 31 December 2020 the transition period came to an end and the Withdrawal Agreement activated. The rights protected in that agreement, and how millions of EU citizens and their family members acquire and enforce them, will become the subject of great scrutiny and analysis for the months and years ahead. It will define the success or failure of Brexit. To ensure that those rights are protected and respected by public bodies, the Independent Monitoring Authority (‘IMA’) was established. To assist the IMA with its function, we have put together an initial report reflecting on the issues we believe are currently pertinent to the respect and protection of citizens’ rights focusing on Part Two Title II (the Citizens’ Rights part) of the Withdrawal Agreement. This document is not exhaustive and is the beginning of an ongoing inquiry and analysis function of the3million. We are a small organisation with finite resources and the issues identified are those, based on analysis conducted by the team, that we believe warrant further investigation and action. Further, careful analysis is needed of other areas not focused on here, in particular Title III of Part Two of the Withdrawal Agreement (the social security coordination elements of the agreement). This report will pay particular attention to the UK’s application process to register millions of EU citizens under article 18(1) of the Withdrawal Agreement - the EU Settlement Scheme, and the means provided for EU citizens to demonstrate their rights under that Scheme. It will also focus on the consequences of decision making by the government when it comes to accessing and enforcing rights in other areas such as housing, social welfare and the NHS. Report structure We set out below, from our perspective, the key issues facing EU citizens (throughout this document we use EU citizens as shorthand to include all EEA and Swiss citizens, and their family members) who have made their home in the UK - arriving before 31 December 2020. Please note, we have focused predominantly on the issue within England, Wales and Scotland. Any issues on the island of Ireland and Northern Island, in particular, frontier working, we have not had the capacity to consider and reflect here. This also applies to Gibraltar. We look forward to hearing from and working with colleagues with expertise in this area to bring their concerns to the IMA’s attention. The document divides these issues into three sections, to cover the following groups of citizens: 1) Those who have not applied to the EU Settlement Scheme 2) Those who have applied but are awaiting grant of status 3) Those who have been granted either pre-settled or settled status. Within the first two of these sections we further subdivide into issues arising during the grace period (up to 30 June 2021), and issues following the EU Settlement Scheme deadline (from 1 July 2021), since the legal landscape, and consequences for citizens in their day-to-day life, changes considerably at that point. 92

Within the last of these sections, we look at issues common to those with either status, but also at those specific to either pre-settled or settled status. Much of this document is based on principle - examination of the legal implementation of the Withdrawal Agreement - but we supplement with anonymised accounts of issues that have been reported to us. A brief note on methodology Our analysis and feedback in this report are based on a number of sources as well as our own expertise. The core team has included academics specialising in EU law as well as practitioners in the relevant field of free movement and immigration. They have been closely involved with the negotiations and development of the Withdrawal Agreement and its implementation. Crucially, the team has developed a unique perspective by being directly affected by the UK’s decision to leave the EU - most of us are EU citizens living in the UK. This report is not intended as an academic piece - it is not conclusive. We have attempted to map trends and identify pitfalls within the UK’s current implementation, in particular legal shortcomings. The key sources of information are: 1. Feedback from the public via questions, requests for information, reporting tools, surveys, and various social media forums - including the3million’s closed forum which has 44,5k members; 2. Intelligence from various civil society organisations and advice services working with EU citizens; 3. Intelligence from experts and representatives of industry / business across multiple sectors; 4. Research based on papers in the public domain and polling. The report's fundamental purpose is to begin to bring together the concerns and shortcomings of the UK’s implementation of the Withdrawal Agreement. We hope other organisations will find its contents helpful in their own work and we welcome feedback and contributions from others. This is the beginning of a very important discussion. Most importantly, we hope that the IMA will use these insights and recommendations to inform their own research and recommendations to the Government.

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2 The Withdrawal Agreement and the Independent Monitoring Authority - A Brief History

Freedom of movement is a cornerstone and fundamental principle of the European Union. Whilst the UK was a member, millions of EU citizens moved to the UK to live, work or study. The protection of these citizens was a central commitment of the UK government and the EU from the outset of the negotiations. The Withdrawal Agreement negotiated and agreed between the UK and EU guarantees most rights for these citizens and their family members.1 The Withdrawal Agreement protects those EU citizens lawfully residing in the UK at the end of the transition period. The transition period ended at 11pm on 31 December 2020. It also protects the family members of those EU citizens as defined by EU law. This includes spouses, (grand) children, and (grand)parents. Those in scope have their rights to residence, equal treatment, non-discrimination and various other rights protected. Like a lot of EU law, citizens can rely on their rights in the agreement directly. Meaning that the agreement itself has supremacy over the laws that implement it where there are inconsistencies. Rights of those in scope of the agreement are guaranteed by one of two processes: either a declaratory framework (article 18(4)) or a constitutive one (article 18(1)). The UK has chosen to adopt the latter. The constitutive model agreed between the UK and EU essentially requires those people in scope to apply for a new status with the UK authorities to be able to exercise their rights. Articles 18(1), (2) and (3) set out various procedural safeguards to protect those who are applying. Those EU citizens in scope of the EUSS have until the end of June 2021 to apply to the scheme.2 The UK’s application process is implemented by means of the EU Settlement Scheme (‘EUSS’)3. EU citizens and their family members complete an application with the scheme and, should their application be successful, they will receive an immigration status, either settled status (conferring permanent residence rights) or pre-settled status (a time-limited residence status for 5 years). The differences between these statuses and the serious consequences of failing to apply to the scheme are expanded on below. Proof of this status is accessed via a UK Government website and is digital-only for EU citizens. Non-EU family members are currently able to obtain a biometric residence card as a physical proof of their EUSS status. The implementation of the citizens’ rights part of the Withdrawal Agreement is overseen by the IMA. The body is born from article 159 of the Withdrawal Agreement giving it powers equivalent to that of the European Commission along with the right to bring legal proceedings. Schedule 2 of the European Union (Withdrawal

1 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AC%3A2019%3A384I%3ATOC see also guidance note issued by the European Commission https://ec.europa.eu/info/publications/guidance-note-citizens-rights_en 2 There are exceptions including certain family members and those with reasonable grounds to applying late. 3 an overview can be found here: https://www.gov.uk/settled-status-eu-citizens-families. The Immigration Rules within Appendix EU and Appendix EU (Family Permit) set out how a person acquires their status here: https://www.gov.uk/guidance/immigration-rules and are accompanied by various guidance: https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance 94

Agreement) Act 2020 sets out the scope of its powers and other necessities. At the time of preparing this report the IMA had yet to produce its guidance4 on how it will exercise its functions. We look forward to its publication. EU citizens can continue to rely on their rights in UK courts. Where appropriate UK courts can ask preliminary questions to the Court of Justice of the EU for a period of eight years starting on 31 December 2020. For questions related to the application for status via the EUSS, that eight-year period started from 30 March 2019. The IMA and the European Commission inform each other annually through the Joint Committee established by the Withdrawal Agreement of the measures taken to implement and enforce rights under the agreement. The Joint Committee, which we understand intends to meet bi-monthly, is a space in which parties can attempt to resolve differences and where appropriate make necessary changes. The significance of the IMA cannot be understated in the context of protecting citizens’ rights. It is therefore important to assist it in identifying and pursuing issues of Withdrawal Agreement incompatibility and breaches of rights.

4 as mandated by paragraph 32 of schedule 2 of the EU(WA)Act 2020 95

3 Those who have not applied to the EU Settlement Scheme

3.1 Introduction The target is unknown A crucial point about EU citizens living in the UK is that they were never required to perform any registration formalities when coming to the UK, therefore as stated in a Migration Observatory report “essentially this means that the total number of people expected to apply to EUSS is not known.”5 Original estimates of the number of EU citizens in the UK were just over three million. By the end of November 2020, over four and a quarter million grants of status6 under the EU Settlement Scheme had been made. It will therefore not be possible to know, on 30 June 2021 or indeed at any other deadline, whether everyone who is eligible for status, has applied for that status. What is known however, is that no scheme worldwide has ever reached 100% of its intended audience by its first deadline. Even the most successful scheme in the UK, the transition from analogue to digital TV, had 97% take-up7 by the deadline. This is an exceptionally high success rate, and was of course partly due to the fact that there was an in-built way of reaching the target audience of TV viewers - by using TV ads. Even if the EU Settlement Scheme is as successful as this, this would mean that well over 100,000 individuals who have made the UK their home and are eligible to status under the scheme, would be left without lawful status in the UK from July this year. Consequences for those who are missed The consequences for those without status under the EU Settlement Scheme are already being felt. Although the Government websites for right to work and right to rent specify that employers and landlords should not require proof of status until after July 2021, in practice this is not happening. We have seen many job advertisements requiring (pre-)settled status in order to be eligible for applying. There is much confusion over eligibility for services during the grace period. We have seen increased reports of EU citizens being denied access to loans/mortgages and other services / opportunities for not having pre or settled status. It appears that as part of any risk assessment by private actors, a person’s legal status in the UK is a determining factor in what they can and cannot have access to. NHS charging regulations8 were introduced last December which do not protect a large cohort of those who are eligible for (pre-) settled status but have not yet been granted that status, namely those who were not exercising treaty rights on 31 December 2020. (Note, this could include people who have been resident in the UK for many years but were unaware they needed a private health insurance to comply with the EEA regulations, despite never needing that insurance to access the NHS). We have already been informed of an EU

5 Migration Observatory report ‘Unsettled Status - 2020: Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit’ https://migrationobservatory.ox.ac.uk/resources/reports/unsettled-status-2020/

6 https://www.gov.uk/government/collections/eu-settlement-scheme-statistics 7 Page 9, https://www.thinknpc.org/wp-content/uploads/2019/03/What-level-of-coverage-should-we-expect-A-review-of- similar-schemes.pdf 8 https://www.legislation.gov.uk/uksi/2020/1423/made 96

citizen facing charges for NHS secondary treatment due to not having (pre-) settled status. The act of applying for status during the grace period will not protect this cohort, see Sections 4.1, 4.2 and Appendix A.2. The consequences for those without status after 1 July 2021 will be serious. People will be faced with the full force of the Government’s hostile environment policy, including potential loss of employment, loss of their homes, loss of entitlement to NHS treatment and far more. Equally, the risks facing particularly marginalised groups of EU citizens will see a risk to detention and removal from the UK if they do not have the required immigration status to remain in the UK beyond 1 July 2021. Whilst the Government have levelled assurances that this will not be the case, the legal infrastructure is unchanged and there are no clear legal or policy frameworks to ensure that eligible citizens for the EU Settlement Scheme are identified and supported towards status. Given the risks to those who do not apply and the potential significant numbers of those in this situation, it is key to understanding these groups in the context of the UK’s commitments under the Withdrawal Agreement. Those who have not applied to the EU Settlement Scheme can be divided into different groups: ● those who do not know they need to apply ● those who know they need to apply but are struggling to do so ● those who want to apply but are not allowed to Each group is considered in turn below.

3.2 Those who do not know they need to apply The Government’s information campaigns so far have included online, adverts on bus-stops and other media. Although we have asked in meetings with ministers and the user groups we attend, we do not have any information on the strategy underlying future communication campaigns. An FOI request9 on the outreach strategy was refused. As a report by Migration Observatory10, some of those who may not know they need to apply include:

• Children of EU citizens • Very long term residents • People with permanent residence status • People who are expecting to return home • People who think they are not eligible or fear being rejected Some of our concerns are highlighted below, followed by our recommendations.

9 https://www.whatdotheyknow.com/request/615722 10 https://migrationobservatory.ox.ac.uk/resources/reports/unsettled-status-which-eu-citizens-are-at-risk-of-failing-to- secure-their-rights-after-brexit/ 97

• Grant-funded organisations Grant-funded organisations11 (‘GFO’) to help vulnerable groups in applying to the EU Settlement Scheme have struggled during the COVID-19 pandemic to reach as many people as they may otherwise have been able to, due to lack of face-to-face events and meetings. Their current funding covers the period up to 31 March 2021, and it is not known whether this will be extended. Ironically, because of the construction of the grace period (during which time employers and landlords are directed not to check for (pre-)settled status), it is highly likely that large numbers of citizens may only find out that they need to apply for a new status once it is potentially too late - after the expiry of the 30 June 2021 deadline. At this point the need for GFOs to help vulnerable citizens will be greater than ever, not only to help with applications to the EU Settlement Scheme but also to navigate the extra hurdle of proving ‘reasonable grounds’ for a late application and the various hostile environment infrastructure they encounter whilst they await a decision.

• Reasonable grounds for late applications The Home Office has promised guidance as to a non-exhaustive list of what constitutes ‘reasonable grounds’ in early 2021. We are particularly concerned for persons whose grounds for not applying are simply ‘I did not know I needed to’. As such, much more needs to be done to ensure all eligible citizens know of their need to apply.

• More and better outreach needed The Government has sought to increase media and awareness of issues via television and online media but it has also written to every household previously in relation to significant events - COVID 19 and Brexit. Given the seriousness of consequences facing those EU citizens who do not apply, the Government should write a letter to every single household in the UK (since there is no way of reaching the targeted audience of only EU citizens). This letter should be addressed not only to EU citizens, but also to family, friends, neighbours and colleagues - to ask them to look out for their EU citizen contacts and make sure that they know they need to apply to be able to stay and keep their rights in the UK. It should also explain to people who are landlords or employers that during the first six months of 2021 they do not need to check for people to have settled or pre-settled status, and that having an EU passport or national identity card is enough to be allowed to rent or work. As an example that this can be done very cost-effectively, Brighton and Hove sent a postcard12 to every single household in their area, in combination with an engagement programme with community groups and local businesses. But this should not be the end of the outreach work required. The Government needs to actively research and target groups it has concerns about and provide funding and support where appropriate. It

11 https://www.gov.uk/government/publications/eu-settlement-scheme-community-support-for-vulnerable-citizens

12 https://twitter.com/brightonhovecc/status/1323958281044430848?s=21 98

has recently researched the numbers of children in care that need to apply13. The survey found less than 50% have applied. As such, this has encouraged the Government to drive support and focus on these groups. However, we have concerns about this research. Fundamental to this exercise’s success is identifying the children who need to apply. A clear method of who is eligible and how they are identified is central. Recent correspondence between the Home Office and the Home Affairs Select Committee (HASC) queried14 how Local Authorities identified looked-after children eligible for the EUSS. The Government says that they had received no complaints from Local Authorities in identifying these children. However, it is not clear how the Government established whether Local Authorities were correctly identifying eligible children. It is possible Local Authorities are not undertaking their assessment correctly and missing out groups of eligible children. Whilst it appears training on the EUSS has been provided to Local Authorities, there is no indication on what analysis was undertaken on the methodology adopted in identifying eligible children. The questionnaires sent to Local Authorities included in the correspondence to HASC do not include any questions about how they undertook an assessment of which children were eligible to apply to the EUSS. This is a significant shortcoming. It is vital that any opportunity to identify with some precision those who must apply to the EUSS is done correctly. We would recommend the Government quickly work with Local Authorities to establish their methodology of identifying those eligible to the scheme. This project and approach, once improved, needs to be expanded to other areas of concern quickly. By working in partnership with local authorities and regional groups, we can form a better picture of who is still to apply and engage with them.

• More time is needed COVID-19 has had a huge negative impact on communications and the ability to advise and support communities . We should therefore consider whether the grace period should be extended. GFOs need more time to restart their programmes when the COVID-19 restrictions are reduced. Similarly, there is a need for further analysis and research on the numbers and groups to be identified further. To highlight just two examples of areas where more time is needed: - Migrants Organise have brought a legal challenge15 against the Home Office over their concern for EEA citizens with mental health issues who may not have the capacity to engage with the EU Settlement Scheme without assistance, and indeed may not even know they need to apply to the Scheme in order to keep their rights to continue living in the UK.

13 https://www.gov.uk/government/publications/eu-settlement-scheme-home-office-looked-after-children-and-care- leavers-survey-2020 14 https://committees.parliament.uk/publications/4264/documents/43356/default/ 15 https://www.migrantsorganise.org/?p=29968 99

- JCWI have launched legal action16 against the Home Office on behalf of vulnerable groups with protected characteristics. They argue that the Scheme’s Policy Equality Statement17 (finally published in late November 2020 after extreme delays) does not consider that for example older people, people with certain disabilities like mental capacity issues, or Roma people are less likely to know about the Scheme, and does not propose any measures to address this fact. • Voluntary Return Scheme We are also concerned about vulnerable people being fully informed of their rights in the context of the government’s Voluntary Return Scheme (VRS)18. As a consequence of the end of the transition period, EU citizens have now been added to this scheme19, where financial support is offered as an encouragement to people who are in the UK illegally to return to their country of origin. This is particularly problematic in the context of a cohort of people who are considered by the Government to be in the UK illegally (those not strictly exercising treaty rights on 31 December 2020), yet are eligible to apply for status under the EU Settlement Scheme thereby ‘regularising’ their status. This cohort includes on the one hand students and self-sufficient people who did not know about the little-known ‘Comprehensive Sickness Insurance’ requirement20, and on the other hand vulnerable citizens who are not economically active. The VRS we understand contains no guidance to thoroughly check whether the citizens it deals with are entitled to obtain lawful status in the UK, and its mindset is rooted in trying to achieve and incentivise self-deportation of these citizens. We are therefore extremely concerned that the VRS will be mis-used to persuade EU citizens to leave the UK without making them aware of their rights under the EUSS.

16 https://www.jcwi.org.uk/stop-the-home-office-criminalising-eu-citizens-after-brexit 17 https://www.gov.uk/government/publications/eu-settlement-scheme-policy-equality-statement 18 https://www.gov.uk/return-home-voluntarily 19 https://www.theguardian.com/politics/2021/jan/26/eu-citizens-offered-financial-incentives-to-leave-uk 20 See Appendix B in this document 100

Those who do not know they need to apply - recommendations: ● The Government should be required to publish the guidance on ‘reasonable grounds’ as soon as possible ● Funding to organisations helping vulnerable groups apply to the EU Settlement Scheme should be extended to well beyond the 30 June 2021 deadline ● The communication efforts to those who need to apply to the scheme need to be ramped up considerably. Alongside other strategies of active research and targeting, the Government should be required to write a letter to every single household in the UK ● Given that GFOs and various other organisations assisting people with applications are unable to perform to full capacity, the lack of guidance in key areas, the continuing delay in understanding the numbers / types of groups who are still to apply, and the reasons highlighted in this chapter, the grace period should be extended to accommodate ● Ensure the Voluntary Return Scheme and other Border Force / Enforcement Home Office framework includes stringent safeguards to check that citizens are fully informed of their potential rights to apply to the EU Settlement Scheme

3.3 Those who know they need to apply but are struggling to do so There are many who are struggling to navigate the process of applying. This is as a result of many factors coming together – not least COVID-19 and its implications on identity documents. ● Identity scanning locations People who do not have the ability or technology to use the scanning ‘EU Exit: ID Document Check’ app, need to go to an identity scanning location instead. Many identity scanning locations21 are closed, are only offering scanning on appointment, or have restricted opening hours. People who are isolating may not be in a position to go to a scanning location, or are putting it off until lockdown restrictions are eased – at an unknown date. ● Problems renewing identity documents People who never travel and have expired passports or identity cards, are struggling to get appointments at their embassies to renew those documents. The higher demand for these renewals coupled with COVID-19 restrictions, in addition to the arguments raised in the previous point, mean that many may not receive an up-to-date identity document in time. It is possible to apply to the scheme with expired identity documentation, by means of a paper application, but vulnerable citizens will struggle to do so without help. It is not possible to simply download a paper application from the government website. Instead, people have to ring the EU Settlement Resolution Centre (frequently very

21 https://www.gov.uk/government/publications/eu-settlement-scheme-id-document-scanner-locations/locations-offering- chip-checker-services 101

difficult to get through; we have been contacted by several charity workers to report a up to 90 minutes waiting time to get through a case worker) and ask for permission to submit a paper application. We have heard of inconsistencies between case workers agreeing to do so. ● Complexity of immigration rules In addition to the barriers set out above, there is one causing considerable concern amongst practitioners and those who work with EU citizens. The immigration rules governing how EU citizens and their family members qualify for status via the EUSS are overly complex. Indeed, we have had repeated reports to us from those leading in this area that they are impossible to navigate owing to their complexity and incoherence. To see an example of this complexity, consider the definition of ‘relevant EEA citizen (where the date of application under this Appendix is on or after 1 July 2021)’ under Appendix EU (Family Permit)22. This will apply to anyone wishing to join their family member (already resident in the UK) after 1 July - impossible to understand for a lay citizen, and extremely challenging even for experienced immigration advisers / lawyers. Given these challenges, even for experts in UK immigration law, it raises doubts as to how the scheme is compliant with article 18(1)(e) which requires: “the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided” We ask that the IMA consider carefully the UK immigration rules and whether they are sufficiently coherent to discharge the commitments under 18(1)(e) of the Withdrawal Agreement. ● Absence calculations The method to calculate absences is very complex. Whereas the EU recommends simply taking each year from the first day of continuous residence in the host country, and checking total absences within each year, the UK uses a method of ‘rolling absences’. So if someone’s five year period of continuous residence starts from say 10 August 2015, then with the EU’s method one looks at the years 10 August 2015 - 9 August 2016, 10 August 2016 - 9 August 2017 and so on, and checks that absences in each of those years did not exceed 180 days. However, with the UK’s method one must examine the year 10 August 2015 - 9 August 2016, 11 August 2015 - 10 August 2016, 12 August 2015 - 11 August 2016 and so on. This is so complex that one requires calculation tools provided by experts to work out. The EU Settlement Scheme requires people to self-declare that their absence did not exceed the allowable limits. It is therefore highly likely that applicants may mistakenly say that their absences did not exceed the limit when in fact they did (consider for example a 3 month absence Aug-Oct in one year, and a 4 month absence Apr-July the following year). Legally these applicants will have inadvertently breached suitability requirements: “whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted”. A false declaration can be used to deny or remove someone’s status. ● Organisations and COVID-restrictions Equally, as set out above, organisations are unable to fully assist applicants owing to the COVID-19

22 https://www.gov.uk/guidance/immigration-rules/appendix-eu-family-permit 102

restrictions. Whilst some organisations have attempted to provide services via telephone, practitioners tell us this is ineffective, particularly for those most vulnerable and marginalised. Some applications are being delayed inevitably because the applicants are unable to access the level of assistance they require. It is worth noting that the Government retendered GFO contracts last year with the purpose of funding organisations to target and assist vulnerable EU citizens. Whilst those we have spoken with are doing what they can in these difficult times, there are limits and they need more time to expand their services that have been restricted by the pandemic.

Those who know they need to apply but are struggling to do so - recommendations: ● extend the 30 June 2021 deadline for at least six to twelve months to allow for COVID-19 restrictions to lessen and GFO/advice agencies to restart their vital services assisting people with applications ● it should be easier to obtain paper applications where people cannot get a renewed passport or identity card in time (paper applications should be freely available rather than only on agreement from an EU Settlement Resolution Centre caseworker), and it should be easier for voluntary organisations to help people complete paper applications (currently OISC EUSS Level 1 advisors are not able to do so where there is no valid identity document)23 ● Promote the simplification of Appendix EU and Appendix EU(FM) by the ‘Simplification of the Immigration Rules Review Committee’24. ● Both the rolling absence calculation and the suitability requirements should be updated to reduce complexity of the absence calculation and the risk of individuals being penalised for unknowingly doing something wrong.

3.4 Those who want to apply but are not allowed to Since UK immigration law does not allow the combination of legal status, there are several groups who face a problem of not being able to apply to the EU Settlement Scheme. ● Discretionary leave to remain EU citizens with ‘discretionary leave to remain’ (DLTR), such as victims of human trafficking. They are dependent on DLTR to be eligible for benefits and housing support; if they apply for pre-settled status they will have no recourse to public funds. On the other hand, DLTR is a much more difficult route to settlement. These citizens are entitled to rights under the EU Settlement Scheme, but are effectively prevented from applying since to do so would render them destitute without access to benefits through their DLTR status.

23 https://www.gov.uk/government/publications/guidance-for-euss-advisers 24 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/914010/24-03- 2020_-_Response_to_Law_Commission_for_publication.pdf 103

This issue would fall away if pre-settled status constituted a ‘right to reside’ for benefits purposes. The Court of Appeal recently ruled25 that this should be so under EU free movement legislation, but legislation has not yet been changed due to the possibility that the Government will appeal the judgement at the Supreme Court.

Article 23 of the Withdrawal Agreement states that all those granted rights under the Withdrawal Agreement are entitled to equal treatment. ● Lounes dual nationals Certain EU citizens who are also British (who have exercised their free movement rights in their host state, referred to as Lounes dual nationals) have rights under the Withdrawal Agreement, but are not able to apply to the EU Settlement Scheme.

Article 18 of the Withdrawal Agreement (WA) allows the UK and each EU Member State to choose whether to implement a constitutive (an application is needed for WA rights to be conferred) or a declaratory (people have rights by meeting the conditions, no application is necessary).

The EU Commission have confirmed to us26 that “host states with a constitutive scheme should allow dual EU/UK nationals, who fall within the personal scope of the Withdrawal Agreement, to apply for a new residence status under Article 18(1) of the Withdrawal Agreement”, and “while such dual EU/UK nationals will not need to rely on the Withdrawal Agreement for their residence rights in the host State, they are entitled to do so. In countries with constitutive schemes, they would need to apply by the end of the grace period to acquire their new residence status under the Withdrawal Agreement.”

It is important to realise that an Article 18(1) document confers rights under Title II of Part Two of the WA, and that these rights go beyond residence rights. Other rights that are necessary for dual nationals include family reunification rights, and rights under Title III of Part Two of the WA.

Lounes dual nationals should therefore be able to apply to the EU Settlement Scheme both in order to be assured of WA rights, and to have a simple way of evidencing those rights. (Currently, a family member of a Lounes dual national needs to go through a far more complex paper application to the EU Settlement Scheme than a family member of an EU national). We cannot see how the UK’s current approach preventing those entitled to having their rights conferred is compatible with its obligations under the Withdrawal Agreement. ● Joining family members There is a cohort of people wishing to exercise their family reunion rights under the Withdrawal Agreement who are prevented from doing so due to the way Appendix EU(FM) of the Immigration Rules is constructed.

25 Fratila and Tanase v SSWP & AIRE Centre (2020) https://cpag.org.uk/welfare-rights/legal-test-cases/current-test- cases/eu-pre-settled-status 26 In a reply to our comments on the Guidance Note: http://www.t3m.org.uk/t3m_BiE_WAGuidanceNote_Observations 104

Someone who is a family member (e.g. spouse, (grand)child, (grand)parent) of an EEA citizen in scope of the Withdrawal Agreement is entitled to join their family member at any time after the end of the transition period, 31 December 2020. For those applying to do so after 1 July 2021 however, the rules say27 that the sponsoring EEA citizen must have already been granted pre-settled or settled status.

Therefore, family reunion is not possible for a person who applies after 1 July 2021 and is a family member of someone: a. who has a pending application for pre-settled or settled status (as Section 4.1 will make clear, there are many people who wait for months or more for their application to be decided); or b. who has not yet submitted an application under the EU Settlement Scheme, but may turn out to have ‘reasonable grounds’ for submitting a late application Part a) would be, in our view, a breach of Article 18(3) of the Withdrawal Agreement, which states “Pending a final decision [...] all rights provided for [...] shall be deemed to apply to the applicant”, as the sponsoring EEA citizen is being denied their right to be joined by their family member while waiting for status to be granted.

Both parts a) and b) also appear to contravene Article 18(1)(m), which covers those joining their family members after the end of the transition period. The Article explains that the only supporting documents which may be required from the applicant (in addition to identity documents) are evidence of the relationship, and any proof of residence of the sponsoring EEA citizen. It cannot therefore be a requirement that the sponsoring citizen has submitted an application or indeed been granted status - only that the sponsoring citizen can demonstrate that they would be eligible for such status.

Children born after 1 July to someone with pending applications, or someone who has not yet applied, cannot submit valid applications under the existing rules. ● Family permit required before applying for EU Settlement Scheme status Additionally, any family member wishing to join their sponsor in the UK after 1 January 2021 must apply for an EUSS Family Permit before travelling to the UK. Once in the UK they can then apply for pre-settled status. If they make the mistake of travelling to the UK without an EUSS Family Permit, they will automatically enter the UK under a Visitor Visa. If they consequently apply for pre-settled status, their application will be rejected and they will be told to leave the UK, apply for the EUSS Family Permit, wait for a decision and then re-enter the UK.

This is unduly onerous, and we predict that a great many people will make this mistake completely innocently.

27 https://www.gov.uk/guidance/immigration-rules/appendix-eu-family-permit - definition of ‘relevant EEA citizen (where the date of application under this Appendix is on or after 1 July 2021’) 105

● Prevented from entering the UK before 31 December 2020 Finally, there is a cohort who were intending to apply but are now ineligible because they were unable to enter the UK before 31 December 2020 due to COVID-19 restrictions, or were not made aware of the implications of not doing so. This is most dramatically seen in the case of EU students who enrolled at UK institutions in the autumn of 2020. They will have done so in the clear expectation of travelling to the UK for the start of their course. However, since education providers have responded to the pandemic by moving teaching online, many students have opted for remote learning instead, due to COVID-19 restrictions in the country of residence and/or the UK. As the situation steadily worsened towards the end of 2020, anyone who was not informed of the far-reaching consequences of nevertheless making at least one trip to the UK before 31 December, would sensibly have decided to wait until the spring to travel.

The difference in their outcome based on that decision is profound: when they finally come to the UK they will need to apply for a visa instead costing £348 plus £470 a year in health charges to be able to use the NHS. They are restricted regarding the type of work they can do whilst studying and their future employment prospects are drastically reduced if they wish to continue living in the UK owing to the new immigration regime.

We consider this unfair considering that these students are participating every bit as much as their co- students who are in the UK - they are attending the same lectures, handing in the same assignments, participating in the same groups - in short as if they would physically be in the UK were it not for COVID- 19. Some have paid fees expecting to study in the UK relying on their freedom of movement rights. It has to be considered whether they have a legitimate expectation to study in the UK and to qualify for pre-settled status? 106

Those who want to apply but are not allowed to - recommendations: ● Change legislation such that pre-settled status constitutes a right to reside for benefits purposes ● Ensure every citizen who is within personal scope of the Withdrawal Agreement can obtain proof of their rights, include those with right of abode (British citizens) or those holding other immigration status (e.g. DLTR). ● Ensure Appendix EU(FM) Immigration Rules are changed such that after 1 July 2021, family members are able to apply for a Family Permit, join their family member in the UK and apply to the EU Settlement Scheme even if their sponsoring EEA citizen has not yet been granted (or has not submitted an application for) status under the EU Settlement Scheme. ● Consider whether it is possible to change the rules such that an in-country switch from visitor visa to pre- settled status is allowable, as Article 18(1)(e) states “the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided”. ● Create an exemption for EU students who started a course in, but did not travel to, the UK before 31 December 2020 where they can evidence that they would have taken up residence in the UK but for COVID-19.

Note about the Withdrawal Agreement and extending the EU Settlement Scheme deadline Whilst Article 18(1)(c) allows for extension of the application deadline for the UK and EU member states that have chosen a constitutive approach in the case of technical problems, the Withdrawal Agreement was created before Covid-19 overwhelmed the world. Out of the 13 member states who, like the UK, have elected a constitutive implementation of Article 18, the majority28 have already announced an extension to the June 2021 deadline. Whilst it is true that in some member states this is at least partly due to a later implementation start, Covid-19 has been cited as contributing to the decision to extend. In any case, the numbers of British citizens required to apply in each of these member states is substantially lower than the number of EU citizens in the UK, but also in most cases they are known already due to an existing requirement to register one’s residence.

28 https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/overview_ms_residence_rights.pdf 107

4 Those who have applied but are awaiting grant of status

4.1 Long waiting times, together with choice of legislation, leaves many without legal protection EUSS waiting times The website for estimated processing times29 for EU Settlement Scheme applications has not been updated since May 2020, at which time it was stated “It usually takes around 5 working days for complete applications to be processed if no further information is required, but it can take up to a month.” However, an FOI request30 (submitted on 11 May 2020 and finally responded to on 23 October 2020 showed that, as at 31 March 2020: ● 710 applications had been waiting longer than a year ● 32,815 applications had been waiting between six months and a year ● 69,830 applications had been waiting between three and six months ● 142,280 applications had been waiting between one and three months We have requested, but not been granted, updates on this data. The latest statistics31 show that there is currently a backlog of over 390,000 applications. Saving legislation to cover those eligible for, but not yet granted, EUSS From the 1 January 2021, both during the so-called ‘grace period’ to 30 June 2021 and beyond, EU citizens who do not have pre-settled or settled status live in a complex legal landscape. On the one hand, the ‘Immigration Act 2020’32 has ended free movement from 1 January 2021. On the other hand, the Withdrawal Agreement insists that the UK (and all EU Member States) must allow a grace period of at least six months for EU (and British) citizens to apply for their new status. Therefore parts of UK law, the ‘EEA Regulations’, have been ‘saved’33 to apply beyond 1 January 2021 to protect those who are eligible to apply to the EU Settlement Scheme but have not yet done so or are still waiting to receive their status. People excluded from this saving legislation - ‘unlawfully resident’ The saved regulations do not quite protect everyone who is eligible for (but has not yet been granted) status under the EU Settlement Scheme. This is because it only protects those who have strictly exercised treaty rights,

29 https://www.gov.uk/government/publications/eu-settlement-scheme-application-processing-times/eu-settlement- scheme-pilot-current-expected-processing-times-for-applications 30 https://www.whatdotheyknow.com/request/eu_settlement_scheme_delays 31 https://www.gov.uk/government/collections/eu-settlement-scheme-statistics as updated 21 January 2021 32 The Immigration and Social Security Coordination (EU Withdrawal) Act 2020 33 Restrictions of Rights of Entry and Residence regulations https://www.legislation.gov.uk/uksi/2020/1210/contents/made Saving regulations https://www.legislation.gov.uk/uksi/2020/1309/contents/made Grace period regulations https://www.legislation.gov.uk/uksi/2020/1209/contents/made

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which leaves out a large cohort of people who are not economically active (they were either studying or self- sufficient) and did not know that they needed Comprehensive Sickness Insurance [CSI]34. The Government considers this cohort as not living in the UK lawfully, and has stated so explicitly in correspondence to the3million35. However, since CSI is not a requirement for the EU Settlement Scheme, this cohort is able to submit an application to the Scheme. The problem arises because this cohort is not protected by legislation from the moment they put in an application, they are only protected once they are granted their status - which can be many months later. This lack of protection can have various serious consequences, most notably when it comes to accessing healthcare. It has been confirmed to us that although GP and Accident & Emergency visits are available to this cohort without cost, non-emergency hospital treatment is not. People were not treated as being ‘unlawfully resident’ before The Government claims that this is merely continuing the current situation, but that is not accurate. In the past, the NHS did not check if EU citizens were exercising treaty rights, however recent policies have now changed this. The Overseas NHS Visitors Charging Regulations36 make clear that EU citizens who are here lawfully are ordinarily resident, and are exempt from NHS charges. The guidance refers to “Ways in which people can be lawfully resident in the UK”37 which makes explicit reference to exercising treaty rights on 31 December 2020: “Applicants for EUSS status before the end of the grace period (30 June 2021) must also demonstrate they were exercising those rights on or before 31 December 2020 and that those rights would continue to exist after that date in order to be able to access 'relevant services' without charge, providing they remain ordinarily resident in the UK.” However, previous versions of this guidance as recently as 27 October 202038 stated: “However, it is very important to note that an EEA national who is not exercising Treaty rights and does not otherwise have a right of residence under the Directive will not automatically be considered to be in the UK unlawfully. Therefore an EEA national who is not residing in accordance with the Directive may still be considered to be ordinarily resident, provided that they meet the other requirements of that test. The relevant question to consider is if they are properly settled in the UK for the time being, and not are they exercising Treaty rights, or do they have a right to reside or a permanent right to reside.” The assertion by the Home Office that this cohort is not living in the UK lawfully is therefore clearly and directly contradicted by the archived guidance “Ways in which people can be lawfully resident in the UK”.

34 See Appendix B in this document 35 https://249e1c0f-a385-4490-bfe6-875269a8d3d5.filesusr.com/ugd/0d3854_7bc0b734a1a04a26a654ef7d56886785.pdf 36 https://www.gov.uk/government/publications/overseas-nhs-visitors-implementing-the-charging-regulations - sections 3.11 and 3.12 37 https://www.gov.uk/government/publications/ways-in-which-people-can-be-lawfully-resident-in-the-uk/ways-in-which- people-can-be-lawfully-resident-in-the-uk 38 https://webarchive.nationalarchives.gov.uk/20201027221501/https://www.gov.uk/government/publications/ways-in- which-people-can-be-lawfully-resident-in-the-uk - paragraph 25 109

Legal protection for those awaiting grant of status - recommendations: ● Simplify the ‘saving’ regulations such that they cover everyone who is eligible for status under the EU Settlement Scheme. ● Extend the 30 June 2021 deadline for at least six to twelve months in order to reduce the application backlog (which currently stands at 390,000)

4.2 Breach of Article 18(3) of the Withdrawal Agreement Article 18(3) of the Withdrawal Agreement states (our emphasis): “Pending a final decision by the competent authorities on any application referred to in paragraph 1, and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).” The various sets of regulations governing rights of EU citizens who have not yet been successfully granted (pre-) settled status contravene Article 18(3) of the Withdrawal Agreement as follows: ● The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 regulations39 (also called ‘grace period SI’) do not grant rights to someone who has submitted an application before 30 July 2021 and is awaiting grant of status, if they were not exercising treaty rights on 31 December 2020. ● The Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 202040 do not grant rights of residence to anyone who submits an application after 1 July 2021 (assuming they are considered to have ‘reasonable grounds’ to be able to do so) and is awaiting grant of status. ● The National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) Regulations 202041 do grant access to secondary healthcare without charge from the point of application for those who apply after 1 July 2021. However, they do not grant this access to those who have submitted an application before 30 June 2021 and are awaiting grant of status, if they were not exercising treaty rights on 31 December 2020.

39 Citizens’ Rights (Application Deadline and Temporary Protection) regulations, aka “grace period regulations” https://www.legislation.gov.uk/uksi/2020/1209/made 40 Immigration Act (Consequential, Saving, Transitional and Transitory Provisions) regulations https://www.legislation.gov.uk/uksi/2020/1309/made 41 NHS (Charges to Overseas Visitors) regulations https://www.legislation.gov.uk/uksi/2020/1423/made 110

We cannot see how this framework is compatible with the Withdrawal Agreement 18(3). We have summarised the position in the images in Appendix A. There is therefore a fundamental mismatch between the EU Settlement Scheme eligibility criteria (which essentially checks for residence in the UK), and the regulations that save EEA Regulations

Breach of Article 18(3) of the Withdrawal Agreement - recommendation: • Pressure the Government to change its legislation to ensure that every citizen who has applied for status under the EU Settlement Scheme, whether an in-time or late application, is fully protected by the Withdrawal Agreement from the moment the application is submitted, as required by Article 18(3) of the Withdrawal Agreement.

4.3 The Hostile Environment and those awaiting grant of status Certificates of Application - online vs paper applications Article 18(1)(b) of the Withdrawal Agreement clearly states that on submitting an application for residence status, a “certificate of application for the residence status shall be issued immediately”. This should then ensure that “all rights provided for in this Part shall be deemed to apply to the applicant” as per Article 18(3). In the UK, when someone submits an online application to the EU Settlement Scheme, they are sent a confirmation email immediately, with a ‘UAN number’ (Unique Application Number). It has a PDF attachment which clearly states it is a Certificate of Application (CoA). However, when someone submits a paper application, they are not sent a CoA immediately. Instead, the applicant must first have completed their biometrics process. To obtain a biometrics appointment can take weeks or months, exacerbated by Covid-19, because it is very difficult to get appointments at UKVCAS centres. This process can be prolonged and prevent citizens from having the security they require until a decision is made. We would argue it is in breach of the Withdrawal Agreement not to issue a CoA immediately. Rights when in possession of a Certificate of Application However, even when a citizen is in possession of such a CoA, they will face difficulties in practice, due to the government policy in place. Policy has only been created so that employers, landlords etc can check the right to work, rent etc of EU citizens who have been granted status under the EU Settlement Scheme. There is no guidance on CoAs. It is clear that those who were exercising treaty rights on 31 December 2020, and who have an outstanding in- time application to the EU Settlement Scheme are fully within scope of all three sets of regulations described in Section 4.2 (see also Appendix A.1).

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The problem comes as a result of the policy behind the regulations described in Section 4.2. If those regulations stand, not protecting all citizens with a certificate of application, it will not be possible to instruct employers, landlords etc to accept a certificate of application as proof of right to work, rent etc. Instead these delegated border controllers would need to be checking whether that certificate of application was from an in-time or a late application to the EU Settlement Scheme, and if the person was exercising treaty rights on 31 December 2020 or not. Such complexity is guaranteed to lead to widespread confusion and discrimination. As it stands, a certificate of application will not help people navigate the UK’s hostile environment. This, particularly in combination with the size of the EU Settlement Scheme backlog and the extremely long wait to grant of status for many, is unacceptable and, in our opinion, very much against the spirit of the Withdrawal Agreement. the3million has received multiple reports of people who have been waiting for over a year for their status – despite repeated telephone calls and emails to the EU Settlement Resolution Centre they are still left in the dark and in limbo. They are anxious, stressed and fearful of consequences for their daily lives going forward. A certificate of application is not enough across the multitude of places where proof of status is required – whether to open a bank account, prove entitlement to NHS treatment, or access financial support for education under home fees. Even while we are in the grace period, we are receiving reports from distressed EU citizens who are waiting for their grant of status, and are being denied jobs for not having status.

The Hostile Environment and those awaiting grant of status - recommendation: ● Ensure that the Government changes its guidance, and incorporates into its communication as soon as possible that a Certificate of Application is fully recognised as proof of entitlement to work, rent, access healthcare etc. without requiring any checks on date of application or examination of historical exercise of treaty rights

4.4 Late applications (after 1 July 2021) The Home Office has confirmed in writing42 that for someone who makes a late application (i.e. after 1 July 2021 – but excluding those who are applying under family reunion rights), the following applies: 1. between 1 July 2021 and date of submission of application, the person will not have had lawful status in the UK - even if their status is eventually granted 2. between date of submission and date of status being granted, the person will not have had lawful status in the UK (we submit this is a straightforward breach of Article 18(3) of the Withdrawal Agreement) 3. from date of status being granted, the person will obviously have lawful status in the UK

42 http://www.t3m.org.uk/HO_letter_StuartMcDonald_Dec20 112

Considering the practical consequences of these statements, it is worth considering three examples: a) an application for employment or rental in time periods 1 and 2 above b) a bill for NHS treatment in time periods 1 and 2 above c) whether the person is left with a criminal record

a) application for employment or rental The letter states: “Those who have not applied to the scheme by the deadline of 30 June 2021 will not have lawful status in the UK after that date. This means, for example, they will not be able to evidence their right to work or rent if they seek new employment or a new tenancy agreement in the private rented sector during the period in which they have no lawful status. They will also not be entitled to benefits and services while they do not have lawful status. In line with the withdrawal agreements1, late applications will be accepted where there are reasonable grounds for missing the deadline. The Home Office will publish non-exhaustive guidance on what constitutes reasonable grounds early in 2021. Those who are subsequently granted status under the scheme will be able to access benefits and services as now from the point it is granted, provided they meet the relevant eligibility criteria.” In other words, people will not be able to work or rent during periods 1 or 2. The lack of retrospectively deeming status to have been lawful during period 1 (so that someone can be reinstated into a job, find housing, and receive benefits) is creating the precise conditions for individuals to be vulnerable to destitution and deportation pressures - exactly as happened with the victims of the Windrush scandal. As we mention above, the lack of lawful status during period 2 is, in our view, a breach of Article 18(3) of the WA which states that “Pending a final decision [...] all rights provided for [in the WA] shall be deemed to apply to the applicant”. b) incurred charges for NHS treatment The letter goes on to state: “The National Health Service (Charges to Overseas Visitors) (Amendment) (EU Exit) Regulations 2020 provide an exemption from charging for those who make a late application under the scheme. The exemption will apply from the date the late application is made, until it is finally determined. The costs of any relevant treatment undertaken after the grace period and before a late application is made, and when the individual does not have lawful immigration status, would be recoverable, and would not be refundable when the application is made. In addition, if someone’s late application was refused, any treatment costs for the period between making a late application and the date of refusal, during which they were exempt, would be recoverable.” In other words - NHS treatment during period 1 will always need to be paid regardless of whether the person is eventually granted status. 113

This will cause identical problems to those experienced by the Windrush victim Sylvester Marshall43. However, during period 2, thanks to the healthcare regulations, the applicant should not be charged for treatment (unless the application is ultimately refused, in which case the NHS would seek to recover the costs from the applicant. These Regulations are therefore implementing Article 18(3) of the Withdrawal Agreement correctly. c) Criminal Record It is clear from the above that, even if a late applicant is considered to have reasonable grounds to apply late, and is successful in being granted that late status, they will have had a period of unlawful residence in the UK. This criminalisation can be used against them for deportation purposes, and will undoubtedly hinder any potential application for citizenship. Furthermore, it is potentially a criminal offence under the Immigration Act 1971.

Treatment of late applications is unreasonable In our view, none of this is in the spirit of the Withdrawal Agreement - in particular Article 18(1)(d) and the Good Faith principles set out in Article 5. It seems absurd to create policy that will have such dire consequences for someone who is ultimately recognised as having reasonable grounds for a late application. Kevin Foster MP has frequently used the example of a child in care, for example in Committee debate44, where he said:

“I regularly cite the relevant example of a child in the care of a local authority that has the duty to make the application on their behalf. If the local authority fails to do that, and the person becomes an adult and realises that the application was not made for them, that would be seen as an eminently reasonable ground, because they were entitled to believe that the local authority would have done its duty and made the application on their behalf. Moreover, there is no set time period for reasonable grounds. For example, in the case of a looked-after child, the Home Office accepts that it could be some time before they run into the problem. For the sake of argument, an eight-year-old child will become an adult in 10 years’ time and might discover when they go for their first job that the local council had not made the application 10 years ago. That would still be seen as a reasonable ground for a late application, because the child would not have known about it.” We need to look at the policies in the light of such an example, and indeed Mr Foster himself says in another debate45: “In my understanding [...] if someone has been found to have a reasonable ground for a late application, it would be hard to then hold against them a penalty in the form of not getting access to treatment or being deemed an overstayer. That would seem a bizarre outcome that I cannot imagine any court would uphold. I would expect

43 https://www.theguardian.com/uk-news/2018/apr/27/windrush-cancer-victim-has-uk-residency-status-confirmed 44 Draft Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 - column 5 45 https://committees.parliament.uk/oralevidence/1135/html/ reply to Q71 114

that if, for example, they had been doing activities in the UK, it would be covered by the fact that they had made a reasonable late application. It is a fair point that is raised and I appreciate that people would wish to see that clarified as to the impact of it, not just in this instance but in more general terms. They are not going to be considered an overstayer. If they then go on to apply for citizenship, we are not going to consider that a period of unlawful residence for naturalisation purposes. There are a few other elements that, rightly, people would want to see clarified.” The existing policies simply do not reflect his desire not to penalise someone who has grounds for a late application. A far cleaner legal policy would be, to cover both the period 1 and period 2 problems, to deem someone to have had lawful status from 1 July 2021, as soon as they submit a valid late application, i.e. from the point of being issued a Certificate of Application [CoA]. This CoA must be issued immediately on a late application being submitted, even before it is considered whether the applicant has reasonable grounds to submit this late application. If that is not the case, the reasonable grounds test can and will become a further tool with which to cause harm. Such a policy would also incentivise swift resolution of applications.

Late applications - recommendations: ● Ensure that the Government changes its process, so that a Certificate of Application is issued immediately on receipt of a paper application, rather than requiring the applicant to have first completed biometrics ● Ensure that policy is changed such that for late applications, the applicant is deemed to have had lawful status from 1 July 2021, as soon as the Certificate of Application is issued

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5 Those who have been granted (pre-) settled status

5.1 Introduction First and second class status There is a fundamental assumption at the heart of the Government’s implementation of the Withdrawal Agreement46, namely that there are two ‘classes’ of pre-settled and settled status under the EU Settlement Scheme (EUSS): ● ‘First class’ pre-settled and settled status for those who fall within scope of the Withdrawal Agreement - meaning they are exercising treaty rights, or have EU Permanent Residence rights, on 31 December 2020 ● ‘Second class’ pre-settled and settled status for those who do not fall within its scope but who may nevertheless be granted leave to enter or remain in the UK by virtue of the residence scheme immigration rules (in other words the EUSS) - this cohort mainly includes those who did not have private health insurance47 when studying or self-sufficient. EU Settlement Scheme eligibility tests for residence only This distinction stems from the fact that the UK Government has chosen not to test applicants to the EUSS for strict exercising of treaty rights under EU law. It has chosen to dispense with tests for CSI48, and instead is testing only for residence (alongside identity and criminality). The UK is thereby being more generous than the Withdrawal Agreement allows - which is an option open to the UK (and to EU member states for the rights of British citizens in the EU) - and indeed anticipated by Article 13(4) which states “There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.” Article 38 (More favourable provisions) also states “This Part shall not affect any laws, regulations or administrative provisions applicable in a host State or a State of work which would be more favourable to the persons concerned. This paragraph shall not apply to Title III.” EU Settlement Scheme is implementation of Withdrawal Agreement Article 18(1) As explained earlier, the Withdrawal Agreement allows for a choice of constitutive (Article 18(1-3)) or declaratory (Article 18(4)) approach, and the UK has opted for a constitutive scheme, via the EUSS.

46 See Paragraph 7(2) of the European Union (Withdrawal Agreement) Act 2020 - https://www.legislation.gov.uk/ukpga/2020/1/section/7/enacted 47 See Appendix B in this document 48 See Appendix B in this document 116

Article 18(1) makes clear that citizens may “apply for a new residence status which confers the right under this Title and a document evidencing such status which may be in a digital form.” Two phrases deserve closer inspection. “which confers the right under this Title”: It is therefore clear that an application granted under the EUSS confers the rights under the Withdrawal Agreement. Regardless of whether one is a ‘first class’ or a ‘second class’ applicant, once granted status, they have all rights under (Part Two Title II of) the Withdrawal Agreement conferred on them. “a document evidencing such status”: All those granted status under the EUSS are given digital status (and for non-EU citizens the option of a biometric residence card) which carries the wording “Issued under the EU Exit Separation Agreements”. No distinction is made between ‘first class’ and ‘second class’ grants of status. Philosophical difference of interpretation of the Withdrawal Agreement the3million therefore submits that all those granted status under the EUSS have conferred on them all the rights of the Withdrawal Agreement. We posed this question to the EU Commission in March 202049, and their reply to us in April 202050 was clear: “All EU citizens who are granted (pre-)settled status by the United Kingdom in implementation of Article 18(1) of the Withdrawal Agreement are beneficiaries of the citizens’ rights part of the WIthdrawal Agreement and can thus rely on the rights provided for in Part Two of the Withdrawal Agreement. We therefore understand that this should include EU citizens who have been affiliated to the NHS without having private comprehensive sickness insurance.” This profound philosophical difference in interpretation lies at the heart of many of the problems described below, particularly for those who have been granted pre-settled status, and for those who go on to naturalise as British. People’s problems are therefore not over once granted status under the EU Settlement Scheme. Some issues are specific to those with pre-settled status, some to those with settled status, and some problems arise regardless of which status has been granted. They will be examined in turn below.

5.2 Those who have been granted pre-settled status Under the EU Settlement Scheme rules, if an eligible applicant has been in the UK for less than five years, they are granted ‘pre-settled status’. This expires five years after the date it is granted. In order to be able to stay in the UK beyond the expiry of their pre-settled status, they can apply for the full ‘settled status’ as soon as they become eligible for it (i.e. they have clocked up five years of ‘continuous residence’), however they must do so before their status expires. Pre-settled status is a precarious status, for many reasons.

49 http://www.t3m.org.uk/t3m_letter_EC_WAPersonalScope 50 http://www.t3m.org.uk/EC_reply_t3m_WAPersonalScope 117

● Automatic loss of pre-settled status For someone with pre-settled status who continues to live in the UK, doesn’t break their continuity of residence or any other eligibility criterion, but simply forgets to apply for settled status before their pre- settled status expires, the consequences are hard to overstate.

They lose their lawful basis to be in the UK, they face the full policies of the hostile environment namely potential loss of job, rental accommodation, driving licence, access to healthcare. All for forgetting an administrative procedure.

the3million consider that this loss of status is not compliant with the Withdrawal Agreement. Whereas e.g. levying financial penalties for not applying in time would be allowed, Article 20 of the Withdrawal Agreement does not cover loss of status for lack of an administrative action.

We have heard indications that holders of expired pre-settled status could be considered to have ‘reasonable grounds’ for making a late application for settled status. However, this does not address the loss of rights and entitlements until the settled status is eventually granted. An NHS bill related to treatment during the interim stage, a job lost, a rental eviction can quickly lead to destitution and ruined lives in the same way as those caught up in the Windrush scandal. ● A dead-end pre-settled status A related, and equally serious issue occurs when people do break their continuity of residence, for example by leaving the UK for 14 months.

Even though their pre-settled status may still be valid and within its expiry date, it then becomes impossible to apply for a new status under the EU Settlement Scheme.

This is because a key eligibility requirement is to have continuous residence which began before 31 December 2020. This is a requirement that they can no longer fulfil, since they broke their continuous residence, and therefore they will have no choice but to attempt to apply for a status under the new Immigration Rules instead, or leave the UK.

This is not stated clearly enough in plain English in the email sent by the Home Office to those granted pre-settled status. The standard letter says “If you are absent from the UK for a continuous period of more than two years, your pre-settled status will lapse… However, qualifying for settled status generally requires five years continuous residence in the UK with only absences of up to six months (or one absence of up to 12 months for a good reason) permitted.”

Note it does not say that this five years continuous residence must start before 31 December 2020. We have received many reports of people with pre-settled status who believed (from the wording of their email) that they would be able to for example: o take up a study abroad as long as they were not out of the UK for more than two years o come back to the UK, intending to settle for the long term o renew their pre-settled status when it expires o apply for settled status when they finally accumulate five years of continuous residence 118

Arguably this should be allowed under the Withdrawal Agreement in any case, as such loss of status is not allowed under Article 20. The EU Settlement Scheme specifies that five years’ continuous residence must have commenced before 31 December 2020 (notwithstanding family reunion applications). However, articles 15 and 16 of the Withdrawal Agreement do not specify that the five years continuous residence must have commenced before 31 December 2020. ● Pre-settled status is not a ‘right to reside’ for the purposes of benefits. When people apply for Universal Credit and other means-based benefits and services such as homelessness support, they have to demonstrate a ‘right to reside’ to access it. British citizens satisfy this automatically, as do EU citizens with full settled status.51 However, EU citizens with pre-settled status cannot use their pre-settled status to demonstrate their ‘right to reside’. Instead, they have to show that they are, in short, workers or have retained worker rights. When the EU Settlement was first launched in December 2018, pre-settled status was a right to reside, however in July 2019 the Government changed its mind by introducing regulations52 which specifically excluded pre-settled status from the list of rights to reside.

This means EU citizens with pre-settled status are not benefiting from ‘equal treatment’ rights as promised in the Withdrawal Agreement Article 23 nor their rights to non-discrimination under Article 12. This has caused a lot of hardship especially during the COVID-19 pandemic, as many people have lost their jobs and face destitution without access to Universal Credit and other help from the Government.

Status under the EU Settlement Scheme is supposed to be a proof of rights under the Withdrawal Agreement, and as such should be sufficient to receive equal treatment to British citizens including when it comes to receiving social assistance.

As referred to earlier in this document, the Court of Appeal recently ruled53 that pre-settled status should indeed be a ‘right to reside’ for benefits purposes, under EU free movement legislation. The same principle should be extended under the Withdrawal Agreement for exactly the same legal arguments as Article 12 includes reference to Article 18 of the TFEU and Article 23 of the Withdrawal Agreement is framed with reference to Article 24 of Directive 2004/38/EC. ● Grants of pre-settled status to those entitled to full settled status The precarious nature of pre-settled status is not clearly communicated to those who the Home Office offer it to. It is important to reflect on the way the EUSS application process works. Regardless of how long someone has been resident in the UK, i.e. whether they are eligible for pre-settled or settled status, that person applies using the same application process.. Where there is insufficient evidence via the automated system to establish a person’s entitlement to settled status, an offer of pre-settled status is

51 We acknowledge here that the habitual resident requirement does require an intention to settle in the UK on those who are recently returned to the UK. 52 https://www.legislation.gov.uk/uksi/2013/376/regulation/9 - Subparagraph 9(3)(c) 53 Fratila and Tanase v SSWP & AIRE Centre (2020) https://cpag.org.uk/welfare-rights/legal-test-cases/current-test- cases/eu-pre-settled-status 119

made in its place (assuming evidence of residence of less than 5 years is available). We have had repeated reports of people inadvertently accepting pre-settled status when, instead, they are entitled to settled status. It is simply the case that the automated system was unable to establish their complete five-year residence. Although the system asks them if they wish instead to supply more evidence manually to prove longer residence, many are simply relieved to have been granted any status at all and do not understand the instructions or the legal implications of accepting the pre-settled status. This concern has been raised repeatedly in different forums and continues to be an issue amongst those in need of assistance and ill equipped to navigate the process.

Those who have been granted pre-settled status - recommendations: ● Ensure the government changes legislation so that expiry of pre-settled status cannot result in loss of rights for any reasons other than those specified in Article 20 of the Withdrawal Agreement. An administrative penalty should be the only allowable consequence ● Ensure the government changes legislation so that EU citizens, who were in the UK before 31 December 2020 and therefore within scope of the Withdrawal Agreement, are allowed to apply for settled status even if their five years of continuous residence start after 1 January 2021. This is to comply with Articles 15, 16 and 20 of the Withdrawal Agreement ● In the absence of changing this legislation, at a minimum improve the clarity of information sent to those granted pre-settled status, to clearly indicate the consequences of leaving the UK for more than six months ● Ensure the government changes legislation to give pre-settled status holders equal treatment with British citizens as conferred by an Withdrawal Agreement Article 18(1) document ● Strengthen the EUSS process o make sure that applicants who are entitled to settled status do not accept pre-settled status

5.3 Those who have been granted settled status Many think that Comprehensive Sickness Insurance (CSI)54 is no longer a problem because the EU Settlement Scheme does not ask for evidence of CSI. However, the issue re-appears in many forms buried deep within the complex immigration rules and secondary legislation: ● Applications for British citizenship People with settled status who want to go on to naturalise as British citizens find that their last 10 years are examined to see if they had CSI when not economically active. They must establish that they were lawfully resident for the purposes of becoming British. It is important to note that the conclusion is that

54 See Appendix B in this document 120

those who did not have CSI where required were unlawfully resident in the UK. As noted above in Section 4.1, the Department of Health’s guidance “Ways in which people can be lawfully resident in the UK”55 said as recently as November 2020 that “ it is very important to note that an EEA national who is not exercising Treaty rights and does not otherwise have a right of residence under the Directive will not automatically be considered to be in the UK unlawfully.” The naturalisation guidance states there is ‘discretion’ to ignore such periods without CSI but who would gamble £1,500 citizenship fees on an opaque discretion? ● Losing family reunion rights Anyone who does nevertheless go on to naturalise, and becomes a dual EU-British citizen will then find that they have now lost their rights to future family reunion. If it was previously a requirement for them to have CSI to be lawfully resident in the UK they would need to demonstrate this at the time they naturalised and thereafter. ● Children of long residents denied British citizenship at birth For children born in the UK to an EU parent who has lived in the UK for more than five years and believed they had permanent residence rights, the situation is even more complex. Deciding whether or not the baby is born British and is entitled to a British passport involves looking at whether the parent had CSI when not economically active at any time during the previous five years. Given that by far the most common reason for people not having CSI is that they simply did not know they needed it (since only the Home Office requires it), this can lead to very upsetting outcomes. Even more distressing are those cases where the baby is given a British passport, but five years later at the renewal of that passport the Home Office decides that the child is not British after all.

Those who have been granted settled status - recommendation: ● The UK should accept that access to the NHS - bearing in mind this is funded by general taxation, including e.g. VAT and not just income tax - satisfies the Comprehensive Sickness Insurance requirement

5.4 Applying for National Insurance numbers (NINo) Since March 2020, EU citizens have been unable to receive a National Insurance number due to the pandemic. The official explanation56 is that EU citizens have not been through an identity check interview, therefore they would need a face-to-face interview to obtain a NINo, which is not possible during the pandemic. On 7 December 2020, DWP resumed NINo allocations for EU citizens with settled or pre-settled status. The process involves telephoning, being mailed a form with a link to an application (this takes up to 7 days), then processing

55 https://webarchive.nationalarchives.gov.uk/20201027221501/https://www.gov.uk/government/publications/ways-in- which-people-can-be-lawfully-resident-in-the-uk 56 https://questions-statements.parliament.uk/written-questions/detail/2020-07-20/76859 121

the application (which takes another 6 weeks).

In November 2020, a Parliamentary Question (PQ)57 promised an online solution by the second Quarter in 2021. However, in January 2021, a PQ58 moved this to ‘early next year’.

The latter PQ also confirmed that the temporary non-face-to-face service is not available to those without pre- settled or settled status. We have received reports that the telephone line used to register for this application leaves people waiting indefinitely, and that many have had to simply give up.

Although strictly speaking it is possible to work without a NINo (employers should get round it by using an emergency ‘tax code’) we are seeing the following problems: ● The emergency tax code results in tax and national insurance contributions being paid at maximum levels. These are refunded eventually but this is causing serious cash flow issues for many. ● Many employers are not aware of the emergency tax code solution, so are refusing to employ EU citizens without a NINo. It is pushing many EU citizens, desperate for work, into the black market, causing a race to the bottom on employment rights. ● Even for those who are working, there are instances where not having a NINo is causing considerable problems in practice, even if in theory they might be surmountable. We have seen evidence of the following: o Refused funded childcare to which they are entitled o Refused Government maternity allowance to which they are entitled o Unable to set up a private pension o Unable to apply for Universal Credit o Employers unable to claim furlough o Unable to register as self-employed for the purposes of licences The situation is unacceptable and is causing considerable harm to people’s everyday lives.

Applying for National Insurance numbers - recommendation: ● To obtain National Insurance Numbers, citizens should be able to use something like the online service59 to verify identity (which has been in place since April 2020). It was created for universal credit applications, and should be used for National Insurance Number applications. Alternatively - a regular zoom call between the DWP and the NINo applicant should be sufficient.

57 https://questions-statements.parliament.uk/written-questions/detail/2020-10-30/109436 58 https://questions-statements.parliament.uk/written-questions/detail/2020-12-15/130119 59 https://dwpdigital.blog.gov.uk/2020/10/15/confirm-your-identity-a-new-way-to-verify-online 122

5.5 Lack of physical proof of EU Settlement Scheme status Whereas non-EU family members with status under the EU Settlement Scheme are entitled (for now) to receive a biometric residence card to prove their status, EU citizens are not. Their status is held by the Home Office, and people need to go online to access it, involving access codes sent to their email or mobile telephones. Banks, employers, landlords, the NHS, border control and countless other private and public organisations will need to use digital systems to check whether an EU citizen has rights to their services, via the generation and use of a time-limited ‘share code’. This digital system can work well for many, and in many different circumstances. However it will not work for all, and it will not always work. The government’s own impact assessment has acknowledged this. We are concerned for vulnerable and elderly citizens, and those who lack digital skills. We foresee a lot of discrimination especially when it comes to applying for jobs and renting accommodation - where employers and landlords face very tough sanctions for employing or letting to anyone without permission to be in the UK. Many will struggle with the digital system and will likely find it easier to choose the candidate with physical proof. We argue that the transition to a purely digital system cannot be done overnight, using one group of citizens as guinea pigs. Australia is the only country in the world to have achieved a (near) fully digital immigration system, and it allowed people to have a physical backup for over a decade while the entire society became accustomed to digital status. the3million has campaigned on this issue extensively60. Most recently, an amendment to the Immigration Bill, to require the Government to give physical proof of status to any EU citizen who requested it, was passed by the House of Lords by a large majority61. However it was defeated in the House of Commons.

Problems with current implementation of digital status Over our campaign, we have received many reports about the difficulty surrounding proof of status: ● BAME EU citizens and discrimination There are many BAME EU citizens who fear an additional layer of discrimination on top of the discrimination they already experience in the employment and rental sector. ● Lack of knowledge of ‘share code’ Applicants for Universal Credit are asked for a ‘share code’, without an explanation of where to find such a code. Many have no idea what this ‘share code’ is, as this phrase is never mentioned in the decision letter. The decision letter merely mentions using the link view-and-prove-your- rights.homeoffice.gov.uk, and using it to “show your right to work to an employer by letting them view your status online.” We have heard reports from interpreters on universal credit appointments who say that in virtually every call, EU citizens are asked for a ‘share code’, and in almost none of the calls do the EU citizens know what this is. Some try to give their UAN number, which is the application reference number referred to on the decision email and attached decision letter.

60 See our detailed Parliamentary briefing http://www.t3m.org.uk/t3m_PhysicalProof 61 https://www.theyworkforyou.com/lords/?id=2020-10-05d.446.1 123

● Problems around maintaining or updating digital status The status, being digital, needs to be maintained and updated which many people will struggle to do. If the identity document used to obtain the status is renewed, then the user must use the old document to access their records, to then update it with their new document. This will be problematic for people who don’t have both documents to hand, e.g. if their original identity document had been lost or stolen. It then takes a considerable while before the EUSS status is updated – so during this time people don’t know whether to use their old or new when proving their status, including when using e-gates for example. The process is also confusing because many have inadvertently started a new application (with their new identity document) rather than updating their existing status, resulting in a problematic situation. The advice is to withdraw the new application, but subsequently the correct update procedure fails because the system already knows about the new identity document.

Similarly, when someone’s telephone number, email address or postal address changes, they need to update this online, and we have had various reports of this resulting in errors, for example: “I simply cannot update my UK address using the online, digital service. I have settled status, obtained over a year ago, and recently did two things, renewed my passport and changed my address. I was able to update my passport without any issues but when I try to update my address to the new one, I simply get an error telling me that they cannot update my address”

“I received a confirmation email about my address and passport. But I tried to update my address as I moved to Scotland and the website gave me an error. I call the resolution centre and they told me that their side hasn’t been updated. They will send me emails about the process. I never received any email, so I called back and asked about the process, they could not see anything, they took my details and again passed to an IT professional. At the moment I am in the same situation, which make me very worried if in January I will be able to cross the borders as my settled status should be linked to my passport. They've told me there is others way to check but no explanation or email where I can show that at the borders.”

● Proof of EU Settlement Status inaccessible We have had multiple reports of users attempting to use the ‘View your status’ website, and being told that their identity document is not recognised. “I completed my settled status on August 2019. I checked my status online without issues back then. I tried to view my status again today and it is not working. I attached the error page to this form. They offer you a phone to contact them if you have issues. This number has a cost of 50p per minute. It is embarrassing how they are treating us.” (attached form shows “We cannot find your current status in this service.”)

“The Gov.uk website says it does not recognise my detail but the details I input are absolutely correct.”

124

“I updated my identity document by sending it to the relevant address. Got it back four weeks later with a note that I don’t need to go anything else. However, I haven’t been able to view my online status ever since, neither with my old nor my current ID.”

“On https://www.gov.uk/view-prove-immigration-status I have entered my details numerous times in order to view my status as I will need to prove it soon but the system says that the details entered 'don't match our records'.”

“My status was successful but when trying to access the proof it does not recognize my passport or ID.” This is extremely concerning, especially as the Government’s rationale for refusing to give EU citizens a physical proof is that the Home Office consistently claim that digital status “cannot be lost, stolen or tampered with”. The recent news story that around 400,000 police records were lost62 by “human error” according to the Home Secretary has done nothing whatsoever to reduce EU citizens’ anxiety about not being in control of their own status in their own wallet. ● Home Office website for checking status is unavailable Less frightening for the individual but still extremely worrying is the frequency with which the status checking website is unavailable: “Sorry, there is a problem with the service. Try again later. This is the message that I get in the last 3 months.”

“When trying to have the 30-day link that proves my status sent to me, the Home Office website says “There’s a problem with this service” (after I entered the one-time code sent to me by e- mail).” “The website was down, could not prove my status.”

“It just didn’t work for hours”

● Lack of awareness of digital nature of EUSS from those needing to check status We are receiving reports of a lack of knowledge about the digital nature of the EU Settlement Scheme. This includes for example UK and foreign banks, foreign check-in staff, employers, landlords and others. There will doubtless be many unexpected organisations wishing to check status which have not been factored into the Home Office’s planning for the digital status. ● International travel back to the UK – boarding abroad We have had multiple reports of people struggling to convince foreign check-in staff to let them board an aeroplane. Even though the Government has told us in a letter63 that foreign carriers should not be

62 https://www.bbc.co.uk/news/uk-55691710 63 https://249e1c0f-a385-4490-bfe6-875269a8d3d5.filesusr.com/ugd/0d3854_90289c07eca4422aa98c3a3da6c17ac2.pdf 125

completing any additional checks for EU citizens, and that they “will work closely with carriers and border officials globally through our overseas liaison network to ensure the messages are understood”, we are seeing many problems in practice: “Travelling to the UK on an EEA passport has started being a problem. Even though I have no issues with the UK authorities, the problem is actually ALL around the world. In Doha, Banjul, Manila, Beijing, Bogota, Addis Ababa, everywhere I've travelled on work on official UK government business, I have been asked whether I have a visa or not. I have applied for and received a PR card in 2020, too, especially for immigration officers globally who do not know what settled status is and that I do not need it.”

“I want to come back to UK from Pakistan and I have been asked to proof my immigration status which I can't proof to the authorities, same situation when flying back after holidays in Africa, Poland etc they need to see physical evidence to proof if I am resident of UK.”

“In early January, 2021, I was set to travel on American Airlines from the US (where my family resides) to the UK (where I currently live with my partner). As a dual EU/American citizen, I have never had any trouble entering the UK, and I always fly in on my EU passport. On this trip, I had extra paperwork ready to comply with Covid-19 restrictions, including a Covid negative test and a passenger locator form. I first gave the American Airlines associate my EU passport and then the additional paperwork. She asked what my status was in the US, and so I handed her my US passport as proof of citizenship. She then asked why I don't fly to the UK on the US passport, and I responded that as an EU citizen, I have received pre-settled status in the UK, which grants me residency. She flipped through both passports and asked me if I had proof of UK residency, and I explained that it's a digital status. She said that she had no information in her system about how EU citizens could enter the UK. She then proceeded to ask me if I have a return flight and how long I am planning on staying in London. And I said again that I live there. She seemed very confused, and had no information at all about the EU Settlement Scheme. Ultimately, she let me through on my US passport.”

“I was asked for a residence card when I was doing the check in with Iberia to fly back into UK. I was flying from a third country (Argentina) and the check-in officer insisted for me to have a physical paper to demonstrate that I was living in UK. This lead into a discussion on how to prove that I was allowed to fly back to UK without a return ticket. They did not understand how it was possible for me not to have a paper or a letter that shows that I was living in the UK. The situation was resolved because luckily I had with me the NINo letter.” ● International travel back to the UK – entering at UK border control COVID-19 has shone a spotlight on the problems with digital status. The intention was not to check for EU Settlement Status during the grace period, however due to COVID-19 citizens have been asked to 126

prove their residence in certain circumstances. As reported by Politico on 2nd February 202164, the digital border scheme is not ready for digital status: “delays in implementing a key digital border scheme meant officers at the front-desk would not currently know whether an EU national has U.K. resident status under the EU Settlement Scheme without performing further checks in the back office. The Digital Services at the Border Programme (DSBP), launched in 2013, was expected to be in place by March 2019, but its delivery has been delayed to March 2022, the National Audit Office said in a report last month, which said delays had “increased costs by £173 million and means it continues to rely on legacy technology.” It is meant to replace the 26-year-old system currently in place.” ● Digitally excluded citizens Many people are digitally excluded, which will cause severe problems. People with learning disabilities, people without access to technology (smartphone, computers or access to the internet), people without the skills to use the internet, people whose access to their status (in the form of email address or telephone number) is held by someone else – all will be seriously disadvantaged in a society which is simply not ready for such a big-bang switch to a digital-only status.

The Government’s EUSS Policy equality statement65 entirely corroborates this: “This may put at a particular disadvantage certain protected groups (as considered below) who may find it harder to use digital services because they are not regular internet users. The Office for National Statistics (ONS) survey of ‘Internet users, UK: 2019’ found that 47% of adults aged over 75 were recent internet users, compared with 83% of those aged 65 to 74, 99% of those aged 16 to 44 and 93.2% of those aged 55-64. Older applicants may be disadvantaged because they are less familiar with using online services and may find it harder to access or demonstrate their status as a result. Digital evidence of status may place at a particular disadvantage people from the Roma community, estimated at around 200,000 people in 2012, as highlighted in some recent reports, which point to a lack of IT skills and access to technology as two important barriers to Roma people accessing the EUSS and using their digital status. In addition, online-only evidence of immigration status may place women at a particular disadvantage, as they have been identified as being overrepresented in many of the groups identified as vulnerable; and are overrepresented amongst non-internet users. It may also place at a particular disadvantage some disabled people with accessibility needs: the ONS survey of ‘Internet users, UK: 2019’ found that 18% of disabled adults had never used the internet.” ● Non-EU citizens are entitled to a physical document in the form of a biometric residence card. However it is important to realise that they do not automatically get this card on being granted (pre-)

64 https://www.politico.eu/article/uk-border-customs-officers-no-documents-for-eu-citizens-britain/ 65 https://www.gov.uk/government/publications/eu-settlement-scheme-policy-equality-statement 127

settled status, rather they have to make a separate application for it. This itself frequently takes several months, with serious implications on proving rights, especially again, for travel. This is exactly what happened to the NHS worker stuck in Kenya reported in January66 – it took her three months just to get an appointment to apply for her card, which she still had not received by the time she needed to travel to Kenya for her father’s funeral. Furthermore, many non-EU citizens apply for EUSS status using their EEA biometric residence card, or an existing biometric residence permit under the Immigration Rules. Once granted (pre-) settled status, this status is linked to that residence card/permit, which obviously does not state that it is ‘Issued under the EU Exit Separation Agreement’. In order to swap their residence permit or EEA residence card, they need to do so via a website67 that is very difficult to find (and is not cross-referenced from the webpages68 which declare that EEA residence cards will no longer be valid after 30 June 2021). Even if they do find the correct website, and apply for an EUSS biometric residence replacement card, they need to send in their existing residence permit or EEA residence card, and be without physical proof of their status in the interim. As mentioned earlier, this process can take many months, and denies the right of travel in the meantime - as foreign airlines would not allow them to board a flight back to the UK without proof of residence. We are aware that non-EU citizens are also in the process of being moved to a digital-only status, as the are being issued with biometric cards expiring in 2024 even if they have indefinite leave to remain, or their leave expires later. This is causing anxiety for many. Better implementations of a digital system are available Article 18(1) of the Withdrawal Agreement, application for a new residence status, allows for “a document evidencing such status which may be in a digital form”. There are many ways of implementing digital documents, and it is clear that the current digital status of the EU Settlement Scheme is set to cause much anxiety, discrimination, and interference with the ability of EU citizens to simply “live their lives as they did before”. The UK is not ready for a complex two-party, two-factor authenticated system to dictate everyday transactions such as renting, applying for a job, or opening a bank account. Fundamentally, this is not a document that is in the citizen’s control – rather the citizen is permanently dependent on the Home Office for proof of status at every turn.

The Home Office should engage with EU citizens’ clearly and strongly expressed wish for a physical proof of their status, and provide such proof. Even if the Home Office insists on resisting this, there are other, far better ways of delivering digital documents69 which leave the citizen in possession of the document yet still address all the security concerns that the Home Office may have. These should be seriously examined and reported on.

66 https://www.theguardian.com/uk-news/2021/jan/16/nhs-worker-stuck-in-kenya-as-settled-status-documents-are- rejected 67 https://visas-immigration.service.gov.uk/product/biometric-residence-permit-replacement-service 68 https://www.gov.uk/uk-residence-card 69 As an example – see secure QR Code solutions such as https://www.qryptal.com/industries/immigration/ 128

Lack of physical proof of EU Settlement Scheme status - recommendations: ● The Government should communicate much more widely and clearly what a ‘share code’ is. ● The Home Office should urgently engage with the3million and other stakeholders on examining alternatives to the current digital status implementation of the EU Settlement Scheme.

129

Appendix A: Contraventions of Withdrawal Agreement 18(3)

A.1 - Effect of Rules/Regulations on citizens exercising treaty rights on 31 Dec 2020 The following graphic shows the effect of various regulations70 and family reunion immigration rules71 and shows where these are in breach of Article 18(3) and Articles 18(1)(m) respectively of the Withdrawal Agreement. The graphic shows three separate timeline scenarios: 1. an application submitted during the transition period, status granted during the grace period 2. an application submitted during the grace period, status granted after the grace period 3. a late application submitted after the end of the grace period

70 Citizens’ Rights (Application Deadline and Temporary Protection) regulations 2020/1209 Immigration Act (Consequential, Saving, Transitional and Transitory Provisions) regulations 2020/1309 NHS (Charges to Overseas Visitors) regulations 71 Family Reunion applying after 1 July 2021 - https://www.gov.uk/guidance/immigration-rules/appendix-eu-family-permit 130

A.2 - Effect of Rules/Regulations on citizens not exercising treaty rights on 31 Dec 2020 The following graphic shows the effect of the same regulations and rules on the same three timeline scenarios, but this time for citizens who are eligible for status under the EU Settlement Scheme, yet were not exercising treaty rights. In the vast majority of cases the only reason these people were not exercising treaty rights was by the simple fact of not being in possession of a private health insurance that was barely known by anyone, never required by the NHS, and only ever a requirement for the Home Office. It shows the lack of protection of these citizens until they are ultimately granted status, as well as the more far reaching breaches of Article 18(3) of the Withdrawal Agreement.

131

Appendix B - Comprehensive Sickness Insurance (CSI)

Under EU Free Movement rules, EU citizens are required to show ‘comprehensive sickness insurance’ [CSI] if they move to another EU member state, yet are not economically active there (i.e. if they are students or self- sufficient) to be considered lawfully resident. Such a requirement has been grandfathered into the Withdrawal Agreement as a minimum requirement for lawful residence to fall within its terms (see personal scope of the agreement). In the UK, this requirement was little known or advertised to EU citizens, and the insurance was never needed or even requested in order to access NHS healthcare. As this article by FreeMovement72 explains: “In other European countries instead of funding their health systems out of general taxation, they required their citizens to buy compulsory health insurance. [...] The NHS doesn’t work like that: paying into it is achieved by the simple expedient of paying tax, which even the economically inactive do every day in the form of consumption taxes like VAT.” In 2011, the EU Commission launched an Infringement Procedure against the UK, stating that access to the NHS should fulfil the CSI requirement. In October 2020, the EU Commission relaunched an Infringement Procedure on the same issue. We assume this relaunch is owing to the passing of time and new case law that may affect the legal opinion on the issue. The Commission’s position is: “In the United Kingdom, EU citizens who are affiliated with the UK public healthcare scheme (NHS) and are entitled to get medical treatment provided by the NHS are not considered as having sufficient sickness insurance. The Commission considers that the UK’s relevant rules are in breach of EU law.” The Appeals Service Northern Ireland has also recently referred a case to the CJEU73 asking questions around the issue of Comprehensive Sickness Insurance.

72 https://www.freemovement.org.uk/bye-bye-csi-legal-challenges-to-the-comprehensive-sickness-insurance-rule/ 73 http://curia.europa.eu/juris/document/document.jsf?text=&docid=231368&doclang=EN 132

Appendix C – Consolidated list of recommendations

Those who do not know they need to apply - recommendations: ● The Government should be required to publish the guidance on ‘reasonable grounds’ as soon as possible ● Funding to organisations helping vulnerable groups apply to the EU Settlement Scheme should be extended to well beyond the 30 June 2021 deadline ● The communication efforts to those who need to apply to the scheme need to be ramped up considerably. Alongside other strategies of active research and targeting, the Government should be required to write a letter to every single household in the UK ● Given that GFOs and various other organisations assisting people with applications are unable to perform to full capacity, the lack of guidance in key areas, the continuing delay in understanding the numbers / types of groups who are still to apply, and the reasons highlighted in this chapter, the grace period should be extended to accommodate ● Ensure the Voluntary Return Scheme and other Border Force / Enforcement Home Office framework includes stringent safeguards to check that citizens are fully informed of their potential rights to apply to the EU Settlement Scheme Those who know they need to apply but are struggling to do so - recommendations: ● extend the 30 June 2021 deadline for at least six to twelve months to allow for COVID-19 restrictions to lessen and GFO/advice agencies to restart their vital services assisting people with applications ● it should be easier to obtain paper applications where people cannot get a renewed passport or identity card in time (paper applications should be freely available rather than only on agreement from an EU Settlement Resolution Centre caseworker), and it should be easier for voluntary organisations to help people complete paper applications (currently OISC EUSS Level 1 advisors are not able to do so where there is no valid identity document)74 ● Promote the simplification of Appendix EU and Appendix EU(FM) by the ‘Simplification of the Immigration Rules Review Committee’75. ● Both the rolling absence calculation and the suitability requirements should be updated to reduce complexity of the absence calculation and the risk of individuals being penalised for unknowingly doing something wrong.

74 https://www.gov.uk/government/publications/guidance-for-euss-advisers 75 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/914010/24-03- 2020_-_Response_to_Law_Commission_for_publication.pdf 133

Those who want to apply but are not allowed to - recommendations: ● Change legislation such that pre-settled status constitutes a right to reside for benefits purposes ● Ensure every citizen who is within personal scope of the Withdrawal Agreement can obtain proof of their rights, include those with right of abode (British citizens) or those holding other immigration status (e.g. DLTR). ● Ensure Appendix EU(FM) Immigration Rules are changed such that after 1 July 2021, family members are able to apply for a Family Permit, join their family member in the UK and apply to the EU Settlement Scheme even if their sponsoring EEA citizen has not yet been granted (or has not submitted an application for) status under the EU Settlement Scheme. ● Consider whether it is possible to change the rules such that an in-country switch from visitor visa to pre-settled status is allowable, as Article 18(1)(e) states “the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided”. ● Create an exemption for EU students who started a course in, but did not travel to, the UK before 31 December 2020 where they can evidence that they would have taken up residence in the UK but for COVID-19. Legal protection for those awaiting grant of status - recommendations: ● Simplify the ‘saving’ regulations such that they cover everyone who is eligible for status under the EU Settlement Scheme. ● Extend the 30 June 2021 deadline for at least six to twelve months in order to reduce the application backlog (which currently stands at 390,000) Breach of Article 18(3) of the Withdrawal Agreement - recommendation: ● Pressure the Government to change its legislation to ensure that every citizen who has applied for status under the EU Settlement Scheme, whether an in-time or late application, is fully protected by the Withdrawal Agreement from the moment the application is submitted, as required by Article 18(3) of the Withdrawal Agreement. The Hostile Environment and those awaiting grant of status - recommendation: ● Ensure that the Government changes its guidance, and incorporates into its communication as soon as possible that a Certificate of Application is fully recognised as proof of entitlement to work, rent, access healthcare etc. without requiring any checks on date of application or examination of historical exercise of treaty rights Late applications - recommendations: ● Ensure that the Government changes its process, so that a Certificate of Application is issued immediately on receipt of a paper application, rather than requiring the applicant to have first completed biometrics 134

● Ensure that policy is changed such that for late applications, the applicant is deemed to have had lawful status from 1 July 2021, as soon as the Certificate of Application is issued Those who have been granted pre-settled status - recommendations: ● Ensure the government changes legislation so that expiry of pre-settled status cannot result in loss of rights for any reasons other than those specified in Article 20 of the Withdrawal Agreement. An administrative penalty should be the only allowable consequence ● Ensure the government changes legislation so that EU citizens, who were in the UK before 31 December 2020 and therefore within scope of the Withdrawal Agreement, are allowed to apply for settled status even if their five years of continuous residence start after 1 January 2021. This is to comply with Articles 15, 16 and 20 of the Withdrawal Agreement ● In the absence of changing this legislation, at a minimum improve the clarity of information sent to those granted pre-settled status, to clearly indicate the consequences of leaving the UK for more than six months ● Ensure the government changes legislation to give pre-settled status holders equal treatment with British citizens as conferred by an Withdrawal Agreement Article 18(1) document ● Strengthen the EUSS process o make sure that applicants who are entitled to settled status do not accept pre-settled status Those who have been granted settled status - recommendation: ● The UK should accept that access to the NHS - bearing in mind this is funded by general taxation, including e.g. VAT and not just income tax - satisfies the Comprehensive Sickness Insurance requirement Applying for National Insurance numbers - recommendation: ● To obtain National Insurance Numbers, citizens should be able to use something like the online service76 to verify identity (which has been in place since April 2020). It was created for universal credit applications, and should be used for National Insurance Number applications. Alternatively - a regular zoom call between the DWP and the NINo applicant should be sufficient. Lack of physical proof of EU Settlement Scheme status - recommendations: ● The Government should communicate much more widely and clearly what a ‘share code’ is. ● The Home Office should urgently engage with the3million and other stakeholders on examining alternatives to the current digital status implementation of the EU Settlement Scheme.

76 https://dwpdigital.blog.gov.uk/2020/10/15/confirm-your-identity-a-new-way-to-verify-online 135

Implementation of the Withdrawal Agreement Those who have not applied to the EU Settlement Scheme What to expect for EU Citizens’ • We don’t know how many people are left to apply • Consequences for those who miss the deadline and ‘reasonable grounds’ Rights in 2021 • Those who do not know they need to apply Submissions to the Independent Monitoring Authority • Those who know they need to apply but are struggling to do so • Those who want to apply but are not allowed to

4 February 2021

Implementation of the Withdrawal Agreement Implementation of the Withdrawal Agreement Those who have applied but are awaiting grant of status Those who have been granted (pre-) settled status

• Long waiting times with bad legislative choices, leaves many without legal • Not all status is equal protection • The barriers facing those with pre-settled status • Rights for people with pending applications are varied and not equal • Access to services and automatic loss of rights • Those applying after the deadline have no rights until a final decision is made • Applications for NINo • Consequences for these groups • Lack of physical proof of EU SS 136

Implementation of the Withdrawal Agreement Recommendations - a summary

• Legislative reform to meet commitments set out in the Withdrawal Agreement • Secure GFO and organisations supporting EU citizens • Better intelligence • Extend the grace period deadline to accommodate information deficits and pandemic impact

• Fix the problems currently raised by the digital-only approach