The Immigration Act 2020

The Immigration Act 2020 has arrived. The new legislation — the full title of which is the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 — passed into law today, 11 November 2020.

The Act is much shorter than any of the other Immigration Acts but makes wide-ranging changes to how EU citizens will be treated by immigration law. The government’s stated intention was to pass an Act ending free movement by repealing the domestic legislation which gives effect to EU law immigration rights, paving the way for its new Points-Based Immigration System. The Act also addresses the special situation of Irish citizens.

Repeal of free movement legislation

Section 1 of the Act repeals a long list of provisions which were essential for implementing EU free movement law in UK immigration law. In particular, it repeals:

§  Section 7 of the Immigration Act 1988 – this exempted EU nationals from requiring leave to enter and remain.

§  Article 1 of the Workers Regulation – this gave EU nationals the right to work in the UK as if they were British citizens.

§  All EU-derived rights saved by section 4 of the European Union (Withdrawal) Act 2018 – this had preserved rights which depended on the EU treaties and the UK’s EU law obligations.

Immigration status of Irish citizens

The headline outcome is that the Act preserves the special position of Irish citizens in UK immigration law. Section 2 amends the Immigration Act 1971 to state:

An Irish citizen does not require leave to enter or remain in the United Kingdom.

This clarifies the position of Irish nationals coming into the UK from outside the Common Travel Area (Ireland, the UK, Isle of Man and the Channel Islands). Previously, domestic law only exempted Irish nationals from the requirement to have leave to enter and remain if they had entered the UK from within the Common Travel Area. The effect of this was masked while the UK was a member of the EU because all Irish nationals were exempt anyway because of free movement laws. Now that EU free movement law is disappearing there was a risk of an arbitrary difference in the treatment of Irish nationals, which has been avoided by this legislation.

There has been some frustration among immigration lawyers that the government’s policy on only deporting Irish nationals in exceptional circumstances has not been put into primary legislation. It is currently just a statement of policy and has not been placed in the Immigration Rules either.

The future of the immigration system

Much of the debate both inside and outside Parliament was about two things which form the key context of this Act but are not explicitly mentioned in it.

The first is the Settlement Scheme for EU nationals currently living in the UK. As all immigration lawyers know, the requirement to submit an application before a given deadline is going to inevitably result in a significant number of people missing out on settled status, creating both severe hardship for those left without any immigration status and a policy problem for the government.

The second is the new Points-Based Immigration System. This Act was necessary to repeal free movement law but it does not contain anything about the new system, which is being introduced using secondary legislation to amend the Immigration Rules in the usual way. Those changes are much less high-profile, but tell us much more about what the new immigration system will look like than the Immigration Act itself.

Posted on Nov 11, 2020.

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