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.

Just in case these explicit repeals are insufficient, there is also a general repeal of anything else related to free movement in Schedule 1, paragraph 6:

Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law so far as—

(a) they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act), or

(b) they are otherwise capable of affecting the exercise of functions in connection with immigration.

That provision could hardly be any broader and clearly makes sure all aspects of free movement law are taken off the statute book. The government shouldn’t find itself caught out later on by a forgotten provision of EU law which rises from the dead and disrupts the Brexit plan.

But such a broad, unspecific repeal provision undermines legal certainty. The legislation removes any EU law which might get in the way of domestic immigration law. It is impossible for anyone, including the government, to be exactly sure what else is repealed by this provision. The Immigration Law Practitioners’ Association has suggested that the following provisions might have been repealed even though they are not about free movement:

• Protections for victims of trafficking in the Anti-trafficking Directive 2011/36/EU
• Protections for asylum seekers in the Reception Conditions Directive 2013/33/EU
• Protections for victims of crime in the Victims Rights’ Directive 2012/29/EU

We will only know for certain once a court has considered the status of these pieces of legislation.

Henry VIII powers

At the same time, Parliament has given the government a broad power to make regulations altering primary legislation in connection with free movement. These are known as “Henry VIII powers”.

Section 5 of the Act provides:

The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part.

This is the part of the Act which attracted the most criticism during its passage through the House of Commons. The power is not time-limited in any way and can be exercised whenever the government considers it to be “appropriate”, rather than a more limited test such as when it is “necessary”. Moreover, the first set of regulations made under this provision may be passed using the ‘made affirmative’ procedure, which means that they will come into force immediately and only lapse if not approved by both Houses of Parliament. Subsequent regulations will have to be laid in draft form and approved by both Houses before coming force, providing a better albeit still inadequate level of scrutiny.

Again, the problem here is that provision is so broad. It could be used to change any legislation with a “connection” to free movement. As JCWI put it in a briefing before the Act came into force:

JCWI does not consider it acceptable for the Government to introduce a Bill which does not set out proposals for comprehensive reform to the immigration system, and 2 instead, asks Parliamentarians to vote on a “blank cheque”. The Bill gives the Secretary of State powers to introduce wide-ranging changes to the immigration system without substantive oversight.

The scope of this power will be a matter for the courts and it should be hoped that they will carefully police its use.

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, unless subsection (2), (3) or (4) applies to that citizen.

The exceptions in sub-sections 2, 3 and 4 refer to deportation and exclusion orders, The government stated during the passage of the Act that it intends to maintain its longstanding policy of only deporting Irish nationals where deportation is recommended by a criminal court or there are other exceptional circumstances.

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.