Immigration and Social Security Co-ordination Bill (EU Withdrawal) Bill
Legislative Consent Memorandum
Draft Legislative Consent Motion
1. The draft motion, which will be tabled by the Minister for Communities, is:
“That this Assembly endorses the principle of the extension to Northern Ireland of the provisions of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill dealing with social security co-ordination as contained in clause 5 of, and Schedules 2 and 3 to, the Bill as introduced in the House of Commons.”
2. This memorandum has been laid before the Assembly by the Minister for Communities under Standing Order 42A(2). The Immigration and Social Security Co-ordination (EU Withdrawal) Bill was originally introduced at Westminster in the 2017-2019 session but fell when Parliament was prorogued before the December 2019 General Election. The Bill was re-introduced in the House of Commons on 5 March 2020. View the latest version of the Bill.
Summary of the Bill and its policy objectives
3. The primary purpose of the Westminster Immigration and Social Security Co- ordination (EU Withdrawal) Bill is to end the EU’s rules on free movement of persons in respect of the UK at the end of the transition period (31 December 2020). These are currently retained in UK law by the EU (Withdrawal) Act 2018. This will mean that EEA nationals not resident in the UK at the end of the transition period and their family members will require permission to enter and remain in the UK under the Immigration Act 1971. Immigration and Freedom of Movement within the EEA are excepted matters under Schedule 2 to the Northern Ireland Act 1998 and are the responsibility of the Home Office.
4. However, the Bill also makes provision for the Westminster Government or, where appropriate, a devolved authority to amend retained EU legislation relating to the social security co-ordination regime. The legislation in question is:
- Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the co-ordination of social security systems;
- Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004;
- Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community;
- Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving within the Community; and
- Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality.
5. In summary, the Bill:
- repeals the main retained EU law relating to free movement and brings EEA nationals and their family members under UK immigration control;
- protects the status of Irish citizens in UK immigration law once their EU free movement rights end; and
- introduces powers to enable the Westminster Government and devolved authorities to amend retained EU law governing social security co- ordination thereby enabling policy changes to be delivered post EU exit.
Provisions which deal with a Devolution Matter6. The provisions which deal with transferred matters relate to social security co- ordination. A power is being provided to an appropriate authority (which includes a devolved authority) to modify, by Regulations, the EU Social Security Co-ordination Regulations. The Social Security Co-ordination Regulations apply to EEA citizens and UK nationals in the UK and in the EEA, and to some non-EEA citizens. They determine which EEA state’s social security legislation applies: the rules ensure an individual is only subject to one EEA state’s legislation at any one time, determine where contributions are due and which state is responsible for payment of certain types of benefit including the State Pension, UK contributory benefits as well as some non- contributory benefits. The Social Security Co-ordination Regulations provide for equal treatment of those in scope and for EEA states to take into account periods of work, insurance or residence in another EEA state when determining entitlement to benefit, which is known as “aggregation”. The Regulations also enable individuals, in certain circumstances, to receive certain benefits from the UK irrespective of where they reside in the EEA (i.e. UK nationals and EEA citizens can export benefits from the UK).
Reasons for making the Provisions
7. The provisions in the Bill allow the UK Government (and/or, where appropriate, a devolved authority) to make Regulations to amend retained direct EU legislation relating to the social security co-ordination regime, which is retained in UK law by the EU (Withdrawal) Act 2018. This will enable policy changes to be delivered following the end of the transition period, depending on the outcome of negotiations with the EU on the future relationship.
8. The UK signed an agreement with Ireland in February 2019 which protects the social security rights of all UK and Irish citizens moving within the Common Travel Area.
Reasons for utilising the Bill rather than an Act of the Assembly
9. While Immigration and Freedom of Movement are excepted matters, aspects of the EU Social Security Co-ordination Regulations touch on devolved issues. The regulations are a somewhat complex web of excepted and devolved issues including:
- determination of the State to which contributions should be paid;
- competency for the award of benefits;
- aggregation of contributions and periods of residence for benefit entitlement etc;
- provision for some benefits, such as Child Benefit, which are the responsibility of HMRC.
10. If NI provisions are omitted from the Westminster Bill, it would be necessary to bring forward a further Assembly Bill to ensure that the Department for Communities has the power necessary to amend retained EU law on social security co-ordination. Our working assumption is that such a Bill would mirror the social security co-ordination provisions of the Westminster Bill in conferring powers on NI Departments. However, clause 5 of the Westminster Bill also makes provision for regulations to be made by a Minister of the Crown and the devolved authority acting jointly. Given that the retained regulations are a somewhat complex web of excepted and devolved matters, the availability of the option of making regulations jointly may provide a useful way to amend the law in a coherent way. Devolved competence would be respected in that such regulations would require the approval of the Assembly before being made. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill provides a power to devolved authorities to amend, by Regulations, the EU Social Security Co-ordination Regulations. A devolved authority may only legislate alone if the provision is within its devolved competence.
11. It is anticipated that there will be very significant demands across Departments for Bills to be progressed through the Assembly before the end of the current mandate. Retaining the NI provisions in the Westminster Bill would help to relieve some of the expected pressure on the legislative programme. It would also have the advantage of ensuring that these essential new provisions can be enacted as soon as possible. Discussions between the EU and the UK on social security co-ordination are ongoing and retaining these provisions in the Bill will ensure that any necessary changes can be brought forward for NI at the same time as changes being taken forward in GB.
12. The UK Government commissioned the Migration Advisory Committee (MAC) to examine how the UK economy makes use of and recruits European Economic Area (EEA) nationals, and the impacts of EU migration on the economy. The MAC is an independent non-departmental public body that provides transparent, independent and evidence-based advice to the UK Government on migration issues. In August 2017, the MAC published a Call for Evidence to gather views from stakeholders and develop its response to the UK Government. The MAC published its findings in September 2018.
13. The UK Government set out in its manifesto in 2019 that once free movement ends, it will deliver a new points-based immigration system. The Government again commissioned advice from the MAC on a points-based immigration system as well as on salary thresholds in the immigration system. The MAC published its report on both issues on 28 January 2020.
Human Rights and Equality
14. The provisions of the Westminster Bill are considered compatible with the Human Rights Act 1998.
15. An equality screening exercise has been carried out and the Department is satisfied that the proposed provision has no significant implications for equality of opportunity.
16. No significant costs to the public purse are expected.
Summary of Regulatory Impact
17. No significant costs to businesses, community, voluntary, charitable and social enterprises/organisations are expected.
Engagement to date with the Committee for Communities
18. The Committee has been consulted as part of the Legislative Consent Motion process.
19. The view of the Minister for Communities is that, in the interests of good government, the provisions of the Bill dealing with devolution matters should remain in the Bill.