Memo: The Cessation of EU Law Relating to Prohibitions on Grounds of Nationality and Free Movement of Persons Regulations 2022
Charlotte O’Brien and Alice Welsh submitted the following as a memo to the House of Commons Work and Pensions Committee on 29th June 2023 to highlight our concerns with the The Cessation of EU Law Relating to Prohibitions on Grounds of Nationality and Free Movement of Persons Regulations 2022 No. 1240 and how the changes introduced create a default of discrimination, despite the protections in the withdrawal agreement for EEA nationals and their family members in the UK before it left the EU.
The purpose of the regulations
(1) These regulations remove the protection from discrimination on the grounds of nationality for EU citizens, in matters of social security, social assistance, housing, education and childcare. They also stop EU-law based rights of free movement from being recognised in UK law, and purport to amend Regulation 492/2011 on the right of equal treatment of EU migrant workers (insofar as the Regulation applies in the UK).
(2) The explanatory notes describe the regulations as ‘a technical rectification to ensure that UK law functions with legal clarity’, and lists the directly effective EU instruments which no longer apply. On this basis, the regulations were made by the Secretary of State for Work and Pensions, using the powers conferred by section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018(1) - ministerial power to address deficiencies in retained EU law.
(3) This justification is stated in respect of people who do not fall within the scope of the Withdrawal Agreement:
7.3 Disapplying these redundant equal treatment provisions therefore clarifies the policy situation already in effect, which is to treat EEA citizens coming to the UK after the end of the transition period equally with those coming from non-EEA countries. This instrument does not, therefore, effect any policy change. It purely addresses the deficiency of these redundant equal treatment provisions by disapplying them in relation to relevant benefits, services and educational entitlements.
Not purely a technical rectification
(4) There are five main reasons why the regulations are more than a technical rectification:
(i) the regulations do not just disapply directly effective EU law; they amend domestic law;
(ii) the regulations do not just apply to domestic legislation for the purposes of newly arrived EU nationals – they remove rights and law and rights in their entirety including for those protected by the Withdrawal Agreement;
(iii) as such, they effectively un-implement Withdrawal Agreement rights, going beyond the powers envisaged in section 8 of the EU Withdrawal Act 2018;
(iv) the measures concern provisions of equality legislation; and
(v) the measures purport to amend EU laws – on social security coordination and equal treatment – which still apply to those within the Withdrawal Agreement, with no clear provision for parallel regimes.
Finally, this memo notes the importance of legal culture, and the problems created, and the message to decision makers that is sent, by shifting to a default of discrimination.
(i) The measures amend domestic law
(5) The directly effective EU measures mentioned in the explanatory notes had already been revoked; the Explanatory Notes states:
The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (ISSCA)11 repealed freedom of movement of EEA citizens. It also revoked directly effective equal treatment provisions connected to nationality and freedom of movement in so far as they were inconsistent with immigration legislation.
(6) As such, it is perhaps misleading to suggest that these regulations were necessary in order to do the same thing. Rather, these regulations do not target the already revoked EU law; they target non-discrimination protections which ‘are derived from’ the TFEU, the EEA Agreement, and/or the Swiss Agreement.
(7) The regulations refer to prohibitions which continue ‘by virtue of section 4(1) of the European Union (Withdrawal) Act 2018, which retains:
“Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day—
(a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and
(b) are enforced, allowed and followed accordingly”
(8) So the rights are enforced, allowed and followed as a matter of domestic law. The cessation regulations then add that the rights in question must have been ‘derived from’ EU law. And there is no mention of any explicit exceptions; for example, EU nationals with pre-settled status are entitled to continued protection from the Immigration (EEA) Regulations 2016 by virtue of Schedule 4 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 No. 1309 – regulations which precede the ‘Cessation’ regulations. While the 2016 regulations have been saved in specific situations, the cessation regulations would appear to hollow them of equal treatment rights. At the same time, the 2016 regulations themselves cannot be said to be ‘derived from’ the Withdrawal Agreement, and so the regulations do not come with an explicit duty to ‘read in’ Withdrawal Agreement-based equal treatment rights which post-date those regulations.
(9) Entitlement to equal treatment on the ground of nationality under EU law was sufficiently woven into the fabric of UK legislation that the drafters have identified five substantive areas in which domestic law implements and gives effect to retained EU law (social security; social assistance; housing; education; childcare). But those reliant on the Withdrawal Agreement are to be told, (though they are not told in these regulations) in contrast, to simply assert that international treaty.
(10) The Schedule to the Cessation regulations states that the relevant matters in which the prohibition of nationality discrimination is to be lifted, include ‘social assistance’ within the meaning of Directive 2004/38 which are to cease, including references to CJEU case law interpreting the meaning of social assistance. Such case law has long formed a part of domestic UK law, by being part of UK case law. Again, by failing to spell out the binding nature of pre-transition case law in matters that fall within the scope of the Withdrawal Agreement, the Cessation regulations are setting the scene for considerable administrative and judicial confusion.
(11) It is therefore unclear how decision makers, judges, and individuals themselves are supposed to unpick equal treatment case law from the relevant law, and then separately import provisions of the Withdrawal Agreement (which have not yet been interpreted by the courts).
(ii) The regulations remove rights for all EU nationals, including those protected by the Withdrawal Agreement
(12) It is notable that the Explanatory Memorandum describes the measures as only affecting new arrivals:
7.3 Disapplying these redundant equal treatment provisions therefore clarifies the policy situation already in effect, which is to treat EEA citizens coming to the UK after the end of the transition period equally with those coming from non-EEA countries.
(13) The memorandum then notes that those in scope of the Withdrawal Agreement ‘continue to be afforded the same equal treatment and free movement protections as they had before the end of the transition period’ by virtue of the European Union (Withdrawal Agreement) Act 2020’ (7.4)
(14) Leaving aside the basic factual error (which is that they do not retain the same free movement protections as they had before the end of the transition period), this approach glosses over the fact that the domestically recognised rights and case law being removed for new arrivals are actually domestically recognised rights and case law removed for all.
(15) It is extraordinarily difficult to persuade first instance decision makers to engage with international law; let alone a completely new species of international law with no precedent, no authorities on interpretation, and which is being stripped of otherwise relevant case law. It can be just as difficult to get the WA considered as part of mandatory reconsideration, or before a First tier Tribunal.
(16) As a result of the Cessation Regulations EU citizens who are entitled to equal treatment are likely to face significant administrative barriers. Equal treatment rights will become further removed from EU citizens who are in fact entitled to them.
(iii) The regulations un-implement WA rights and go beyond section 8 powers
(17) By removing accessible and established equal treatment rights from those covered by the Withdrawal Agreement, and not explicitly substituting the WA in the same exact place, the Cessation regulations are removing measures that implement equal treatment rights. They are, in effect, un-implementing the Withdrawal Agreement, while telling those within its scope to rely on unimplemented rights within that instrument.
(18) In so doing, the Secretary of State has exceeded the section 8 powers afforded to Ministers by the EU (Withdrawal) Act 2018. Section 8(7) states that
“But regulations under subsection (1) may not—
(e) be made to implement the withdrawal agreement”
By the same token we submit that subsection (1) may not be used to un-implement the rights contained within the Withdrawal Agreement.
(19) Section 9 of the EUWA 2018 provides for ministerial powers to institute measures to implement the Withdrawal Agreement, but those powers lapsed on exit day.
(20) Moreover, the measures arguably fall within the scope of section 8(2)(f). That states that a deficiency in retained EU law which is remediable using section 8 powers is one that:
“does not contain any functions or restrictions which—
(i)were in an EU directive and in force immediately before exit day (including any power to make EU tertiary legislation), and
(ii)it is appropriate to retain”
(21) It is irrefutably the case that the equal treatment and non-discrimination rights constituted functions and restrictions which were in force in EU Directives (Directive 2004/38 is explicitly mentioned in the regulations), immediately before exit day.
(22) The remaining question is whether it is appropriate to retain them. Given that over 5 million EU nationals and family members within the UK continue to be entitled to equal treatment, we submit that it was appropriate to retain the measures, but to create exceptions where the Secretary of State felt it necessary to do so.
(23) In any case, a discussion of whether it was appropriate under s. 8(2)(f)(ii) should have taken place in light of the application of s. 8(2)(f)(i). However, there has been no acknowledgement of the applicability of this provision.
(24) The Cessation Regulations un-implement Withdrawal Agreement rights, so go beyond the section 8 powers in the EU (Withdrawal) Act 2018.
(iv) The measures concern provisions of equality legislation
(25) In spite of the Minister’s assurances to the contrary (in the explanatory memorandum), the measures do engage with, and amend rights contained within the Equality Act 2010. Discrimination on the ground of nationality is prohibited under the Equality Act 2010; it prohibits discrimination on the ground of race, and s 9(1)(b) makes clear that ‘race’ includes nationality.
(26) The Act includes exceptions to the prohibition of discrimination on the ground of nationality – in particular with regard to immigration status. Para 17 of Schedule 3 was amended by The Equality (Amendment and Revocation) (EU Exit) Regulations 2019, so that the relevant functions excluded from equal treatment on the grounds of race or ethnic origin in public services includes ‘anything which forms part of retained EU law by virtue of section 2(2)(a), 3 or 4 of the European Union (Withdrawal) Act 2018 and relates to immigration or asylum’. This exception does not obviously include entitlement to social security, social assistance, housing, education, and/or childcare.
(27) As the regulations make it easier to legitimately discriminate on the ground of nationality, they are by definition more than a ‘technical change’.
(v) The measures purport to amend EU laws which still apply to those in scope of the WA
(28) Regulation 4 of the Cessation regulations purports to amend EU law – Regulation 492/2011. It amends Article 7, which provides for equal treatment as regards conditions of employment, and social and tax advantages as national workers.
(29) Regulation 4 inserts Article 2A which states that those provisions ‘do not apply in relation to the matters set out in the Schedule to the Cessation of EU Law Relating to Prohibitions on Grounds of Nationality and Free Movement of Persons Regulations 2022 (relevant matters)’.
(30) It also omits Article 7(3) which provides for equal treatment for migrant workers with regard to ‘access to training in vocational schools and retraining centres’. It also omits Article 9 on equal treatment in matters of housing, and Article 10 on the rights of the children of migrant workers to be admitted to educational courses ‘under the best possible conditions’.
(31) The Explanatory Memorandum sheds no light on what is intended here. The Regulation can only meaningfully apply in the UK to those in the scope of the Withdrawal Agreement; new arrivals do not have the other rights contained in the Regulation not mentioned in the Cessation regulations (such as the right to take up employment; the right to equal unemployment assistance and so on) . To the extent that it is only retained in UK law by virtue of the Withdrawal Agreement, it is not clear how the UK government asserts it has the authority to amend this instrument’s application in the UK. Nor is it clear, if the Cessation regulations are only meant to remove redundant rights for new arrivals, why the government should wish to exclude specific equal treatment rights (on housing, benefits, tax and education) for people within the Withdrawal Agreement.
(32) The Regulations purport to amend EU laws which are retained solely for those within the scope of the Withdrawal Agreement. There is no clear legal basis for this, and the creation of two different Regulations 492/2011 invites confusion.
Default of discrimination
(33) The title of the regulations, and the wording of the provisions is potentially misleading. It is not ‘prohibitions on grounds of nationality’ that will cease – it is the prohibition of discrimination on grounds of nationality that the draft regulations purport to eradicate.
(34) It would have been possible to retain the key rights, which still apply to 5 million+ people, and provide for exceptions to new arrivals. Or, it was possible to stipulate that the basis for any relevant rights/measures should be substituted – effectively switching in the Withdrawal Agreement, to replace the original EU law, while keeping the laws, guidance, and case law at issue.
(35) Instead, the Secretary of State has opted for a default of discrimination; the 5 million+ people entitled to protection from such discrimination will now be placed in a position of having to show that they form an exception to the general rule. This is likely to create extra administrative burdens which are incompatible with the concept of equal treatment.
(36) Opting for a default of discrimination also shapes the administrative culture – it indicates a shift in attitude towards all EU nationals, to one of difference and suspicion. It is this cultural shift that is likely to be the most damaging consequence of the Cessation regulations. Our research shows that legal mechanisms can engender a culture of discrimination among decision makers, which creates a series of barriers to accessing and asserting rights, and contributes to a system of welfare segregation.
(37) Our research further shows that in times of legal transition, the risks of administrative injustice become more acute.
(38) Case study (EUR00019)
An adviser contacted us to ask for help challenging a decision to refuse Universal Credit for an EEA national with pre-settled status who was in full-time work. During the mandatory reconsideration process the adviser received a phone call from the decision maker to discuss the case. During this phone call it was reported that the decision maker said "The EU regs have no relevance now. It doesn't matter if he is working now, if he can't prove Habitual Residence from before January 2020, he will never be entitled to anything now, it's all been passed in Westminster."
(39) This case is an example of how legal transition and reports of reducing rights can incorrectly signal to decision makers a change in entitlement. The context of sweeping changes to the legislative landscape therefore makes such a cultural shift all the more damaging, as decision makers are more likely to be confused, overwhelmed, and to make mistakes, and in the process will be influenced by whatever cultural messaging the Secretary of State sends out via statutory instruments.
(40) This default of discrimination sends a damaging message, and alters the structure of decision making.
What needs to be done?
(i) The Cessation regulations create an implementation gap; the measures and rights removed should be replaced with Withdrawal Agreement implementing legislation that gives clear effect, in domestic law, to equal treatment rights. Such legislation should incorporate the equal treatment case law removed by this regulations.
(ii) A complementing SI to state the continued applicability of the unamended Regulation 492/2011 for those within the scope of the Withdrawal Agreement.
(iii) Clear guidance on the purpose and personal scope of the amended Regulation 492/2011.
(iv) Clear guidance and training for decision makers on the continued applicability of relevant EU law-based rights, and primarily the right of non-discrimination on the grounds of nationality for those within scope of the Withdrawal Agreement.
(v) A post-hoc Equality Impact Assessment; recognise the measures engage protections in the Equality Act 2010, and do not fall within the exceptions
(vi) A post-hoc reference to the Social Security Advisory Committee.
(vii) The above measures should help to reassert the default of equal treatment; a significant majority of EU nationals in the UK are entitled to protection from discrimination. A new norm of a default of discrimination is thus inappropriate.
Professor Charlotte O’Brien & Dr Alice Welsh