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Lord Flight is Chairman of Flight & Partners Recovery Fund and is a former Shadow Chief Secretary to the Treasury.

British in Europe has persuaded peers to propose three amendments to the Immigration and Social Security Bill.

The first would prevent the removal of the existing right of UK citizens who moved to the EEA to return with families they have established there. The second and third amendments are to prevent the Bill’s regulation-making powers from being used to breach the UK/EU Withdrawal Agreement.

The main amendment is to preserve the right of UK Nationals living in the EEA and Switzerland, who return to live in the UK in the future, to then bring with them or to be joined by non-British family members on the same terms as have applied up until now.

If the Bill is not amended, British citizens who moved to the EU/EEA while the UK was a member will lose their right to return to their country of birth with a non-British partner or children unless they can meet financial conditions beyond the reach of many. If they need to return to look after and elderly parent, they will have to choose between either returning alone and leaving their families behind, or abandoning their parent to stay with their non-British family in the EEA.

The problem arises because the Government is using the end of free movement to make these British citizens meet, for the first time, “the minimum income requirement” for family reunion. The MIR has been criticised both because the level is high, which 40 per cent of UK workers would not be able to reach; and because of the Catch 22 rule that the non-British partners income can only be taken into account if they have been working in the UK for 6 months. But how do they get into the UK to work if they cannot satisfy the MIR?

It is doubly unfair to apply the MIR to this group of British citizens where the change is retrospective. When they left their homes in the UK to move to the EU/EEA they were safe in the knowledge that if they established a family while abroad, they would be able to bring them back to Britain. The parents they left behind had the same expectations.

The rules also lead to the perverse result that the Government’s approach involves discrimination against its own citizens. While British citizens who moved to the EU/EEA before the end of 2020 have these new restrictions; EU citizens who moved to the UK before the end of 2020 will not. They will have the right under the Withdrawal Agreement to bring existing family members to the UK for life, as well as keeping their existing right to return to their country of origin with families they have made in the UK.

The Government’s response is that they have allowed 15 months from the end of transition to return with families to the UK. For many their plans to return to the UK are in retirement, well beyond 15 months.

The other two amendments are designed to ensure that the power created can only be used in a way consistent with the UK’s obligations under the UK/EU Withdrawal Agreement. Clause 4 of the Bill enables regulations to be made to amend earlier primary legislation. The UK/EU Withdrawal Agreement is incorporated in UK law by the EU (Withdrawal Agreement) at 2018 as amended. It follows that, as drafted, the Clause 4 power enables the Secretary of State, by regulation, to modify the application of the Withdrawal Agreement in the UK.

The Withdrawal Agreement is the vital underpinning of the rights created in UK law for UK citizens living in the EU and EU citizens living here. It is thus a matter of constitutional concern that the Agreement should have the maximum possible legal protection. As far as immigration is concerned, it underpins the UK’s EU Settlement Scheme for British citizens in the UK and is thus essential, for both EU citizens in the UK and British nationals in the EU, that the Withdrawal Agreement remains sacrosanct. Where any proposed legislation might be seen as breach of the Withdrawal Agreement, the decision as to whether it does so should be a matter for Parliament to consider through primary legislation.

The second amendment to Clause 5 is to ensure that the power created by this clause can only be used in ways which are consistent with the UK’s obligations under the UK/EU Withdrawal Agreement.

The three aspects of this legislation to British citizens covered by the Withdrawal Agreement are the continued right of UK State Pensioners living in the EU to receive their pensions and any pension increases and the continued right of pensioners to healthcare under the “SI Scheme”, which enables a pensioner living in a country which is not responsible for their pensions to receive healthcare in their county of residence at the expense of the country where they paid their pension contributions.

It applies to British pensioners living in the EU and vice versa, and allows those who have worked in the UK and one or more EU countries have their contributions aggregated so as not to fall foul of National rules on minimum contribution periods.Unless this amendment is made it would be possible for a Government, by regulation alone, to modify these vital provisions, in breach of the Withdrawal Agreement. This amendment is necessary to prevent Governments acting in breach of an international Treaty in connection with social security provision.

35 comments for: Howard Flight: The rights of British citizens who live among our European neighbours must be safeguarded

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