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Brexit January 2021: what has changed?

Posted on 15/01/21

Welcome to this round-up of Brexit legislation and guidance.

Legislation

Guidance

Legislation

European Union (Withdrawal) Act 2018

This is the main Act to make provisions in connection with the withdrawal of the UK from the EU.

The Act saves and incorporates into UK domestic law most of EU law that had effect in the UK on 31 December 2020 as ‘retained EU law’.

Retained EU case law is defined under section 6(7) of the Act as any principles laid down by, and any decisions of, the European Court of Justice (ECJ) as they have effect in EU law immediately before 31 December 2020.

These principles and decisions from the ECJ are subject to certain exceptions and modifications under UK law.

Secondary legislation will still have effect in certain circumstances and apply to some individuals after that date. The Immigration (European Economic Area) Regulations 2016 are an example of such secondary legislation.

 

The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 SI 2020/1525

These Regulations provide details on which courts are not bound by retained EU case law.

UK courts are bound to follow judgments of the ECJ issued before 31 December 2020. There are exceptions: the Supreme Court, the Court of Appeal and other appellate courts that have been given the power to depart from ECJ judgements can do so by applying certain tests.

 

Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020

This Act ends free movement rights under retained EU law after 31 December 2020.

From 1 January 2021, citizens of these areas and their family members will require permission to enter and remain in the UK under the Immigration Act 1971:

  • EU
  • EFTA states of Iceland, Norway and Liechtenstein
  • Switzerland

 

Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 SI 2020/1309

These Regulations amend some domestic legislation as a consequence of, or in connection with, the end of free movement law on 31 December 2020. The amendments relate to immigration, nationality and benefits and services.

The effect is to align EEA citizens with non-EEA citizens in the UK’s immigration system while protecting the rights of Irish citizens and EEA citizens and their family members who have been granted status under the EU Settlement Scheme.

 

The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 SI 2020/1209

These Regulations came into force on 31 December 2020 and give effect to aspects of the following agreements concerning the residence rights of EEA citizens and their family members:

  • EU Withdrawal Agreement
  • EEA EFTA Separation Agreement
  • Swiss Citizens’ Rights Agreement

The Regulations specify the deadline of 30 June 2021 for an application to the EU Settlement Scheme by EEA citizens and their family members resident in the UK on 31 December 2020.

They protect the existing residence rights in the UK of EEA citizens who were lawfully resident in the UK by virtue of EU free movement law immediately before 31 December 2020, but do not yet have status under the Scheme, and of their relevant family members.

They provide for those who were not physically in the UK on 31 December 2020 but are to be treated as resident in the UK under the Agreements.

They preserve access to homelessness assistance and benefits from 31 December 2020 to 30 June 2021 (“the grace period”) for those with temporary protection who meet the eligibility criteria under retained EU law, including people with pending applications to the Scheme.

 

The Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020/1213

These Regulations provide for EEA nationals who, by 31 December 2020, were working or self-employed in the UK but living elsewhere (“frontier workers”) to continue to work in the UK for as long as they remain a frontier worker.

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Guidance

MHCLG Guidance: Access to social housing and homelessness assistance for EEA and Swiss citizens in England

This guidance explains the rights of European Economic Area (EEA) and Swiss citizens to access social housing and homelessness assistance in England after 1 January 2021.

 

DWP staff guidance

DWP issued the following memos with advice for decision makers:

ADM memo 34/20: Right to reside – European Union (Withdrawal Agreement) Act 2020 – UC

ADM memo 33/20: Right to reside – The Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020 – UC

ADM memo 31/20: Retaining worker status and the genuine prospect of work test

ADM memo 30/20: Right to reside – The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 – UC

ADM memo 29/20: Right to reside – The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 – UC

 

Allocations and homelessness codes of guidance changed 

On 31 December 2020 MHCLG issued a new Allocation of accommodation: guidance for local authorities and updated chapter 7 of the Homelessness code of guidance for local authorities to cover changes to eligibility rules for EEA nationals after Brexit.

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