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Elections Act 2022

Contents

Part 2: Overseas Electors and EU Citizens

Overseas Electors

Section 14: Extension of franchise for parliamentary elections: British citizens overseas

  1. Section 14(1) inserts new sections into the RPA 1985, replacing existing sections 1 and 2 with new sections 1, 1A, 1B, 1C, 1D and 1E. Section 14(2) gives effect to Schedule 7, which contains minor and consequential amendments and transitional provisions related to the section.
  2. New section 1 replaces the existing provision in section 1(1) of the RPA 1985 that extended the franchise for UK Parliamentary elections to include overseas electors.
  3. New section 1(1) sets out the eligibility to vote as an overseas elector, namely that the person must meet the requirements of new section 1A (qualifying as an overseas elector in respect of a constituency), must on the date of the poll be registered in a register of parliamentary electors and must on both the declaration date and the date of the poll be both a British citizen and not be otherwise ineligible to vote (by, for example, being disqualified to vote having been found guilty of certain elections offences).
  4. New section 1(2) defines the use of "the declaration date", as the date on which an overseas elector’s declaration (under new section 1C) or renewal declaration (under new section 1E) is made.
  5. New section 1A(1) replaces existing section 1(2), (3) and (4) of the RPA 1985. It states that in order to qualify as an overseas elector in respect of a constituency on the date that an overseas elector’s declaration is made the individual must not reside in the United Kingdom.
  6. In addition, new section 1A(1) also provides that, in order to qualify as an overseas elector in a particular constituency an individual must satisfy either one of two conditions that are outlined in new subsections (2) (the ‘previous registration condition’) and (3) (the ‘previous residence condition’). An individual:
    1. satisfies the previous registration condition if they were registered to vote in an electoral register in the UK at some point in the past in respect of an address at a place in the constituency, and if they have not been registered in any electoral register since that register entry ceased to have effect; or
    2. satisfies the previous residence condition if they have never been registered on an electoral register but have previously been resident in the UK, and on the last day that they were resident in the UK they were resident at an address at a place in the constituency (this includes those individuals who were not resident at such an address on that last day but who would be entitled to make a ‘declaration of local connection’ as provided for by section 7B of the RPA 1983) in respect of such an address.
  7. An address for the purposes of the previous registration condition and previous residence condition may include an address that no longer exists (for example, if it has subsequently been demolished).
  8. New section 1A(4) provides that, for the purpose of the previous residence condition, an individual is considered to have been entitled to make a declaration of local connection on the last day they were resident in the UK, even if section 7B of the RPA 1983 was not in force on that date.
  9. New section 1A(5) defines "declaration date" and "electoral register" for the purposes of new section 1A.
  10. New section 1B(1) to 1B(4) replaces existing section 2(1) of the RPA 1985. It provides that a person is eligible to be registered in pursuance of an overseas elector’s declaration if they have made a valid declaration under section 1C (overseas elector’s declaration) and that conditions in subsections (2) and (3) are met.
  11. The conditions, in new subsections (2) and (3) respectively, are that:
    1. the address at which the applicant is seeking to register (either as their previous registration address or their previous residence address) under their declaration is situated within the area for which the registration officer in question is responsible,
    2. the registration officer is satisfied that the person qualifies to be an overseas elector (in accordance with new section 1A) in respect of that constituency on the date the person makes a valid declaration.
  12. New section 1B(4) provides registration officers with the ability to disregard the requirement in new section 1A(3)(c) (that an applicant registering as ‘previously resident’ has never been included on an electoral register) if the registration officer considers there is insufficient evidence to confirm whether or not an applicant has been registered at any time, for example if they no longer hold a copy of a relevant electoral register.
  13. New section 1B(5) provides that declarations must be received by the registration officer within three months of the declaration’s date, otherwise the declaration will be of no effect. This replicates section 2(6) of the RPA 1985.
  14. New section 1B(6) provides that for the purposes of section 1A there is to be a conclusive presumption that a person registered pursuant to an overseas elector’s declaration was not resident in the UK on the day they made the declaration. This is to allow the registration officer to remove any existing domestic registration and replace it once an overseas elector’s application has been successful. This replicates section 2(7) of the RPA 1985.
  15. New section 1B(7) directs to relevant provisions of the RPA 1983 which relate to the making of applications for electoral registration
  16. New section 1C replaces existing section 2(3), (3A) and (4) of the RPA 1985. It sets out the detailed requirements for an overseas elector’s declaration. New section 1C(1) sets out the core requirements that all overseas electors’ declarations must contain; New section 1C(2) sets out the specific additional information needed when applying under the previous registration condition; and new section 1C(3) does likewise for the previous residence condition where the declarant was previously resident at an address in a place within the constituency.
  17. New section 1C(4) provides the specific additional information required where a declarant applies on the basis of the previous residence condition where the declarant would, on the last day they were resident in the UK, have been entitled to make a ‘declaration of local connection’.
  18. New section 1C(5) only applies in relation to declarations that specify an address in Northern Ireland. It makes provision that enables a British citizen who was born in Northern Ireland to declare on their declaration that they are an Irish citizen in addition to, or instead of, declaring they are a British citizen. This reflects the terms of the Good Friday Agreement. This provision is currently contained in section 2(3A) of the RPA 1985.
  19. New section 1C(6) provides that a declaration is void if it contains more than one registration address. Where a declarant makes two or more declarations with the same date but different addresses, each of those declarations are void. This is a replication of the wording in section 2(4) of the RPA 1985. This provision combined with new section 1D(4)(d) prevents a person from making more than one valid declaration at any one time.
  20. New section 1C(7) provides for the declarant to be able to cancel their declaration at any time should they so wish. This replicates section 2(5) of the RPA 1985.
  21. New section 1C(8) defines "electoral register" and "registered" for the purpose of section 1C.
  22. New section 1C(9) deems persons found abandoned in Northern Ireland as a new-born infant as having been born in Northern Ireland unless the contrary is shown, for the purposes of section 1C(5). This is a replication of section 2(10) of the RPA 1985.
  23. New section 1D makes provision in relation to the period a person is entitled to remain registered as an overseas elector.
  24. New section 1D(1) replaces section 2(2) of the RPA 1985. Under subsection (1)(a) once an overseas elector has registered successfully, the overseas elector’s registration entitlement lasts until the third 1 November following the date they are entered on the electoral register. However, under subsection (1)(b), an overseas elector’s entitlement ends sooner if an event occurs which is described in section 1D(4).
  25. Under new section 1D(2), an overseas elector’s registration entitlement can be renewed where the registration officer concerned receives at any time during the last 6 months of a registration period a renewal declaration made by the elector, and the registration officer is satisfied that the elector is entitled to remain registered as an overseas elector. Where this occurs, under new section 1D(3) that elector is entitled to remain registered until the third 1 November that follows the day after the last day of the current registration period. An overseas elector’s registration entitlement can be renewed more than once in this way. This renewal process is a new concept introduced by the Act and therefore there are no corresponding provisions currently contained in the RPA 1985.
  26. New section 1D(4) sets out the events which will end an overseas elector’s registration entitlement sooner:
    1. the registration officer determines that the person was not entitled to be registered or to remain registered;
    2. where the registration officer determines that the person’s entry in the register resulted from, or was altered by, an application that was made by someone else other than the person;
    3. the individual cancels their overseas elector’s declaration (which is provided for in new section 1C(7), or
    4. another entry in respect of the person in an electoral register takes effect (for example if a person becomes registered as the result of a further overseas elector’s declaration relating to a different address or if a person moves back to the UK and registers as an elector).
  27. New section 1D(5) provides that a renewal declaration must be received by the registration officer within three months of the declaration’s making date, otherwise the renewal declaration will have no effect.
  28. New section 1D(6) defines terms used in section 1D.
  29. New section 1D(7) provides a conclusive presumption that an elector was not resident in the United Kingdom on the day the renewal declaration is made by that elector.
  30. New section 1D(8) imposes a duty on registration officers to remove an overseas elector’s entry from the register where that overseas elector is no longer entitled to be registered. This replicates the words of section 2(2) of the RPA 1985.
  31. New section 1E(1) specifies the core requirements of a renewal declaration.
  32. New section 1E(2) provides that a renewal declaration must also state the UK address in respect of which the overseas elector is registered and confirm that the individual has not been separately registered in respect of that address, or registered in respect of any other UK address, since the individual registered as an overseas elector in respect of that address.
  33. New section 1E(3) makes provision for a British citizen who was born in Northern Ireland and is specifying a registration address in Northern Ireland to declare, as part of a renewal declaration, that they are an Irish citizen in addition to, or instead of, a British citizen.
  34. New section 1E(4) sets out that if a person submits a renewal declaration with more than one registration address, the declaration is void. Equally, if an individual makes two or more renewal declarations with the same date but which specify different addresses, each of those declarations are void.
  35. New section 1E(5) defines terms used in this section.

Schedule 7: Overseas electors

Part 1 - Minor and Consequential Amendments
  1. Schedule 7 Part 1 contains minor and consequential amendments and Part 2 contains transitional provision relating to section 14.
  2. Paragraphs 1 to 4 make amendments to the RPA 1983. Paragraphs 1 to 3 make consequential amendments as a result of the replacement of sections 1 and 2 RPA 1985 with new sections 1 to 1E by section 14.
  3. Paragraph 4 makes amendments to Schedule 2 to the RPA 1983 (provisions which may be contained in regulations as to registration etc).
  4. Sub-paragraphs (2) and (3) of paragraph 4 enable provision to be made in secondary legislation relating to renewal declarations and how these are to be transmitted to the registration officer. These replicate existing powers relating to overseas elector’s declarations contained in paragraph 3ZA of Schedule 2 to the RPA 1983.
  5. Sub-paragraph (4) of paragraph 4 inserts sub-paragraph (1AA) into paragraph 5 of Schedule 2 to the RPA 1983. This enables provisions to be prescribed in regulations which authorise a registration officer to require other kinds of evidence that such an officer considers appropriate in support of an application for registration in pursuance of an overseas elector’s declaration. It also enables provisions to be prescribed in regulations authorising a registration officer to deem such other kinds of evidence as the officer considers appropriate to be sufficient or conclusive evidence for the purposes of determining whether a person satisfies the conditions to be an overseas elector.
  6. Paragraph 5 amends section 12 of the RPA 1985 (offences as to declarations) so as to extend the offence in section 12(1) to include renewal declarations as well as overseas elector’s declarations.
  7. Paragraphs 6, 7 and 9 make consequential amendments as a result of the replacement of sections 1 and 2 RPA 1985 with new sections 1 to 1E by section 14.
  8. Paragraphs 8 and 10 omit section 42(7) of the Constitutional Reform and Governance Act 2010 and section 4(6) of the House of Lords Reform Act 2014 respectively. These provisions are no longer required as the new section 1 of the RPA 1985 extends the franchise to a person who has been entered on a register of local government electors.
  9. Paragraph 11 repeals a number of provisions which are redundant as a result of the replacement of sections 1 and 2 RPA 1985 with new sections 1 to 1E by section 14.
Part 2 - Transitional provision
  1. Paragraph 12 defines terms that are used in Part 2.
  2. Paragraph 13 provides that applications for registration made in pursuance of an overseas elector’s declaration which are made prior to the date when section 10 comes fully into force ("the commencement date") will continue to be determined in accordance with sections 1 and 2 of the RPA 1985 as they exist prior to the commencement date. This includes applications that were made before the commencement date, but which are determined after the commencement date.
  3. Paragraph 14 makes transitional provisions for overseas electors who are registered in pursuance of an overseas elector’s declaration made before the commencement date, including those persons (described in paragraph 13) who were registered on or after the commencement date as the result of a declaration made before the commencement date.
  4. Sub-paragraph (2) provides that:
    1. those overseas electors are treated on and after the commencement date as being registered on the basis of satisfying the previous registration condition within the meaning of new section 1A(2) of the RPA 1985 (as substituted by section 10(1)) in respect of the address specified in the pre-commencement declaration; and
    2. subject to sub-paragraph (3), new sections 1D (Duration of entitlement to be registered) and 1E (Renewal Declaration) of the RPA 1985 have effect in respect of those overseas electors.
  5. Sub-paragraph (3) sets the length of the overseas elector’s registration entitlement. In accordance with sub-paragraph (3)(a), the registration entitlement lasts no longer than 12 months beginning from the date on which the overseas elector’s register entry first takes effect. However, where an overseas elector’s registration entitlement would otherwise expire on or after the commencement date but before the specified day, sub-paragraph (3)(b) extends that registration entitlement to the end of the specified day. For these purposes, sub-paragraph (4) defines "specified day" as a day specified by the Secretary of State by regulations.
  6. Paragraph 15 makes transitional provisions for registered overseas electors who have a postal vote in place immediately before the commencement date. This paragraph sets out that, where that postal vote entitlement would otherwise end after the date on which the elector’s registration entitlement ends as a result of paragraph 14, the postal vote entitlement ends at the same time as the registration entitlement (unless it ends sooner).
  7. Paragraph 16 makes transitional provisions for overseas electors who have made a postal vote application prior to the commencement date, but that application has not yet been determined by a registration officer on the commencement date. For these individuals, their postal vote arrangement (if granted) will last until:
    • the end of the period during which the overseas elector is entitled to be registered in pursuance of an overseas declaration in accordance with paragraph 14 (even if the application had originally asked for a longer period of postal vote entitlement),
    • or sooner, if a shorter period was specified in the application.
  1. Paragraph 17 enables the Minister to make regulations to supplement the transitional provisions set out in paragraphs 13 to 16. The regulations may make supplementary or incidental provision, and may make different provision for different purposes or areas. The regulations are to be made by statutory instrument under the negative resolution procedure.
  2. Paragraph 18 enables the Secretary of State to take appropriate steps in promoting awareness of the changes made by this Act to the overseas elector franchise amongst those who qualify, or are likely to qualify, as eligible to register to vote under the new rules as overseas electors.
  3. Subparagraphs (3) and (4) of paragraph 18 allows a limited category of persons to disclose information to the Secretary of State for the purposes of identifying those who are, or are likely to be, qualifying people and what information the Secretary of State may use for this purpose. Any disclosure of personal information must not contravene the data protection legislation (such as the Data Protection Act 2018).

Voting and Candidacy Rights of EU citizens

Section 15: Voting and Candidacy Rights of EU citizens

  1. Section 15 gives effect to Schedule 8, which amends voting and candidacy rights of EU citizens.

Schedule 8: Voting and Candidacy Rights of EU citizens

Part 1 - Amendments to the Representation of the People Act 1983
  1. Paragraph 1(1) amends the franchise for local government electors as set out in section 2 of the RPA 1983, but only for England. New sub-paragraphs (i) & (ii) are inserted into section 2(1)(c) which relate, respectively, to the local franchises in England and Wales. The impact of this is that the local franchise in England is amended, whilst the local franchise in Wales is not. The new sub-paragraph (c)(i), which relates to England only, substitutes the term ‘relevant citizen of the Union’ with two new terms: ‘qualifying EU citizen’ and ‘EU citizen with retained rights’. The effect of the amendments will be that only those EU citizens captured by the new terms will be able to vote in local government elections in England. EU citizens who are not captured by the new definitions will no longer be able to vote in those elections and referendums.
  2. Paragraph 1(2) amends section 4(3) of the RPA 1983 which sets out the entitlement of a person to register as a local government elector in England and Wales. The effect of these amendments will be that only those EU citizens captured by the new definitions of EU citizens will be entitled to register as local government electors in England. EU citizens who are not captured by the new definitions will no longer be entitled to do so.
  3. This paragraph extends to Northern Ireland as provided for in section 66(4)(b). Section 4(3) of the RPA 1983 is applied to local elections in Northern Ireland by Part 1 of Schedule 1 to the Elected Authorities (Northern Ireland) Act 1989. The effect of this is that the substitution of the terms described above will apply to local elections in Northern Ireland and only the newly defined groups will be entitled to register to vote.
  4. This change will flow through to all elections and referendums that use the local government register and are reserved to the UK Government, including: all levels of local election in England and Northern Ireland, including parish elections; London mayoral and London Assembly elections; Northern Ireland Assembly elections; local authority mayoral and combined authority mayoral; Police and Crime Commissioner (PCC) elections (note that the local government franchise is only used for PCC elections in England, and that particular amendments are made to the Police Reform and Social Responsibility Act 2011 to give effect to the franchise change in respect of PCC elections in Wales); as well as local authority governance referendums, local council tax referendums, neighbourhood planning referendums and parish polls. As a result of amendments made by paragraph 2 of Schedule 8, these changes will also be applied to ward elections for common councillors in the City of London.
  5. Paragraph 1(3) to (7) makes a number of amendments, as a result of the changes to sections 2 and 4, to sections 7B, and 15 to 17 of the RPA 1983 which allow persons, who would not otherwise be able, to register to vote either by way of a ‘declaration of local connection’, or by virtue of a relevant service qualification (by way of a ‘service declaration’). The effect of these amendments is to change the availability of these methods of registration, so that the only EU citizens who can use them are ‘qualifying EU citizens’ and ‘EU citizens with retained rights’. The effect of these changes is limited to England and Northern Ireland (see below on Part 3 of Schedule 8 for explanation of how these changes extend to Northern Ireland).
  6. Paragraph 1(8) amends section 49(5) of the RPA 1983 which provides that if a person is registered in the parliamentary or local government register of electors, or entered in the list of proxies, they will not be prevented from voting on specified grounds, including that they are not a ‘relevant citizen of the Union’. Sub-paragraph (8)(a) amends this section to replace references to "a relevant citizen of the Union" with references to "qualifying EU citizen or an EU citizen with retained rights" in relation to local government electors in England; and also limits relevance of the term "relevant citizen of the Union" to local government electors in Wales. This amendment will also extend to local elections in Northern Ireland as provided in section 66(4)(b) of the Act.
  7. Paragraph 1(9) amends section 201 of the RPA 1983, which makes general provision about regulations made under the Act. The effect is that regulations made under the new power in section 203A(2) (inserted by paragraph 1(11) and discussed below) are to be subject to the negative resolution procedure.
  8. Paragraph 1(10) inserts the new definitions of ‘EU citizen with retained rights’ and ‘qualifying EU citizen’ into section 203 of the RPA 1983 (which contains general definitions for that Act). The existing definition of ‘relevant citizen of the union’ at section 202(1) of the Representation of the People Act has been left intact. This will avoid any impact on any legislation that continues to use the term ‘relevant citizen of the union’ after this Act comes into effect.
  9. Paragraph 1(11) inserts new sections 203A and 203B into the RPA 1983. These set out the new definitions of ‘qualifying EU citizen’ (203A) and ‘EU citizen with retained rights’ (203B). In the case of ‘qualifying EU citizens’, where the grant of voting and candidacy rights is dependent upon the UK entering into a treaty with another country, the provisions within section 203A also prescribe the process by which a country is added to or removed from the list of countries at Schedule 6A with the effect of granting or removing voting and candidacy rights from the relevant citizens.
  10. New section 203A sets out the eligibility criteria that a person must meet in order to be a ‘qualifying EU citizen’. It describes the group of people who will be granted voting and candidacy rights as a consequence of the UK having a relevant treaty with another country.
  11. Section 203A(2) requires the Secretary of State to make regulations adding a country to the list in Schedule 6A where certain conditions are met, as follows:
    1. Section 203A(2)(a) requires that a country must be a ‘qualifying country’. ‘Qualifying country’ is defined at Section 203A(5) and essentially relates to countries which were EU Member States immediately before the IP completion day.
    2. Section 203A(2)(b) requires that the United Kingdom and the country intend to become parties to a relevant treaty. ‘Relevant treaty’ is defined at section 203A(5), see below. This section has the effect of requiring that a country has entered into an agreement with the UK on voting and candidacy rights, with the effect that each side will be guaranteeing to confer voting and candidacy rights for local elections respectively.
    3. Section 203A(2)(c) provides that only treaties which are subject to Parliamentary scrutiny under Part 2 of the Constitutional Reform and Governance Act 2010 (CRAG), can be added to the list at Schedule 6A. Section 20 of CRAG requires treaties to be laid before Parliament before ratification. It provides an opportunity for both Houses to scrutinise the contents of a treaty and, potentially, to object to ratification. A treaty must have completed the process required by section 20 of CRAG before the Secretary of State can act to add a country to Schedule 6A.
  12. Regulations adding a country to Schedule 6A will be subject to the negative resolution procedure, so can be annulled by either House of Parliament. The effect of adding a country to the Schedule will be to grant voting and candidacy rights to citizens of that country, provided they meet the additional criteria set out in the relevant immigration and electoral legislation.
  13. Section 203A(3) provides a power for the Secretary of State by regulations to remove a country from the list in Schedule 6A where that country ceases to be a party to the treaty which led to it being included on the list. Removing a country will have the effect of removing voting and candidacy rights from the citizens of that country. The power to make such regulations enables, but does not require, the Secretary of State to remove a country. Regulations made under section 203A(3) will be subject to the affirmative resolution procedure and therefore must be laid before and approved by a resolution of each House of Parliament.
  14. Section 203A(4) requires the Secretary of State to inform electoral administrators and the Electoral Commission when a country is added to, or removed from, Schedule 6A as soon as is reasonably practicable.
  15. Section 203A(5) provides definitions of the terms used in this section.
  16. Section 203B sets out the eligibility criteria for an individual to be an ‘EU citizen with retained rights’. The policy intention is to provide continuity in relation to the voting and candidacy rights of EU citizens who have been living in the UK since before Implementation Period Completion Day (IPCD) (11pm on 31 December 2020) and who hold lawful immigration status.
  17. Section 203B(1) sets out that to be an ‘EU citizen with retained rights’ a person must meet all of the following criteria:
    1. A person must be a citizen of a ‘country’ as defined in s.203B(8). See below for that definition.
    2. A person must have been an EU citizen immediately before IPCD.
    3. A person must have been resident in either the UK or any of the Crown Dependencies - that is the Bailiwick of Jersey, the Bailiwick of Guernsey, or the Isle of Man - immediately before IPCD.
    4. A person must also fall within any of subsections (2) to (4) of sections 203B, which are explained below.
    5. A person must not be a ‘qualifying EU citizen’. The definition of a qualifying EU citizen is set out in section 203A as explained above.
  18. Section 203B(2) to (4) set out the various alternative ways in which an individual may satisfy section 203B(1)(d).
  19. Section 203B(2) requires that an individual has settled or pre-settled status (forms of ‘leave to enter or remain’) under the UK EU Settlement Scheme (EUSS), or under one of the EUSS of the Crown Dependencies (the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man), except where such leave has been granted to an individual on the basis that they are a ‘joining family member’. Section 203B(12) identifies the relevant provisions of the UK’s and Crown Dependencies’ Immigration Rules that currently apply to joining family members, and provides for the possibility that either or both of the relevant provisions of the Immigration Rules may be replaced.
  20. Section 203B(3) requires that an individual currently holds non-EUSS leave to remain in the UK or Crown Dependencies (with the exception of those persons who hold EUSS leave as ‘joining family members’), and that they satisfy the conditions set out in subsection (5), as discussed below.
  21. Section 203B(4) requires that an individual meets the following three criteria: first, that they do not, at the relevant time, require leave to remain in the UK or Crown Dependencies; second, that they are resident at the relevant time in the UK or Crown Dependencies; and third, that they must satisfy the criteria set out in subsection (5), as discussed below.
  22. Section 203B(5) sets out the necessary conditions that individuals must satisfy in order to meet the requirements of either 203B(3) or 203B(4) in full. Section 203B(5)(a) requires that, excepting those scenarios set out in 203B(7) (pursuant to section 203B(6)), a person must have continuously held UK or Islands leave, or not required such leave, since 30 June 2021 (see definition of "the relevant date" at section 203B(10)). Section 203B(5)(b) requires that, during any period in which a person did not require such leave under the Immigration Act 1971 (i.e., they are exempted from the requirement), they must have been resident in the UK or Crown Dependencies.
  23. Section 203B(6) and (7) provide for periods of time when a person may not have held UK or Islands leave, but which can be disregarded for purposes of section 203B(5)(a). Section 203B(6) requires that, in order for a period of time to be disregarded under these provisions, the individual must have been resident in the UK or Crown Dependencies for that period of time. Both provisions in subsection (7) describe potential gaps in legal immigration status that may have been experienced by an individual - and tolerated by Home Office - as a consequence of operation of the ‘grace period’ regulations (the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (2020/1209)) and the EUSS. Therefore:
    • Subsection (7)(a) allows for a period of time to be disregarded where an individual did not have leave but was awaiting the outcome of an application for leave made before 30 June 2021 (provided that the application was ultimately successful).
    • Subsection (7)(b) allows for a period of time to be disregarded when an individual did not have leave but was subsequently granted EUSS leave (although not as a ‘joining family member’) by virtue of a late application, made after 30 June 2021, under the ‘reasonable excuse’ proviso to the EU Settlement Scheme. Note that such persons are expressly provided for in 203B(2); however, 203B(7) allows for the possibility that such a person may subsequently go on to hold another form of leave, and therefore no longer be captured by 203B(2).
  1. Section 203B(8) defines which countries are, or may be, relevant to this section.
  2. 203B(8)(a) stipulates that an EU citizen with retained rights may be from a country that was a member state immediately before IPCD, other than the Republic of Ireland.
  3. Section 203B(8)(b) stipulates that the section would apply to a country that was part of an EU Member State immediately before IPCD, other than the Republic of Ireland. This allows for the possibility that a part of a country that was an EU Member State at IPCD may, in future, secede to form a new independent nation state. Citizens of that country may be eligible to qualify for retained rights, provided they meet the other eligibility requirements set out elsewhere.
  4. Section 203B(8)(c) stipulates that the section would apply to a country that is formed of two or more former countries, at least one of which was an EU Member State immediately before IPCD, other than the Republic of Ireland’. This allows for the possibility that a country that was an EU Member State at IPCD may merge with one or more countries that may or may not have been an EU Member State or States at IPCD, to form a new country. The effect is to enable citizens of such a new country to qualify as EU citizens with retained rights, subject to those persons meeting additional eligibility requirements set out elsewhere (including, as per 203B(1)(b), that they were a citizen of an EU Member State immediately before IPCD).
  5. The exclusion of the Republic of Ireland from 203B(8)(a), (b), and (c) reflects the fact that Irish citizens’ voting and candidacy rights are long-standing and pre-date the UK’s membership of the EU.
  6. Section 203B(9) indicates that references throughout section 203B to individuals who have leave to enter or remain under the Immigration Act 1971 should be taken to include individuals who are treated as having such leave (as a result of other legislation).
  7. Sections 203B(10) and 203B(11) provide definitions for the terms used in section 203B. Most of these are self-explanatory. ‘Residence scheme immigration rules’ refers to the EU Settlement Schemes. There are four such schemes: one for the UK, and one for each of the Crown Dependencies.
  8. Paragraph 1(12) creates new Schedule 6A to the RPA 1983 listing the countries the citizens of which are eligible (subject to the other eligibility requirements) to be considered ‘qualifying EU citizens’ as set out at section 203A(1). Currently, this list includes Luxembourg, Poland, Portugal, and Spain, as these countries have already reached bilateral treaties with the UK regarding voting and candidacy rights, and each of these agreements has completed the CRAG process in Parliament.
  9. Paragraphs 1(9) to (12) extend to Northern Ireland and therefore local elections in Northern Ireland as provided for by section 66(4)(b).
Part 2 - Amendments in relation to certain local elections in England and Wales
  1. Paragraph 2 of Schedule 8 amends the City of London (Various Powers) Act 1957 as it relates to the rights of European citizens to vote and to stand in Common Councillor elections in the City of London.
  2. Paragraph 2(2) amends section 4 of the 1957 Act, which sets out definitions of terms used in the Act. It substitutes the existing term, ‘relevant citizen of the Union’ with two new terms: ‘a qualifying EU citizen or an EU citizen with retained rights’. Those terms will have the same meanings as in the amended RPA 1983, which are explained above.
  3. Paragraph 2(3) amends section 5 of the 1957 Act which sets out the criteria that a person must meet in order to stand as a candidate for election to the Common Council. It substitutes the term ‘relevant citizen of the Union’ with the two new terms: ‘EU citizen with retained rights’ and ‘qualifying EU citizen’. The effect is that only those EU citizens who are captured by the definitions of the new terms will qualify to stand as candidates for election to the Common Council.
  4. Paragraph 2(4) amends section 6 of the 1957 Act which sets out the criteria that a person must meet in order to qualify to vote in ward elections. It substitutes the term ‘relevant citizen of the Union’ with the two new terms: ‘EU citizen with retained rights’ and ‘qualifying EU citizen’. The effect is that only those EU citizens who are captured by the definitions of the new terms will be entitled to vote in ward elections to the common council.
  5. Paragraph 3 makes amendments to the Local Government Act 1972 in relation to the rights of EU citizens to stand for and hold office in local authorities in England. The effect of these amendments is that the only EU citizens who will be eligible to vote and stand for office as a member ("councillor") or directly-elected mayor of a local authority in England will be qualifying EU citizens and EU citizens with retained rights. These changes follow the changes made in relation to the local franchise in England where ’qualifying EU citizens’ and ‘EU citizens with retained rights’ have the same meaning as described at sections 203A and 203B of the RPA 1983 as inserted by paragraph 1(11) of Part 1 to the Schedule. EU citizens who are not captured by these definitions will no longer be able to stand for election and hold office as a member or directly-elected mayor of a local authority in England.
  6. Paragraph 4 makes amendments to the Greater London Authority Act 1999 in relation to the rights of EU citizens to stand for and hold office as Mayor of London or London Assembly Member. The effect of these amendments is that the only EU citizens who will be eligible to stand for election and hold office as Mayor of London or as a London Assembly member will be qualifying EU citizens and EU citizens with retained rights. These changes follow the changes made in relation to the local franchise in England in Part 1 of the Schedule, and the changes made to the right to stand for and hold office in a local authority in England (paragraph 3 of Part 2 of the Schedule) where ’qualifying EU citizens’ and ‘EU citizens with retained rights’ have the same meaning as described at sections 203A and 203B of the RPA 1983 as inserted by paragraph 1(11) of Part 1 of this Schedule. EU citizens who are not captured by these definitions will no longer be able to stand for election and hold office as a Mayor of London or London Assembly Member.
  7. Paragraph 5 makes amendments to the definition of ‘qualifying citizen’ at paragraph 8(3) of Schedule 5B to the Local Democracy, Economic Development and Construction Act 2009 in relation to the rights of EU citizens to stand for and hold office as mayor for a combined authority area. The effect of these amendments is that the only EU citizens who will be eligible to stand for and hold office as a mayor for a combined authority area will be qualifying EU citizens and EU citizens with retained rights. These changes follow the changes made in relation to the local franchise in England in Part 1 of this Schedule, and the changes made to the right to stand for and hold office in a local authority in England (paragraph 3 of Part 2 of this Schedule) where ‘qualifying EU citizen’ and ‘EU citizen with retained rights’ have the same meaning as described at sections 203A and 203B of the RPA 1983 as inserted by paragraph 1(11) of Part 1 of this Schedule. EU citizens who are not captured by these definitions will no longer be able to stand for election and hold office as an elected mayor in a combined authority area.
  8. Paragraph 6 makes amendments to the Police Reform and Social Responsibility Act (PRSRA) 2011, which includes voting and candidacy rights for the office of PCCs in both England and Wales. The amendments are largely limited to PCC elections in Wales. This is because for England, the franchise and candidacy rights for PCC elections follow those for local elections in England, and therefore are amended by changes made by Part 1 of Schedule 8 about which EU citizens are entitled to vote and stand at local elections in England. For Wales, the franchise for local elections is devolved, and is not the same as for PCC elections in Wales (which is reserved). The amendments are:
    1. Section 102 has been amended to remove the definition of ‘relevant citizen of the Union’ and to define ‘qualifying EU citizen’ and ‘EU citizen with retained rights’ by reference to the RPA 1983.
    2. In sections 51(6C)(a), 52(1C)(a), and 64(1C)(a), which are specific to PCC elections in Wales, the term ‘relevant citizen of the Union’ has been substituted with ‘qualifying EU citizen or an EU citizen with retained rights’. The effect will be that the only EU citizens who will be able to be a relevant elector in Wales (under section 51), to vote in PCC elections in Wales (under section 52), and to stand for office as Police and Crime Commissioner (under section 64) will be those EU citizens captured by the new terms.
    3. In section 68, the citizenship condition (which covers both England and Wales) has been amended to substitute ‘citizen of the Union’ with ‘qualifying EU citizen or an EU citizen with retained rights’ and this applies to people in England and Wales. This remains consistent with the citizenship condition for the Mayor of London and combined authority mayors.
Part 3 - Amendments in relation to certain elections in Northern Ireland
  1. Paragraph 7 amends form 2 in Schedule 5 to the Electoral Law Act (Northern Ireland) 1962 by amending the declaration of nationality in the consent to nomination made by someone standing for election at a local council in Northern Ireland. The effect of the amendment is that the wording ‘citizen of another member state of the European Union’ is changed to ‘qualifying EU citizen or EU citizen with retained rights within the meaning of sections 203A and 203B of the RPA 1983’. The provision reflects the changes to eligibility for standing as candidate at local elections in Northern Ireland as provided for by paragraph 8 of Part 3 of this Schedule.
  2. Paragraph 8 makes amendments to section 3 of the Local Government Act (Northern Ireland) 1972 in relation to the rights of EU citizens to stand for office at local councils in Northern Ireland. The effect of these amendments is that only qualifying EU citizens or EU citizens with retained rights will be qualified to stand for election as a councillor in Northern Ireland.
  3. Paragraph 9 makes amendments to the Elected Authorities (Northern Ireland) Act 1989 by amending the franchise for local electors in Northern Ireland reflecting the changes for local government electors in England made by paragraph 1(2) of Schedule 8. The effect of these amendments will be that only those EU citizens captured by the new definitions of EU citizens will be able to vote in elections in Northern Ireland that use the local elections franchise. EU citizens who are not captured by the new definitions will no longer be able to vote in those elections. This will impact Assembly elections in Northern Ireland as these use the local elections franchise.
    1. Paragraph 9(3)(a), which substitutes the term ‘relevant citizen of the Union’ for both new definitions - ‘a qualifying EU citizen or an EU citizen with retained rights’ - removes the automatic right to vote from all EU citizens (with the exception of citizens of the Republic of Ireland, Cyprus, and Malta) which is currently conferred by virtue of EU citizenship alone. The effect will be that only EU citizens who meet the eligibility criteria of either of the newly defined groups will be included in the local elections franchise in Northern Ireland.
    2. Paragraph 9(3)(b), provides that the terms ‘qualifying EU citizens’ and ‘EU citizens with retained rights’ have the same meaning as described at sections 203A and 203B of the RPA 1983 as inserted by paragraph 1(11) of Part 1 to this Schedule.
  4. Paragraph 9(5) applies with modifications the changes to sections 7B, 15 and 17 of the RPA 1983 to local elections in Northern Ireland.
  5. Paragraph 10 makes amendments to the Northern Ireland Act 1998 to provide that qualifying EU citizens and EU citizens with retained rights are disqualified for membership of the Northern Ireland Assembly unless they are resident in the UK as set out in section 4(3) of the RPA 1983 and applied to Northern Ireland local elections by Schedule 1 to the Elected Authorities (Northern Ireland) Act 1989. The wording ‘citizen of another member state of the European Union’ is changed to ‘qualifying EU citizen or EU citizen with retained rights’ within the meaning of sections 203A and 203B of the RPA 1983.
Part 4 - Transitional provision
  1. Paragraph 12 makes transitional provision enabling an EU citizen elected before the new provisions described above come into force, and who otherwise remains eligible, to serve their full term of office.
    1. Paragraph 12(1) provides that for this transitional provision to apply to an individual, the following requirements must be satisfied;
      1. Immediately before the particular provision changing the individual’s right to hold office (the ‘relevant provision’) took effect, the individual must have held one of the offices listed at paragraph 12(4) (see below).
      2. The individual’s term in office must have been due to continue beyond the time that the relevant provision took effect.
      3. The individual must be in a situation where, but for the effect of the transitional provision, they would have become disqualified from continuing to hold office as a result of the relevant provision taking effect.
    2. Paragraph 12(2) provides that the right of individuals who satisfy the requirements listed in paragraph 12(1) to complete their term in office will not be affected by the coming into force of a provision of Schedule 8 which would otherwise affect their ability to continue to hold that office.. The effect of this is to allow office-holders who would otherwise lose the right to hold office under these measures to complete their term in office, though they would not be entitled to seek re-election.
    3. Paragraph 12(3) provides that for the purposes of this transitional provision, an individual will be considered to be ‘holding an office’ from the moment that that person is elected, or declared to be returned as, the holder of the office.
    4. Paragraph 12(4) lists the offices to which this provision applies. These are:
      1. members of the Northern Ireland Assembly
      2. offices elected at all levels of council election in England (parish, district, county, and London boroughs, and the council of the Isles of Scilly).
      3. local authority mayors in England,
      4. combined authority mayors in England,
      5. the Mayor of London
      6. members of the London Assembly
      7. PCCs in England and Wales
  2. Paragraph 12(5) clarifies the specific ‘local authority’ elections described in paragraph 12(4)(b), listing the specific elections given above.
  3. Paragraph 13 enables regulations to be made containing transitional or saving provisions connected to the changes made by the rest of Schedule 8. The provision that can be made includes modifying the effect of provisions of other legislation (including primary legislation). Paragraph 13(4) provides that a statutory instrument made using this power would be subject to affirmative procedure in Parliament.

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