(8 years, 5 months ago)
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Lord Lucas
To ask Her Majesty’s Government whether it is their policy that European Union citizens lawfully resident or working in the United Kingdom at the date when the United Kingdom leaves the European Union will have an unconditional right to remain in the United Kingdom.
Lord Lucas (Con)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper but I do not expect my noble and learned friend Lord Keen to answer it. He is a Minister, but for how long? I hope that it is a long time but he does not know to which Minister he is now responsible. He does not even know which department will be responsible for dealing with this Question, so to ask for an Answer seems too much. However, I hope that I can ask him to relay to his colleagues, whoever they may turn out to be over the next day or two, the content of this debate and the way that this House clearly feels about this Question.
The EU citizens who are the subject of this Question fall into three segments. There are those who have been resident here for five years or more, or rather who will have been when we leave the European Union. It ought to be possible for the Government to say with total clarity that those people have a right to remain. It is so clearly in law but we have not quite got there in what Ministers have been able to say to date. If I could tempt my noble and learned friend in any way, it would be to give clarity—to give something unequivocal which we can take to our European friends out there and say, “You will qualify. You’ll be all right”. Then there are those who have moved here in the last three years or so, who may well not have passed the five-year mark when we leave the European Union and who are the main subject of this debate. Then there are those who are yet to join us from the European Union; I will cover those people too.
The Government have argued that giving a unilateral reassurance to EU citizens in this country that they have an unqualified right to remain would leave our citizens in European countries unprotected. My view is that the negotiating advantages which the Government seek by withholding reassurance from EU citizens here have gone but that the costs of that attitude remain. The Commons vote on 6 July was unequivocal. After that vote and all the discussions surrounding it, the EU can be in no doubt whatever as to what action we will take. It must be clear to it that our attitude as a country is that we welcomed our EU friends here, to work and to make their lives, and that although we have set a new course for ourselves we will stand by the deal that we did with our EU friends and be true to our word. There is no negotiating value in maintaining otherwise. It is obvious what we are going to do; there can be nothing to negotiate, whether we do it now or later.
Thinking that there will somehow be some kind of fast track for items in European negotiations is to underestimate the European Commission. If we want something fast, we will be made to pay for that. Nor do I think that there will be any likely action by the European Union or its component states in regard to our citizens living there. That would prompt in us some cynical tit-for-tat with their citizens living here. It seems to me that there is no longer any force in the argument that there is something to be gained by delay, but there are a great deal of costs involved in delaying. We already know that there are some instances of valuable employees choosing to leave the UK for somewhere they feel more certain of building a career over the long term. That can be withstood in the short term but if we let it persist it will start to be the jobs that move too, not just the people, and we will suffer permanent damage. I talked yesterday to a senior manager in the NHS who was recording how his European colleagues were feeling that they were “other” or unwanted—and that is in the environment of the NHS, which is essentially friendly and welcoming. If we let that continue, it will be corrosive of relationships within this country and abroad.
Surely the best protection for our citizens abroad is for us to remove the uncertainty for their equivalents here and to set a strong, moral example at the beginning of our Brexit negotiations. As my right honourable friend David Davis has pointed out, it is the countries that matter at this stage. Although they obviously all have their own interest at heart, below that lies friendship and understanding. There is no motivation there to harm our citizens. If we do the right thing now, we will set the tone for the Brexit negotiations as one of friendship, understanding and mutual advantage. I do not see the point in waiting for Jean-Claude Juncker to do the opposite.
If we take that attitude, we can commit to other things now with advantage which will help us in the short term and help the negotiations to be amicable. We can look at the question of people from the EU who want to come and work here now. Unlike citizens of any other part of the world, they cannot be certain on what conditions they would join hereon. If you come here from Australia, you know exactly what the rules are; if you come here from the EU, you do not have a clue what is happening after Brexit. We know for certain that we want some of these people. We need an inflow of doctors and nurses to the NHS; we want the brightest and the best coming in under tiers 1 and 2 to help us run the economy; we want their students in our universities. Why put off a decision on those sort of things? Why not end the uncertainty? We would gain a great deal and lose nothing.
We are aware too of the concerns of our research establishment that it is starting to be excluded from bids, as a result of it not being clear whether we will continue to qualify for Horizon 2020 and its equivalents. Instead of sitting and suffering that for a couple of years, let us instead make it clear that leaving the EU will make us a better collaborator and adopt a really positive tone towards international collaboration. Let us make it clear how these long-term relationships will continue to be nourished.
We should also support our tech start-ups. Particularly in areas where there is heavy regulation, such as medicine, it is clear already that US funders are thinking that a company starting in Britain will have two sets of regulations to deal with rather than one, and they would rather back the same idea in Berlin. We have to do something about that, and not wait until the end of negotiations.
If we are constructive and positive from the outset regarding peripheral areas and do what we know we will do eventually anyway, we will avoid the costs of prolonged uncertainty. We will reinforce our friendships around Europe and do nothing but good to the prospects of agreement in the main contentious areas such as trade and immigration.
Lord Berkeley (Lab)
My Lords, I am very pleased to speak in this debate and support the Question put by the noble Lord, Lord Lucas, who is absolutely right. The situation of the citizens of other EU member states in the UK is now getting very serious, whether they are here for five, 10 or 15 years or for a few months. As he says, the problem is the uncertainty. I have been talking to my many friends who fall into this category, including people working in the public sector, local authorities, manufacturing—there is a big story to tell there—and the health services, as the noble Lord said. I was with a hospital consultant last night who does a lot of research into children’s diseases and treatment across the EU, who was saying, “What do we do? Is everybody going to leave?”. Lots of people here from the EU work in the health service, and that applies to many other fields of research too. I declare an interest as a trustee of Plymouth Marine Laboratory. It gets quite a lot of money from the EU for research, and a lot of people come from the EU to work there and gain experience. That goes two ways of course, as I will come on to.
We all know about the need for workers in the agriculture, hotel, catering and entertainment sectors, but we should not forget the arts. There have been a few comments recently from orchestra players feeling that they cannot stay here any more because they are worried about the long term. We need both communities to work together and to learn from and benefit each other. There are of course people who are married to or have a relationship with somebody from a different member state. I know many of them, and they are very upset, because of the uncertainty. This idea that came out in the debate for Brexit about everybody sponging from the state is a total load of rubbish. Most of these people work very hard and some of them send money back—I suggest that we need them. Now that the Prime Minister has, rightly, said she is going to take the negotiations slowly, that will merely delay the uncertainty unless something is done.
The same comments apply in the other direction, to UK nationals working in other member states. Some noble Lords may have received a very interesting email about a week ago from somebody who is representing more than 200 people who had got together, listing all the things that made them very worried and need sorting out. We could have a debate on each one, and all of them apply both ways. The first one is obviously residency. I will not go into each one, because there is nothing like enough time for that, but healthcare is another. What happens to the E111 and everything else if we leave? How does health insurance work?
What about property ownership? Many people own property in France and other member states, and that works the other way too. Will that be affected, for example in relation to property tax? Then there are bank accounts, loans, mortgages and everything that everybody takes for granted now. What happens to pensions, whether private or state? We do not know; they do not know. Then there is education: university fees, British teachers abroad, children in local education in the country of residence et cetera. I am only reading out the headlines here, but it goes on for another page. What about the pet passport? I do not keep a dog myself but for some people that is very important.
The right to work is fundamental, because many of our UK nationals work on the continent for very good reasons. Will they still be allowed to? We talk about the single market and manufacturing, which are obviously big issues, but there are also small businesses. Will EU nationals be able to run their businesses in a different member state? There is also income tax, double taxation, benefits, wills and inheritance, passports, driving licences, ID cards, vehicles, customs and excise, and border controls. That is just a small list of things that are going to go wrong unless the Government recognise this and do something about it. I know that they are setting up Brexit committees or groups of officials in each department of state to work these things out, but I agree with the noble Lord, Lord Lucas, that, while it is all going on, it is going take a very long time—whether two years or three, we do not know. The uncertainty is having a very serious effect on people, financially as well as socially. They are frightened; their lives have been plunged into uncertainty.
Ministers have so far refused to make any commitment until new Ministers are in place. Perhaps it is a bit soon to talk about this today, but I urge the new Ministers to say that there is a red line, and that we think it right that EU nationals—and, in the other direction, UK nationals—who are here at the moment should have the right to remain. That could easily be set as a red line for the start of negotiations. I suspect that our friends on the continent with whom we will be negotiating would welcome that as being perfectly reasonable.
Baroness Smith of Newnham (LD)
My Lords, I very much welcome this debate and thank the noble Lord, Lord Lucas, for bringing it, not least because this has given me the fifth opportunity to stand up and address this issue with members of Her Majesty’s Government, with four different Ministers. The noble and learned Lord, Lord Keen, has already had the dubious pleasure of responding to one of the questions that I have raised about EU nationals resident in the United Kingdom, but for the last three weeks we have very much had set-piece answers, more or less to the effect that, “That is a matter for the next Prime Minister”, or, “That is a matter for the next Government”. I am not sure whether the noble and learned Lord already knows that he is going to remain in his current ministerial office, or whether he is a placeholder. We obviously very much hope that he will still be with us in the future, but we now have a new Prime Minister, a new Home Secretary, a new Government being created and the new Minister for Brexit. Gradually, the people who are able to make the decisions are being put in place.
So far, in the last three weeks, the answers have been woefully inadequate. The idea that it is for the next Government to decide was clearly acceptable as a holding answer, but the mood music we were getting from the Government and the former Home Secretary was wholly unacceptable. My sense from the debate in your Lordships’ House last week on the outcome of the referendum, and from the debates in the House of Commons last week, was that parliamentarians in both Chambers believe that it is vital to give certainty now to EU nationals resident in the United Kingdom—not to wait until a process of negotiation is over or until we have had the opportunity to see whether there can be bargaining chips, but to make some decisions right here, right now.
Like the noble Lord, Lord Lucas, I suspect that it will not be possible for the Minister to give us immediate answers today—after all, the new Government are still in the process of being formed. Will he take a message to the new Prime Minister and Home Secretary that it is wholly unacceptable to treat people as bargaining chips? The idea that we somehow have to wait for negotiations before we make decisions on EU nationals resident in the United Kingdom is unacceptable. We understand that negotiations are important and that the process of withdrawal from the European Union is about negotiation. If we are talking about widgets and their free movement, we can wait a bit; we can negotiate. If we are talking about EU nationals in this country and UK nationals resident in other countries, we are talking about not inanimate objects but fellow human beings. It is wholly wrong that we use them as bargaining chips. The Government can make the decision here and now that EU nationals resident in the United Kingdom at the time of the referendum will have their rights ensured. What is stopping the Government doing that? Saying that people are bargaining chips is unacceptable.
This is about uncertainty not just for individuals but for businesses. We have already heard about the NHS and universities—I declare an interest, in that I am employed by Cambridge University, an international university that employs many EU nationals and involves many EU citizens. There is uncertainty, and it is insufficient to say that legally, nothing changes until we withdraw from the European Union, that people’s rights do not change until the day we leave. The change happened on 23 June, when the decision was taken to leave the European Union. EU nationals are already concerned about what the future holds for them; many are wondering whether they should look to return to their country of origin, or where else in the European Union they should go.
That is bad for individuals and their families, bad for business and bad for the United Kingdom. It is surely in the purview of the Government to make a decision. They can make a decision that is pragmatic; they can make a decision that is wholly wrong by saying that it is about negotiation; they can take a leadership role and do the right thing to give security here and now, and I call on the Government to do so. Reciprocity and waiting for reciprocity is not the right answer.
Lord Bowness (Con)
My Lords, I thank my noble friend Lord Lucas for asking this Question. My only regret is that it has been necessary to ask it. There should be only one answer, and that is immediate confirmation from Her Majesty’s Government that EU citizens lawfully working or resident here will have an unconditional right to remain on the terms they currently enjoy.
Of course it is the responsibility of the Government to achieve the best terms which will govern our future relationship with the European Union, but we also have a wider responsibility to act with decency and honour and ensure we do not inflict unnecessary damage on the remaining 27 states of the Union and to maintain close and friendly relations with our friends and current partners. Allowing doubt on our intentions on this issue will not help those relations, which will be vital to our reputation.
I am told that we are all leavers now. I am a forced and unwilling leaver. My belief in the European Union as a force for good in our continent and the wider world is unchanged. I regret that we are where we are as a result of what I believe to be an unnecessary referendum—one made more difficult to win by some of the principal advocates of remain having spent many years denigrating the European Union and its institutions and then, in a few short weeks, trying to convince an already sceptical electorate that they could not live without it.
As we try to decide what it is we want for the future, we should not play with the future of some 2 million people whom we were happy to welcome here—although I am sorry to say that, in the face of the rise of populist voices, the Labour Party appeared to distance itself from the bold decision it made not to impose transitional rules. The contribution of these citizens to our businesses and economy generally has been widely recognised, and they must not be used as pawns on the negotiating table. To do so can only give comfort to elements in our country and encourage them to believe that there is a possibility of a removal of those EU citizens. Those people exhibiting hostility and some of the worst traits that we have seen is one of the most unfortunate consequences of the outcome of the referendum.
If we do not give the commitment that my noble friend has sought, it will be of no credit to the United Kingdom’s reputation for justice and fair treatment. We cannot expect these people to live under clouds of uncertainty, not knowing if they have a long-term future here. As we have heard, some will no doubt decide to leave in case they are not protected in the outcome of our negotiations.
If Her Majesty’s Government are not receptive to an appeal for fairness, perhaps they will be receptive to an appeal to our enlightened self-interest. We will want to avoid the predicted adverse effect on businesses. We will need friends in the coming negotiations, many of whom represent nations which have the largest number of nationals here who would be adversely affected by any decision other than that which I, my noble friend and other noble Lords are advocating. We have a very real and direct interest in good relations with the European Union and its future. That should have a bearing on our attitude towards the negotiations
We may be leaving, but I hope that it may at least be said at the end, if I may paraphrase Shakespeare, that nothing in our membership became us like our leaving of it.
Viscount Waverley (CB)
My Lords, I live in Portugal, so declare a vested interest in this Question.
While concurring with the view of the majority in Parliament who advocate that the Government remove uncertainty by announcing that EU citizens here present can and will be able to remain, I question the timing, given the need for reciprocity and mutual benefit. Any lifting of the drawbridge can and should only be on a future date to be agreed to.
I propose that this be at the earliest opportunity having invoked Article 50, unless the strategy is that we become pawns at the whim of the Government and the European Union. Anything short of early resolution to the Question of the noble Lord, Lord Lucas, would become an horrendous exercise, costly for all, including the Government, and bogged down in a quagmire of bitter legal and human rights cases to the ECJ which would doubtless reach the Supreme Court in London. The Government might also wish to consider that any decisions are unlikely to be implemented retrospectively.
I have been provided with a list by the Association of International Property Professionals containing 20 key points, together with detailed explanation of property and property-related issues regarding British citizens owning property in the European Union. It covers all aspects and can be mirrored as relevant to EU citizens owning property in the UK. The CEO, Mr Robinson, and Mr Reeve of AFPOP in Portugal, are keen to assist this process by feeding into the appropriate quarter after the UK’s new governance structure has settled in.
That is not the end of the far-reaching ramifications. I am certainly no lawyer, but how, for example, is a position arrived at when there are differing legal jurisdictions? Napoleonic law is applicable to Spain, Portugal and France; Roman-Germanic to others. A further potential complication to be encountered is that, under Napoleonic law, having given the right of usufructus, which is entrenched once given, it cannot then be undone by extraterritorial legislation. While we will all be complying with host jurisdictions post-negotiation, what muddies the water is that, if a lifetime usufructus is granted on a property on the continent by a UK citizen but that person becomes required to sell through any personal necessity resulting from Brexit negotiations, they simply cannot unless jointly agreed by the parties concerned.
So what should persons living in countries other than that in which they are a citizen do post-haste to protect their interests? I counsel them immediately to register with the appropriate authorities to regularise their residency and tax affairs and then to comply with any relevant bilateral treaties. I have picked up that as many as 50% of the 40,000 Britons living in the Algarve have not yet registered. This would bring an immediate benefit to all host Governments with whereabouts and security implications.
The only realistic solution to this situation, in my mind, is for a line to be drawn in the sand. I shivered when I read a response to an unrelated Written Question —HL801—that I received yesterday that:
“In the meantime, and during the negotiations that will follow, there will be no change to people’s rights to travel and work”.
That is sending a message about hedging one’s bets and having to be on standby to pack one’s bags. So in addition to everything else, we are running the risk of further resentment towards the UK from future partners.
Lord Cormack (Con)
My Lords, I am delighted to add my thanks to my noble friend Lord Lucas for introducing this timely debate. Like others, I have already referred to this since the fateful day of 23 June. I lost count of the number of times I saw that extraordinary slogan “Take back control”. I was never quite sure what it meant, and nor were those who proclaimed it. If it means anything at all, it means that we truly have control to do whatever we like.
What does it mean to be British? It means to be welcoming, hospitable, a good neighbour and a leader among nations, which we have been for centuries, and to recognise that we have certain obligations. The best leaders are those who lead by example. What we should be doing is not having pernickety debates about what we may negotiate. Of course there are vital issues to negotiate, but there is nothing in the world to stop us saying today that those who are here in good standing and in good faith contributing to our society have every right to remain and that, leading by example, we are going to proclaim their right to remain, whatever the outcome of negotiations. If we do that, not only are we leading by proper British example, but we are also, if we are in the school that is talking about tit for tat, throwing down the gauntlet to others to respond in like manner.
I believe that the decision that was made on 23 June was deeply regrettable. The new Prime Minister is rightly saying that we have got to make a success of what the British people decided. She is rightly setting up Cabinet posts to conduct what will be long, protracted and difficult negotiations, but none of that stands in the way of what we are talking about in this debate. Let the new Prime Minister, to whom I wish every possible success, say, and gain many international plaudits in the process, that those who are here in good standing and in good faith can remain here. We welcome them remaining here.
After all, there is nothing new about this. I live in the shadow of one of the greatest buildings in Europe, Lincoln Cathedral. Was that built just by people resident in England in the 12th and 13th centuries? When the previous cathedral was destroyed by an earthquake, it was restored by Bishop Hugh of Avalon, who came from across the channel. We have always benefited from mutual interchange and understanding.
Our position in Europe is not altered one jot or tittle by our withdrawing from the European Union. We still have this continuing legacy to maintain. If we want to be practical, I do not know how many noble Lords saw “Countryfile” last week. It featured an excellent lady strawberry farmer from Kent. Her berries were being picked to be served at Wimbledon. Several of her workers talked to the camera, not one of them with an English accent. Let us recognise the reality of the world in which we live, the reality of the obligations that still continue. Let us also exercise influence from inside by assuming and conducting properly the presidency of the European Union which we are supposed to hold in the second half of next year. Let us with acclamation support what my noble friend has said today and hope that we have a sensitive reply from the Minister.
Baroness Ludford (LD)
My Lords, it is a pleasure to follow that splendid speech by the noble Lord, Lord Cormack, with which I totally agree, as I did with the introductory speech by the noble Lord, Lord Lucas, who I thank for this debate. Indeed, I agree with everyone who has spoken. We need certainty and clarity instead of a destabilising vacuum. This is indeed an issue of morality, humanity, decency, honour and human rights. As the noble Viscount, Lord Waverley, said, the last thing we want is years of legal claims under human rights law on the basis of a breach of Article 8 on the right to family life.
As the noble Lord, Lord Bowness, said, there is also enlightened self-interest. To say that we will not guarantee the rights of EU nationals here until we have reciprocity is not only cruel to individuals—there are 4 million to 5 million EU nationals here and Brits abroad—it is also very damaging to the economy to use them as pawns. There has been talk that the Vienna Convention on the Law of Treaties protects acquired rights of free movement, but that seems far too insecure and unpredictable. We would need a specific clause in a withdrawal agreement. Far better than to wait for that agreement is to make a unilateral declaration. Even if we had an early deal on reciprocity, as has been mooted, we would still have to wait. We do not know whether the Government will seek EEA status. The new Chancellor spoke this morning about the importance of single market access for financial services, but you cannot cherry-pick bits of the single market, so there is great uncertainty. Even if we were in the EEA, and hence accepted free movement, we would lose the ability to influence the future shape and direction of free movement law. Perhaps the Government will seek an ad hoc solution, in which case, what kind of solution would that be?
The Immigration Minister James Brokenshire has talked about how people with existing permanent status are okay. He said:
“It is important to put on record that those who have been continuously lawfully resident in the UK for five years qualify for permanent residence. It is an important point for those who have raised points about constituents and family members who have been in this country for a long time that those rights already exist, so they should have no fear about that”.—[Official Report, Commons, 6/7/16; col. 948.]
That makes me rather angry. Those rights for people who have been here for five years are under EU law, specifically the free movement directive, 2004/38. That gives no assurance for their future if we withdraw from the EU. Presumably they would have to apply for either permanent residence or indefinite leave to remain under British law. We have heard the same guarantee echoed by leavers such as Gisela Stuart, who I think was on “Any Questions?” last week. It is a false reassurance, and it is actually quite cruel to try to convey a message that has no foundation—unless the Minister can assure me otherwise.
We have no idea—if there is no withdrawal agreement, which might regulate these things—whether those possessing permanent residence at present under EU law would keep that status or would be switched to ILR, which has less protection against deportation than permanent residence. We have no idea about what would happen to those who have been here for less than five years. We might have years of legal challenges about the loss of the expectation on which they had built their lives. We also know nothing about what would happen to those in the process of the acquisition of rights—for example, for teenagers’ future status regarding tuition fees. Others have talked about the insecurity for British citizens in other EU states. They would of course be subject to EU immigration law, a question that has never been a subject of any interest in this country because we have opted out of most of it. These are not national issues but EU immigration law.
I join others in making a plea to the Government to take unilateral action to give EU citizens living and working here a guarantee of an unconditional right to stay, as the Bill introduced yesterday by my honourable friend Tom Brake MP requests. That would be the implementation of “taking back control”, as the noble Lord, Lord Cormack, said. It would put us in a strong political and moral position to avoid the negative consequences of the UK withdrawal for British expatriates, and would be leverage to get their rights guaranteed in return. Surely it is the right and honourable thing to do for both sets of people.
Lord Rosser (Lab)
My Lords, I thank the noble Lord, Lord Lucas, for securing this debate.
The first point to consider is why this matter of the future position of EU nationals living in this country, and indeed the future of British nationals living in the EU, has come to the fore. The reason is straightforward: the Conservative Party decided to hold a referendum on our membership of the EU, not in the national interest but because it was hopelessly split on Europe and a referendum was seen as the way of dealing with those internal party differences. If the Conservatives had not been split on Europe there would have been no referendum, and thus no uncertainty now over the future position of EU nationals living in the UK in the light of the result, and no government intention to use these people as a bargaining chip in the Brexit negotiations, having also created, and now further added to, uncertainty over the position of some 1.2 million British citizens living in other EU countries.
A further part of the legacy of the Conservative referendum has been the significant increase in hate crime following the campaign and the declaration of the result. Migration was made a big issue and EU nationals moving to this country were portrayed as a burden overwhelming our public services. In effect, the Government are saying that if in the course of negotiations they are unable to secure the rights of British nationals living abroad, similar rights might be withdrawn from EU nationals in this country in retaliation. That stance can only give encouragement to those who wish to stir up division and hatred in our communities, and lead to EU nationals in this country wondering whether they are still wanted or respected and whether they should remain.
Yet the Government themselves admit that people from EU member states in this country are caring for the elderly, tending the sick in hospitals, teaching our children, volunteering for our charities, setting up and working in businesses and providing important local services. No one will criticise the UK Government for doing all that they can to secure the rights of British nationals living in other parts of Europe, but that should not be at the expense of the security of families who are living, working and paying taxes here, and whose future position has been put in doubt not by the rest of the EU but by the Conservative Party’s decision to hold a referendum for purely party-political reasons rather than for reasons of national interest.
The current legal status of all EU citizens is that they have the right to move and reside freely in another member state. In addition, the principle of free movement entitles citizens of EU member states and their families to work anywhere in the EU. The principle also supports a broader set of rights, including protection against discrimination on the grounds of nationality for employment, and provisions to co-ordinate social security so that people do not lose entitlements when they exercise their free-movement rights. There are also rights of access to public services and to run a business, and the ability to be joined by family members and extended family members. In practice, all EU nationals and their family members have an initial right to reside in another member state for up to three months for any purpose. They have a right to reside for longer than three months if they qualify as a worker, jobseeker, student or self-employed or self-sufficient person, or a family member of one of those, and are not subject to knowledge of English requirements. A right of permanent residence is acquired after five years’ continuous residence in the host member state.
So that we can be clear, which of those aspects of the current legal status and rights of EU citizens now living in this country would the Government consider withdrawing or amending if the negotiations relating to the position of British nationals living in other EU member states were not concluded to the Government’s satisfaction, and which of them would the Government not consider withdrawing or amending? I hope the Minister will be able to give some clarity on that question. Presumably, we do not want the other 27 member states to call into question the rights of the 1.2 million British nationals living in their countries, so why are we apparently going to start the negotiations by calling into question the future rights of EU nationals living here? Why can we not say, on the rights of EU nationals currently living here, that they will continue to have whatever rights they had on a specific date—perhaps 23 June, for example, the day of the Conservative referendum that created all the uncertainty, or perhaps a later date than that?
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, there are two things that I cannot clarify: the first is the Question that the noble Lord, Lord Lucas, has asked, which I will address, and the other is my position as I stand before your Lordships. I shall pick up a number of points made by the noble Lord, Lord Rosser. I acknowledge his expertise in the matter of political party splits, but I cannot accept his disdain for popular democracy. It was not a party referendum; it was a British referendum—a United Kingdom referendum.
I thank the noble Lord, Lord Lucas, as have others, for taking the time to table this debate on such an important topic. The Government are listening to the concerns that have been raised in this House, and across the country, on this issue. It is the Government’s intent to provide reassurance to all those in the UK. It is appropriate that we protect the rights of EU citizens in the UK and provide them with the security of knowing that they can continue to practise, work, live and study here.
These are, however, unprecedented circumstances, and we must now reflect on the situation that this country has voted for. There can be no doubt that the 3 million EU nationals currently in the UK make an invaluable contribution to our economy, our society and indeed our daily lives. As the noble Lord, Lord Berkeley, observed, people from the EU provide vital services to this country, not only to businesses but to our public sector, where nearly 250,000 employees are EU nationals. They are our doctors, nurses, teachers and carers. In the NHS alone, almost one in 10 doctors and one in 15 nurses are from an EU country. This Government are immensely grateful to EU nationals for the role that they play in making our country great, and we continue to welcome them to the UK. People from all around the country, including noble Lords and our colleagues in the other place, will have wives, husbands, parents and friends who are EU nationals. They are pillars of our communities and held dear by many.
It is precisely because of this that the Government want to be able to guarantee the status of EU nationals who are living in the UK, and we are confident that we will be able to do that. However, we must also have the same rights for British nationals living in European countries, who are contributing to their economies and societies. It will be an early objective for the Government to achieve these things together.
I reassure noble Lords that the Government respect that this is an uncertain and distressful time for EU nationals in the United Kingdom and UK nationals who have made their lives in other member states. This country has always been compassionate in dealing with people, irrespective of whether they are from the EU or outside it. These principles define us as a nation and will guide us through future discussions with Europe.
I reiterate the remarks the Immigration Minister made in the other place. This does not mean that the Government view EU citizens as bargaining chips. Far from it—in the approach the Government take and the agreements we make we will never treat EU citizens in such a way. As the UK Government have made clear, there will, in any event, be no immediate changes in the circumstances of European nationals in the United Kingdom, and currently they can continue to enter, live, work and study in the United Kingdom as they did before the referendum. The UK currently remains in the EU. We remain subject to EU legislation until we have left the EU, and this includes the legal framework on free movement. There is no current requirement for EU nationals to apply for documentation from the Home Office to acquire this status.
It has been suggested here today and repeatedly over the last fortnight that the Government could fully guarantee EU nationals living in the United Kingdom the right to stay. This sounds so simple yet, as soon as you scratch the surface, it is in fact fiendishly complicated. When one says “guarantee rights”, do noble Lords seek to preserve the essence of the status of these individuals or the legal and operational system which underpins them? Another question is: from when should we make these guarantees? For example, would they be guaranteed only to those residing in the United Kingdom before the referendum result was announced, as was suggested by one noble Lord? What about the EU nationals who arrived later that day, or last week? Or would it be a date in the future, the date that Article 50 is invoked, the date the exit treaty is signed, or perhaps when it comes into force?
Exactly what rights are we talking about? This issue is not simply about the immigration status of an individual. Under EU free movement law, EU citizens’ rights are far broader than just the right to reside in the United Kingdom. For example, there are rights to work or be self-employed, to study, entitlements to benefits and pensions, and rights of access to public services and to run a business. EU nationals also have rights to be joined by family members and extended family members, in some cases from countries outside the EU. There are also rights for non-EU parents of EU children and for those who are married to EU nationals, or indeed for those who are divorced from EU nationals. In addition, what will we do about those who are subject to a deportation order, an appeal, or where appeal rights have not been exhausted? It is not therefore a simple binary question of whether we should guarantee rights, as under that there are a range of scenarios and considerations.
Of course, these rights do not just extend to EU citizens. As noble Lords are aware, they extend to citizens of the EEA and to Swiss nationals. All that has to be taken into consideration as well. Furthermore, these rights need to be considered in the context of the many different situations people face in real life; for example, an EU national who has just lost their job, or who has just arrived and is not yet into the period where they must exercise treaty rights—bearing in mind that they can be here for three months without employment and then have a further three months as a jobseeker. What will their status be if they arrived last week or arrive next week? What will be the status of an EU national who has just divorced a British citizen, or has just retired? The list is extensive.
Finally, once we have settled all that, how do we determine who these people are? Currently EU nationals are not required to register with the UK authorities to enjoy basic EU rights to reside, so we will need to work out how we identify fairly and properly the people who are affected by this.
Baroness Ludford
Surely that is why the Government are the Government—they have to work out all those difficult details. We are asking for the broad picture: guarantee the rights of those already here. Indeed it is hugely complicated—that is why leaving is incredibly complicated—but we are asking the Government to be the Government and sort that out.
Lord Keen of Elie
But you have to work out the complex details, which the noble Baroness, Lady Ludford, acknowledged, before you can come to a conclusion as to how you will deal with the matter. You cannot say in broad terms, “We give you a guarantee”, when you do not know to whom you are giving the guarantee or how it will work. As the noble Baroness, Lady Ludford, has raised certain matters, I will make one observation. She referred to the Vienna convention, meaning the Vienna convention on treaties, and alluded to the fact that that may preserve prior rights created by international treaty. I assume that she had in mind Article 70(1) of that convention. However, I point out that Article 70 preserves prior acquired rights under international treaties but applies only to the rights and obligations of states, not individuals, and therefore would have no application in this context.
As the noble Baroness, Lady Ludford, anticipates, the Government will need to undertake comprehensive work to examine each of these rights, and the different circumstances in which people find themselves, to ensure that there are no unforeseen or unintended consequences. That work will be led by the European unit, which is being established under the present Government, which will work in close consultation with all government departments that have an interest in this matter. As I have said throughout this debate, the protection of the rights of EU nationals and those British nationals who live in the EU will be at the heart of future discussions with our European partners, and EU nationals will continue to be welcome in the United Kingdom for so long as we remain members of the EU.
EU nationals have our full and unreserved reassurance that their right to enter, work, study and live in the United Kingdom remains unchanged and that they continue to be welcome here. Of course we value the tremendous contribution they make every day, up and down the country. Given that both the UK and EU want to maintain a close relationship, we are confident that we will work together and that both EU and British citizens will be protected through a reciprocal arrangement. We want to be able to conclude this matter as quickly as possible, and the new Prime Minister has been clear that resolving this issue is a priority. The Government keep the protection of the interests of EU nationals and British nationals alike at the forefront of their mind and we are determined to secure the best outcomes for both.