Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Committee (3rd Day)
Relevant document: 11th Report from the Constitution Committee
Baroness Henig Portrait The Deputy Chairman of Committees (Baroness Henig) (Lab)
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My Lords, hybrid proceedings will now resume. Some Members are here in the Chamber, respecting social distancing, and others are participating remotely, but all Members will be treated equally. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.

This is day three in Committee on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted.

During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and will call the Minister to reply each time.

The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press an amendment already debated to a Division should have given notice in the debate. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group. We will now begin.

Debate on Amendment 39 resumed.
Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I rise to support Amendment 70, to which I was pleased to add my name, but I will first speak in support of other amendments which provide for a time limit for detention.

I first encountered this issue as a member of the inquiry into detention by the APPGs on Refugees and Migration, which reported in 2015. The evidence we received convinced me of the case. It is frustrating that, despite a wide consensus in favour of a time limit—including among a number of very senior Conservative MPs—we are still having to argue the case five years on. I hope that the Minister is not going to trot out the usual Home Office line that the law does not allow for indefinite detention, an assertion based on semantics. She knows full well that by “indefinite”, we mean “without fixed or specified limit”—to quote one dictionary definition.

It is the absence of a fixed or specified limit that is so problematic. In particular, it has been shown to contribute to serious mental distress among detainees, a point made in the literature review conducted for the original Shaw report, and reinforced by subsequent reports, including by the Joint Committee on Human Rights, the Home Affairs Committee and, most recently, by the Jesuit Refugee Service this year. That report emphasises the trauma experienced by detainees, which stretches beyond the period of detention itself and is relived indefinitely over the years to come. It found that the lack of a time limit laid down was particularly problematic, and that

“not knowing when one would be released was central to an uncertainty that pervaded the experience of detention. Both long detention and the indefinite nature of detention were also seen as increasing the injustice of its practice.”

When debate on this amendment started, the noble Baroness, Lady Hamwee, asked the Committee to imagine how we would feel with that uncertainty—that draining away of hope. Gabby—not her real name—a woman helped by Women for Refugee Women, to which I pay tribute for its work in this area, put it powerfully. She said that

“indefinite detention destroys people. People who are imprisoned in detention already have mental health issues when they get locked up—and the longer you stay there, the worse it gets. My hair started falling out, and I had flashbacks to what happened to me before”—

she was referring to having been trafficked—

“Not knowing when you will be released had such an effect on me. I kept thinking: will I be kept here forever?”

I know the Minister will retort that no one is detained for ever—her definition of “indefinite”—but that is how it can feel when you do not know when it will end, which is the usual definition of “indefinite” in this context. Gabby was in Yarl’s Wood, and it is welcome that no woman is now being held there. Can the Minister say if any women are being detained elsewhere and, if so, where and how many? If she cannot answer now, will she write to the Committee afterwards?

The release of many detainees into the community in recent months demonstrates that detention does not have to play such a significant role in the immigration system—a point made powerfully by the noble Baroness, Lady Hamwee, the other day. In this context, will the Minister update the Committee on how the alternatives to detention pilot is going?

Turning to Amendment 70, damage to mental health is a common thread in the case for all these amendments. It was referred to by the noble Lord, Lord Ramsbotham, when he introduced the amendment. Medical Justice, to which I am also grateful for a briefing, wrote about the “devastating” health impact of segregation. It says that it has been found to lead to increased rates of anxiety, perceptual disorder, hallucinations, paranoia and suicidal thoughts, as well as serious physiological effects. The mental health risks for those with pre-existing conditions and other vulnerabilities are especially high. In particular, anyone who has suffered segregation as part of past torture might be re-traumatised by it.

Medical Justice also makes the point that segregation can be counterproductive. The Government’s argument that restrictions on segregation would jeopardise IRCs’ safety and security serves to ignore the deeper systemic problems that contribute to the “need” to remove people from association—for example, poor standards of healthcare, abusive or bullying attitudes or behaviour, oppressive regimes and the impact of indefinite detention itself. If the Home Office addressed these systemic problems, fewer people might behave in such a way as to call for segregation. The Home Office does not publish data on the use of segregation of vulnerable people. Could the Minister explain what they do not and commit to publishing this data?

Finally, as I read the Minister’s complacent response to the amendment in the Commons Committee alongside the briefing for Medical Justice, it seemed like the Minister was living in a parallel universe from the organisation on the ground. Indeed, the Member who moved the amendment made a similar point. I am confident that the noble Baroness will not display the same complacency, but I hope she will accept that there is a real problem here that must be addressed, even if she is not willing to accept the amendment itself.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, the campaign for a time limit on detention has deservedly gathered pace over the past 10 years. As the noble Baroness, Lady Lister, mentioned, two parliamentary committees reporting in 2019—the Joint Committee on Human Rights and the Home Affairs Committee—urged a 28-day limit. The Joint Committee on Human Rights made two important points. The first was that indefinite detention—the noble Baroness dealt with that term—

“causes distress and anxiety and can trigger mental illness and exacerbate mental health conditions where they already exist.”

Secondly, it pointed out that

“the lack of a time limit on immigration detention reduces the incentive for the Home Office to progress cases promptly which would reduce both the impact on detainees, and detention costs.”

It therefore called for a 28-day limit.

The Home Affairs Committee pointed out that some people are being held for more than three years, which is intolerable. It said:

“Failure to provide justification for continued detention will only compound detainees’ frustration and may lead to self-harm and violence in immigration removal centres.”

It welcomed the Home Secretary’s commitment at the time that he—that must have been Mr Javid—would

“consider ending indefinite immigration detention in response to Stephen Shaw’s follow up report.”

It went on to say that

“a maximum immigration detention time limit is long overdue … lengthy immigration detention is unnecessary, inhumane and causes harm.”

I understand that the Government’s policy guidance says that there should be no detention without a realistic prospect of removal, but this appears to be routinely breached.

Subsection (3) of Amendment 39 is designed to prevent cat-and-mouse detention by barring re-detention unless there is a material change of circumstances. Amendment 40 would impose important tests of “strictly necessary” and the ability to be removed “shortly” on a person’s detention. Amendment 41, to introduce a requirement for early judicial oversight, would bring in an important safeguard. Amendment 70, introduced by the noble Lord, Lord Ramsbotham, and signed by my noble friend Lady Hamwee and others, would impose a test of necessity on segregation.
It is worth bearing in mind that many millions of pounds are paid out every year as compensation for illegal detention. Someone recently received £22,000. Given the noble Lord the Minister’s insistence in our discussions last week on fees that the Home Office had to watch the pennies, it seems reckless to waste public money because of unnecessary and unjustified detention. I hope the noble Baroness the Minister will respond positively to these amendments.
Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, this amendment is about basic human decency; I am very pleased to support it. Personally, I would like to scrap immigration detention altogether. It is inhumane that we as a country are doing this to people. Convicted murderers and paedophiles get better treatment than refugees and asylum seekers fleeing war, famine and persecution, often as a result of our own foreign policy. They just want to find a better life.

This amendment would place important restrictions on the dehumanising practice of solitary confinement. Solitude is often used as a psychological torment to break a person’s spirit and enforce compliance. It should be used in only the most extreme cases, as set out in the amendment, and be subject to many safeguards. The noble Baronesses, Lady Lister and Lady Ludford, covered some of the issues I wanted to talk about, including time limits, so I will cut my remarks short. Will the Minister please take all these amendments away and work with your Lordships ahead of Report? I hope she will be able to give that assurance.

Lord Green of Deddington Portrait Lord Green of Deddington (CB) [V]
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My Lords, I shall also speak to Amendments 39 to 41. I say from the start that I broadly support the Government’s policy on all these matters. All these amendments would have a similar effect. They would make it very difficult to detain a person who claimed asylum for more than a few days, irrespective of the facts of the case. It is surely perfectly obvious that such measures will make it extraordinarily easy for any claimant simply to disappear into the very large community of illegals—perhaps 1 million—that we already have in the UK.

We have to consider these amendments against the background of current events. A substantial and growing inflow of migrants across the channel is, understandably, very unwelcome to the public. They rightly perceive that they have nearly all come from a country that is safe, whether France or Belgium, and that they are not in fear of their lives. This is confirmed by Home Office evidence to the Home Affairs Committee on 3 September, which said that, of those crossing this year, 98% claimed asylum, half of which had been considered so far, and 80% of that number had been refused. Some 71% were refused because we are not the responsible country. That, of course, is because they travelled through a safe country before they arrived here.

It follows that for those who are concerned about genuine asylum seekers—I of course accept that many noble Lords and noble Baroness are concerned about them—the situation has to be tackled if public support for the asylum system is to be maintained. However, limiting detention to 28 days, as proposed in Amendment 39, would exacerbate the crisis of immigration enforcement and undermine support for asylum generally.

People need to feel confident that the asylum system, which costs the taxpayer £1,000 million per year, is producing a worthwhile result. The main effect of a 28-day limit on detention is that false asylum claimants would have only to spin out their claim or make some false statement that could not be refuted in the allotted time before being released and potentially disappearing. Indeed, the Independent Chief Inspector of Borders and Immigration has found

“little evidence that effective action was being taken to locate the vast bulk of absconders”.

It follows that illegal immigration—which, by the way, 77% of the public consider a serious problem—would intensify. The credibility of the immigration system as a whole would also be further undermined.

Some Members will remember that, on the first day of Committee, the noble Lord, Lord Adonis, rightly pointed to the crucial importance of the integrity of the immigration system in the eyes of the public at large. It is a continual surprise to me that others in the political arena seem to have failed to get this absolutely central point.

Lord Judd Portrait Lord Judd (Lab) [V]
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My Lords, this is a very important amendment. So many of those involved have been through unspeakable, disturbing—even horrific—experiences. Detention is really not appropriate for any of them but, if there is detention, it must be strictly monitored and should certainly be for only a limited period of time; 28 days is surely more than long enough for the authorities to be able to establish reasons for declining residency to people who are in detention.

The practice of detaining people, as referred to by Amendment 70, is unspeakable when you think of the kind of backgrounds many have come from. The other practical point I make is that, in the overwhelming majority of cases with which we are dealing, people are ultimately released from detention. This makes it all the more obvious that something is wrong. The system needs very close attention; these amendments help us to provide that kind of focus.

Lord Bishop of Durham Portrait The Lord Bishop of Durham [V]
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My Lords, I speak in favour of this group of amendments and, in particular, address my comments to Amendments 39 and 40. I concur with the excellent points made by the noble Baroness, Lady Hamwee, in the introduction to this debate, as well as those made by the noble Lord, Lord Ramsbotham, and others who have spoken since.

I would like to further emphasise the human and moral cost of our current and proposed detention system. The effect of indefinite detention, which lasts in some cases for months or even years on end, is devastating on the mental and physical health of detainees. Hopelessness promoted by a lack of knowledge over what comes next and flashbacks to past trauma are common experiences.

I offer an illustrative example, collected by the Jesuit Refugee Service, of the impact of our present system. Oliver was conscripted into the army at 17. He had no choice—he was taken off the street one day on his way home from school. He managed to escape after eight years but was captured, imprisoned underground and tortured. He was the victim of human trafficking twice, once being sold into slavery and once when he was taken to Europe. He arrived in the UK in July 2015, immediately made himself known to the authorities and claimed asylum. He was taken into immigration detention at Dover and moved to Harmondsworth IRC.

Oliver spoke no English. He had committed no crime. The incarceration triggered flashbacks to his imprisonment underground in his home country. He was examined by doctors and found to be suffering from PTSD. He had clear injuries on his body, which were ratified by a medical examination as being signs of torture conducive with his experience. After three months in detention, he was released to Section 4 accommodation in Cardiff. A year later, he was suddenly detained again and taken by taxi from Cardiff to Dorset. This time he was released after 18 days and finally granted indefinite leave to remain in 2019.

I could have filled a much longer speech with many other examples, including those of children, victims of trafficking, slavery and sexual abuse, and of people repeatedly detained in a highly traumatic environment that served no purpose in protecting the wider public. These amendments do not dispute that detention can serve a valuable, even critical, purpose, including—in a small number of cases—the protection of the public. What these amendments would do, however, is demand that the purpose of detention is clear and justifiable in each case, and cannot be of unlimited duration or used repeatedly in ways which have been shown to be immensely harmful to detainees. Unlike the noble Lord, Lord Green of Deddington, I believe that the public recognise that detention for long periods is not the way that we treat human beings in our country. We all want a better, respected asylum system, but detention detracts from that. I hope that the concerns in these amendments can be addressed.

Baroness Barker Portrait Baroness Barker (LD)
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My Lords, it is quite some time since my colleague and noble friend Lady Hamwee introduced this group of amendments with such eloquence and in her customary informed, thorough way. I would contrast her remarks with the assertions made by the noble Lord, Lord Green of Deddington. In speaking on this group of amendments, I wish to take us away from the traditional route of making policy by assertion and look towards some evidence.

In normal times, there are usually between 1,500 and 2,000 people detained under immigration powers at any one time. When the pandemic kicked in earlier this year, in March, there were about 1,400. According to Detention Action, that number then fell because of the fears of Covid striking in both prisons and IRCs. By 21 April, the total number of people had fallen to 708; 368 of those were detained in IRCs and 340 under immigration powers in prisons. So the number of people had roughly halved in a very short period of time.

What was the effect of that—on public safety, on levels of absconding or on anything at all? We all know the public cost of detention; it is about £30,000 per person per year. We know from the eloquent testimonies across the House about the cost to the health of individuals of being detained—and, principally, of being detained indefinitely for long periods. Can we begin to talk about the cost and benefit to the Government of indefinite detention? We hear very little about that.

As I will not be speaking again, I want to address one other issue. The Minister quite rightly told us at the beginning of our debates that this legislation was simply a matter of unifying the way in which the country treats people making asylum or immigration claims from the EEA and Switzerland with those from the rest of the world. She will not be surprised to hear that I think we treat LGBT asylum seekers from all over the world appallingly. We have spoken about this many times.

Can the Minister tell us whether, since the initial round of training, which she was once responsible for, there has been any further training for immigration staff on the handling of LGBT issues? Will the training be repeated and updated to deal with the numbers of people who may be making asylum appeals on the grounds that they come from countries such as Poland and Bulgaria, where the treatment of LGBT people daily becomes worse, and in some cases murderous?
Earl of Sandwich Portrait The Earl of Sandwich (CB) [V]
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My Lords, here we are again. I recall many occasions like this in the past, and I see some familiar faces. This is my first intervention on this Bill, and in view of what has already been said, I will be very brief.

As we have heard, these amendments contain the accumulated wisdom of several legal experts and several trusted organisations over many years. Put simply, not only is it wrong and inhumane under our normal rules and customs to lock up detained people for long periods, we do not have to do it, except in very few cases. The right reverend Prelate made it clear that people must not be locked up indefinitely. Look at the consequences: the noble Baronesses, Lady Hamwee and Lady Lister, mentioned cases of self-harm, trauma and suicide.

No one should be redetained. Removals are necessary—they have to be done—but they must be arranged more efficiently so that the relevant documents are in place. If they cannot be so arranged, and removal is not imminent, there must be an automatic bail hearing with judicial oversight.

This generous amendment, which has been carefully crafted, provides six months’ grace for the Government and will save them a lot of money. I know immigration is causing a lot of problems, but surely the Home Office should finally accept this amendment now or before we have a vote on Report, which otherwise seems inevitable.

Lord Hylton Portrait Lord Hylton (CB) [V]
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My Lords, I apologise for not taking part in this Bill until now—perhaps a relief to your Lordships. However, I would like to emphasise that the hybrid proceeding is no way to conduct the Committee stage of a Bill with so many implications. I asked the usual channels to look seriously at what the noble Lord, Lord Cormack, said last Monday on returning to more normal procedures.

I support Amendment 39 and the others in this group. In connection with bail, is there now a backlog in applications for bail from immigration detainees? If so, what are the Government doing to ensure that such applications are promptly heard?

These amendments point to a much wider need to reduce the use of immigration detention, which is expensive and harms the mental health of detainees, sometimes leading to suicide. I understand that the UK is the only European state to allow detention for an unlimited period. Even in the case of foreigners convicted and jailed, with a recommendation for deportation, better co-ordination between the Ministry of Justice and the Home Office should ensure that deportation takes place immediately on release from prison. I hope to have a positive reply on this point to a Question for Written Answer recently tabled.

In conclusion, I note that the June report from the National Audit Office stated that total voluntary and forced returns to other countries had fallen dramatically since 2015. This is perhaps understandable, given coronavirus and a lack of flights. The report also spotted regional variations in enforcement. Much intelligence is still not being assessed or used. I trust, therefore, that enforcement will soon improve and that official statements will avoid terms that increase fears and xenophobia, such as the labelling of all unofficial landings or arrivals as “illegal”. I trust that progress will be made on all angles of this group before Report.

Baroness Henig Portrait The Deputy Chairman of Committees (Baroness Henig) (Lab)
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The noble Baroness, Lady Jolly, does not wish to speak. I call the noble Lord, Lord Kennedy of Southwark.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, this debate has focused on several new clauses which are to be inserted after Clause 4. I have signed up to Amendments 39, 40, 41 and 94, along with my noble friend Lord Rosser and the noble Baronesses, Lady Ludford and Lady Hamwee, who opened this debate last Wednesday. I am also supportive of Amendment 70, in the name of the noble Lord, Lord Ramsbotham.

The risk here—it is all about risk—is that many people will not have their status sorted and will not have put a claim in, and are then at risk of detention. Immigration detention is something that should happen only in the most necessary cases and for the shortest period of time possible. My noble friend Lady Lister of Burtersett set out, with examples, the effect of detention and the damage of not knowing when you are going to be released on individuals and their mental health. We need to think about that: we can all accept that being locked up and not knowing when it is going to end is not a good place to be.

Taking that into account, can the noble Baroness, Lady Williams of Trafford, when she responds to the debate, tell us what safeguards will be put in place to ensure that the minimum number of people are detained and for the shortest possible time? The noble Baroness, Lady Hamwee, said she expected to be told that most people are released from detention after a short period of time, but we need to think about those who are not.

There is also the risk of redetention: when a person reports who is required to do so and then finds themself detained by the authorities. How long will it take for an application to remain to be considered? As we have heard, Amendment 39 would impose a strict time limit of 28 days and ensure that detainees could not be redetained unless—I emphasise “unless”—there has been a specific change in circumstances.

Amendment 40 sets out the conditions for a person to be detained in the first place and Amendment 41 provides for bail hearings during the initial detention period of 96 hours. Amendment 94 brings in the provision six months after the Bill comes into force. This gives the Government time to get all the procedures and regulations correct. I agree with the comments made in that respect by the noble Earl, Lord Sandwich.

As I said earlier, I am supportive of Amendment 70, spoken to by the noble Lord, Lord Ramsbotham, and others. This amendment raises the issue of those individuals in immigration detention who are segregated and at risk of being locked in their cells for up to 23 hours a day. I fully accept that there must be rules and that people must be protected from either themselves or from others, or from causing harm to others. However, we also must be mindful of the effects that detention—of being locked in a cell for long periods of time—can itself have on someone’s mental health. Again, my noble friend Lady Lister of Burtersett made reference to this in her contribution. I look forward to the response from the noble Baroness.

The right reverend Prelate the Bishop of Durham said in his contribution that these people have committed no crime. They themselves may be the victims of horrific crimes, and periods of detention can be long and re-detention is a real risk. When considering these amendments, we have to think about the effect of the risk of being re-detained on individuals who may, in the end, be given leave to remain in the United Kingdom. We must remember that these people have committed no crime here in the UK.

I will leave my remarks there; I look forward to the Minister’s response.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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My Lords, I thank all noble Lords who have spoken in this debate. To address the point made by the noble Lord, Lord Hylton, about regretting the hybrid procedures, I am very glad of them; they protect noble Lords from the numbers, which are clearly going up.

This is another group of amendments that are not relevant to the Bill. I am sure that noble Lords know that, and I know that they are keen to discuss this issue. They feel very strongly about immigration detention, which has been discussed at great length in this Chamber, but that makes it no less important.

We must have an immigration system which encourages compliance and protects the public. Where people no longer have the right to be in the UK, we must be able to carry out their removal if they do not take the opportunities we provide them to leave the UK voluntarily.

The noble Lord, Lord Kennedy, and the noble Baroness, Lady Lister, talked about the concept of unlimited detention. The noble Lord asked me to list the safeguards to ensure that decisions to detain and to maintain detention are not unlimited. When someone is referred for detention, an independent detention gatekeeper assesses that person’s suitability for detention. Since 2016, the gatekeeper has rejected more than 2,300 referrals for detention. After an individual is detained, their continued detention remains under regular review at increasing levels of seniority, especially where there are any significant changes in circumstance.

Anyone detained can apply to either the Home Office or the courts to be released on immigration bail at any point during their detention. In addition, independent panellists and specialists within case progression panels provide really important oversight of the appropriateness of anyone being detained under immigration provisions at three-monthly intervals. Automatic referrals for bail also occur at the four-month detention stage for non-foreign national offenders, providing additional external oversight of detention decision-making. Immigration removal centres also provide those who are detained with access to legal advice should they need it.

The introduction of a detention time limit would severely limit our ability to remove those who refuse to leave voluntarily, as the noble Lord, Lord Green of Deddington, pointed out. It would encourage and reward abuse and, as I have said, there are a number of measures in place to safeguard against any prolonged or unnecessary use of immigration detention.

The decision to detain people who no longer have the right to be in the UK is an integral part of the removal process, but we do not detain indefinitely. There must always be a realistic prospect of removal—I see the noble Baroness, Lady Lister, shaking her head—within a reasonable timescale, and this requires a case-specific assessment to be made for every single person whose detention is considered. It is already used sparingly: 95% of people who are subject to removal from the UK are at liberty in the community, and the detention estate is now almost 40% smaller than it was five years ago, with 8,000 fewer people entering detention in the year ending December 2019 than in 2015.

The noble Baroness, Lady Barker, rightly pointed out that during Covid the detention figures were right down. That is because we detain people for the purposes of removal and do not detain them indefinitely. She asked, rightly, about the upshot and what we have seen as a result. If I have some of that data, I will send it to the noble Baroness and others, but I suspect that we have not quite seen the whole picture, given that it appears we are still in the middle of the pandemic. Any additional information that I can get her, I will. The noble Lord, Lord Hylton, talked about a backlog. Because we have not been detaining as many people, I suspect that there is no backlog in that sense, but I will also get information to him.
Only in the most complex cases, most frequently those involving foreign national offenders, where serious criminality is involved, does detention exceed 29 days. Some 74% of people were detained for less than 29 days in the year ending December 2019, and only 2% were detained for more than six months.
As the noble Baroness, Lady Lister, mentioned, we do consider alternatives to detention, including satellite tracking to monitor foreign national offenders on immigration bail. She mentioned the pilot scheme; in fact, I understand that there have been several pilot schemes, and the UNHCR has appointed the National Centre for Social Research to independently evaluate them. An inception report was published on 28 August, and we expect the full evaluation of the pilot to be available next spring. Most importantly, we expect those results to contribute to some of the global research on detention alternatives. I hope we will have a very good outcome from that.
The noble Baroness also asked about women; she recognised that none were being held at Yarl’s Wood. I have not got the figures on women and where they are being held, but I will get that information for her and make it available to others as well.
We take protection of the vulnerable extremely seriously. The right reverend Prelate the Bishop of Durham outlined a really moving story to us, and we take this terribly seriously. The adults at risk in immigration detention policy has strengthened the presumption against the detention of vulnerable people, ensuring that people are detained only where evidence of their vulnerability is outweighed by immigration considerations. The noble Baroness, Lady Barker, asked for an update on training. I have not got it to hand, but I will let her know what is happening at the moment.
Everyone in detention has access to round-the-clock healthcare at the standard that can be expected in the community. We have also increased the ratio of staff to detained individuals in immigration removal centres, to ensure that people can access support and advice should they need it. Of course, I have referenced access to legal advice as well.
Noble Lords have spoken of their shame that we are the only European country without a time limit on detention. However, no other European country has adopted anything close to a time limit as short as that which is proposed in these amendments. Acknowledging the complexity of securing arrangements for the return of people with no legal right to remain, the European Commission itself recently proposed that a new minimum detention period of three months be put in place. Other comparable jurisdictions, such as Australia and Canada, have also not imposed time limits.
Under these amendments, foreign national offenders would automatically be released after 28 days, regardless of the risk that they pose to the public, even when they have deliberately frustrated the removal process by physical disruption, or otherwise refused to comply with the Home Office’s lawful instructions. A snapshot of those offenders from the EU who were detained at the end of December 2019 found that, if a 28-day limit were in place, we would have been required to release into the community 127 foreign national offenders who were being held under immigration powers to effect their deportation. To go directly to the point made by the noble Baroness, Lady Jones of Moulsecoomb, of these offenders, 25 had committed some very serious crimes, including rape, offences against children and other serious sexual or violent offences. Letting these offenders on to our streets seriously reduces our capacity to deport them and undermines our commitment to public safety. That said, I take the point made by the noble Lord, Lord Kennedy, that many people are completely innocent, but there is a cohort who you would not want to be back on our streets.
Finally, these amendments would establish an intolerable prejudice against people who are not EEA or Swiss citizens. The amendments would impose a time limit on detention for people of those nationalities but not others. At the heart of this Bill is a commitment to open and equal treatment of immigrants from all nationalities as we exit the transition period. The amendments would be a great injustice and lead to an unequal system that would provide for differential treatment of people based only on their nationality, regardless of the facts of the case. The amendments, and the time limit that they would introduce, would impose a significant restriction on the UK’s ability to effectively and fairly remove people who have no right to be here. It would allow those who wish to frustrate the removal process to run down the clock until the time limit is reached and release is guaranteed, regardless of the circumstances of the person’s case. It would potentially place the public at higher risk, in particular through the release of more foreign national offenders into the community.
I briefly move on to the proposed new clause on the arrangements for removing people from association and the use of temporary confinement within immigration removal centres. Again, I make it clear that this amendment is not relevant to the purpose of this Bill and the ending of free movement for EEA citizens, but I think that noble Lords know that. Removal from association is only ever used as a last resort when other options have been tried—almost to quote word for word the noble Lord, Lord Kennedy—but failed, and only as an effective response to the safety and security risk presented by an individual in detention.
The current immigration detention centre rules already set out the strict basis on which removal from association will be considered
“where it appears necessary in the interests of security or safety.”
The rules are supported by further, more detailed guidance within a detention services order. The published guidance makes it clear that other options should be considered before removal from association is considered, based on specific circumstances. Other options might include transfer to another residential unit within the centre, transfer to a different centre or closer supervision on normal location. The focus throughout is on a positive engagement with the person involved to ensure that they are able to return to the normal regime as soon as possible.
This amendment seeks to unnecessarily amend the criteria for considering removal from association and would require all those subject to these provisions to be returned to association with others after an absolute maximum of 24 hours, regardless of any continuing risk that they pose to themselves or others. This is an unacceptable risk and one that could place both detained individuals and staff working within removal centres at risk. If an EEA citizen poses a risk to the safe and orderly running of an immigration removal centre, it cannot be right that options for managing this risk should be constrained, as compared with the options for managing risks posed by a detainee who does not benefit from the provisions of this proposed new clause. To do so could endanger the safety and security of detainees in a centre generally including, paradoxically, other EEA citizens.
The noble Baroness, Lady Lister, asked me for numbers. I have management information—so they are not official numbers—that in the three months of January to March 2020, removal from association was used 184 times within the detention estate, and the average duration was 45 hours.
I hope that, with those explanations, the noble Baroness will be happy to withdraw her amendment.
Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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I thank the Minister for her detailed explanation. The problem that I have here is that this Bill will become an Act of Parliament, things will move along very happily and then, many years from now, when we are all no longer doing what we are doing now, all these problems will arise whereby things are not done properly. We could have immigration centres with Italian and French citizens, people who have lived here but have not regularised their situation, being locked up and held for days and things—and that is just an anathema. My worry is that sometimes things are done and then, many years later, different people come along, things are not done so well, and there is a problem.

I am concerned about the innocent people. I am not concerned about people who have committed offences, who need to be dealt with—this is about innocent people who have done absolutely nothing wrong. They potentially could have been our friends and neighbours, living in our country, who have not regularised their situation. Unfortunately, mistakes happen, for all the assurances, and people find themselves taken away, probably quite unfairly, locked up and stuff. I want to hear a bit more about how we are going to deal with those sorts of situations. I am talking about the innocent people. How are we going to look after those people, who have done nothing wrong? We are all agreed on those who are criminals and have done bad things, but what about the innocent people, who are treated unjustly? That is what I want to hear about.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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We will be talking about the EU settlement scheme in future groups. As I will go on to explain, the scheme does not end, in the sense that, if people are here, certainly between now and 2020, and want to regularise their status, they can do. Of course, the reasonable excuses rule will go on indefinitely as to why people have not regularised their status.

Obviously, these amendments have nothing to do with the Bill, but I hope that I have outlined the various degrees of safeguards that will guard against people being detained indefinitely. We will go on to talk about the EU settlement scheme and some of the safeguards that go around that, particularly ongoing, with people who have missed the boat. I hope, with those explanations, the noble Lord is happy.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, the noble Lord, Lord Kennedy, is absolutely right about the numbers of people who may find themselves in a situation—and not even be aware of it—which is not regularised. Yes, we will come on to talk about the settlement scheme, and perhaps we will pick up the Minister’s words about the possibilities of applying some way into the future.

The Minister started as I expected, by saying that these amendments are not relevant to the Bill and that if we were to include them, we would be discriminating against people who are not from the EEA or Switzerland. It is entirely open to the Government to apply these provisions to everyone, as I think they should be. They are relevant to the Bill. My noble friends Lady Barker and Lord Paddick made it clear on an amendment last week.

We started debate on this group of amendments late on Wednesday and as a result some noble Lords were unable to take part, or cannot participate today. Two have asked me to make a short comment on their behalf. I hope noble Lords will indulge me if I include them now.

The noble Lord, Lord Cashman, said: “It is now time for the Government to put our values on civil liberties and human rights at the heart of our immigration and asylum policies and start treating others as we would want our citizens to be treated. Indefinite detention must be brought to an end.”
The noble and learned Baroness, Lady Neuberger, said: “Detention is so deleterious to mental health.” She quoted the Centre for Mental Health, which tells us:
“The longer someone spends in detention, the more negative an impact it has upon their mental health.”
That is why detention must be limited, as the noble Baroness, Lady Lister of Burtersett, made clear. The noble Baroness, Lady Lister, also talked about loss of hope. She referred to the Jesuit Refugee Service’s report, which is very powerful, as did the right reverend Prelate, who talked about the moral case and the current situation being inhumane. The noble Baroness, Lady Jones of Moulsecoomb, also spoke of this.
Segregation is particularly deleterious to mental health. I said at the start of this group that I supported the amendments in the name of the noble Lord, Lord Ramsbotham.
I reiterate that Amendments 39 to 41 and 94 are a package. Amendments 40 and 41 deal with criteria and applications for bail. I make the point they are a package in case we come back to the issue on Report.
It is suggested that people would disappear if they were not held in detention with an indefinite period. I do not understand that to be the experience elsewhere. I do understand the UK to be something of an outlier, which is not consistent with the Minister’s view, though I dare say we will find that we are both right. Most people are held for a short time and return to the community and do not disappear—a point made by the noble Lord, Lord Judd—so I do not think that the argument holds. I disagree with the noble Lords, Lord Green of Deddington and Lord Adonis, that the public should have confidence in our immigration and asylum system. That does not detract from the arguments in support of the amendments.
We have heard from the Minister about the effectiveness of the gatekeeping system—in fact, when I was a member of the Joint Committee on Human Rights, it found the contrary—and that the situation will be kept under review, but the problems will remain and we would reward abuse. I reject that; there is a legal position people can take advantage of. They should be allowed to and be protected by lawyers who are not gaming the system, they are applying the law. We should by now have a handle on the effect of releases because of positions taken at the start of the Covid lockdown.
I now have so many notes scribbled on the bottom of my paper that I can hardly read them. I think they amount to: I do not agree with what we have been hearing from the Government Bench.
On Wednesday I referred to evaluating how to deal with people in the community. I am glad to hear that there is an evaluation of the pilot. We need to get on with this. However few people are subject to detention for more than 28 days, without knowing when that will come to an end, this is a cohort of individual people for each of whom we should have concern. We have heard the argument that our amendment would allow very dangerous criminals to be released on to the street. For criminals who have committed crimes—that would be the definition—and who have been sentenced, if they are eligible for deportation, that is what should happen. The noble Baroness, Lady Lister, was shaking her head; I am too. But my conclusion must be at this point that I beg leave to withdraw the amendment.
Amendment 39 withdrawn.
Amendments 40 and 41 not moved.
Baroness Finlay of Llandaff Portrait The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
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We now come to the group beginning with Amendment 42. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division, should make that clear in the debate.

Amendment 42

Moved by
42: After Clause 4, insert the following new Clause—
“Right to rent (EEA and Swiss nationals)
(1) The following provisions of the Immigration Act 2014 shall cease to apply to EEA and Swiss nationals and their dependants.(2) The provisions are sections 20 to 37 and Schedule 3 (right to rent).”Member’s explanatory statement
This new Clause would require the Secretary of State to ensure that landlords do not carry out immigration checks on EEA and Swiss nationals under the Right to Rent scheme.
Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, in moving Amendment 42. I will speak also on Amendments 50 and 71. These amendments deal with the so-called hostile environment measures. That phrase is used by the noble Baroness, Lady Bennett, in her Amendment 71, which extends to the Data Protection Act; that is the subject of the next group. I am aware the term used now by the Government is “compliant environment”, but I am concerned with the substance not the terminology.

We have turned citizens, our public services and the police into border guards. We have dumped on them the enforcement of immigration control. The policies encourage us to be suspicious of each other and undermine trust in our public services. People are deterred from seeking medical treatment for fear of a large bill or being reported, detained or deported. An answer to this would be that emergency treatment would not be withheld. A condition not an emergency today may still need treatment and it may become life-changing or life-threatening.

To what end is the hostile or compliant environment? I understand that the Home Office acknowledges that the “vast majority”—I quote that term—most of whom are people who came here legally but subsequently lost status, have done nothing wrong. Landlords are required to check the immigration status of potential tenants and face huge fines or imprisonment if they fail to check or get it wrong. Can it be any surprise that many landlords take the easy course and look for tenants who are British passport holders? They must regard this as being simply practical, not discriminatory. It is—though without any real sanction.

The Joint Council for the Welfare of Immigrants, whose action against the Home Office continues, says on its website:

“It takes BME people and migrants up to twice as long to find a home to rent as a white British person.”

Recently, the organisation the3million commissioned a poll of employers in connection with its campaign for physical documentary proof of EU settled status; we will come to that shortly. The poll seems relevant to this issue. It was a poll of professionals with authority over hiring decisions. It said that it was worth noting that the picture is bad when considering all employers in the UK; the fact that the poll was online means that there will be a certain amount of oversampling of employers who are more comfortable with digital technology. This affects EEA and Swiss citizens in the immediate short term, but the Government aim to roll out the digital-only status to an ever-expanding group of immigrants.

The poll’s findings included the fact that employers are very concerned about the consequences of getting it wrong. This creates an incentive to play it safe and avoid recruiting people from outside the UK, so there is just the same risk of discrimination as in the landlord/tenant sector. Thank goodness the “Go home” vans were short lived.

We can address only address legislation through our amendments. The legislation sets out the policy, and from the policy, practice flows.

A week ago, Ian Birrell wrote an interesting and powerful article in the i about the impact of our arrangements. He talked about the large number of people who

“had never bothered applying for passports, while the Home Office had lost their papers”

and then discovered that they were “technically undocumented”. One young woman who found herself in that situation was precluded from attending university, for which she had qualified, and is behind a report showing how lives are “distorted and damaged”—her words—by a

“callous bureaucratic system that sows division, hurts mental health and condemns families to more than a decade of massive financial strain … Talk to these young adults and you hear tales of life on the edge as they are pitched into a Kafkaesque process that is complex, intrusive, often incompetent, demands huge and constantly rising fees”—

the fees are no little part of the picture—

“yet make one mistake and, like a dystopian game of snakes and ladders, applicants slide back down to start the torturous … process to citizenship again.”

I will discipline myself and not quote further from the article, but it ends by saying that

“the horrors of the hostile environment have not faded”.

The Government talk of welcoming people from the EEA making a home here within the Immigration Rules, but the application of the hostile or compliant environment legislation does not say, “Welcome to the UK.”

I beg to move.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP) [V]
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My Lords, I will speak to Amendment 71 in my name and also to Amendments 42 and 52 in the names of the noble Baronesses, Lady Hamwee and Lady Ludford. They cover parts of Amendment 71 and also Amendment 43, which covers data sharing.

I pay tribute to the campaign group Liberty for its help with my preparation of this amendment and for its support through its unfortunately unsuccessful struggle to see its scope allowed to cover everyone affected by the hostile environment, rather than just those who face being newly affected by it—for whom, as the noble Baroness, Lady Hamwee, said, the digital-only status is likely to create particular issues.

In short, Amendment 71 would introduce to the Bill a series of sunrise clauses that would prohibit the Secretary of State from making regulations to commence the end of free movement until the estimated 3.6 million people newly affected by the hostile environment were exempted. I will continue to use the term “hostile environment” because, as the noble Baroness, Lady Hamwee, said, that is the practical reality and substance of what it is.
I will outline briefly three elements of this. Subsection (2) of the new clause proposed by Amendment 72 would ensure that people have the right to rent a home, receive essential healthcare, open a bank account and hold and use a driving licence. Subsection (3) of the proposed new clause would ensure that all migrants can access public funds, subject to a habitual residence test. Subsection (4) of the proposed new clause would prohibit data collected or held by essential public services being used for immigration enforcement purposes—known in shorthand as a data-sharing firewall.
The noble Baroness, Lady Hamwee, set out some impacts of the right-to-rent element of the hostile environment. It is worth noting that this was the subject of a legal challenge brought by the Joint Council for the Welfare of Immigrants, in which both the High Court and Court of Appeal made factual determinations that it caused discrimination. The High Court went further and found that the discriminatory effects of the scheme could not be justified and made a declaration of incompatibility under Section 4 of the Human Rights Act. In allowing the Government’s appeal, the Court of Appeal said that it was up to Parliament to decide, so the matter has been put back in our hands. This is the first chance that we have had to have another look at the scheme in the light of the stark findings of the courts. It is a chance to remedy the discrimination it is causing. I note that research found that 42% of landlords said that they were less likely to rent to someone without a British passport as a result of the associated penalties.
In October this year, the NHS surcharge will rise to £624 a year. It represents an unjustified double taxation for temporary migrants who already contribute to the NHS through regular taxes. I note that the Government have made a U-turn and decided to remove the surcharge for NHS and care workers. But, following on from my Written Question HL5749, tabled on 16 June 2020, can the Minister confirm for me—either today or in future—whether all those who paid in funds without needing to have been refunded?
We know that many of the lower-paid workers likely to be affected by the surcharge are essential workers, as Covid-19 has made all too clear. Of course, there are both public health and individual health impacts from this. There is an exemption for Covid-19 testing, but it applies only up to the point when a person receives a negative test, at which point charging resumes for any other condition requiring treatment. The risk of a huge bill is likely to be a significant deterrent to people seeking care in a timely way. During this pandemic, that is a significant threat to public health.
Moving on to the banking point of the hostile environment, if a person is in the UK unlawfully, or is believed to be, banks or building societies must refuse them an account, yet bank accounts are an essential part of everyday life these days, particularly for paying for necessities. Of course, it is more expense to live if you cannot pay for many services particularly through direct debit. Denying people access to bank accounts leaves them with nowhere secure to put their money, which in turn leaves them vulnerable to robbery, reliant on cash-in-hand work and at the mercy of payday lenders.
On driving licences, bulk data-sharing arrangements between the Home Office and the DVLA allow them to check people’s entitlement to a licence. However, although more than 4,000 driving licences were revoked in 2017-18, in the previous year—there is no real reason to think that this has changed—250 wrongly revoked licences had to be reinstated, raising serious concerns about the accuracy of the data.
On illegal working, criminalising work and penalising employers for taking on undocumented migrants does not prevent them working; it simply pushes them into the shadow economy, where they are at risk of exploitation and harm. The fear of criminalisation is one of the primary tools used by traffickers to control exploited workers.
We now come to what this proposed new clause would stop applying to the 3.6 million people newly potentially affected: the offence of driving while unlawfully in the UK. Studies have shown evidence of discrimination in the use of traffic stops by police, with disproportionate targeting of black and ethnic-minority drivers. The offence and the search powers that go with it risk people being stopped on unfounded and stereotyped assumptions, resulting in deeply discriminatory stops that do serious harm to police/community relations—something that my noble friend Lady Jones of Moulsecoomb has often raised, as I am sure your Lordships’ House is aware.
On the data protection elements of this amendment, we have a situation in which the exemption from the general data protection regulation and Data Protection Act 2018 is likely to facilitate the development of the status-checking project. Given the quality of Home Office data management, this project is likely to result in people being denied access to essential services.
Proposed new subsection (3) is on “no recourse to public funds”, which I think has been exercised broadly elsewhere in the debate on this Bill. The High Court recently found that part of that policy is unlawful and that current instructions to Home Office caseworkers do not adequately account for human rights obligations. In the context of the Covid-19 pandemic, the effect of “no recourse to public funds” is even more significant. People are forced to continue to work even when it is not safe for them, and all of us, for them to do so. It is clear that “no recourse to public funds” keeps people in destitution, which is simply unacceptable in a civilised society.
Finally, proposed new subsection (4) would ensure that before ending free movement the Home Office is prohibited from processing, for immigration enforcement, data held for health, education, banking, driving, welfare benefits, employment, homelessness, local authority support and policing reasons. This data sharing often occurs without the knowledge or consent of the data subject and in some cases the trusted public servant who initially collected the data. We have seen some truly awful consequences of this. For example, take the case in 2017 when a woman who was five months’ pregnant reported to the police that she had been raped and was subsequently arrested on immigration grounds at a rape crisis centre. It discourages access for children to education, which is crucial to them, their future and rights. We also have the problem of inaccurate data, leading to the wrongful denial of services—as was the case for some of the Windrush citizens.
It may be that the Minister, in responding, notes that the Home Secretary recently announced a review of the hostile environment as part of the Government’s acceptance of the Windrush Lessons Learned Review. That may be cited as a reason not to accept this amendment, but there can be only one conclusion of any proper, independent, robust, evidence-based review of the hostile environment—to scrap it. This is an opportunity for your Lordships’ House to back that scrapping and prevent much further suffering.
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I support my noble friend Lady Hamwee in her opposition to the hostile environment in her Amendments 42 and 50—an argument eloquently and powerfully made by her. The hostile environment has turned our citizens into border guards and made us suspicious of our fellow citizens, even those legally in the UK. On right to rent, it is the safest option for landlords to rent to white people, or British passport holders if landlords go beyond seeing the white face in front of them.

The evidence suggests that the Government’s right to rent scheme is being seriously enforced against only those who require a visa to enter the United Kingdom and not those who are allowed visa-free entry. This again calls into question whether the Government are really serious about ending the free movement of EEA and Swiss citizens, or indeed the free movement of B5JSSK citizens. The only alternative explanation is that there is no way of legally enforcing right to rent against these citizens.

When I spoke to the first group of amendments a week ago, I referred to A Short Guide on Right to Rent, a publication in which the Home Office advises that landlords can establish a B5JSSK, EEA or Swiss national’s right to rent by checking their passport, which will have no stamp to show when they entered the UK, together with evidence of the date they last travelled to or entered the UK.

I have had the opportunity to go back to make sure that the Home Office advice I referred to was up to date. It is even worse than I thought. I quote:

“Acceptable evidence of entry to the UK may include (but is not restricted to) one of the following, or a combination of: An original or copy* of a boarding pass or electronic boarding pass for air, rail or sea travel to the UK … An original or copy* airline, rail or boat ticket or e-ticket … Any type of booking confirmation (original or copy*) for air, rail or sea travel to the UK”.

There is an asterisk by the word “copy” and an explanation that

“a copy can be a hardcopy such as a photocopy or an electronic copy such as a screenshot”.

The Government are clearly not serious about enforcing right to rent for citizens of these countries, as landlords have to see not even the original ticket, boarding pass or travel booking but an easily forged photocopy or screenshot.

Not only that, the guide goes on to say:

“Although these individuals only have six months’ leave unless they obtain a visa, landlords who have correctly conducted a right to rent check will obtain a statutory excuse for 12 months and must schedule a follow up check … before the end of the 12-month eligibility period if the individual is still occupying the accommodation.”

The Home Office’s own guidance talks about landlords being required only to do a follow-up check six months after EEA, Swiss or B5JSSK citizens should have left the country. At that point, the EEA citizen could produce another ticket, boarding pass or booking showing that they entered the UK within the last six months, and the landlord could then rent for another 12 months.

The question has to be asked, and I would like the Minister to answer this: why are the Government insisting on strict enforcement of right to rent against those who require a visa to enter the UK but apparently relaxed about those from B5JSSK countries and, at the end of the transition period, EEA and Swiss nationals? The Government either are not serious about enforcement of right to rent against these citizens or accept that it is unenforceable against them.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I support all the amendments but particularly propose to speak to Amendment 71 in the name of the noble Baroness, Lady Bennett. I declare an interest: I have a property that I rent out. It is let by agents, in part precisely because the idea that I as an individual know what I should be looking for, in terms of right to rent, becomes really quite difficult. I will not discuss that any further.

The amendment from the noble Baroness, Lady Bennett, talks about the so-called hostile environment. My noble friend Lady Hamwee pointed out that it is now known as the “compliant environment”. There should never have been the concept of a hostile environment. We heard earlier, at the end of the previous group of amendments, the words of the noble Lord, Lord Cashman, uttered by my noble friend Lady Hamwee, reminding us of the importance of our values. As the United Kingdom prepares to end the transition period, it is as important as ever that we abide by our values that are open and tolerant.

The suite of regulations that is covered by the noble Baroness’s amendment are all with the proviso that the people who would fall under the amendment are EEA nationals who are already present at the start of the Schedule. These are people directly affected by the United Kingdom’s decision to leave the European Union but who had no say in that decision.
From June 2016 onwards, your Lordships’ House and the other place have talked about the rights of European citizens. Those rights will be removed, but surely it is appropriate that Parliament looks very carefully at how they are replaced. Simply to say that EEA nationals now fall under the wider immigration regime may be appropriate for someone who arrives from one of the EEA countries on 1 January 2021, but it should not apply to EEA nationals who are already resident in the United Kingdom but maybe have not already sought the right to reside. What guarantees do the Government intend to put in place for EEA nationals legally resident in the United Kingdom on 31 December 2020 to ensure that their rights are not removed overnight if they have not already put in a request for indefinite leave to remain? Otherwise, the amendment put forward by the noble Baroness, Lady Bennett, seems to be wholly appropriate, and I wonder whether the Government could see their way to supporting it. However, I suspect the Minister has a whole suite of reasons that she can give us for why it is not appropriate.
Lord Judd Portrait Lord Judd (Lab) [V]
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My Lords, Amendment 42 seeks to repeal the right-to-rent scheme introduced by Chapter 1 of Part 3 of the 2014 Act. That chapter, coupled with amendments made to it by the Immigration Act 2016 and amendments made there to the Housing Act 1988, requires landlords and their agents to refuse accommodation to people who require, but do not have, permission to be in the UK. Landlords and agents may indeed face criminal sanction if providing accommodation in these circumstances.

As Amnesty firmly argued in its excellent brief, the impact of this regime is more widely harmful for people of colour. It essentially promotes homelessness and race discrimination—for example, because it becomes safer for landlords to avoid providing accommodation to people who are not white, do not have recognisably British accents and have non-Anglo-Saxon-sounding names.

Amendment 50 essentially seeks the repeal of other provisions of Part 3 of the Immigration Act 2014, which provides for an immigration health charge and restrictions on who may open a bank account or obtain a driving licence. It is particularly important to emphasise the need for a repeal of the immigration health charge. As Amnesty again forcefully argues, it is nothing more than a tax upon people coming to the UK to work, study or join family—people who are already taxed by immigration fees often set far above the administrative cost, over and above the taxes that they, like others, pay by reason of their living and working in this country.

In the sad legislation before us, we need to take these points very seriously indeed.

Lord Rosser Portrait Lord Rosser (Lab)
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I do not know what is going to be included in the Government’s response to these amendments, but we have heard today, as we have on previous days in Committee on this Bill, that an amendment or group of amendments is not relevant to the Bill. I am assuming that that is being said purely as the Government’s view, since presumably, through the changes that it does or does not make to a government Bill, it is for Parliament to decide what should or should not be in a Bill and is therefore relevant to it. So I would be grateful if the Government could confirm that when they say an amendment or group of amendments is “not relevant” to the Bill, they are simply expressing a view and accept that that is an issue that Parliament will have to determine.

Amendment 42 in this group would exempt EEA and Swiss nationals and their dependents from the right-to-rent immigration checks by landlords under the Immigration Act 2014. Amendment 50 would exempt EEA and Swiss nationals and their dependents from some provisions under the Immigration Act 2014, including the NHS surcharge and immigration checks on opening bank accounts and holding a driving licence. It would also exempt them from provisions in the Immigration, Asylum and Nationality Act 2006, which disallows a person from being employed if they do not have a valid immigration status. Amendment 71 would exempt EEA and Swiss nationals residing in the UK immediately before the commencement of the Act from a variety of immigration provisions, including checks on renting, bank accounts, driving licences and illegal working.

We understand the concerns that these amendments seek to address. The experiences of the Windrush generation, when lives were ruined and families torn apart, simply highlighted the failures of the hostile environment policy, particularly the culture that it led to in the Home Office that determined how the policy was applied, and as reflected in the terms of the Immigration Acts in 2014 and 2016. Against that background, it is understandable why there is concern among EEA citizens living in this country about the impact that changes to their status following our withdrawal from the EU could have on their position in relation to the application of the terms of the Immigration Acts.

The Government could have used the Bill to signal the end of the hostile environment policy in reality, not just in name, and in so doing convince EEA citizens that their concerns were without foundation. The Government have chosen not to do so, and consequently these amendments seek to do what the Government have failed to do, by giving EEA and Swiss citizens exemption from some of the more contentious parts of the Immigration Acts, including in particular those parts of the now rebranded hostile environment policy that were effectively farmed out to private individuals and private companies to implement, such as the checks in relation to the renting of property or opening of a bank account.

I hope that when we hear from the Government, as we are just about to, we will hear some hopeful response to the thrust of these amendments and that the Government are equally determined to address—and how they intend to do so—the concerns that the amendments have raised.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, in thanking noble Lords for speaking on these amendments, I say to the noble Lord, Lord Rosser, that I am going to argue not that they are irrelevant to the Bill but that that they are discriminatory, in their own ways. They would undermine the commitment to the British people to introduce a single global system. They would also weaken the immigration system by reducing the incentive to comply with the UK’s rules and laws.

On right-to-rent checks, I say to the noble Lord, Lord Paddick, and to the noble Baroness, Lady Hamwee, that immigration does not begin and end at our borders; it is more far-reaching than that. Under our new immigration system, everyone will be required to obtain their current correct immigration status, and we will clearly distinguish between those who are here lawfully and those who are not, regardless of their nationality. The measures in question concern migrants’ eligibility to rent accommodation, to work, and to access healthcare, bank accounts and driving licences. These measures have all been approved by Parliament. They contribute to our efforts to tackle illegal migration and those who seek to profit from immigration offences, while protecting taxpayer-funded services. Exempting from these measures EEA citizens and their family members, including those who do not have lawful immigration status, would undermine the integrity of the new immigration system1 which we have promised to deliver.

Amendment 42 specifically relates to the right-to-rent scheme, the legality of which has recently been upheld by the Court of Appeal—to echo the point of the noble Baroness, Lady Bennett. By disapplying these checks to all EEA citizens and their family members, this amendment would significantly compromise the right-to-rent civil penalty scheme. Under the current system, when a landlord is found to be letting to a disqualified person, the Home Office can issue a civil penalty of £3,000. A scheme that does not require evidence to be obtained for every tenant would render unworkable the Government’s ability to impose criminal and civil sanctions against unscrupulous landlords, as this exemption would serve as a blanket defence.

It is not clear how Amendments 42 or 71 would work in practice. Eligibility checks by landlords, employers and the NHS apply to everyone, including EEA and British citizens. Those carrying out the checks would not be able to ascertain who was part of the exempt cohort, as set out in these new clauses, and so would need to check everyone anyway. Alternatively, landlords and employers would have to take, at face value, a self-declaration of anyone who claims to be within this particular cohort. Amendment 42, for example, would make the right-to-rent scheme inoperable, as migrants who are unlawfully present or ineligible could self-declare as an EEA citizen, which could prevent the landlord from requesting further evidence of eligibility.

The noble Lord, Lord Paddick, asked who will check whether someone has UK immigration status. Particularly after the grace period, EEA citizens granted leave under the settlement scheme will use their digital status information to demonstrate to employers their right to work, to landlords their right to rent, and to other government departments and local authorities their right to access benefits and services—if they meet the relevant eligibility criteria. The noble Lord, Lord Paddick, pointed out the various documents that would be required. I am wondering whether he was questioning whether they were up to date, but I am sure he will come back to me on that if I have not made that clear.

For Amendment 50, I will focus on two aspects of the new clause. As noble Lords know, illegal working is a key driver of immigration offending. The ability to work without lawful status encourages people to take risks and to break our immigration laws, and leaves people vulnerable to exploitation—I refer to the point of the noble Baroness, Lady Bennett—including being paid under the legal minimum wage. We are determined to continue to tackle illegal working, but this amendment would hinder our progress.

The proposal to prevent the application of provisions relating to healthcare charges to EEA citizens and their dependants would also have a significant negative impact. The immigration health surcharge is designed to help support the NHS, ensuring that temporary migrants who come to the UK for more than six months make a fair contribution to the wide range of health services available to them. By exempting such a large cohort, including those in the UK unlawfully, from being charged for accessing healthcare, this new clause would increase the financial pressure on the NHS considerably.

The noble Baroness, Lady Bennett, talked about the reimbursement scheme for the immigration health surcharge. I do not know if she knows but, on 15 July, the Minister for Health announced that reimbursement will be paid in arrears of six-month increments, and the scheme will launch in October.
More generally, exempting from the measures in question all EEA citizens, including those who come to the UK after the end of the transition period, would result in different rules continuing to apply depending on a person’s nationality. It would be inherently discriminatory, given there would be no justifiable reason for this distinction between nationalities after the end of the transition period.
Amendment 71 introduces a new clause which limits the scope of those who would be exempt from specified measures to those EEA citizens and their family members who are lawfully residing in the UK by the end of the transition period. However, it is problematic for several reasons, not least because the amendment appears unworkable, as explained previously. If the aim of the amendment is to ensure that EEA citizens and their family members currently resident in the UK are not adversely impacted by these measures, I share that wish. EEA citizens who are already resident here, or who are resident by the end of the transition period, can apply to the EU settlement scheme to secure their rights in UK law. This allows them to access work and services on at least the same basis as they were before being granted that status.
Until the end of the grace period on 30 June 2021, there will be no change to the current process of checks by landlords and employers for EEA citizens. They will continue to be able to use their passport or national identity card to evidence their right to rent or work. Furthermore, landlords, letting agents and employers will not be required to conduct retrospective checks on existing tenants or employees.
As the Government have repeatedly made clear, we will also accept late applications to the scheme from anyone who has reasonable grounds for missing the deadline of 30 June 2021. Should they be granted status, they will enjoy the same rights from that point as if they had applied before the deadline. These amendments are, therefore, unnecessary and could even be detrimental by discouraging people from applying to the scheme.
Amendment 71 also seeks to remove EEA citizens from the immigration exemption within the Data Protection Act 2018. When this was debated in the other place, it was made clear that this exemption is a necessary and proportionate measure designed to protect the integrity of our immigration system. The High Court has also judged the exemption to be compliant with the GDPR.
In future, once free movement has ended, it is right that our measures apply based on whether someone has lawful status or not, rather than on their nationality. It is also important that we have an immigration system that encourages compliance with UK tax laws and rules, and which protects taxpayer-funded public services from abuse. These new clauses contradict the Government’s position on both fronts. I hope that, with these explanations, noble Lords feel happy not to force their amendments.
Baroness Finlay of Llandaff Portrait The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
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My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Paddick.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I thank the noble Baroness for expecting me to speak after her. I have two points. The first is that we seem to be playing a whack-a-mole game about whether the amendments are relevant to the Bill or discriminatory. Let us hit the other one on the head: the only reason these amendments are restricted to EEA and Swiss nationals is that the clerks would not allow broader amendments, because they would not be within the scope of the Bill. They are not discriminatory; they aim to get rid of the hostile environment for everyone. That is the first issue.

Secondly, on the specifics, I apologise to the Minister for not making it absolutely clear which group of people I was talking about when I was saying that the right-to-rent scheme did not work. I was talking about EEA and Swiss nationals, at the end of the transition period, and all those other nationals who can now use the e-passport gates to enter the United Kingdom for six months without a visa.

I demonstrated in my speech that these individuals could rent for up to 12 months without a landlord being in peril of a civil penalty or any other penalty. Indeed, if during that 12 months they produced another ticket, boarding pass or travel booking—or a copy of any of those—they could further extend their rental with the landlord, because they had produced evidence that they had arrived in the UK within the previous six months. Therefore, you can see that they could extend and extend their rental of a property, completely undermining the right-to-rent scheme. Only those nationals who can use the e-passport gates, who get six months’ visa-free travel, can circumvent the system in that way. Those other foreign nationals who require a visa cannot do that because the landlord has to check digitally with the Home Office. The Minister may say that eventually everything will be digital, but this will not be digital. There will not be a digital way to check the rights of people who have six months’ visa-free entry to the UK. It will still be done on the basis of passports, tickets, boarding passes and bookings. That is the point I am trying to make.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I see the noble Lord’s point. We need a further discussion or, indeed, an exchange of letters on this before Report. The first letter that I sent him clearly did not do the trick, so we will have further discussions on this.

I know exactly why noble Lords have tabled amendments that refer to EEA and Swiss nationals, because it puts them within the scope of the Bill. It does not make it any less discriminatory technically and legally, however, but I get his point.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, having a “non-Anglo-Saxon-sounding name”, to use the terminology used by the noble Lord, Lord Judd, I am very conscious of the position. The Minister is, of course, quite right about why we had to confine the amendments to EAA and Swiss citizens, but it is disingenuous to say that we are being discriminatory. I said on the last group of amendments that we take opportunities where we can. We are very happy to invite the Government to apply the amendments to every nationality. Sadly, this is not open to us; as there are no Private Members’ Bills at the moment, our opportunities are pretty limited.

My noble friend Lord Paddick is not into whacking moles—because he is kind to animals, apart from anything else—but he may be very challenging to the Minister. I think it is wise to try to bottom out this issue after this stage.

Reference has been made to the black economy and how people who do not have status are driven into it and are vulnerable to exploitation. There is a big difference between our position and that of the Government. We see that as the outcome of the hostile environment provisions, not as a driver for them. I am intrigued by the points about forgeries that have been made, because it is the Government’s position that physical documents for the EU settled status scheme would open up the possibility of forgery, but we will come to that later.

We have done what we can, for the moment at any rate. I beg leave to withdraw the amendment.

Amendment 42 withdrawn.
Baroness Finlay of Llandaff Portrait The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
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We now come to the group beginning with Amendment 43. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or anything in this group, to a Division should make that clear in debate.

Amendment 43

Moved by
43: After Clause 4, insert the following new Clause—
“Data protection: immigration (EEA and Swiss nationals)
(1) The Data Protection Act 2018 is amended in accordance with subsection (2).(2) In paragraph 4 of Schedule 2, after sub-paragraph (4) insert—“(5) This paragraph does not apply if the data subject is an EEA or Swiss national.””Member’s explanatory statement
This new Clause would ensure that the immigration exemption in the Data Protection Act 2018 does not apply to EEA or Swiss nationals.
Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I beg to move Amendment 43 in my name and that of my noble friend Lady Hamwee, and to speak to other amendments in this group. Amendment 43 seeks to remove paragraph 4 of Schedule 2 to the Data Protection Act in relation to EEA and Swiss nationals, and there is a reason why it is drafted only in relation to EAA and Swiss nationals.

These Benches and others have consistently opposed the suppression of data protection rights of migrants and free movers, which paragraph 4 of Schedule 2 imposes. My noble friend Lady Hamwee made a very powerful speech when moving an amendment on Report of the Data Protection Bill to remove said paragraph, which she said was “very far-reaching indeed” and even

“gives scope for quite considerable fishing expeditions.”—[Official Report, 13/12/17; col. 1588.]

One of the safeguards lacking from the Data Protection Act is the protection of Article 8, on data processing, of the EU Charter of Fundamental Rights. Because the Government refused to include the charter as retained EU law on exit, all we have is the European Convention on Human Rights, and once again there are rumblings about the ECHR. Yesterday, the headline in the Sunday Telegraph—I had to go out and buy it, which was rather galling, because it is behind a paywall—was:

“Boris Johnson set to opt out of human rights laws”

and that meant the convention. Here we go again. The Sunday Telegraph reported that Mr Dominic Cummings, no less, has previously attacked the European Court of Human Rights, and

“has warned that voters would expect the jurisdiction of European judges to end in the UK as part of the Brexit process”—

those pesky European judges. At least the newspaper had the grace to add that the ECHR and court were not part of the EU system, but there is that attempt to cross over and interlink the whole time. There is a connection between the UK’s adherence to the European Convention on Human Rights and the Brexit process, in the sense that the Government are resisting giving the EU a formal undertaking to adhere to the convention. The Justice Secretary told a radio programme this weekend:

“The idea that we’re going to leave the convention is for the birds.”

The trouble is, one might have thought the same about the idea that the Government might renounce part of the withdrawal agreement—until they did, in the Bill being debated in the other place this afternoon. Indeed, in April 2016, the then Home Secretary, Theresa May, said:

“The case for remaining a signatory of the European Convention on Human Rights, which means Britain is subject to the European court, is not clear.”

She said the case was not clear and she, of course, was subsequently Prime Minister.

The deputy counsel to the Joint Committee on Human Rights advised that implementing the GDPR—the general data protection regulation, the EU’s data protection law—would arguably not be enough on its own to ensure a data adequacy finding for the UK if the Data Protection Bill fell short of standards required by Article 8 of the charter. You can double this if our membership of the European Convention on Human Rights is also at risk. The knock-on effect if the UK fails to get a data adequacy decision will mean that the prospects for law enforcement co-operation with the EU, or business transfers of data to EU and EEA countries, will be dim indeed. This point was made repeatedly in proceedings on the Data Protection Bill and, indeed, on various Brexit Bills in this House. The weakness of human rights safeguards makes the loss of data protection rights for migrants even more significant.

Paragraph 4 of Schedule 2 to the Data Protection Act 2018 is unnecessary and disproportionate. Other provisions in Schedule 2 allow exemption from data protection rights in relation to criminal immigration offences, so that point would anyway be covered. The Equality and Human Rights Commission said that the exemption from data protection rights for migrants could
“permit the authorities to access and process highly personalised data, for example, phone or social media relating to sexual lives of immigrants claiming residency rights on the basis of their relationship with a British citizen.”
The data-sharing agreements that the Home Office has with other departments, plus the ability of private persons—such as landlords, employers, bank staff and so on, which was discussed in the last group—to access data mean that the scope of the immigration exemption from data protection rights is very wide indeed, with a commensurate breadth of potential harm to individuals. Strangely, the Government amended the Data Protection Bill to allow a person to rectify data held on them, but since they cannot access that data in the first place, it is unclear how they can know if it is accurate or inaccurate in order to rectify it.
Amendment 74, in my name and that of my noble friend Lady Hamwee, gives the Minister the opportunity to put on record “something that I understand”, as she said in a Peers’ briefing session during recess which sadly I was unable to attend. She said that the code given to a landlord or employer to check immigration status would not allow them to check, for instance, health information, or to use the information they obtained for any other purpose. I hope that the Minister will therefore be able to accept this amendment, which encapsulates something that she has told Peers.
Amendment 72, in the name of the noble Baroness, Lady Bennett, seeks to limit the use for immigration purposes of data gathered by certain public service bodies in healthcare and education, and where the person has reported a crime or being a victim or witness to a crime. The amendment is helpful in at least limiting the harmful impact of Paragraph 4 of Schedule 2 to the Data Protection Act, but that paragraph in fact needs wholesale deletion. I beg to move.
Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP) [V]
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My Lords, my Amendment 72 complements my Amendment 71. I have spoken at length on these issues, so I will be brief. I also support Amendments 43 and 74, in the names of the noble Baronesses, Lady Hamwee and Lady Ludford. I thank the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for making the same point as I made at the start of my speech. It might seem somewhat disingenuous to suggest that these amendments are discriminatory by choice, when we were actually given the option of applying these only to limited numbers of people. Everyone who has spoken on this subject has expressed their desire to see them used to end the entire hostile environment.

Lord Dholakia Portrait Lord Dholakia (LD)
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My Lords, the Data Protection Act is designed to fundamentally affect the way we use data to market, provide services and run our businesses. It also provides an obligation to warn people how their data will be gathered and used. My noble friend has already spoken about why the immigration exemption in the Data Protection Act 2018 does not apply to EEA or Swiss nationals. I support the arguments that have been advanced, particularly in the field of immigration.

Immigration is a fairly emotive issue and the use of data has caused serious problems in this country. There is an insatiable appetite to question migrants about their movements, but to put very little emphasis on what has been said. The Minister arranged a briefing session prior to Committee. I was not satisfied when I asked why some of the agencies can share the information collected but the police have been excluded from this arrangement. We need clarity on this issue, and I hope that the Minister will be able to provide that today.

I do not dispute the procedures, which are to admit those who are eligible and to remove those who are not, but in any administrative system questions arise about priorities. The administration of the immigration system is no exception and we know that the points system is to be introduced at the tail end of this particular withdrawal Bill. The purpose of the data collection is not in dispute. The administration of the immigration system about the need to exclude the ineligible is no exception. It has always been the case that to exclude the ineligible means that checks have to be made to determine who is eligible and who is not. The immigration officers have similar powers to those of the police in this matter. There is always a concern about fishing raids unless they are done on intelligence. The problem is that the more intensive these checks are, the more delay and expense there is to those who are eligible. The matter of proper documentation has been a point of dispute and likely to cause serious problems. We have seen this in relation to Windrush, which is so often mentioned in debates on this subject. Even today, after 70 years, we have not resolved this issue. We may head towards the EU settled migrants with similar problems if we fail to give proper documentation backed up by proper data collection and the proper use of information collected.

There are ample safeguards on how the information on individuals is to be used. It is explicit that such information may not be used for immigration control or enforcement. All we want to ensure is that there is less adversarial contact with migrants. The police need adequate information in their duties as providers of public services, as is the case with public service organisations such as the NHS and schools.

Lord Oates Portrait Lord Oates (LD)
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My Lords, I want to address my remarks to Amendments 43 and 74 in the names of my noble friends. As my noble friend Lady Ludford has so eloquently outlined, the exemption from data protection for migrants is unjustifiable. Indeed, as she said, the suggestion that we might even withdraw from the European Convention on Human Rights only adds to the alarm that we should feel about that.

This issue goes back some way, as my noble friend Lady Ludford said. During the passage of the Data Protection Bill through Parliament, my noble friend Lady Hamwee raised this issue and sought to amend the Bill, sadly unsuccessfully at that time. She asked the Government to justify the exemption, but from my reading of Hansard, they either could not or would not. She also asked for reassurance from the Minister —and I believe it was the same Minister, the noble Baroness—but, sadly, she did not seem to get much. In fact, the Minister told the House that a decision on whether to apply the exemption could be exercised not only by the Home Office but by contractors who worked for the Home Office. She said that it would apply not only to migrants but to British citizens who supported the applications of migrants. The one piece of assurance that the Minister gave was that the exemption would be used in only a very small number of cases. She was quite explicit about that, so I hope that in her reply, the Minister will tell us how many times the exemption has been applied and, if not, whether she will undertake to write to us.

The truth is that the exemption gives huge discretion to the Home Office and its contractors to determine when access to data can be denied. The Government say that it would not be abused. That might be fine if we had not had the events of Windrush, which my noble friend Lord Dholakia referred to, and if we really felt that we could trust the Home Office and its contractors in this era of the hostile environment. However, in these circumstances it is very hard to do so. We have no way of knowing how the exemption is being applied, unless the Minister is able to tell us a bit more about that. Therefore, this is a matter of significant concern to us. As my noble friends have noted, we are seeking to remove the exemption from EEA nationals. I hope that we will not hear from the Minister that that is in some way discriminatory, as we want it removed from everybody.

Finally, and briefly, on Amendment 74, as my noble friend Lady Ludford said, we really want to hear an assurance from the Minister on this matter that will appear in Hansard.

Lord Rosser Portrait Lord Rosser (Lab)
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As we know, the Data Protection Act 2018 provides for an exemption from some general data protection provisions where personal data is processed for the maintenance of effective immigration control. Of course, that allows an entity that processes data for immigration control purposes, such as the Home Office, to set aside a person’s data protection rights in a range of circumstances. It can also prevent people involved in immigration cases being able to request access to the data that the Home Office holds on them, and that could affect EEA or Swiss nationals applying for a new immigration status in the UK after Brexit.

As has been said, Amendment 43 would preclude the exemption from applying where the person in question is an EEA or Swiss national. EEA and Swiss nationals will become subject to this exemption as a result of our departure from the EU.

Amendment 72 would ensure that personal data belonging to an EEA or Swiss national resident in the UK before the Act that has been gathered through their use of public services cannot then be shared and used for the purposes of immigration enforcement. The relevant public services include primary and secondary education, and primary and secondary healthcare services, as well as where a person has contacted law enforcement to report a crime.

Amendment 74 would provide that a third party—for example, a landlord—given access to check a person’s settled status for specific purposes may not be allowed to use that access or information for any other purposes.

The issue is that there have been reports and evidence of data sharing as part of the Government’s rebranded hostile environment controls when people have, for example, access to education or report a crime to the police. In that latter regard, there appear to be examples of migrant women in particular suffering domestic abuse and being deterred from reporting a crime for fear of getting pulled into the immigration system. The comment has already been made about the independent Windrush Lessons Learned Review identifying a number of people from the Windrush generation who have been wrongly subject to proactive compliant environment sanctions, where the Home Office has shared data with other departments. Therefore, there is a lot of evidence that this data sharing goes on and that it has a detrimental effect on some individuals.

The Independent Chief Inspector of Borders and Immigration has found a 10% error rate in immigration status checks. Therefore, being unable to find out what immigration data the Home Office holds that led to an error—for the purposes of an appeal, for example—is of significance. The figure that I have been given—I am sure the Minister will correct me if I am wrong—is that, since the beginning of 2019, 60% of requests for disclosure have been denied. I hope that in their response the Government will, at the very least, say how they intend to address the concerns raised by this group of amendments.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I thank noble Lords for the points that they have made on these amendments. Perhaps I may address Amendments 43 and 72 together, as they both concern data protection.

I appreciate the concerns to protect data subjects’ rights and to ensure that data sharing for immigration control or enforcement purposes does not prevent people living in this country accessing public services to which they are perfectly entitled. However, I cannot agree to these new clauses, because they would not be proportionate or constructive amendments to the Bill, or indeed address the concerns behind the amendments, and I shall say why.

They would restrict immigration authorities in performing their lawful duties in respect of immigration control, including being able to confirm a person’s immigration status, and they would be unable to prevent potential prejudice to the immigration system. Essentially, the new clauses would expressly prohibit the Home Office from using a necessary and lawful exemption in the Data Protection Act 2018, should it have cause to do so. The immigration exemption has been debated previously in this House and concerns raised have been addressed on those occasions.

The exemption applies to restrict specified data subjects’ rights where the maintenance of effective immigration control, or the investigation or detection of activities that would undermine the maintenance of effective immigration control, are likely to be prejudiced. Rightly, it should apply to anyone who is subject to immigration control, including EEA and Swiss citizens. The new clause proposed in Amendment 43 would therefore constitute a difference in treatment on the grounds of nationality. We do not believe that that can be justified, as one purpose of the Bill is to ensure that there will be no difference in treatment between EEA citizens and those from the rest of the world when it comes to immigration policy.

Amendment 72 would have a similar effect in creating a difference in treatment based on nationality. The effect of the amendment in the clause would be to maintain the current position, so that one particular aspect of the compliant environment—data sharing—would not apply to those who now benefit from free movement. The amendment would have no effect as far as non-EEA citizens are concerned, and data collected in relation to them could still be used for immigration control or enforcement purposes, thereby treating them unequally under the law.

With regard to the immigration exemption dealt with in Amendment 43, it might help if I expand on the safeguards built into the Data Protection Act. The exemption can be applied only on a case-by-case basis and only where it is necessary and proportionate to do so. It cannot be, and is not, used to target any group of people, be they EEA citizens or otherwise. Nor does the application of the exemption set aside all data subjects’ rights; it sets aside only those listed in paragraph 4 of Schedule 2. A further limitation is that the exemption can be applied only where compliance with the relevant rights will be likely to prejudice the maintenance of effective immigration control. This “prejudice” test must be applied first, and, as a result, the situations in which the exemption can be used are significantly limited. The noble Lord, Lord Oates, asked me to give numbers. I cannot do so at this point, but I will see whether I can access them.

Furthermore, the exemption may be applied only so long as the prejudice can be seen to be evidenced and must be removed thereafter. It is not used to restrict access to personal data that would allow a person to further a claim; it is used only where we need to restrict access to sensitive data—for example, details of ongoing enforcement operations.

The exemption has been found to be lawful by the courts, and the ICO has issued robust guidance on how and when it may be used—guidance that the Home Office adheres to. Furthermore, the Home Office has robust safeguards and controls in place to ensure that data is handled securely, lawfully, ethically and in accordance with all relevant data protection regulations. I say again that the Home Office must at all times comply with the GDPR and the Data Protection Act 2018 when data is shared.

Similar to Amendment 72, Amendment 74 seeks to limit the use of data. To reiterate the points that I made to noble Lords during the recess, I reassure them that the services that we provide to third parties for checking immigration status information about EU settlement status can be accessed and used only to check an individual’s immigration status and the rights associated with that status.

I will explain how users can view and prove their immigration status under the EU settlement scheme. Individuals can authenticate securely on the “view and prove your settled or pre-settled status” online service, where they can view their immigration status information and choose to share it with third parties for a variety of reasons. To take the example of right-to-work checks, the individual selects the option to share their right-to-work information and is given a time-limited code, which can be emailed or given to the employer. The employer uses the share code, along with the individual’s date of birth, to access just the information needed to confirm the individual’s eligibility to work, via the “view a job applicant’s right to work details” service on GOV.UK. The information provided to the employer can be previewed by the individual and contains only information relating to their right-to-work entitlements, along with the individual’s name and facial image for verification purposes and the expiry date of the leave, where appropriate. I hope that the noble Baroness, Lady Ludford, who asked me to reiterate this point, is satisfied with my explanation.

For other services such as health, benefits and banking, users can share basic information about their status under the settlement scheme and the process works in exactly the same way. Checking organisations can access the information on a time-limited basis, via the “check someone’s settled or pre-settled status” service. The information provided in this service represents the minimum amount of data required for those checking organisations to perform their duties, and again includes the individual’s name, facial image, the leave they have been granted and the expiry date where applicable.

Third parties do not have access to the immigration database. An individual must choose to share their immigration status through the “view and prove” service before it can be viewed by third parties such as employers. Picking up on the point made by the noble Lord, Lord Dholakia, the police do not have access to the EU settlement scheme or the immigration database, but we are working with other parts of government to develop system checks to share immigration status for specific purposes such as health and benefits. For example, we will provide information to the National Health Service to support it in establishing whether an individual is entitled to access free healthcare.

I hope that noble Lords are now assured that we are committed to delivering immigration status services for the purposes of checking immigration status information only. These services have been designed to protect the personal information of those with EU settled status and have been built around GDPR principles, including that of data minimisation, ensuring that the information available to third parties is only what is absolutely necessary. I hope that, with those words, the noble Baroness is happy to withdraw her amendment.

Baroness Ludford Portrait Baroness Ludford (LD)
- Hansard - - - Excerpts

My Lords, I thank the Minister for her answers but the first is, again, the disingenuous objection that the amendment focuses only on Swiss nationals and is therefore discriminatory on the grounds of nationality. I repeat something that my noble friend Lady Hamwee has said at least twice: it is up to the Government to extend it to all migrants if they wish.

Can the Minister tell us—she may have to write to me—whether any other EEA countries have exempted immigration data in their implementation of the general data protection regulation? Also, she said that the Data Protection Act was compliant with GDPR, but that remains to be seen. I think it is doubtful because that regulation, which I worked on as an MEP, provides no blanket exclusion of immigration data. The Minister did not respond on the prospect of a data adequacy decision from the European Commission. Winning this decision is of huge significance to our security and our businesses.

The combination of this part of the Data Protection Act, not retaining the charter and constant noises about the European convention is not designed to increase the confidence of the European Commission in granting a data adequacy decision. Not getting that will seriously prejudices the chances of the cross-border police co-operation that is vital to this country. The UK has made a huge contribution in that area in building up the EU justice and security measures, as was shown when Theresa May was Home Secretary about six years ago and we had the mass opt back in to all the vital measures. If we are unable to continue that, we will not be able to access information required to catch serious criminals and it will prejudice the security of British citizens. Also, if we do not get a data adequacy decision, it will be much more difficult for businesses to transfer data across the EEA—tech businesses are particularly reliant on data—using other, clunkier routes.

Already, a shadow has been cast on the ability to get a data adequacy assessment by the surveillance provisions in the Investigatory Powers Act and others; that has been the subject of several court cases in Luxembourg and Strasbourg. It is dangerous to undermine further the chances of a data adequacy decision. There are higher things than the Home Office’s wish to have constant access to this data.

Hope springs eternal. I thank the Minister for what she said on Amendment 74, which I will read carefully in Hansard. Unfortunately, she is not giving me any comfort on the other amendments, including Amendment 43, which I moved. However, at this stage, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.
Baroness Garden of Frognal Portrait The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
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We now come to the group beginning with Amendment 44. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else from this group to a Division should make that clear in debate.

Amendment 44

Moved by
44: After Clause 4, insert the following new Clause—
“Late applications to EU Settlement Scheme
(1) The Secretary of State must, before 30 June 2021, publish a report setting out proposals for dealing with late applications to the EU Settlement Scheme and a motion to approve the report must be debated by both Houses of Parliament.(2) Until the report has been debated and approved by both Houses of Parliament, the EU Settlement Scheme must remain open for applications and the Secretary of State must extend the deadline for applications accordingly. (3) “The EU Settlement Scheme” means the scheme for settled or pre-settled status under Appendix EU of the Immigration Rules.”Member’s explanatory statement
The new Clause will ensure that the EU Settlement Scheme will remain open until such time as the Minister has published proposals as to how to deal with late applications and that report has been approved by Parliament.
Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
- Hansard - - - Excerpts

My Lords, I beg to move Amendment 44 and will speak to the other amendments in my name and that of my noble friend Lady Ludford—Amendments 45 and 46—and to Amendments 52 and 96, in the names of the noble Lords, Lord Rosser and Lord Kennedy.

This group of amendments brings us to the EU settled status scheme, which is dealing and has dealt with huge numbers of applications. I do not seek to deny that, but the task is huge to ensure that all EU citizens in the UK at a given date are able to remain when they have the right to do so. These amendments address aspects of the scheme. Later today we will continue with Amendment 49, in the name of my noble friend Lord Oates, which is about how to prove that status.

I am grateful to Ministers and officials for meeting me and representatives of the organisation the3million to discuss applications for settled status after the deadline of 30 June 2021 has passed. When I asked in June of this year as to the proposed criteria for accepting applications made after the end of the period, the Minister’s response referred to the Government’s “compassionate and flexible approach”, and I do not want to suggest that they will not be compassionate. She then gave examples, including
“children whose parent or guardian failed to apply on their behalf”;
I would add to that children who will be less than five years old and will not have completed five years in the UK. The Minister’s examples also included
“people in abusive or controlling relationships who were prevented from applying, and those who lack … physical or mental capacity”.
I understand that guidance for caseworkers is to be published, probably in January.
Before that meeting, the3million had talked with the Minister about the range of circumstances which might cause someone to miss the June deadline. Its examples included students, who will have completed a lot of formalities in order to be here as students. A lot of them think that because they are not settling in the UK, a scheme called “settled status” really is not about them. People who have been here a very long time already feel settled. They feel integrated and have done so for years. They simply do not believe that the scheme can apply to them. People who have obtained a permanent residence document do not think they need to do any more, which is understandable when they have a document that they can wave.
I accept that Home Office messages and posters mention that all EU citizens have to apply, and that holders of permanent residence status have to apply again. However, we all know what real life is like. People switch off before they read the small print, making an assumption that the topic simply does not apply to them. We could have a huge number of ordinary people who simply forgot or did not think it applied to them, or who were scared or overwhelmed by the process. Perhaps they did not have smartphones or see the advertisements. Perhaps they did not have children or grandchildren to prompt them. People may believe that they are ineligible, as the Migration Observatory has pointed out.
The examples in the Written Answer which I mentioned are regularly given. I understand that the Home Office wants to discourage people from thinking that the scheme can be left and picked up after next June, but its approach to what are reasonable grounds may not accord with that of affected individuals. The3million is urging EU citizens to get on with their applications but it believes—and I agree—that having a clearer idea of what is likely not to be considered reasonable would be helpful. I am therefore moving Amendment 44, so that the scheme should remain open until Parliament has dealt with a report on it. Amendments 52 and 96, in the name of the noble Lord, Lord Rosser, have the same objectives.
Amendment 45 deals with something which worries me very much: someone who, on the closing date, has not been in the UK for five years but has been granted pre-settled status so that he can subsequently apply for settled status when five years’ residence has been achieved. It would be all too easy for that further application to be overlooked, so the amendment provides for various notifications from the Home Office. If you are granted pre-settled status, you should be told straightaway about what else is required to be done; similarly if it is
“after this Act is passed”.
There would be another notification at least six months before your entitlement expires through that status.
I do not suppose that we can prove this but given the large proportion, so far, of grants of pre-settled rather than settled status, my concern is that when an application is not straightforward—because the applicant can prove only the last two or three years’ residence and not the longer period that he has in fact been resident in the UK—the caseworker grants pre-settled status rather than delving into those extra years and the applicant thinks “Oh, that’s okay”. As of 30 June, or possibly 31 July—I am not entirely sure from the website—almost 1.5 million grants of pre-settled status have been made, which is 41% of all concluded applications. Ministers refer to grants of just status, but that tells only a part of the story.
At the meeting to which I referred, the Minister and her officials talked about the communications strategy that they will roll out to remind people of the significance of next June’s date. The Minister teases me when I talk about GOV.UK, which I find extremely useful, but I am sure she agrees that it is not everybody’s daily reading. If you do not know that you need information, you are not going to look for it. I understand that the strategy includes contact with specialist groups who themselves have contact with relevant individuals and through embassies, but of course most embassies do not have information about their own citizens who are here. Much of what is in contemplation sounds likely to replicate what had been done already. From what the Minister said, I had the impression that the approach would be rather what one might expect in a commercial context by a company working in the commercial sector. I would be grateful if the Minister could give more information, perhaps by letter, on the selection of whoever is to be appointed to carry out the work, the appointment process and the specification for the job.
As we have been reminded, when the UK switched to digital television there was a huge campaign that was regarded as massively successful. Even so, 3% of people who needed to switch did not do so and were left overnight with a television which did not work, and 3% of 4 million, the number for which applications are now heading when by definition the relevant total must be higher, is 120,000. It would put 120,000 people in a precarious position. If you have pre-settled status and have not converted it you will need to leave the UK when it has expired and, during your residence, you do not have the same rights as under settled status, notably to welfare benefits. That is why I am so worried about this and why I tabled Amendment 45.
Amendment 46, on applications for citizenship from people with settled status, takes us to the issue of comprehensive sickness insurance. For citizenship, are we talking about something more than settled status and people who have exercised treaty rights? I know that my noble friend Lady Ludford has done a lot of work on the requirements for comprehensive sickness insurance, so I am sure she will cover that. I beg to move.
Baroness Altmann Portrait Baroness Altmann (Con)
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My Lords, I support Amendment 44 on late applications, to which I have added my name, especially in the light of the pandemic, with people perhaps not being well for quite some time or not knowing that they need to register. I hope that there will be explicit provision in the Bill for late applications. I also support Amendment 96, which would require publication of reasonable grounds for late application. Again, that would help people to understand that there is the wherewithal, for those who have missed the deadline, for genuine reasons to be catered for.

I also support Amendment 46 in the light of the information we have received from members of the public who are concerned about their lack of sickness insurance. I would be grateful if my noble friend could address that issue and what deliberations there have been in the department that might address the issues raised in this group of amendments. I look forward to hearing from my noble friend.

Baroness Whitaker Portrait Baroness Whitaker (Lab)
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My Lords, I regret that I was deterred from joining the crowded ranks for the Second Reading of the Bill. I support all the amendments in the group and I shall speak to Amendment 46, to which I have added my name. The noble Lord, Lord Bourne of Aberystwyth, has asked me to reiterate his support for it, as he cannot be here today.

As we have heard, Amendment 46 concerns the retrospective requirement for comprehensive sickness insurance to have been taken out before settled status is granted throughout any period of self-sufficiency or as a student. This requirement has borne disproportionately hard on Roma people, with consequent unjust refusals of applications for naturalisation. This has been brought to my attention by the Roma Support Group, since it has particularly affected Roma women who have been looking after children full time, and thus are self-sufficient—neither employed nor self-employed—and who have applied for settled status using such documentation as they had, such as rental agreements or council tax bills, which were of course deemed insufficient. The requirement also prejudices the children of parents who have settled status but who did not acquire comprehensive sickness insurance themselves. The fees are usually out of their reach.

In answer to my Question HL6271 on this matter last July, the noble Baroness, Lady Williams, said that having comprehensive sickness insurance

“has always been a requirement”

under EEA regulations, implying that students and self-sufficient people should have known about the requirement and ensured that they had the insurance. In fact, the CSI requirement results from the Home Office’s specific interpretation of EU regulations, which the European Commission considers to be in breach of EU law. I quote the European Commission’s own text:

“Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The United Kingdom, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.”

Secondly, the noble Baroness’s reference in her Answer to customer guidance and the implication that students and self-sufficient people should have known about the requirement also causes difficulties. Before the comprehensive sickness insurance scandal broke in early 2017, CSI was largely unheard of by anyone who had not had dealings with the Home Office, including the vast majority of EU citizens. It was never required in daily life or requested when accessing the National Health Service. Because of the surge of EU citizens applying for proof of permanent residence under EU rules after Brexit, it transpired that about 28% of applicants were being refused proof of long-term residence in the UK, mostly because of the CSI requirement. In October 2017, Theresa May publicly promised EU citizens that she would scrap the unfair requirement for the new EU settlement scheme. Why has this promise not been fulfilled?
Furthermore, the UK Government decided not to require proof of exercising treaty rights via the CSI requirement from applicants when granting settled status under the EU scheme. Now the Home Office is saying that anyone not exercising treaty rights was here unlawfully and is in fact introducing a two-tier system of access to citizenship for different groups of settled status holders. This will be a continuing issue of fairness and injustice.
Finally, in her Answer to my Question, the noble Baroness said that discretion could be exercised in such cases. It is not being so exercised. The guidance does not offer sufficient assistance, and, in any case, the earlier undertaking was not fulfilled. The Bill needs to put matters right through an amendment such as this.
Baroness Garden of Frognal Portrait The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
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The noble Lord, Lord Bourne of Aberystwyth, seems not to be with us, so I call the noble Baroness, Lady Smith of Newnham.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I essentially support all the amendments in this group, but in particular it is crucial to think about the EU nationals resident here for maybe five years or more who expected to get settled status and then were given pre-settled status. As my noble friend Lady Hamwee so eloquently outlined in her opening remarks, 41% of those EU nationals seeking status of some sort have so far been given pre-settled status.

Maybe members of Her Majesty’s Government are always fully on top of every detail of every document they are ever required to look at, sign or agree. Whenever they get a piece of paper—assuming they even get a piece of paper and it is not some digital communication—they presumably know where they put it and they will know that on some future date, perhaps 23 July 2023, they will have to say, “Now I’m due to have my settled status. Oh Government, please, what do I do now?”

Every Minister might be able to do this, but I suspect that many of the 1.4 million people with pre-settled status might be more like the rest of us: they would know at the back of their minds that they needed to do something. It is a bit like doing a tax return, but at least with an annual self-assessment, one is reminded of it constantly—not just by emails from HMRC but by regular newspaper and television advertisements telling people the date by which they have to do their annual self-assessment tax return. People with pre-settled status are not going to have a single date: each of them will have a different point at which their five-year residence is up and needs to be turned into settled status. Amendment 45 is therefore absolutely crucial.

The Minister may argue that each individual should take responsibility for themselves—this may be the government view. I am sure that everyone who has sought settled status and has so far been told that they can have only pre-settled status is trying to take responsibility for themselves, but there may be all sorts of reasons why they do not necessarily remember the precise date by which they need to regularise things. It could be because of individual specific circumstances. As the noble Baroness, Lady Altmann, mentioned, it could be because of the Covid crisis. There are all sorts of reasons people may not be able to deal with paperwork in the way they would normally be able to do. There may be a family bereavement—there could be a whole set of reasons why people have not thought through what paperwork is required.

There is, however, something to be said for the Government sending appropriate reminders. Surely one of the lessons of Windrush is that it is hugely important not only for individuals to have details of their own status but for the Government to have them too. If the Government are moving so much towards digitisation—so that all settled status documentation will be digital, unless the amendment in the name of my noble friend Lord Oates is passed—it ought not to be beyond the wit of the Government to have a mechanism for alerting people, six months out, to what they need to do to convert their status. If the Minister is minded to demonstrate Her Majesty’s Government’s compassionate and flexible approach—not something we very often see from the Home Office—that would be one way of going about it.

The amendment in the name of the noble Lord, Lord Rosser, requesting information about what would count as appropriate for a late application is most valuable. EU nationals who have used their rights of free movement in recent years would be fully aware of the requirement to seek settled status. But people who have lived in the United Kingdom for many years—who were maybe born here, to parents who are not British but who had the right to be here because of some other European citizenship—may not think to apply. Maybe they have lived all their lives in the United Kingdom and never stopped to realise that they did not have the rights of residency that settled status would give them, without which they may not even be permitted to be in this country. Unless the Government has an effective way of identifying a whole range of people eligible for settled status but who did not realise that they needed it, some flexibility is required. A tolerant country would surely allow these people to apply late when their status becomes clear.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP) [V]
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My Lords, I offer the Green group’s support for all the amendments in this group. We have already had a strong, informative debate, so I will not take up very much of the time of your Lordships’ House.

I wish to address a couple of points. On Amendment 46, on comprehensive sickness insurance, the noble Baroness, Lady Whitaker, powerfully and clearly set out the discriminatory effects of this surprising—possibly illegal—application of the rules. I am particularly concerned about the differential gender impact: invariably, it is women in caring situations who do not have their own income who will be affected by this.

I want to speak briefly to Amendment 44 in the name of the noble Baroness, Lady Hamwee. This can be described only as a modest and reasonable request for transparency, democracy and scrutiny from the Government. It asks them to show what their plans are for looking after the group—that will inevitably, by definition, be made up of more vulnerable people—affected by the inability to apply for settled status within the deadline. Debating this amendment in the other place, as well as in your Lordships’ House, would be a chance for scrutiny, as well as constructive engagement, the pointing out of flaws and making suggestions for improvement. Will the Minister consider this? We can assume, I hope, that we will receive many assurances from the Government about how they intend to use the right to late applications. The Government clearly already have in mind how this is going to look, so surely it would not be that difficult to set it out on paper.

I want to briefly follow on from what the noble Baroness, Lady Smith of Newnham, said about technology. These days, what people have to do practically and how they manage their lives is increasingly digital. Maybe you have put a reminder to yourself in a digital calendar to do something. The deadline is there and you have done the right thing, but we all know that sometimes technology goes wrong: computers die and people lose passwords. The Government should be able to ensure a steady recording and reminder process. They do not perhaps always have a great record when it comes to IT projects, but this should not be very difficult or very costly. It would provide people with a security blanket, which is what all these amendments seek to do. As the noble Baroness, Lady Hamwee, said in her introduction, we are talking here about enabling people to exercise the rights to which they are entitled. Surely that is something that the Government want to make as easy and practical as possible.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, this group of amendments, and the later group on the grace period, are somewhat interrelated. However, as I will not be speaking to that group, I want to make all my remarks now.

Amendments 44, 45 and 46, in my name and that of my noble friend Lady Hamwee, with support from the noble Baroness, Lady Whitaker, and the noble Lord, Lord Bourne of Aberystwyth, on Amendment 46, are designed to address concerns about late applications and the need for the EU settlement scheme to remain open. As my noble friend Lady Hamwee has fully explained, it would ensure that those granted pre-settled status get a reminder of the need to apply for full status and can, in the meantime, enjoy access to social assistance and housing. It would also rule out a retrospective requirement for private health insurance, which is what comprehensive sickness insurance means in this context, if a person with settled status applies for citizenship. I also fully support all the comments made by my noble friend Lady Smith of Newnham.

A week ago, in a debate on applications for citizenship, the Minister told us that

“if people who were previously here as a student, or as self-sufficient, lack this”—

“this” being CSI—

“it does not mean that an application will be refused. The British Nationality Act allows for discretion to be applied around this requirement in the special circumstances of a particular case.”—[Official Report, 7/9/20; col. 579.]

I do not think we were told what the nature and criteria of the exercise of this discretion would be. Perhaps the Minister can tell us a bit more about this.

In any case, as the noble Baroness, Lady Whitaker, recalled, Theresa May said in 2017, as Home Secretary, that CSI—which, I repeat, is private health insurance—would be dropped as a requirement for settled status for those who were economically inactive. It is, in fact, invidious to bring it back at all as a sting in the tail for those who seek citizenship. It is unfair reverse engineering. In addition, there is much concern that EEA citizens who are economically inactive might be caught out in applying for settled status, despite Theresa May’s promise. In last week’s proceedings, the Minister referred to how regulations under Clause 4(4) of the Bill would make provision for those not exercising free movement rights at the end of the transition period but who were still eligible for the EU settled status scheme. I am not sure whether those people will be required to show that they have CSI—private health insurance—but, in any case, the grace period SI, which the Minister kindly shared with the Committee 10 days ago, I believe, is issued under the European Union (Withdrawal Agreement) Act and applies only to those covered by the EEA regulations; that is, those who will be exercising free movement rights prior to the end of the transitional period.
This CSI business is not news to me. In the UK’s interpretation, which is disputed by the EU and has been since 2012—I was still an MEP when I saw the first step in infringement proceedings taken by the Commission—this means having private health insurance. I understand that, on Friday, attendees at the Home Office settled status users’ group were told by an official that this may well be an oversight or mistake in the drafting of the grace period SI and that the intention was not to exclude those without CSI—private health insurance—from late applications for settled status. Will the Minister confirm that it is not the Government’s intention to impose a requirement for CSI either retrospectively or just at the moment of 31 December 2020? As I previously asked, will she give details of the discretion not to impose it for applicants for citizenship?
A friendly lawyer has apparently said that there can be a relatively easy technical fix to the grace period SI by saying that, for the purposes of the rule, a person is lawfully resident during any period of time which would be taken into account for the purposes of calculating a period of continuous residence under Appendix EU—that is, the settlement scheme rules. If you change the terminology to relate to that appendix, rather than the EEA regulations, that would apparently solve the CSI issue. Dealing with this stuff is rather wet-towel-on-head time, but at least the Minister knows what I am talking about. Can she give the Committee some reassurance that the grace period SI will be fixed, as well as the other assurances that I have sought in relation to this thorny, persistent question of CSI? I know that I have said it before, but I am afraid I will say it again: when we drafted the citizens’ rights directive, it was understood that, if there was a public health system, accessing that—as EEA citizens do on a daily basis, as the noble Baroness, Lady Whitaker, said—was sufficient. It was never intended that, where a country had a free-at-the-point-of-use health service for people who were lawfully resident in the country, accessing that public health system would meet the test of comprehensive sickness insurance. I am not sure why the European Commission has been so slow about this since 2012, but I understood it took a further step earlier this year in progressing the infringement proceedings. From an EU point of view, the requirement for private health insurance is a breach of EU law. It would be good to hear the Minister offer comfort to a lot of people who are very worried on this subject.
Lord Greaves Portrait Lord Greaves (LD)
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My Lords, this is the first time that I have spoken in this Committee. I intended to speak last week but I was not feeling too well, so I did not and did not come. I apologise for that, although there may be members of the Committee who think an apology is not appropriate and who were quite pleased about it. I declare something of an interest. I have a close in-law who, I am pleased to say, has just achieved settled status, although it took him a long time to bring himself to even apply for it. I support the amendments in this group and all the speeches that have been made.

This group should be put in its context. Among a lot of European citizens living in this country, large numbers of whom now have settled or pre-settled status, there remains an acute sense of concern. A lot of people are still fearful and worried; some are still scared. They are worried particularly about family relationships. Jobs are a different thing, in a sense. People are worried about their jobs but somebody who has got a good job and skills can go and get another one. A lot of people are still wondering what to do. How long might they stay here; will they stay here for the rest of their lives as many intended to do? People keep saying to me: “Yes, we have got settled status and that is fine, but how do we know that they won’t change what it means?” This week, one person said: “Look, it’s part of the withdrawal agreement and an international treaty, but we have a Government who do not seem to care too much about that.” Whether or not that is true is a different matter; it is the impression that is being given, so they are asking what it means.

How long will it be before people come along and say, “Yes, but you are European citizens and we will change the basis on which you live in, work in, or have the right to return to this country”? It may be in small ways; it may be in the detail of complicated legislation. So much of what the Committee is talking about is exactly that. I do not think that this is something that the Government can give reassurance on. They have tried, but they cannot guarantee what a future sovereign Parliament may allow—or force—a Government to do. We talk about the hostile environment: a lot of people still believe that the way in which they are being treated and regarded by many British residents of this country is undesirably different from what it was before the referendum.

That is all history; we know what is happening. It would, however, help if the Government, instead of concentrating on what they are now calling the need to be compliant, and pursuing that kind of thing, came out with some positive spin: propaganda or publicity about the value of European citizens and how important they are to this country. The end of this year—the end of the transition period—would be a good opportunity to do that, because that still gives six months, and it could be tied to a renewed government campaign to pick up the people who have not yet applied for settled status.

My noble friend Lady Hamwee, in her brilliant introduction to this group, suggested that the number of people who might be caught at the end of June by not having applied and not fitting into whatever guidance the Government finally come up with—they have given some indications but they are not very comprehensive and the guidance will not come out before we have dealt with this Bill—might be huge. It does not matter whether it is a huge number or not; it might be a few hundred or a few thousand, although it is likely to be rather more than that. We do not know how many there will be, but for those individuals it is no more or less important if it is 10,000, 20,000 or 200,000. Many people think that it is going to be rather more than a few thousand, given the comparison between the number of people who have applied so far and estimates of how many European citizens there are in this country.

These amendments are very important. I will not repeat all the reasons why people may not have applied for settled status by June next year, or indeed why they have been given pre-settled status, except that it is fairly clear that in the majority, probably, of pre-settled status cases it is simply that people have not been living here long enough. That is fair enough: they can continue to live here and will then qualify. Anecdotal evidence—of which there is a lot—suggests, however, that much of it is error by the Home Office, or the inability or failure to provide some detail, often a quite trivial detail. The anecdotal evidence comes from two groups of people. The first group is those who have appealed; the rate of success among them is, I understand, quite high. That suggests that many other people have not appealed and have said, “Well, I am only going to live here another two, three or four years”, or, “Well, we will get it all sorted out in three or four years’ time”. They are the sort of people who will get caught by the system. We have no idea how many of them there are; we know, however, that in relation to the 40% or so who have status—the people the Government are so proud about—it is temporary status.

Why should the Government make an effort to tell people about the scheme? My noble friends went through a lot of reasons. One of them—a perfectly legitimate and acceptable reason—is that people change their minds. People who think that they will be here only another two or three years may experience a change in their circumstances. They might get married, have children, get a new job; they might do all sorts of things. When their circumstances change, they may just change their mind and decide that they would like to stay. They will then, however, have to reapply. Can the Minister give the House an absolute assurance that when, in due course, people who have been turned down for settled status but have pre-settled status apply for settled status, the Home Office will not revisit their original application, find errors in it and use that as an excuse for not giving them settled status? That is a fundamental point. Will the Minister give that assurance?

There is one more point that I had not picked up on earlier; it occurred to me when I was listening to the eloquent contribution from my noble friend Lady Smith of Newnham. If somebody’s pre-settled status runs out in, say, two years’ time—because they have already been here three years, and after two they are entitled to apply for settled status—will they then have the whole of the three years between that point and the five-year period following the end of June next year? I hope that I have made myself understood. Will they have the whole of that three years to go back and apply for settled status, or will there be a time limit within which they have to turn their pre-settled status into settled status? In other words, for somebody who has been here for two years and gets their pre-settled status now, does that last for five years regardless, or end at some stage when they are entitled to apply for settled status? I would like an answer to that.
Lord Rosser Portrait Lord Rosser (Lab)
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First, we welcome the work that has been done on the EU settlement scheme so far, and the number of people who have been able to access it. We hope that the scheme proves successful, but that remains to be seen.

I will speak to Amendments 52 and 96, which are in my name and that of my noble friend Lord Kennedy of Southwark. Amendment 52 seeks clarity on the rights of EU citizens who have the right to apply for settled status but have not yet done so. What are their rights in the “grace period” between the end of the transition period and the deadline for applications?

The Government have now published a draft of the citizens’ rights (application deadline and temporary protection) (EU exit) regulations 2020—we might call it the grace period SI—during this stage of the Bill, which is helpful. This SI, made under Section 9 of the European Union (Withdrawal Agreement) Act 2020, would specify 30 June 2021 as the application deadline and provide that certain provisions of the Immigration (European Economic Area) Regulations 2016—the regulations that provide for free movement rights—will continue to apply during the grace period for relevant persons, despite the revocation of those regulations under this Bill.

In essence, the government factsheet tells us that the SI will temporarily “protect the existing rights” of EU nationals who are eligible for the settlement scheme during the grace period. Regulations 5 to 12 of the SI specify which provisions will continue to apply. Can the Government confirm to the House that the full existing rights of EU citizens will be carried into the grace period by this SI and there will be no substantive changes or loss of rights? We welcome the clarification that the person’s existing rights continue during the entirety of the processing of their application—even where, for example, they apply late in June and the deadline passes while their application is being considered.

We welcome the Government’s aims in the SI to provide legal protection to these rights. However, questions remain over how they will be protected in practical terms. If an EU national tries to open a bank account, rent a home or enrol their child in school during that period, what are the Government doing to ensure that their continuing rights are widely understood—because people are generally not aware that they have that right and there could be a difficulty?

Regulation 13 of the SI states:

“Where any question arises as to whether a person is or was lawfully resident in the United Kingdom at a particular point in time … it is for the individual in question to prove that they were”.

That is to say that they must prove that they were lawfully resident in the United Kingdom. Can the Government say in which situations they expect that people will have to prove their ongoing status and how they envisage people will do this? What documentation might they need, for example? Crucially—since one can see there might be some difficulty in being able to prove it—what support will there be for a person who runs into this kind of difficulty and who may well, in fact, be perfectly lawfully resident in the United Kingdom?

I am sure there will be many other questions that arise in relation to the draft SI, but I will move on to Amendment 96, which seeks more information on late applications to the settlement scheme. The Government have repeatedly said there will be “reasonable grounds” on which a late application will be accepted, but of course I am sure we would all acknowledge that the word “reasonable” is subjective. Different people will have different interpretations of what is reasonable. When can we expect full guidance on late applications? If a person was completely unaware that they had to apply, will that count as reasonable grounds? Would this also apply to a person who just made a mistake and missed a deadline? At one time or another, most of us have made such a mistake.

However, our main question is on the immigration status of people who miss the deadline. An NHS doctor, for example, misses the deadline but continues to go to work. If they are then granted status in, say, 2022, they will—presumably—have been officially unlawfully resident in the UK for a number of months. Will they be considered to have been working illegally and, if so, will there be consequences for that? What status will they be deemed to have had between the June 2021 deadline and the granting of status in 2022?

Another example might be an elderly person who missed the scheme entirely because they are not digitally literate—something I can empathise with—and who continues to use healthcare services before any application is organised on their behalf. Will they be liable for high NHS fees because they did not know that their right to use those services lawfully had lapsed?

I hope the Government will be able to provide answers to the questions that I and other noble Lords have raised—either in their response or subsequently—and, not least, to the points on CSI made by my noble friend Lady Whitaker and the concerns expressed over the potential implications for the future of the high percentage of those who have been given pre-settled status.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I thank all noble Lords who have spoken in this debate and rightly probed me on some of the detail of what the Government are intending to do across all the various issues that are raised in these amendments. I am pleased to say that, on most points, I think I will be able to reassure noble Lords on the issues they raise.

On Amendments 44 and 96, both concern how the Government will deal with late applications to the EU settlement scheme. Both are incredibly well-intentioned, as they concern how we ensure that those eligible for the scheme obtain status under it. There is plenty of time for those EEA citizens and their family members resident here by the end of the transition period to apply for status under the EU settlement scheme by the deadline of 30 June 2021. Furthermore, in line with the citizens’ rights agreement, they will be able to apply after the deadline where they have reasonable grounds for missing it.

I think noble Lords will find that, throughout my response, I will outline how the Government intend to take a very pragmatic approach to all these issues. During the Second Reading debate, I confirmed that, early in 2021, the Government will publish guidance on what constitutes missing the deadline. In answer to the noble Lord, Lord Rosser, I say that the timescale is appropriate because, for the time being, our priority has been to encourage all those who are eligible to apply to the scheme to do so before the deadline. We do not want to risk undermining that effort by inadvertently encouraging people to put off making the application.

Amendment 44 would cause confusion over the deadline for a scheme which has been designed to be simple and straightforward. We must also deliver on our promise to the people to end free movement and, from 2021, introduce the new global points-based immigration system. However, as I said earlier, the EU settlement scheme does not close on 30 June 2021. It will continue to operate thereafter for applications by people with pre-settled status applying for settled status and by those who are joining family members in the UK as well as by those with reasonable grounds for applying after the 30 June 2021 deadline. A report setting out proposals for dealing with late applications—as sought by Amendment 44—is not needed because we have been clear that we will take a pragmatic and flexible approach to late applications and will be publishing that guidance early next year.

Amendment 96, concerning such guidance, is also unnecessary. Our guidance on reasonable grounds for applying after the deadline will be indicative and not exhaustive. I think noble Lords will agree that this is the right approach; we will consider all cases in light of their individual circumstances. A person with reasonable grounds for missing the deadline who subsequently applies for and obtains status under the scheme will enjoy the same rights from the time they are granted status as someone who applied to the scheme before the deadline.

The withdrawal agreement obliges us to accept late applications indefinitely where there are reasonable grounds for missing the deadline. This and other rights under the agreements now have direct effect in law via the European Union (Withdrawal Agreement) Act 2020, so this commitment is already effectively enshrined in primary legislation agreed by Parliament.

The Government are also doing all they can to raise awareness of the scheme and ensure support is available. In March, we announced a further £8 million of funding, in addition to £9 million last year, for organisations across the UK to help vulnerable people to apply. Plans for a further burst of national advertising are under way because we are determined that no one will be left behind. My noble friend Lady Altmann specifically asked about this point, as did the noble Lord, Lord Rosser, in a more indirect way.

I will take a moment to outline what we are going to do between now and next year. With less than a year to go until the deadline, we will continue to update our communications approach. We will have further and future national advertising, which will have adjusted messaging and emphasis to ensure that it speaks to the remaining audiences still to apply.

From the autumn, a new cohort of grant-funded organisations will continue the successful work of the current network, supporting those who need to apply. Home Office officials are engaging with educational institutions to ensure that students are aware of the actions that they will need to take. For long-term residents, we make it clear in our communications materials that even EEA citizens who have lived in the country for many years or have a permanent residence document will still need to apply. We are increasing that engagement with partners who work closely with such audiences to continue to drive applications.
I think that my noble friend asked about paid marketing. The EUSS communications will be targeted to key audience segments. Paid marketing will reach the audience segments across the UK; a campaign will launch later in the year, with subsequent bursts of activity in 2021 in the lead-up to the scheme deadline. It will use a combination of broadcast channels, such as catch-up TV and radio, and highly targeted channels, such as social media, digital advertising and paid search, to reach audiences effectively. There will be some wider communications in terms of working closely with EUSS vulnerabilities, with MHCLG, the DfE, the LGA and the Association of Directors of Children’s Services. It is a Home Office-led communication, but it is absolutely across the breadth of government. I hope that gives my noble friend a good idea of the sorts of activity that will be going on.
Amendment 45, proposed by the noble Baroness, Lady Hamwee, would require the Government to issue reminders to those granted pre-settled status under the EU settlement scheme to apply for settled status. EEA citizens and their family members granted pre-settled status can remain in the UK with this status for five years from the date when it is granted, to go to the question asked by the noble Lord, Lord Greaves. As the decision letter they receive makes clear, as soon as they have completed five years’ continuous residence, they can apply for settled status. They do not need to wait until the end of their pre-settled status before they do so. Indeed, in most cases a person will be eligible for settled status well before the expiry of their pre-settled status, on the basis of their residence in the UK before they obtained pre-settled status.
The Home Office has already committed, in the statement of intent for the scheme published in June 2018, to sending a reminder to people to apply for settled status before their pre-settled status expires. I think that was first mooted in this House by the noble Baroness, Lady Ludford. We will set out further details in due course as to how this will work, but the first grants of pre-settled status, issued under the initial test phase of the scheme in 2018, will not expire until 2023—that is, five years from 2018. Reminders will be sent out well in advance of the expiry of their pre-settled status.
By being granted status under the EU settlement scheme, EEA citizens are able to continue to work, study and access benefits and services in the UK on the same basis as they did before we left the EU. This includes access to social support and housing, as sought by Amendment 45. EEA citizens granted pre-settled status are eligible to claim income-related benefits, such as universal credit, if they are exercising a qualifying EU treaty right—for example, as a worker or self-employed person. This is a long-standing requirement and in line with the free movement directive and withdrawal agreement.
Amendment 46 concerns the naturalisation process for EEA citizens who hold settled status under the EU settlement scheme. Under the British Nationality Act 1981, a person wishing to naturalise as a British citizen must show that they have resided here lawfully for at least five years and that they are no longer subject to any immigration time restrictions. I do not consider having resided in the UK lawfully to be an unreasonable requirement. An EEA citizen granted settled status will be able to live, study and work in the UK as they can do now. Choosing to make the additional commitment of becoming a British citizen must remain a personal decision, based on the individual’s circumstances and ability to meet the requirements. In the case of students or the self-sufficient, but not those who were working here, holding comprehensive sickness insurance has always been a requirement of lawful residence in the UK under free movement rules.
However, I can reassure the noble Baroness, Lady Hamwee, that, where CSI has not been held by people who were previously here as a student or self-sufficient person, that does not mean that an application for citizenship will necessarily be refused. I also clarify for the noble Baroness, Lady Ludford, that there is no CSI requirement for the EU settlement scheme. The grace period SI does not affect the criteria for the EU settlement scheme. The SI protects the EEA rights of those who have arrived here at the end of the transition period; I cannot read my own writing but I think that is what it says. I hope that answers the point raised by the noble Lord, Lord Rosser.
The British Nationality Act allows for discretion to be applied around this requirement in the special circumstances of a particular case. The Home Office will examine each application to understand why any such requirement has not been complied with, together with any grounds which can allow us nevertheless to grant the application. Our guidance reflects this, and we encourage people to provide as much information as possible to allow us to reach a decision. I therefore consider this proposed new clause unnecessary.
I turn finally to Amendment 52 tabled by the noble Lord, Lord Rosser. This would require the Government to lay before Parliament a report on the status of EEA citizens during the grace period; that is, from 1 January to 30 June 2021. It would prevent the measures in this Bill relating to the ending of free movement from coming into force until such a report had been laid. We agree as to the importance of clarity and effective communication but not that such a report is necessary to ensure EEA citizens understand their rights during the grace period. We have already published an impact assessment of the provisions contained in the Bill. We have also been consistent in our messaging that free movement will end at the end of the transition period, subject to the successful passage of the Bill.
The Government have been clear about what this means for EEA citizens. Those resident in the UK by the end of the transition period, and their family members, are protected by the withdrawal agreement and have access to the EU settlement scheme. Those newly arriving here from 1 January 2021 will require status under the new points-based system.
The rights of EEA citizens resident in the UK by the end of the transition period are set out in the withdrawal agreement. Resident EEA citizens who have not yet applied to the EU settlement scheme must be able to continue to enjoy their current rights until the end of the grace period. Where they apply to the scheme during the grace period, their existing rights will be preserved until that application is concluded. This will be implemented via regulations to be made under Section 7 of the EU withdrawal agreement Act 2020. We have shared a draft version with noble Lords so that they can see the provision we intend to make. EEA citizens resident by the end of 2020, and their eligible family members, will continue to be treated the same until 30 June 2021. We plan to lay the regulations very shortly so that they can be debated and made in good time before they come into force at the end of the transition period.
Following that lengthy explanation, I hope that noble Lords will be happy to withdraw their amendments.
Baroness Henig Portrait The Deputy Chairman of Committees (Baroness Henig) (Lab)
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I have received a request to speak after the Minister from the noble Baroness, Lady Ludford.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, I will have to read what the Minister has said when I pore over Hansard, but I do not think that I am reassured in relation to the grace period SI. This SI refers to how the provisions of the EEA regulations 2016 continue to have effect despite the revocation of those regulations by this Bill—but it is the EEA regulations, unlike Appendix EU for the settlement scheme, which require CSI.

In accordance with the promise made by the then Home Secretary Theresa May in 2017, CSI would not be required as part of a settlement scheme application, but the grace period SI, by referring to the EEA regulations, as opposed to the rules under Appendix EU, that is EU settlement scheme rules, appears to be reintroducing the requirement for CSI. This is complicated and perhaps I have not properly understood it, and I will have to pore over what the Minister says.

Representatives of the 3 million were told by an official at the end of last week that there appeared to be a mistake, although this is only hearsay—perhaps this official did not understand any more than I did—but immigration lawyers who are trying to advise EU citizens on this think there is a problem. Referring to the EEA regulations incorporates a requirement for CSI—that is to say private health insurance—which has not been required during the settlement scheme application to date, but suddenly, in the grace period, it will be. Citizenship will also be required, but there is a discretion for that. Unlike for citizenship, there does not even appear to be a discretion to exempt it for settled status.

Clearly, the Minister, who is shaking her head at me, thinks I have continued to misunderstand this, but I remain less than reassured, and I hope I will manage to get it clearer in my own head. Perhaps more importantly, people whose profession it is to understand the EEA regulations and the settlement scheme, as opposed to a mere legislator, might be reassured by the Minister’s words, and I will defer to her.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I hope the noble Baroness takes a look at Hansard. These are not the easiest things that we are discussing, but I understand the grace period SI does not affect the criteria for the EUSS status. The SI is protecting the EEA rights of those who have them at the end of the transition period. I know we will speak further, and I know that she will read Hansard, but I hope in reiterating that point again, she will feel happy that the amendment is withdrawn.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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I thank noble Lords. I, too, will supply myself with some hot towels and read through all that. We have another opportunity to discuss the grace period on Amendment 80, but I, like my noble friend, feel less than reassured. The issue is whether, without having sickness insurance, one has the relevant rights. The arguments seem to have moved over the past few months as to whether having CSI is necessary to exercise the rights or, in other words, whether you have been the exercising right to free movement or the treaty rights.

Some very pertinent points and questions have been posed during this debate. I wish my noble friend Lady Smith had not reminded me about tax returns and the amount of filing I have to do, but she was right and explained my reasoning on Amendment 45 better than I did. There has been a focus on individuals throughout this. I agree with my noble friend Lord Greaves that it is not about the numbers of people. What matters matters to 100% of each individual.

My noble friend has prompted me to realise that I have not got my head around what happens when the five years expires, or rather when you should apply if your five years are going to be relevant. If you do it the day after the five years has expired, what position are you in? I can see on screen that he is nodding, so at least we have identified the same questions.
The Minister talked about being pragmatic in terms of the reasons for not applying during the period. However, what the Government regard as pragmatic might not coincide with an individual’s view. I am still not really clear on what will be different in terms of the campaign in the remaining nine months. I am not suggesting that what is proposed will not have a use, but if it has not succeeded so far, will more of the same be successful in alerting the people who need to know?
I am not wedded to the drafting of any of these amendments. However, it seems to me that on this issue, the Government, in accepting the principles, would have no egg on their face at all. As I have said, I will of course think about it after today. For the moment, I beg leave to withdraw Amendment 44.
Amendment 44 withdrawn.
Amendments 45 to 47 not moved.
Baroness Henig Portrait The Deputy Chairman of Committees (Baroness Henig) (Lab)
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We now come to the group consisting of Amendment 48. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in debate.

Amendment 48

Moved by
48: After Clause 4, insert the following new Clause—
“Leave to enter: family unity and claims for asylum
(1) For at least such time as a relevant agreement has not been concluded and implemented, a person to whom this section applies shall be granted leave to enter the United Kingdom for the purpose of making a claim for asylum.(2) This section applies to a person who—(a) is on the territory of any relevant Member State; and(b) makes an application for leave to enter for the purpose of making a claim for asylum; and(c) would, had that person made an application for international protection in that Member State, have been eligible for transfer to the United Kingdom under Regulation (EU) No. 604/2013 by reason of a relevant provision if the United Kingdom remained a party to that Regulation.(3) An application for leave to enter under subsection (2)(c) shall be made in such manner as the Secretary of State may prescribe save that—(a) there shall be no fee for the making of such an application and no requirements may be prescribed that are unreasonable having regard to the purposes of this section and the circumstances of persons to whom it applies;(b) in relation to such applications, the Secretary of State shall make arrangements to ensure that applicants receive a decision regarding their application no later than two months from the date of submission of the application.(4) A claim for asylum made under subsection (2)(b) must remain pending throughout such time as no decision has been made on it or during which an appeal could be brought within such time as may be prescribed for the bringing of any appeal against a decision made on a claim or during which any such appeal remains pending for the purposes of section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal); and a claim for asylum remains one on which no decision has been made during such time as the claim has been made to the Secretary of State and has not been granted, refused, abandoned or withdrawn. (5) The Secretary of State must, within six months of the day on which this Act is passed, lay before both Houses of Parliament a strategy for ensuring that unaccompanied children on the territory of a relevant Member State continue to be relocated to the United Kingdom, if it is in the child's best interests.(6) For the purposes of this section—“applicant” means a person who makes an application for leave to enter under this section;“claim for asylum” means a claim for leave to enter or remain as a refugee or as a person eligible for a grant of humanitarian protection;“Regulation (EU) No. 604/2013” means Regulation (EU) No. 604/2013 of the European Parliament and of the Council including the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast);“relevant agreement” means an agreement negotiated by a Minister of the Crown, on behalf of the United Kingdom, with the European Union in accordance with which there is provision for the transfer of a person who has made an application for asylum in a Member State of the European Union to the United Kingdom and that provision is no less extensive than Regulation (EU) No. 604/2013 insofar as that regulation operated to enable the transfer of a person to join a child, sibling, parent or other family member or relative in the United Kingdom before exit day;“relevant Member State” means a Member State for the purposes of Regulation (EU) No. 604/2013;“relevant provision” means any of the following articles of Regulation (EU) No. 604/2013—(a) Article 8,(b) Article 9,(c) Article 10,(d) Article 16,(e) Article 17.”
Lord Dubs Portrait Lord Dubs (Lab)
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My Lords, Amendment 48, which has cross-party support in this House and the House of Commons, is concerned with the rights of child refugees in Europe. We are all aware that the refugee crisis is one of the biggest challenges facing us, both in Europe and the whole world. We have a responsibility, along with other countries, to meet that challenge.

We have all been shocked by the filming and newsreels of the fires in the Moria camp. I visited the Moria camp about a year and a half ago; I was shocked then at the overcrowding and the appalling conditions in which people were living, or existing, particularly the children. I visited the Calais area, which had equally appalling conditions. I believe that children in Moria, Calais and in other camps are not safe. It is no good saying that these children are safe in Europe. They are not safe in Europe, and we have a responsibility to help.

Even before the Moria fire, the Greek Government had for months been asking other countries to help them and take a fair responsibility for unaccompanied children. Some countries stepped forward: Germany, Portugal, France, Luxembourg, Finland and even non-EU Switzerland said they would take children but, as far as I am aware, the United Kingdom did nothing.

Since the tragedy in Moria, a number of countries have taken emergency action to help the children specifically impacted by the fire. The Greek Government moved some of them off Moria on to the mainland, but they are still in difficult circumstances. As I understand it, we are talking about 407 unaccompanied children. Ten countries have stepped forward: Germany, France, Finland, Luxembourg, Slovenia, Croatia, the Netherlands, Portugal, Belgium and Switzerland have all said they will take some of the unaccompanied children from the camps, but still the United Kingdom has not responded.

In the grand scheme of things, the United Kingdom receives far fewer asylum claims by adults and children than many other EU countries. This is not a matter of competition or using statistics, but Germany, France, Greece and Spain have each taken more than the UK. In relation to their population size, Sweden and Belgium are also doing better than we are. The idea that we are doing our share frankly does not pass the test of the numbers that I have quoted.

I believe that there are three legal routes to safety for child refugees. The first is the vulnerable person resettlement scheme. That is of course a step away from the scope of the Bill, but it is mainly for refugees from Bekaa, Jordan and Lebanon. It is a worthwhile scheme and I applaud the Government on it, but it would be useful to know from the Minister what the Government’s intentions are after 2020, as they have said that it has been agreed until only 2020. Of course it is illogical that a child in a camp in, say, Jordan, should be able to reach the UK in contrast to a child from Greece or the Calais area who apparently is not welcome here. That is why the amendment is so important in providing a safe and legal route.

There are two specific legal routes from Europe. There is Section 67 of the Immigration Act 2016 for children in Europe who do not have relatives here, which was capped by the Government at 480. I have argued with the Minister on a number of occasions; the Government say that there are not enough local authorities to take more children in foster homes but, frankly, I am aware of quite a large number of local authorities that are willing to take children who do not have family here and to provide foster places, and indeed I think a louder call for local authorities to respond would produce even more places than the 1,600 or so with safe passage that the NGO working on this has been able to cover.

Then there is the Dublin agreement—Dublin III, as we call it—an EU treaty under which children in an EU country can apply to join relatives in another EU country. This is probably the key point in the Bill because it is about family reunion, which is surely a fundamental right. Children should be able to join relatives in this country where those relatives have accommodation for them. This is something that we have debated before; indeed, we even passed an amendment to the 2017 Bill to include Dublin III—that is, that the UK Government in negotiating with the EU should make sure that the provisions of the Dublin treaty regarding family reunion would continue even after we left the EU. That was voted by this House into the 2017-19 Bill and was eventually accepted by the House of Commons. It was then removed from the statute book by the 2019 Act.

I had meetings with Ministers and argued with them. I even had a meeting with the then Immigration Minister, now the Northern Ireland Secretary, who asked at one point in a discussion that we had, “Do you not trust me?” Of course I trusted him—well, things have changed since then, but that is in a different context. We were given assurances that the Government would protect the rights of Dublin III children, but when the Government eventually published their response it fell very short far short of the protection necessary. We took legal advice that said the response was a much weaker one than the one under the Dublin treaty. I am disappointed that we are at the point where we do not know what is going to happen in future.

I understand that, for reasons that are not clear to me, Brussels says that in negotiation with the UK it has no mandate from the 27 countries to negotiate on the Dublin III treaty and that that will have to be done on a bilateral basis—that is, in 27 separate negotiations. That is of course a recipe for a long drawn-out process. I do not know why that is the case because even our Government would be keen for there to be one separate negotiation, although, as I said earlier, I would like it to be on something more substantive than the Government’s proposals that were put forward recently.

If we have to leave the EU without a deal—I am bound to say that that looks increasingly likely—or with a very limited deal, where does that leave the Dublin III children? The amendment that we originally passed in 2017, which the Government said they would accept the spirit of while deleting it in the 2019 Act, was of course based on the premise that we would find some good basis for negotiating our continued relationship with the EU. That seems less likely now than ever, which is why Amendment 48 is surely the best way forward and is so important.

Let me restate: I believe that the UK, along with other European countries, share responsibility for refugees. It should be a wide international responsibility. However, I have never said we should take all the children; I have said only that we should take our share. If this issue is explained to the people of this country—it has already been explained, but we will go on explaining it—we will find that most people in Britain, though not all, are sympathetic to the idea that we should take child refugees. This is something I believe commands public support. Those of us who have been campaigning for child refugees have always said, as I have certainly said, that it is public support that we need—community groups, faith groups, or whatever group in the public.

We know that providing safe routes is the best way of defeating vicious people traffickers. That is why the two legal paths to safety, plus the scheme from the region, are the right way forward. This amendment will consolidate that and give children in Europe safety in this country. We are a humanitarian country. We can demonstrate this best by accepting this amendment.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB) [V]
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After the masterly explanation from the noble Lord, Lord Dubs, there is little to add. However, I want to have a go. I said at the start of this Committee that I should declare an interest: I am a trustee of the Refugee Council.

First, I make a general point about the hysteria about invasions across the channel. There have been 4,000 people who came this year—why? It is not, pace the Prime Minister, because they are stupid. It is because there is no open legal operational alternative for them. This means that we are effectively accomplices of the criminals who stuff them into dangerous dinghies and lethal lorries. It is not the fault of the French, pace the Daily Express; there is no legal or moral obligation on the French to say to people who would like to seek asylum in the United Kingdom that they must instead seek asylum in France. Let us keep it all in perspective; the French and the Germans received more than three times as many applications for asylum last year as we did. The Greeks received twice as many. Let us try to take out of the debate some of the emotion and hysteria that Mr Farage is so keen to stoke up.

I have three points on unaccompanied children. First, it is a shame that despite all the efforts of the noble Lord, Lord Dubs, we have still not cracked the problem. The overwhelming number of these cases are about family reunion. The humanitarian case for family reunion is overwhelming. The evidence I see at the Refugee Council suggests that British public opinion thinks so too. British public opinion would like us to crack this problem. The British people are not inhumane.

Secondly, the problem is about to get worse. Dublin III will not apply after 1 January and, as the noble Lord, Lord Dubs, was saying, it is clear that the Frost-Barnier negotiation will not produce the replacements for Dublin that our Government were required by this House to seek. Section 37 of the withdrawal Act abolished that requirement to seek it. Their own proposal was inadequate as a way of matching what the House of Lords had asked for before our request was knocked out of the Act. It was more about a requirement on the 27 to accept failed asylum seekers on return than about making it possible for families to be reunited in this country. As I understand it, that proposal is dead.

Thirdly, with the Dubs quota for unaccompanied children full and Dublin III dying, there are only three and a half months left for child refugees to use the only legal routes to family reunion. Amendment 48 would fill that gap—and fill it we certainly should, because if we do not, we can expect many more unaccompanied children to resort to the dangerous routes that may cost them their lives. That is why Amendment 48 is essential.
I want to make two final points. First, the noble Lord, Lord Dubs, spoke about Greece. Last Wednesday, in our debate on Amendment 29, I mentioned the 400 unaccompanied children in the burned-out camp on Lesbos and asked the Minister whether it might not be possible for us to do as others were doing, and as the noble Lord listed, and take some, purely on humanitarian grounds. Some of those children are bound to have relatives in this country. It would not be impossible for us to seek to identify them and do the decent thing. Last time, my comments were hung rather artificially on Amendment 29, and I do not entirely blame the Minister for ignoring them in her response, but I hope that she will respond tonight to what the noble Lord, Lord Dubs, said. The country wants us to do something about the general problem of unaccompanied children, and I think it would like us to do something quickly about Greece.
Secondly, the Minister and I have crossed swords in a friendly way in the past over the pull factor. I still maintain that it does not apply in the case of unaccompanied children. I really do not think that these children set off from Syria or Somalia because they have heard that people are accepted in Britain if they have family there. I really do not think that children set off on their own on a long and dangerous journey because of a pull factor operating out of this country. They set off because of the murder, the mayhem, the terrorism, the bombing and the destruction in the countries they come from. It is the push factor that is by far the predominant pressure leading to these flows. I say this to the Minister: I hope that we can bury our debate on the pull factor in the past, because it really does not apply to the case for Amendment 48.
Lord Bishop of Durham Portrait The Lord Bishop of Durham [V]
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My Lords, I declare my interests as laid out in the register as receiving support from the RAMP project on immigration policy and as a trustee of Reset. It is a real honour to follow the noble Lords, Lord Dubs and Lord Kerr, with whose comments I fully agree, particularly the final points from the noble Lord, Lord Kerr, on pull and push factors.

In our churches, we tell a story about a man who was attacked by robbers on the road. As he lay wounded, people passed him and hurried on their way. Who helped him? It was not those from his own community. Instead, a stranger saw the man’s plight, chose to stop, carried him to safety and took care of his needs. This man, Jesus observed, was truly a good neighbour. In the light of this, who is our neighbour in a global age?

Throughout its history, the people of this country have faced choices about whether to offer sanctuary to those fleeing violence and persecution. We are rightly proud of the occasions when we have done so. The legacy of the Kindertransport in the Second World War, which saved Jewish children’s lives, and about which many of us have heard our noble friend Lord Dubs speak so movingly on occasions, still motivates many of us to support this cause.

Sadly, there is another history too, in which we in this nation have chosen a different path: of rejecting those in need and shutting our eyes to the plight of those afflicted by conflict and persecution, and of the racist exclusion of those who have come here to rebuild their lives. In a world of conflict, disaster and persecution, we face this choice again and again. Will we offer welcome or will we turn away? Which path will we take as a nation? For those least able to help themselves—unaccompanied children—what will we choose to do?

This week, as we have heard of and seen reports on the fire at the Moria camp in Greece, we are pressed to make a choice whether to help or to stand by, as both the noble Lords, Lord Dubs and Lord Kerr, have said. In that camp, there were thousands of children, including more than 407 unaccompanied minors, some of whom are reported as having family members in the UK but are still waiting to be transferred here, months after being accepted for family reunion under the Dublin III law. In response to this debate, I hope that the Minister will address what is being done for them. Those of us who support this amendment are concerned that while Germany, France and other countries have already offered assistance to those affected by this fire, the UK appears yet to have done so. I am worried that in their actions this week, the Government have already chosen between the two paths with which we are faced.

Christians often remind themselves of these words of Jesus:

“Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.”

We are called to treat every child—and every person fleeing persecution and war, for it is within our power to help—with dignity and hospitality, as if they were the son of God himself. Many of us will share a conviction, whatever values or beliefs it is based on, that human life is precious, and that each person carries a unique, incalculable value. How do we choose to recognise that in the question before us of children separated from their families?

I acknowledge the argument made on previous occasions that primary legislation is not necessary to facilitate family reunion. I do not doubt the sincerity of the reassurances that I and others have received repeatedly over recent months from Ministers that they take our humanitarian obligations seriously. Yet I note with regret that the UK’s refugee resettlement scheme appears still to be paused while other countries have restarted theirs. I also note that the Dublin arrangements will soon lapse and that, in any case, there are precious few safe and legal routes for those seeking sanctuary to arrive here.

In the light of that, I must support this amendment, that we might bind ourselves to making the choice to offer sanctuary to those in need of it. I encourage everyone in this House to support it too.

Lord Randall of Uxbridge Portrait Lord Randall of Uxbridge (Con) [V]
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My Lords, it is quite difficult to follow such eloquent speeches and I will not attempt to emulate them. However, I can give the House some examples of why I think that they are correct in what they say about public opinion. First, I must declare my interest, as in the register, as being a vice-chairman of the Human Trafficking Foundation.

Having been the local MP, I know that the London of Borough of Hillingdon received and looked after a large number of unaccompanied asylum-seeking children. My fellow MPs for the area, John McDonnell and Nick Hurd—that is, from all sides of the political spectrum—and we worked hard because we knew that we welcomed these children. However, we had to make the point, and we came together in doing so, that the then Labour had to provide ample resources so that the public—our constituents—did not feel that they were being disadvantaged in any way and that services would suffer from the long-term financial commitment of looking after these children. I have to say that we were very successful.

When it is explained that this is something that we should do for unaccompanied children, I think that public opinion is there. Without venturing into the right reverend Prelate’s area of expertise, I can give a personal example of where I found the most unlikely good Samaritan. A member of my Conservative association was—shall we say?—very forthright on the immigration policies at that time and was not a fan of lots of people coming in, as he saw it, illegally, legally or whatever, to the point where sometimes I really winced when I heard him speak. However, there was a knock at my window late one night—I lived, and still do live, in the heart of my constituency—and it was this gentleman, who said, “John, you’ve got to do something.” Apparently, he had had a bad road accident and the only person who had come to his aid as he was lying on the road was a young Kosovan, who was going to be deported. When somebody realises that these are real people, suddenly any antipathy disappears.

This country has a great tradition of looking after people, and I shall quote an example that I am aware of but which is probably little known. During the First World War, a lot of Serbian children were looked after in Scotland as they were escaping the horrors of the war. Many settled here; some went back to Serbia after the war. Not only was it right for us to do that but it gave them a great sense of the British way of life. I know from reading an excellent book how grateful they were for what happened at that time.

Therefore, I just say to my noble friend that I think we should be less cautious in worrying about what some of the perhaps more right-wing side of the media say about this. When children come to this country unaccompanied, they do not come for a pull factor; they do so because where they come from is such a hell. Nobody would willingly put themselves at such risk to come from those countries. I am not sure about some of the wording in the amendment—although I am not an expert on it—but I think that we should take this issue very seriously at this particular time.

A couple of years ago, I was at the main railway station in Serbia and saw the flow of migrants, although by that time it was not as large as it had been. Anyone who sees, close to, families who are desperate and leaving war-torn countries such as Syria and Iraq cannot be anything other than moved. I support the amendment.

Lord Greaves Portrait Lord Greaves (LD)
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My Lords, I added my name to this list to fulfil a promise to certain campaigners who had been lobbying me. I have listened to the noble Lords, Lord Dubs and Lord Kerr of Kinlochard, and the right reverend Prelate the Bishop of Durham and I have nothing further to add except to say that I support everything they said with my heart and mind.

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I strongly support my noble friend’s amendment. It is quite shocking to hear from Safe Passage that in their negotiating proposals the Government seek to replace children’s rights under Dublin III with a discretionary provision that provides vulnerable children with neither the certainty nor security they sorely need. That contrasts with the mandatory approach taken to returning children to other EU countries—or EU countries, now—which rather smacks of double standards.

Surely it is hypocritical to wring one’s hands over children and young people risking their lives to cross the channel in tiny boats while increasing the likelihood of that happening in future by further narrowing clear and firm legal routes open to them, as has already been stated. On that, can the Minister say when the Government plan to start the resettlement programme, which has already been mentioned? She recently told the right reverend Prelate the Bishop of Bristol that the Government will do so

“as soon as it is practical and safe to do so.”—[Official Report, 3/9/20; col. 519.]

The Government have already deemed it “practical and safe” to restart some deportation flights, so why not resettlement flights? I understand that nearly half the countries in the resettlement programme restarted their schemes weeks ago. As Stephen Hale, chief executive of Refugee Action, has said:

“It is baffling that the UK government has arranged travel corridors for summer holidays on the one hand but prevented resettlement flights taking place on the other. Flights that would offer a literal lifeline to some of the most vulnerable refugees in the world.”

He underlined that it is “a matter of urgency.”

Urgent too, as we have heard from a number of noble Lords, is action to help those children whose lives have been turned upside down yet again by the dreadful fire at the Moria camp in Lesbos. We have heard that a number of other countries have offered to take some of these children but that this country has not stepped in—or, I should say, stepped up—to its responsibilities. Can the Minister explain why? Why have we not yet done what we should be doing here?

Returning to the Bill itself, Coram has bemoaned the lack of attention given to children generally in the Government’s immigration proposals. Have the Government even undertaken a child rights or best interests assessment of what they are proposing? I have not seen one. Can we perhaps have one before Report? Here is an opportunity to give children’s organisations such as Coram some reassurance by accepting my noble friend’s amendment.

Lord Judd Portrait Lord Judd (Lab) [V]
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My Lords, I sometimes wonder whether the Government—particularly those within No. 10, holding office or otherwise—have any sense of shame whatever. There is really no other way to describe their dilatory approach to all this than shameful. Perhaps nothing is unbelievable these days, but it is almost unbelievable that—dealing with children in the most vulnerable situation, who have been through hell and are psychologically and sometimes physically in a very bad way and in need of love, affection, care and concern—there is a total failure to ensure that the provisions of the Dublin agreement, such as they were, have been carried forward and a satisfactory replacement negotiated with the European Union.

I know that it is a controversial thing to say in this House, but I have reached a point at which I feel shame for my nation. Do we care about children, or indeed adults, who are in desperate need or do we not? Why are we not busting a gut, with all our ingenuity and skills, to find ways in which people can, in their desperation, make safe journeys rather than being thrown into the hands of smugglers or acute dangers in totally inadequate vessels? This issue goes to the kernel of what kind of nation we want to be and appear to the world to have become.

All I can say is that my admiration for my noble friend Lord Dubs is unbridled. The way he has been, in effect, repeatedly let down by government is a sad and sorry story. I am sorry if it appears that I am just moralising, but this is crucial to where our sense of care, concern and responsibility as a nation is. Therefore, this amendment, whatever it can do, is desperately needed. I cannot say how sorry and sad I am that we have reached this predicament.

Baroness Garden of Frognal Portrait The Deputy Speaker (Baroness Garden of Frognal) (LD)
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The noble Baroness, Lady Bennett of Manor Castle, has withdrawn, so I now call the noble Baroness, Lady Primarolo.

Baroness Primarolo Portrait Baroness Primarolo (Lab) [V]
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My Lords, I hesitate to speak in this debate having heard the eloquent and dedicated contribution of my noble friend Lord Dubs, and from the noble Lord, Lord Kerr, and the right reverend Prelate the Bishop of Durham, about the humanitarian imperative to act now in this terrible crisis that we are seeing unfold, both in Greece and France, of unaccompanied children and families. As pointed out by the noble Baroness, Lady Lister, we see proposals from the Government that appear to prepare to weaken our commitment to reuniting unaccompanied children with their families—at a time that strikes at the heart of what we believe are British values of caring and standing up for those who are less well off than us and taking our share and burden in helping those in greatest need.

Amendment 48, which I support, would provide the basis on which this country could have rules that offered a safe route for children to join their family members in the UK. Having such clear rules offers a path forward. The Minister has to tell the Committee why the Government find themselves in a position in which the EU has rejected the proposals that they put forward in the negotiations on the basis that they were not part of the mandate. They were never part of the mandate. It looks unlikely that we will be able to negotiate bilateral agreements with the other member states. If the EU has overall competence for this matter, that route will be closed off for ever.

On 3 September, a Home Office official appearing before the House of Commons Home Affairs Select Committee confirmed that at the end of December 2020 the UK will not be bound by the Dublin arrangements. So we have no route through negotiations; we think that bilateral arrangements are unlikely, and we know we will not have Dublin III, according to the Government. Can the Minister tell the Committee, if she is going to reject amendment, what plans the Government have to ensure that we have a mechanism in place at the end of the transition period to provide a replacement for Dublin III? Can she explain how unaccompanied children in desperate need of clarity and certainty will receive speedy action so that they can be reunited with their families? Will she detail how, if she will not accept the amendment, she intends to insert rights into the Bill that protect children with relatives in the UK who are willing to take responsibility for those children?

The Government are being offered a clear and simple way forward to meet these obligations by the brilliant work of my noble friend Lord Dubs. I urge the Minister to accept the principles enshrined in the amendment. I hope she will respond positively to all the comments that have been made thus far in this very important debate.

Lord Alton of Liverpool Portrait Lord Alton of Liverpool (CB)
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My Lords, with the Children’s Society saying that child refugees worldwide now number some 13 million, surely the noble Lord, Lord Dubs, was right to say that this is one of the gravest crises facing the world. The Minister will no doubt remind the Committee what the Government have done. They have done much to try to help children caught up in this terrible spiral of violence—I do not think that anyone in the Committee would not want to respond in some way to try to deal with many of the issues raised during the debate so far. However, she will understand from the cri de coeur she has heard from noble Lords across the Committee that just because we have helped some, that is not a reason not to try to help others as well. Just because we cannot solve the problems of everyone is not a reason not to try to solve the problems of anyone.

Given his own personal story, there is no one better equipped or able than the noble Lord, Lord Dubs, to put the case. I also wholeheartedly associate myself with the remarks of my noble friend Lord Kerr of Kinlochard, and with what the right reverend Prelate the Bishop of Durham said about the sanctity of every human life and our particular duty to the most vulnerable. I make common cause with all those who have spoken in the debate so far.

Amendment 48 takes us back to the well-worn road to Dublin, although, as the Irish would say, if you wanted to get to Dublin you wouldn’t start from here. Over the months, the Minister has had to respond to my repeated questions, along with those of the noble Lord, Lord Dubs, and other noble Lords, about the Dublin regulations—those European Union protocols concerning the identification and transfer of people, especially unaccompanied children who have submitted a claim for asylum from one member state to another where the applicant has family. Of course, the issue of unaccompanied children was also the subject of the Dubs amendment, which was referred to by the noble Lord earlier in the debate. That amendment was passed by your Lordships’ House and I was very happy to be one of the signatories to it.

Amendment 48 has become necessary because Ministers have yet to create new arrangements post December 2020, when the transitional arrangements elapse. The amendment would provide some legal framework to enable those who would have been able to come here under the Dublin regulations to enter the UK and make their asylum claim.

I am constantly struck by the fact that, rather than providing safe, fair but nevertheless exacting procedures, as described by the noble Lord, Lord Kerr, in his remarks, the Government seem to take an approach that stimulates the desperate search for unsafe and illegal attempts to come into the United Kingdom. I am the trustee of an anti-trafficking charity, the Arise Foundation, and I was struck by what the United Kingdom’s former Independent Anti-slavery Commissioner, Kevin Hyland, senior advisor to the Santa Marta Group, said this this weekend—that instead of tough rhetoric, which he called
“an open goal that the traffickers are happy to exploit”,
the Government should accept their moral responsibility to end the vicious cycle facing so many refugees and asylum seekers.
Where legitimate safe migration routes are unavailable, or almost impossible to navigate, especially when you are in fear of your life, the opportunities offered by traffickers certainly become more attractive and are often the first port of call. We need a different kind of paradigm. I was struck by what Kevin Hyland said—that it should be a paradigm that
“identifies genuine refugees/asylum seekers, that supports displaced children, coupled with a policing model that identifies those entitled or in need of protection”,
as well as one that hits
“organised criminals profiteering off others’ vulnerability.”
Mr Hyland said that a different approach was needed in responding to the refugee crisis, and that
“threats and rhetoric absent of consideration for the vulnerable only act as fuel for human traffickers.”
That different paradigm is represented in part in Amendment 48 but also in Amendment 56, which seeks to secure a grant of settled status to children of EEA or Swiss nationals who are in local authority care. The Children’s Society has written to me expressing considerable concern about vulnerable children who, as things stand, will become undocumented after June 2021. To rectify that, Amendment 56 was first laid before Parliament in the House of Commons by Tim Loughton MP and Yvette Cooper MP. Providing a settled status to children in care and care leavers by fast tracking them through the EU settlement scheme, we would be able to provide regulations and security for children who may otherwise drift into an anonymous world of exploitation such as that described by Mr Kevin Hyland. The amendment would place a duty of identification on local authorities and provides a timeline; it would protect data and ensure that the state, which must act in loco parentis for these children, does not abandon them.
I was struck by the Migration Observatory study of take-up rates for the EU settlement scheme, which shows a significant discrepancy between take-up rates for adults and for children under the age of 18. This will be inevitable, as children may not know about the need to apply or where to get help, and many will be without the necessary documents and proof of residency. The Children’s Society cites Home Office figures that some 5,000 looked-after children and 4,000 care leavers in the United Kingdom would need to apply to the EU settlement scheme. I would be grateful if the Minister would say what systematic analysis they had undertaken to identify the numbers post Brexit who would need to regularise their status. How do they respond to the society’s concerns about, first, identification, secondly, problems with applying and, thirdly, pre-settled status?
Lest the Government are tempted to use the argument that the amendment provides automatic status and could lead to another Windrush scandal, I would say that it does not—quite the reverse. It provides a process and route and, unlike the Government’s position, does not try to push the problem over the horizon. As the Children’s Society points out, without such safeguards, the Government will
“find themselves facing another Windrush crisis”
from children within their own care.
The Children’s Society has sent cases in its briefing, and I suspect that the Minister may have seen them. I do not want to detain the House longer by giving examples, but if she gets the chance to read it, I draw her attention to the cases of Anna, Adam and Greta, children from Latvia, Romania and Lithuania. I hope that when we get to those details, it will be possible—
Lord Parkinson of Whitley Bay Portrait Lord Parkinson of Whitley Bay (Con)
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The noble Lord is talking to an amendment that comes up later.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, I have my name to this amendment on behalf of our Benches. The subject matter of this amendment, and that of later Amendment 62, are very close. Amendment 62 is about family reunion, and the noble Baroness, Lady Primarolo, in particular, referred to that. It will not escape the Committee that there is a particularly persuasive factor to Amendment 48, and that it is led by the noble Lord, Lord Dubs, whose track record in leading the House on issues relating to refugees, particularly child refugees, is second to none.

I do not want to repeat points that have been made about push and pull factors, or about children’s experiences. I am very clear about the moral issues that have been referred to. As the noble Lord, Lord Alton, has rightly reminded the House, the Government has not done nothing. It will, however, be hearing the call to do more.

I want to make some technical points. Ministers tell us they are working hard—I do not mean to impugn anything there—to ensure that unaccompanied asylum-seeking children are looked after in the best possible way after we leave the Dublin regulations. As we have heard, they have referred to the draft negotiating document, the draft working text for an agreement between the EU and the UK on the transfer of these children, but there are two problems. First, there is nothing firm about that text: member states “may” make a request to transfer a child, and the UK “may” make a request to member states. Secondly, the EU has no mandate to negotiate on behalf of member states on this. To deal with the latter first, the Security and Justice Sub-Committee of the House’s Select Committee on the European Union took evidence on the text in July from witnesses, including the noble Lord, Lord Dubs, and Professor Elspeth Guild, who explained the position to us. In the political declaration of last October, which is the basis for the commission’s negotiations—it has been given a mandate to negotiate on that basis—there was only one section on what is called illegal migration, which in turn is the basis for a draft agreement. That provides for co-operation to cover only three subject areas which do not include this issue.

When I first read the political declaration I wondered whether illegal migration covered refugees at all because they are not illegal, but since one of the three issues is tackling problems upstream, that suggests that refugees come within it. However, I will not challenge a professor of law with posts at two prestigious institutions, and I follow her argument. The EU has no mandate in negotiations, but that is not the end of it. The UK cannot negotiate an agreement member state by member state, because this is, counter-intuitively in view of what I have said, a fully exercised competence of the EU, so it is not open to member states to negotiate with the UK. It is counter-intuitive and a Catch-22 situation. Professor Guild said:

“The idea that we would be able to negotiate with each member state an equivalent of Article 6 of the Dublin regulations seems to me … astonishingly naive.”

It would need a lot of political will on all sides to sort this out through the UK-EU negotiations. We are all aware that matters are somewhat tense—would that be the right description? I, like others, am not optimistic about a positive outcome.

In January 2019, when the House was considering this issue, the Minister wrote to noble Lords that:

“negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas”,

referring to

“the traditional division between Government and Parliament”.

Given what we all know, or maybe do not know but suspect, about what is going on, is it wise to rely on the possibility of negotiation?

Apart from the principle, there are some shortcomings in the draft text of the provisions: the “may”, not “must”. It also says that no rights can be directly invoked in the domestic legal systems of the parties. That alone would make it hard to go along with the text. However, we can sort this out in domestic law, hence the amendment. The noble Lord, Lord Dubs, has been as persuasive as ever. The noble Lord, Lord Kerr, has been clear about channel crossings. I will not go on; I agree with pretty much everything—possibly everything—that has been said. Immigration Bills come along quite frequently, but we should not wait for the next one. The amendment is not a big ask; its objective, in proposed new subsection (5), is clear, but it requires strategy and clarity about reaching that objective. Crucially, it refers to the “child’s best interests”. We should take this opportunity to provide this safe and legal route for children.

Lord Rosser Portrait Lord Rosser (Lab)
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My Lords, Amendment 48 provides that the only existing legal route, which is under the Dublin III convention, for asylum seekers, including unaccompanied children, to join family in the UK would remain operational after the end of the transition period. It also requires the Secretary of State to lay a strategy before Parliament to ensure that unaccompanied children continue to be relocated to the UK if it is in the child’s best interest. Family reunion under the Dublin III convention will no longer apply after the end of the transition period, in just over three months’ time. That means that vulnerable child refugees seeking to join relatives in the UK will no longer have this, or any other, safe route to our country, unless—which looks increasingly unlikely—there is a deal with the EU before the end of the transition period, which incorporates an alternative family reunion arrangement.

The Government have previously given assurances that they would protect family reunion for unaccompanied children. However, the UK’s draft proposal for a replacement to family reunion no longer includes mandatory requirements on the Government to facilitate such reunions. Instead, it makes a child’s right to join their relatives discretionary and, on top of that, abolishes a child’s right to appeal against a refusal. Vulnerable refugees, including accompanied children and adults, would lose access to family reunion entirely. The evidence indicates that, without a mandatory requirement, family reunions will, to all intents and purposes, end, which may be the intention behind the Government’s draft proposal.

For the five years before mandatory provisions were introduced by Dublin III, from 2009 to 2014, family reunions of children and adults to the UK averaged just 11 people annually. After mandatory provisions were introduced by Dublin III, family reunions to the UK averaged nearly 550 people annually. Significantly more than 11, but not a significant number in itself, compared with the overall net migration figure of some 200,000 plus. Without a mandatory requirement, children are likely to remain stranded in Europe indefinitely; alternatively, some may risk the more hazardous routes, involving crossing the Channel in small boats or a lorry in an attempt to reach family members.

The Government’s apparent determination to effectively thwart family reunions by making them discretionary is in contrast to their proposals for being able to return people who claim asylum in the UK to other EU countries, which they want to be mandatory. The Government have also said that the 480 places under the Dubs scheme have now all been taken. Amendment 48 would enable lone children to continue to have a safe legal route to the UK. Without action, child refugees in Europe will lose the only available safe and legal route to the UK in just over three months’ time, as they will no longer have either a right to family reunion or access to the Dubs scheme. They will instead have no option but to risk their lives using the dangerous alternative means, via traffickers, of trying to reach this country.
Ending the Dubs scheme and Dublin III will not stop unaccompanied children fleeing conflict and seeking to reach this country to be with those they know. Surely, the Government accept that this is the reality, and that we ought, accordingly, to ensure safe routes rather than accept the existing dangerous routes which will continue to flourish if we do not make that change. This, surely, is why the terms of Amendment 48, so ably moved by my noble friend Lord Dubs, are sorely needed.
Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank all noble Lords who have spoken with such passion on these amendments; I also thank the noble Lord, Lord Dubs, of course, although I am not sure that I agree with his summation of our history of providing refuge for the most vulnerable children across the globe. The Government have an excellent humanitarian record in assisting vulnerable people, including children. We are one of the world’s leading refugee resettlement states. Under national resettlement schemes, we have resettled more refugees than any country in Europe and are in the top five countries worldwide. In contrast to some of the things noble Lords have been saying, we have resettled more than 25,000 refugees since 2015, around half of whom were children. We can be proud as a country of our ambitious commitments and achievements.

The noble Lord, Lord Kerr, stated that France and Germany have more asylum claims than us. That is not the case. We received 3,651 asylum claims from UASC in 2019, more than any other EU state and 20% of all claims made in the EU and UK. I hope that I have set that record straight.

The right reverend Prelate the Bishop of Durham asked what we have done during the pandemic. It is absolutely fair to say that it has been very difficult to resettle children for all the reasons that the pandemic has brought; however, the UK has remained open to receiving Dublin transfers. I remember that, very early on in the pandemic crisis, Minister Philp was in talks with Greece. Three group flights have taken place from Greece in recent months, on 11 May, 28 July and 6 August. We continue to make arrangements with Greek officials to facilitate transfers of people we have accepted under the regulation. I must make it clear that all arrangements to complete the transfer are the responsibility of the sending state.

There are 5,000 unaccompanied children in local authority care. I note that the noble Lord, Lord Dubs, says that he knows that there are councils which would take more. I have pressed him for the last four years to tell me which councils these are and whether they would come forward to offer those places. Of course, Kent is struggling at the moment, but if there are more local authorities who can provide that protection, we would really like to hear from them.

We have given protection to nearly 45,000 children since 2010, including over 7,000 in the past year. We also issued over 7,400 family reunion visas in the year to March 2020. I do not think that is a sign of a mean country but a sign of a very small country that has done everything in its power to help the most vulnerable. In addition, once we have delivered our current commitments under the vulnerable persons resettlement scheme—with almost 20,000 to date, and we will get to 20,000—we will consolidate our main schemes into a new global UK resettlement scheme. Our priority will be to continue to identify and resettle vulnerable refugees in need of protection, as identified and referred by UNHCR.

The proposed new clause does not recognise the existing routes in our immigration system for reuniting families, nor that we are pursuing new reciprocal arrangements with the EU for the family reunion of unaccompanied asylum-seeking children. We have tabled draft legal text for a negotiated agreement for a state-to-state referral and transfer system which would provide clear and consistent processes between the UK and EU member states, ensuring appropriate support for the child and guaranteeing reciprocity. These guarantees cannot be provided for in UK domestic provisions alone. We have acted in good faith and hope that the EU will do the same. The draft has not been rejected but—just to correct another statement made tonight—is still on the negotiating table. We will continue to provide safe and legal routes to Britain to bring together families of refugees through our refugee family reunion policy. Additionally, family members of British citizens or those granted settlement in the UK can apply to join them under Part 8 and Appendix FM of the Immigration Rules. All these routes remain in place at the end of the transition period.

The amendment tabled by the noble Lord is, unsurprisingly, based on recreating the Dublin regulation. This is obviously an EU provision, and we have now left the EU. We are a sovereign state with our own family reunion routes, which are substantial, as I have just set out. We must avoid creating further incentives for people, particularly children, to leave their families and risk those dangerous journeys. This plays into the hands of criminal gangs who exploit vulnerable people, and it goes against our safeguarding responsibilities. Allowing individuals to sponsor family members to join them in the UK before a decision on their asylum claim is made creates great uncertainty for families, who may be unable to remain in the UK. We must also guard against significantly increasing the number of people who could qualify for family reunion while not necessarily needing protection themselves, and who may be seeking to make unfounded claims on our protection systems for economic gain.

Finally, the proposed amendment would require the Government to lay before Parliament a strategy on the relocation of unaccompanied children from EEA states. The Government have no intention to lay such a strategy. It would be incredibly challenging to deliver, not least because of the pressures already faced by local authorities that are currently caring for over 5,000 unaccompanied asylum-seeking children. That is an increase of 146% since 2014. As I said earlier, in 2019 the UK received the highest number of asylum claims from unaccompanied children in Europe, and 20% of all such claims made in the EU and UK. We only have to look at the situation in Kent in recent weeks to realise the pressure that some local authorities face. Alleviating that pressure and ensuring that unaccompanied children already in the UK receive the care they need has got to be our priority. In the longer term, we need to ensure that there is a fairer allocation of caring responsibilities across the entire country.

As the noble Lord, Lord Dubs, said, in July the Government announced they had successfully completed the transfer of 480 unaccompanied asylum-seeking children from Greece, France and Italy under Section 67 of the Immigration Act 2016. Parliament was very clear then that this was a one-off scheme, which is now complete. We are pleased to see other countries now stepping up to support Greece by taking in unaccompanied children, and we stand ready to offer advice and guidance to member states who wish to develop their own schemes.

On that note, I thank all noble Lords for their contributions. I hope that the noble Lord, Lord Dubs, will withdraw his amendment.

Lord Dubs Portrait Lord Dubs (Lab) [V]
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My Lords, I am extremely grateful to all noble Lords who have spoken so supportively and passionately in favour of the amendment. I am grateful to the Minister for having laid out the Government’s arguments and responses. I am sure that we will come back to this on Report, but I would like to make some very brief comments. I do not want to bandy figures too much; I think we can probably deal with that between now and Report stage.

The Minister mentioned the Section 67 scheme in the 2016 Act. The Minister said it was a one-off scheme, but it was only one-off because the Government arbitrarily closed it. There was no number given in the amendment; the Government quite arbitrarily said that there were no more local authority places. I think the Government stopped that one.

The Minister mentioned the children who came and how generous we have been but, according to the figures she quoted, the majority of these children came illegally. They crossed the channel, either in dinghies or in the back of lorries. I believe that, had they had legal paths to safety, they would not have come that way. The figures would have been the same, but some of them would have had a safe and legal crossing, instead of the terrible dangers of crossing the channel.

I will certainly get back to the Minister with indications of those local authorities—it was some time ago that we did the check—that I know are able and willing to take child refugees, so we can take the argument to that point.

The Minister mentioned the global UK resettlement scheme. Fine, I am all in support of that, except of course that this will not take a single child from Europe, as I understand it; it will be ones from the region. I welcome that they will be taken from the region, but I do not welcome the fact that the scheme will not cover any from Europe, which is why we need this particular amendment.

With regards to push and pull factors, I remember talking to a Syrian boy who fled from Damascus or Aleppo. He told me very vividly how he had seen his father blown up by a bomb in front of him. That is an experience which will mark a child for life, and that is a real push factor if ever there was one. A lot of the children I have spoken to have had the most terrible journeys in order to try and find safety. They are coming because they want to find safety somewhere in the world. The majority of them have gone to Germany, Sweden and other EU countries. Some have come here, and I hope more will come.

As I say, I believe we can return to this on Report. I repeat my gratitude to all noble Lords who have contributed to this debate.

Amendment 48 withdrawn.
Sitting suspended.
Lord McNicol of West Kilbride Portrait The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
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My Lords, we now come to the group beginning with Amendment 49. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or any other amendment in the group to a Division should make that clear in the debate.

Amendment 49

Moved by
49: After Clause 4, insert the following new Clause—
“EU Settlement Scheme: physical documented proof
(1) The Secretary of State must issue physical proof confirming pre-settled status or settled status to all EEA and Swiss nationals and their families who have been granted such status under the EU Settlement Scheme and who request such proof.(2) No fee may be charged for issuing physical proof under this section.”Member’s explanatory statement
This new Clause seeks to provide physical proof of settled and pre-settled status to those who make a successful application through the scheme, providing physical evidence of their migration status.
Lord Oates Portrait Lord Oates (LD)
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My Lords, I will speak to Amendment 49, to which the noble Lords, Lord Polak, Lord Kerslake and Lord McNicol of West Kilbride, have added their name. The noble Lords, Lord McNicol and Lord Kerslake, have asked me to pass on their apologies for not being able to participate in the debate—the noble Lord, Lord McNicol, cannot do so for obvious reasons—and to make my remarks on their behalf also.

I pay tribute to the3million for its tireless advocacy on behalf of EU citizens in the UK, as well as to British in Europe and the other country-specific groups that represent UK citizens in the EU and work so hard on their behalf.

The amendment’s importance is underlined by the fact that it not only commands cross-party support but is backed both by people, like me, who passionately wanted us to remain in the European Union and by those who, like the noble Lord, Lord Polak, were equal in their passion to leave. This amendment is not about refighting the battles of Brexit. It is simply about ensuring that EU citizens feel secure in their new status and do not face discrimination in the provision of services or the right to employment. It might even be described—properly, on this occasion—as specific and limited in its nature.

The amendment would require the Government to provide physical proof confirming settled or pre-settled status to all EEA and Swiss nationals and their families who have been granted such status and who request it. It would also require that the document be provided free of charge. The only way in which it appears to diverge from Amendment 51 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, and the noble Baroness, Lady Bennett of Manor Castle, is that physical documents would be provided on request rather than automatically, so that those who did not feel the need for a physical residence card would not get one but those who did would be guaranteed one.

If the Government are correct that the system of verification and cloud-based proof of status will prove simple to use and will run smoothly, there may be little demand for such documents. But if, as I suspect, those granted settled status find that the digital system does not work effectively or is not understood by the service providers they must interact with—or if they simply want the physical surety that I would certainly desire were I permanently resident in another country—it will be available to them as it should be.

The arguments for the Government’s position are a little hard to follow but they seem principally to be these: first, that it would be confusing to people to have a digital system as well as a physical proof of status; secondly, that a digital proof is better than a physical proof because a digital proof cannot be lost; thirdly, that the Government intend to move to a wholly digital system in future and that it therefore makes sense for this new settled status scheme to adopt a wholly digital model from the outset.

On the first point, it is not clear why the Government think that having both physical proof and digital proof would be confusing, as this is exactly the system that exists for non-EEA citizens. They can access a digital proof of status and have a physical document. Landlords, employers and others who are expected to check for immigration status already operate under this system.

Within the settled status scheme itself, there are two different categories. Astonishingly, non-EEA nationals who are family members of EEA nationals—and who therefore acquire settled status through their family relationship—have the right to a physical document, while the EEA family member through whom they gain their status does not. Can the Minister explain to the House the logic behind this very curious arrangement and how it can possibly be said to provide clarity to anyone?

Secondly, when we discussed these matters, the Minister argued that digital proof is better than physical proof because it cannot be lost. I will be very clear to the Government and the Minister that this amendment would ensure that a physical document complements digital proof and would not replace it.

Thirdly, the Government have argued that it makes sense to adopt a digital model as this is the direction of travel of the Government as a whole. However, if a wholly digital system is to be introduced, it should be extensively piloted first with British citizens who are secure in their immigration status. We should not conduct an experiment with the lives of millions of people who are in receipt of an entirely new status, whose rights are not even underpinned in primary legislation and who are, understandably, extremely nervous about the situation in which they find themselves. It is, quite simply, wrong, especially when we already know the problems it will lead to. In 2018, the Government trialled their digital right-to-work scheme with non-EU citizens who have the backup of a physical residence card. Their own internal assessment stated the following:

“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”

In her response, can the Minister explain to the House what has changed since the Government made that assessment?

I hope that, during this evening’s debate, the Minister will be able to put her brief aside and try to walk in the shoes of the people who will be subject to this new system. I hope she will consider the anxiety and distress that they will be caused by the fact that, of the 70 million people living in Britain, they alone will be refused physical proof of their right to do so. I hope she will consider the fact that this anxiety and distress will be particularly acute among the elderly, the vulnerable and those lacking digital literacy.

I have tried to imagine what it would be like if I had an elderly relative who was an EU citizen and I had to explain to them that the whole proof of their continuing right to live in the UK existed only somewhere in the cloud, dependent on the resilience of government IT systems, the integrity of the data within them and the vagaries of an internet connection. I can imagine the distress and disbelief with which that relative would receive this information, and I wonder how I would explain to them why the Government were unwilling to do a simple thing and provide them with the reassurance of a physical document: something they could hold in their hand and show, themselves, to whoever in authority required it. This is something that will be provided to all UK citizens resident in the EU. I do not know whether the Minister or any of her colleagues in government have really thought about how those conversations will go and the distress that will be caused. However, if they have not, I hope they will now think about it and the position they have taken.

We still await the policy equality statement on the settlement scheme, which was originally promised in the spring. On July 28 this year, the Minister for Future Borders and Immigration, Kevin Foster, stated that it would be published shortly. Can the Minister confirm that the equality statement exists, that it will be published and when it will be published? Does she recognise that the failure to provide such information before we debate legislation makes it very hard to make parliamentary accountability effective?

While the most vulnerable will inevitably suffer the most, all those with settled status are likely to be impacted by the absence of physical documents. Briefing from the3million group provides illustrative examples of the problems that people will encounter under the new system, which could have a severe impact on their ability to work, rent a property or access medical and other services. They are instructive illustrations and I hope the Government will look at them—and the issues they give rise to—carefully.

As the briefing tells us, research conducted by the Residential Landlords Association found that 20% of landlords are less likely to consider renting to EU or EEA nationals as a consequence of their lack of physical documentation. The Joint Council for the Welfare of Immigrants conducted 150 mystery shopping enquiries and found that 85% of prospective tenants who asked landlords to conduct an online check received no response at all. Of those landlords who did reply, only three said explicitly they would carry out such checks.

The situation is little better when it comes to employment. A poll of 500 employers conducted on behalf of the3million found that only 36% of employers knew that an online verification system would be applicable to EU citizens after the end of the grace period. This fell to just 17% among small businesses with a turnover of under £500,000, which means that four out of five such employers are not aware how right-to-work checks will operate under the new system.

What is the likely outcome of such confusion? It is that landlords and employers, who face unlimited fines and potential imprisonment if they employ or rent to someone who does not have the right to work or rent in the UK, will play it safe. As a result, EU citizens will be discriminated against compared with those who can show a physical document indicating their right to live or work in the UK. This is the real world, and these are the real effects on people’s lives, which could be corrected so easily by this amendment.

I hope that in the face of this compelling evidence of the clear harm that this discriminatory system will impose on millions of EU citizens, and in accordance with the promises made by senior members of the Government during the referendum campaign, the Government will think again, show themselves to have empathy and compassion and agree to this simple amendment, which would prevent so many unnecessary problems and so much unnecessary hardship from arising.

I beg to move.

Lord Polak Portrait Lord Polak (Con)
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My Lords, I am pleased to have added my name to this amendment, and I pay tribute to the noble Lord, Lord Oates, for his excellent and thoughtful introduction.

Non-EU citizens are given physical proof of their settled status. Can it really be that EU citizens will be the only group without physical proof of status? The immigration system should treat people fairly and justly. People who have come to the UK and live here lawfully should not struggle to demonstrate their rights. A physical document, such as a biometric residence permit like those issued to non-EU citizens, will give that peace of mind.

I am entirely at one with the Government and specifically the Home Office’s ambition to digitalise. Of course, it is the way forward. But we are not there yet and, as the noble Lord, Lord Oates, said, the lack of physical proof will be of great concern to those who may not be digitally literate—specifically, some older people. So I was happy to support this amendment once it was agreed to add the requirement that the Government provide the physical proof if requested, thus alleviating the strain on the department.

As the noble Lord, Lord Oates, began, this amendment is neither political nor a repeat of arguments. It is simply a practical and sensible option to give some people comfort. I hope that my noble friend the Minister will agree with me that it is just the right thing to do.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP) [V]
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My Lords, I am the first person who signed Amendment 51 to speak on this group. I thank the noble Lord, Lord Oates, for providing such a clear introduction to both the need for a physical document and the difference between these two amendments. Amendment 51, which I signed with the noble Lords, Lord Rosser and Lord Kennedy of Southwark, calls for the automatic provision of the document, as the noble Lord, Lord Oates said, and Amendment 49 would provide one on request. I would argue that Amendment 51 is stronger because “on request” requires people seeing into the future and predicting when things might not work. It would be simpler and easier for the department to administer, but either one of these amendments would be a significant improvement on the situation we have now.

As the noble Lord, Lord Oates, said, both the3million and Britons in Europe have done a great deal of work to spread the information about the need for this document. I was at a briefing earlier with the Children’s Society and the3million, focusing on the situation of the 260,000 children who have acquired settled status and the 150,000 who now have pre-settled status. If we think about the situation where—in about 10 or 15 years’ hence—one of those young children has to suddenly prove their status, recovering all the emails, the phone numbers and all the other information they might need to do that is likely to be far from simple.

I also want to address the situation for adults. Can the Minister confirm my understanding of what the process would be? My understanding is, for example, if someone wants to prove their right to work—as we were discussing in an earlier amendment—they will need to access their status via a website, providing the passport or ID card they applied with and their date of birth; they will then have a choice of getting a code with either email or phone; that code will need to be entered on the website; if that is successful, their status will appear on the screen and there will be an option to prove their status. They will then have to fill in the employer’s email address; the system will attempt to email a code to the employer, who will then need to find the correct website, enter the code along with some security information and finally see a screen with a photograph and proof that the person has the right to work. Does the Minister acknowledge that this has many moving parts? If any one of these fails, then it all fails.

We were talking before about landlords being reluctant to go through the extra hassle. We can also imagine plenty of employers who might be similarly reluctant—if they are choosing between two nearly equal applicants—and thinking, “Well, let’s just go for the simpler option.” We saw research from the Joint Council for the Welfare of Immigrants that showed that only three in 150 landlords said they were prepared to do those digital checks. Perhaps employers might not be quite so prepared—if they are concerned about discrimination legislation—to talk about their reluctance to do it, but you have to wonder if it would be there.

Of course, as other speakers have already said, this is really very frightening; it makes people feel very insecure. It is estimated that 22% of people do not have the essential digital skills to complete this process. It might be that they rely on someone else—such as the small child that I started off by talking about—but what happens when that person is no longer accessible or available to them or in contact with them? Physical back-up would provide people with certainty and security. It would be good if everyone had it, but either way it should certainly be available. Therefore, I commend both of these amendments, but particularly Amendment 51, to your Lordships.

Lord Alton of Liverpool Portrait Lord Alton of Liverpool (CB)
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My Lords, it is a pleasure to support Amendments 49 and 51. I listened carefully to what the noble Lord, Lord Oates, said in introducing them so cogently and reasonably, and I had the advantage of being able to have had a conversation with him last week where he explained the generalities of the amendments to me. I thought the arguments were compelling; the noble Lord, Lord Polak, put it well when he said this was a practical and sensible option. All three speeches that we have heard so far have underlined why this is not one of those ragged political debates that require us to take positions; it is something about which we can do something useful this evening in Committee.

I will turn, if I may, from the generalities to something specific, a particular case of people who will be especially disadvantaged by the impact of digital-only status: the Roma community. On 2 August, Roma Holocaust Memorial Day commemorated the shocking liquidation of Roma in August 1944 at the so-called Gypsy family camp at Auschwitz- Birkenau. On that infamous day, 2,897 men, women and children of Roma or Sinti origin were murdered by the Nazis. Of around 23,000 Roma taken to Auschwitz—and hundreds of thousands more perished during the Holocaust—an estimated 20,000 were murdered there. At the time of the liberation of Auschwitz, only four Roma remained alive.

Now, 76 years later, Roma people still face discrimination and liquidation. I especially commend the work of the All-Party Parliamentary Group on Roma in ensuring that Parliament understands the horrors that this community has experienced and the special circumstances and challenges which it faces today.

In debates like this, I miss the voice of Lord Avebury, a good and long-standing friend and the author of the Caravan Sites Act 1968. At the memorial event celebrating his life, Damian Le Bas, a Roma who wrote The Stopping Places: A Journey Through Gypsy Britain—a remarkable insight into the world of Travelling people—spoke powerfully about how parliamentarians such as Lord Avebury can act to ensure that the UK’s 200,000 Roma can lead lives of dignity.

Lord Avebury would have been the first on his feet to support these amendments, pointing to the lack of awareness within the Roma community of digital immigration status and the way in which digital exclusion simply builds on the other exclusions which Roma historically have experienced. The Roma Support Group says that only 3% of Roma are able independently to complete online applications such as those required by the European Union settlement scheme. Very little data exists about how many Roma have applied to the EUSS so far and been given settled or pre-settled status. As the debate proceeds, I will hand the Minister a copy of the Roma Support Group’s briefing on this so that she can read some of the cases illustrating this point. I would be grateful if the Minister could say how this problem can be addressed, especially as the Home Office data does not include a breakdown of ethnicity.

Enabling those who need it to receive physical evidence of their status in the UK would certainly be a start, and enabling programmes to be developed which could address the issue of digital exclusion, on which this debate has helped us to focus, would be a very good outcome.

Lord Hain Portrait Lord Hain (Lab) [V]
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My Lords, I agree with the noble Lord, Lord Alton, that we all cherish the memory of the much-missed Lord Avebury, who was a champion for human rights globally.

I will speak to Amendments 49 and 51 on the need for documented proof of settled status, and commend the noble Lord, Lord Oates, for his compelling speech, and the crisp speech—notably from the Government Benches—from the noble Lord, Lord Polak. The ending of free movement, which this Bill implements, is nothing less than a tragedy. We should not be severing our links with our nearest neighbours, with whom we have the most in common. This seismic change in our freedom impacts all UK citizens, as we will lose our rights to live, work and study in the EU and EEA countries. For EU nationals living here—many of whom are our family members, friends and colleagues—and for UK citizens living in EU member states, the changes will also be profound, bringing a potential loss of security and life choices in the future.

The aim of the Government’s Brexit project of ending free movement to and from the EU and replacing it with the future global points-based immigration system was supposedly to deliver on their aim of reducing net migration. This policy is not supported by the evidence. In 2019, despite free movement, net migration from the EU fell to less than 50,000, but net migration from outside the EU, where there is no free movement, increased to its highest level for 45 years, above 280,000. Is this what “taking back control” was supposed to be about?

Those EU nationals who for whatever reason do not acquire settled status by the deadline of the end of June 2021 will move from an immigration system that currently works to the same unreformed system that currently applies to non-EU nationals, which is inhumane, dysfunctional and, frankly, chaotic. Even those who succeed in registering under the EU settled status scheme will receive no physical documentation as proof of their status; their rights will not be guaranteed in primary legislation and will potentially be subject to alteration by Ministers under the very considerable Henry VIII powers that this Bill bestows on them.

The Financial Times reported in July that the number of EU migrants who have applied for the right to stay in the UK after Brexit already considerably exceeds official estimates of the Europeans who are eligible to remain, raising further questions over the effectiveness of the Government’s scheme. Home Office statistics up to July show that 3.8 million applications have been made, far more than the official estimate of 3.4 million EU citizens living in the UK that was produced by the Office for National Statistics. In fact, the Financial Times survey of EU embassies discovered that the UK Government might have underestimated the EU-born population of the UK by more than half a million people. By the end of July more than 3.5 million grants of status had been made. However, around 40% of those applicants had been granted only pre-settled status, leaving them in a kind of limbo with their status still unresolved for the long term, while many more applications are still anticipated.

Experts warn that the confusion over the real number of EU citizens living in the UK will make it almost impossible to assess how many eligible people will fail to secure settled status by the time the process closes on 30 June next year. However, it is likely that tens of thousands will suddenly become unlawfully resident in the country that they have legally made their own and be left facing the full force of the Home Office’s “hostile environment”—namely, criminalisation and the threat of deportation.

The groups most affected are likely to include many from the age groups under 18 years and over 65 years, who have had worryingly low application rates. For example, there are 9,000 eligible children and young people in the care system in the UK, for whom only 500 applications have so far been made by local authorities. Non-EU-national family members of EU nationals, rural farm workers, those in isolated communities, those with limited English-language skills, those who are homeless, victims of domestic abuse, those without relevant or up-to-date documents and those who are not digitally literate—often the elderly—are all potentially at risk. That last problem has been exacerbated by the pandemic as the support services normally available to such groups have been forced to move online.

For those groups and others, such as full-time students, full-time parents and those who have previously left the UK temporarily for more than six months, providing the required proof of continuous residence for five years to the Home Office can be very challenging, if not impossible. This means that people with a rightful claim to British residence may lose their legal status overnight. It is another Windrush in the making.

The other main impact of the Bill is of course that, as a direct consequence of the abolition of EEA free movement for UK citizens, we, our children and our grandchildren will from January 2021 lose our rights to live, work and study in the 27 member states of the EU plus the three EEA countries and Switzerland—the biggest diminution in value of a country’s citizenship in history. Therefore, at the same time as the UK Government are opening up higher-paid jobs in the UK to the whole world under the points-based system, the brightest and best UK citizens seeking international career opportunities in the biggest, richest market on our doorstep, the EU, will be second-class citizens in their own country.

In addition, the multiple impacts of the Bill on the estimated 1.5 million UK citizens already resident in European Union member states, who will also become second-class citizens within the EU, should not be forgotten. For example, those with non-British spouses and family members will not have an automatic right to return to the UK with their family after 31 December 2020. Frankly, the Bill is an inhumane, reactionary mess and these amendments try to ameliorate that. I stress that they are not party political; they are simply about humanity. That is why I hope the Minister will accept them when she replies.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I support the eminently sensible Amendment 49, so well argued by my noble friend Lord Oates and supported by the noble Lord, Lord Polak.

The Minister will get rather bored with me, I am afraid, but we are back to right to rent, which is the gift that keeps on giving. As I mentioned at Second Reading and when addressing previous groups, when it comes to renting to EEA, Swiss and B5JSSK nationals —that is, citizens of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States of America—who come to the UK under six-month visa-free entry and can use e-passport gates at UK airports, landlords are told that they must rely on physical proof of immigration status. Not only must EEA and Swiss nationals, who enter the UK without a visa, produce their passport, they must produce a ticket, boarding pass or travel booking to the landlord to prove that they entered the UK within the past six months.

The Government keep claiming that physical proof of settled or pre-settled status will not be provided because all proof of immigration status will be digital. That is simply not true. Can the Minister please confirm on the record that this is the case?

Something the noble Lord, Lord Polak, said struck a chord with me. I recently lost my driving licence and when I applied to have a replacement the system said that I could continue to drive even though I was not in possession of a physical driving licence. I felt very vulnerable about driving without a physical document in my possession, so that if I was stopped by the police, for example, I would be able to prove that I was driving lawfully. Can the Minister explain when the UK Government plan to phase out physical driving licences and allow drivers to rely simply on a digital system?

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I must admit that I originally found the Government’s arguments quite persuasive in the briefing the Minister provided for us, but I have changed my mind, having heard from the 3 million representatives about the many potential pitfalls and just how anxious many of those affected are at the prospect of not having physical proof. I have also seen evidence from the Roma community, the European Children’s Rights Unit and the Roma Support Group, the last arguing that this group experiences a combination of digital exclusion and a lack of digital skills. That is true of many marginalised groups. The noble Lord, Lord Alton, has spoken very movingly about this group already.

The noble Lord, Lord Oates, referred to a promised policy equality statement that still has not appeared. This is really important, because we know that digital-only policies are likely to have a differential impact on groups with protected characteristics, as the example of the Roma community indicates. We know from universal credit the problems that digital by default can create for those who lack digital access and digital skills.

I am puzzled because the Minister’s response to many other amendments has been to complain that they would create a two-tier system, but it seems that this is creating a two-tier system that the Government are very happy with. Perhaps the Minister could explain that contradiction. I hope that the Government will not oppose this amendment. Amendment 49, in particular, is extremely modest, and I just hope that the Government will acknowledge the contradiction and ensure that they are not creating their own two-tier system here.

Lord Greaves Portrait Lord Greaves (LD)
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My Lords, it is a privilege to follow so many very clear and excellent speeches, starting with my noble friend Lord Oates and including my old friends, the noble Lords, Lord Alton of Liverpool and Lord Hain. I listened to both of them and thought, “They got some good training when they were kids, didn’t they?”

It is interesting that, of all the things that people such as the3million group and lots of other European citizens who are concerned about settled status and so on do not like, this is the one thing that they are almost all united in thinking ought to be changed. A lot of them put it at the top of their list of priorities, partly because it is such a simple and obvious thing for the Government to do.

I have been in this place for 20 years—I have to pinch myself but it is true—and I have noticed over the years that sensible Governments do not just lie down and do everything that your Lordships’ House wants them to do, although we have the debate and they listen. Occasionally they say, “Yes. There’s sense in this. We’ll take it away and sort it, and will come back.” I think that this is one of those issues. The great advantage that Governments have of doing that here and not in the House of Commons is that the Opposition do not then start shouting “U-turn” and so on at them; they say, “We thank the Government for their sensible thoughts and actions on this. Good for them.” This is one issue where the Minister, who has a reasonable amount of clout in her department and in the Government—not as much as some people but a reasonable amount—

Lord Greaves Portrait Lord Greaves (LD)
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There are shadowy figures who get appointed and seem to run things but never appear in this or any other House, but I am sure that the Minister could do it if she wanted to. I think that this is a single thing that the Government could do.

Various people have talked about it being a two-tier system. My noble friend Lord Paddick said it would mean that people with settled status would be in a position different from that of other people. They would be, and they would sometimes be worse off in some respects compared with some citizens of the European Union. For example, those who come here to work after the end of June next year will need a work visa. As I understand it, they will have a passport and the work visa will be stamped in it. They will be okay. They will say, “Look, I can work”, whereas those with settled status will have to go through the long and complex system that has been described to us by the noble Baroness, Lady Bennett.

My other question concerns transactions, whether relating to employment, housing or other things—odd jobs and so on, with people doing work for others. If the European Union person with settled status, who might be on either side of the transaction, is the provider of the facilities or services, will they have to show that they are entitled to be here and to provide those services to their customers or whoever they are providing them to? That is a question for the Minister.

It seems a bit ridiculous in some cases, such as odd-job men. Somebody comes around—they may be a traveller or just an ordinary odd-job man—and says they will mend your roof by putting the tiles back on or will set up a window-cleaning round. If you employ them to work for you, and pay them to do it, but they are not entitled to work in this country, will you be breaking the law in some way—or is it all on the side of the person providing the service?

I have been trying to get my mind around the worst-case scenarios. If you want to rent a new flat and you are leasing it from a big landlord, who is highly reputable and provides high-quality accommodation, you will be okay. They will have all the computer systems, will know how to do it and be used to it. It will just go through. But you may be renting an attic from an old lady who has lived in the house all her life but does not know what a computer looks like or how to operate that kind of system. She does not work through an agent or anybody like that; she just does it. You may be a lodger or a tenant. Under those circumstances, you need a physical document.

I can think of loads of others. Think of the gig economy. Lots of it is highly organised and computerised, and will easily be able to cope—driving for Uber, running webinars or whatever it is. But a lot of the gig economy is short-term jobs, such as working at a bar, doing delivery rounds, music gigs or all sorts of things, as we all know. We should not expect this system to work under circumstances where people do not have a physical document. It is simply not going to happen; it is not going to work.

Then there is the question of self-employed people—your classic Polish plumber, or whoever it is, whatever they are doing. As I suggested before, they may have come to mend your roof or sort out your heating. This is a self-employed person, a sole trader. They may or may not be operating properly within the tax system, but there are loads of such people. How will they cope with this? Some of them have devices with them, but lots will not want to worry about computers. If you are employing these people, as I said before, is it your responsibility to check that their settled status is bona fide?

The more I think about, the more circumstances there are where it will simply not work. It might work in 90% of cases, but there are lots where it will not. Simply having a physical document means that the system can work. It does not mean it will, but it means that it can, so that people on all sides of the transactions can cope. I return to what I said before: this is simple. I cannot understand why the Government will not do it. They should go away, design a scheme, come back and tell us what they are doing, and we will cheer them to the rooftops.

Baroness Bull Portrait Baroness Bull (CB)
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My Lords, I too speak in support of Amendment 49. Like other noble Lords, I congratulate the noble Lord, Lord Oates, on his comprehensive introduction and on continuing to press this important issue. Equality of access and opportunity should be at the heart of every government policy, yet denying EU citizens this physical back-up to prove their status opens avenues for the exact opposite. It raises barriers that may unfairly hamper their ability to lead fulfilling lives and to carry out basic tasks, such as seeking job opportunities—as we have heard— finding a place to live, opening a bank account, getting medical treatment or safely returning home after travelling abroad.

The noble Lord, Lord Alton of Liverpool, raised the important issue of the discriminatory impact of the denial of physical proof on the Roma community. I want to draw attention to the potential impact on two additional groups; people who would be similarly affected by a system that requires access to the mobile number, the email account and the password used to claim the status in the first place—a system that requires digital literacy and competence.
First, I want to speak to potential issues for people in abusive and coercive relationships. Coercive control is now a criminal offence in the UK. It is defined by the Government as behaviour
“designed to make a person subordinate and/or dependent by … depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.”
In England and Wales, the police recorded 17,616 offences of coercive control in the year to March 2019.
An analysis of the types of behaviour in coercive control cases has found that a common strategy is precisely to deprive the victim of access to phone and internet usage. If a person escapes a relationship with a coercive partner, in which the partner has managed the process of claiming settled status, how will they be able to prove their status in the future without reinstigating contact with a partner they will have struggled so very hard to leave?
My second concern is for people with impaired mental capacity. The proposed system is based on the assumption that people have full control of their email accounts and telephone contracts. However, people with impaired capacity will almost certainly require someone else to complete their application and help them navigate the complexities of the digital status regime. They may lack the mental capacity to enter into a mobile or internet contract. Given the fluidity of workers in the social care system, there is no guarantee that a person with impaired mental capacity will still be connected with the carer or caseworker who provided assistance at a later point in life when they try to apply for a job or to rent a property.
Accepting this amendment would represent a very small concession by the Government. It would not mean scrapping the digital scheme, as some have claimed, but simply providing, in the words of the noble Lord, Lord Polak, the option of a physical back-up—it is quite literally just a piece of paper. By equalising the situation between EU and non-EU citizens, the Government would avoid the risk articulated by this House’s European Union Committee of creating a situation similar to the shameful Windrush scandal. It would also show that this Government are committed to upholding principles of non-discrimination that are crucial not only for the establishment of a fair and just immigration system but for a better society.
Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB) [V]
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At the end of the discussion on Amendment 48, the Minister rebuked me severely for something I had said. I would just like to put in her mind the following numbers: Germany, 130,000; France, 90,000; Greece, 80,000; and the United Kingdom, 40,000.

I was extremely grateful to the Minister for seeing some of us during the recess to discuss the Bill. She will remember that the issue most discussed then was this question of physical proof of status. Most of us seemed to find it difficult to understand the Government’s reluctance to issue the physical proof that is so badly wanted by so many of those granted settled or pre-settled status. I still have difficulty understanding it.

Yes, the Government want us all to go online but, as the noble Lord, Lord Oates, explained so powerfully, there are still many in the country who cannot—particularly older people and those with poor digital or linguistic skills. Probably, in the community that we are talking about of those seeking settled status, there is a rather higher proportion of such people than in the community at large. I cannot prove it, but it sounds likely. Yes, one can tell the potential landlord or employer to check one’s status on the Home Office website, but some of them cannot do that either. Many might prefer to skip the house or rent to somebody else, or employ someone else, as the noble Lord, Lord Oates, explained. Yes, lots of people now bank online, but I doubt whether very many of them choose not to have a bank card. As the noble Lord, Lord Oates, said, we are not trying to replace the digital system; we are trying to complement it.

The most powerful point tonight was the one made by the noble Lord, Lord Polak. People may be wrong to want the reassurance of physical proof, but the fact is that they do want it. Since it is cost free, what is wrong with giving them what they want? It is called democracy.

I support Amendment 49 or Amendment 51—I support both of them. If the Government still resist and still cannot produce a convincing explanation, I hope that a combined amendment will be put to the House on Report, and I would expect it to receive very strong support across the House.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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The noble Lord, Lord Polak, said that this was a practical proposal. I think the term tonight is “pragmatic.” That seems to be the one that the Government put forward in defence of their own position on other matters. This proposal is both practical and pragmatic and, as the noble Lord, Lord Alton, says, gives us the chance to do something useful. It is useful for those who argue—and we have heard arguments—persuasively and anxiously that they are denied their back-up, in the words of the3million campaign.

The digital status will not be infallible, but there are steps to it which can fail at any point. The examples given by the noble Baroness, Lady Bull, are very important ones of people who need and will value having physical documents. I add to them those who have been helped by organisations, sometimes organisations funded by the Government as part of these arrangements, who may not be able to make contact with the organisation in a few years’ time. They may not even remember which organisation it is, or the organisation may no longer be in existence. Yes, one might be able to search one’s computer to see where the information is. I cannot always remember who sent a particular email and, actually, I have my emails pretty well organised into folders and sub-folders. But then I suppose that I am “elderly”—and I would be grateful if Hansard put that in quotes.

The digital rollout is a big bang for the EU settlement scheme. Obviously, it is a matter of some pride to the Government, which is why they are so resistant; they have to hold on to this as a principle, because it is part of a rollout for the whole of the immigration arrangements. I assume that they will have some review before they continue with the rollout. One thing that I have learned during all this is that it took Australia 19 years to make everyone comfortable with purely digital arrangements, and Australia does not have the hostile environment provisions that we have in the UK. I very much support what my noble friend and others seek to do.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, Amendment 49, moved by the noble Lord, Lord Oates, inserts into the Bill a simple new clause that gives peace of mind to the individuals who request it. As the noble Lord said, it is very specific. I fully understand why someone would want physical proof that they have the right to remain here in the United Kingdom.

In his introduction, the noble Lord, Lord Oates, set out a number of examples of problems you may need to deal with. One is the whole question of being able to rent a property. You may be required to prove your status, and I can understand a landlord being reluctant. Of course, the Government have made sure that landlords will pay a heavy price if they rent out properties to people who are not entitled to rent them. I can see the same problem for employers. When you take somebody on, you need to check and confirm that they have the right to work here. Again, I can see an employer being worried that they could take somebody on and then find that they themselves have potentially committed an offence. There are real issues here.

The problem is that it probably will not happen next week but in 10 or 20 years when we are no longer involved, all the officials have moved on and God knows where the records are. That is part of the problem. If I was in this situation, I would want to have some physical proof that I could keep safe and that, if necessary, would protect me in future if my status were at some point questioned. The noble Lord, Lord Oates, said we have to understand the stress and anxiety of people not having that physical document that they can put away, knowing they have this proof. With the Windrush scandal we have already seen cases of documents not being around and people who have lived in this country for many years, often coming here as children, really struggling to provide proof. I also support the call for it to be free of charge.

The noble Baroness, Lady Bull, made a powerful argument about people who flee abusive relationships, which are all about control. If you do not have control of yourself—being able to rent that property or to get another job—you are almost forced to get back in contact with the person you have already left, fearing for your safety. It cannot be right that the Government are creating conditions that cause those problems for people.

Amendment 51, in my name and those of my noble friend Lord Rosser and the noble Baroness, Lady Bennett of Manor Castle, seeks to do the same thing with slightly different wording. It says “must make provision”, whereas the amendment from the noble Lord, Lord Oates, says proof must be available on request, but it is basically the same issue.

While sitting here, I was thinking about some of the things I do. I do not know whether other noble Lords have ever done a citizenship ceremony. It is very interesting. I have done hundreds of these ceremonies and spoken to hundreds of people who have been given citizenship. What happens is that you go into the council chamber in Lewisham Town Hall, I walk in, and then the official—normally one of the registration officers—explains carefully to the new citizens what it means to be a British citizen. They then have to swear or affirm an oath and we sing the national anthem. The final part of it is that they walk up and I hand them a certificate signed by the Home Secretary. I have handed them out signed by Theresa May, Amber Rudd and Sajid Javid. The official tells them that this is a really important document and says, “Before you leave, please check that your name and those of your children are correct. It’s your right to be a British citizen”. Then we have our photograph taken. There are hundreds of photographs all over Lewisham of me handing out certificates to new citizens.

We have this situation in which if you are a British citizen you get a certificate, but if you have settled status you cannot have one. That is utterly ridiculous. I hope the Minister will see how nonsensical that is, go away and deal with this and come back on Report.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank you all, including the noble Lord, Lord Kennedy, who made a rousing speech, but I fear we will go over old ground here. However, I thank the noble Lords, Lord Oates and Lord Rosser, for providing the House with the chance to discuss the amendments on physical documents. I do not think they are necessary. I would like to reassure noble Lords that we already provide people who are granted settled or pre-settled status with a formal written notification of their leave. It is sent in the form of a letter, by post, or a PDF, by email, and sets out their immigration status in the UK. They can retain the letter, or print it, or electronically store the PDF and keep it as confirmation of their status for their own records and use it if they wish when contacting the Home Office about their status. I must say, it is not proof; it is confirmation. This should reassure individuals about their status when dealing with the Home Office in the future, but it should not be necessary because they will always have online access to information about their status, stored electronically by the Home Office.

Other countries, including Australia, as the noble Lady, Lady Hamwee, mentioned, issue physical documents in the form of biometric cards as they can otherwise be lost, stolen or tampered with.

On the point raised by the noble Baroness, Lady Bennett, about how the EU settlement application works, I had a session on this with noble Lords and I am happy to share that presentation with her. We are developing an immigration system whereby all migrants can demonstrate their immigration status via an online service, which they can access securely via the view and prove service on GOV.UK. It is accessible to them at any time and it allows them to share relevant information with third parties who need to check their status, such as employers and landlords, as noble Lords have mentioned. If necessary, EEA citizens can show third parties their written confirmation of status, so the person checking is made aware that there is an online service. Where there is a checked status, written confirmation must not be accepted by third parties as evidence of immigration status.

We are also developing services to make the relevant immigration status information available automatically through system-to-system checks at the point at which the person seeks access to public services such as healthcare and benefits. This will reduce the number of occasions when individuals need to prove their rights or need a document to do so.

In moving to a digital system, we recognise there are people who cannot access online services and will need additional support. The noble Lord, Lord Greaves, cited cases and others were cited, such as the Roma community or indeed another category of people altogether. The noble Baroness, Lady Bull, spoke about those in coercive or abusive relationships. We are committed to delivering a service that reflects the diverse needs of all users. Help on how to use the online services and share status information is available through our contact centre, and we provide a free assisted digital service where applicants to the EUSS or others making online applications in the UK are unable to get support. The assistance is tailored to an individual’s circumstances.

We provide a telephone helpline for landlords and employers in order to provide guidance on conducting right-to-work and right-to-rent checks. We are exploring additional support for those using our online services to ensure they can demonstrate their rights in the UK.

We will require EEA citizens to use their online evidence of immigration status only after 30 June 2021. We have designed the service to be easy to use, but guidance will be available should it be required. It will include guidance on those who care for vulnerable users and on use by a range of stakeholders working with local groups, including vulnerable groups.

The full package of measures that I have described will be available before EEA passports and national identity cards cease to be valid for proving rights in the UK after 30 June next year. In answer to the point on two systems that was made by the noble Lords, Lord Oates and Lord Paddick, we will replace physical and paper-based evidence of status with digital products for all migrants, starting with EEA citizens, in the next few years. These changes are being introduced gradually in a way that builds confidence for users and provides opportunities for adaptations and improvements informed by user feedback. At the same time, we are developing an extensive package of communications to ensure that everyone, from individuals to employers, landlords and other third parties, is fully aware of the move to digital and how online immigration status can be accessed and used.

Right-to-rent and right-to-work checks are not new. I have double-checked and right-to-work checks have been law since 2007. That is 13 years since they were introduced—14 by the time that online evidence of immigration is mandatory in June 2021—albeit they will now be in an online format. This move to become digital is not new. The UK public has learned to access many government services online, from applying for a UK passport to paying their vehicle excise duty. In July this year, 87% of vehicle tax renewals were made using the digital service, dispensing with the need for a physical disc on your car. The feedback from users indicates high satisfaction. UK driving licence holders are able to share online with third parties, such as car rental companies, whether they have driving-related convictions.

Employers are able to conduct right-to-work checks on foreign national employees remotely, without the need for physical documents to be handed over. Holders of biometric residence cards or biometric residence permits have already been able to prove their right to work to an employer by using an online service, instead of using their card, since January last year—the first step in our journey to make evidence of immigration status accessible online. The “view and prove” service is popular with users. In the last reporting period, from April to June this year, there have been over 400,000 views on the service by migrants. In the same period, there have been over 100,000 views of EU settlement status by organisations checking status. The average user satisfaction is very high, at a positive 88%.

It is hard to imagine how a country would have coped during Covid without the digital technologies which have enabled so many of us to work from home, shop and obtain government services remotely. We have seen a sharp uptake in digital provision by service providers and digital adaptation by the general public. Most visa applications are made online. Providing immigration status information online has enabled us to simplify and standardise the system of checks for employers, by providing information about an individual’s status in a format that is easy to understand and accessible to all users, removing the need for employers and others to interpret myriad physical documents, complex legal terminology or confusing abbreviations.

The EU settlement scheme has been at the forefront of the transition from biometric residence cards to secure online access to immigration status information. The online system is operating in parallel with existing document checks of passports or identity documents. This approach is helping employers, landlords and EEA citizens to transition from using physical documents to online services. Ultimately, all migrants coming to the UK, whether from other European countries or the rest of the world, will have access to online services which will enable them to show their immigration status without needing a document or biometric card.

On resilience, digital services are designed to be highly resilient, with rigorous testing to build assurance before services are seen by a user. Multiple security controls are in place to protect against cyberattacks and we have employed third-party organisations to conduct vulnerability and penetration testing to provide additional assurance that our online services cannot be compromised.

I shall not detain the House much further, other than to say that we will always send a formal written notification of the individual’s immigration status by email, in the form of a printable PDF document, or by post where a paper application has been made. As set out previously, I can assure noble Lords that we are committed to delivering an online service that reflects the diverse needs of all users. We recognise there are vulnerable people, such as the victim of domestic abuse and coercive control that the noble Baroness, Lady Bull, talked about or others in the Roma community that the noble Lord, Lord Alton, talked about, who may need additional support to use our online service to share their status.

Finally, on the policy equality statement that the noble Lord, Lord Oates, asked about—I think the noble Baroness, Lady Lister, mentioned it as well—I am very sorry to say that I cannot add to other Ministers’ comments. The statement will be published shortly as outlined by them.

I hope that with those comments the noble Lord will feel happy to withdraw the amendment.

Baroness Morris of Bolton Portrait The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
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My Lords, I have received requests to speak after the Minister from the noble Lords, Lord Paddick and Lord Kennedy of Southwark.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I thank the Minister for her explanation. She started and ended by talking about the letter that is sent to people about their status, which can be saved on their computer as a PDF. The Government have said, time and again, that, as proof of the recipient’s immigration status, these letters are not worth the paper they are printed on. It is disingenuous of the Minister to pray in aid these letters in answer to these amendments.

I know the Minister is going to write to me regarding previous amendments. Perhaps she could add whether or not, at any stage in the future, the Government intend to provide digital proof that an EEA or Swiss national who is on a six-month visa-free visit to the UK is here legally.

Finally, the Minister talked about vehicle excise licences going digital and said that no physical disc is now necessary. Can she tell the House what the increase in evasion of vehicle excise licences has been as a result of going completely digital?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I think the noble Lord knows very well that I cannot give him that figure. However, I take his point that the letter is a confirmation and not a proof—I think I said that in my remarks. The digital proof is a very good way of sharing specific information with people such as employers or landlords as proof of status, but I conclude that we will not agree on this one.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, I do not think that anyone in this debate spoke out against the digital rollout or suggested that it was somehow new to require people to provide evidence of their right to rent a property or to work. What is new is that European citizens living here will be required to provide that evidence very shortly.

The Minister did not address at all my points about the staggering inconsistency of the Government. They issue certificates to all British citizens at citizenship ceremonies —hard, paper-copy certificates signed by the Home Secretary. Everyone has them handed out; I have handed out many. At the same time, the same Government and department will not issue any paper certificates to people with settled or pre-settled status. Will the Minister please go away and find out why the Government are acting so inconsistently? If she could write to me I would be happy to receive that letter, but it is ludicrous that there are those two things from the same department at the same time.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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Yes, I would be happy to do that.

Lord Oates Portrait Lord Oates (LD)
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My Lords, I am grateful to all noble Lords who have taken part in this debate. They all made important contributions and have provided consistent support on these issues over the extended period we have been discussing them. In view of the time, I will not go through all the contributions but I want to thank my noble colleague, if I may call him that, the noble Lord, Lord Polak, for his support and for the clear and eloquent way in which he spoke in support of the amendment. As he said, this is not a partisan issue; in reality, it is a practical and simple measure.

When I spoke earlier, I asked the Minister to consider putting aside her brief and walking in the shoes of the people who will have to work the system. I am afraid that she absolutely did not do that, and I am deeply disappointed. She said of physical documents, “I do not think they are necessary”. With respect, what matters is not what the Minister thinks but what the people who will have to live under this system think. They think they are necessary, and I do not blame them, because if I were a permanent resident in another country, I would want physical proof of my status. I suspect that many people in the Government would too. On previous groups, the Minister spoke at great length about discrimination between EEA citizens and non-EEA citizens, but that is exactly what the government scheme proposes and would do. She talked about how physical documents could be lost, stolen or tampered with. Then why on earth are the Government issuing such documents under the settled status scheme to non-EEA citizens who gain their rights through family relationships?

I asked the Minister what had changed since her own Government’s assessment of the digital right-to-work scheme found, as I said, that:

“There is a clearly identified user need for the physical card … and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”

She did not enlighten the House. We heard instead much about the Home Office’s apparent plans to digitise the whole system. My noble friend Lord Paddick asked the Minister whether the Government intend, for example, to abolish the physical driving licence. I do not think he got an answer but I wondered about the status of the famous blue passport, which has caused such excitement in some quarters recently. Do the Government really intend to abolish it in favour of a digital status? If so, I would not fancy being the Minister who has to explain that to the Daily Mail.

However, there is a really serious point here. The Minister read out a brief that addresses none of the important questions that were raised. She referred to the important point made by the noble Baroness, Lady Bull, about those who may be fleeing domestic abuse and whose partner may have been the person who controlled the email address and applied for the settled status scheme. I do not know whether the noble Baroness, Lady Bull, got an answer but I did not hear what it was.

When Michael Gove appeared before the European Union Select Committee of this House in May, in answer to a question from the noble and learned Lord, Lord Morris of Aberavon, about documentary proof for EU citizens in the UK, he told us that

“the moral and social case for it remains as strong as ever, and I shall reinforce that argument.”

I hope the Government will think about those comments by the Chancellor of the Duchy of Lancaster. To give them time to do so, I beg leave to withdraw my amendment.

Amendment 49 withdrawn.
Amendments 50 to 52 not moved.
Baroness Morris of Bolton Portrait The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
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My Lords, we now come to the group beginning with Amendment 53. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division should make this clear in debate.

Amendment 53

Moved by
53: After Clause 4, insert the following new Clause—
“Exemption from no recourse to public funds
(1) This section applies during the current Covid-19 pandemic, as defined by the World Health Organisation on 11 March 2020.(2) Section 3(1)(c)(i) and (ii) of the Immigration Act 1971 cannot be applied to persons who have lost rights because of section 1 of and Schedule 1 to this Act.(3) This section may not be disapplied unless a resolution is passed by each House of Parliament.”Member’s explanatory statement
This new Clause would delay application of No Recourse to Public Funds rules during the current pandemic and until such time as Parliament decides.
Lord Rosser Portrait Lord Rosser (Lab)
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My Lords, many non-UK nationals with leave to remain in the UK, such as people on work or family visas, are subject to the no recourse to public funds condition. This prohibits them from claiming a large number of benefits. The condition also means that some British children whose parents have NRPF, due to their immigration status, are effectively unable to access many benefits, as they are unable to make a claim in their own right.

Most non-EEA national migrants with temporary permission to remain in the UK have no recourse to public funds. To keep within the scope of this Bill, Amendment 53 would prevent no recourse to public funds being applied to EEA and Swiss nationals; that is, those who lose rights under Part 1 of the Bill during the current pandemic and then until such a time as Parliament decides. Before I proceed any further, I ask the Minister, when he responds, to say whether an EEA or Swiss national with pre-settled status, rather than settled status, would be subject to NRPF.

Since April, we have been calling for no recourse to public funds to be suspended for the duration of the coronavirus crisis. We asked the Government to lift NRPF as a condition on a person’s migration status, in order to ensure that nobody was left behind in the public health effort undertaken in the fight against coronavirus.

Nearly six months since the national lockdown was announced, towards the end of March, local lockdowns are still required and today sees a retightening in national restrictions on social gatherings. This is a reminder that the pandemic has not gone away. Indeed, the number of new cases of the virus has risen sharply in the last week or so, and the full extent of the economic impact is probably still to come. What the coming winter has in store for us pandemic-wise is unknown, but there appears to be a general consensus, including in government, that the situation is more likely to deteriorate than to improve.

The Migration Observatory estimates that, at the end of last year, more than 175,000 children lived in families affected by no recourse to public funds, and that more than 1.3 million people had held valid visas that would usually have no recourse to public funds conditions attached to them.

The Children’s Society has said that thousands are facing “extreme poverty” during the pandemic, due to their families having no recourse to public funds. A significant number of the parents the Children’s Society is supporting are front-line key workers in the NHS and social care sectors.

Citizens Advice has reported that the number of people seeking advice on NRPF has doubled during the pandemic, and that it has been approached by people facing an

“impossible choice of returning to work while ill, shielding, or living with someone who is shielding or losing their income.”

In June, the Home Affairs and Work and Pensions Select Committees recommended that the Government should “immediately suspend NRPF” for the duration of the pandemic on public health grounds. That is very similar to what we are seeking as far as Amendment 53 is concerned .The Work and Pensions Committee reported:

“As a result of the no recourse to public funds condition, many hardworking and law-abiding people are being left without a social safety net and at risk of destitution and homelessness.”

In saying that, the Select Committee was also pointing out that NRPF was hitting people who are working legally in the UK and raising their families here, with many being key workers or front-line medical staff.

In response to a question from the chair of the Work and Pensions Select Committee on 27 May, the Prime Minister said:

“Clearly people who have worked hard for this country, who live and work here, should have support of one kind or another … I will find out how many there are in that position and we will see what we can do to help.”

The silence since then suggests that little or nothing has been done, or will be done, to help.

In June, when asked by MPs, including Select Committee chairs, for an official estimate of how many people are affected by “no recourse to public funds”, the Home Secretary did not know. The Home Office does not hold these figures, which is perhaps a reflection of the importance, or lack of it, that the Home Office attaches to people with NRPF during the current pandemic in particular. Perhaps the Government will provide us with the figures in their response.

The Government are not unaware of the risk of destitution that NRPF is posing, particularly in the current situation. In March, the Local Government Minister, Luke Hall MP, wrote to local authorities calling on them to

“utilise alternative powers and funding to assist those with no recourse to public funds who require shelter and other forms of support due to the Covid-19 pandemic”.

All too typically, though, this was not backed up with any clear instructions, guidance or funding, even though it was telling local authorities that people with no recourse to public funds should now have such recourse. The result has been inconsistency in application and authorities unable to do as asked, due to the effects of austerity and cuts in government funding, leading to a patchy postcode lottery.

As the Government will no doubt say, it is possible for families to apply for their NRPF conditions to be lifted when, due to a change in their circumstances, they are facing destitution—that is, assuming they know that it is possible, and how, and to whom, to apply. I understand that, in the first quarter of 2020, 843 applications were received for this relief; in the second quarter, 5,565 were received. This shows, on the Government’s own figures, that thousands of people are now in need of relief from no recourse to public funds. Will the Government, in response, either confirm that they do not know the answer or say what percentage of those on NRPF 5,565 represents, in respect of how many of the 5,565 applications the NRPF conditions were lifted, and whether they were lifted fully?

Support groups report that the process to have no recourse to public funds lifted is lengthy, complex, not available to all, and includes too high a burden of proof. Indeed, the Home Affairs Select Committee has recommended that the evidential burden for a change in circumstances due to the pandemic should be reduced.

Until now, the Government’s answer on this issue has been that those on NRPF are able to access the Coronavirus Job Retention Scheme and the Self-employment Income Support Scheme. Of course, that assumes that those on NRPF are aware of this, and that they are eligible to benefit from the schemes. Could the Government say how many of those on NRPF have accessed the Coronavirus Job Retention Scheme and the Self-employment Income Support Scheme, and what has been the average payment made?
Leaving that aside, the Chancellor is shortly and prematurely closing these schemes, to the detriment of working people and whole sectors across our economy. What support will those with no recourse to public funds have access to then, particularly during this pandemic? The straightforward solution is surely for the Government to accept the terms of Amendment 53, and not apply no recourse to public funds during the pandemic and then until such a time as Parliament decides. I beg to move.
Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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My Lords, I rise to speak in support of Amendment 53, to which I have added my name, which was moved so ably by my noble friend Lord Rosser. I am sure that I also support Amendment 73, but that has not been explained yet.

The recent report of the Food, Poverty, Health and Environment Committee identified those with no recourse to public funds as particularly vulnerable to food poverty and insecurity. The impact on children has to be of particular concern.

A pre-Covid study of children and food by the Child Poverty Action Group—of which I am honorary president—found that children in families subject to the rule were among the most deprived in the study. Both children and their parents were going hungry, and denial of entitlement to free school meals was a particular problem. One child said of his hunger that

“it was like I got stabbed with a knife and it’s still there.”

Another explained:

“Sometimes you don’t have enough energy, you cannot cope in the classroom so you have to, like, try and rest a bit. You just put your head on the table and you end up falling asleep in the classroom and you get in trouble for it.”

The partial concession, which allowed some children in families with NRPF to claim free school meal support this summer, was very welcome as far as it went. But what possible justification could there be for withdrawing it now that these children are back at school, with the pandemic very much still with us? A letter from 60 organisations to the Education Secretary last month put it very well; it said that

“the Covid-19 pandemic simply exposed the precariousness of daily life for thousands of NRPF families, where the absence of a safety net leaves them only one crisis away from catastrophe. No matter where the next few months lead us, this basic fact will not change. Meanwhile, the effects of this crisis will continue to be felt for years to come. While much effort is being made to ensure children do not fall behind, without access to free school meals many children in NRPF families will face having to make up for half a year of lost learning on empty stomachs, at a time when they may still be struggling to cope with the mental and emotional aftershocks of lockdown.”

As we have heard, the Government have devolved to local authorities much of the responsibility for this extremely vulnerable group, without willing them the means to provide the support needed and without providing clear enough guidance during the pandemic. In particular, as the Work and Pensions Committee noted, there is lack of clarity on whether local welfare assistance funds, which have been boosted during the pandemic, count as public funds for these purposes. Could the Minister provide a definitive clarification on this?

Another concern, as we have heard, is the lack of official data. There has been an exchange between the chair of the Work and Pensions Committee, the UK Statistics Authority and the Home Office on the issue. While it is welcome that the Home Office has now published data on the change of condition applications, this is only a rough indicator of the extent of hardship caused and the data need to be disaggregated. Could the Minister undertake to see what can be done to improve the provision of data, possibly in consultation with the Children’s Society, which has done a lot of work on this? Without it, how can the Home Office assess the impact of the policy?

The amendments raise important social policy issues, but more fundamentally they raise crucial human rights issues. As Project 17 and Sustain point out, the UK Government have signed up to a number of international human rights standards that uphold the right to food, including the UN Convention on the Rights of the Child. I agree with them that, to uphold these obligations,

“our Government should ensure that all children, regardless of immigration status or any other characteristic, are able to access food in a dignified way and this should include universal entitlement to healthy free school meals.”

Of course the “no recourse” rule does not only affect access to food—for example, there are serious concerns about its impact on survivors of domestic abuse, which we will be raising when the Domestic Abuse Bill is with us—but the right to food is crucial to both healthy development and education.

Amendment 53 is a very modest amendment—indeed, some might say too modest—but it could make a real difference to a significant number of extremely vulnerable people, including children and women subject to domestic abuse. The Work and Pensions Committee suggested that the total number exceeds a million, of whom at least 100,000 are children. Moreover, as the committee underlined and my noble friend has already pointed out, there is a very strong case on public health grounds for the immediate suspension of the rule at least for the duration of the outbreak.

I hope that the Minister will be able to reassure us that the Government are giving serious consideration to the recommendations of the Work and Pensions Committee and the Home Affairs Committee, and will not dismiss this amendment in the frankly complacent way that the Immigration Minister did in the Commons, with reference to “a range of safeguards” that evidence from a range of organisations indicates simply are not sufficient to prevent severe hardship and destitution.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP) [V]
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My Lords, I support Amendment 53 in the name of the noble Lord, Lord Rosser, which is also signed by the noble Lord, Lord Kennedy of Southwark, and the noble Baroness, Lady Lister of Burtersett, and Amendment 73 in my own name. I thank her for offering her support before I had even spoken to it; that is much appreciated.

To be speaking on these two amendments in what is Universal Basic Income Week around the globe has both an irony and an extra importance. Universal basic income would be an unconditional payment going to everyone accepted as a member of our society. No recourse to public funds, together with universal credit, is the extreme other view: conditionality that can deny people the most basic support that they need and human rights, such as the right to food, which the noble Baroness, Lady Lister, just referred to.

The noble Lord, Lord Rosser, cited what I believe are figures from Citizens Advice showing that 1.4 million people are on visas, or have received visas, that may leave them having no recourse to public funds and therefore, in the age of Covid-19, intensely vulnerable. This is not just a human rights issue; it is an issue of public health. If you face your children going hungry and you have Covid symptoms but you could go to work, what do you do? That is a very difficult situation and one that potentially puts everyone’s health at risk. As other noble Lords have said, this is a very modest measure to apply in the special circumstances of Covid-19 when so many other things in our society have had to adjust and flex.

However, I want to speak chiefly to Amendment 73, which, as I alluded to earlier, is part of a package with Amendments 71 and 72. Together they create a situation where the end of freedom of movement could not be brought in until people who were newly affected by the hostile environment were freed from that environment. As I said previously, this is something that Liberty has done a great deal of work on, and I appreciate its support on this matter.

In the previous debates, the noble Baroness, Lady Bull, spoke about the situation where people—most likely women—trapped in abusive relationships are in a very difficult situation if they cannot access evidence of their status. Of course, this is also true if they have no recourse to public funds and, over many years, I have spoken to many people—particularly workers in refuges—who have been left greatly distressed by their inability to help people in the most desperate need because they are in a situation where they have no recourse to public funds. People make choices to remain in abusive relationships because their other option is hunger and homelessness—a situation where they are also highly vulnerable to abuse.

So we need to think about what kind of society the UK is. I believe that we should be a society with a universal basic income; one where everyone has access to the support that they need. However, in the meantime, Amendment 73 would spare people being newly affected by the hostile environment of “no recourse to public funds” and spare them the impacts of this.

I am well aware that, with the Minister, we are on something of a merry-go-round and back to saying that this is discriminatory. Of course, I would absolutely welcome it and be delighted if this was to be applied to everybody affected by “no recourse to public funds”. However, in the meantime, I have put down the amendment that I have been told is what is allowed within the scope of the Bill. “No recourse to public funds” is now a dreadful sentence being inflicted on innocent people through no fault of their own. That is true under Covid and all the time, and I suggest that this is something we cannot allow to continue.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, both of these amendments seek to do something that I think very much aims to right the injustice of a million people—100,000 children, as the noble Baroness, Lady Lister of Burtersett, was saying—having no recourse to public funds. For many of them, in a time of Covid, that means no food and potentially no heating, which is a danger to the most vulnerable in terms of, “Are they going to starve, are they able to get food that they can then cook from a food bank?” Because one of the real difficulties that you hear so often from people running food banks is that people say, “Please can I have some food that does not need to be cooked because I cannot actually afford to cook anything”. So we are talking about people who are going to be very vulnerable.

The hour is late, and I do not wish to detain the House for very long, but we have already heard that this is about social policy, public health and human rights. What sort of a country are we if we allow children to go to school who cannot be fed and say, “Well, I’m terribly sorry, you can’t have free school meals because your parent has no recourse to public funds”? Whatever choices the parents have made—whether they could or could not go home to another country—the child under 18 has no such say; their rights need to be taken into consideration.

These amendments are limited. We are talking about a time of global pandemic. The amendments are not asking for people to be taken out of “no recourse to public funds” in perpetuity, but the current context is that the economy is in a very, very difficult situation and many people who thought they had a job—perhaps on an hourly basis or possibly a zero-hours contract—may find there are no hours and they may not have been furloughed. Can the Government not find it in their heart to deal with these people fairly? It may be a question of immigration law saying that, normally, it is not right for these people to have recourse to public funds—whether that is right or not is for a wider debate—but, in the narrow context of EU nationals who find themselves still in the UK and unable to access public funds in the current context of Covid, please can the Government think about acting?

Lord Judd Portrait Lord Judd (Lab) [V]
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My Lords, I warmly congratulate my noble friend Lord Rosser and the other signatories to this vital amendment. The new clause they have described would delay application of “no recourse to public funds” rules during the current pandemic and until such time as Parliament decides. That is a high purpose.

While I enthusiastically support the amendment, as Amnesty and other non-governmental organisations working on the front line remind us, there is a need to look at the importance of providing access to welfare support for all people in the group with which we are currently concerned during the current and future pandemics to ensure that people lawfully in the UK whom it is plainly anticipated will remain here, such as people permitted to stay by reason of their private life and people who have joined family for purposes of settling, are not left destitute.

Of course, while Amendment 73 provides an opportunity to examine the wider implications, I stress again that the NGOs are right to insist that we need to look at all those who are put in jeopardy by circumstances out of their control such as the pandemic, and measures taken in response to it, as well as illness, accident, redundancy and changes to immigration rules, or things that people have been given no or insufficient opportunity to plan or prepare for. This is an utterly humane and sensible amendment and I do hope it finds favour with the Government.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, Covid has proved a desperate situation in so many different ways. One of the telling impacts is on individuals who have no recourse to public funds, not just for them as individuals but, as other noble Lords have said, in the context of public health, if they have to go to work, or to collect food from a food bank or other donors. The position is diametrically opposed to the UBI universal benefit, to which reference has been made. There is a lot to be said for that.

On Amendment 73, it occurred to me to ask what the policy aim is, because it reads as a hostile environment measure. What is the purpose of applying the no recourse rule to people whose future clearly lies in the UK? It is hard not to come to the conclusion that it is about starving them out.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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My Lords, I thank all noble Lords who spoke on this group of amendments concerning exemption from no recourse to public funds. I will reply to Amendments 53 and 73 together because they are quite similar in nature. I recognise the strength of feeling on this issue, particularly in the light of the challenges that many people face as a result of the current pandemic, as noble Lords have talked about. I genuinely welcome noble Lords’ desire to ensure that those most in need, particularly children, are supported at this time but I am afraid that I cannot accept these amendments. I will go through the reasons why.

As noble Lords will know, most migrants visiting, studying, working or joining family in the UK are subject to a no recourse to public funds condition until they have obtained indefinite leave to remain. Individuals here without leave are also subject to the condition. The noble Baroness, Lady Lister, and the noble Lord, Lord Rosser, asked for numbers. I am afraid that these numbers are not part of the published statistics, but I know that Home Office analysts are looking at the data to determine what figures could be reduced.

The noble Baroness also talked about the provision of data. In his letter to the UK Statistics Authority, the Home Office chief statistician committed

“to further investigate the administrative data we hold to assess whether it can provide any meaningful information on the issue of hardship specifically”.

However, given the fluid nature of migration, it is quite difficult to provide an accurate figure of how many people are subject to NRPF, but we will do our best to get some meaningful figures.

The policy is based on the well-established principle that migrants coming to the UK should be able to maintain and support themselves and their families without posing a burden to the welfare system. It is designed to assure the public that controlled immigration brings real benefits to the UK and does not lead to excessive demands on the UK’s finite resources. In exempting a significant cohort from the no recourse to public funds condition, even for a limited time, the new clause proposed by Amendment 53 would undermine this policy and increase the pressure on those resources. Depending on how far into 2021 and beyond this new clause continued to apply, it may also act as an incentive for EEA citizens who are not covered by the withdrawal agreements or other immigration leave to attempt to come to the UK to access benefits and services to which they would not otherwise be entitled.

Nevertheless, the Government absolutely recognise the importance of supporting those in genuine need. Existing exemptions and safeguards are in place to ensure that lawful migrants who are destitute or at imminent risk of destitution can receive support, including the option to apply to have the no recourse to public funds condition lifted. During the pandemic, as noble Lords will know, the Government have gone further by introducing measures such as the Coronavirus Job Retention Scheme—the noble Baroness, Lady Lister, referred to this—and the self-employed income support scheme to support people, including those with no recourse to public funds.

More than £4.3 billion has been allocated to local authorities in England to support them in delivering their services, including helping the most vulnerable, with further funding for the devolved Administrations. As the noble Baroness, Lady Lister, alluded to, the Government have also temporarily extended the eligibility criteria for free school meals to support families with NRPF, in recognition of the difficulties that they may be facing during these unique circumstances.

Those individuals with leave under the family and human rights routes can apply to have the condition lifted through a change of conditions application. The Home Office is prioritising and dealing with these applications compassionately, as shown by the 89% of 5,665 applications accepted in the second quarter of 2020, due to exceptional changes that some individuals faced in their financial circumstances. We cannot say what percentage of these with NRPF the 5,665 represents.

I turn to Amendment 73, which would extend the exemption beyond the current pandemic. Under our new global immigration system, EEA citizens coming to the UK will be subject to the same requirements as non-EEA citizens, including the same conditions restricting access to public funds. The effect of this proposed new clause would be to maintain an immigration system that provides preferential treatment regarding access to benefits and services to EEA citizens over most non-EEA citizens. This is not the Government’s intention, creating a system that is not fair and does not reflect the will of the British people, demonstrated by the EU referendum and, more recently, the general election.

To answer the question of the noble Lord, Lord Rosser, I can say that those EEA citizens who are already resident here, or who are resident by the end of the transition period, can apply to the EU settlement scheme. This allows them to access benefits and services in the UK on at least the same basis as they were before being granted that status, so EEA and Swiss nationals with pre-settled status are not subject to NRPF. That significantly reduces the need for these amendments.

I understand the need to protect the vulnerable, especially during this time, and particularly in cases involving families or children, but there are already measures in place to provide this support. These proposed new clauses would also undermine the intention to create a global unified immigration system which treats EEA and non-EEA citizens equally. For the reasons I have set out, I hope that noble Lords will be happy not to press their amendments.

Lord Rosser Portrait Lord Rosser (Lab)
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I am sure that the Minister will not be surprised to hear me withdraw the amendment, but there are one or two comments I would like to make in reply. The first is to thank her for responding to the question I asked at the beginning. That answer confirmed that an EEA or Swiss national with pre-settled status would be able to apply for benefits and would not be restricted in being covered by NRPF—at least that is what I took from her response.

The Minister has confirmed—I am sure she will correct me if I am being unfair—that the Home Office does not really know how many people are affected by NRPF. At least, if it does know, it is still pondering whether to reveal the figures. On behalf of the Government, she said that, of the 5,665 who had asked for assistance for the NRPF conditions to be lifted, 89% had had that agreed. I do not know from that answer how much they were seeking and how much they actually got. If it was not very much or nowhere near what most people would regard as adequate, 89% would frankly not mean a great deal. It would be helpful if the Minister indicated, either now or subsequently in correspondence, what the average payment was and whether, in making the application, people had indicated how much they needed and the extent to which that need had been fully met.

I will not labour the point because in much of what I said I was not producing new arguments; I was quoting what other organisations have said about the effect that the pandemic is having on families with “no recourse to public funds”. The Children’s Society, Citizens Advice and indeed the Home Affairs Select Committee and Work and Pensions Select Committee have referred to the immediate impact on those affected of “no recourse to public funds” during the pandemic. Basically, they say that action needs to be taken now as far as the pandemic is concerned.

I repeat that only because it was, after all, the Government, through the Local Government Minister, who wrote to local authorities asking them to utilise alternative powers and funding to assist. Therefore, clearly the Government recognised that there was a problem. However, despite what the Government keep saying—it is said across the board—about how much they have given local authorities, we all know that local authorities have suffered badly from austerity and cuts to funding. Just producing a figure and saying that local authorities have received so much is not an indication that local authorities have the money to be able to do what the Government wanted them to do in relation to assisting those on NRPF with additional funding.
What I found a bit depressing—I was going to say “particularly hard to take”, but I do not mean it in that sense—was to hear the response to an amendment which simply seeks to say, “Please do something during the period of the pandemic and until such time as Parliament decides otherwise”, meaning that how long it goes on for is in the hands of Parliament. However, in response to what I would have thought was that fairly limited objective, what I got back from the Government was all about an alleged burden on the immigration system, undermining the policy and encouraging more people to come here.
I ask the Government not to use that argument. The amendment is particularly about the situation during this pandemic, and it is then in the hands of Parliament to decide how long it goes on for. Frankly, with the majority that the Government have, I would not have thought that they would have too much problem in getting their own way once the pandemic ends. This is about a short-term measure to cover the pandemic, and, frankly, I only regret that the Government’s response was to trot out the usual things about wanting uniformity of policy and about it being a burden on the immigration system, undermining policy and encouraging more people to come here. It would not do those things. Admittedly, I do not know how long the pandemic will go on for, but it is a proposal to address a relatively short-term situation being made worse by the pandemic—a situation to which many organisations, including Commons Select Committees, have drawn attention. Something ought to be done to address it.
I have expressed my regrets about the response, but, as I said I would do at the beginning, I beg leave to withdraw the amendment.
Amendment 53 withdrawn.
Lord McNicol of West Kilbride Portrait The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
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We now come to the group beginning with Amendment 54. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division should make that clear at the end of the debate.

Amendment 54

Moved by
54: After Clause 4, insert the following new Clause—
“Immigration health charge: exemption for EEA and Swiss citizens who are healthcare and social workers
(1) The Immigration Act 2014 is amended as follows.(2) After section 38 (immigration health charge) insert—<strong>“38A </strong> Health care workers and social workers from the EEA or Switzerland(1) Any person who would have had the right of free movement before section 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 came into force is exempt from the immigration health charge if that person is—(a) a healthcare worker; or(b) a social care worker.(2) The exemption applies to a person who is a family member or dependant of an EEA or Swiss national who meets the condition in subsection (1)(a) or (b).(3) In this section—(a) “healthcare worker” means a worker who works in a healthcare setting within or outside the NHS who may come into contact with patients, including clinical administration staff and care home staff;(b) “social care worker” means a worker as defined by section 55(2) of the Care Standards Act 2000 (interpretation).””Member’s explanatory statement
This new Clause would ensure that EEA and Swiss nationals coming to the UK to work as a healthcare or social care worker would be exempt from the Immigration Health Charge.
Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, Amendment 54, in my name and that of my noble friend Lord Rosser, seeks to ensure that EEA and Swiss nationals coming to the UK to work as health or social care workers, plus their family dependants, will be exempt from the immigration health charge.

One of the worst things about the extreme ends of the Brexit debate has been how difference has been whipped up and used as a weapon—not by anyone here, but on social media and elsewhere. There is nothing about difference to be frightened of; it is an accident of birth.

At the height of the pandemic, when we all clapped the health workers every week, I remember seeing pictures of healthcare professionals standing together in their uniforms and holding up pieces of paper on which they had written which countries they had come from.

It was heartening and humbling to see the different parts of the world that people working for our NHS had come from. Huge numbers had come from Europe to do skilled professional jobs and make a life for themselves here. However, we should ask ourselves why they thought it necessary to hold up pieces of paper with the country of their birth on, and not just be standing there as health professionals. I suggest that the tone of some of the debate around Brexit is the reason they felt they had to point out that they were from other parts of the world. That is regrettable and shameful.

Before anyone else makes the point, we do need more skilled NHS workers—doctors, nurses, radiographers and other skilled professionals—from the UK population. I am not against that. I agree that more of our citizens joining these professions would be a very good thing, but it is not going to happen overnight. We should be grateful, be thankful, recognise their professionalism and act accordingly by including this exemption for EEA and Swiss nationals coming here to work in these important professions. Equally, Amendment 55, in my name and that of my noble friend Lord Rosser, is in the same vein and seeks to exempt NHS employers from this charge as well.

Amendment 65 in the name of the noble Baroness, Lady Jolly, raises an important issue on which I hope we will get a positive response from the Minister. Charity workers coming here to work voluntary for less than 12 months should not be liable for this charge if they have been given permission to stay here and work in a voluntary capacity. This seems a reasonable request. I look forward to the Minister’s response. I beg to move.

Baroness Jolly Portrait Baroness Jolly (LD)
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My Lords, I am happy to support Amendments 54 and 55 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.

My Amendment 65 is supported by more than 50 not-for-profit and charitable organisations across the UK. Many are household names, with support being led by Camphill Scotland, but the amendment is applicable to a host of other national charities providing services to those with a mental health problem, a learning disability or care needs.

We warmly welcome the Government’s recent announcement that health and social care volunteers from other countries will be exempt from paying the immigration and health surcharge. However, the Government’s Command Paper, focusing on the proposed points-based immigration system, appears to confirm that those wishing to apply to work in the UK as international volunteers, including in health and social care settings, will be liable to pay the international health surcharge. Requiring international volunteers, including those working in health and social care, to pay the health surcharge, is unfair and inequitable, particularly as paid staff from other countries working in health and social care in the UK will be exempt.

This clause is a probing amendment, tabled to seek reassurance from the Government that the recently announced health surcharge exemption for health and social care staff will include international volunteers working in or applying to work in the UK under the current tier 5 visa arrangements. International volunteers from EU and non-EU countries make an enormous contribution to the work of charities, supporting people with learning disabilities and other needs and the work of charities across the UK in health and social care and other settings.

By way of example, there are currently around 215 international volunteers in Camphill communities in Scotland alone, providing services for people with these particular disabilities and other needs. A total of 61 of these volunteers currently rely on a tier 5 visa to do so. These young people have chosen to stay and provide care to UK citizens during the national health emergency. This demonstrates their dedication to, and compassion for, the people whom they support. It would be a terrible blow to the morale of charities across the UK if the Government’s very welcome announcement about the immigration and health surcharge exemption does not extend to international volunteers.

Post Brexit, all international volunteers from EU countries and Switzerland wishing to volunteer in UK charities will require visas, along with international volunteers from other countries outside the EU and Switzerland. Against this background, excluding international volunteers from the immigration health surcharge exemption could deter them from working for charities in the UK in health and social care and in other settings in the future. Post Brexit, all international volunteers from EU countries and Switzerland wishing to volunteer in our charities will require visas, along with international volunteers from other countries outside the EU and Switzerland. Against this background, therefore, excluding international volunteers from the immigration health surcharge exemption could deter volunteers from working in the future. This will impact on the capacity of many charities providing care and support and education to people with learning disabilities and other needs, and also on the capacity of charities across the UK in health and social care in other settings, including youth work and services supporting young people.

Can the Minister tell us whether Scottish, Welsh or English taxpayers will end up having to pay for staff to replace the volunteers who have been caring for many of these individuals? I note the current shortage within the UK of both health and care professionals in England, Scotland, Wales and Northern Ireland. Before the Minister turns this amendment down, I wonder whether he would agree to meet with me and a representative of one of these charities that benefit from volunteer help and are anxious about future funding.

Lord Bishop of Southwark Portrait The Lord Bishop of Southwark
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My Lords, I support Amendment 54 in the names of the noble Lords, Lord Kennedy of Southwark and Lord Rosser. I am persuaded also by Amendments 55 and 65.

Returning to the parable of the good Samaritan, cited earlier by my right reverend friend the Bishop of Durham in relation to another amendment, we find a man who puts aside racial enmity because he is motivated by compassion, while others hurry about their business because to intervene would, at best, complicate their lives and involve their life in the struggling life of another. I had hoped that the pandemic, which continues, and the clarity with which the Prime Minister addressed his own condition and the part played in his recovery by a Portuguese and a New Zealander, might have at last persuaded the Government to review this burden by which we additionally tax migrants beyond what they have already paid.

We are talking about people who pay national insurance and income tax. Yet, for a person from abroad entering employment—for example, in health or social care—with a partner and two children—they must, in addition to extraordinarily high fees for a three-year visa, pay in advance for those years’ surcharge. That is currently £4,800 for four of them. In the projected hike of the surcharge this autumn, this will become £6,564.

How is this affordable? How is this morally justifiable? What country have we become that we think we can burden migrants in this way, yet we expect certain standards of other nations in how they treat people within their borders? I support the amendment.

Baroness Ludford Portrait Baroness Ludford (LD)
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My Lords, previous speakers have forcefully made the case on this question. When you really think about it in the round, it really is quite extraordinary the degree of charges in fees imposed on people by the immigration system. We discussed on earlier occasions the fact that fees on immigration applications for visas are set well above the administrative cost of processing those applications. On top of that, obviously, people pay tax and national insurance. Then we are to impose the health surcharge on top of that, as an additional tax on people who have come here not to be on holiday and swan around but to work and contribute to life in this country. It seems a kick in the teeth that, even if you work in parts of the health or social care system—and I shall come on to that—you have to pay to use the services in the premises that you work in. That seems quite extraordinary, and it might be looked back on as such in future.

The Government have, of course, announced that healthcare staff who qualify for their new NHS visa will be exempted from paying the surcharge, but other healthcare and social care staff will still have to pay up front. People like cleaners and porters will be forced to pay thousands of pounds for the period of their visa. The visa cost is rising in October to £624 and payment has to be made for every year the visa covers, and the right reverend Prelate the Bishop of Southwark itemised that. It could amount to over £6,000, if my memory is correct—I cannot remember the exact figure; it is getting a wee bit late—for a family of four with a three-year visa. That could cause considerable financial hardship on top of visa renewal fees that they are trying to save up for, then having to pay for the immigration health charge. They may also be subject to “no recourse to public funds,” which we discussed in the last group. It is not a double or triple whammy—it is a quadruple whammy, I think.

The amendments in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, are thoroughly justified, as is Amendment 65, which my noble friend Lady Jolly spoke to so eloquently. The contribution of volunteers to the health and social care system is obviously considerable, and it does not seem right to make them pay the immigration health surcharge. I hope the Government will find some compassion in their response this evening.

Lord Parkinson of Whitley Bay Portrait Lord Parkinson of Whitley Bay (Con)
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My Lords, I am grateful to the noble Lords, Lord Rosser and Lord Kennedy of Southwark, for tabling Amendments 54 and 55 and to the noble Baroness, Lady Jolly, for tabling Amendment 65. As noble Lords have noted, in May the Prime Minister asked the Home Office and the Department of Health and Social Care to exempt NHS and care staff from the immigration health charge, because of the exceptional contribution that they make to healthcare in this country. This exemption will apply to relevant applications and, once our new immigration system is in place, will apply regardless of nationality.

Given that broader scope, we feel that Amendment 54 is unnecessary. On the point raised by the noble Baroness, Lady Jolly, on volunteers, the Department of Health and Social Care is developing guidance on who will be eligible to apply for the surcharge reimbursement scheme and will publish that shortly. That involves consultation with the sector, but I would be happy to agree to the meeting that she requested in the meantime to discuss this with the Minister.

I am pleased to say that applicants for the new health and care visa, which was launched on 4 August, are automatically exempt from the charge, in that a draft statutory instrument incorporating this exemption has been laid before Parliament. Those professions eligible to apply for this visa include doctors, nurses and other critical health and care staff. The visa also includes reduced visa fees, and dependent family members are also able to benefit from that. The Department for Health and Social Care is working on a reimbursement scheme for staff in the health and care sector who either do not meet the requirements of the health and care visa or are in the UK on a different visa. More details on that scheme will be published in due course.

We have a fantastic service in our National Health Service. It has been provided by people from all over the world from, as the noble Lord, Lord Kennedy, pointed out, its inception, before we joined what became the EU, and that will be the case long after we leave it. The immigration health surcharge is designed to help support this by ensuring that temporary migrants who come to the UK for more than six months make a fair contribution to the wide range of NHS services available to them. Income from the charge contributes to the long-term sustainability of a health service of which we are all, especially at the moment, justifiably proud. It has raised approximately £1.5 billion in much-needed income for the NHS since its introduction in 2015 to the end of the financial year 2019-20. This income has been shared between the four devolved health administrations in line with the Barnett formula, helping to fund the National Health Service across the UK.

We are introducing a new single immigration system once free movement ends, and our expectation is that people of all nationalities, including those from EEA countries, will pay the surcharge if they are staying for temporary periods of longer than six months, unless an exemption applies. Certain groups of people are exempt from the requirement to pay the surcharge, including those on the health and care visa. Others benefit from a discounted rate. Meanwhile, as I am sure noble Lords will appreciate, the Government are in the process of negotiating reciprocal arrangements with the European Union, and it is important that we do not undermine those negotiations through this Bill.

Amendment 55, in the names of the noble Lords, Lord Rosser and Lord Kennedy, seeks to exclude NHS employers from having to pay the immigration skills charge, where they are recruiting EEA or Swiss citizens. The Migration Advisory Committee has previously supported, in its September 2018 report on the impact of EEA migration in the UK, the continued application of the skills charge without exemptions for particular sectors, alongside salary thresholds as a way to protect against employers using migrant labour to undercut the domestic workforce. The Government stand by this requirement. Immigration must be considered alongside investment in, and development of, the UK’s resident workforce. This is all the more important in the face of any uncertainty caused by the current Covid-19 pandemic.

For the reasons set out, I hope that the noble Lord will feel able to withdraw his amendment tonight.

Lord McNicol of West Kilbride Portrait The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
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I have received no requests to speak after the Minister. I call the noble Lord, Lord Kennedy of Southwark.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, first, my noble friend Lord Rosser has asked me to apologise to the Committee on his behalf, because in a previous debate he did not thank all noble Lords who had spoken or the Minister, in particular. He wanted to put that on record. He meant to do that, and I am happy to correct the record for him.

I thank everybody who has spoken in this debate and the Minister for his response. It is getting late now, so I will not go on, but I thank him for his response and all colleagues who spoke in response. Perhaps we will return to some of these issues on Report. I will certainly look carefully at what the Minister has said, and we may return to it at another stage. I beg leave to withdraw the amendment.

Amendment 54 withdrawn.
Amendment 55 not moved.
House resumed.
House adjourned at 10.54 pm.