Citizens’ Rights (European Affairs Committee Report)
(1 year, 3 months ago)
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The Earl of Kinnoull
That the Grand Committee takes note of the Report from the European Affairs Committee Citizens’ Rights (1st Report, Session 2021-22, HL Paper 46).
The Earl of Kinnoull (CB)
My Lords, I rise to move the Motion standing in my name and will introduce two pieces of work by the European Affairs Committee. Between May and June 2021, the committee conducted an inquiry into the rights of around 6 million EU citizens resident in the UK and around 1.2 million UK citizens resident in various EU countries. We published our report on 23 July 2021 and the Government responded on 19 November. Scheduling pressures meant that, by late 2022, we had still not been able to hold a debate on it. The committee therefore decided to undertake an updating process and contacted all the original witnesses to ask their views. They all responded and, in May 2023, the committee held an additional oral evidence session. It then sent a lengthy follow-up letter to the Government on 25 May 2023 and the Government responded on 2 August.
I pay warm tribute to the staff of the original report—Simon Pook, Dominic Walsh, Tim Mitchell, Sam Lomas and Louise Shewey—as well as to those on the more recent letter, Jarek Wisniewski, Jack Sheldon, Tabitha Brown and Elyssa Shea, with Tim Mitchell and Louise Shewey reprising their original roles. The skill and dedication of all concerned has produced two compelling documents.
At a high level, our July 2021 report applauded the Home Office’s achievement in processing more than 5.4 million settlement scheme applications of the 6 million received by 30 June 2021, the initial deadline for receipt. The report also praised the scheme’s principle of looking for reasons to grant new residence status for EU citizens rather than to refuse it. However, the report detailed various issues still to be resolved in both the settlement scheme and the systems operated by EU member states. Our update work looked at these areas again.
As of 30 June 2023, the settlement scheme had received 7.4 million applications. Thus, 1.4 million applications had been received since the 2021 deadline, showing just how live an issue this remains. It is therefore imperative that matters relating to these rights continue to receive the closest attention, being integral to the overall relationship between the UK and the EU.
Coming to the UK settlement scheme first, I start with the process of moving from pre-settled to settled status. Our original report foresaw the challenges ahead for the millions needing to apply to transfer from pre-settled status to settled status to secure their rights permanently. The committee noted that,
“although the Home Office planned to send individual reminders, the effectiveness of these would rely on holders of pre-settled status keeping their contact details up to date”.
In December 2022, following a judicial review brought by the IMA, the High Court ruled that the design of the settlement scheme was unlawful, particularly with regard to the Government’s approach to those granted pre-settled status.
The committee wrote to the Government in January, and again in our long letter in May, for clarification on the steps being taken to implement the High Court’s decision. The Home Secretary’s response on 2 August noted that the Government are
“working to implement the December 2022 High Court judgment as quickly as possible and in such a way that it will continue to be easy for EU citizens to evidence their WA rights in practice”.
The Home Office had in fact published some further details regarding the settlement scheme on its website a couple of weeks earlier, on 17 July, which was not referred to in the letter of 2 August to the committee. These July details stated that it would take steps to convert automatically
“as many eligible pre-settled status holders as possible to settled status … without them needing to make an application”.
In response to all of this, the IMA said that
“while we broadly welcome the commitment from the Home Office that no-one will lose their pre-settled status for failing to make a second application, we remain concerned about the lack of detail about how the plans will work in practice”.
Thus nine months or so on, there is still a woeful lack of clarity affecting an estimated 2 million people about how the Government intend to implement the High Court judgment of December 2022. Does the Minister accept that? When will the Government provide the vital clarity about how the automatic conversion of pre-settled to settled status will operate in practice?
The Earl of Kinnoull (CB)
Another problem area concerns backlogs and delays in the application of the settlement scheme. Since the 30 June 2021 deadline, there has continued to be a steady flow of fresh applications to the scheme. We are concerned that a backlog has developed in processing these applications and issuing certificates of application. From published data and the Home Secretary’s response, we know that in the period December 2022 to June 2023 the number of applications not concluded fell from an aggregate of 180,000 to an aggregate of 150,000 or so. We also know that between March and June 2023 the monthly number of new applications averaged just over 50,000. Broadly speaking, that would imply a pipeline of three months or so, with difficult cases no doubt taking far longer. Given these figures, can the Minister say by when the Government expect to clear the backlog in processing these applications?
The problem of digital status also persists. The committee and its predecessors have repeatedly and consistently raised concerns regarding the digital-only character of the EU settlement scheme. In our 2021 report, we noted that the absence of a physical document created the risk that many EU citizens, including the elderly and those who are digitally challenged, may struggle to prove their rights. We recommended that the Government offer holders of settled or pre-settled status the additional option of requesting and paying for physical documents, which would complement rather than replace their existing digital status. The evidence that we have considered in our follow-up research suggests that our concerns about this aspect of the design of the EU settlement scheme were well founded.
The quality of the digital system has also become an issue, which I now come to: the database error debacle. In January 2023, it was revealed that the incorrect status had been displayed online for approximately 146,000 people for an extended period. For settlement scheme applicants whose applications to the scheme were refused between June 2021 and April 2022, the online database displayed their application as “pending” instead of “refused” until 18 January 2023.
In her response letter of 2 August, the Home Secretary explained that these individuals received an email or postal notification of the decision when it was made, but that this was not reflected in an applicant’s digital status, which is used by some government departments when making decisions about access to benefits and services. She says that this
“was not due to a database error”,
but rather reflected that
“the digital status system did not have the capability to reflect that an administrative review or appeal was pending”,
and that it was necessary to ensure that such individuals
“continued to have temporary protection of their rights”.
I repeat all this hard to understand justification into Hansard so that others can form a view as I have. Systems that do not have necessary capabilities are by definition not good. Will the Minister say when the Government became aware that the online database reflected incorrect statuses?
The 146,000 concerned all had conflicting government news from two sources and, for at least some, one of the sources was not digital but a letter. There is an inconsistency between the Government’s defence of the digital systems for proof of status and their argument that users should not have relied on the information displayed on the digital system when accessing benefits or healthcare. For those who received a letter, which the Government maintain they should have relied on, this inconsistency is even worse. Can the Minister say why, given that the Government acknowledge that this situation arose out of system design problems and that it went on unstemmed for so long, the Secretary of State’s full powers of discretion to waive benefit debts has not been used, including in respect of universal credit?
Our 2021 report identified a mixed picture of how the rights of UK citizens were being upheld in EU member states. The evidence that we received in the follow-up indicates that this assessment still holds true. Although residence schemes appear to be operating relatively smoothly in the majority of EU member states, we have been aware of significant problems in others.
In her response letter, the Home Secretary informed the committee about
“regular discussions with the Commission … to raise and resolve issues”.
I welcome the Government’s engagement with the Commission on these matters and urge them to continue to raise such issues as they arise, including in relation to processes for upgrading to permanent residence. The key point is that there remain plenty of individual cases to be resolved. We are, however, very concerned to hear that resources to support UK citizens in the EU on citizens’ rights issues have been scaled back substantially since we conducted our 2021 inquiry. Several stakeholders were critical of the Government’s decision to close the UK nationals support fund, which provided funding to non-governmental organisations in some EU member states to support residence applications from UK citizens. Here, a little money has gone a long way in the past. Will the Minister provide an update on the resources available to UK embassies in EU member states to support UK citizens facing citizens’ rights issues? What government funding is currently available to non-governmental bodies that support EU-based UK nationals on citizens’ rights issues?
I have spoken for a long time and touched on only some of the key issues from this important work. I very much look forward to the debate ahead. I beg to move.
Baroness Anelay of St Johns (Con)
My Lords, I congratulate the noble Earl, Lord Kinnoull, on his opening speech and on his outstanding work as chair not only of the European Affairs Committee but of the EU Committee before that. I also thank the committee staff for their work drafting the 2021 report and assisting the committee in all its follow-up work, to which the noble Earl referred. We are also fortunate that the noble Lord, Lord Ricketts, has agreed to take on the role of chair of the committee; it is an important one, but it is onerous too.
What seems like a lifetime ago, pre-Brexit, I was a Minister in DExEU in 2017, where my portfolio included meeting UK citizens resident across the EU—for example, in Finland and Luxembourg. At that point, they felt cast aside, with no certainty about how a withdrawal agreement might affect them or when it might be agreed. They found themselves not knowing what their employment, health, residence or travel rights might be. The stress they felt was palpable. It is regrettable that so many of them still face some uncertainty about their status and access to services. Today, I will focus on the protection of their post-Brexit rights, some of which have been referred to by the noble Earl.
In the Home Secretary’s recent letter to the committee, she acknowledged that
“there is still much to do, and serious shortcomings remain in several Member States”,
particularly regarding
“the variable quality and availability of reasonable grounds guidance for late applications, and the uncertain status of UK nationals who are required to submit a second application”.
The Home Secretary stated that the Government intend to continue raising these matters at both bilateral and EU level. Like the noble Earl, I welcome that commitment. However, I note, for example, that the Specialised Committee on Citizens’ Rights met for just two hours on 23 May and it now meets only twice a year.
Subsequently, the UK and EU issued a joint statement. The EU raised several significant issues about its citizens in this country, but I shall mention just some of the UK’s concerns, which were raised by the Government. The first was how UK nationals who do not make an application for permanent residence may demonstrate their declaratory rights of permanent residence when accessing benefits and services. Secondly, there is a lack of publicly available guidance on reasonable grounds for making a late application in some states. Thirdly, there are property rights problems in some states. Finally, there are reports that UK nationals with special statuses were unable to access rights guaranteed to them under the withdrawal agreement.
I welcome the Government’s engagement with the Commission on these matters, but I would be grateful if my noble friend the Minister could indicate what progress has been made since the last meeting of the specialised committee and what preparations have been made for the next meeting. What bilateral discussions, to which the Home Secretary referred in her letter, are scheduled?
The committee’s recent letter to the Home Secretary indeed expressed concern that resources to support our citizens in the EU on citizens’ rights had been cut—indeed, the UK nationals support fund had been closed. As the noble Earl reminded us, we asked the Government for information about the resources available for embassies and NGOs. In looking at the response of the Home Secretary, I noted that she specifically said that resources included the
“Justice and Home Affairs Network of attaches”.
I would be grateful if my noble friend the Minister could give details of that network to the Grand Committee. I googled repeatedly for information but came up empty-handed. That may just be me, but I would be grateful for elucidation. How many of our embassies across the EU have an attaché whose work is dedicated to supporting UK citizens resident there? How accessible are they, and can my noble friend give examples of progress the network has made in assisting our citizens?
I appreciate that these matters are complex, but it is time that substantial progress should be made on removing the final obstacles that still face our citizens resident in the EU.
Lord Wood of Anfield (Lab)
My Lords, it is a pleasure to follow my noble friend Lady Anelay, and I am grateful to the noble Earl, Lord Kinnoull, for his excellent speech. I also want to say what a pleasure it was to serve under him on the EU Committee and the European Affairs Committee, which he chaired with distinction, good humour and balance for so long. However, I suppose that European affairs’ loss is the Cross-Benchers’ gain.
I was chair of the European Affairs Committee for six weeks. My tenure did not move markets in the way that someone else’s six-week tenure in charge in another place did. However, we managed to host witness sessions on developments regarding EU citizens’ rights since our July 2021 report, and sent the Home Secretary the 25 May letter that has been mentioned.
Brexit was always going to create difficulty and complexity for EU citizens in the UK and UK citizens in the EU, and many of the issues that have arisen have been addressed. However, far too many remain; some show no signs of improving after many years, and others are getting worse. In addition, as I will point out later, problems are still arising for UK citizens abroad and for EU citizens here in the UK as a result of new decisions that are being made, including some in the last few days, which I will talk about.
I want to touch on three legacy issues—the noble Earl, Lord Kinnoull, mentioned a couple of them. I will start with the backlog of cases. Estimates from the3million campaign group—I congratulate it on the excellent, persistent work it does on behalf of EU citizens in the UK—is that the backlog of applications for settled status will take three years to clear. Some 20,000 who applied before the original official deadline have been waiting over two years. This matters not simply for reasons of complexity and uncertainty. If your status is officially designated as “pending”, multiple rights are denied to you: you cannot replace your driving licence or get a new one, get a European health insurance card, apply for a national insurance number or sponsor family members, and multiple other problems arise if you want to prove your right to work or your ability to rent or to travel. Can the Minister please give us a sense of what is being done that has not already been done, say, a month ago to try to address this backlog?
With regard to the High Court’s decision of December 2022, I am afraid that the Government’s response is still inadequate. The court ruled that EU citizens can be required to make only one application for residence to secure their rights under the withdrawal agreement, so the Government’s requirement for a second application—from pre-settled to settled status—was contrary to that agreement. Furthermore, the court ruled that, once granted pre-settled status, EU citizens are automatically entitled to reside permanently here once they have lived continuously in the UK for five years.
As the noble Earl, Lord Kinnoull, said, nine months on from the judgment, we are still waiting for the Government to implement the requirement to automatically convert pre-settled status holders to settled status once they are eligible. When will that court-required change be introduced? Some people—not myself—suspect that the Government are deliberately treading water on the implementation of the terms of this judgment in the hope that they may not have to make any further remedial measures or changes before the election. I hope that the Minister can disavow that motive when he responds.
Secondly, applicants’ digital status still indicates that the rights of those with pre-settled status will expire after five years, when that is simply not true under the law. When will this be changed?
Thirdly, the Home Secretary’s response to our letter expressed a determination to continue with the policy of encouraging pre-settled status holders to apply for settled status, but the court made it clear that no rights can hang on such an application. Can the Minister explain why this is still government policy?
Looking to the future, there is the looming issue of the new ETIAS—electronic travel information and authorisation system—to be introduced in 2024. The Home Secretary’s reply to our letter states that,
“those with an existing UK immigration status, such as pre-settled or settled status, will not be required to obtain an ETA”.
That is good news, but they will still need to prove to airline and rail carriers that they have the formal status that means they are not required to have an ETA. Where does that proof exist? The answer is: in the advance passenger information system, which is not planned to be introduced until summer 2024, after ETAs have already begun to be introduced. Can the Minister explain how this circle will be squared?
Lastly, I want to ask the Minister about an issue that arose just a few days ago from an administrative policy change. The Immigration Minister issued a Statement announcing
“the removal of the right of administrative review”—[Official Report, Commons, 7/9/23; col. 23WS.]
for settled-status refusals and cancellation decisions made after 5 October this year. I understand the logic of this, as it brings it into line with other kinds of immigration law appeal processes, but campaign groups have said that it will penalise more vulnerable EU citizens and increase the workload on immigration tribunals. Will the Minister please respond to that?
Lord Hannay of Chiswick (CB)
My Lords, much water has flowed under many bridges since the report we are debating today was published some two and a half years ago. Some developments in the treaty-based handling of citizens’ rights on both sides of the channel following Brexit are, frankly, worthy of respect—particularly the granting of settled and pre-settled status to several more millions of EU citizens in this country than was originally anticipated. I would add in my praiseworthy list the work of my noble friend Lord Kinnoull and the noble Lord, Lord Wood, who did the refresh of our report.
Other events are, I fear, a bit less praiseworthy and I will come to those shortly, but we must not lose sight of the basics of the affair: in June 2016, the referendum vote—I am not contesting the outcome’s legitimacy—deprived millions of citizens on both sides of the channel of their existing citizens’ rights, without their having any say in the matter. That was a shameful way of proceeding—all the more so when the governing party promised in its 2015 election manifesto to give the vote to all UK citizens resident abroad and then failed to do so in time for them to exercise that vote on an occasion of such importance to them as the 2016 referendum.
As my noble friend Lord Kinnoull mentioned, your Lordships’ European Affairs Committee has urged the Government again and again to rectify their scheme for granting settled and pre-settled status to provide the option to recipients of receiving a hard copy registering their status—the sort of thing we all had the option to receive under the Covid-19 vaccination scheme—but again and again the Government have refused to do that, most recently in the Home Secretary’s much-belated reply to the committee’s letter of May this year. They plead security concerns of a rather unconvincing and unsubstantiated kind. I really hope the Minister will indicate today a willingness to look again at this matter and to cease ignoring the considerable body of evidence that many elderly and insecure EU citizens have expressed troubling anxieties as a result of not having paper or plastic evidence of their status. To refuse this is sheer digital fundamentalism. Of course, our own citizens in the rest of Europe have no such problem because they all get identity cards.
Then there was the lamentable attempt by the Government to subject late applications for pre-selected status to an arbitrary and subjective ruling on their acceptability. This scheme was struck down in a case lodged by the IMA as illegal—incompatible with the provisions of the withdrawal agreement with the EU which we had entered into and ratified. It is good that the Government accepted that ruling and did not appeal, but it has taken far too long to produce an alternative way of handling late applications—until just before the recent Summer Recess.
It remains to be seen whether these alternative arrangements are regarded as questionable by the IMA. I would, in any case, be grateful if the Minister could confirm that the new arrangements announced on 17 July, in so far as they apply to the handling of late applicants, will in no respect lead to arbitrary, unilateral or subjective rulings of the sort that were considered by the High Court to be incompatible with our withdrawal agreement. I hope the Minister will commit to handling any problems with greater flexibility than was displayed the last time, and will avoid any further recourse to the courts, which will result only in stress and anxiety for the individuals concerned and bad blood with our European partners. Meanwhile, the European Affairs Committee will itself be considering carefully the terms of the Home Secretary’s remarkably belated reply of late July to our earlier letter. That could lead to further correspondence.
Why does all this matter? Citizens’ rights and the way we handle them are at the heart of the issues of trust and confidence between the two parties to the withdrawal agreement, the UK and the EU, which have been so lamentably deficient in recent years, to the detriment of both parties. We shall be debating in the Chamber on 20 September the best way to restore that trust and confidence and to build a more fruitful and solid post-Brexit relationship. Citizens’ rights and our willingness to stick rigorously to what we signed up to will be an integral part of any such venture.
Viscount Trenchard (Con)
My Lords, I am most grateful to the noble Earl, Lord Kinnoull, for securing time for this debate today. I am also grateful to him for his excellent chairmanship of the European Affairs Committee and its predecessor committees. It has been a great pleasure to serve on them.
Of course, it would have been much better if your Lordships could have had an opportunity to discuss this report sooner than 25 months after its publication, but I am heartened to note that our much more recent report on the overall UK-EU relationship, published on 29 April this year, will be debated on 20 September, less than five months after publication. That is impressive progress. It is, however, perhaps fortuitous that the House only now has an opportunity to debate the Citizens’ Rights report, because two more years have elapsed and therefore there has been more time to assess the extent to which the arrangements established under the withdrawal agreement have worked well or not. In addition, the committee carried out some follow-up work in May this year.
My German daughter-in-law, who lives and works in London, was not at all unhappy about the settled status scheme and how it worked. I think the scheme has worked pretty well and has been reasonably well administered. The committee recommended that the Government should introduce a non-digital option for the scheme to assist those who have difficulties with digital technology. In any case, we are all familiar with the process of obtaining certified copies of physical documents, such as passports. So why can they not go to a post office—if they can still find one that does this—or to a solicitor’s or a notary public’s office, with a device to show the original digital document, and a printed copy of it, and obtain certification of that printed copy of the digital document? Would the Minister agree that such a certified copy should have the same status, and would effectively count as a physical form of the document?
Noble Lords have spoken about the High Court’s ruling that EU citizens should not have to apply separately to transfer from pre-settled to settled status. I believe the Government’s position on that subject should be acceptable and should not cause undue inconvenience. My right honourable friend the Home Secretary has accepted the High Court judgment of December 2022 and confirmed that any holder of pre-settled status who is eligible to change to settled status suffers no loss of rights if he or she fails to make a second application.
I am interested to note that the number of grants of settled and pre-settled status to EU citizens is now in excess of 6 million, although it is claimed by some that many EU citizens have returned home following Brexit. Does the Minister think that the statistics show that, contrary to expectations, there has been an increase in EU citizens resident in the UK since our withdrawal from the union? Can the Minister explain why the Government’s original upper estimate of likely applicants to the settled status scheme was only 4.1 million, whereas well in excess of 7 million have in the event applied?
There is much less consistency when one examines the question of the residence rights of UK nationals living in the EU. This matter is, of course, not wholly a union competence, and the EU’s member states operate a wide variety of systems. In particular, at our evidence session conducted on 16 May, British in Europe made us aware of high refusal rates for late applications by British citizens for permanent residence status in Sweden and Denmark. The Home Secretary assured us that she wishes to work collaboratively with the European Commission on this. We were also made aware of specific problems in Portugal involving payment for residence documents, and documents being issued for five years when they should be valid for 10 years. Can the Minister tell the committee what discussions the Government have held with the Portuguese Government on this matter, and how they propose to solve the problem?
Other noble Lords have raised further relevant points. I am particularly supportive of all the points made by the noble Earl, Lord Kinnoull, especially his comments concerning the reduction of support available for UK citizens seeking to establish or upgrade their residence rights in EU member states. I thank the noble Earl again for obtaining this debate today and look forward to the Minister’s reply.
Lord Balfe (Con)
My Lords, first, I add my thanks to the noble Earl, Lord Kinnoull, for this report. I am not a member of his committee, but I follow what it does. I am afraid I am still an unrepentant remainer—leaving the European Union was a disaster.
My first point is about paper documents. In this country, we sometimes overlook the fact that in most of Europe, paper documents and paper residence permits are extremely important. I do not know of any country in Europe, although Estonia may be one, that does not issue paper documents. The Government should look at some way around this.
I turn to the situation of people living in the European Union and ask the two other party representatives here to tell us what their views are. It seems to me that when we talk about people in Europe, we pretend they do not exist, but they very much exist now they have votes, and we are coming to an election. I would like to see at least one of the parties, preferably the Labour Party because it is more likely to form an alternative Government, come out very clearly and say that it will move as far as it possibly can towards restoring free movement in both directions. We benefited enormously from free movement both in Europe and from people coming from Europe. It seems there are 1.2 million people there and, thanks to our Government, many of them will now have a vote. This is not a small number. It could well swing one or two marginal constituencies, and all the parties need to have a very clear policy about what they are going to do to help our citizens in Europe get their rights, because this is quite fundamental and it is something that can appeal to them.
I have been to Spain to speak to some of our expatriates who live out there, and it is a very big issue. They feel somewhat ignored. I ask that the parties look at the way in which they can make life better for people in Europe, and appeal to them—in other words, put it in the manifestos, boost and bring back the UK national support fund and work with the various migrant groups. Most of the groups in Europe have UK associations, and most of them work and pull people together. They need a message from the political parties in this country that they are wanted and valued—and we are told that there are 1.2 million such people to appeal to.
That is the main reason why I spoke. The second reason, which I have already mentioned, is that I want to see a party committed to bringing back as many of the benefits of the European Union that we have lost as they can. Within the area of citizens’ rights and free movement, a lot can be done, and it will benefit Britain. This is not charity but sheer common sense.
Lord Ricketts (CB)
My Lords, I declare an interest as a non-executive director of the Channel Tunnel operator, Eurotunnel. I am honoured to take up the baton of chairmanship of your Lordships’ European Affairs Committee from the noble Earl. I pay tribute, like others, to his wise and calm leadership of the committee through four turbulent years. The House will have the opportunity to debate his swansong report—if I may put it like that—the landmark report on EU-UK relations, on 20 September. I apologise in advance that I shall not be in the House, as I am unavoidably involved in a state visit to France.
Today’s thoughtful and detailed debate is possible only because of the interest that the noble Earl, Lord Kinnoull, and the committee have taken over several years in citizens’ rights. I wanted to start, like others, by repeating that, although these issues are complex, they are not abstract: they have a direct impact on the life chances of people across the UK and in the EU.
I pay tribute to the Home Office for the success of the process that has led to 7 million applications for settled status being received and 6.2 million accepted. I want to underline the five important questions that I think have come out of this debate, and I look forward to the Minister’s response. After that, the committee will reflect on what further work we need to do.
First, how and when will the Home Office give effect to the High Court ruling in the IMA case on the automatic conversion of pre-settled to settled status? Secondly, on the issue of new restrictions on applications to the scheme, as other noble Lords have said, on 17 July the Government announced that having reasonable grounds for a delayed application will now become a requirement for it to be a valid application, even before eligibility is considered. That is no technical change. If, in the view of the Home Office, there are no reasonable grounds for delay, the application is automatically rejected as invalid, regardless of its merits. In that case, there is no administrative review or appeal: the only recourse for an individual is to judicial review, with all the costs and complexity of that.
The Government have also announced the closure of two routes for family reunification and the removal of the right for administrative review of a refusal of eligibility for all future EUSS applications. These changes taken together mean, in effect, that there is now a policy of progressive curtailment of access to the scheme.
Thirdly, on the backlog, which has been mentioned by several noble Lords, the analysis given by the3million, as others have said, suggested that it would take three years to clear the current backlog and that the numbers waiting over two years is growing and could now be up to 20,000. Given the real disadvantages for people of being in this limbo, would the Minister accept that efforts to clear the backlog need to be redoubled?
Fourthly, there is the issue of digital status. If the Government are not prepared to think again about the option of a physical document, surely there is an even greater obligation on them to ensure that the online “view and prove” system is accurate, user friendly and robust. We continue to hear of glitches and outages that undermine confidence as well as causing practical problems. When it comes to travel, as the noble Lord, Lord Wood, said, the fact that the system does not link up multiple applications made by the same person can lead to delay, and all the stress that that causes, at the border. This problem will become only more acute with the introduction of the electronic travel authorisation. When will the promised comprehensive solution to the issue of linking multiple applications be in effect?
Fifthly, there is the error on the database—or exercise, as the Home Secretary’s letter put it. Given that, whatever the reasons, a misleading digital status was displayed for almost a year for all refusals in that time, will the Minister review with his colleagues the case for Ministers to use to the full their powers of discretion in not recovering the benefits from that period?
Lastly, I will say a quick word for UK citizens in the EU, echoing the noble Baroness, Lady Anelay. Although almost all the residence deadlines have now passed, British people will still need assistance in exercising their rights. I know of cases in France, for example, of children of permanent residents who reach the age of 18 finding it difficult to establish their status. Can the Minister confirm that, in addition to working with the Commission in the specialised committee, our excellent embassy network, including the specialised justice and home affairs attachés, will have the resources they need to continue to help British citizens to exercise rights when they are needed?
Baroness Ludford (LD)
My Lords, I have been delighted to join the European Affairs Committee, serving briefly under the noble Earl, Lord Kinnoull, and now under the noble Lord, Lord Ricketts—we are very fortunate in our chairs.
It is a matter for celebration that over 6 million EU citizens have been granted settled status in the UK such that they can continue their enormous contribution from which our country has benefited so much. As Monique Hawkins of the3million—I share the tribute that the noble Lord, Lord Wood, paid to that organisation —told our committee in May:
“I would like to acknowledge the success of the EU settlement scheme and how the Home Office … got so many applications through in a relatively short time, but”—
she adds a little sting in the tail—
“if asked to characterise the current state I would call it somewhat stuck”.
I fear the gremlins need to be addressed. To a certain extent, I will repeat what has been said.
It is pretty shocking that it took a court case to resolve the problem of Home Office insistence on a new application from those originally granted only pre-settled status. I congratulate the Independent Monitoring Authority, which took the challenge to the High Court. It could teach other watchdogs a thing or two—one thinks of water and sewage—about being on the ball and on the case. However, as the noble Earl, Lord Kinnoull, said, there is a woeful lack of clarity affecting 2 million people about how the automatic conversion to settled status will operate in practice. I look forward to the Minister’s reply.
Can the Minister also explain how the department’s stance of encouraging further applications for settled status by individuals who have already applied for and received pre-settled status is consistent with the High Court judgment? The3million says that digital status continues to say that people’s rights expire, which is giving incorrect and unlawful information to prospective employers and landlords. Can he explain why a still valid EEA permanent residence document is no longer considered a reasonable ground for a late application? Surely any common-sense reading of a reasonable ground must include such situations.
Can the Minister explain delays in issuing certificates of application? What additional steps are being taken to ensure that in future all such certificates are issued without delay? Why does the Home Office refuse to accept the IMA recommendation of a service standard of five working days to issue such a certificate? As an example of the problems that arise, given that all NHS secondary care is chargeable at 150% for the time before someone can evidence their application for a certificate of application, delay can be very expensive as well as inconvenient.
The3million, as has been mentioned, worries that the axing of rights of administrative review, which was only announced in a written form last week, is likely to hugely increase the workload on immigration tribunals. Can the Minister amplify the reasons for withdrawing administrative review?
On the issuing of public documents, organisations representing EU citizens have told us that applicants to the settlement scheme face difficulties with the certificate of application, when accessing benefits and securing a national insurance numbers and documents such as the EHIC card and a driving license. I hope that the Committee will pursue this in further correspondence, if we do not get a good response today.
The noble Earl, Lord Kinnoull, mentioned how, given the Government’s stubborn insistence on reliance on a digital-only system for proof of status, it seems highly inconsistent for the Government to say that users should not have relied on their digital status when accessing benefits or healthcare during the database debacle, but rather an email or postal notification of decisions. I agree with the3million that their proposal for an app with a QR code has substantial merit and deserves to be considered and engaged with in good faith.
Baroness Ludford (LD)
I think I had just said that I urged that the3million’s proposal for a QR code should be considered and engaged with in good faith—at least, I hope I had said that.
I have two or three final points. The first is the concern about reduced funding to support vulnerable citizens in the light of the increased complexity of late applications. That would concern EU citizens in the UK and UK citizens in the EU. I hope the Minister can give us some assurances on that point.
What systems will be in place to ensure that EU citizens face no additional checks or disruption to travel when the ETA rollout begins, given that the advanced passenger information system might not be ready?
Finally, I assure the noble Lord, Lord Balfe, who addressed questions to the party spokesmen, that Liberal Democrat policy is to rejoin the single market and hence restore freedom of movement and, long term, the aspiration may be to rejoin the EU.
Lord Collins of Highbury (Lab)
My Lords, I thank everyone who has contributed to the debate. I particularly thank the committee and its chair for their excellent report and their ongoing work to scrutinise the Government’s efforts with regard to citizens’ rights. It is vital. I think a noble Lord said that this is not an abstract issue; it is about real people. I must declare an interest: my husband is a Spanish national. Immediately after Brexit, the one thing we both feared was that our rights to be citizens of two European countries and have the benefits of that, with families and homes in both countries, and our ability to live as EU citizens would be taken away.
I will not be tempted by the questions from the noble Lord, Lord Balfe. Brexit has happened; it is there. What we need to do is ensure that the rights that the Government promised after Brexit are properly maintained and implemented. I recall that, when we had those early debates, we estimated the number of people who might be affected. I certainly welcomed all the efforts of the3million. I do not think that any of us really thought that we would be talking about 7 million. It shows the huge personal impact that this can have.
However, I acknowledge—as does the committee—that the scheme launched has been relatively successful. The approach the Government say that they have had in terms of the response to the original committee report, a flexible and pragmatic approach, certainly helps us to persuade the EU to reciprocate and work in a collaborative way. Of course, as we have heard during the debate, changes that may impact that flexible approach will undoubtedly have a damaging effect on our citizens in the EU. I hope the Minister can give some very clear assurances on that, particularly in relation to the Home Secretary’s assurances that we will continue to make representations, as the noble Baroness, Lady Anelay, mentioned. It is vital.
I will repeat some of the ongoing issues, particularly, as the noble Baroness, Lady Anelay, said, on the resources UK citizens can rely on in dealing with citizens’ rights issues within the EU. These have obviously diminished, and the UK Nationals Support Fund has closed. We got vague terms in the response from the Government on embassy support, which is really insufficient. People need to know where they can go and what support they can expect. Certainly, that relies on consulates.
The other issue I want to raise is in relation to the Government disagreeing with the committee on the lack of physical documentation. Certainly, the3million has highlighted this, as have others. There are concerns that the digital-only nature of “view and prove” has caused issues for older people, those in Roma and Traveller communities and those with disabilities. I know this from experience; I helped my husband apply for settled status and I made a mistake. It took six months to put it right because you cannot easily pick up a phone and say “I didn’t mean to press that button. I meant to press another button”. It got resolved in the end, and it has certainly not been a problem since, but I want to add to the point.
The noble Lord, Lord Hannay, and other noble Lords raised that it is not simply about a technical issue. People who work and live in this country—people like my husband, who has lived in this country for 28 years, has paid tax and national insurance and shares a home with me—want to feel recognised as someone legitimately living in this country. However, my husband has to rely on some vague computer system. Every time we go through passport control, he does not feel that that has been recognised. That is the important point to bear in mind; it is about more than just simply a technological process. This is about rights people feel they are entitled to, and they feel vulnerable. We need to address that properly. The committee’s work has been brilliant in focusing on those issues.
My noble friend raised the question of the backlog. All noble Lords have raised the issue of people in limbo who have applications in, but the delay in dealing with them means that they will encounter problems in terms of the ETA and advanced passenger transport information which are coming in. These are practical issues that will hugely impact people’s lives. EU citizens are not people who stay in this country permanently; they need to visit their families, and they have bereavements and other issues where they need to respond. We need to hear a bit of empathy and understanding from the Government about what we are talking about here.
In conclusion, I seek reassurance from the Government that they are fully prepared, or preparing, for the influx of settled status applications over the coming years, ensuring that we have clear, simple systems in place that take into account the needs of those people needing most help to apply. It is that empathy that I would like to hear from the Minister. Also, there is the whole question of automatic conversion. We hear that it will take place in 2024—why? What is the delay? Will that cause even greater uncertainty for people? Can we be clear about who will be covered and who are digitally excluded or vulnerable? Will the digitally excluded or vulnerable be prioritised, and how will the Government make sure that those who may need to make applications know? I think these are fundamental questions that I hope the noble Lord will be able to answer this evening.
The Parliamentary Under-Secretary of State for Migration and Borders (Lord Murray of Blidworth) (Con)
My Lords, I am very grateful for the contributions of the Grand Committee, and in particular I congratulate the noble Earl, Lord Kinnoull, on securing the debate. Clearly, this is a topic that has long been of interest to him. On behalf of the department, I congratulate him on his distinguished term as chairman of the European Affairs Committee and its predecessor body. His scrutiny has of course been very powerful and helpful, and I thank him for that.
Turning to the EU settlement scheme, it will come as no surprise—and many members of the Committee have alluded to this—that the scheme has been a great success. We have gone above and beyond our obligations in the citizens’ rights agreements to protect the rights of European Economic Area and Swiss citizens and their family members to give them a route to settle in the UK. I also understand and fully support the interest in how UK nationals are treated in EU member and the EFTA states.
As we have heard, around 1 million UK nationals live in the European Union, with thousands more UK nationals living in Switzerland and the EEA and EFTA countries. The UK Government continue to work closely with the European Commission and national authorities to ensure the rights of UK nationals in Europe under the agreements are upheld. We also continue to press the European Union for clear communications to UK nationals in the European Union on how they can secure and access their rights.
The United Kingdom publishes more comprehensive statistics on the EU settlement scheme than any EU member state on their equivalent schemes. I want now to share some of these statistics with the Grand Committee. The EUSS is the UK’s largest ever immigration scheme. The latest data, to 30 June, shows there have been 7.4 million EUSS applications, of which 98% have been concluded, and more than 5.6 million people have been granted status. The Government are delighted that so many of our family, friends, colleagues and neighbours have obtained the status they need to remain in the United Kingdom. However, as the Home Secretary set out in her August letter, to which a number of noble Lords referred, it is right and proper that we take steps to maintain the integrity of the scheme, including measures to protect it from abuse.
Despite it being more than two years since the June 2021 application deadline for those resident before the end of the EU exit transition period, the volume of late applications has remained high. Many of the applications in the so-called backlog to which the noble Lord refers are in fact recently made applications. A number of these include applications made by late applicants, such as those joining family members, or from repeat applicants, such as those looking to move from pre-settled to settled status. We received nearly 337,000 such applications in the first six months of this year alone.
We do not publish data on pending applications, but internal figures for applications pending by 31 March indicate that 66% of EUSS applications had been waiting for 90 days or less. That rises to 76% when including applications pending for 180 days or less. The Home Office will make this analysis available in the next published statistics, but no doubt noble Lords who raised the question of whether there was a backlog will ponder them and see that this is a very efficient system. Applications which have been waiting for longer than 180 days are usually due to suitability concerns, such as pending prosecutions.
As noble Lords will be aware, the citizens’ rights agreements oblige us to accept late applications where the person has reasonable grounds for failure to respect the deadline. In the first two quarters of this year, there were on average 18,000 late applications made each month. While the overall refusal rate for the EUSS remains low, at 8%, this is not the case when looking specifically at late applications. For this case type, the refusal rate stands at 47% in the most recently published data. I suggest this reflects the increasing volumes of spurious applications being made to the scheme, with refusals on eligibility grounds in the majority of cases.
I will now set out the recent changes to the EUSS, most of which have been implemented through changes to the relevant Immigration Rules. The noble Baroness, Lady Ludford, in particular alluded to the change from 9 August of a person’s reasonable grounds for submitting a late application being assessed at the very first stage of the process, known as the validity stage, as the noble Earl, Lord Kinnoull, outlined. In practical terms, this means that an individual must show they had reasonable grounds for the delay in making their application as a pre-requisite for making a valid application to the scheme. Only once their application is confirmed as valid are they issued with the certificate of application. That is important because it gives those covered by it the benefits of the citizens’ rights agreements to access temporary protections, such as the right to work in the United Kingdom and claim benefits where eligible. This change in process reduces the scope for speculative applications to the scheme solely to benefit from the temporary protection available until an application is finally determined. It aligns with similar approaches that are already being applied to United Kingdom nationals in EU member states with constitutive systems.
We have also updated our published guidance to provide clear information on how reasonable grounds considerations are now being applied. This is in stark contrast to that adopted in EU member states, where we have been unable to identify equivalent guidance or publicly available information for United Kingdom nationals that matches the comprehensive approach that the United Kingdom has taken in respect of EU citizens. Indeed, the United Kingdom Government continue to urge the European Commission to ensure that member states publish flexible and pragmatic guidance as to what constitutes reasonable grounds for late residency applications so that UK nationals do not encounter difficulties.
As has been referred to by the noble Lord, Lord Hannay, we have separately closed two transitional routes which were not required under the citizens’ rights agreements. These are commonly referred to as the Zambrano primary carers and family members of a qualifying British citizen routes. They reflected routes required by European case law, for which provision was made under the EUSS on a transitional basis. After more than four years, it is both appropriate and fair that such individuals should now meet the same family Immigration Rules that apply to other dependants of British citizens.
In addition, we have made changes that prevent illegal entrants from being able to apply as a joining family member under the EUSS. This reinforces our approach to tackling illegal migration and helps to prevent spurious applications being made by individuals seeking to circumvent our standard immigration processes.
On an issue that has been raised by a number of noble Lords in respect of the removal of administrative review, on 7 September, we laid changes to the Immigration Rules to remove the ability for EUSS and EUSS family permit applicants to apply for an administrative review. A right of appeal will, of course, be maintained as the mechanism for individuals to challenge the decision, and to meet our obligations under the citizens’ rights agreements. The changes will apply to all relevant decisions made on or after 5 October this year. We have gone above and beyond our citizens’ rights obligations in offering both a right of appeal and administrative reviews for EUSS applicants. It is therefore now the right and fair course that we bring the EUSS in line with other immigration routes, where a dual right of redress does not exist.
On a question raised by many noble Lords on the issue of the implementation of the changes in the light of the judicial review brought by the IMA, in the statement of changes in Immigration Rules taking effect in August, we also introduced amendments to that effect. The High Court found that the withdrawal agreement residence right of a person with pre-settled status under the EUSS does not expire for failure to make a second application to the scheme. The changes to the Immigration Rules reflect the fact that pre-settled status holders will have this status automatically extended by two years, if they have not obtained settled status ahead of the date when their pre-settled status was due to expire.
The extension will be applied automatically. There will be no need for individuals to contact the Home Office and they will be notified once the extension has been applied. We have already completed the extensions for those whose pre-settled status was due to expire in September—this month—and future extensions will be applied at the start of each month, to those whose status expires the following month. This ensures that nobody with pre-settled status will lose their immigration status through the lack of a second application to the EUSS. Should the Home Office find that an individual no longer meets the eligibility criteria for pre-settled status, we will take steps to cancel or curtail it—but of course those decisions could carry with them a right of appeal.
Our objective is to encourage those eligible for settled status, as has been outlined, to obtain it as soon as possible. This is, of course, permitted by the judgment. Since March this year we have been sending reminders to apply to those who have held pre-settled status for almost five years, and we strongly encourage people to apply for settled status as soon as they are eligible. This ties back to the point so eloquently made by the noble Lord, Lord Collins, in respect of wanting to know with certainty what your status is.
I am extremely pleased to see thousands of people moving from pre-settled to settled status each month as a result of those communications. To 30 June this year, 608,380 people had made that conversion. Looking to the future, we intend to take steps automatically to switch as many eligible pre-settled status holders as possible to settled status, without them needing to make a further application. To do this, we plan to undertake automated checks of pre-settled status holders against government-held information—for example, in respect of their ongoing continuous residence in the UK. We aim to have this automated process in place during 2024.
The judicial review judgment also concluded that a pre-settled status holder acquires a right of permanent residence under the withdrawal agreement automatically, once the conditions for it are met. The planned process to automatically switch eligible pre-settled status holders to settled status, alongside encouraging applications for settled status by those eligible for it, will support the implementation of this aspect of the judgment.
I turn to the question posed by the noble Earl, Lord Kinnoull, in relation to the detail of that policy. We note that the automatic conversion of pre-settled to settled status is not a requirement of the judgment, just as EU member states are not required automatically to issue permanent residency cards to UK nationals. However, in response to the noble Earl’s question on our engagement with the independent monitoring authority, I stress that we have been engaging with it on matters of implementation. We would suggest that the method of the automatic conversion I have just described is not unclear in any way, and that our implementation of the judgment is abundant for any who wish to see it. We have sought feedback and views on our planning and will, of course, continue productive engagement with the IMA and other interested stakeholders as we take forward steps to operationalise the remaining aspects of the judgment.
I turn briefly to the issue concerning the refusals backfill, described by the noble Earl, Lord Kinnoull, as the database error debacle. I perhaps would not agree with that description, although I can understand his concerns. As set out in the Home Secretary’s letter to the noble Lord, Lord Wood of Anfield, all those affected were sent an email or postal notification of their refusal decision at the time the decision was made, using the contact details they had supplied. Individuals are able to update their contact details if they need to. The Home Secretary’s letter was quite clear that maintaining a certificate of application on those accounts, rather than showing a refusal decision, was not due to an error but to allow individuals to maintain temporary protection of rights during any administrative review or appeal. This is because, prior to 19 April 2022, the digital status system did not have the capability to reflect that an individual had an administrative review or appeal pending.
At the time the decision to pause uploading refusal decisions was made, the position of the UK Government was that late applications did not attract temporary protections under Article 18(3) of the withdrawal agreement. Therefore, the volume of individuals impacted by the decision was relatively small and finite, importantly. When the numbers affected subsequently grew following the Government’s decision to extend temporary protections to those applying after 30 June 2021, we maintain it was better to ensure that an individual could access their rights while an administrative review or appeal was ongoing, rather than deny those people access to their rights should they challenge the decision.
With respect to timings, on 19 April 2022, a systems change was implemented to allow accounts to maintain a certificate of application where a refusal decision was challenged. As changes to our systems are not implemented retrospectively, a separate exercise was required for cases decided between 27 June 2021 and 19 April 2022. The exercise was not run before 18 January due to the complexity of the work and other pressing departmental priorities, such as the work to implement the Ukraine family scheme and Homes for Ukraine scheme. I hope that level of detail answers the questions posed by the noble Earl, Lord Kinnoull.
Turning briefly to the question of the DWP overpayments, it has been suggested by a number of noble Lords and the noble Baroness, Lady Ludford, that a power should be exercised by the Secretary of State for the Department for Work and Pensions to waive overpayment debt for individuals affected by the refusals backfill exercise. I remind noble Lords that under legislation passed by Parliament, the Department for Work and Pensions has the legislative power to recover overpayments of universal credit under Section 71ZB of the Social Security Administration Act regardless of how the overpayment was caused. Of course, the Secretary of State has a duty to protect public funds and will seek to recover debt in all circumstances where it is reasonable.
I will touch very briefly on some further question asked by noble Lords, in particular the question about proof of status and whether that should be in documentary form. In response to that oft-expressed request in this debate for physical documents, I respectfully reiterate that we are working towards a border and immigration system that is digital by default. Immigration status in the form of an e-visa is part of this, as of course is the rolling out of the electronic travel authorisation programme. The citizens’ rights agreement explicitly allows for status to be provided in digital form.
I appreciate that I have covered some of the points raised by noble Lords; there are many others but I notice the time. I will, of course, write to noble Lords to update them on those detailed questions that I have had not had time to answer. Again, I thank the noble Earl for raising this very interesting debate.
Baroness Ludford (LD)
Before the Minister sits down, I am not sure that he clearly explained—it may be due to the heat in this room and my head—why the Government are encouraging people to apply again. That, I am afraid, did not come over clearly—I felt the Minister glided over that issue. If he did cover it, I will obviously check the report, but if he did not, could he possibly write to me?
Lord Murray of Blidworth (Con)
I think I covered it, but rather than explain it again now, given the hour, I will certainly put it in writing for the noble Baroness, for clarity.
The Earl of Kinnoull (CB)
My Lords, I am grateful to four sets of people. First, I am deeply grateful to the Minister for the richness of what he said—it was very interesting—and his promise to continue to write. As I think he will have seen, we are all extremely passionate here about doing the right thing for people who live in our community, and I felt that he went a long way to answering some of our questions. I am very grateful for that indeed, and for his kind words.
Secondly, I thank everyone who took part. It was a high-level and extremely interesting debate. Thirdly, I thank the noble Lord, Lord Wood of Anfield. Because of my change in role, he took over at a very difficult moment, when we were trying to draw the strands of this together and created an excellent letter with the committee which has been the foundation of our debate this afternoon. I am eternally grateful to him for doing that, because it is a jolly difficult job, and he is a very busy man. He did it with his usual good humour, and I owe him lots of drinks.
My final thanks go to my noble friend Lord Ricketts, who, I must say, arrived with tremendous energy and engagement on top of his great scholarship in this area. Looking now from the sidelines, I am deeply impressed with the way in which he is grappling with all the great complexities of European affairs.
I will not go through all the other points—lots of good ones were made—other than to say that the speech that in many ways I wish I had made was that of the noble Baroness, Lady Anelay. She focused on the situation for UK nationals in the European Union, and much of what we have been saying is about European Union nationals in the UK. The IMA serves the 6 million people here so well; it is very good indeed. We had lots of chats with it before it came for the evidence session. We do not really have an equivalent servicing our people in Europe. In probably a rather coded way, we are saying that a little bit of government money there could make a big difference. I hope that element will come out in the Minister’s letter to us all.