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

Baroness Hamwee Excerpts

Thursday 10th December 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, the Minister in the Commons said that he

“would not expect employers on 1 July suddenly to check that every member of their staff has EUSS status.” —[Official Report, Commons, Delegated Legislation Committee, 8/12/20; col. 12.]

I know someone from the EU who, several years ago, became a British national. A few days ago, she was asked by a confused and anxious HR manager to prove her status. She was, and is, understandably distressed. Her sister has been in the UK for 15 years but does not want to take British nationality. I hoped that she had applied to the settled status scheme; she had, but the Home Office keeps asking her for her reference, having repeatedly failed to give her one. Is this the legacy?

This SI renders the statute book coherent, we are told. It is coherent in a narrow, technical sense, but is it accessible? I understand free movement is about to end; I understand the Government will emphasise that the SI merely implements the recent Act; I understand this SI will become law. But we have an important task today. This is not to ignore that the inability to amend an SI means we are almost always reduced to an empty gesture, that the instrument’s sheer size presents parliamentarians with an exercise I, for one, feel incapable of fulfilling, or that it raises some considerable concerns. It is incumbent on the Government to do all they can and support others to do all they can, to ensure that people affected are clearly informed as to their position.

I do not deny that to have processed over 4 million applications is really going some. But 42% of the grants, so far, are of pre-settled status, with the difficulties and uncertainties that go with that. By definition, we do not know how many people have not applied. We can be pretty sure that the great majority of them are individuals least able to look out for themselves. Many are likely to have the most difficulty in satisfying the Home Office of their entitlement, and many are likely to be the most in need of support, by way of benefits and housing.

The Government accept there is a big communication job to be done: before the end of the transition period; in the first six months of 2021; and after 30 June. Can the Minister update us on this? I hope it is not going to be more of the same, because we know where it leads when one repeats oneself. I make the point about the different time periods because the rights that follow are different, and different again depending on the basis for the grant of status, whether residence or exercising treaty rights.

The organisations to which potential applicants are directed—and this is no criticism of them—may well have difficulty advising on which rights an individual has in his particular circumstances. There is no duty on them to direct him to where advice may be had. And there is no duty on a public body approached by an EEA national without settled status to direct him to the scheme so that he can be put in a position where that public body can respond; for instance, to deal with a benefit claim. It is no answer that this is complicated. That is precisely why it is incumbent on the Home Office to ensure accurate advice is available.

There is further scope for confusion from an apparent inconsistency between these regulations and the health regulations. I am certainly not arguing for reducing access to the NHS, but to give access to—I think—all NHS treatment but not to housing support is bewildering and illogical. We know the impact of poor housing, and especially homelessness, on health.

I have a specific request of the Home Office: a chart, made available to anyone who needs to understand who is entitled to what, setting out what the rights and protections are for those granted status, applied for at different times, and for those with and without treaty rights—every permutation. If it has already been produced, can it be made widely available?

I understand that among those one would expect to be able to advise, there is uncertainty and unease as to just what the regulations will mean in practice. I have sympathy with the Minister in the Commons, who offered to write with answers to various scenarios that were posed during the debate on Tuesday. That illustrates the complexity, and noble Lords will appreciate that any letter will arrive after the SI is in law.

Noble Lords have indicated very different views today. As the noble Baroness, Lady Ritchie, said, and, as my noble friend made clear, we are enthusiasts for free movement. My noble friend raised the compatibility, or otherwise, of the SI with Article 18.3. The Explanatory Memorandum published with the SI is helpful, but it can go only so far and is itself puzzling in part, to me at least. We are told that certain existing regulations are revoked

“because they omit provisions made as a contingency in the event of a no deal exit, which are no longer required”.

Is this foresight or wishful thinking? There are difficulties and concerns with the substance and with the form, but the Home Office is in a position to help with the translation.