EU Citizens in the UK

Baroness Ludford Excerpts

Thursday 14th July 2016 Lords Chamber

[Baroness Ludford (LD)]

My Lords, it is a pleasure to follow that splendid speech by the noble Lord, Lord Cormack, with which I totally agree, as I did with the introductory speech by the noble Lord, Lord Lucas, who I thank for this debate. Indeed, I agree with everyone who has spoken. We need certainty and clarity instead of a destabilising vacuum. This is indeed an issue of morality, humanity, decency, honour and human rights. As the noble Viscount, Lord Waverley, said, the last thing we want is years of legal claims under human rights law on the basis of a breach of Article 8 on the right to family life.

As the noble Lord, Lord Bowness, said, there is also enlightened self-interest. To say that we will not guarantee the rights of EU nationals here until we have reciprocity is not only cruel to individuals—there are 4 million to 5 million EU nationals here and Brits abroad—it is also very damaging to the economy to use them as pawns. There has been talk that the Vienna Convention on the Law of Treaties protects acquired rights of free movement, but that seems far too insecure and unpredictable. We would need a specific clause in a withdrawal agreement. Far better than to wait for that agreement is to make a unilateral declaration. Even if we had an early deal on reciprocity, as has been mooted, we would still have to wait. We do not know whether the Government will seek EEA status. The new Chancellor spoke this morning about the importance of single market access for financial services, but you cannot cherry-pick bits of the single market, so there is great uncertainty. Even if we were in the EEA, and hence accepted free movement, we would lose the ability to influence the future shape and direction of free movement law. Perhaps the Government will seek an ad hoc solution, in which case, what kind of solution would that be?

The Immigration Minister James Brokenshire has talked about how people with existing permanent status are okay. He said:

“It is important to put on record that those who have been continuously lawfully resident in the UK for five years qualify for permanent residence. It is an important point for those who have raised points about constituents and family members who have been in this country for a long time that those rights already exist, so they should have no fear about that”.—[Official Report, Commons, 6/7/16; col. 948.]

That makes me rather angry. Those rights for people who have been here for five years are under EU law, specifically the free movement directive, 2004/38. That gives no assurance for their future if we withdraw from the EU. Presumably they would have to apply for either permanent residence or indefinite leave to remain under British law. We have heard the same guarantee echoed by leavers such as Gisela Stuart, who I think was on “Any Questions?” last week. It is a false reassurance, and it is actually quite cruel to try to convey a message that has no foundation—unless the Minister can assure me otherwise.

We have no idea—if there is no withdrawal agreement, which might regulate these things—whether those possessing permanent residence at present under EU law would keep that status or would be switched to ILR, which has less protection against deportation than permanent residence. We have no idea about what would happen to those who have been here for less than five years. We might have years of legal challenges about the loss of the expectation on which they had built their lives. We also know nothing about what would happen to those in the process of the acquisition of rights—for example, for teenagers’ future status regarding tuition fees. Others have talked about the insecurity for British citizens in other EU states. They would of course be subject to EU immigration law, a question that has never been a subject of any interest in this country because we have opted out of most of it. These are not national issues but EU immigration law.

I join others in making a plea to the Government to take unilateral action to give EU citizens living and working here a guarantee of an unconditional right to stay, as the Bill introduced yesterday by my honourable friend Tom Brake MP requests. That would be the implementation of “taking back control”, as the noble Lord, Lord Cormack, said. It would put us in a strong political and moral position to avoid the negative consequences of the UK withdrawal for British expatriates, and would be leverage to get their rights guaranteed in return. Surely it is the right and honourable thing to do for both sets of people.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, there are two things that I cannot clarify: the first is the Question that the noble Lord, Lord Lucas, has asked, which I will address, and the other is my position as I stand before your Lordships. I shall pick up a number of points made by the noble Lord, Lord Rosser. I acknowledge his expertise in the matter of political party splits, but I cannot accept his disdain for popular democracy. It was not a party referendum; it was a British referendum—a United Kingdom referendum.

I thank the noble Lord, Lord Lucas, as have others, for taking the time to table this debate on such an important topic. The Government are listening to the concerns that have been raised in this House, and across the country, on this issue. It is the Government’s intent to provide reassurance to all those in the UK. It is appropriate that we protect the rights of EU citizens in the UK and provide them with the security of knowing that they can continue to practise, work, live and study here.

These are, however, unprecedented circumstances, and we must now reflect on the situation that this country has voted for. There can be no doubt that the 3 million EU nationals currently in the UK make an invaluable contribution to our economy, our society and indeed our daily lives. As the noble Lord, Lord Berkeley, observed, people from the EU provide vital services to this country, not only to businesses but to our public sector, where nearly 250,000 employees are EU nationals. They are our doctors, nurses, teachers and carers. In the NHS alone, almost one in 10 doctors and one in 15 nurses are from an EU country. This Government are immensely grateful to EU nationals for the role that they play in making our country great, and we continue to welcome them to the UK. People from all around the country, including noble Lords and our colleagues in the other place, will have wives, husbands, parents and friends who are EU nationals. They are pillars of our communities and held dear by many.

It is precisely because of this that the Government want to be able to guarantee the status of EU nationals who are living in the UK, and we are confident that we will be able to do that. However, we must also have the same rights for British nationals living in European countries, who are contributing to their economies and societies. It will be an early objective for the Government to achieve these things together.

I reassure noble Lords that the Government respect that this is an uncertain and distressful time for EU nationals in the United Kingdom and UK nationals who have made their lives in other member states. This country has always been compassionate in dealing with people, irrespective of whether they are from the EU or outside it. These principles define us as a nation and will guide us through future discussions with Europe.

I reiterate the remarks the Immigration Minister made in the other place. This does not mean that the Government view EU citizens as bargaining chips. Far from it—in the approach the Government take and the agreements we make we will never treat EU citizens in such a way. As the UK Government have made clear, there will, in any event, be no immediate changes in the circumstances of European nationals in the United Kingdom, and currently they can continue to enter, live, work and study in the United Kingdom as they did before the referendum. The UK currently remains in the EU. We remain subject to EU legislation until we have left the EU, and this includes the legal framework on free movement. There is no current requirement for EU nationals to apply for documentation from the Home Office to acquire this status.

It has been suggested here today and repeatedly over the last fortnight that the Government could fully guarantee EU nationals living in the United Kingdom the right to stay. This sounds so simple yet, as soon as you scratch the surface, it is in fact fiendishly complicated. When one says “guarantee rights”, do noble Lords seek to preserve the essence of the status of these individuals or the legal and operational system which underpins them? Another question is: from when should we make these guarantees? For example, would they be guaranteed only to those residing in the United Kingdom before the referendum result was announced, as was suggested by one noble Lord? What about the EU nationals who arrived later that day, or last week? Or would it be a date in the future, the date that Article 50 is invoked, the date the exit treaty is signed, or perhaps when it comes into force?

Exactly what rights are we talking about? This issue is not simply about the immigration status of an individual. Under EU free movement law, EU citizens’ rights are far broader than just the right to reside in the United Kingdom. For example, there are rights to work or be self-employed, to study, entitlements to benefits and pensions, and rights of access to public services and to run a business. EU nationals also have rights to be joined by family members and extended family members, in some cases from countries outside the EU. There are also rights for non-EU parents of EU children and for those who are married to EU nationals, or indeed for those who are divorced from EU nationals. In addition, what will we do about those who are subject to a deportation order, an appeal, or where appeal rights have not been exhausted? It is not therefore a simple binary question of whether we should guarantee rights, as under that there are a range of scenarios and considerations.

Of course, these rights do not just extend to EU citizens. As noble Lords are aware, they extend to citizens of the EEA and to Swiss nationals. All that has to be taken into consideration as well. Furthermore, these rights need to be considered in the context of the many different situations people face in real life; for example, an EU national who has just lost their job, or who has just arrived and is not yet into the period where they must exercise treaty rights—bearing in mind that they can be here for three months without employment and then have a further three months as a jobseeker. What will their status be if they arrived last week or arrive next week? What will be the status of an EU national who has just divorced a British citizen, or has just retired? The list is extensive.

Finally, once we have settled all that, how do we determine who these people are? Currently EU nationals are not required to register with the UK authorities to enjoy basic EU rights to reside, so we will need to work out how we identify fairly and properly the people who are affected by this.

[Baroness Ludford]

Surely that is why the Government are the Government—they have to work out all those difficult details. We are asking for the broad picture: guarantee the rights of those already here. Indeed it is hugely complicated—that is why leaving is incredibly complicated—but we are asking the Government to be the Government and sort that out.

[Lord Keen of Elie]

But you have to work out the complex details, which the noble Baroness, Lady Ludford, acknowledged, before you can come to a conclusion as to how you will deal with the matter. You cannot say in broad terms, “We give you a guarantee”, when you do not know to whom you are giving the guarantee or how it will work. As the noble Baroness, Lady Ludford, has raised certain matters, I will make one observation. She referred to the Vienna convention, meaning the Vienna convention on treaties, and alluded to the fact that that may preserve prior rights created by international treaty. I assume that she had in mind Article 70(1) of that convention. However, I point out that Article 70 preserves prior acquired rights under international treaties but applies only to the rights and obligations of states, not individuals, and therefore would have no application in this context.

As the noble Baroness, Lady Ludford, anticipates, the Government will need to undertake comprehensive work to examine each of these rights, and the different circumstances in which people find themselves, to ensure that there are no unforeseen or unintended consequences. That work will be led by the European unit, which is being established under the present Government, which will work in close consultation with all government departments that have an interest in this matter. As I have said throughout this debate, the protection of the rights of EU nationals and those British nationals who live in the EU will be at the heart of future discussions with our European partners, and EU nationals will continue to be welcome in the United Kingdom for so long as we remain members of the EU.

EU nationals have our full and unreserved reassurance that their right to enter, work, study and live in the United Kingdom remains unchanged and that they continue to be welcome here. Of course we value the tremendous contribution they make every day, up and down the country. Given that both the UK and EU want to maintain a close relationship, we are confident that we will work together and that both EU and British citizens will be protected through a reciprocal arrangement. We want to be able to conclude this matter as quickly as possible, and the new Prime Minister has been clear that resolving this issue is a priority. The Government keep the protection of the interests of EU nationals and British nationals alike at the forefront of their mind and we are determined to secure the best outcomes for both.