United Kingdom Resettlement Scheme

Baroness Ludford Excerpts

Wednesday 3rd March 2021 Lords Chamber

Asked by

[Baroness Ludford]

To ask Her Majesty’s Government what is the planned (1) programme, and (2) timetable, for refugee resettlements under the United Kingdom Resettlement Scheme.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the UK Government are committed to resettling refugees to the UK and we continue to work closely with domestic and international partners to assess capacity for resettlement activity as we recover from the pandemic. This commitment, alongside a fair and firm asylum system, will ensure that we continue to offer safe and legal routes to the UK for vulnerable refugees who need our protection.

[Baroness Ludford (LD) [V]]

My Lords, only 800 people were resettled in the UK last year, compared to 5,600 in 2019. This is against the UNHCR’s assessment of the global need for almost 1.5 million places. Why have the Government failed to fulfil their pledge of a new consolidated UK resettlement scheme to succeed the schemes closed a year ago? Will the Minister now give an assurance not only of 5,000 places here in the current year but of an ambitious 10-year commitment to resettle vulnerable refugees from Syria and other conflict areas?

[Baroness Williams of Trafford (Con)]

I am very glad that the noble Baroness recognises the extent of our efforts to resettle people who need our protection. She is right to point out that not many resettled last year, but of course we had, and continue to have, a global pandemic. To move people, unless absolutely vital, was not advisable at that time. However, it is vital that we continue to provide those safe and legal routes for people in need of our protection. Refugee resettlement will continue to be a core safe and legal route for those vulnerable people.

Health Measures at UK Borders

Baroness Ludford Excerpts

Thursday 4th February 2021 Lords Chamber

[Baroness Ludford (LD) [V]]

My Lords, my noble friend Lord Paddick mentioned Norway. Have the Government considered emulating the successful Norwegian system, whereby only nationals and those with legal residence are allowed into the country at all, there is testing of everyone on arrival and seven days later, paid for by the state, and of course there is an excellent test and trace system? If the Government have not considered copying such a system, why not? May I just correct the Minister and, indeed, the Prime Minister on another matter? Being under EU law and the European Medicines Agency in the transition period could not and, indeed, did not prevent the UK doing its own thing on vaccines, as it took advantage of a national derogation.

[Baroness Williams of Trafford (Con)]

My Lords, I think it is fair to say that we were being pressed last year to go with the EU in its vaccination programme and we said no, and it was the right thing to say no. I am not going to harp on and make political points, but we did the right thing at the right time. I do not say that from a position of carping: we did the right thing at the right time; we procured at the right time; it was absolutely the right thing to do and we should be really proud of that.

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

Baroness Ludford Excerpts

Thursday 10th December 2020 Lords Chamber

[Baroness Ludford (LD) [V]]

My Lords, the Home Secretary is a keen proponent of the ending of free movement. One of her recent triumphant tweets coincided with articles in both the Daily Mail and the Daily Telegraph about how outrageous it was that British owners of second homes in an EU country would have to get a Schengen visa for stays of more than three months. I have no idea why they have only just found that out. Of course, they are blaming the nasty, punishing, perfidious EU—although that was the known situation for third countries. There was a certain bitter irony in those reports. They were a salutary reminder that free movement, and its termination, is a two-way street—a curb on the liberties of Britons as well as on those of foreigners. That seems never to have been recognised by Brexiters.

Let us remember the huge contribution that the 4 million or so EEA citizens have made to every aspect of life in the UK, from health and social care, to business, to farming and horticulture, to the arts and much more. The same goes for UK citizens living in EEA countries. I am still reeling from the utter meanness of the Government in refusing to allow UK citizens living abroad beyond March 2022 to decide whether to move back here without facing the same hurdles to family reunion as migrants. I am still amazed that this Government could so persecute their own citizens.

The 64 pages of this complex SI, which Parliament cannot amend, perfectly illustrate the justification for our opposition to the huge and broad powers that the Government gifted themselves in Clause 4 of the Bill, which became Section 5 of the Act. Our Constitution Committee rightly called them “constitutionally unacceptable”.

The SI extends the hostile environment to cover EU citizens, except those who have been granted settled status by 30 June next year. Even the horrors of the Windrush scandal failed to prompt the Government to end the hostile environment that created so much pain for those victims.

There is much concern, which I share, about the position of EU citizens who have not applied to the settlement scheme by 1 July next year. Even those who have applied for settled status but have not received a decision will on that date lose their right to a job or to rent, as well as access to services such as homelessness assistance and benefits. That is of great concern. In the other place the Minister promised a written response to some pertinent questions raised about that situation, and I regret that we do not have that in time for today’s debate.

I would therefore like to ask the Minister very specifically about the compatibility of this SI with Article 18.3 of the withdrawal agreement, in the chapter on citizens’ rights. It says:

“Pending a final decision by the competent authorities on any application … and pending a final judgment handed down in case of judicial redress sought against any rejection of such application … all rights provided for in this Part shall be deemed to apply to the applicant”.


How is this SI compatible with the withdrawal agreement, in denying rights to all those who lack status on 1 July next year?

Finally, may I ask about the right to work in the Civil Service? The Explanatory Memorandum seems to suggest that while newly arriving EEA citizens will lose that right from January, some Turkish citizens will retain it. I would be grateful if the Minister could tell me if I have correctly understood that—and if I have, if she could justify why EEA citizens are second class in comparison with Turkish citizens.

Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020

Baroness Ludford Excerpts

Thursday 22nd October 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, we are facing a perverse and peculiar situation. The Government have generously extended the scope of the settlement scheme beyond those exercising EU treaty free movement rights to those simply continuously resident here. Thus, echoing remarks he made in the other place on 16 June that the noble Lord, Lord Rosser, cited, the Immigration Minister, Kevin Foster, said in a letter last week to Holly Lynch MP,

“the Government has made it clear we will protect the rights”

of EEA citizens

“who have made the UK their home, but may not be exercising a specific Free Movement right.”

He also said in that letter:

“an EEA citizen or their family member who is resident in the UK at the end of the transition period, but who does not have a right of permanent residence and is not exercising specific free movement rights … will still be able to apply to the EU Settlement Scheme by the deadline of 30 June 2021.”

In that and other sentences in the letter, he kept referring to “those resident here”, with no reference to having to be lawfully resident under the EEA regulations 2016. He affirmed that those people would have the right to rent and the right to work in the six-month period, but without the caveat that my noble friend Lady Hamwee cited from his remarks on 16 June about needing to be subsequently granted status. How that would work retrospectively is a mystery.

So the Government will apparently protect the rights of all EEA citizens and they want them to stay, but those promises from the Government have not been translated into the text of the grace period SI and in fact they set an obstacle course for the period from January to June next year for those not exercising treaty rights. Yes, they can rent, work and apply to the settlement scheme, but they will not be lawfully resident in those six months. What good is that? When the Immigration Minister said

“we want them to stay”,

he failed to add an honest “but we will make them illegal residents for six months”.

The Government should create new residence rights to apply for six months for all those covered by the withdrawal agreement and eligible to apply for settled status. It is deeply unfair and capricious to lead people to believe that their rights are fully protected until they get settled status when that is not actually the case. The Government could of course just correct that problem by making the test for the grace period SI simple “residence” rather than “lawful residence”.

Thus, my noble friend’s fatal amendment should be supported. In fact, the noble Lord, Lord Rosser, gave very good reasons for doing so, notwithstanding the rather polemical remarks of the noble Lord, Lord Foulkes.

Finally, I would be grateful if the Minister could explain what changes the Government are making on the back of assurances referred to in the European Commission’s report of the recent meeting of the EU-UK joint committee. It says:

“The EU side further sought and received political assurances that under the UK settlement scheme, all EU citizens with residence status will benefit from the same set and level of rights as those guaranteed by the Withdrawal Agreement.”


Can the Minister explain what that paragraph means and what assurances have been given?

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

Baroness Ludford Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 21st October 2020 Lords Chamber

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

The following Members in the Chamber have indicated a wish to speak: the noble Baroness, Lady Ludford, and the noble Lord, Lord Oates. I now call the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

My Lords, I agree with everything that my noble friend Lady Hamwee has said. The Minister said that the arrangements that the Government have made are “reasonable”, but one has also to think of the reasonable expectation of British citizens who may have moved abroad, married, set up partnerships and had families with citizens from elsewhere in the EEA. They would have had no reason to suppose that the conditions and rules under which they did that would change—after all, the promise of a referendum in 2015 came somewhat out of the blue; it really was not expected. My noble friend’s amendment would accommodate fairly those reasonable expectations while meeting the Government’s apparent objection that they do not want a period which is unlimited.

The Conservative manifesto for the 2017 general election promised to legislate for “votes for life” for Britons living abroad. That has not happened, but, at the time, the Conservatives rejoiced at scrapping what they called the previous Labour Government’s “arbitrary” 15-year rule. I think that one could also describe the Government’s three-year rule in this scenario for UK citizens living in the EU as arbitrary.

Mr Chris Skidmore, who at the time was Minister for the Constitution, said:

“British citizens who move abroad remain a part of our democracy and it is important they have the ability to participate … Our expat community has an important role to play.”


One can deploy that statement in this context. These were valuable sentiments about Britons living abroad. I would transfer them to say that British citizens residing elsewhere in the EEA should have the right to participate not only politically but economically and socially in this country. To put them now in a quandary of having to decide by March 2022 what their family circumstances with parents and children could be in the decades ahead is an unnecessary, arbitrary and unreasonable imposition. Twenty years is a highly reasonable proposition.

--- Later in debate ---

[Lord Polak (Con)]

My Lords, I have no intention of delaying the House as I have made my views on this pretty clear. The noble Lord, Lord Oates, has been very clear and precise. I believe that the Government are sticking their heels in for no good reason.

I should make it known that this morning there was a power outage at the police national computer centre in Hendon—run, of course, by the Home Office. As a result, police forces across the country were not able to access the police national computer. I do not need to explain to noble Lords that power outages of this sort have a serious effect on police operations. Following the technical issue that affected our voting on 30 September and this issue today, surely those EU citizens who request physical proof should be able to receive it like any other citizen.

The noble Lord, Lord Oates, tabled the amendment in lieu to deal with the cost element that the Minister brought up on Report. I agree with him, because non-EEA citizens now receive physical proof, so I really fail to understand what the up-front costs that the Minister referred to are. It is an existing scheme. EU citizens deserve to be treated equally and the amendment deserves to be accepted. This is a matter not of policy, but of process. Non-EU citizens can obtain physical proof of settled status, so EU citizens will be the only group without that physical proof. I fail to understand why the Government are unable to accept the compromise amendment that now deals with the financial question.

[Baroness Ludford (LD)]

My Lords, I am pleased to follow my noble friend Lord Oates’s excellent speech, and that of the noble Lord, Lord Polak, with whom I worked on the EU Justice Sub-Committee. The Minister referred to people being able to use their smartphones for this purpose. A friend of mine could not open the link in the email she received confirming her settled status. She had to go to an internet café to do so. I am not quite sure what went wrong there.

I will refer to a report published yesterday by the Committee on the Future Relationship with the European Union in the other place called Implementing the Withdrawal Agreement: Citizens’ Rights. I do not know whether the Minister has had a chance to look at it, but it backs the amendment so that EU citizens should have

“the option of … a physical document to evidence their residency status … in addition to their digital status.”

I am very pleased indeed that it has given that support. It refers to a number of reasons why this should be accepted. It talks about

“examples of people getting assistance from unregulated immigration advisers to make their application, then the third party retain the log-in details necessary to access the platform”

and make a

“charge to send on details to employers.”

I hope that is something the Home Office might look into.

The committee also talks about how, because the online product

“remains linked to the physical document, such as a passport, used by the individual in their application … If the passport is changed, then the applicant has to update the online system.”

That is an issue that will recur. The committee also says that

“accessing the online profile is not straightforward for people not fluent in IT”—

something we have discussed a lot on this subject—so they

“end up relying on the pdf document they receive informing them that a status has been granted”.

The Minister referred to that being put in the desk drawer. It is, of course,

“not a substitute for actual evidence of status”,

but unfortunately it might be used by some people who are confused by the online environment, which is a recipe for some difficulty.

Then, of course, the person asking the EU citizen to demonstrate their status has to understand it. The Minister referred to support for the holders of settled status. I am not sure whether she plans to give lots of tuition to prospective landlords, employers and so on. She talked about the NHS. It was not quite clear what that system will be. The Public Law Project has listed nine steps that a third party such as an employer would have to take to check the status of an EU citizen. It is worth quickly mentioning them:

“Request the code from the applicant … Wait for an email with a link to arrive … Open and read the email … Search, identify, and open the correct website”,


because apparently there is no link in the email,

“Start the checking process … Enter the share code from the email … Enter the applicant’s date of birth … Enter their company name”—


I am not sure what happens for an individual landlord—and, lastly,

“Check that the photo on their screen looks like the person applying for the job and keep a secure copy of the online check, either electronically or in hard copy.”


All this requires reliable access to the internet. If you do not have access to wi-fi, which you might not in an empty flat that you are showing it to a prospective tenant, a person would have to rely on mobile signal, which is honestly not great, even in London.

Also, the committee’s report says that apparently

“the lack of a physical document has contributed to the confusion over eligibility for benefits, because claimants have been unable to show a photo ID card showing their status … it was unclear how some decisions have been made by the DWP in terms of using settled status as a proof of eligibility.”

It is quite a serious point that even the DWP does not seem to have got this right.

The report says that

“the option of a physical card would give an additional layer of safety against criminal attempts to ‘hijack’ someone’s status.”

We are being warned all the time about cybersecurity, and the dangers of malware, hacking and so on. The report says that, in a recent survey of 3,000 EU citizens, apparently more than 10% had been asked

“to provide proof of settled status, and that the digital only status was deterring some from applying.”

It was actually putting them off. The report continues,

“physical proof came right at the top of concerns of EU citizens: 89% said that they would like an option, not compulsory, of physical proof.”

Having gone through all that evidence, it is hardly any wonder that the committee in the other place backed this sincere, reasoned request for EU citizens to have the option of a physical document. I know the noble Baroness cares about people and people’s lives, but it really seems the Government ought to find a way to accede to this request.

Extradition (Provisional Arrest) Bill [HL]

Baroness Ludford Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 14th October 2020 Lords Chamber

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the following Member in the Chamber has indicated their desire to speak, so I call the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

My Lords, I add my regrets to those expressed by other noble Lords on the loss to this country of the European arrest warrant. I was in the European Parliament when it was born, nearly two decades ago, and my last initiative as an MEP was to write a report on reform of the European arrest warrant, in which the former Home Secretary, Theresa May, expressed great interest before making some unilateral UK amendments about its implementation. It is not a perfect instrument, but it is a lot better than the alternatives, particularly the 1957 extradition convention.

I am focusing on Amendments 4 and 4A. In Committee, the Minister told us:

“The Government have no intention of specifying countries likely to abuse the system to political ends.”—[Official Report, 5/3/20; col. GC 364.]


First, Governments can, and sometimes do, change. Secondly, intentions, however sincere when made, do not always survive unscathed. Presumably the Government intended to act in good faith in respecting the EU withdrawal agreement that they negotiated, signed and recommended to Parliament and the country, but now they want to give themselves the power to override a key part of it. They no doubt intended to keep their promise to uphold high standards of food safety and animal welfare. If they reach a trade agreement with the United States, imports from there will not comply with those standards and our own farmers will become uncompetitive, putting pressure for deregulation here.

As my noble friend Lady Hamwee mentioned, there is also apprehension about what pressure might be exerted by potential trade partners. Outside the EU, the UK is more vulnerable because it is only one country. As part of a bloc of 28, we could say: “Sorry, we’re bound by EU law, we can’t give you an individual concession, so there is nothing we can do, chaps.” We are much more exposed to that pressure if trying to reach a bilateral trade agreement with a single country.

Those are the reasons of principle why we need individual statutory instruments, country by country. There are also practical reasons. By insisting that this House takes an all-or-nothing approach, the risk is that the House feels compelled to vote down an SI that contains some perfectly respectable countries and one dodgy one—my noble friend gave some examples. This would waste more time than if the Government had the good sense to take them one by one. It is quite puzzling why they are being obstinate in refusing to see the good sense of that. It would be far more efficient, effective and respectful of human rights and the transparency of parliamentary scrutiny to allow Parliament to focus on one country at a time. That need not slow down the process at all; it could possibly streamline it.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

Are there any other Members present who would like to contribute at this point? If not, we can move on. The next speaker is the noble Lord, Lord Anderson of Ipswich.

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

Baroness Ludford Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I have little to add to the magisterial introduction made by the noble Baroness, Lady Hamwee, to Amendment 27A, but I will emphasise the deficit of the Bill as it stands especially with regard to Roma women with settled status who look after their children full-time and who apply for British citizenship. The underlying problem—in real life rather than in Home Office rules—is that while their children are little, the mothers have a weak connection to the labour market, like other full-time mothers. I am surprised that this Government should prejudice mothers in this way.

So, because they cannot prove they were exercising treaty rights—according to the Home Office, which does not accord with the European Commission’s interpretation—by showing that they have comprehensive sickness insurance, their application fails. I remind your Lordships that Theresa May, as Home Secretary, recognised this injustice and promised to do away with the requirement for CSI in these cases. So it is very odd that updated Home Office guidance in 2020 changed the application process to direct caseworkers to check whether such applicants had CSI. An undefined power of discretion has not proved much use in rectifying the injustices to full-time mothers. It is shocking that the Government have not honoured the earlier commitment.

In her letter to us of 29 September, the Minister said that the Government’s policy is that CSI is not required to obtain status under the EUSS. Nevertheless, the grace period SI maintains CSI as a requirement for lawful residence during the grace period as a student or self-sufficient person, such as a full-time mother, under the saved EEA regulations because, according to the Home Office, this is consistent with EU law. This is not the European Commission’s view, and it is not right or just that applications are turned down because there is no CSI.

[Baroness Ludford (LD)]

My Lords, I will go over very similar ground to that raised by my noble friend Lady Hamwee.

The background is that, under the withdrawal agreement, the UK is obliged to create a grace period following the end of the transition period. During this grace period, EEA citizens have the opportunity to apply by a deadline for a new immigration status through the EU settlement scheme, as it is called in the UK.

As EU rights will end on 31 December, the Government need to create an interim status for those who have yet to acquire their new status via the EU settlement scheme—hence the grace period SI. As we know, it sets the deadline for applications to the settlement scheme as 30 June next year, but the Minister said last Wednesday, on the first day of Report, that it would also

“protect the existing rights of resident EEA citizens and their family members during the grace period.”

What does “existing” mean? A fact sheet published in July also used that adjective when it said that the power in Section 7 of the European Union (Withdrawal Agreement) Act 2020 would be used—as has now happened with this grace period SI—to make regulations

“to protect the existing rights of those individuals who are eligible to apply to the EU settlement scheme”.

As the noble Lord, Lord Parkinson, did in Committee on 16 September, the Minister said last Wednesday that she could reassure us—here, I repeat a quotation given by my noble friend—that

“EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy”,

which, as we have learned, was set by Theresa May,

“that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”

Therefore, so far we have established two government statements: first, that the existing rights of those eligible to apply to the EU settlement scheme will be protected; and, secondly, that acquiring settled status will not involve a requirement for CSI. So far, so good. Ministerial assurances seemed to accord with Article 18(3) of the withdrawal agreement, which provides that, pending a final decision, all rights provided for in the citizens’ rights section of that agreement shall be deemed to apply to the applicant. That means residence rights and all related equal treatment rights.

However, things then get somewhat murkier. Last Wednesday, the Minister added a caveat—again, quoted by my noble friend—when she said:

“People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says.”—[Official Report, 30/9/20; cols. 243-4.]


When I checked back, I saw that the noble Lord, Lord Parkinson, had explicitly said on 16 September in Committee:

“The grace period SI maintains”


comprehensive sickness insurance

“as a requirement for lawful residence during the grace period for a student or self-sufficient person under the saved EEA regulations, as is consistent with EU law.”—[Official Report, 16/9/20; col. 1340.]

I will not go round all the houses again, but I beg to differ with that last comment, as I believe that the Commission is pursuing infringement proceedings—it is taking a while; it launched them in 2012—over the Government’s wrong interpretation of CSI as meaning private health insurance. In this country, it should mean accessing the National Health Service. However, for current purposes, I will just concentrate on the first part of the noble Lord’s statement: namely, the proposal that during the grace period students and self-sufficient persons will have to show that they have CSI—that is, private insurance—in order to qualify as lawfully resident.

The remarks confirm that in their current form, limiting a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period, the regulations appear, as my noble friend said, to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and while their application is pending. In general, a worker and someone who is self-employed will benefit from legal protections, but those not economically active by the end of the transition period will likely be unable to do so, with the consequences that my noble friend enumerated—possible removal, the denial of NHS treatment, being put out of a job, or whatever.

Even where someone successfully lodges an application with the EU settlement scheme, if they are awaiting a decision beyond the end of the grace period and are not in scope of the regulations, they will not have the legal protections it offers. Therefore, someone with a complex EUSS case could be without a legal basis to remain in the UK for many months beyond the grace period.

As a taste of things to come, a case has been brought to my attention where parents seeking to renew their five year-old son’s British passport were told that the EU citizen father had to supply evidence of having had CSI—I repeat: private health insurance—when he was a student many years ago.

To recap where I think we are, we have three government statements: first, that the existing rights of those eligible to apply to the settlement scheme will be protected in the grace period; secondly, that CSI is not a requirement for acquiring settled status; and, thirdly, that CSI is a requirement for some people to have lawful residence in the grace period. We can add in a fourth, given in the course of this Bill: that discretion will be exercised—we have not heard how—in regard to the absence of CSI in assessing eligibility for citizenship.

I am struggling to make sense of how those four statements fit together and to understand how the Government really intend to treat people. So far as I can see, it leaves matters as clear as mud and full of contradictions and obstacles. It seems that the Government are set on making a person cross a crocodile-infested river of legal uncertainty over residence before they can reach the safe shore of settled status.

Therefore, I back up the questions that my noble friend asked the Minister about the practical implications for people who do not fall within the scope of the regulations. Will there be further regulations to cover those eligible for settled status but not in scope of the regulations? When they apply for settled status, will they be told, “Oh no, we don’t need to ask you for CSI, but in the meantime, under the grace period SI, you need CSI”. It is like being on a chessboard, although I can think of some other analogy.

I have one last question. Are the Government willing to consider changing the draft regulation from stating a requirement to have been “lawfully resident”—which, as we know, according to the Government’s interpretation is an extremely loaded term—to a requirement simply to have been “resident”? Given that this definition operates for only six months, save in cases where a settled status application has been made, this might be a simple, workable solution that could save a lot of people a lot of anxiety. This sounds like an awfully complicated and arcane situation. It is, and in the real world a lot of people are affected by it. They are represented by the the3million group, which, again, is doing sterling work, although, as far as I know, even it has not got its head round it, so I do not know what hope there is for someone like me.

I hope the Minister can bring some coherence to this situation, or display a willingness to look again at the regulations under the grace period SI to see if the Government are creating unnecessary hurdles for people who were told they would not need CSI or settled status when perhaps applying later for citizenship. It seems to be creating an awful lot of unnecessary hassle.

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

Baroness Ludford Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

It cannot be very easy to live off £5.66 per day. In an unfamiliar country, where one may not know the language, the temptation to take a paying job in the black economy must be huge. It is not the asylum seeker’s fault that the queue for a decision, in which he is stuck, is so long. It is the system that is unfair to them. It is as inhumane as it is inefficient, and because it is inefficient, it is inhumane. The amendment tabled by the noble Baroness, Lady Hamwee, and the other amendments in this group, all of which I support, would make it marginally less inhumane.

[Baroness Ludford (LD)]

My Lords, I want to take up just two themes that wove through the debate in Committee. The first was about UK practice compared to that of other European countries. The Minister said in her response to the debate in Committee that

“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.”—[Official Report, 14/9/20; col. 1019.]

I fear that the Minister might have got tripped up by the Brussels phenomenon known as “minimum maximum”, whereby the formulation “maximum of not less than” is part of a directive—or maybe a word got lost from the Minister’s speech, because the Commission’s proposal for the recast of the returns directive—a directive to which the UK of course has not opted in—actually reads:

“Each Member State shall set a maximum period of detention of not less than three months and not more than six months.”


In other words, member states should set a maximum period of detention in their national laws. That maximum period can be between three months and six months. There is no requirement in existing or proposed EU law for individuals to be detained for a minimum of three months, which the Minister’s words might have implied, no doubt inadvertently.

The second theme I will mention is the Government’s contention that detention is a necessary part of efficient and effective immigration enforcement. The report on immigration enforcement from the National Audit Office in June, to which reference was made in Committee, said:

“Immigration Enforcement … cites an increase in individuals making late or spurious claims for asylum … It believes many of these claims are used to delay removal but noted in 2019 that it did not have a strategy across the work of Immigration Enforcement and the rest of the Department to mitigate the abuse or to tackle the backlogs being caused by associated delaying tactics. We have not seen any systematic analysis designed to help the Department understand why claims are increasing, or to rule out if Immigration Enforcement’s own actions might have contributed to the increase.”


So my conclusion is that the Government have a lot of work to do across the whole field of immigration enforcement and removals. While they can rely on indefinite detention, they are not doing the work necessary to improve their systems to avoid unnecessary detention. To that end, a limit of 28 days would focus their mind on the other tools they need to have at their disposal and return detention centres to the genuine immigration removal centres that they should be.

[Lord Kennedy of Southwark (Lab Co-op) [V]]

My Lords, I intend to be brief, as this has been a long debate and the time is getting on. Amendment 20, moved by the noble Baroness, Lady Hamwee, along with her other amendments in this group, are ones that I support. My Benches will support the noble Baroness when she divides the House. The amendment would limit detention to a maximum of 28 days. As we have heard, people are often released into the community anyway. As the noble Baroness said, that begs the question of why they need to be detained in the first place.

Huge strain, stress and anguish are placed on those who find themselves detained with no clear idea of when that will end. As the right reverend Prelate the Bishop of Southwark said, the Government have had ample opportunity to bring forward an amendment of their own to deal with this issue. I will point out that there is not a single government amendment at this Report stage, and I do not think—I am sure I will be corrected if I am wrong—that there were any government amendments in Committee either. Sadly, that says to me that the Government have learned nothing, and that the hostile environment is alive and well. Despite the lateness of the night, I hope that the amendment is carried by a large majority.

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

Baroness Ludford Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

[Lord Green of Deddington (CB) [V]]

My Lords, Amendments 77 and 78 contain an interesting and potentially very valuable idea. I pay tribute to the original thinking that the noble Lord, Lord Hodgson, brings to so many of his contributions to this House. I warmly endorse the arguments that he made, ably supported by the noble Lord, Lord Horam, and the noble Baroness, Lady Neville-Rolfe. I particularly welcome the wider perspective that these amendments bring to the issues surrounding immigration. The detail is always important, but so is the wider perspective, especially when very significant changes are being proposed.

As noble Lords may be aware, I have been closely involved in immigration policy matters for nearly 20 years. I think I am now on my 10th Home Secretary and my 16th Minister of Immigration. An office for immigration and demographic change, which the noble Lord proposes, would bring together the study of the key elements that cross the boundaries of so many Whitehall departments, most of which have departmental interests in higher immigration, rather than lower.

As the noble Lord mentioned, we already have the OBR, which provides a wider framework for economic policy. The Migration Advisory Committee is focused on immigration but, as has been remarked on a number of times in these debates, it comprises mainly economists and is largely focused on economics. It does not, nor is it asked to, take the longer view of the wider impacts that the noble Lord, Lord Hodgson, is advocating. The reality is that nobody in government is pulling together the demographic, economic, social and, perhaps, climatic elements that set the frame for the whole future development of our society.

Demography has its own uncertainties, of course. Death rates are fairly stable, but birth rates can change quite rapidly, especially for different groups in our society. But immigration has been, for some years, the key variable. Before the full impact of the Covid crisis became clear, immigration remained close to its highest level in our history. It is now the major factor in our demographic future. For the time being, the Covid crisis has distorted the impact of immigration but, if it were allowed to continue at recent levels, it would have huge consequences for education, health, housing and pensions. Nobody is considering that in an organised way. We need close and co-ordinated consideration of all these aspects, and where it is all leading to. We need to decide whether this is where we want to go and, whatever we decide, how best we can prepare for such a future.

So I commend the noble Lord’s valuable contribution to the immigration debate, and I support his amendments.

[Baroness Ludford (LD)]

My Lords, I concede that these amendments have a sincere purpose, but I am not sure that they really work. In Amendment 77, the noble Lord, Lord Hodgson, proposes that the Government issue a charter for EU immigration and demographic change, explaining the formulation of their policies on immigration. But the Government can already do this in other ways; indeed, they issued their White Paper on a points-based system a few months ago. The proposed charter would be laid before Parliament, but there is no description of what Parliament would then do. Would it approve, endorse or reject? I also query why the charter would set out demographic objectives only in relation to immigration when other factors are mentioned elsewhere in the two amendments. Of course, the other major factor in demographic change is the birth rate.

Amendment 78 aims to set up a new quango called the office of EU immigration and demographic change. Again, I am not sure why the Government cannot do this work, because it is the Government who issue the charter. It is proposed that the office should report on the impact of the Government’s demographic objectives for EU immigration, but it would be barred from considering the impact of any alternative policies. The noble Lord sought to explain, or justify, that constraint, but it seems to take away something—critiquing the Government’s policy and suggesting alternatives—which could be valuable. Again, no role is specified for Parliament as regards reports from this new office. I cannot in all honesty see the added value of such a body to the duo that we already have—the Migration Advisory Committee and, as the noble Lord, Lord Hodgson, mentioned, the Office for National Statistics, which already does population projections. I had a quick look and saw that it did one in October 2019; I do not know when the next one is due. And then there are surely academics on whose work either the MAC or the ONS could draw.

So I will not make the point that these amendments relate to immigration only from the EU, since such an objection would be disingenuous, given that I recognise the constraint imposed by the scope of the Bill. We have been a round that circuit several times in the last few days. I can do no more than say that these amendments, while interesting, do not really fly, for the reasons that I have given.

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Moved by

[Baroness Ludford (LD)]

84: Clause 5, page 4, line 3, after “(1)” insert “only”
Member’s explanatory statement
This amendment would restrict the Secretary of State’s power to make regulations to the powers listed in Clause 5(3).

[Baroness Ludford (LD)]

My Lords, in moving Amendment 84, I shall speak to other amendments in this group which attempt to rein in Clause 5 or delete it. Clearly, this group is also linked to the next group of amendments. I am pleased to see the noble Baroness, Lady Stedman-Scott, here; it is nice to have a change of landscape and scenery.

The Delegated Powers Committee in two reports has highlighted the problems of Clause 5, so this debate echoes the one that we had on Clause 4. Clause 5, in the words of the DPRRC, gives Ministers

“almost absolute power to rewrite the Co-ordination Regulations at any time of their choosing”—

that is, the social security co-ordination regulations. Parliament has no power to modify such SIs, only to approve or reject them. Not only did Clause 5(1) and 5(2) confer those very broad powers, but subsequent paragraphs on the purposes of modification place little restraint on Ministers; they give Henry VIII powers, among others.

The Delegated Powers Committee said that the Government’s delegated powers memorandum gave

“inadequate justification for a wholesale transfer from Parliament to the Government of power to legislate in a field that could … impact on large numbers of UK citizens resident in EEA members states, and EEA nationals resident in the UK”.

The committee said that the memorandum did not explain the need for Ministers to have the Clause 5 power now,

“how the Government might seek to use it … why it includes a power to amend … legislation … not listed in clause 5(2) … why it is not time limited”,

and why there is no duty to consult. It recalled its repeated view that for a skeleton Bill, a full explanation of delegated powers is necessary—and in fact, it says this clause is not even a skeleton; I do not know what is less than a skeleton, but it is a nice phrase. In any case, Clause 5 is unnecessary.

Since the UK left the EU on 31 January, the relevant EU regulations pertaining to social security, pensions and healthcare have been retained in UK law by Section 3 of the European Union (Withdrawal) Act 2018. That Act already contains a power in Section 8 to modify retained direct EU law. The Government have in fact already exercised that power and amended the co-ordinating regulations in 2019—I think there are four sets of regulations altogether, which are referred to as fixing regulations. The Government now want powers in this Bill, but if they do not fit within the 2018 Act then they must necessarily not relate to any ability for the law to operate effectively or to any deficiency in EU law. They are not tidying-up powers, and if they were then the Government could use the 2018 Act. It seems inappropriate to have Clause 5 in the Bill and for the Government to be able to legislate under its powers. It is much better for any changes to be brought to Parliament by primary legislation.

Of course the Bill and these powers are not about rights under the withdrawal Act or those protected by the withdrawal Act, who are often referred to as the cohort. Powers regarding the social security, healthcare and pension rights of those people covered by the withdrawal agreement are covered under Section 7A, which was inserted into the 2018 Act by the European Union (Withdrawal Agreement) Act 2020. That is also accompanied by Section 13 of the 2020 Act, which confers the power to make regulations in respect of social security co-ordination rights protected by the withdrawal agreement. We therefore have two sets of powers to regulate: one under the 2018 Act and another under the 2020 Act. Why does the Secretary of State now need a third set of powers to make regulations?

There is bound to be some duplication across these sets of powers, and it looks as if they are designed to bypass the need for primary legislation. In fact, I also recall that a memo attached to the letter from the noble Baroness, Lady Williams, on 4 September, about the illustrative SIs, said that the Government are also planning to implement a future relationship using the powers in Section 179 of the Social Security Administration Act 1992, the primary legislation governing reciprocal agreements for social security benefits between the UK and the rest of the world. That is a third set of delegated powers, so Clause 5 in this Bill would be a fourth set of powers. The Government are getting awfully greedy about powers for Ministers.

I put it to the Minister that if the Government think they need further legislation on social security it needs to go into primary legislation. Indeed, our Delegated Powers Committee suspected that Clause 5 was in the Bill to avoid having to prepare a detailed Bill subject to full parliamentary scrutiny once future arrangements with the EU were concluded. It said that Clause 5 is

“an inappropriate delegation of power.”

Hence, we have given notice that we would seek to delete Clause 5 altogether, whereas Amendment 84 would restrict the powers to those described in Section 5(3), while Amendment 85 would delete the power to distinguish between recipients on the basis of their nationality or where they reside.

--- Later in debate ---

I have spoken at length, but there was a lot of ground to cover. I hope that noble Lords will not press their amendments.

[Baroness Ludford (LD)]

My Lords, the noble Baroness, Lady Stedman-Scott, has shared with us a great deal of dense information. I will make the usual disclaimer that I will need to read Hansard to be absolutely sure that I have understood what she said.

One thing about which I was a bit confused was when she said that Clause 5 would not be used to disbar the export of pension for certain nationalities. Then why have that ability in the Bill? She said it was a standard clause in social security co-ordination legislation, but I admit that I was a bit confused about that. It might be my problem: as we are nearing the end of Committee, my brain might be getting a little befuddled.

One cannot but be concerned about those covered by the withdrawal agreement. Until recent days, I would never have imagined that there could be any threat to the rights of people covered by the citizens’ rights part of the withdrawal agreement. That confidence has been shaken, I am afraid, and I am sure that the Minister will understand that point. She might protest that there is no intention from her department to do that, but the experience of the last week has been undermining of confidence. So we will need to look at all that very carefully.

The other thing—and I must admit that I saw a reference to it somewhere but have forgotten where—is that healthcare, because it is not covered by the DWP, is subject to separate regulations which I will need to try to track down somewhere. If the Minister can get her officials to draw those to my attention—to add another SI to the ones we are looking at—that would be very kind. The Minister is always very helpful, in various ways. It is a very complicated subject and I will look fully at her remarks.

I remain generally concerned about the scope of the delegation. As the noble Baroness, Lady Sherlock, said, it affects an awful lot of people. Will they be able to aggregate the periods of social security in different states? Can they be assured that their pensions will be not only received but uprated? Will they be able to get healthcare coverage? This is absolutely bread-and-butter basic security for people. It is why it is called “social security”. These matters remain of deep concern, but for now I beg leave to withdraw the amendment.

Amendment 84 withdrawn.

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

Baroness Ludford Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

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 (LD)]

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.

--- Later in debate ---

Moved by

[Baroness Ludford]

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 (LD)]

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.

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[Baroness Williams of Trafford (Con)]

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 (LD)]

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.

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[Baroness Bennett of Manor Castle (GP) [V]]

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 (LD)]

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.

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[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

I have received a request to speak after the Minister from the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

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 (Con)]

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.

--- Later in debate ---

[Baroness Ludford (LD)]

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 (Con)]

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.