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

Baroness Whitaker 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 Whitaker Excerpts

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

[Baroness Altmann (Con) [V]]

My Lords, I have added my name to this amendment. I congratulate the noble Baroness, Lady Lister, on her persistence and dedication to this issue. Her passionate advocacy, particularly for vulnerable children, has always been impressive. I share her concerns.

I must admit that I truly cannot understand why the Government are resisting this extremely modest amendment. Indeed, the problem has been going on for so long, and this amendment is so reasonable in wanting to encourage the Government to agree at least to look at this issue carefully, seriously and thoroughly, that it would seem almost impossible to reject it. Perhaps we will hear from my noble friend the Minister that the Government are indeed minded to look at this more seriously and accept it after all.

The wording could clearly have been much stronger. The strength of feeling across the House at previous stages of the Bill has been clear. Children who have been born here and have the right to citizenship but then have to register to obtain this right, perhaps having to pay significant amounts that they cannot afford, seems to undermine some of the principles on which we base our country and citizenship.

The noble Baroness, Lady Lister, and the noble Lord, Lord Alton, have described the details of this lengthy amendment. I will not repeat them, but the principles referred to are so important to many individuals in this country, and to their rights as granted to them by Parliament. I find it puzzling, as well as disappointing, to see the Government so far refusing to agree to this.

Indeed, the Public Accounts Committee in the other place, in its report laid last month entitled Immigration Enforcement, has criticised the inadequacy of information available to my noble friend’s department and called for an urgent report to be carried out. Accepting this amendment could indeed assist the Government in that regard. For example, in one of its recommendations, the Public Accounts Committee says:

“Building on its response to the Windrush lessons learned review, the department should mobilise its evidence base and evaluations to challenge its own assumptions and beliefs about the user experience within the immigration system.”


That is part of what this amendment is attempting to do.

If my noble friend the Minister could accept the thrust of this amendment, and announce this at Third Reading, I believe that many of us on these Benches would be delighted and that there would be support from every side of the House.

[Baroness Whitaker (Lab)]

My Lords, the Home Office funded a project in 2019 which led to findings that many migrant children from the European Union who were eligible to apply for settlement status were also eligible to register as British. It was found especially that Roma children are both more likely to be eligible than many other EEA or Swiss migrants and more disadvantaged by Brexit; for instance, in supplying the correct documentary evidence, and given that the information on the need to register before the age of 18 is not effectively transmitted. The noble Lord, Lord Alton, referred to this report. The disadvantage that it exposes needs to be redressed. Is the Minister aware of the University of Liverpool study which sets out the problems in detail?

As my noble friend Lady Lister of Burtersett said in her powerful speech, an important point is that the scale of the fees has deterred many eligible applicants. As she and the noble Lord, Lord Alton, indicated, the High Court agreed that these costs were so disproportionate and prohibitive as to constitute a breach by the Secretary of State of her duty to safeguard and promote the welfare of children and undermined the objective of the British Nationality Act. I agree with my noble friend that it is really unfortunate that the Government are appealing this decision. The hearing is set for 6 October to 7 October, so a precipitate provision should not be put forward by the Government.

Finally, in addition, there are Roma people who were granted asylum and ILR status before their countries joined the European Union but who do not have documentary evidence of this. Importantly, neither do their children, so the children are also at risk of deportation. This amendment would go far to rectify the injustice.

[Lord Judd (Lab) [V]]

My Lords, citizenship is something to be treasured—and something, of course, that all those entitled to it should be able to have. If there are people who, for one reason or another, have not understood their rights and not taken the necessary steps to secure them, we ought to be proactive in society in bringing those people on board. There are, as we have heard already in this debate, a considerable number of people in this predicament.

We also have other long-standing communities in our midst for whom there is a real issue about understanding citizenship. I think of the Roma, Travellers and Gypsies, for whom we do not take proper responsibility. Too many people have emotional attitudes towards them. We do not see them as fellow citizens and bring them, through citizenship, into communication on an equal footing with us. This is a very important, decent and humane amendment, which I hope has widespread support.

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

Baroness Whitaker Excerpts

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

[Baroness Altmann (Con)]

My Lords, I support Amendment 44 on late applications, to which I have added my name, especially in the light of the pandemic, with people perhaps not being well for quite some time or not knowing that they need to register. I hope that there will be explicit provision in the Bill for late applications. I also support Amendment 96, which would require publication of reasonable grounds for late application. Again, that would help people to understand that there is the wherewithal, for those who have missed the deadline, for genuine reasons to be catered for.

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

[Baroness Whitaker (Lab)]

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

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

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

“has always been a requirement”

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

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

Covid-19: Support and Accommodation for Asylum Seekers

Baroness Whitaker Excerpts

Tuesday 30th June 2020 Lords Chamber

[Baroness Williams of Trafford]

My noble friend makes some valid points. He is absolutely right that we need to balance the claim of the asylum seeker with any danger that they might pose and also the genuine nature of the claim. My honourable friend Chris Philp, a Minister in the House of Commons, said yesterday there how important it was to weed out the genuine from the—shall we say?—non-genuine asylum seeker. I am sure that the services do analysis like that all the time, examining the type of behaviour experienced after someone is granted asylum, their vulnerability and the things that might cause it.

[Baroness Whitaker (Lab) [V]]

My Lords, following directly from those last points, I say that indefinite detention of asylum seekers is generally acknowledged to be one of the most stress-inducing and unjust disposals. The Home Office was forced in January to release 350 of the 1,225 asylum seekers held in detention, but how many of those remaining have now been reviewed, as was promised? Will the Government cut down the maximum period to 28 days, as was recommended by the parliamentary committee?

[Baroness Williams of Trafford]

My Lords, it is unlawful to detain someone indefinitely, and the danger in seeking 28 days is that it encourages behaviour such as running down the clock with various appeals. It is important that people do not spend months and months in detention and that their claims are seen to swiftly and expeditiously. Certainly, that is what is best for the asylum seeker and for the system itself.

Scrap Metal Dealers Act 2013

Baroness Whitaker Excerpts

Thursday 2nd November 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, buying scrap metal for cash is now an offence. I declare an interest in that I was chairman of the Heritage Lottery Fund for the north-west, so I recognise the totally disproportionate impact that these crimes have on communities and on heritage. The Sentencing Council has published guidelines relating to offences of theft which specifically recognise that where an offence involves the theft of historic objects or a loss of the nation’s heritage, these are to be considered aggravating factors when sentencing. This can include damage to heritage sites or theft from the interior or exterior of listed churches.

[Baroness Whitaker (Lab)]

My Lords, what discussions have the Government had with Gypsy and Traveller traders about the Act as currently implemented? It has caused them considerable difficulties, almost amounting to restraint of trade.

[Baroness Williams of Trafford]

I am just turning to my noble friend Lord Henley, who was involved in the Act, as was my noble friend Lord Taylor of Holbeach. I understand that during the passage of the Bill and prior to that, the Gypsy and Traveller community made representations. However, there is an overriding point here, which is that the trade in scrap metal must be lawful, and therefore the full force of the law should come down on people who steal metal and attempt to sell it.

Criminal Finances Bill

Baroness Whitaker Excerpts

2nd reading (Hansard): House of Lords
Thursday 9th March 2017 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I declare an interest as a member of Transparency International UK and a former member of its advisory council.

I welcome this Bill in general. I simply follow the noble Lord, Lord Flight, with a note of disagreement and a few remarks in support of unexplained wealth orders. These could make considerable inroads into combating the injustice of the enjoyment of the profits of crime, which, as has been said, run into billions of pounds. At present, according to the OECD’s Stolen Asset Recovery initiative, we freeze the equivalent of only $225.5 million a year.

I also commend this proposed measure because, as a civil rather than a criminal provision, it bears on the asset not the individual, and because a High Court judge needs to be satisfied that there are reasonable grounds that the asset has not been lawfully acquired. I agree with TI UK that this accords with human rights obligations.

I welcome the Government’s assurance in the other place that figures on these orders will be included in the annual statistics of asset recovery and that there will be an updated code of practice enjoining co-operation between the agencies concerned. I ask the Minister: which will be the first year for the inclusion of these figures, and when will the code of practice be available?

As my noble friend Lord Rosser said powerfully, echoed by the noble Baroness, Lady Kramer, the right reverend Prelate the Bishop of Oxford and others, among the matters which remain to be dealt with are public registers of beneficial ownership in the overseas territories and Crown dependencies, as well as strengthening the capacity to repatriate seized funds. Can the Minister tell us how the Government propose to pursue the highly desirable obligation to declare beneficial ownership in these tax havens?

Further measures to repatriate the illegal gains looted from developing countries are necessary. This has been a scandal for years. I hope that the Minister can offer us some comfort.

That said, the Bill as a whole will not only improve justice but will enhance to a degree the reputation of the UK as a serious fighter against corruption. I hope that we can enable it to do even more in Committee.

Policing and Crime Bill

Baroness Whitaker Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

We should welcome that. It is a very positive signal that here in the capital such data collection will be done in future. I hope that other police forces follow suit and that when the Minister comes to reply to this debate, she will give a fair wind to this excellent amendment from the noble Baroness, Lady Brinton.

[Baroness Whitaker (Lab)]

My Lords, I add my support to the amendment from the noble Baroness, Lady Brinton, to which my noble friend Lord Rosser has added his name. She has hit eloquently on an important omission in our capacity to deal with young offenders.

When I and members of the Gypsy and Traveller communities first lobbied for an extension of the census categories to include Gypsies and Travellers, before the increase in our Roma population, we did so because important areas of discrimination, resulting in significantly poorer life chances, were undocumented and a minority ethnic population of very long standing was simply unrecognised in many sets of official statistics. When we eventually achieved this in 2011 we thought that at last the public services would begin to understand more about the significantly worse outcomes in health, education, employment, housing and experience of the criminal justice system endured by many from these communities.

It remains disappointing that the Youth Justice Board has not taken advantage of the opportunity of the 2011 census categories to map more accurately what happens to young Gypsy, Traveller and Roma people. I am grateful for useful meetings with the noble Lord, Lord McNally, as chair of the Youth Justice Board, and his officials on the subject. His acknowledgment that the current system is not robust was welcome and I appreciate his commitment to improvement in data gathering. However, the fact remains that records still do not consistently capture more of the reality of who the young people who go through our criminal justice system are.

There are, of course, some external obstacles. Many young people from the Gypsy and Traveller communities are fearful of admitting their ethnicity because of the bullying and exclusion which has been meted out to them in the past. But trust can be developed if the information is shown to be helpful.

As the noble Baroness, Lady Brinton, said, it would be very important to be able to correlate the probable overrepresentation of these young people with literacy levels and mental health status—also referred to by the noble Lord, Lord Alton. Their experience of education and accommodation has often been deeply unsatisfactory, but we cannot begin to make these links and to do something about it until we have the data tools.

As has been said, we know that both HM Inspectorate of Prisons and the lead chief constable for Gypsy, Traveller and Roma issues have called for the change the amendment would provide. The excellent Irish Chaplaincy's Traveller Equality Project has really positive evidence of good practice to justify the use of up-to-date information in the adult prison estate.

I hope, therefore, that the Minister will see the point too and accept this amendment.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I will speak briefly in support of Amendments 228A and 228B in the name of my noble friend Lady Brinton. The arguments for ethnic monitoring are well versed and I will touch upon them briefly. As has already been said, without ethnic monitoring it is very difficult for public services to identify, and therefore address, any inequalities which vulnerable groups may be experiencing. As the noble Lord, Lord Alton, has said, whenever there have been research or studies into the experiences of Gypsies, Travellers and Roma in custodial institutions—in either the youth or adult estates—these communities are almost always shown to have worse experiences and greater care needs.

Voices Unheard: A Study of Irish Travellers in Prison found that over 20% of Traveller young offenders were identified as having mental health issues. This is an alarming number and needs a co-ordinated effort in order to be addressed. However, as we know, without ethnic monitoring and consistent data it is unlikely that such an intervention would take place. As the report’s author, Dr Conn Mac Gabhann—I hope I have pronounced that correctly—said in an interview on this issue recently:

“While ethnic monitoring will not solve all the problems Gypsy and Traveller children face in the youth criminal justice system, it will be an important step in helping us to highlight the problems and issues they face and ensure these issues become a target to be tackled”.

I have little more to add to the very powerful speeches of my noble friend Lady Brinton, the noble Lord, Lord Alton, and the noble Baroness, Lady Whitaker. They have covered the ground extremely well. I hope the Government can support these amendments and ensure that the issues affecting young Gypsies and Travellers in the youth justice system can finally be addressed.

Hate Crime

Baroness Whitaker Excerpts

Wednesday 14th September 2016 Lords Chamber

[Baroness Williams of Trafford]

I most certainly join my noble friend in welcoming this announcement and the fact that my right honourable friend Sajid Javid will be launching it in about 10 minutes’ time. My noble friend is absolutely right that these memorials do not just serve to help us remember. The education centres alongside them ensure that our children and the children of future generations know the horrors that went on in the past and, we hope, learn from them for the future.

[Baroness Whitaker (Lab)]

Can the noble Baroness tell me how the genocide of the Roma people is to be commemorated in the Holocaust memorial drawn attention to by the noble Lord opposite?

[Baroness Williams of Trafford]

My Lords, of course the killing of the Roma people was all part of the terrible Holocaust. I will provide more details to the noble Baroness in due course.

Southern Rail: Service Cuts

Baroness Whitaker Excerpts

Wednesday 6th July 2016 Lords Chamber

[Lord Ahmad of Wimbledon]

I say to my noble friend that I did not say that, and nor did I suggest it. I do not believe that the current situation is acceptable; indeed, the reduction of services is also unacceptable. The first issue is to provide at least some sense of reliability to those using this network as to when trains will be running. My noble friend will also be aware that services have also been suffering from a high degree of sickness, which has resulted in a reduction in service performance since May from 83% to 63%.

[Baroness Whitaker (Lab)]

My Lords, I am a passenger on Southern Rail. Is the Minister aware that in the whole of my very long life I have never had such dreadful service? How long is he going to give this company before the franchise is reviewed?

Violence Against Women

Baroness Whitaker Excerpts

Wednesday 25th November 2015 Lords Chamber

[Lord Bates]

I am not sure about the answer, because it is a devolved matter for the Welsh Assembly to determine. It was certainly introduced here. Another very positive development which we introduced was FGM protection orders to give children at risk court protection to prevent them being moved out of the country to where those barbaric practices can be carried out.

[Baroness Whitaker (Lab)]

My Lords—

[Baroness Fookes (Con)]

My Lords—

[Baroness Whitaker]

My Lords, will the Minister join me in congratulating the Government of Gambia on banning female genital mutilation, as announced in a newspaper today?

[Lord Bates]

I am very happy to do that.