Immigration (European Economic Area Nationals) (EU Exit) Order 2019

Baroness Williams of Trafford Excerpts

Monday 18th March 2019 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Order laid before the House on 11 February be approved.

Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

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

My Lords, I beg to move that the House approves the draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019. Delivering a deal with the EU remains the Government’s priority. We are nevertheless preparing for a range of scenarios. As the Prime Minister has pointed out, the legal default in UK and EU law is that the UK will leave without a deal on 29 March unless something else is agreed.

UK domestic law has given effect to our obligations in the fields of immigration, nationality and asylum arising from our membership of the European Union. The UK has also been subject to directly effective EU law. When we leave the EU, aspects of our legislation and retained direct EU law will fail to operate effectively. They will contain deficiencies if they are not modified or revoked by this instrument.

These regulations make changes to a range of measures in domestic primary and secondary legislation to prevent, remedy or mitigate deficiencies in law arising from the UK’s exit from the EU. They ensure that our statute book operates on exit day if the UK leaves the EU without a deal until new legislation on these issues is commenced.

First, the instrument makes the technical changes required to correct wording in our legislation that describes the UK in terms of our membership of the EU or the European Economic Area. The changes do not alter the effect of the legislation. Similarly, it makes technical amendments to domestic legislation that refers to EU rights that are retained by the European Union (Withdrawal) Act 2018.

Secondly, this instrument revokes relevant retained EU legislation relating to immigration. It also revokes a number of instruments that give effect to the UK’s membership of EU asylum acquis and which will be inoperable on exit. This is because, by leaving the EU, the UK also leaves the asylum acquis. This instrument therefore revokes the Dublin regulation and the Eurodac regulation.

The instrument makes a number of transitional and saving provisions—

[Lord Paddick (LD)]

My Lords—

[Baroness Barran (Con)]

It is the other instrument.

[Baroness Williams of Trafford]

Ah. Do noble Lords mind if we do this one first?

[Viscount Waverley (CB)]

I think that every Member who has taken an interest in this has been in the Chamber, so the Minister can probably be allowed to continue. That is my view, but other Members may think differently.

[Baroness Williams of Trafford]

I have just taken advice and apparently I cannot do that. Please ignore everything I have just said.

On a day when you have three statutory instruments, an Urgent Question, a Question and a speech to deliver to the LGBT conference, this is what happens. I apologise to noble Lords that I have got the right speeches but in the wrong order. I will sit down for a minute to make sure that I have got the right instrument.

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

Might I suggest a short adjournment?

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[Baroness Williams of Trafford]

Take two, my Lords. The Government’s priority is to protect the rights of EEA and Swiss citizens who are already here. Deal or no deal, they will be able to stay and apply to the EU settlement scheme, which will be fully open from 30 March.

Delivering a deal remains the Government’s priority. We are nevertheless preparing for a range of scenarios. In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. Once free movement has ended, transitional immigration arrangements will be in place until the new skills-based immigration system is introduced from January 2021. The intention is to minimise disruption at the border and avoid a cliff edge, providing initial continuity for EEA and Swiss citizens and for businesses. The Government announced these arrangements on 28 January.

I make it clear that these transitional arrangements will not apply to EEA and Swiss citizens resident in the UK before exit. These citizens will be able to apply to secure their status under the EU settlement scheme. Nor will they apply to Irish citizens, who, under common travel area arrangements, will continue to be able to enter and remain in the UK without requiring leave.

Those who are not eligible for the EU settlement scheme will require leave to enter once free movement has ended, and this order provides the mechanism by which that leave to enter will be granted. Such citizens will be granted leave to enter for a period of three months, automatically, upon arrival at the border. This means that they will be able to cross the border much as now, including using e-passport gates. They will not be questioned routinely or have their passport stamped. This leave will allow them to work, study or visit for short periods as we transition to the new skills-based immigration system to be introduced from 2021.

For many individuals, a single three-month period of leave will be sufficient. Others, such as regular business visitors or frontier workers who live in the EU but work in the UK, may wish to come on more than one occasion. The order will enable them to do so by granting leave to enter automatically on each arrival. As now, there will be some EEA and Swiss nationals whom we will not wish to enter the UK—for example, where their presence in the UK is undesirable on criminality or non-conducive grounds. Those who are the subject of exclusion or deportation orders or other specified decisions will not benefit from the automatic leave provisions, and Border Force officers will be able to cancel automatic leave where an individual’s presence in the UK is deemed to be non-conducive. Those who wish to remain for longer than three months would need to apply for European temporary leave before the end of the initial three-month period. This would give them a further 36 months’ leave to remain. These arrangements are a contingency plan, necessary only in a no-deal scenario, to allow us to transition smoothly from the end of free movement to the future skills-based immigration system.

The order also makes changes to support the EU settlement scheme in both a deal and a no-deal scenario. It provides that those granted settled status may be absent from the UK for up to five consecutive years without it lapsing. For Swiss citizens granted settled status or their family members, this period will be up to four consecutive years, in line with the citizens’ rights agreement negotiated with Switzerland. It also ensures that scheme leave granted to a Crown servant, to a permanent member of the British Council who is an EEA or Swiss national or to a member of Her Majesty’s forces will not lapse as a result of an overseas posting. This will also apply to a person with scheme leave accompanying them, or accompanying a British citizen, on such a posting. The order facilitates overseas applications to the scheme and clarifies that scheme applicants will not need to pay the immigration health charge.

These are important measures to support the delivery of the EU settlement scheme and our no-deal contingency plan. I beg to move.

Amendment to the Motion

Moved by

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[Lord Marlesford (Con)]

I would like to follow up that last point. It is what I have been talking about for years. We have totally inadequate means of knowing who has come in, when they have come in, when they should leave and whether they have left. The whole system is a shambles. This is an opportunity to get it right.

[Baroness Williams of Trafford]

I thank noble Lords for their contributions to this debate. My noble friend Lord Marlesford is correct; this is an opportunity to get it right.

It would probably be helpful to start by stating the purpose of this statutory instrument, and that, I hope, will go to some extent to my noble friend Lord Deben’s point. This statutory instrument is essentially a temporary arrangement in a no-deal situation, until free movement ends under the immigration Bill. In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. In a no-deal scenario, once free movement has ended, there would be a transitional period until the new skills-based immigration system is introduced in January 2021. This order ensures that during this period, we would minimise disruption at the border and provide initial continuity for EEA and Swiss citizens, and for businesses. The Government announced these transitional arrangements on 28 January. Regarding the points made by the noble Lord, Lord Paddick, about seeming to favour EU nationals, the whole point of this is to provide that transitional certainty.

The noble Lord, Lord Kennedy, talked about how the three-month period would be enforced. Obviously these are transitional arrangements, to be put in place only in the event of no deal. We cannot switch things off and on overnight, so we need to ensure that the correct legislation and operational plans are in place. It will take some time to prepare for our new skills-based immigration system, but the Government have been clear that our intention is for it to be in place by 2021.

These arrangements lay the foundations for the future. We cannot control European immigration until all EEA and Swiss citizens here have a UK immigration status, which will take some time. In a no-deal scenario, those resident here by 29 March 2019 will have until the end of 2020 to apply to the EU settlements scheme. These arrangements enable us to move from a rights-based system of free movement to a UK system where everyone requires permission to be here. Accordingly, until the new system is introduced, a proportionate, light-touch enforcement approach will be taken in respect of EEA and Swiss citizens. The noble Lord asked me to define “light touch”—I assume that it means without too much bureaucratic involvement in form filling and other matters that make life very difficult.

If an EEA or Swiss citizen is found not to have appropriate status, we will encourage them to make the relevant application. I am absolutely clear on the importance of clear communications so that individuals understand their status. This is imperative for those resident in the UK before we leave the UK on 29 March, and those who arrive here afterwards. Our focus is on encouraging and supporting EEA and Swiss citizens to acquire an appropriate status and ensure that they have sufficient time to do so. We are committed to a fair immigration system which operates with integrity and which welcomes those who are here legally. But we are clear that compliance with UK immigration laws and rules is essential in supporting this.

For those who arrive after free movement ends, we will make it clear that they need to apply for European temporary leave to remain before their three months’ automatic leave expires. Where they have good reason for not doing so, we will encourage them to make this application, or to leave the UK voluntarily, but where there is abuse of the system, we will consider enforcement action.

The noble Lord, Lord Kennedy, asked how long the application will take. Applications for 36-month temporary leave to remain will use the EU settlement scheme infrastructure, which allows them to be determined within a period of days. He also asked what will happen at the end of the three months to those who will have applied for 36 months’ leave. If a person applies for 36 months leave within three months, they can still stay lawfully in the UK until their application is decided.

The noble Lord, Lord Paddick, asked why the exemption from the immigration health surcharge is needed. The exemption in this order applies to those applying for leave under the EU settlements scheme, not those who obtained three months’ leave to enter under part 2 of the order. The noble Lord also asked if people could leave the UK, then return and obtain a further three months. The answer is yes.

The noble Lord, Lord Kennedy, asked about the three months’ automatic leave to enter. The order provides that in a no-deal scenario, three months’ leave to enter would be granted to EEA and Swiss citizens who required such leave once free movement has ended. It would be granted automatically upon arrival at the border, allowing them to work, study or visit for short periods as we transition towards the new skills-based immigration system, to be introduced from 2021.

The noble Lord, Lord Paddick, asked about consultation on the order. These are transitional arrangements to ensure that the border remains fluid after the end of free movement, and until we move to the order arrangements, from 2021 onwards. These plans were set out in the Government’s White Paper, The UK’s Future Skills-Based Immigration System, and the Government intend a 12-month period of engagement on such plans. The noble Lord also asked about the exit checks on EU nationals now. They will be introduced when we leave.