Citizens’ Rights (European Affairs Committee Report)

Earl of Kinnoull Excerpts

Monday 11th September 2023 Grand Committee

Moved by

[The Earl of Kinnoull]

That the Grand Committee takes note of the Report from the European Affairs Committee Citizens’ Rights (1st Report, Session 2021-22, HL Paper 46).

[The Earl of Kinnoull (CB)]

My Lords, I rise to move the Motion standing in my name and will introduce two pieces of work by the European Affairs Committee. Between May and June 2021, the committee conducted an inquiry into the rights of around 6 million EU citizens resident in the UK and around 1.2 million UK citizens resident in various EU countries. We published our report on 23 July 2021 and the Government responded on 19 November. Scheduling pressures meant that, by late 2022, we had still not been able to hold a debate on it. The committee therefore decided to undertake an updating process and contacted all the original witnesses to ask their views. They all responded and, in May 2023, the committee held an additional oral evidence session. It then sent a lengthy follow-up letter to the Government on 25 May 2023 and the Government responded on 2 August.

I pay warm tribute to the staff of the original report—Simon Pook, Dominic Walsh, Tim Mitchell, Sam Lomas and Louise Shewey—as well as to those on the more recent letter, Jarek Wisniewski, Jack Sheldon, Tabitha Brown and Elyssa Shea, with Tim Mitchell and Louise Shewey reprising their original roles. The skill and dedication of all concerned has produced two compelling documents.

At a high level, our July 2021 report applauded the Home Office’s achievement in processing more than 5.4 million settlement scheme applications of the 6 million received by 30 June 2021, the initial deadline for receipt. The report also praised the scheme’s principle of looking for reasons to grant new residence status for EU citizens rather than to refuse it. However, the report detailed various issues still to be resolved in both the settlement scheme and the systems operated by EU member states. Our update work looked at these areas again.

As of 30 June 2023, the settlement scheme had received 7.4 million applications. Thus, 1.4 million applications had been received since the 2021 deadline, showing just how live an issue this remains. It is therefore imperative that matters relating to these rights continue to receive the closest attention, being integral to the overall relationship between the UK and the EU.

Coming to the UK settlement scheme first, I start with the process of moving from pre-settled to settled status. Our original report foresaw the challenges ahead for the millions needing to apply to transfer from pre-settled status to settled status to secure their rights permanently. The committee noted that,

“although the Home Office planned to send individual reminders, the effectiveness of these would rely on holders of pre-settled status keeping their contact details up to date”.

In December 2022, following a judicial review brought by the IMA, the High Court ruled that the design of the settlement scheme was unlawful, particularly with regard to the Government’s approach to those granted pre-settled status.

The committee wrote to the Government in January, and again in our long letter in May, for clarification on the steps being taken to implement the High Court’s decision. The Home Secretary’s response on 2 August noted that the Government are

“working to implement the December 2022 High Court judgment as quickly as possible and in such a way that it will continue to be easy for EU citizens to evidence their WA rights in practice”.

The Home Office had in fact published some further details regarding the settlement scheme on its website a couple of weeks earlier, on 17 July, which was not referred to in the letter of 2 August to the committee. These July details stated that it would take steps to convert automatically

“as many eligible pre-settled status holders as possible to settled status … without them needing to make an application”.

In response to all of this, the IMA said that

“while we broadly welcome the commitment from the Home Office that no-one will lose their pre-settled status for failing to make a second application, we remain concerned about the lack of detail about how the plans will work in practice”.

Thus nine months or so on, there is still a woeful lack of clarity affecting an estimated 2 million people about how the Government intend to implement the High Court judgment of December 2022. Does the Minister accept that? When will the Government provide the vital clarity about how the automatic conversion of pre-settled to settled status will operate in practice?

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[The Earl of Kinnoull (CB)]

Another problem area concerns backlogs and delays in the application of the settlement scheme. Since the 30 June 2021 deadline, there has continued to be a steady flow of fresh applications to the scheme. We are concerned that a backlog has developed in processing these applications and issuing certificates of application. From published data and the Home Secretary’s response, we know that in the period December 2022 to June 2023 the number of applications not concluded fell from an aggregate of 180,000 to an aggregate of 150,000 or so. We also know that between March and June 2023 the monthly number of new applications averaged just over 50,000. Broadly speaking, that would imply a pipeline of three months or so, with difficult cases no doubt taking far longer. Given these figures, can the Minister say by when the Government expect to clear the backlog in processing these applications?

The problem of digital status also persists. The committee and its predecessors have repeatedly and consistently raised concerns regarding the digital-only character of the EU settlement scheme. In our 2021 report, we noted that the absence of a physical document created the risk that many EU citizens, including the elderly and those who are digitally challenged, may struggle to prove their rights. We recommended that the Government offer holders of settled or pre-settled status the additional option of requesting and paying for physical documents, which would complement rather than replace their existing digital status. The evidence that we have considered in our follow-up research suggests that our concerns about this aspect of the design of the EU settlement scheme were well founded.

The quality of the digital system has also become an issue, which I now come to: the database error debacle. In January 2023, it was revealed that the incorrect status had been displayed online for approximately 146,000 people for an extended period. For settlement scheme applicants whose applications to the scheme were refused between June 2021 and April 2022, the online database displayed their application as “pending” instead of “refused” until 18 January 2023.

In her response letter of 2 August, the Home Secretary explained that these individuals received an email or postal notification of the decision when it was made, but that this was not reflected in an applicant’s digital status, which is used by some government departments when making decisions about access to benefits and services. She says that this

“was not due to a database error”,

but rather reflected that

“the digital status system did not have the capability to reflect that an administrative review or appeal was pending”,

and that it was necessary to ensure that such individuals

“continued to have temporary protection of their rights”.

I repeat all this hard to understand justification into Hansard so that others can form a view as I have. Systems that do not have necessary capabilities are by definition not good. Will the Minister say when the Government became aware that the online database reflected incorrect statuses?

The 146,000 concerned all had conflicting government news from two sources and, for at least some, one of the sources was not digital but a letter. There is an inconsistency between the Government’s defence of the digital systems for proof of status and their argument that users should not have relied on the information displayed on the digital system when accessing benefits or healthcare. For those who received a letter, which the Government maintain they should have relied on, this inconsistency is even worse. Can the Minister say why, given that the Government acknowledge that this situation arose out of system design problems and that it went on unstemmed for so long, the Secretary of State’s full powers of discretion to waive benefit debts has not been used, including in respect of universal credit?

Our 2021 report identified a mixed picture of how the rights of UK citizens were being upheld in EU member states. The evidence that we received in the follow-up indicates that this assessment still holds true. Although residence schemes appear to be operating relatively smoothly in the majority of EU member states, we have been aware of significant problems in others.

In her response letter, the Home Secretary informed the committee about

“regular discussions with the Commission … to raise and resolve issues”.

I welcome the Government’s engagement with the Commission on these matters and urge them to continue to raise such issues as they arise, including in relation to processes for upgrading to permanent residence. The key point is that there remain plenty of individual cases to be resolved. We are, however, very concerned to hear that resources to support UK citizens in the EU on citizens’ rights issues have been scaled back substantially since we conducted our 2021 inquiry. Several stakeholders were critical of the Government’s decision to close the UK nationals support fund, which provided funding to non-governmental organisations in some EU member states to support residence applications from UK citizens. Here, a little money has gone a long way in the past. Will the Minister provide an update on the resources available to UK embassies in EU member states to support UK citizens facing citizens’ rights issues? What government funding is currently available to non-governmental bodies that support EU-based UK nationals on citizens’ rights issues?

I have spoken for a long time and touched on only some of the key issues from this important work. I very much look forward to the debate ahead. I beg to move.

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[The Earl of Kinnoull (CB)]

My Lords, I am grateful to four sets of people. First, I am deeply grateful to the Minister for the richness of what he said—it was very interesting—and his promise to continue to write. As I think he will have seen, we are all extremely passionate here about doing the right thing for people who live in our community, and I felt that he went a long way to answering some of our questions. I am very grateful for that indeed, and for his kind words.

Secondly, I thank everyone who took part. It was a high-level and extremely interesting debate. Thirdly, I thank the noble Lord, Lord Wood of Anfield. Because of my change in role, he took over at a very difficult moment, when we were trying to draw the strands of this together and created an excellent letter with the committee which has been the foundation of our debate this afternoon. I am eternally grateful to him for doing that, because it is a jolly difficult job, and he is a very busy man. He did it with his usual good humour, and I owe him lots of drinks.

My final thanks go to my noble friend Lord Ricketts, who, I must say, arrived with tremendous energy and engagement on top of his great scholarship in this area. Looking now from the sidelines, I am deeply impressed with the way in which he is grappling with all the great complexities of European affairs.

I will not go through all the other points—lots of good ones were made—other than to say that the speech that in many ways I wish I had made was that of the noble Baroness, Lady Anelay. She focused on the situation for UK nationals in the European Union, and much of what we have been saying is about European Union nationals in the UK. The IMA serves the 6 million people here so well; it is very good indeed. We had lots of chats with it before it came for the evidence session. We do not really have an equivalent servicing our people in Europe. In probably a rather coded way, we are saying that a little bit of government money there could make a big difference. I hope that element will come out in the Minister’s letter to us all.

Motion agreed.