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

Lord Rosser Excerpts

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

[Lord Bruce of Bennachie (LD) [V]]

My Lords, I commend those noble Lords who have followed this Bill in detail and identified so many anomalies and injustices that may arise with the ending of free movement. I have intervened to give them support and to identify amendments in which I have a particular interest.

My brief intervention here is in support of Amendment 64 which, like a number of others, highlights the hardship and injustice that may arise not by deliberate intent but because, when a freedom that has been available for so long is terminated, something that is currently not an issue becomes one.

In Scotland, we have leading centres of medical excellence. In my home region, in Aberdeen, we have the oldest teaching hospital in the English-speaking world, which has pioneered a number of innovations including the MRI scanner. Medical centres of renown exist in Dundee, Edinburgh and Glasgow.

Under the present rules, treatment can be provided to EEA nationals without recourse to a visa. It would surely be inhumane if, under the terms of this amendment, a visa were to be denied in future. Similarly, it is surely right on compassionate grounds if an orphaned child can best be placed in foster care in the UK—for example, where a sibling is already placed or some other particular circumstances apply. If the child is the dependant of someone living in the UK who has the right to remain, it is surely absolutely right that they can be united with them in the UK. This should be sufficient grounds for the automatic right to a visa.

We have seen cases in which UK citizens have availed themselves of medical treatment elsewhere in the EU, and previous contributions have discussed treatment being provided to people from elsewhere, so it is to be hoped that accepting this amendment would help to ensure that EU countries provide similar reciprocal arrangements.

So much will change next year, sadly, in my view, to the detriment of UK citizens in most cases, and also inflicting potential hardship on our fellow EU citizens whose access to the UK has not been restricted hitherto. This amendment is a simple example of how we can modify our visa arrangements post Brexit on compassionate and humanitarian grounds. I hope it will be accepted in that spirit.

[Lord Rosser (Lab)]

My Lords, in Committee in the Commons, the Government stated that they were

“committed to the principle of family reunion and supporting vulnerable children”

and that they

“recognise that families can become separated because of … conflict and persecution”,

including through

“the speed and manner in which people are often forced to flee their country.” —[Official Report, Commons, 30/6/20; col. 263.]

Eligibility for refugee family reunion is covered in the UK’s Immigration Rules, which provide that refugees in the UK can be joined, via family reunion, by their spouse or partner and their dependent children under the age of 18.

Amendment 62 increases the family members whom EEA and Swiss nationals, who have exercised a right ended by Clause 1 of this Bill and are refugees in the UK, are allowed to sponsor to join them. In reality, the existing UK policy leaves some of the most vulnerable children separated from their parents at a time when they need their families more than ever—an issue that Amendment 62 seeks to address.

Amendment 64, to which my noble friend Lord Dubs’s name is attached, seeks to remedy this by requiring the Secretary of State to make provision for a visa to enter or remain in the UK on humanitarian grounds. This would apply to an EEA or Swiss national—that is done to keep the amendment in scope of the Bill—who requires medical treatment in the UK that is not available where they are resident; who is an orphan child, and a foster family or other foster care is available to the child in the UK and leave to enter or remain in the UK would be in the child’s best interests; or who is a dependent child of someone who has been granted leave to enter or remain in the UK. In their reply, perhaps the Government could say what they estimate would be the number of people entering the UK each year under the terms of such a humanitarian visa, compared with the latest annual net migration figure, for example.

The third amendment in this group provides that a person should be granted leave to enter or remain in the UK if they are an EEA or Swiss national and either have a child with a British citizen or person who has leave to remain in the UK, or are a child of a British citizen or person who has leave to remain in the UK.

I conclude by saying only that if the Government are

“committed to the principle of family reunion and supporting vulnerable children”,—[Official Report, Commons, 30/6/20; col. 263.]

as they said in the Commons when this Bill was being discussed, surely they can accept one or more of the amendments in this group.

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Moved by

[Lord Rosser]

63: After Clause 4, insert the following new Clause—
“Duty to raise awareness of citizenship rights
(1) The Secretary of State must take steps to raise awareness of rights under the British Nationality Act 1981 to register as a British citizen to persons to whom subsection (2) applies.(2) This section applies to any person who has lost rights under section 1 and Schedule 1.(3) Within six months of the day on which this Act is passed, the Secretary of State must publish a report detailing the steps taken to raise awareness of rights under subsection (1), and lay it before Parliament.”

[Lord Rosser (Lab)]

Amendment 63 would lay a duty on the Secretary of State to raise awareness of people’s rights to register as a British citizen under the British Nationality Act 1981, with the people concerned being those who lose rights under Clause 1 and Schedule 1 of the Bill. The amendment would also require the Secretary of State to publish and lay before Parliament a report within six months of this Bill becoming an Act, detailing the action taken to raise awareness of rights to register as a British citizen.

As I understand it, before the 1981 Act anyone born in the UK was born British. The 1981 Act ended that and laid down who is and who is not a British citizen, and who is entitled to citizenship. Someone born in the UK now is only a British citizen if one of their parents is a British citizen or settled in the UK. Apart from the Home Secretary having a general power to register any child as a British citizen, all registration under the British Nationality Act 1981 is by entitlement. A child or an adult who satisfies the criteria for registration is entitled to British citizenship. The 1981 Act does not give the Home Secretary the decision of whether someone is entitled to British citizenship. This is different from naturalisation as a British citizen, which is only at the discretion of the Home Secretary, and only adults can be naturalised.

The EU settlement scheme, which provides for pre-settled and settled status, raises an issue. Some of those about to lose EU free movement rights in the UK will have rights to register as British citizens that they have not yet exercised, and they would quite probably wish to do so as people of EEA or Swiss nationality or parentage in the UK if the alternative was settled status. Citizenship means much more than settled status, and there being no available evidence of citizenship can have significant adverse consequences if changes are subsequently made to immigration policies, as the Windrush generation have found out.

In the shadow of the Windrush scandal, the Government should not be casual in their attitude to people’s right of access to citizenship. They should be working proactively to ensure that those, including children, who have the right to register as British citizens, with the same rights as all of us, are aware of that right and can access it. With the end of free movement and the focus on the EU settlement scheme, there is a risk of those who have the right to access British citizenship and register as British citizens ending up with at best an immigration status. This amendment seeks to minimise the risk of this happening.

In their response, can the Government update the Committee on what work is being done by the Home Secretary and the Home Office to proactively raise awareness and encourage and assist those who have the right to be British citizens to enjoy those rights? If the answer is that no such work is being undertaken on this citizenship issue, can the Government explain why not? I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak to Amendment 67 in my name and those of other noble Lords who will be speaking. I am grateful for their support. I express support for Amendment 63, moved so well by my noble friend Lord Rosser. Once again, I am grateful to the Project for the Registration of Children as British Citizens, of which I am a patron, and to Amnesty International UK for its briefing.

Amendment 67 would place a duty on the Secretary of State to encourage, promote and facilitate awareness and the exercising of rights to British citizenship among EEA and Swiss nationals. It would also introduce a positive duty to confirm information known to the Home Office that is relevant to establishing a person’s right to citizenship. I am told that at present such information is all too often not forthcoming—a particular problem for many looked-after children—but there appears to be a greater readiness to check and act on such information when it confirms that there is no entitlement to citizenship.

The intention of the amendment is to shift the Home Office’s mindset, in the spirit of Wendy Williams’s Windrush report. That mindset resulted in the active discouragement of members of the Windrush generation from exercising their rights to British citizenship. As we have heard, there are real fears that the lessons of that review are not being learned when it comes to children of EEA and Swiss citizens who were born in the UK or who have grown up here from an early age. Research by the European Children’s Rights Unit, funded by the Home Office, indicates that Roma children, who are an especially vulnerable group, may be particularly at risk.

More generally, PRCBC gives the example of Matteo, who was born in the UK to Italian parents. He has lived here all his life apart from occasional visits to Italy and a gap year in continental Europe. When he became an adult, he discovered to his great distress that he was not regarded as a British citizen when he was refused inclusion on the electoral register for the general election and was twice refused a British passport. Before contacting PRCBC, he had been given poor legal advice that he should apply for settled status under the EU settlement scheme and be naturalised as a British citizen at a future date. Having established what his situation was, PRCBC was able to help him register his entitlement to British citizenship under the 1981 Act. No one had previously advised him of this right, and he had suffered serious mental distress as a result. A young man in this situation should not have to rely on the chance of finding his way into an organisation like that. How many are not finding their way to such organisations?

Can the Minister explain what exactly the Home Office is doing to proactively encourage the exercise of the right to register citizenship, both directly and through local authorities, to ensure that children and young people such as Matteo are not missing out on their chance of registering as citizens? What steps is it now taking to ensure that no one who is entitled to register as a British citizen is wrongly channelled through the EUSS as an immigrant without being informed of their existing right to register as a citizen? Are any specific steps being taken to ensure that Roma children have the information and support they need? Also, can she give us some idea of the number of children overall likely to be affected?

These are important questions. The right to British citizenship of an unknown number of children is at stake. I and others emphasised the importance of citizenship in moving an earlier amendment, and there was a lot of support in the Committee for citizenship’s importance. The answer to these questions will give us some idea of the importance the Home Office attaches to it, and how far it is genuinely willing to shift its mindset in the wake of the Windrush scandal and the Lessons Learned report on it. In that report, Wendy Williams wrote of the need for “deep cultural reform”. The response to these amendments will serve as an indicator of whether the Home Office is genuinely committed to such reform.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have partaken in this debate. I do not disagree that people should have their rights communicated to them and generally should feel part of the communities in which they live, as the noble Lord, Lord Greaves, says.

At this stage, it is worth decoupling two distinct matters: one is the end of the transition period and the other is the consideration of whether someone is British or should become so. However, I do not think the latter is at issue. For the former, which is the subject of this Bill, we have made extensive arrangements to ensure that the rights enjoyed by those who have resided here under free movement can continue until the end of this year.

British citizenship, as noble Lords have said, is determined by the British Nationality Act 1981, which sets out how someone may already be British—for example, through their birth here—and, for those who are not, the means by which a person may seek to become so. This might be through naturalisation or registration, depending on the individual’s circumstances and connections. Any applications submitted will utilise information that we already hold on an individual as far as possible, although there may always be circumstances in which further information may be needed. We treat all applications to become British equally, regardless of the nationality that the applicant may currently hold. The important consideration is whether they meet the requirements set out in statute. Equally, our guidance on the application process is published and available to all.

Last year we received nearly 175,000 nationality applications, which indicates that people generally are aware of the application process, the benefits of becoming British and what it might mean to individuals when they are ready to apply. That does not mean that we cannot consider alternative approaches. Noble Lords will remember, and a noble Lord referred to the fact, that the Home Secretary announced on 21 July in a Statement that alongside the Windrush Lessons Learned Review, she proposed—along with evaluating changes to immigration and nationality laws to ensure that they are fit for purpose for today’s world—to make sure that the changes were now communicated effectively where they had not previously been so. Many of the speeches touched upon that aspect of things.

While there has not been a suggestion by noble Lords that it is a change of law per se that is of concern to them—I absolutely get where noble Lords are coming from—but perhaps more general awareness for a group who may have previously not considered becoming British, I am happy to put on record that I will ask the Home Secretary whether raising awareness of citizenship more generally could form part of that ongoing process and to consider ways how that might be achieved. I will also pass on the request from the noble Lord, Lord Alton, to meet the Home Secretary, but any change should be for all people potentially affected, not only those who would lose freedom of movement rights—I do not think he was suggesting otherwise. He also asked how much the legal cost of court appeals had been. He will not be surprised that I cannot recall that off the top of my head, but I do not disagree with the general principle that an awful lot of money on all sorts of sides is spent on court cases. I hope that with those undertakings, the noble Lord, Lord Rosser, will feel able to withdraw his amendment.

[Lord Rosser (Lab)]

I thank the Minister for her reply. I understand from what she said that she has undertaken to discuss the issue of further raising awareness with the Home Secretary. I also thank all noble Lords who spoke in support of the amendments in this group.

I think I am right in saying that the Minister did not respond to the question as to what the numbers are of those who are still entitled to British citizenship under the British Nationality Act 1981 but have yet to apply. If we are not aware of the number, that in itself is a real case. I know that the Minister has undertaken to look at this matter further, but it makes the real case for making sure that we raise awareness as much as possible to people who might be in that situation to urge them to consider exercising their right to British citizenship. Surely we need to ensure that all those entitled to register for British citizenship either have it confirmed that that is already their status or are advised that they can register for that citizenship to which they are entitled under the 1981 Act.

We are, after all, talking about an entitlement—a right—to British citizenship, as I know the Minister has recognised. Surely, as people who are proud to be British, we should actively want to ensure that all those who have that entitlement are made aware of it and encouraged to exercise it, with the key responsibility for doing so and facilitating that entitlement to citizenship resting clearly with the Secretary of State and the Government. I hope very much that the discussions that I believe the Minister has said that she will have with the Home Secretary will lead to further very strenuous efforts to raise awareness of this right. Indeed, I hope that the Government will go further, as proposed in Amendment 67, to encourage people to exercise their entitlement and to do their utmost to facilitate matters so that the entitlement can be exercised with ease. In the light of that, I beg leave to withdraw the amendment.

Amendment 63 withdrawn.

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[Baroness Hamwee (LD) [V]]

To follow the previous speech, this may be the first time we are taking this particular car round the track but I do not think it will be the last, because this amendment is aiming

“to clarify the rights … available to EEA citizens during the ‘grace period’ under”

the recently published SI. It is about the period to the end of June 2021. I say it aims to clarify the issues but it is more about putting some issues on the table. The Minister will be able to say that the amendment is not necessary because we have already done it. I thank her or possibly him—I am peering at a computer screen—for that and for what I saw being called the “bounty” of the recently published draft SIs. I think that was a reference to their length and complexity.

The instrument in question is the draft citizens’ rights (application deadline and temporary protection) (EU exit) regulations 2020. However, I am afraid that the debate now will not be the end of it. After this debate, as well as before it, stakeholders will be grappling with the detail of it and the other published SIs. I do not regard myself as having the knowledge required to appreciate the significance of the modifications to all the provisions listed across the 14 pages of this instrument.

My first question is about the status of the draft, which has been referred to throughout as an “illustrative draft”. What does illustrative mean? Is this simply because draft statutory instruments have a formal status, while this publication has not reached that status?

Exactly who is protected by the grace period provisions? Is it only those exercising treaty rights by the end of 2020, while, for instance, people who are self-sufficient and without comprehensive sickness insurance—what might better be called in this country private health insurance—are not covered? When the 2020 withdrawal Act was going through Parliament, there were clear assurances that everyone eligible for status via the EU settled status scheme would be protected during the grace period. The Minister will appreciate the importance of the issue: protection is not to be withdrawn from those currently eligible otherwise than through treaty rights who have not applied by the end of the year. In previous debates, I raised the importance of information being not just available but actively provided to those who are affected, in the context of who will be applying after next June. If this SI is to restrict applications, the matter is really very urgent.

The Minister, Kevin Foster, said that the regulations would be

“debated and made in good time prior to their entry into force at the end of the transition period.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 16/6/20; col. 191.]

I am sure noble Lords will understand that what is “in good time” for the Home Office could be very last minute for the individuals affected.

Will the Minister comment on one of the draft illustrative regulations? Regulation 7 in Schedule 1 to the 2016 regulations, which this modifies, acknowledges the discretion of member states

“acting within parameters set by the EU Treaties”

in taking a decision conducive to the public good. This discretion will become:

“acting within parameters set by the law, to define its own standards of public policy and public security, for purposes tailored to its individual context from time to time.”

I will not go down the route of saying that this is quite topical, given both the political and politico-legal debate that is going on, but I am sure the Minister will understand that there is a worry about moving the goalposts.

Will the Minister agree to meet parliamentarians if necessary—I understand there is a similar concern in the Commons—and for officials to be able to meet stakeholders, and the legal experts who are advising them, who are considering this draft and the other draft published at the same time? They are concerned, and they need the time. I ask that knowing that there is the opportunity for the Government to withdraw a published draft and reissue it, but it is always much easier, because of how human beings behave—they do not like to be thought to be backing down, and so on—to have the conversations before the final form is published, when it will be that much more difficult to withdraw.

My amendment provides the opportunity to make those requests for what I am sure could be productive discussions with people who are not in the Chamber at the moment and who will have other points they could usefully make. I beg to move.

[Lord Rosser (Lab)]

We had a short debate on this issue when we debated Amendment 52, and I raised one or two questions about the draft SI, which, as the noble Baroness, Lady Hamwee, said, is called the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. One of the questions I raised, to which I do not think I had an answer, related to Regulation 13, which states:

“Where any question arises as to whether a person is or was lawfully resident in the United Kingdom at a particular point in time … it is for the individual in question to prove that they were”.


I asked in what situation the Government expect that people would have to prove their ongoing status; how they envisage people will do this, in the sense of what documentation they might need, for example; and, crucially, what support there would be for a person who found themselves in this situation and who might well in fact be perfectly lawfully resident in the United Kingdom.

I share the view that the noble Baroness, Lady Hamwee, expressed, that we need an opportunity for discussion of the provisions of the draft SI, and that it is a fairly complex process. At this stage, I have two further questions. First, are there any EEA citizens, and their families, resident in the UK by the end of the transition period whose full existing rights are not going to be protected during the grace period through secondary legislation made under the European Union (Withdrawal Agreement) Act 2020? Secondly, will the Minister spell out precisely whose full existing rights are protected by the draft SI?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for speaking to her Amendment 80. Its purpose, as she said, is to require the Government to publish draft statutory instruments protecting the rights of EEA citizens who are eligible to apply to the EU settlement scheme but have not done so by the end of the transition period. It concerns, as she said, the statutory instrument that will be made under Section 7 of the EU (Withdrawal Agreement) Act 2020. As noble Lords are aware, and as the noble Baroness mentioned, my noble friend Lady Williams of Trafford wrote to all noble Lords on 4 September, sharing a copy of this draft statutory instrument together with a copy of the draft regulations to be made under Clause 4 of this Bill.

The noble Baroness, Lady Hamwee, asked about the nature of the use of the word “illustrative”. My understanding is that it is used to differentiate from “Draft” with a capital D, which has a formal meaning—so yes, they are illustrative. In making these draft documents available, the Government’s intention is to support your Lordships’ House in its consideration of the Bill. They are also made available to Members in another place and published in the Libraries of both Houses.

The instrument will set the deadline for applications to the EU settlement scheme as 30 June 2021. It will also save relevant existing rights, in relation to residency and access to benefits and services for EEA citizens and their eligible family members who make an application by 30 June 2021, until it is finally determined. This includes pending the outcome of an appeal against any decision to refuse status under the EU settlement scheme. This means that if somebody has not yet applied or been granted status under the EU settlement scheme by the end of the transition period, they can continue to work and live in the UK as they do now, provided they apply by 30 June 2021. The Government will shortly lay this statutory instrument, which will be subject to debate and approval by Parliament and will need to come into force at the end of the transition period.

The noble Baroness, Lady Hamwee, asked about CSI. The grace period statutory instrument does not change the eligibility criteria for the EU settlement scheme and those criteria do not include CSI. I can confirm that the Government are not changing the requirements for applications to the EU settlement scheme. The grace period SI maintains CSI 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.

The noble Baroness asked a question on a specific draft statutory instrument. In the interests of brevity and accuracy, I shall write to her about that, as I will on any other questions I have not covered. I am certainly happy to give an undertaking to meet parliamentarians and those who are interested in this issue, so that we can look at it further.

The noble Lord, Lord Rosser, asked what documentation people might need. During the grace period, EEA citizens will be able to give evidence of their rights to work and rent property by showing their passport or identity card. If EEA citizens apply for benefits during the grace period, they may need to demonstrate that they were also lawfully resident under the EEA regulations at the end of the transition period, for example that they were employed, which they might demonstrate by providing a wage slip or a letter from their employer. That is a requirement that they must meet now.

As I said, I am happy to write with further answers on the questions that I have not covered but I hope that this gives the noble Baroness the reassurance that she needs to withdraw her amendment.

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[Lord Rosser (Lab)]

The mover of the resolution, the noble Baroness, Lady Hamwee, has explained the background to this amendment and what has prompted it. As has been said, Section 117C of the Nationality, Immigration and Asylum Act 2002 provides an exemption against deportation where it would be “unduly harsh” on that person’s partner or child. As the noble Baroness, Lady Hamwee, explained, the amendment seeks to give what I would interpret as more specific and relevant weight to the impact on a child of the deportation of somebody who may be a foreign criminal with a genuine and subsisting parental relationship with that British child, or other qualifying child, when considering an exemption.

I await with interest the Government’s response, during which I hope it may be possible for the Government to provide information on the number of such exemptions against deportation given under Section 117C of the 2002 Act in each of the last three years for which figures are available. Also, what estimate, if any, have the Government made of the increase, if any, in the number of such exemptions per year that would result from the change provided for in this amendment becoming applicable—a change which, frankly, in the light of some of the legal cases to which the noble Baroness, Lady Hamwee, referred, would seem quite reasonable?

[Baroness Williams of Trafford (Con)]

My Lords, next time I stand here, I will bring a series of numbers because the noble Lord, Lord Rosser, and others have foxed me on numbers this afternoon. However, but I will get for him, if I can, the number of exemptions under Article 8. I thank the noble Baronesses for bringing forward Amendment 82A on family life.

The Article 8 ECHR

“right to respect for family and private life”

is a qualified right, which can be circumscribed where lawful, necessary and proportionate in the interest of a number of factors, including national security, public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. Section 117C of the Nationality, Immigration and Asylum Act 2002 provides that when assessing whether deportation breaches Article 8 of the ECHR, the deportation of a foreign national offender is in the public interest, unless certain exceptions apply. These amendments seek to alter these exceptions and diminish the importance placed on the public interest in deporting the most serious offenders.

The proposed new clause amends the exception at Section 117C(5) for foreign national offenders—or FNOs—who have been sentenced to less than four years of imprisonment and have a genuine and subsisting relationship with a qualifying partner or child so that their deportation would not be in the public interest if it would be unreasonable for the child to leave the UK or to remain in the UK without the foreign national offender. That would be in addition to the existing exception which applies where the effect of the deportation on the partner or child would be unduly harsh.