There have been 122 exchanges between Lord Rosser and Home Office
|Wed 30th September 2020||Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Lords Chamber)||27 interactions (3,836 words)|
|Tue 29th September 2020||Covid-19: Child Trafficking (Lords Chamber)||3 interactions (82 words)|
|Mon 28th September 2020||Asylum System (Lords Chamber)||3 interactions (94 words)|
|Wed 23rd September 2020||Immigration (Health Charge) (Amendment) Order 2020 (Lords Chamber)||6 interactions (1,306 words)|
|Tue 22nd September 2020||Brexit: Refugee Protection and Asylum Policy (EUC Report) (Grand Committee)||3 interactions (1,433 words)|
|Wed 16th September 2020||Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Lords Chamber)||17 interactions (1,804 words)|
|Mon 14th September 2020||Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Lords Chamber)||18 interactions (3,664 words)|
|Wed 9th September 2020||Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020 (Lords Chamber)||3 interactions (99 words)|
|Wed 9th September 2020||Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Lords Chamber)||31 interactions (3,625 words)|
|Mon 7th September 2020||Digital Evidence (Lords Chamber)||3 interactions (46 words)|
|Mon 7th September 2020||Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Lords Chamber)||9 interactions (1,833 words)|
|Thu 3rd September 2020||Channel Crossings in Small Boats (Lords Chamber)||2 interactions (161 words)|
|Wed 2nd September 2020||Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020 (Grand Committee)||3 interactions (963 words)|
|Wed 29th July 2020||Hong Kong British National (Overseas) Visa (Lords Chamber)||3 interactions (81 words)|
|Wed 22nd July 2020||Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Lords Chamber)||3 interactions (1,280 words)|
|Tue 21st July 2020||Knife Crime (Lords Chamber)||3 interactions (68 words)|
|Thu 16th July 2020||Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2020 (Lords Chamber)||3 interactions (790 words)|
|Wed 15th July 2020||Metropolitan Police: Racism (Lords Chamber)||3 interactions (77 words)|
|Fri 10th July 2020||Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020 (Lords Chamber)||3 interactions (1,012 words)|
|Tue 7th July 2020||Immigration: Detainee Support (Lords Chamber)||3 interactions (109 words)|
|Tue 30th June 2020||Covid-19: Support and Accommodation for Asylum Seekers (Lords Chamber)||2 interactions (160 words)|
|Wed 24th June 2020||Windrush Compensation Scheme (Lords Chamber)||2 interactions (918 words)|
|Tue 23rd June 2020||Reading Terrorist Attack (Lords Chamber)||2 interactions (906 words)|
|Mon 22nd June 2020||Independent Inquiry into Child Sexual Abuse (Lords Chamber)||3 interactions (102 words)|
|Mon 15th June 2020||Black Lives Matter: Protests (Lords Chamber)||3 interactions (98 words)|
|Wed 10th June 2020||Quarantine: Scientific Advice (Lords Chamber)||3 interactions (113 words)|
|Tue 9th June 2020||Public Order (Lords Chamber)||2 interactions (710 words)|
|Thu 4th June 2020||Child Sex Predators (Lords Chamber)||3 interactions (41 words)|
|Thu 4th June 2020||Covid-19: UK Border Health Measures (Lords Chamber)||2 interactions (989 words)|
|Wed 6th May 2020||National Asylum Support Service (Lords Chamber)||3 interactions (86 words)|
|Wed 6th May 2020||Windrush Compensation Scheme (Lords Chamber)||3 interactions (1,368 words)|
|Tue 5th May 2020||Policing: Covid-19 Guidance and Legislation (Lords Chamber)||3 interactions (104 words)|
|Thu 19th March 2020||County Lines Drug Trafficking (Lords Chamber)||3 interactions (147 words)|
|Thu 19th March 2020||Windrush Lessons Learned Review (Lords Chamber)||3 interactions (611 words)|
|Tue 17th March 2020||Anti-terrorism Policy (Lords Chamber)||3 interactions (49 words)|
|Mon 16th March 2020||Metropolitan Police: Live Facial Recognition (Lords Chamber)||3 interactions (124 words)|
|Tue 25th February 2020||Immigration: Points-based System (Lords Chamber)||3 interactions (767 words)|
|Mon 3rd February 2020||Operation Midland (Lords Chamber)||3 interactions (147 words)|
|Mon 3rd February 2020||Net Migration (Lords Chamber)||3 interactions (110 words)|
|Tue 21st January 2020||Health: Alcohol Abuse (Lords Chamber)||3 interactions (97 words)|
|Wed 15th January 2020||Extinction Rebellion: Prevent Programme (Lords Chamber)||3 interactions (117 words)|
|Wed 23rd October 2019||EU Settlement Scheme (Lords Chamber)||3 interactions (98 words)|
|Mon 21st October 2019||Queen’s Speech (Lords Chamber)||3 interactions (2,029 words)|
|Wed 16th October 2019||Metropolitan Police: Use of Section 14 of the Public Order Act 1986 (Lords Chamber)||3 interactions (260 words)|
|Tue 8th October 2019||Visa Applications: Dr Mu-Chun Chiang (Lords Chamber)||3 interactions (149 words)|
|Tue 8th October 2019||Sir Richard Henriques Report (Lords Chamber)||3 interactions (150 words)|
|Mon 7th October 2019||Asylum Seekers: Employment (Lords Chamber)||3 interactions (130 words)|
|Mon 7th October 2019||Operation Midland (Lords Chamber)||3 interactions (233 words)|
|Tue 23rd July 2019||Immigration: Children (Lords Chamber)||3 interactions (85 words)|
|Tue 23rd July 2019||British Nationality Act 1981 (Remedial) Order 2019 (Lords Chamber)||2 interactions (417 words)|
|Thu 18th July 2019||Immigration Staff: Recruitment (Lords Chamber)||3 interactions (201 words)|
|Thu 18th July 2019||Immigration Detention: Victims of Modern Slavery (Lords Chamber)||3 interactions (282 words)|
|Mon 15th July 2019||Misuse of Drugs Act 1971 (Amendment) Order 2019 (Grand Committee)||11 interactions (991 words)|
|Thu 11th July 2019||Public Spaces Protection Orders (Lords Chamber)||3 interactions (162 words)|
|Tue 9th July 2019||Migrant Children: Welfare (Lords Chamber)||3 interactions (1,222 words)|
|Thu 4th July 2019||Independent Inquiry into Child Sexual Abuse (Lords Chamber)||3 interactions (168 words)|
|Thu 27th June 2019||Knife Crime (Lords Chamber)||3 interactions (1,628 words)|
|Wed 26th June 2019||Homophobic Attacks (Lords Chamber)||3 interactions (132 words)|
|Wed 26th June 2019||Safeguarding Vulnerable Groups Act 2006 (Specified Scottish Authority and Barred Lists) Order 2019 (Lords Chamber)||6 interactions (1,169 words)|
|Wed 19th June 2019||Immigration and Asylum Applications (Lords Chamber)||3 interactions (185 words)|
|Mon 10th June 2019||Asylum Seekers (Lords Chamber)||3 interactions (184 words)|
|Tue 14th May 2019||Grooming Gangs (Grand Committee)||3 interactions (535 words)|
|Tue 7th May 2019||Places of Worship: Protective Security Funding (Lords Chamber)||3 interactions (527 words)|
|Tue 30th April 2019||Overseas Students: TOEIC Tests (Lords Chamber)||3 interactions (269 words)|
|Thu 28th February 2019||Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2019 (Lords Chamber)||2 interactions (1,309 words)|
|Wed 5th December 2018||Religious Hate Speech (Lords Chamber)||3 interactions (172 words)|
|Mon 3rd December 2018||Counter-Terrorism and Border Security Bill (Lords Chamber)||10 interactions (415 words)|
|Wed 28th November 2018||Immigration (Health Charge) (Amendment) Order 2018 (Lords Chamber)||9 interactions (2,597 words)|
|Wed 28th November 2018||Investigatory Powers Tribunal Rules 2018 (Lords Chamber)||3 interactions (411 words)|
|Wed 21st November 2018||Police, Fire and Crime Commissioner for North Yorkshire (Fire and Rescue Authority) Order 2018 (Lords Chamber)||7 interactions (1,080 words)|
|Wed 21st November 2018||Misuse of Drugs Act 1971 (Amendment) Order 2018 (Grand Committee)||12 interactions (1,045 words)|
|Tue 20th November 2018||Crime (Overseas Production Orders) Bill [HL] (Lords Chamber)||3 interactions (104 words)|
|Thu 15th November 2018||Police: Serious and Violent Crime (Lords Chamber)||3 interactions (101 words)|
|Wed 14th November 2018||Counter-Terrorism and Border Security Bill (Lords Chamber)||33 interactions (2,362 words)|
|Mon 12th November 2018||Counter-Terrorism and Border Security Bill (Lords Chamber)||22 interactions (1,801 words)|
|Mon 12th November 2018||Stop and Search Powers (Lords Chamber)||3 interactions (150 words)|
|Mon 5th November 2018||Knife Crime (Lords Chamber)||3 interactions (133 words)|
|Mon 5th November 2018||Brexit: Arrangements for EU Citizens (Lords Chamber)||3 interactions (192 words)|
|Mon 29th October 2018||Counter-Terrorism and Border Security Bill (Lords Chamber)||20 interactions (2,287 words)|
|Thu 25th October 2018||Border Force: Heathrow Airport (Lords Chamber)||3 interactions (109 words)|
|Thu 25th October 2018||Immigration (Lords Chamber)||3 interactions (852 words)|
|Mon 22nd October 2018||Crime (Overseas Production Orders) Bill [HL] (Lords Chamber)||9 interactions (2,726 words)|
|Mon 15th October 2018||Asylum Applications (Lords Chamber)||3 interactions (100 words)|
|Tue 9th October 2018||Counter-Terrorism and Border Security Bill (Lords Chamber)||3 interactions (2,239 words)|
|Tue 11th September 2018||Brexit: Europol (Lords Chamber)||3 interactions (51 words)|
|Mon 10th September 2018||Crime (Overseas Production Orders) Bill [HL] (Grand Committee)||25 interactions (1,748 words)|
|Wed 5th September 2018||Crime (Overseas Production Orders) Bill [HL] (Grand Committee)||27 interactions (2,410 words)|
|Tue 24th July 2018||Rendition of UK Citizens (Lords Chamber)||3 interactions (204 words)|
|Tue 24th July 2018||Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018 (Lords Chamber)||8 interactions (674 words)|
|Tue 24th July 2018||Immigration Detention: Shaw Review (Lords Chamber)||3 interactions (1,086 words)|
|Mon 16th July 2018||Cannabis: Medicinal Use (Lords Chamber)||3 interactions (138 words)|
|Thu 12th July 2018||Operation Conifer: Funding (Lords Chamber)||3 interactions (106 words)|
|Wed 11th July 2018||Crime (Overseas Production Orders) Bill [HL] (Lords Chamber)||3 interactions (2,348 words)|
|Mon 9th July 2018||Amesbury Update (Lords Chamber)||3 interactions (646 words)|
|Fri 29th June 2018||Registration of Marriage Bill [HL] (Lords Chamber)||6 interactions (341 words)|
|Thu 28th June 2018||Police and Crime Commissioners (Lords Chamber)||3 interactions (1,657 words)|
|Wed 27th June 2018||Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018 (Lords Chamber)||5 interactions (979 words)|
|Tue 26th June 2018||Airports: Border Force (Lords Chamber)||3 interactions (128 words)|
|Thu 21st June 2018||EU Settlement Scheme (Lords Chamber)||3 interactions (935 words)|
|Tue 19th June 2018||Drugs Licensing (Lords Chamber)||3 interactions (660 words)|
|Mon 18th June 2018||Home Office: Immigration (Lords Chamber)||3 interactions (168 words)|
|Thu 21st December 2017||Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2017 (Lords Chamber)||6 interactions (476 words)|
|Fri 15th December 2017||Refugees (Family Reunion) Bill [HL] (Lords Chamber)||3 interactions (1,067 words)|
|Fri 15th December 2017||Immigration Control (Gross Human Rights Abuses) Bill [HL] (Lords Chamber)||3 interactions (969 words)|
|Thu 7th December 2017||Islam: Tenets (Lords Chamber)||3 interactions (960 words)|
|Mon 27th November 2017||Randox and Trimega Laboratories (Lords Chamber)||3 interactions (399 words)|
|Thu 2nd November 2017||Calais: Refugees (Lords Chamber)||3 interactions (482 words)|
|Tue 31st October 2017||Hamas (Lords Chamber)||3 interactions (71 words)|
|Mon 30th October 2017||Deaths in Police Custody (Lords Chamber)||3 interactions (1,054 words)|
|Tue 24th October 2017||Daphne Caruana Galizia (Lords Chamber)||3 interactions (136 words)|
|Tue 24th October 2017||Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2017 (Lords Chamber)||3 interactions (342 words)|
|Mon 23rd October 2017||Banks: Immigration Act 2016 (Lords Chamber)||3 interactions (69 words)|
|Wed 11th October 2017||Operation Conifer (Lords Chamber)||3 interactions (139 words)|
|Tue 10th October 2017||Immigration: International Students (Lords Chamber)||3 interactions (150 words)|
|Thu 7th September 2017||Cannabis (Grand Committee)||3 interactions (566 words)|
|Wed 6th September 2017||Prevent Strategy (Lords Chamber)||3 interactions (114 words)|
|Wed 6th September 2017||Psychoactive Substances Act 2016 (Lords Chamber)||3 interactions (123 words)|
|Wed 19th July 2017||Immigration Act 2016 (Lords Chamber)||3 interactions (233 words)|
|Wed 19th July 2017||Refugees (Lords Chamber)||3 interactions (729 words)|
|Mon 10th July 2017||Security in the UK (Lords Chamber)||3 interactions (2,417 words)|
|Tue 4th July 2017||Immigration Centre Detainees: Pay (Lords Chamber)||3 interactions (144 words)|
|Thu 29th June 2017||Police: Senior Posts (Lords Chamber)||3 interactions (137 words)|
My Lords, I thank all noble Lords who have spoken in this debate. I particularly thank my noble friend Lady Neville-Rolfe for bringing back her amendment, supported by the noble Lord, Lord Green of Deddington, and my noble friend Lord Hodgson of Astley Abbotts, about how the repeal of EU law relating to free movement set out in Schedule 1 will be enforced. I strongly support the premise of the amendment, but I hope I will be able to explain why it is not necessary to divide the House.
The premise of the amendment is particularly important in a post-Brexit era. On the point made by the noble Baroness, Lady Hamwee, I assure noble Lords that the Home Office will be updating its published enforcement policy with particular regard to EEA citizens and their family members who, having arrived here after the end of the transition period, from January 2021, must have leave to enter or remain. She pressed me on the legislative options. She will understand that I cannot pre-empt these, but I am sure they will become clear in due course
The guidance will make it clear to immigration enforcement officers that no enforcement action should be taken in respect of those EEA citizens who can apply for the EU settlement scheme until the deadline of 30 June 2021. This includes while an application is outstanding after that deadline and pending the outcome of any appeal if the decision is to refuse status under the EU settlement scheme. Instead, officers should encourage EEA citizens to apply during the grace period. We have given a clear commitment that, where EEA citizens and their family members have reasonable grounds for missing the deadline, they will be given a further opportunity to apply. The Government will publish guidance on what constitutes reasonable grounds for missing the deadline in early 2021, as I articulated previously.
As I set out during our earlier debate on this amendment, we are now moving towards having a level playing field for EEA and non-EEA citizens, where they will be treated equally and will be covered by the same published guidance regarding the application of sanctions and enforcement measures if these are relevant. My noble friend Lady Neville-Rolfe has previously said that she wants to see robust enforcement and highlighted a number of practical suggestions made by the noble Lord, Lord Green of Deddington. I hope I can provide at least some assurances in these areas.
Enforcing the UK’s immigration laws is critical to a functioning immigration system and effectively implementing the Government’s policies. Tackling illegal working, targeting those in the country illegally and removing dangerous foreign criminals is an absolute priority. The fall in returns in the latest year was largely due to very few returns in the last quarter because of Covid. In addition, the Home Office has been operating against an increasingly challenging legal landscape in recent years, which the noble Lord, Lord Green of Deddington, referred to. In some cases, this has constrained its ability to return individuals, and this has been coupled with a noticeable increase in levels of abuse designed to delay and frustrate our processes, reducing the removals achieved.
In term of performance on deporting foreign criminals, more than 55,000 have been returned since 2010. To pick up on my noble friend Lord Hodgson’s point about returns from the EU, of the 3,791 foreign national offenders—FNOs—returned from the UK in the year ending June 2020, two-thirds were EU nationals. We will also pursue action rigorously against individuals living in the community, actively monitoring and managing cases through the legal processes and negotiating barriers to removal. Despite logistical issues with flights in the current pandemic, the Home Office will continue to take these forward with routes currently available, and as further routes return.
The noble Lord, Lord Green of Deddington, made suggestions in Committee about illegal migrants destroying their documents and linking the issuing of visas to countries readmitting their own citizens. Visas are a border and national security tool. The UK keeps its visa system under regular review. Decisions on changes are always taken in the round and reflect key facets of the bilateral relationship with the country concerned. These will vary globally, but often include security, compliance, returns and prosperity. On his point about restoring the detained fast-track system for some asylum claims, unfortunately this process had to be suspended following a finding by the courts that the fast-track procedure rules were unlawful. However, we continue to explore options on tightening up key elements of our immigration system, including around asylum, appeals and enforcement.
Finally, the noble Lord mentioned the difficulty of preventing EU visitors and non-visa nationals working while in this country. Illegal working, as noble Lords will know, is a key driver of illegal migration; it encourages people to break our immigration laws and provides the practical means for migrants to remain in the UK unlawfully. This encourages people to take risks by putting their lives in the hands of unscrupulous people smugglers; it leaves them vulnerable to exploitative employers and results in businesses that are not playing by the rules undercutting legitimate businesses that are. It also negatively impacts on the wages of lawful workers and is linked to other labour market abuses such as tax evasion, breach of the national minimum wage and exploitative working conditions—including, of course, modern slavery in the most serious cases.
Immigration enforcement teams take the threat of illegal working extremely seriously and work with employers to deny illegal workers access to jobs by making it straightforward to check a worker’s status and entitlement as well as providing a range of charged-for training and advisory services. Where employers do not follow the rules, we will apply a range of sanctions, from civil penalties to closure notices and, ultimately, the prosecution of criminal offences.
Turning to specific questions, a number of noble Lords mentioned the PAC report. We will, of course, respond to that in due course. The noble Lord, Lord Paddick, unsurprisingly referred to our meeting and the issue of e-gates. People cannot use repeat visits to live here legally and obtain the same rights as residents to work and obtain benefits. He talked about visitors repeatedly passing through e-gates after 31 December 2020. Those who do not have another form of UK status may be granted six months leave to enter but will not be able, as I say, to work or access benefits and services. They will, of course, be expected to leave the UK or extend their stay before their leave to enter expires, and they may, as I said, face enforcement or removal if they do not. Any EEA national arriving to work or study will need to apply under our new system and obtain prior permission, just like any other non-visa nationals. Without such permission, they will not be able to demonstrate their entitlement to remain in the UK for anything other than a visit.
We had what I thought was a very constructive conversation about how people might be currently trying to game the system, and about what the situation might be beyond January 2021. He asked me how the B5JSSK countries were chosen. There was an assessment of factors, including volumes and security and the issue was debated in both Houses. He also made the point that the countries were all white countries. Japan, Singapore and South Korea may not be, but I do not know how he defines “white”. I will leave it at that, since it is a subjective matter.
I will repeat that a parliamentary report on enforcement, as required by this amendment, is unnecessary because policy guidance on enforcement is already published. I hope my noble friend will withdraw her amendment.
Break in Debate
My Lords, my Amendment 30 is along the lines of Amendment 3, but tougher and more radical. I would love to know that there is some support for it, but I think Amendment 3 will edge it. However, this amendment has huge support, and I thank the people from the Scottish National Party, who on a point of principle do not take their seats in the House of Lords—or what seats they might be offered. They have done all the work in getting together a huge variety of people, including RNIB Scotland, UNISON, Macmillan Cancer Support, Disability Wales, the Church of Scotland and the Northern Ireland Council for Voluntary Action. I could go on: more than 40 organisations and NGOs support this amendment.
An absolutely crucial point, which the Minister did not tackle when I presented this amendment in Committee, was that this proposal draws in all four nations. That is something that Amendment 3, I am afraid, does not mention. My amendment would probably enable the Government to have much more support for their work; it would strengthen buy-in from stakeholders across the four nations and increase the status and profile of the evaluation.
Many of the points I wanted to make have already been made by the noble Lord, Lord Rosser, very eloquently, but many bear repeating. The Government are closing their eyes to a potential problem. My key concern is about the health and social care workforce. The organisations that have contributed to this amendment are aware that some health and social care organisations rely heavily on workers from other parts of the EU and cannot continue in their present form without support. If they are allowed to fail, other parts of the health and social care system will be needed to fill those gaps.
On efficiency and effectiveness, research carried out by the Health and Social Care Alliance Scotland in communities across Scotland highlighted that people who use support and services have concerns about their future availability. That means that with the health and social care system already creaking, combined with an elderly workforce, some people will have to try to find their own ways to minimise any negative repercussions as a result of changes accruing from leaving the EU. Then there is the adequacy of public funding for the health and social care sectors. The alliance’s report raised major concerns about the impact of Brexit and the potential loss of EU funding in health and social care in Scotland, particularly to third-sector organisations, which have a key role in the provision of health and social care services. Any loss of funding will place a further strain on that whole sector, and it seems that the Government are not acknowledging that it will be a problem.
I would therefore like the Minister to answer my point that my amendment would create buy-in from the four nations, which the Government seem to be ignoring at the moment. Also, it is quite possible that without the extra workforce that we currently get through people coming from other countries, the whole system could start to fail. Are the Government prepared to put enough money into it to make sure that it does not fail and let down all the people who care about this service?
Break in Debate
I have received no requests from noble Lords wishing to speak after the Minister, so I call the noble Lord, Lord Rosser, to reply.
The Question is that Amendment 3 be agreed to. The Question will be decided by a remote Division. I instruct the clerk to start a remote Division.
Break in Debate
My Lords, I thank the noble Baroness, Lady Hamwee, for introducing this group of amendments, and I thank the noble Lord, Lord Pannick, for his powerful intervention on behalf of the Constitution Committee. If we take our committee system seriously, we should take very seriously indeed the unanimous view of the Constitution Committee on such crucial issues.
I am afraid that what we have before us is another example of what I think is a deliberate confusion. Tremendous emphasis was made at the time of the referendum that the case for Brexit was to take power back. What on earth does that mean in a representative democracy? It means giving strengthened powers to a democratic political system—parliamentary democracy. Are we a parliamentary democracy, or are we not? The powers that are envisaged in this legislation are too great and too wide; they are in need of very careful scrutiny.
I am glad that we have moved forward since Committee, because we previously talked about a 12-month curb on the powers but now we are talking about a six-month term, which is an altogether sensible and healthy development. I strongly support this group of amendments.
I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, for speaking to their amendments, which concern the regulation-making power in Clause 4. I shall reiterate the point I made in Committee, which is that it is absolutely right that parliamentary scrutiny should include the scope of delegated powers in the Bill. The debate in this House was helpfully assisted by the latest report of the Delegated Powers and Regulatory Reform Committee and the intervention of its chair, my noble friend Lord Blencathra, for which I am grateful. The Government have considered the recommendations made in the report carefully and I have written to my noble friend and other Members of the Committee.
I shall address first Amendments 4 and 5 in the name of the noble Baroness. The purpose of Amendment 4 is to limit the use of the power in Clause 4 to make legislative changes that are “necessary” rather than “appropriate”. The purpose of Amendment 5 is to limit the power to changes that arise as a consequence of Part 1 of the Bill but are not “in connection with” it. The Government have now shared an illustrative draft of the regulations which are to be made under this power later in the year, subject to Parliament’s approval of the Bill. As I explained in my formal response to the Delegated Powers and Regulatory Reform Committee
“In so doing, the Government’s intention was to demonstrate the necessity of having the power in clause 4, as it is drafted, and how it will be used in tandem with the power in the EU (Withdrawal Agreement) Act 2020 to end free movement in a way that is coherent, comprehensive and fully meets the requirements of the withdrawal agreements.”
Break in Debate
My Lords, I thank my noble friend for having introduced this amendment, for the considerate way in which he did it, and for the questions which he posed to the Minister, to which I hope she will reply.
It would be difficult to overestimate the degree of concern that exists among voluntary and civil society organisations which are looking after children and seeing to their protection. I know that across the House, irrespective of party, there is a real concern that we should always be seen in the world as a country which gives genuine priority concern to children.
Among those organisations is of course Amnesty, and it is worth seeing what it has to say on this. Many of these children may do themselves harm; many of them will be British citizens or entitled to register as such. It is vital to their interests that they are encouraged to act on these rights of British citizenship and that local authorities are encouraged and supported to assist children in doing so. If that is not done, these children may lose their rights to British citizenship, either because for some the right is lost on their reaching adulthood since delay may mean evidence becomes increasingly inaccessible to establish, or because an encounter with the criminal justice system may bar their exercise of the right on the basis that they are regarded as not of good character.
Amendments 10, 13 and indeed 18 are concerned with ensuring that EU citizens are not left without settled status. These are important concerns, because being without status or confirmation of it exposes someone to immigration powers and exclusions. These immigration powers include the ability to detain and remove a person from the United Kingdom, and those immigration exclusions include the ability to prohibit a person from such things as working, renting accommodation, holding a bank account, accessing free healthcare and applying for social welfare. There are a number of telling concerns around this area of the Bill, and I thank my noble friend for having introduced the amendment.
Break in Debate
My Lords, I thank the noble Lord, Lord Rosser, for his amendments. I hope that what I will say will reassure him and that he will feel happy to withdraw them. Both amendments seek to prevent the Government from making regulations under Clause 4 until we have published guidance on late applications made under the EU settlement scheme, the grace period statutory instrument and guidance on its operation.
I turn first to Amendment 10, which concerns the publication of guidance on how the Government will treat late applications to the EU settlement scheme. The Government have made clear their commitment to accepting applications after 30 June 2021, where there are reasonable grounds for missing this deadline. This is in line with the withdrawal agreements, which now have direct effect in UK law via the European Union (Withdrawal Agreement) Act 2020, so this commitment is effectively enshrined in primary legislation.
As I mentioned during Second Reading and more recently in Committee, the Government intend to publish guidance on reasonable grounds for missing the deadline in early 2021. This will be well in advance of the deadline. For now, our priority must be to encourage those eligible to make their application before the deadline. This will ensure that they can continue to live their lives here, as they do now, with the certainty that status granted under the scheme will provide them. We do not want to undermine those efforts and risk inadvertently causing people to delay making their application.
The noble Lord, Lord Judd—humanitarian that he is—supported by the noble Baroness, Lady Hamwee, talked about vulnerable people, particularly children. The Government are doing all that they can, using all available channels, to raise awareness of the scheme and ensure that vulnerable groups are helped to apply.
The published guidance, when it comes at the beginning of next year, will be indicative, not exhaustive. All cases will be considered in the light of their individual circumstances. Apart from asking for the reason for missing the deadline, the application process will be the same; we will consider the application in exactly the same way as we do now, in line with the immigration rules for the EU settlement scheme.
A person with reasonable grounds for missing the deadline, who subsequently applies for and obtains status under the scheme, will enjoy the same rights from the time they are granted status as someone who applied to the scheme before the deadline. However, they will not have those rights in the period after the missed deadline and before they are granted status, which is why we are encouraging and supporting people to apply as soon as possible. It is very pleasing that over 3.9 million people have done so.
In addition, it is important to remember that the regulations under the Clause 4 power include provisions relating to the rights of those with status granted under the EU settlement scheme. To delay those provisions, as envisaged by this amendment, would therefore be counterproductive in our collective effort to protect the rights of those resident in the UK by the end of the transition period, as well as Irish citizens.
Amendment 13 would require the Government to publish the draft statutory instrument that will temporarily protect 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, together with accompanying guidance. That instrument, as noble Lords know, is the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, which I will refer to as the grace period SI. An illustrative draft was shared with this House before Committee. Since then, on 21 September, the Government have formally laid the SI in Parliament.
The purpose of the grace period SI is to set the deadline for applications to the EU settlement scheme as 30 June 2021 and to protect the existing rights of resident EEA citizens and their family members during the grace period. It will save relevant legislation otherwise repealed by Clause 1 of and Schedule 1 to this Bill at the end of the transition period. This will mean that EEA citizens can continue to live and work in the UK as now throughout the grace period and pending the resolution of their application to the EU settlement scheme, providing they apply by 30 June 2021.
I reassure noble Lords 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 that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.
Noble Lords asked me about the scope of the regulations. 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. The statutory instrument will be subject to debate and approval by Parliament and will need to come into force at the end of the transition period. Where relevant, Home Office guidance will be updated to reflect the statutory instrument before the grace period commences.
I hope that I have explained that clearly and that, therefore, the noble Lord will feel happy to withdraw his amendment.
Break in Debate
My Lords, I am grateful to the Minister, who, as always, makes herself available and is happy to give us briefings and have chats about impending legislation. I had quite a long chat with the Minister the other day about this Bill and this amendment.
I cannot help feeling that the Government are making an enormous mistake. This is not the way to treat people; this is not the way to behave. We were told that people will have 15 months to sort themselves out, but this proposal takes away a basic right—whether you have 15 months or longer to accept it, it is still taking away a basic right. That is surely unacceptable.
As the noble Lord, Lord Flight, just said, this is retrospective legislation. Nobody knew at the time; this has been invented subsequently. Not a single person in this position—and I have had masses of emails, as we all have, with terribly sad stories of people who are bewildered and agonised over what to do—had any idea that this was going to happen to them. None of us did until recently. For a year or two after the referendum, we had no idea that this would be the case.
When I had a chat with the Minister and her officials, one of the arguments put—I do not think I am out of order in putting the argument, as she is bound to put it herself later—was that we would have two sorts of British people. Say we had a British person married to an American, compared with a British person married to a French person: the British person married to an American would not have the right that we are arguing for on behalf of the British person living with an EU partner. But, of course, no British person married to an American ever thought that they would have that right, but we are taking away the right from people who expected to have it all along.
As the noble Lord, Lord Flight, also said, this discriminates against British people. How does it do so? An EU citizen living in Britain with a British partner has the right to go backwards and forwards to EU countries with no constraints of the sort that we are seeking to impose on British people. We have retrospective legislation that will discriminate against British people, which is surely outrageous, and the arguments do not stand up. I honestly believe that the Government should back off. This is a very big mistake.
My Lords, I thank all noble Lords who have spoken in the debate, in particular the noble Baroness, Lady Hamwee, for speaking to Amendment 11, which seeks to continue the current family reunion arrangements provided under EU law, as the noble Earl, Lord Clancarty, pointed out, by the so-called Surinder Singh route. This amendment was tabled by my noble friend Lord Flight in Committee. It would require the regulations made under Clause 4 to provide a lifetime right for UK nationals resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied or to be joined by their close family members under current EU free movement law terms. The amendment seeks to provide this cohort with preferential family reunion rights under EU free movement law indefinitely. The result would be that the family members of such UK nationals would forever bypass the Immigration Rules that otherwise apply to the family members of UK nationals.
Family members of UK nationals who are resident in EEA states and Switzerland at the end of the transition period are not protected by the withdrawal agreements. However, the Government made the decision to provide arrangements for them. They will have until 29 March 2022 to bring their existing close family members —a spouse, civil partner, durable partner, child or dependent parent—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after this date, and must continue to exist when the family member seeks to come to the UK. Those family members will then be eligible to apply for status to remain here under the EU settlement scheme. Family members will, of course, be able to come to the UK after 29 March 2022 but will then need to meet the requirements of the Immigration Rules applying to family members of UK nationals, irrespective of where they come from.
A number of noble Lords asked me to advise them on what choices they would make. For a number of reasons, I cannot do that, not least because I am not an immigration lawyer. But it is not the case that UK nationals who wish to return to the UK from living in the EEA after 29 March 2022 will be required to abandon family members overseas. Those families will have to meet the requirements of the UK family rules, as I have just said, the same as family members of other UK nationals who already have to do this. This is a matter of simple fairness.
In Committee, my noble friend Lord Flight, was concerned that we were affording lesser rights to UK nationals than to EU citizens in this regard. Under the withdrawal agreements, EEA and Swiss citizens have lifetime rights to be joined here by existing close family members, but only if they are resident in the UK by the end of the transition period. UK nationals in EEA states and Switzerland have the same rights of family reunion in their host countries. By contrast, the amendment does not specify a date by which the UK national must return to the UK, meaning they could return at any point in the future and continue to benefit from EU family reunion rules. Such preferential treatment is unfair and cannot be justified in relation to the family reunion rights of UK nationals outside of EU law. The rights for those affected by the end of free movement should, after a reasonable period to plan accordingly, which our policy provides, be aligned with those of other UK nationals who have always resided in the UK or who seek to bring family members to the UK after a period of residence in a non-EEA country. To do otherwise would perpetuate a manifestly unfair situation for all other UK nationals wishing to live in the UK with family members from other countries.
The noble Baronesses, Lady Hamwee and Lady Bennett, the noble Lord, Lord Kerr, and my noble friend Lord Flight touched on the minimum income requirement. I appreciate the concerns that noble Lords raised in Committee. We think that the threshold is set at a suitable and consistent level and promotes financial independence, thereby avoiding burdens on the taxpayer. The MIR, as it is called, has been based on in-depth analysis and advice from the independent Migration Advisory Committee. The Supreme Court has also endorsed our approach in setting an income requirement for family migration which prevents burdens on the taxpayer and ensures that migrant families can integrate into our communities.
The noble Baroness, Lady Lister of Burtersett, referred to something that I mentioned in Committee. I am not sure that I am going to get this right. If I do not, I shall write to her or we can come back to it again. She was talking about £25,700. I understand that the minimum income requirement for a partner or spouse is £18,600, rising to £22,400 for sponsoring one child and the same again for sponsoring another. Can we speak after Report, or I will write to her after looking at Hansard?
My noble friend Lord Flight and the noble Lord, Lord Kerr, talked about Catch-22 in meeting the minimum income requirement. It does not exist as noble Lords described, as the minimum income requirement is generally to be met from the UK national partner rather than from the foreign national partner.
I know that I shall not have reassured noble Lords, because many of them tell me that they are going to vote on this, but that is my explanation of the logic of what the Government are doing. I hope—but I doubt—that the noble Baroness will withdraw her amendment.
Break in Debate
The purpose of the amendment is to ensure that the power created by this clause can be used only in ways which are consistent with the UK’s obligations under the UK-EU withdrawal agreement. Clause 4(2) enables regulations to be made to amend earlier primary legislation. The UK-EU withdrawal agreement is incorporated in UK law by the European Union (Withdrawal) Act 2018, as amended. It follows that, as drafted, the Clause 4 power enables the Secretary of State by regulation to modify the application in the UK of the withdrawal agreement.
The withdrawal agreement is the vital underpinning of the rights created in UK law for UK citizens living in the EU and EU citizens living here. It is a matter of constitutional concern that it should be given the maximum possible legal protection. As regards immigration, it underpins the UK’s EU settlement scheme for EU citizens in the UK. It is therefore essential both for EU citizens in the UK and for British nationals in the EU that the withdrawal agreement remains sacrosanct.
It will no doubt be said that a UK Government would never act in breach of an international treaty. Be that as it may, Clause 1, enabling legislation, should never be drafted in such broad terms that this could happen. On Clause 2, where proposed legislation might be seen as a breach of the withdrawal agreement, the decision on whether it does in fact do so should be a matter for Parliament to consider properly through primary legislation.
Given the complexity of immigration legislation in the UK, without the amendment it is also possible that a regulation may be entirely unwittingly in breach of the agreement but that that inconsistency is not spotted. There is no downside to our proposed amendment. It does no more and no less than ensure that the withdrawal agreement is honoured.
I thank the noble Baroness, Lady Hamwee, for speaking to Amendment 12, which as she said was previously tabled in Committee, and my noble friend Lord Flight and the noble Lord, Lord Rosser, for speaking in this short debate on it.
Amendment 12 seeks to prevent the Government using the power in Clause 4 to make regulations which are inconsistent with the EU withdrawal agreement. The Government have placed a very high priority on ensuring the protection of the rights of EU citizens who have made the United Kingdom their home. Our commitment is, I hope, evident in the effort and resources that we have already devoted to the EU settlement scheme. I am happy to restate that the Government have absolutely no intention of acting incompatibly with the citizens’ rights provisions of the withdrawal agreements.
As has been explained, we already have a legal obligation to comply with those agreements, which also have direct effect in domestic law in accordance with the European Union (Withdrawal Agreement) Act 2020. If further reassurances were needed—and it sounded as if noble Lords wanted some—a formal independent monitoring body is being set up by the Ministry of Justice under Article 159 of the EU withdrawal agreement to ensure compliance by the UK with Part Two of the withdrawal agreement concerning citizens’ rights.
The Independent Monitoring Authority has been established under Section 15 of the European Union (Withdrawal Agreement) Act 2020. It will be a new, independent body which is fully capable of monitoring our domestic implementation and application of the citizens’ rights aspects of the agreements. It can launch inquiries, receive complaints and bring legal action to identify any breaches in how the agreements are being implemented or applied in the UK.
For these reasons, we continue to think that this amendment is unnecessary. Moreover, adopting it would call into question why this restriction has not been included in every other item of legislation across the statute book. For these reasons, I hope the noble Baroness will feel able to withdraw her amendment.
I agree wholeheartedly with my noble friend. Local authorities are of course the responsible authorities as the corporate parents of children, for whom they have a duty of care.
The noble Lord will know that we have safe and legal routes. I say it time and again: we do not want children to make the terrible, perilous journey in those small boats to this country. It is also worth acknowledging that 65% of trafficking victims are in fact UK nationals.
I was very pleased to meet my honourable friend Kevin Foster MP and the right reverend Prelate the Bishop of Durham last week to establish how people, whether they are fleeing a country because of persecution or conflict, can apply for jobs. Many of these people do not want to come here to claim benefits; they want to work. We have been discussing that with the right reverend Prelate, and those discussions will be ongoing.
The noble Lord will appreciate that the past nine months have been unprecedented in terms of being able efficiently to deliver certain things, including the outcome of asylum cases. I do not have the exact figure to hand—I can get it for him—but I would imagine that that process has slowed, given the Covid-19 restrictions we have all been living under.
The original question was that the draft order laid before the House on 21 July be approved, since when an amendment has been moved by the noble Lord, Lord Rosser, to insert the words as set out on the Order Paper. The question I therefore have to put is that this amendment be agreed to.
Break in Debate
My Lords, I thank all noble Lords who contributed to what was quite a quick debate; nevertheless, they were thoughtful and insightful contributions. The health charge remains an attractive offer for migrants. It provides near comprehensive access to NHS services without further charge, regardless of the amount of care needed. It is not there to reduce migration, as the noble Lord, Lord Paddick, attests; moreover, it ensures that migrants do not need to worry about meeting the cost of unexpected treatment or arranging health insurance, which, for some people with health conditions, must be costly.
I turn to some of the specific issues that were raised. As set out in our manifesto, the Government believe that the health charge rate should broadly reflect the cost of treating those who pay it. However, the rates for students and those eligible for the youth mobility scheme will continue to be discounted. As I said, a new discounted rate for children will be introduced. The increased surcharge will continue to represent a very good deal for migrants who pay it, given the range of NHS services that can be accessed without further charge. The cost compares favourably to private medical insurance here and abroad, which is a common requirement for individuals wishing to migrate to many other countries.
We are really grateful to our essential workers and key workers who have performed such a public service throughout this pandemic, including emergency service workers, transport workers, teachers, delivery drivers, supermarket workers and many others. However, it is only fair to expect people arriving in the UK who work in non-healthcare roles to make a contribution to the full range of NHS services they can access from the point of arrival.
I will talk a bit about the reimbursement scheme, because the noble Lord, Lord Rosser, touched upon it. Tier 2 migrants who paid the health charge on or after 31 March 2020, but who would have qualified for the new health and care visa had it been in operation at this time, are being refunded. Migrants who work in the NHS and the wider health and care sector and who paid the charge on or after 31 March but who do not qualify for the health and care visa may be eligible for reimbursement of the charge. In July of this year, the Minister for Health announced that this scheme would be launched in October. As I said earlier, more details will be published by the Department of Health and Social Care shortly.
Volunteers have been raised today and previously, and we absolutely pay tribute to the contribution they make to our communities. The Department of Health and Social Care is considering who will be eligible to apply for the surcharge reimbursement scheme and will publish that information shortly.
On tier 2 refunds, tier 2 migrants and their dependants who paid the health surcharge on or after 31 March of this year are, as I said previously, being refunded. Those who believe they are eligible for a refund on this basis may contact the Home Office; the relevant contact details are available on the GOV.UK website.
The noble Lord, Lord Rosser, and others talked about the impact on families and young people and the total cost of the applications people are faced with paying. I am absolutely aware of concerns regarding the combined costs—I think the noble Lord, Lord Paddick, raised this—of both the health charge and the visa fees, and the impact that this might have on families and young people in particular. The Government are committed to ensuring that the surcharge remains affordable for family groups and intend to provide, through this draft order, a reduced surcharge rate for children. The Government are clear, however, that migrants must pay the charge when they make an immigration application and should plan their finances accordingly.
The noble Lord, Lord Rosser, talked about those in a vulnerable situation, perhaps facing destitution. There is a fee waiver in place for those making specified human rights applications who are destitute or at risk of imminent destitution. Where the fee is waived, the requirement to pay the health charge is accordingly waived also. If you can demonstrate that you do not have adequate accommodation or any means of obtaining it, or cannot meet other essential living needs, that would be considered destitution.
The noble Lord, Lord Paddick, asked what cut the Home Office takes of the £624. I do not know if the Home Office does take a cut; he is asserting that it does. I do not have the answer today, and I will find that out for him. However, as to how the Government estimate the cost to the NHS of treating the charge payers, that was produced by the Department of Health and Social Care. Not to buck-pass, but the cost was produced by the DHSC, based on analysis it carried out in April 2019 using—the noble Lord is absolutely right—2017-18 NHS England data. I do not know how that data differs from the following year, but I will find out, and therefore get a more up-to-date picture for the noble Lord. The small increase from the previous analysis was mainly driven by health inflation and updated data. Mindful of the need to ensure that the surcharge is not set above cost recovery, the Government have decided to set the surcharge at £624 per person per year.
The noble Lord, Lord Mann, asked about recharging. It is something that has exercised me in the past: we pay ever so much and we get so little back. I do not know what the up-to-date figures are—he tells me £49 million versus £600 million, which is quite a gap indeed—but clearly it is a matter for the NHS to collect the money. The noble Lord is nodding in an exasperated way—he knows that. If I can, I will get him more information on what the up-to-date figure might be.
The noble Lord, Lord Rosser, asked how we are targeting people affected by the change. We are looking to engage as many eligible people as possible through various means of communication.
The noble Lord, Lord Blunkett, talked about other people who may not be eligible but who have played their part in tackling the pandemic. While currently a subcategory of the tier 2 immigration route, the health and care visa offer will form part of the future skilled workers route. We intend to review the list of eligible occupations that can benefit from the offer to reflect the introduction of the expanded skills threshold, ensuring that those health and care professionals who meet the skills threshold can benefit from this offer.
I hope that I have answered all the questions. If I have not, I will follow up in writing.
I hope that the noble Lord will not include that exchange in my 10 minutes.
On the importance of the best interests of children, perhaps the noble Baroness can also tell us of any progress on piloting trafficking guardians and update us as to arrangements with the French and Belgian Governments. Can she also comment on the loss of data-sharing arrangements with the EU, and on arrangements to replace what we have had from the Asylum, Migration and Integration Fund? Not only has progress been undetectable but it seems that there has also been an undetectable political will to sort this out. We need political will to create safe and legal routes. That is not a mantra; it is really important to save lives and make the lives of many people worth living.
My Lords, I thank the noble Lord, Lord Jay, for tabling a discussion on the report published last year by the EU Home Affairs Sub-Committee on Brexit: Refugee Protection and Asylum Policy. I start by issuing two apologies: first, that the letter to noble Lords arrived only this morning, and secondly, that a Home Office Minister is not available to appear at the Select Committee next week. I will take that second point away and see what can be done for this time next week. I am grateful to noble Lords for alerting me to that. I hope the letter proves useful. There is only one part of it where I am going to have to provide figures. The noble Lord, Lord Rosser, asked about the replacement of the Asylum, Migration and Integration Fund. The breakdown of the numbers is not in the letter, but I will try to provide that breakdown, if I can.
I thank the members of the committee for their very thoughtful contributions this afternoon and for the work they have done in producing this report. It made a number of conclusions and recommendations, and I will look at each in turn. The noble Lords, Lord McConnell of Glenscorrodale and Lord Roberts of Llandudno, my noble friend Lady Warsi, and other noble Lords, including the noble Lord, Lord Dubs—I think—made the important point about how we treat those who need our refuge being a reflection on us as a nation. I agree with that. The noble Lord, Lord Bhatia, talked about the Ugandan Asians and how we gave them our refuge all those years ago. He also asked me for the published figures on 319X, which I am afraid I do not have. I agree with the committee’s principle that the way that we treat others is a reflection of ourselves.
The committee calls on the Government to offer public reassurances that they have no intention of curtailing the rights and protections afforded to refugees in the UK after Brexit. I can be quite clear from the outset, and I have said this before: this Government will continue to provide protection to refugees in the UK in accordance with the 1951 refugee convention. We will continue to support refugee resettlement and integration in the UK now that we have left the EU and after the end of the transition period—to answer all noble Lords who have made that point.
The report stated that
“it is vital that refugees and asylum seekers are considered in any agreement on the future UK-EU relationship.”
Notwithstanding the points made by the noble Lord, Lord Kerr, the UK has made a genuine and sincere offer on asylum and migration co-operation with the EU. While I do not intend to comment on negotiations, as they are ongoing, the Government have always been clear that our offer is in the interests of both the UK and EU, although I note that the noble Lord, Lord Kerr, is shaking his head. The issue is of the utmost importance to the UK and a core part of the UK’s whole-of-route approach to migration.
The report notes the Government’s position not to participate in burden-sharing measures, although comments that it would be in the UK’s interests to do so. That does not align with this Government’s view. Rather, we are of the opinion that a redistribution mechanism is likely to further increase flows to Europe, continuing the risk of more and more people making dangerous journeys. For these reasons, the UK is unwilling to participate in a voluntary relocation programme and, as such, we would not expect the future EU-UK relationship to be underpinned by such a proposal.
Now that the UK has left the EU, at the end of the transition period the UK will also cease to be party to the Dublin III regulation. The committee commented that Dublin represents a more desirable and realistic foundation for the future UK-EU asylum relationship than new agreements. However, the Government do not intend to replicate Dublin; instead, we are seeking an ambitious new partnership on asylum and illegal migration. Dublin is an EU law and it is right that, as an independent, sovereign country, we form our own arrangements at the end of the transition period. The UK will no longer be subject to EU directives or part of the common European asylum system at the end of the transition period. This includes having our own standards on asylum procedures and reception arrangements. The UK already has high standards for how we operate our asylum system, and we will continue to be a world leader in this area.
The report comments that human rights considerations must be at the heart of any future agreements with third countries on readmissions and illegal migration, and the Government agree wholeheartedly. That is why all returns cases are considered on a case-by-case basis, taking into account relevant case law and country conditions, based on evidence from a wide range of sources, including human rights organisations. We regularly monitor and review the situation in countries of origin, working closely with the Foreign, Commonwealth and Development Office. We will continue to uphold our obligation of non-refoulement under the refugee convention, by which we will continue to be bound.
The Government have proposed that the EU and UK enter into a comprehensive readmissions agreement. This would allow for the return of EU, UK and third-country nationals who have entered the UK directly from an EU country, and vice versa. The UK’s preference is to agree a readmissions agreement with the EU, but this is a two-way negotiation so the outcome will also depend on EU co-operation. The Government have also presented a genuine and sincere offer to the EU for a new, reciprocal arrangement for the family reunion of unaccompanied asylum-seeking children in the EU with family members in the UK, where it is in the child’s best interests, and for children in the UK with family in the EU in equivalent circumstances, once the UK ceases participating in the Dublin regulation at the end of the transition period.
On 19 May, we published a draft legal text as a constructive contribution to negotiations. We have tabled a draft legal text for a negotiated agreement for a state-to-state referral and transfer system which would provide clear and consistent processes between the UK and EU member states, ensuring appropriate support for the child, and guaranteeing reciprocity. These guarantees cannot be provided for in UK domestic provisions alone. Even though the noble Earl, Lord Sandwich, presses me to, I cannot provide a running commentary on this but, on that point about Eurodac, we are very keen to reach an agreement on biometric data sharing, for very obvious reasons.
The committee commented that it is imperative that the right to reunion for refugee families should not be restricted after we are no longer part of Dublin. The UK already provides safe and legal routes to bring families together through its refugee family reunion policy and under the family provisions in Part 8 and Appendix FM of the Immigration Rules. These routes are not affected by the UK’s exit from the EU. There is no intention to negotiate new arrangements to replace the family reunion provisions of the Dublin regulation for adults and accompanied children at this time, as we believe our domestic family reunion provisions offer sufficient family reunion routes. We recognise that families can become separated because of the nature of conflict and persecution, and the speed and manner in which people are often forced to flee their country. The Government’s family reunion policy allows those granted family reunion status or humanitarian protection in the United Kingdom to sponsor their pre-flight partner and minor children to join them here. To half-answer the question put by the noble Baroness, Lady Hamwee, I say that the Home Office has granted over 29,000 family reunion visas under the refugee family reunion Immigration Rules over the last five years, more than half of which were issued to children. But I shall endeavour to get her figures for the last 10 years.
The report also recommends that the definition of family members eligible for reunion should be expanded to include adult children. I should point out that there are separate provisions in the rules to allow extended family to sponsor children to come here when there are serious and compelling circumstances. Where an application fails under the Immigration Rules, we consider whether there are exceptional circumstances or compassionate reasons to justify granting leave to enter or remain in the UK, outside of the Immigration Rules. We have published guidance which aims to provide advice on the types of cases that might benefit from this discretion, including young adult sons or daughters who are dependent on family here and living in dangerous situations. Refugees can also sponsor adult dependent relatives living overseas to join them when, due to age, illness or disability, that person requires long-term personal care that can be provided only by relatives in the UK.
The committee supports the campaign to expand refugee family reunion to include children being able to sponsor parents. The noble Lords, Lord Ricketts and Lord Jay, and the noble Baroness, Lady Meacher, made that point, among others. On this matter, noble Lords will not be surprised to hear that we are quite clear and have repeatedly made clear the Government’s concern that allowing refugee children in the UK to sponsor parents would create further incentives for more children to be encouraged, or even forced, to leave their family to make that journey to the UK to sponsor relatives, in the manner that my noble friend Lord Blencathra points out. They often have hazardous journeys in the substandard vessels that we have seen so often on the television. Our view is that this plays into the hands of criminal gangs, which exploit vulnerable people, and that goes against our safeguarding responsibilities. Meanwhile, the UK will continue to participate in the Dublin III regulation throughout the transition period, including the family reunion provisions. Just to clarify for the noble Baroness, Lady Meacher, I say that children do not apply under Dublin; it is a state-to-state transfer referral system.
Under the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 there is a saving provision to explicitly ensure that any Dublin family reunion cases that have entered the system prior to the end of the transition period will continue to be processed beyond that date. The noble Lords, Lord Jay and Lord Loomba, and the noble Baroness, Lady Meacher, all made that point. I note that the committee was not satisfied that these regulations would provide sufficient protection against disruption to family reunion routes and suggested a temporary extension of current arrangements. As I have made clear, the UK will be leaving the Dublin regulation at the end of the transition period. It is right that, as an independent, sovereign nation, we are no longer bound by EU regulation. The saving provision offers certainty that those cases that entered the system prior to the end of the transition period will continue to be processed.
Continuing with unaccompanied children, the committee expressed its disappointment that the Government did not establish a guardianship service in England and Wales for all unaccompanied migrant children. In response to the report’s concern about unaccompanied children, I stress that the Home Office takes its responsibility for the welfare of unaccompanied asylum-seeking children extremely seriously. Comprehensive statutory and policy safeguards and arrangements are already in place for supporting children through the asylum process and ensuring that their best interests are a primary consideration in every decision taken in respect of them.
The noble Lord, Lord McConnell of Glenscorrodale, asked about the number of children in detention. I am pretty certain that figure is nought and that that stopped some time ago, but I will double-check and write to him if it is any different.
I differ with the noble Baroness, Lady Meacher, on local authorities not supporting unaccompanied asylum-seeking children. All unaccompanied asylum-seeking children are looked after by local authorities, which are their corporate parents. They have a statutory duty to ensure that they safeguard and promote their welfare. Under these arrangements, unaccompanied asylum-seeking children are provided with access to support and services in line with other looked-after children in that local authority’s care.
The noble Lord, Lord Rosser, asked why not all local authorities participated in the resettlement schemes. That is responded to in the letter. We cannot force local authorities to participate in these schemes, but I am very pleased to say that more than 320 have. We are very grateful to them for all the children they have taken and who they care for.
To take the point from the noble Lord, Lord Dubs, children are allocated a social worker, who will assess their needs and draw up a care plan, which sets out how the authority intends to respond to the full range of the child’s needs, including their immigration status. In addition to this support from local authorities, legal advice is available to unaccompanied asylum-seeking children from legal representatives.
In England, unaccompanied asylum-seeking children are referred to the Refugee Council’s children’s advice project, which provides independent advice and assistance to help the child in their interaction with the Home Office and other central and local government agencies. We believe these comprehensive arrangements already provide unaccompanied children with the necessary specialist advice and support that they need.
To speak to the point from the noble Baroness, Lady Hamwee, in acknowledgment of the likely increased support needs of trafficked children, in July 2018 the Government reaffirmed their commitment to the full national rollout of independent child trafficking guardians across England and Wales. These people are an additional source of advice and support for all trafficked children, irrespective of nationality, and someone who can advocate on their behalf. One-third of all local authorities in England and Wales are now covered by this provision.
The committee urged the Government to provide regular updates on progress of the Dubs scheme. I know that noble Lords are aware that the Government have successfully delivered this commitment and in July we announced that we had completed the transfer of all 480 unaccompanied asylum-seeking children from Greece, France and Italy under the scheme.
My noble friend Lady Warsi and the noble Lord, Lord Roberts of Llandudno, asked me about our future commitments. We have a long and established history of providing refuge to those who need it. We will continue to uphold that tradition in the manner we have historically done. In recent years, the UK has received a significant number of asylum claims from unaccompanied children. In the year ending December 2019, the UK received 3,775 unaccompanied asylum-seeking children. That was more than any EU member state and accounted for over 20% of all asylum claims from unaccompanied children across the EU and the UK. This follows previous years that have seen similarly high numbers of unaccompanied children arriving in the UK—3,254 in 2015, 3,290 in 2016, and 2,401 in 2017. In the future we will consider unaccompanied asylum-seeking children’s asylum applications here, as well as prioritising helping children in dangerous countries, rather than in safe EU countries, through our resettlement scheme. I cannot remember who made this point, but our future system will consider vulnerability from a global perspective.
On the Moria camp and the Lesbos fire, noble Lords will have heard in our discussions on the immigration Bill the other day what I had outlined since 22 April. We have taken children and there were flights on 11 May, 28 July and 6 August. We are exploring what more we can do to this end.
I have just been told that my time is almost up. There are quite a lot of other things to cover. I will cover one more thing—the future UK resettlement scheme and the single global refugee resettlement scheme—and then I will stop. The Government will issue an updated policy statement, which will be published ahead of the UK resettlement scheme launch, once we have met our commitment to resettle 20,000 vulnerable refugees through the vulnerable persons resettlement scheme. As noble Lords said, it is right that we continue to offer legal and safe routes to the UK for vulnerable refugees in need of protection, for whom resettlement is the only durable solution.
I apologise that I have run out of time, but I will, as I did I think yesterday, follow up in writing to noble Lords.
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.
My Lords, I thank the noble Baroness, Lady Hamwee, for her amendment and my noble friend Lord Dundee, the noble Lord, Lord Dubs, and the noble Baroness, Lady Bennett of Manor Castle. I turn first to Amendment 62 from the noble Baroness, Lady Hamwee. I note that she has raised this amendment to probe the need to expand the UK’s refugee family reunion rules. I will address each part of the amendment in turn.
Paragraph (a) of the proposed new clause seeks to allow refugees to reunite with their dependent children under the age of 25, as long as they were under 18 or unmarried at the time their parents left their country. The refugee family reunion guidance is clear that where a family reunion application does not meet the requirements of the Immigration Rules, caseworkers must consider whether there are any exceptional circumstances or compassionate factors that may justify a grant of leave outside the Immigration Rules. To this end, particular reference is given in the guidance to the example of children over 18 who are not leading an independent life and would otherwise be left alone in a dangerous situation. I can confirm that this discretion is used to allow dependent adult children to reunite with their parents in the UK where appropriate.
Paragraph (b) of the proposed new clause relates to refugees sponsoring parents. The noble Baroness will know that the Government have been very clear on their established position on this issue, as we are very concerned that allowing children to sponsor their parents would lead to more children being encouraged—even forced—to leave their families and risk dangerous journeys to the UK. However, discretion can be applied where a caseworker feels that a refusal of entry clearance would breach Article 8 of the ECHR or result in unjustifiably harsh consequences for the applicant or their family. Furthermore, Appendix FM of the Immigration Rules already allows refugees to sponsor adult dependent relatives living overseas to join them where, due to age, illness or disability, that person requires long-term personal care that can be provided only by relatives in the UK.
Paragraph (c) of the proposed new clause relates to refugees sponsoring dependent siblings under the age of 25, as long as they were under 18 or unmarried at the time their sibling left their country. I draw noble Lords’ attention to paragraph 319X of the Immigration Rules, which allows extended family, including siblings, to sponsor children to come here where there are serious and compelling circumstances. Again, consideration will also be given to any factors that might warrant a grant of leave outside the rules, where the rules are not met.
I hope this reassures the noble Baroness that there are vehicles within the existing policy framework to reunite the family members her amendment seeks to cover. An expansion of the policy could significantly increase the numbers who could qualify to come here from not just conflict regions but any country from which someone is granted protection. This would mean extended family members who themselves do not need protection being able to come here, which risks reducing our capacity to assist the most vulnerable refugees.
On numbers, I highlight that the UK has now issued over 29,000 family reunion visas in only the last five years, with more than half of those issued to children—a substantial number that should not be underestimated.
I agree with the intention of compassion and humanity that motivates Amendment 64, proposed by my noble friend Lord Dundee. However, we do not support this amendment, which seeks to create a humanitarian visa for EEA and Swiss nationals. It is unclear to me and the Government why those citizens have humanitarian needs that cannot be addressed by their own European country.
The Government have an excellent humanitarian record in assisting vulnerable people, including children. The UK is one of the world’s leading refugee resettlement states, resettling more refugees than any other country in Europe, and is in the top five countries worldwide. Since 2015 we have resettled more than 25,000 refugees, around half of whom have been children.
Once we have delivered our current commitments under the vulnerable persons resettlement scheme, we will consolidate our main schemes into a new global UK resettlement scheme. Our priority will be to continue to identify and resettle vulnerable refugees in need of protection, as identified and referred by the UNHCR. The focus of our humanitarian record is on those most in need, and I suggest that today’s amendment does not cover those most in need.
I turn to each proposed condition of the humanitarian visa in detail. Overall, it is unclear why, regarding the condition set out in subsection 3(a) of the proposed new clause, the UK should pick up healthcare provision for EEA and Swiss citizens, whether they are residing in their country of nationality or not, as these countries have excellent healthcare systems. However, our current discretionary leave policy allows us to grant leave to remain to individuals who do not qualify for leave to remain under the Immigration Rules but where there are exceptional or compassionate reasons for allowing them to remain in the UK, including on medical grounds and ill health.
The discretionary leave policy can, for example, address the needs of those who face a real risk of being exposed to a serious, rapid and irreversible decline in their state of health as a result of the absence of appropriate medical treatment in their home country. The policy also allows us to balance this care, and our international obligations under the ECHR, with the need to protect the finite resources of the NHS. The threshold for a person to be considered for discretionary leave on the basis of their medical condition is very clearly set out in our policy on medical claims and is intentionally high for this reason.
Furthermore, we are already dedicated to ensuring that vulnerable groups can access the NHS without charge. There are several groups applying for leave to remain in the UK who are exempt from the requirement to pay the immigration health charge, including asylum claimants and victims of modern slavery who apply for discretionary leave to remain. Those who are exempt from paying the IHC, or for whom the requirement is waived, are entitled to use the NHS generally without charge.
On the condition set out in proposed new subsection 3(b), the Government are committed to supporting vulnerable children. This amendment fails to recognise the safe and legal routes in the current immigration system for reuniting families, including the previously mentioned refugee family reunion rules, as well as Part 8 and Appendix FM of the Immigration Rules, all of which will remain in place at the end of the transition period.
The proposed amendment would also require the Government to create a new visa route for orphaned children who are EEA or Swiss nationals to come to the UK to be placed in local authority foster care where it is in their best interests. It is unclear why an orphaned child who is German, Italian or Greek, for example, should come to the UK on humanitarian grounds and be placed in local authority care here. These are safe European countries, and it is not appropriate for the UK to take children out of care in their own home countries and bring them here. Local authorities in the UK are already facing significant pressures, currently caring for over 5,000 unaccompanied asylum-seeking children, which is an increase of 146% since 2014.
On the condition set out in proposed new subsection 3(c), child dependants of those with leave in the UK are very well catered for in the Immigration Rules, which means that there is no need for primary legislation to create provision that already exists.
Turning to Amendment 79, I appreciate the noble Baroness’s intent behind the amendment, which seeks to create a means whereby, in the future, EEA and Swiss citizens will be able to join a spouse, partner, parent or a child in the UK who is either a British citizen or holds valid leave here, but without being subject to the current and established financial requirements for family migration.
There are a number of additional factors that I would like to turn to, which are also reasons for objecting to this amendment. I remind noble Lords that the minimum income requirement is based on in-depth analysis and advice from the independent Migration Advisory Committee. It did not find any clear case for differentiation in the level of the minimum income requirement between UK countries and regions. A single national threshold provides clarity and simplicity. Data also show that the gross median earnings in 2019 exceeded the minimum income requirement in every country and region of the UK. So it is true to say that the minimum income requirement is set at a suitable and consistent level and promotes financial independence, thereby avoiding burdens on the taxpayer and ensuring that families can participate sufficiently in everyday life to facilitate integration into British society.
In all family cases, the decision-maker will consider whether the Immigration Rules are otherwise met and, if not, will go on to consider whether there are exceptional circumstances that would render refusal a breach of Article 8 of the ECHR because it would result in unjustifiably harsh consequences for the applicant or their family. Each application is considered on its merits and on a case-by-case basis, taking into account the individual circumstances. The rules also give direct effect to the Secretary of State’s statutory duty to have regard, as a primary consideration, to a child’s best interests in making an immigration decision affecting them. In the future, British citizens and settled persons who want to be joined by family members who are EEA or Swiss citizens will benefit from these considerations without the need for Amendment 79.
Amendment 79 undermines the sound basis on which family migration to this country has been placed in recent years. It would circumvent the need for family migration to be on a basis whereby families are financially independent and able to contribute to the UK. It is for this reason that the income requirement was set out in the Immigration Rules. The Supreme Court has upheld this requirement as lawful and judged that it is not discriminatory. The amendment therefore seeks to contradict this ruling. There is no justifiable reason to avoid this requirement in the future by giving preferential treatment to family members based solely on their nationality. It is also unlikely to be lawful to do so.
The noble Baroness, Lady Bennett, asked if I had figures on the numbers who are affected, or who are projected to be affected. I do not have them on me. If we have them, I will provide them for her.
I hope that, on that basis, noble Lords are happy not to press their amendments.
Break in Debate
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.
Break in Debate
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.
Break in Debate
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.
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.
Break in Debate
My Lords, I intervene to support Amendment 82A in the name of the noble Baroness, Lady Hamwee. She has set out a very clear case, so I will be brief.
I have lost count of how many times we have heard Ministers say, “We want to treat everyone the same way; we want a global system.” As the noble Baroness set out, this amendment seeks to correct a discrimination in how the law was being applied. Many times, when I have risen to speak in this Committee, it has been because of concern about family life, the impacts of decisions on children and the separation of families. As the noble Baroness, Lady Hamwee, just set out, that is what we are looking at here, as well as a situation in which people who are clearly a product of British society—and should be our responsibility—being dumped on other nations, which may have far fewer resources than we have to deal with them. To expect other nations to pick up the results of our choices and decisions is utterly unreasonable.
It is chiefly those innocent children, spouses and partners I am concerned about—lives being torn apart. I refer the Minister to the Children’s Commissioner’s quotes I referred to in the Skype family amendment. This has massive impacts on well-being, health, mental health and educational attainment.
The last time I spoke, I talked about the judgment of Solomon. It is a question of applying the judgment of Solomon or applying his wisdom to make a choice that is best for individuals or society. I therefore commend Amendment 82A to the House.
This is my last contribution on the Bill in Committee, so I pay tribute to the relatively small number of Members of your Lordships’ House who have done an enormous amount of work and clearly have a massive amount of expertise in all these areas. I have learned a great deal from listening to that. I appreciate that, and I hope the Government will listen to nearly all the amendments presented here, which have been trying to make the Bill more humane, fair and respectful of human rights.
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.
My Lords, Amendment 42 seeks to repeal the right-to-rent scheme introduced by Chapter 1 of Part 3 of the 2014 Act. That chapter, coupled with amendments made to it by the Immigration Act 2016 and amendments made there to the Housing Act 1988, requires landlords and their agents to refuse accommodation to people who require, but do not have, permission to be in the UK. Landlords and agents may indeed face criminal sanction if providing accommodation in these circumstances.
As Amnesty firmly argued in its excellent brief, the impact of this regime is more widely harmful for people of colour. It essentially promotes homelessness and race discrimination—for example, because it becomes safer for landlords to avoid providing accommodation to people who are not white, do not have recognisably British accents and have non-Anglo-Saxon-sounding names.
Amendment 50 essentially seeks the repeal of other provisions of Part 3 of the Immigration Act 2014, which provides for an immigration health charge and restrictions on who may open a bank account or obtain a driving licence. It is particularly important to emphasise the need for a repeal of the immigration health charge. As Amnesty again forcefully argues, it is nothing more than a tax upon people coming to the UK to work, study or join family—people who are already taxed by immigration fees often set far above the administrative cost, over and above the taxes that they, like others, pay by reason of their living and working in this country.
In the sad legislation before us, we need to take these points very seriously indeed.
My Lords, in thanking noble Lords for speaking on these amendments, I say to the noble Lord, Lord Rosser, that I am going to argue not that they are irrelevant to the Bill but that that they are discriminatory, in their own ways. They would undermine the commitment to the British people to introduce a single global system. They would also weaken the immigration system by reducing the incentive to comply with the UK’s rules and laws.
On right-to-rent checks, I say to the noble Lord, Lord Paddick, and to the noble Baroness, Lady Hamwee, that immigration does not begin and end at our borders; it is more far-reaching than that. Under our new immigration system, everyone will be required to obtain their current correct immigration status, and we will clearly distinguish between those who are here lawfully and those who are not, regardless of their nationality. The measures in question concern migrants’ eligibility to rent accommodation, to work, and to access healthcare, bank accounts and driving licences. These measures have all been approved by Parliament. They contribute to our efforts to tackle illegal migration and those who seek to profit from immigration offences, while protecting taxpayer-funded services. Exempting from these measures EEA citizens and their family members, including those who do not have lawful immigration status, would undermine the integrity of the new immigration system1 which we have promised to deliver.
Amendment 42 specifically relates to the right-to-rent scheme, the legality of which has recently been upheld by the Court of Appeal—to echo the point of the noble Baroness, Lady Bennett. By disapplying these checks to all EEA citizens and their family members, this amendment would significantly compromise the right-to-rent civil penalty scheme. Under the current system, when a landlord is found to be letting to a disqualified person, the Home Office can issue a civil penalty of £3,000. A scheme that does not require evidence to be obtained for every tenant would render unworkable the Government’s ability to impose criminal and civil sanctions against unscrupulous landlords, as this exemption would serve as a blanket defence.
It is not clear how Amendments 42 or 71 would work in practice. Eligibility checks by landlords, employers and the NHS apply to everyone, including EEA and British citizens. Those carrying out the checks would not be able to ascertain who was part of the exempt cohort, as set out in these new clauses, and so would need to check everyone anyway. Alternatively, landlords and employers would have to take, at face value, a self-declaration of anyone who claims to be within this particular cohort. Amendment 42, for example, would make the right-to-rent scheme inoperable, as migrants who are unlawfully present or ineligible could self-declare as an EEA citizen, which could prevent the landlord from requesting further evidence of eligibility.
The noble Lord, Lord Paddick, asked who will check whether someone has UK immigration status. Particularly after the grace period, EEA citizens granted leave under the settlement scheme will use their digital status information to demonstrate to employers their right to work, to landlords their right to rent, and to other government departments and local authorities their right to access benefits and services—if they meet the relevant eligibility criteria. The noble Lord, Lord Paddick, pointed out the various documents that would be required. I am wondering whether he was questioning whether they were up to date, but I am sure he will come back to me on that if I have not made that clear.
For Amendment 50, I will focus on two aspects of the new clause. As noble Lords know, illegal working is a key driver of immigration offending. The ability to work without lawful status encourages people to take risks and to break our immigration laws, and leaves people vulnerable to exploitation—I refer to the point of the noble Baroness, Lady Bennett—including being paid under the legal minimum wage. We are determined to continue to tackle illegal working, but this amendment would hinder our progress.
The proposal to prevent the application of provisions relating to healthcare charges to EEA citizens and their dependants would also have a significant negative impact. The immigration health surcharge is designed to help support the NHS, ensuring that temporary migrants who come to the UK for more than six months make a fair contribution to the wide range of health services available to them. By exempting such a large cohort, including those in the UK unlawfully, from being charged for accessing healthcare, this new clause would increase the financial pressure on the NHS considerably.
Break in Debate
My Lords, I want to address my remarks to Amendments 43 and 74 in the names of my noble friends. As my noble friend Lady Ludford has so eloquently outlined, the exemption from data protection for migrants is unjustifiable. Indeed, as she said, the suggestion that we might even withdraw from the European Convention on Human Rights only adds to the alarm that we should feel about that.
This issue goes back some way, as my noble friend Lady Ludford said. During the passage of the Data Protection Bill through Parliament, my noble friend Lady Hamwee raised this issue and sought to amend the Bill, sadly unsuccessfully at that time. She asked the Government to justify the exemption, but from my reading of Hansard, they either could not or would not. She also asked for reassurance from the Minister —and I believe it was the same Minister, the noble Baroness—but, sadly, she did not seem to get much. In fact, the Minister told the House that a decision on whether to apply the exemption could be exercised not only by the Home Office but by contractors who worked for the Home Office. She said that it would apply not only to migrants but to British citizens who supported the applications of migrants. The one piece of assurance that the Minister gave was that the exemption would be used in only a very small number of cases. She was quite explicit about that, so I hope that in her reply, the Minister will tell us how many times the exemption has been applied and, if not, whether she will undertake to write to us.
The truth is that the exemption gives huge discretion to the Home Office and its contractors to determine when access to data can be denied. The Government say that it would not be abused. That might be fine if we had not had the events of Windrush, which my noble friend Lord Dholakia referred to, and if we really felt that we could trust the Home Office and its contractors in this era of the hostile environment. However, in these circumstances it is very hard to do so. We have no way of knowing how the exemption is being applied, unless the Minister is able to tell us a bit more about that. Therefore, this is a matter of significant concern to us. As my noble friends have noted, we are seeking to remove the exemption from EEA nationals. I hope that we will not hear from the Minister that that is in some way discriminatory, as we want it removed from everybody.
Finally, and briefly, on Amendment 74, as my noble friend Lady Ludford said, we really want to hear an assurance from the Minister on this matter that will appear in Hansard.
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.
Break in Debate
I thank all noble Lords who have spoken in this debate and rightly probed me on some of the detail of what the Government are intending to do across all the various issues that are raised in these amendments. I am pleased to say that, on most points, I think I will be able to reassure noble Lords on the issues they raise.
On Amendments 44 and 96, both concern how the Government will deal with late applications to the EU settlement scheme. Both are incredibly well-intentioned, as they concern how we ensure that those eligible for the scheme obtain status under it. There is plenty of time for those EEA citizens and their family members resident here by the end of the transition period to apply for status under the EU settlement scheme by the deadline of 30 June 2021. Furthermore, in line with the citizens’ rights agreement, they will be able to apply after the deadline where they have reasonable grounds for missing it.
I think noble Lords will find that, throughout my response, I will outline how the Government intend to take a very pragmatic approach to all these issues. During the Second Reading debate, I confirmed that, early in 2021, the Government will publish guidance on what constitutes missing the deadline. In answer to the noble Lord, Lord Rosser, I say that the timescale is appropriate because, for the time being, our priority has been to encourage all those who are eligible to apply to the scheme to do so before the deadline. We do not want to risk undermining that effort by inadvertently encouraging people to put off making the application.
Amendment 44 would cause confusion over the deadline for a scheme which has been designed to be simple and straightforward. We must also deliver on our promise to the people to end free movement and, from 2021, introduce the new global points-based immigration system. However, as I said earlier, the EU settlement scheme does not close on 30 June 2021. It will continue to operate thereafter for applications by people with pre-settled status applying for settled status and by those who are joining family members in the UK as well as by those with reasonable grounds for applying after the 30 June 2021 deadline. A report setting out proposals for dealing with late applications—as sought by Amendment 44—is not needed because we have been clear that we will take a pragmatic and flexible approach to late applications and will be publishing that guidance early next year.
Amendment 96, concerning such guidance, is also unnecessary. Our guidance on reasonable grounds for applying after the deadline will be indicative and not exhaustive. I think noble Lords will agree that this is the right approach; we will consider all cases in light of their individual circumstances. A person with reasonable grounds for missing the deadline who subsequently applies for and obtains status under the scheme will enjoy the same rights from the time they are granted status as someone who applied to the scheme before the deadline.
The withdrawal agreement obliges us to accept late applications indefinitely where there are reasonable grounds for missing the deadline. This and other rights under the agreements now have direct effect in law via the European Union (Withdrawal Agreement) Act 2020, so this commitment is already effectively enshrined in primary legislation agreed by Parliament.
The Government are also doing all they can to raise awareness of the scheme and ensure support is available. In March, we announced a further £8 million of funding, in addition to £9 million last year, for organisations across the UK to help vulnerable people to apply. Plans for a further burst of national advertising are under way because we are determined that no one will be left behind. My noble friend Lady Altmann specifically asked about this point, as did the noble Lord, Lord Rosser, in a more indirect way.
I will take a moment to outline what we are going to do between now and next year. With less than a year to go until the deadline, we will continue to update our communications approach. We will have further and future national advertising, which will have adjusted messaging and emphasis to ensure that it speaks to the remaining audiences still to apply.
Break in Debate
My Lords, I have my name to this amendment on behalf of our Benches. The subject matter of this amendment, and that of later Amendment 62, are very close. Amendment 62 is about family reunion, and the noble Baroness, Lady Primarolo, in particular, referred to that. It will not escape the Committee that there is a particularly persuasive factor to Amendment 48, and that it is led by the noble Lord, Lord Dubs, whose track record in leading the House on issues relating to refugees, particularly child refugees, is second to none.
I do not want to repeat points that have been made about push and pull factors, or about children’s experiences. I am very clear about the moral issues that have been referred to. As the noble Lord, Lord Alton, has rightly reminded the House, the Government has not done nothing. It will, however, be hearing the call to do more.
I want to make some technical points. Ministers tell us they are working hard—I do not mean to impugn anything there—to ensure that unaccompanied asylum-seeking children are looked after in the best possible way after we leave the Dublin regulations. As we have heard, they have referred to the draft negotiating document, the draft working text for an agreement between the EU and the UK on the transfer of these children, but there are two problems. First, there is nothing firm about that text: member states “may” make a request to transfer a child, and the UK “may” make a request to member states. Secondly, the EU has no mandate to negotiate on behalf of member states on this. To deal with the latter first, the Security and Justice Sub-Committee of the House’s Select Committee on the European Union took evidence on the text in July from witnesses, including the noble Lord, Lord Dubs, and Professor Elspeth Guild, who explained the position to us. In the political declaration of last October, which is the basis for the commission’s negotiations—it has been given a mandate to negotiate on that basis—there was only one section on what is called illegal migration, which in turn is the basis for a draft agreement. That provides for co-operation to cover only three subject areas which do not include this issue.
When I first read the political declaration I wondered whether illegal migration covered refugees at all because they are not illegal, but since one of the three issues is tackling problems upstream, that suggests that refugees come within it. However, I will not challenge a professor of law with posts at two prestigious institutions, and I follow her argument. The EU has no mandate in negotiations, but that is not the end of it. The UK cannot negotiate an agreement member state by member state, because this is, counter-intuitively in view of what I have said, a fully exercised competence of the EU, so it is not open to member states to negotiate with the UK. It is counter-intuitive and a Catch-22 situation. Professor Guild said:
“The idea that we would be able to negotiate with each member state an equivalent of Article 6 of the Dublin regulations seems to me … astonishingly naive.”
It would need a lot of political will on all sides to sort this out through the UK-EU negotiations. We are all aware that matters are somewhat tense—would that be the right description? I, like others, am not optimistic about a positive outcome.
In January 2019, when the House was considering this issue, the Minister wrote to noble Lords that:
“negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas”,
“the traditional division between Government and Parliament”.
Given what we all know, or maybe do not know but suspect, about what is going on, is it wise to rely on the possibility of negotiation?
Apart from the principle, there are some shortcomings in the draft text of the provisions: the “may”, not “must”. It also says that no rights can be directly invoked in the domestic legal systems of the parties. That alone would make it hard to go along with the text. However, we can sort this out in domestic law, hence the amendment. The noble Lord, Lord Dubs, has been as persuasive as ever. The noble Lord, Lord Kerr, has been clear about channel crossings. I will not go on; I agree with pretty much everything—possibly everything—that has been said. Immigration Bills come along quite frequently, but we should not wait for the next one. The amendment is not a big ask; its objective, in proposed new subsection (5), is clear, but it requires strategy and clarity about reaching that objective. Crucially, it refers to the “child’s best interests”. We should take this opportunity to provide this safe and legal route for children.
Break in Debate
Break in Debate
My Lords, I thank all noble Lords who spoke on this group of amendments concerning exemption from no recourse to public funds. I will reply to Amendments 53 and 73 together because they are quite similar in nature. I recognise the strength of feeling on this issue, particularly in the light of the challenges that many people face as a result of the current pandemic, as noble Lords have talked about. I genuinely welcome noble Lords’ desire to ensure that those most in need, particularly children, are supported at this time but I am afraid that I cannot accept these amendments. I will go through the reasons why.
As noble Lords will know, most migrants visiting, studying, working or joining family in the UK are subject to a no recourse to public funds condition until they have obtained indefinite leave to remain. Individuals here without leave are also subject to the condition. The noble Baroness, Lady Lister, and the noble Lord, Lord Rosser, asked for numbers. I am afraid that these numbers are not part of the published statistics, but I know that Home Office analysts are looking at the data to determine what figures could be reduced.
The noble Baroness also talked about the provision of data. In his letter to the UK Statistics Authority, the Home Office chief statistician committed
“to further investigate the administrative data we hold to assess whether it can provide any meaningful information on the issue of hardship specifically”.
However, given the fluid nature of migration, it is quite difficult to provide an accurate figure of how many people are subject to NRPF, but we will do our best to get some meaningful figures.
The policy is based on the well-established principle that migrants coming to the UK should be able to maintain and support themselves and their families without posing a burden to the welfare system. It is designed to assure the public that controlled immigration brings real benefits to the UK and does not lead to excessive demands on the UK’s finite resources. In exempting a significant cohort from the no recourse to public funds condition, even for a limited time, the new clause proposed by Amendment 53 would undermine this policy and increase the pressure on those resources. Depending on how far into 2021 and beyond this new clause continued to apply, it may also act as an incentive for EEA citizens who are not covered by the withdrawal agreements or other immigration leave to attempt to come to the UK to access benefits and services to which they would not otherwise be entitled.
Nevertheless, the Government absolutely recognise the importance of supporting those in genuine need. Existing exemptions and safeguards are in place to ensure that lawful migrants who are destitute or at imminent risk of destitution can receive support, including the option to apply to have the no recourse to public funds condition lifted. During the pandemic, as noble Lords will know, the Government have gone further by introducing measures such as the Coronavirus Job Retention Scheme—the noble Baroness, Lady Lister, referred to this—and the self-employed income support scheme to support people, including those with no recourse to public funds.
More than £4.3 billion has been allocated to local authorities in England to support them in delivering their services, including helping the most vulnerable, with further funding for the devolved Administrations. As the noble Baroness, Lady Lister, alluded to, the Government have also temporarily extended the eligibility criteria for free school meals to support families with NRPF, in recognition of the difficulties that they may be facing during these unique circumstances.
Those individuals with leave under the family and human rights routes can apply to have the condition lifted through a change of conditions application. The Home Office is prioritising and dealing with these applications compassionately, as shown by the 89% of 5,665 applications accepted in the second quarter of 2020, due to exceptional changes that some individuals faced in their financial circumstances. We cannot say what percentage of the 5,665 presented with NRPF.
I turn to Amendment 73, which would extend the exemption beyond the current pandemic. Under our new global immigration system, EEA citizens coming to the UK will be subject to the same requirements as non-EEA citizens, including the same conditions restricting access to public funds. The effect of this proposed new clause would be to maintain an immigration system that provides preferential treatment regarding access to benefits and services to EEA citizens over most non-EEA citizens. This is not the Government’s intention, creating a system that is not fair and does not reflect the will of the British people, demonstrated by the EU referendum and, more recently, the general election.
To answer the question of the noble Lord, Lord Rosser, I can say that those EEA citizens who are already resident here, or who are resident by the end of the transition period, can apply to the EU settlement scheme. This allows them to access benefits and services in the UK on at least the same basis as they were before being granted that status, so EEA and Swiss nationals with pre-settled status are not subject to NRPF. That significantly reduces the need for these amendments.
I understand the need to protect the vulnerable, especially during this time, and particularly in cases involving families or children, but there are already measures in place to provide this support. These proposed new clauses would also undermine the intention to create a global unified immigration system which treats EEA and non-EEA citizens equally. For the reasons I have set out, I hope that noble Lords will be happy not to press their amendments.
My Lords, these regulations add more public authorities to the list of those who can access sensitive personal information in the form of communications data, such as itemised telephone bills. So sensitive is the issue that Parliament decided that additions to the list of public authorities had to be approved by the super-affirmative procedure. When these regulations were debated last week in Grand Committee, we were told that the Home Office had agreed to the addition of those public authorities on the basis of detailed business cases submitted to it by the public authorities concerned, which Members of this House have been unable, until 12.30 pm today, to see. The Minister agreed that it was not possible for this House to properly scrutinise the decisions of the Home Office without seeing the business cases, and that the business cases had not been published as they contained sensitive information, but said that she would arrange for Members to scrutinise the business cases in a private meeting.
This morning, when I saw that these regulations were due to be approved by the House, I inquired of the Minister’s office why we had not been offered a private meeting to examine the business cases. As a result of my inquiry I was emailed, at 12.06 pm this afternoon, and invited to view the business cases at 12.30. There are five business cases, and from memory, I think the Minister said that they were “lengthy”. I do not think it reasonable to expect Members of this House to scrutinise five business cases, which apparently justify giving the five additional public authorities access to sensitive personal data, in the 45 minutes between the offer being made to view them and the regulations being approved on the Floor of the House. Call me old-fashioned, but I believe that this House should be given the opportunity to scrutinise regulations properly before it approves them, rather than afterwards.
I acknowledge the points of both the noble Lords, Lord Rosser and Lord Paddick. I did indeed say that I would set aside some time for a private meeting so that noble Lords could look at the business cases. I have those business cases with me and will arrange that meeting. It probably would have been preferable to have had it before proposing the statutory instrument. I continue to give my word that that meeting will be arranged. Obviously, it would now be preferable to have it sooner rather than later, and I will make that time available.
The noble Lord, Lord Roberts of Llandudno, has withdrawn, so I call the noble Lord, Lord Rosser.
My Lords, I understand that the noble Lord, Lord Green of Deddington, was withdrawn from the speakers’ list in error and is ready to speak now, so I call the noble Lord, Lord Green of Deddington.
Break in Debate
My Lords, some years ago I chaired some work on the minimum income requirement affecting British people who, as has been said, never thought that they would be affected by their own country’s immigration laws.
The noble Baroness, Lady Bennett, mentioned someone from south Wales. I encountered someone from south Wales, David, whose second wife was a teacher from Canada—I do not think that you can get more respectable than being a teacher from Canada. By his first marriage he had a disabled daughter. Had he been able to bring his wife to the UK to share the care of his daughter, that, among other things, would have saved the state a lot of money. Instead, he had to limit the amount of work and the kind of work that he did and so did not meet the minimum income requirement. She was appallingly treated. I do not believe people in British society would support this, were they to know about it. Many do not until they are brought up against it personally. I have long thought that the answer to all this will be found only when a son or daughter of a Cabinet Minister finds himself or herself in this situation.
The focus at that time was largely on spouse visas and what can be taken into account in calculating incomes. That has been changed somewhat, but the issue remains. The rules about leave to enter for an individual’s parents are so harsh that they really amount to saying, “You need to be so much in need of care and support that you probably would not be fit to travel.”
The reality of this is striking home, as noble Lords have said. One of my noble friends received a letter, which she passed on to me at the weekend, from a UK citizen who has found herself in this situation. I shall read some short extracts: “As someone who married a non-UK EU national in the UK but then moved to his country to live as his parents were already elderly, never was it in my worst nightmares that I would not be able to do the same and I might be forced to choose between caring for him and caring for my mother. When I left, returning was always an option, as I work remotely, to be able to return to care for my parents. My parents are now on the brink of their eighth decade. My mother has lung issues. My father has prostate cancer. It is inevitable that I will want and need to return at some point. What child does not want to care for their parents themselves?”
She goes on: “I and many of the more than 1 million UK citizens living in the EU will not have that right. If we do not return before the end of 2022, our fate will become income-dependent. How is it conceivable that the British Government’s approach involves discrimination against its own citizens? Surely, the family is as sacrosanct in the UK as in the rest of Europe.” I am pleased, from our Benches, to support this amendment.
My Lords, I thank my noble friend, Lord Flight, for his Amendment 23, which refers to a specific cohort of people relating to what is known as the Surinder Singh route for family immigration. It would require the Government to make provision in regulations made under Clause 4 for lifetime rights for UK nationals resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied, or to be joined, by their close family members. These family members would thereby continue indefinitely to bypass the Immigration Rules that would otherwise apply to family members of UK nationals.
The Surinder Singh route, so-called after the relevant judgment of the Court of Justice of the European Union, refers to arrangements whereby family members of UK nationals who have resided in the EEA or Switzerland with those UK nationals while they exercised their treaty rights are able to return with them to the UK under EU free-movement law. Surinder Singh family members are not protected by the withdrawal agreement but, as a matter of domestic policy, the Government have decided that UK nationals resident in the EEA or Switzerland under EU free-movement law by the end of the transition period will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, durable partner, child or dependent parent—to the UK on EU law terms. That is three years after the date when the UK was originally supposed to have left the EU. That says to me that it is not retrospective, but if my noble friend wishes to intervene after I sit down, I would be grateful if he would let me know whether I have satisfied that point.
The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after this date, and must continue to exist when the family member seeks to come to the UK. Other family members, such as a spouse, where the relationship was formed after the UK left the EU, or other dependent relatives, have until the end of the transition period on 31 December 2020 to return to the UK with a qualifying UK national on EU free-movement terms. If they return to the UK with the qualifying UK national by the relevant date, all these family members will then be eligible to apply for status to remain here under the EU settlement scheme. If they do not return to the UK with the qualifying UK national by the relevant date, they will need to meet the requirements of the Immigration Rules then applicable to family members of UK nationals if they wish to come to the UK.
We hope this is a fair and balanced policy. It was developed after we listened to the concerns of UK nationals living in the EEA and Switzerland. The policy was announced on 4 April 2019, as I said, giving UK nationals almost three years to decide whether they wished to return to the UK by 29 March 2022 with their existing close family members and, if so, to make plans to do so.
Break in Debate
We on these Benches are most grateful to the noble Lord, Lord Rosser, for tabling this amendment, which I can describe as an insurance policy. I agree with everything he said about Clause 4 powers, which we have had a chance to discuss, but we have a hierarchy of aims, the top one being to persuade the Government that Clause 4 is really not fit for purpose, as our committees have helpfully advised us, and that they need to go away and think again about it. The second choice would be that they accept that the broad scope, the width, of the powers they intend to give themselves is far too vague and imprecise—“in connection with”, “affecting”, et cetera—and that they need serious discipline, rigour and tightening up. The advantage of the amendment of the noble Lord, Lord Rosser, is that if we fail in those ambitions, we would at least, I hope, have the fallback position of looking after a year at what improvements we could make.
This is not like the Covid regulations, where the Government are reacting to an emergency situation. That is the more normal scenario for a sunset clause, but, none the less, the clause has a huge impact and demonstrates that “taking back control” did not mean taking back control for Parliament, let alone the people, it meant taking back control for the Government. It was a clever slogan, but unfortunately it has been heavily misused, and Clause 4 sums up all the problems with the approach that has been followed in the past few years.
If we do not succeed in our other ambitions in relation to Clause 4, it is sensible to have this fallback position of a sunset clause so that at least we would have a specified review date when we could reconsider what use is being made of Clause 4.
Break in Debate
Break in Debate
My Lords, this is not a workable notion. I am not the world’s expert on the non-EU migration system. It is a world I am having to learn about, having known far more about EU free movement in the past. As I understand it, most aspects of non-EU migration to date—which is going to be changed by the points-based system—have, I think, been affected by caps within individual tiers. I am sure I will be corrected if I am wrong. That has not, from some people’s point of view, been a great success. After all, for at least the last few years, annual non-EEA migration has been considerably higher than EU or EEA migration. I understand the aims of the authors of this amendment, but I am not sure how or why it would be expected to reduce numbers.
The amendment also offers us a very bureaucratic system rather than, as the Government intend, one that would respond in a flexible, streamlined fashion to the need for skills in our economy. After all, if you are an employer with a crucial post that cannot be filled—perhaps the geophysicist I mentioned earlier—it seems somewhat ridiculous that you would fail to recruit an expert that you could not find at home because you were the first one after the cap had been imposed.
It is not as if it is a free-for-all. As I understand it, the sponsor employer has to sponsor the call welcoming bids from would-be immigrants and has to pay the immigration surcharge and so on. It is not as if the numbers are not overseen by the system and by a number of individual needs and choices that are driven by the needs of the economy and the employer.
An overall cap would be unworkable and unhelpful to the economy and to employers. Indeed, as the noble Lord, Lord Kerr, pointed out, there are areas of the United Kingdom—he mentioned Scotland—that have a need for a greater population. There is one thing worse than having an expanding population, and that is having a declining one, as Germany is finding out and Japan has found out. There will come a time, with declining birth rates in this country, when we will be wishing that we had more immigrants. Indeed, that partly motivated Chancellor Merkel in 2015.
All things considered, I cannot offer from these Benches support for this amendment. I acknowledge the sincerity with which it is proposed, but I honestly do not think it is wise or workable.
I thank the noble Lord, Lord Green of Deddington, and pay my respect to the deep expertise that he brings to this subject. The House benefits from it every time he speaks. As he said, his amendment would reintroduce an annual limit on the number of people that might be granted permission to enter the UK to take up skilled employment. The existing cap, which the Government are committed to suspending, is set at 20,700 and is administered monthly to those seeking entry clearance as skilled workers.
Currently, applications are held till the end of each allocation month. If applications exceed available places in any month, priority is given to occupations on the shortage occupation list and PhD level occupations. Thereafter, priority is broadly determined by salary, with higher-paying jobs getting first preference. On the face of it, this sounds like a sensible measure to control and limit migration to the UK, and is consistent with the aim of prioritising the brightest and best to come to the UK. However, it adds to the burden on business, as the noble Lord, Lord Kerr, pointed out, slows the process of recruiting a skilled migrant and creates uncertainty among employers. It also creates a situation in which a migrant might be perceived as of value one day and not the next, which is what inevitably happens when a cap binds.
We want the UK to be a great place to do business, and we want to reduce uncertainty for UK employers and businesses—which imposes costs and prevents forward planning—while ensuring that we do not put unnecessary obstacles in the path of those who want to operate and contribute, so that the UK’s economy continues to prosper. As noble Lords know, we also want to create a simple global immigration system that focuses on skills and talent and the contribution migrants can make to the UK, rather than on where they come from.
We should be imposing a cap only if we think it would genuinely offer extra protection to resident workers and can be implemented in a way that mitigates uncertainty for businesses and employers across the whole of the UK. The Government do not think that that is so. That view is based on the clear economic advice of the independent MAC, supported by evidence from a wide range of stakeholders.
Break in Debate
My Lords, again, I thank the noble Lord, Lord Green of Deddington, for tabling this amendment and all noble Lords who have spoken to it. As noble Lords have said, this amendment would have the effect of reintroducing a resident labour market test for EEA citizens, otherwise known as the RLMT. The RLMT requires a job to be advertised in the UK for 28 days to establish whether there is anyone suitable in the domestic labour market before the job can be offered to an overseas migrant. Again, on the face of it this is a very sensible measure, but it would add to the burden on businesses and would considerably slow the process of recruiting a skilled migrant.
We want the UK to be a great place to do business and to ensure we do not impose unnecessary obstacles in the path of those who want to operate and contribute, ensuring that the UK’s economy continues to prosper. We also want to create a single, global immigration system, focusing on skills and talents and the contribution that migrants can make to the UK, rather than where they have come from. We should be imposing an RLMT only if we think it would genuinely offer protection to resident workers, and the Government do not think at this stage that that would be so. That is not just the Government’s opinion but is based on the clear economic advice of the MAC: of course, the MAC consults very widely with stakeholders before producing its recommendation.
I shall quote from a report published in September 2018 on the impact of EEA migration. The MAC said it was,
“sceptical about how effective the RLMT is”
in giving settled workers the first opportunity to fill jobs. It went on to say:
“We think it likely the bureaucratic costs of the RLMT outweigh any economic benefit”.
Finally, the MAC said:
“We therefore recommend the abolition of the RLMT”.
Equally pertinent is the MAC’s next paragraph:
“We do think it important to have protection against employers using migrants to under-cut UK-born workers. The best protection is a robust approach to salary thresholds and the Immigration Skills Charge and not the RLMT.”
The Government agree, which is why we are maintaining a firm requirement in the new points-based immigration system for migrants who are coming under the skilled worker route to be paid a salary that does not undercut domestic workers.
As outlined in the Government’s February policy statement, we have accepted the MAC’s recommendations on salary thresholds set out in its 28 January report on salary threshold and points-based systems. Building on this, the Government have set out additional detail on likely salary thresholds in the July Further Details document, so noble Lords can see exactly the approach we are taking and how we are ensuring that migrants cannot come in on the cheap. I remind noble Lords that, again on the MAC’s advice, we are retaining the immigration skills charge, which has to be paid by all employers of skilled migrant workers. The requirement to pay that charge, the proceeds of which contribute directly to the UK skills budget, helps ensure that employers are unlikely to employ a migrant when there is someone suitable to undertake the role within the domestic labour workforce. I hope that, on that basis, the noble Lord will be happy to withdraw his amendment.
Break in Debate
My Lords, I am not really clear how this is meant to work. Is there any intention on the part of the Government to allow the so-called new entrants to enjoy a lower minimum salary requirement than other migrants? It is clear that there is something that I have not fully understood on this. I assume that the authors of the amendment fear, anticipate or foresee such a development, but it may be that, as I admitted earlier, my knowledge of the points-based migration system is insufficient to allow me to fully grasp to what mischief this amendment is addressed. I am surprised it is assumed that this situation could arise.
That is rather a lame comment, so I look forward even more than usual to hearing the Minister’s explanation of why this amendment is—as I assume she is about to say—unnecessary or does not pass muster. It seems to me that it too possibly falls foul of the problem of being bureaucratic and inflexible. I think I should stop there and listen to the Minister’s expert explanation.
I again thank the noble Lord, Lord Green, and all noble Lords who spoke on these amendments. For the benefit of the noble Baroness, Lady Ludford, the noble Lord, Lord Rosser, and others, I will circulate the current rules for new entrants—rather than send everyone to sleep with the old rules and the new rules—so that they can compare and contrast.
The amendment seeks to put in place separate parliamentary approval for regulations allowing EEA and Swiss citizen new entrants to the labour market to be paid less than other skilled workers. Minimum salary requirements are a key part of our new skilled worker route. They serve three main purposes: first, as an indicator that a job for which a UK employer wishes to recruit a migrant worker is indeed a skilled job; secondly, to ensure that a migrant worker is paid a fair wage; and thirdly, to prevent employers using migrant workers as a source of cheap labour, undercutting wages for resident workers. The noble Lord is absolutely right that we must have confidence in setting the salary requirements for skilled workers at the right level, balancing the need to control immigration effectively and ensure that the UK’s economy continues to prosper, and not setting them so low that they do not achieve these objectives.
As I said ahead of outlining proposals for the UK’s points-based immigration system, the Government sought independent economic advice from the MAC. In its January 2020 report, A Points-Based System and Salary Thresholds for Immigration—which I am sure everyone has read—the MAC addressed the need for a range of salary thresholds and made recommendations for new entrants. The Government have accepted the recommendations in that report. Our salary requirements for skilled workers are based on national earnings data for UK workers. The MAC identified that new entrants—defined essentially as those at the start of their careers—typically earn around 30% less than experienced workers. Setting lower salary requirements for new entrants reflects this reality and means we avoid setting the requirements at an artificially high level. Reduced rates for new entrants have been part of the immigration system since 2013. While we intend to continue the new entrant salary rate, in future the new rules will set a more consistent 30% reduction across all occupations. As the MAC identified, the differences in the current system are very large for some occupations. New entrant quantity surveyors, for example, may be paid 69% less than more experienced migrant workers in the same profession.
The noble Lord is also right there should be parliamentary scrutiny of these requirements, but there is already a long-established procedure for this. The Government are required to set out their immigration policy in the Immigration Rules. This includes salary requirements, which can determine whether an immigration application succeeds or fails. Changes to the rules must be laid before Parliament under the procedure set out in Section 3(2) of the Immigration Act 1971. Either House may disapprove the changes by negative resolution within 40 days of them being laid and the Secretary of State may make any changes that appear to her required in the circumstances. Any such changes will be laid before Parliament within a further 40 days.
I do not think that it is necessary or proportionate to introduce a separate procedure for salary requirements for new entrants. As I have said, lower salary requirements for new entrants are not new. Skilled workers in the existing immigration system are subject to minimum salary requirements and the current Immigration Rules already provide for lower salaries for new entrants. Furthermore, there seems no particular reason for the procedure for new entrant salaries to be different from the procedure for the general salary requirements, or indeed any other requirements for skilled workers, such as the need for a sponsoring employer, a job at the appropriate skill level and the ability to speak English to an accepted standard. The nature of our points-based system is that all these requirements are closely interlinked.
Additionally, our salary requirements, including those for new entrants, are based on UK earnings data. We intend to update them regularly in line with the latest available data, ensuring that migrant workers’ pay keeps pace with that of resident workers. The procedure set out in Section 3 of the Immigration Act 1971 enables us to do so quickly and responsively, while maintaining an essential element of parliamentary scrutiny. Bringing forward draft regulations under an affirmative procedure would lessen this responsiveness.
We may also wish to amend the criteria used to identify new entrants in future. By way of example, we will be removing the option relating to university milk round recruitment to reflect the removal of the resident labour market test. We have also agreed the MAC’s recommendation to include options relating to those working towards professional qualifications or moving into post-doctoral positions. Similar changes may be needed from time to time, which this amendment would make more difficult by placing the new entrant criteria in the Bill.
As outlined in the February policy statement, the Government are committed to continuing to refine the system in the light of experience and will consider adding further flexibility. Specific parliamentary arrangements that risk splitting up interconnecting policies should not prevent this.
For the reasons I have set out, including that we will continue to lay before Parliament the full details of requirements—including those for new entrants—I hope that the noble Lord will be happy to withdraw his amendment.
Break in Debate
My Lords, I am pleased to follow powerful speeches from across the House, not least the one I immediately follow, from the noble Lord, Lord Alton, and of course that of the noble Baroness, Lady Lister. I join the tributes to her and her record of campaigning, and indeed to the noble Lord, Lord Alton. Other noble Lords have driven in the same direction: the noble Lord, Lord Russell of Liverpool, the right reverend Prelate the Bishop of Durham, the noble Baroness, Lady Altmann, others on the screen, and of course my noble friends Lady Smith and Lady Hamwee—everybody, to be honest—made the very reasonable request that the Government reconsider their policies on the fees for citizenship. The terms “shabby”, “punitive”, “revenue generator” and “indefensible cross-subsidy”—I think that was from the right reverend Prelate—have all been used.
It seems extremely odd to be discouraging potential citizens. As the noble Baroness, Lady Lister, said, this is being put in a sort of transactional context, but it is more than that. I have only once had the honour of being asked to preside at a citizenship ceremony—when I was an MEP, I was out of the country a lot of the time, so the opportunity arose only once. It really was an honour and a privilege to see all those eager faces looking back at me. Those people wanted to become British citizens, for all the reasons that have been expressed in this debate: to have their status recognised; to have a stake in our society; not to feel an outsider; and to feel that they truly belonged in Britain.
The contrast between the current situation and the language recalled tonight from the debates on the British Nationality Act 1981—which of course was also passed under a Conservative Government—is considerable. We should be encouraging people to become citizens, even if they are dual citizens, which I am glad to say is generally permitted—it is perfectly reasonable for people to choose which cricket team they wish to cheer without feeling that they are not loyal to the country. It seems incomprehensible that we would not want people, particularly those who have been in the country a long time, to move into the full role of citizens. That is good for our existing society, as well as for them. We want more people to feel that they have a stake, that they belong and that they are fully recognised, not fewer people.
Then, of course, there is the special concern about vulnerable children, especially those in care, for whom it is even more unreasonable to charge more than £1,000 for them to become citizens. The danger of a new Windrush scandal has been raised tonight, and we will have a further debate on that at the end of our discussions in Committee. After the experience of the appalling treatment that the Windrush victims suffered, and the Williams review and the Government’s pledge to implement its recommendations, it does not seem very wise to knowingly run the risk that we could be creating more people who are not properly recognised and integrated and who risk all sorts of horrible things happening to them.
From the non-partisan nature of this discussion, it is evident that this proposal has such wide support across the Committee, so I implore the Government to think seriously about whether the cost-benefit ratio of charging what, in the words of the noble Baroness, Lady Altmann, may be three times the actual administrative cost—a 200% mark-up—is truly worth it in view of the wider cost of potentially either excluding people from citizenship or, even worse, having a new Windrush generation.
My Lords, I thank all noble Lords who have spoken so passionately in this debate, but I pay particular tribute to the noble Baroness, Lady Lister of Burtersett. If nothing else, she is utterly consistent. I was going to describe her focus as laser-like but I think terrier-like is probably a good additional description.
I will address the court judgment first for the noble Lord, Lord Alton, and others. My right honourable friend the Home Secretary has been given leave to appeal on that, and we expect a judgment in the autumn. Therefore, the noble Lord will totally understand that I actually cannot even speak about this.
However, putting that aside, I will address the concept of citizenship fees being profit making. The overall income from citizenship fees is £2.09 billion; the cost of BICS, the borders, immigration and citizenship system, is £6.18 billion, so it does not even meet its cost overall. Far from making a profit, it still subsidises the overall cost of BICS. I might add that the principle of charging above cost has been in place for more than a decade: that clearly includes all three main political parties represented here in your Lordships’ House. A consultation was run at the end of 2013 on charging principles, which are included in the Immigration Act 2014. We have continued to apply these charging principles, agreed by Parliament, in any proposed fee changes. That said, the Government’s intention is that EEA and non-EEA citizens will be treated the same under the future immigration system. This means that under the new system, the intent is that existing fees, waivers and exceptions will be applied equally.
The issue of fees charged to EEA citizens has been discussed here and of course, as noble Lords have said, in the other place during the passage of the Bill. Throughout, the Government have been clear that decisions regarding future fees payable or funding of the system should be taken in the round and outside of the passage of the Bill, but I totally understand—I would probably have done the same had I been the noble Baroness, Lady Lister—that this is a good opportunity to discuss it. A legislative structure for application fees, with long-standing appropriate checks and balances is already in place. Any changes by way of amendments to the Bill would obviously undermine the existing legal framework, with its purpose of providing the ability to set fees and exceptions in secondary legislation. It would also reduce clarity in the fees structure by creating an alternative statutory mechanism for controlling fees.
Amendment 30 would have the effect of creating a two-tier system and would not deliver the required funding to the system, or indeed deliver the policy intent of FBIS, the future borders and immigration system.
Turning to Amendment 68, this is clearly an important matter and one which has been discussed during the passage of the Bill in the other place. The aim of subsection (1) of the proposed new clause is to limit the Secretary of State’s power to charge a fee for British citizenship applications to the cost of processing the application for anybody who has enjoyed free movement rights, alongside the wider context of charging fees to register as a British citizen. As I have already noted, imposing any amendments to fees as part of the Bill would cut across the existing statutory framework for fees and would risk undermining the funding and coherence of the current and future system, but I think the noble Baroness knows that; we are simply having a discussion about her feelings and the feelings of others on the level of the fees.
Subsection (2) seeks to prevent the Secretary of State charging a fee to register as a British citizen to the child of a person who has exercised free movement rights if the child is in receipt of local authority assistance. The noble Baroness and other noble Lords will know that local authority assistance is a broad term that could include those accessing a range of financial and practical support measures offered by local authorities, including citizenship fees. The Government offer fee exemptions that allow access to limited and indefinite leave to remain to be obtained free of charge for those who are looked after by a local authority. The ability to obtain citizenship may therefore be delayed, but not removed entirely.
Subsection (3) seeks to remove fees to register as a British citizen for children of those who have exercised free movement rights, where the child, child’s parent, guardian or carer is unable to afford the associated fees. This raises similar points to those in subsection (1) and Amendment 30, and I refer to my responses on those points with regards to maintaining a sustainable current and future immigration system and there already being suitable legislative structures in place.
Implementing subsection (4) would require the Secretary of State to take steps to make persons who have exercised free movement rights aware of their rights to obtain British citizenship under the British Nationality Act 1981. The Government have made it clear, when explaining the rights afforded by settled status obtained via the EU settlement scheme, that this may include a right to apply for British citizenship, providing that eligibility requirements are met. The information about becoming a British citizen is available on GOV.UK and we are committed to ensuring that information of this nature is fully accessible for all.
I hope that, with those explanations, the noble Baroness will feel able to withdraw her amendment.
Break in Debate
My Lords, I agree entirely with the noble Lord, not least in his admiration for my noble friend Lady Hamwee, who has indeed undertaken a marathon on this Bill today. By contrast, mine will be a quick sprint. We are anxious to ensure with this amendment that we can get some urgent clarification on an extremely important issue relating to citizenship. There are obvious echoes from the previous debate.
I doubt that any Members here need reminding of the considerable contribution that EU citizens make to the life of this country: to its essential services, its economy and so many local communities, not least in the health services. If I needed any such reminder, I had it most forcibly this afternoon when I paid a visit to the dentist. Many of them, especially if they have worked and lived in the United Kingdom for some time, have made a considerable tax contribution—local as well as national—as my noble friend said. It is a well-respected principle, not least in this House, that there is no taxation without representation.
The Minister may be able to give us an updated figure of those EU citizens who are now regarded as resident here on at least a semi-permanent basis. Those figures are very relevant to this amendment, as they are to a number of other parts of this Bill. I recall that, of all the cities in the world, London has the largest number of French citizens, exceeded only by Paris. These EU friends are employed throughout the UK in some crucial roles. Some are more obvious than others; for example, although most of those who work in agriculture and horticulture are temporary residents, some are employed full time and for longer periods, for example specialist advisers for viniculture in this country. On the day that “Back British Farming” is the slogan that the NFU wishes us to sign up to to demonstrate our commitment to that industry, I should give that a deserved mention.
The significance of the contribution of all these groups caused me to table the Question to which my noble friend referred. I need to reiterate the Answer given to me by the noble Lord, Lord True, on behalf of the Government because it contains some important detail that is relevant to this debate:
“The May local elections were postponed until 2021 due to Covid-19. In that context, the UK Government can confirm that resident EU citizens will remain able to vote and stand in the rescheduled May 2021 local elections in England (including London Assembly elections) and the May 2021 Police and Crime Commissioner elections in England and Wales. Those elected to office will be able to serve their full term and this will also apply to those elected before 2021. The franchise for local elections are devolved in Scotland and Wales. The UK Government has been clear that the issue of local voting rights of EU citizens living in the UK needs to be considered alongside the rights and interests of British expats living abroad. The Government has signed bilateral voting rights agreements with Spain, Portugal and Luxembourg in 2019, and with Poland in May 2020. We continue to work on further bilateral voting rights agreements with other EU member states.”
As my noble friend said, there may be an update tonight from the Minister; that was from 10 July, and there may have been some more successful developments since.
It will be obvious to all in your Lordships’ House that there are two significant limitations to that assurance. First, it is limited to May 2021. After that, there is no guarantee that the principle will be maintained for any future local elections for the majority of these residents. Secondly, the Brexit negotiators have succeeded in achieving only four bilateral agreements—with Spain, Portugal, Luxembourg and Poland—so much larger numbers originally from France, Germany and Italy, for example, are, as far as we know, excluded. What is being done to get agreements with the remaining 23 member states? I also hope that the Minister will be able to spell out what exactly was agreed with these four Governments.
I turn to the other point in this reply: the mention of the very relevant rights and interests of British expats living abroad. I suspect other Members have heard of the distressing concerns, anxieties and frustrations of our fellow British citizens currently living in the EU. I have had a very full report from a survey of many hundreds of these in France—a detailed report of the current dilemmas they face, not least in relation to healthcare and its costs. Surely the time has come—in their interests, as well as the interests of those to whom this amendment directly relates—for the Government to revert to our traditional attitude in this country. For once, could they not take the lead? Can they not now commit to bringing before Parliament certainty of continuing these civil rights? A more generous and realistic approach to these civic rights here would be likely to stimulate an equally humane and civilised response there. I repeat what my noble friend Lady Smith of Newnham said in the previous debate: they surely should do the right thing. I hope the Minister will be able to expand on the very limited information given to me previously and therefore respond positively to our amendment.
My Lords, I thank the noble Baroness, Lady Hamwee, for moving Amendment 33 and the noble Lords, Lord Judd, Lord Tyler and Lord Rosser, for their contributions to this short but important debate. While I understand the sentiment that underpins the noble Baroness’s amendment and some of the speeches we have heard, I do not think it necessary to add this to the Bill.
As noble Lords will be aware, the Government have already shared the draft illustrative regulations proposed under Clause 4(1). As I hope and am sure noble Lords will have seen, they do not include any provisions relating to the voting rights of EU citizens; nor has there been any immediate change to the entitlement of EU citizens resident here to vote in local elections. Indeed—as the noble Baroness, Lady Hamwee, said—in an Answer to a Question posed by the noble Lord, Lord Tyler, and answered by my noble friend Lord True, the Government recently confirmed that EU citizens resident in England
“will remain able to vote”
in the elections in England next May. That includes not only elections to a number of local authorities at every level but elections for the Mayor of London and the Greater London Assembly and combined authority mayors in the West Midlands, Greater Manchester, Liverpool City Region, the Tees Valley, Cambridgeshire and Peterborough, the West of England and West Yorkshire, as well as for the police and crime commissioner elections in England and Wales on the same day. It also applies to the right of EU citizens to stand in those elections, and anyone elected
“will be able to serve their full term”.
I hope that removes the uncertainty the noble Lord, Lord Rosser, mentioned, in the short term at least. I take the opportunity to pay tribute to EU citizens who have served their local community in public office, whatever party or affiliation they have done that under.
I am afraid I have no update for the noble Lord, Lord Tyler, beyond the Answer by my noble friend Lord True, which he read out in full. As that pointed out, we have taken positive steps in our relationship with EU member states and signed bilateral voting agreements with Spain, Portugal and Luxembourg in 2019; the one signed with Poland in May this year remains the most recent.
This is really a debate more about parliamentary scrutiny. On that issue, which the noble Baroness’s amendment considers and which the noble Lord, Lord Judd, also mentioned, the Bill as drafted makes clear that any primary legislation amended by regulations provided for by Clause 4 would be subject to the affirmative procedure and would have to be approved by both Houses of Parliament. I have no doubt that in the course of any such debates, noble Lords—including those who have spoken tonight—as well as Members in another place, will want to give such regulations their fullest scrutiny. As such, we do not think this amendment is needed.
The noble Baroness obviously has firm views about all three areas, but the rape review will consider all the reasons behind recent drops in referrals—they are low anyway—and charges, prosecutions and convictions of rape cases, so the impact of digital disclosure is being considered as part of that.