Brexit: Acquired Rights (EUC Report)

Viscount Waverley Excerpts

Tuesday 4th July 2017 Lords Chamber

[Viscount Waverley (CB)]

My Lords, I could not agree more with the noble Lord, Lord Judd, when he asked what type of country we wished to be. I further note—he prompts me in suggesting this—that, frankly, all successful economies have inclusive immigration policies. I will refer to the game of poker during my remarks. What a winning hand that during consecutive debates this afternoon I should follow the noble Lord, Lord Judd.

I must congratulate the noble Baroness, Lady Kennedy, and her committee team. She has done the House, the Government and the country, together with all those most directly affected, wherever they be, an inestimable service. Emotions understandably run high on this issue, both here and on the continent. Some issues belong elsewhere. Matters that impact targets should be recognised but tagged for resolution in legislative debate and amendments to the appropriate Acts. But what we are dealing with today is the here and now. I have detained the House on multiple occasions already as I, too, will be impacted by the end result, as a long-term resident on the continent—but I will not rehearse what is already on the record. An equitable divorce is sought, but I sense that the situation has the potential to get out of hand.

Mrs Golding, a barrister specialising in EU law and a tenacious chair of the British in Europe movement, represents the interests of the two combined groupings of the 4.5 million Britons on the continent and EU citizens in the UK. Allegations that the Government of the United Kingdom are neither listening nor engaging are troubling. There is a view that the Government are playing poker with the lives of millions of good, decent people, who are caught up in a situation through no fault of their own. Although UK Ministers have made themselves available, the Secretary of State has been described as “elusive”. Conversely, it appears that Monsieur Barnier and his team, representing the European Commission, have had constructive and transparent meetings with the group’s representatives and are described as supportive.

A number of issues have emerged following the Prime Minister’s offer to the European Commission, as highlighted by Mrs Golding. The UK proposal does not respond to the comprehensive offer made by the EU on 22 May to guarantee the vast majority of rights, but instead represents an entirely different form of offer founded in UK law, which relates to the future immigration status of EU citizens in the UK. Thus, when comparing the two proposals, it is not possible to compare like with like, and the application and principle of reciprocity is complicated.

The UK proposal lacks detail on safeguarding the rights of UK citizens in the EU. By contrast, the EU offer is a detailed proposal to guarantee the vast majority of the rights that UK citizens in the EU currently have. This includes free movement and would protect the rights of UK citizens in the EU, subject to certain clarifications as regards freedom of establishment, the position of students commencing their studies now, and voting rights. Arguably, therefore, the offer set out in the UK proposal for EU citizens in the UK represents the substitution of acquired rights of EU citizenship under EU law with a lesser “settled status”, for which EU citizens will be required to apply and which is not for life. This status could be lost following a two-year absence from the UK, and these citizens would then have to apply to return to the UK under UK immigration rules unless they could prove that they had “strong ties” to the UK—a vague concept that is not defined.

It is also claimed that EU citizens would no longer benefit from the same family reunification rights or from the overarching principle of equal treatment to British citizens in the UK. In addition, the position as regards both groups on other rights, such as pensions, healthcare, rights to work, rights of establishment and the mutual recognition of qualifications, requires clarification. We are aware that the UK proposal states that the ECJ,

“will not have jurisdiction in the UK”.

Opponents argue that, given the cumulative experience in case law of the ECJ on the rights of both groups, reference by UK courts to the ECJ would clearly represent the easiest and most practical option.

Perhaps a more efficient and pragmatic solution would be to create a dispute resolution body with jurisdiction to enforce citizens’ rights, offering a way for all affected individuals to safeguard their rights as regards the final guarantee set out in the Article 50 withdrawal agreement. Divergent interpretations of the rights of EU nationals living in the UK before Brexit and British nationals living in the EU before Brexit must be avoided.

The EU insists that nothing is agreed until everything is agreed. Is this wise? Instead, a separate and definitive agreement on citizens’ rights should be reached now, well ahead of the main Article 50 negotiations, if current anxiety and uncertainty are to be alleviated. The definitive agreement needs to be confirmed in the Article 50 withdrawal agreement to give it treaty status and the force of international law.

An additional issue must once again be flagged. Families, many with children, face the stark reality of enforced separation because of the quirks of being a non-EU spouse and not meeting immigration criteria for residence in the UK. So for the fourth time I ask the Government: will the repeal Bill ensure that UK law conforms to the European Court of Justice ruling C-127/08 on the implementation of directive 2004/38/EC for the rights of non-EU spouses of EU citizens to move freely in the EU, with unfettered access to the UK? A government response claims:

“United Kingdom law relating to the rights of EU nationals and their family members”—


this is the key point—

“to enter and reside in the UK is fully compliant with the decision”,

of the ECJ. Will the Minister ask her officials to look very carefully at this, and state unequivocally that non-EU spouses and family can enter and reside in the UK without precondition? Will she kindly ensure that a copy of that response is placed in the Library?

Recognising the gravity and importance of what is before us this evening, I have asked my own IT development team to ensure that relevant papers pertaining to citizens’ acquired rights—including a link to the committee’s report, the expert opinions presented by Mrs Golding and today’s proceedings—be made readily available for public viewing. To this end, I have registered a domain—eumatters.uk—and invite members of all parliaments in the European Union, Governments and the public at large to keep abreast of proceedings.

I cannot believe for one moment that 4.5 million people deserve such potential disruption to their lives. Is it possible that the matter is becoming overcomplicated and we are losing sight of the woods in contemplating each tree? It is entirely possible that EU citizens can simply become dual nationals, as people all over the world do when they wish to obtain or retain dual rights. Certainly, British citizens currently in the EU have more limited rights as residents than if they became citizens of the countries wherein they currently live. At present they must comply with national residency criteria, particularly with the 183-day rule, taking into account primary residence status and centre of economic interest; pay national social security and municipal taxes as required; and convert driving licences, and so on. This visible and verifiable commitment of intent and compliance with these rules should then allow for an absolute right to remain status.

The Government assure us that their offer ensures that EU citizens in the UK will have the same rights as UK citizens in the UK. Are British citizens being offered the same protections, rights and benefits across the EU? It is the duty of government to act to protect the equal legal and moral rights of all citizens, regardless of origin. This House should attempt to steer the Government and the negotiations away from the cliff edge and the abyss beyond.

--- Later in debate ---

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

My Lords, I thank the noble Baroness, Lady Kennedy, for bringing this debate to the House this evening. A number of noble Lords have asked why we have not yet responded to the report. I understand the importance of engaging with Parliament and the courtesy of responding to reports, and this is no exception. I undertake that we will, of course, respond to it in due course, but I hope that tonight’s debate goes some way to give a flavour of the Government’s thoughts. It is obviously a very important topic, particularly at this time. As the noble Baroness said, this is about people’s lives and we cannot forget that. The Government have listened carefully to the recommendations made in the report and the concerns raised in it, in this House and across the country, on the rights of those citizens who make such an important contribution to the UK and to the member states in which they choose to live. As noble Lords have alluded to, last week we published our offer for EU citizens in the UK and our expectations for UK citizens elsewhere, which responds to those concerns and recommendations. I am grateful for the opportunity to discuss these in greater detail with noble Lords this evening. If I run out of time or do not answer every question, I shall of course respond in writing.

We have been clear that we want to give EU citizens in the UK certainty about their future. This report noted our obligation to provide certainty and clarity to EU citizens in the UK and British nationals living elsewhere in the EU, and we have done so. Indeed, I remind noble Lords that last year the Prime Minister sought to agree on this very issue with the EU, but was told at the time that there could be no negotiation without notification.

We committed to this House that we would undertake comprehensive work to examine each of the rights afforded to EU citizens under EU law and examine the different circumstances in which people find themselves to ensure that there are no unforeseen or unintended consequences as we move forward with the process of exiting the EU. Providing certainty on what could be achieved for those individuals also requires consideration of the other member states’ position. The EU set out its position on citizens’ rights on 9 June 2017 and we responded promptly and appropriately, with the Prime Minister publishing ours soon after. It is now clear that there is much common ground between the UK and the EU positions and we are confident that we can reach an agreement on this issue early in negotiations. Our starting point is that it is the Government’s intent to reassure all those EU citizens who are in the UK and who have made their lives and homes in the UK that no one currently lawfully resident will have to leave as a result of our exit from the EU. What is more, we are clear that we will not see families enjoying their lives here together split apart.

The committee’s report rightly notes that the rights to live and work in another member state and to gain a permanent right of residence in that state after five years are the most fundamental of EU citizens’ rights. As the report accurately describes, these are the rights that are necessary for EU citizens and their families,

“to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State”.

We share the committee’s assessment that international law does not provide for these rights to be retained automatically. After we leave the EU, the UK will no longer be subject to EU law. Free movement rights will come to an end and therefore cannot be carried forward as an EU legal right into the post-exit UK legal regime. However, this Government are clear that it is right and proper that the substance of those rights noted by the report should be protected, and that EU citizens who have built their lives here and who came to the UK on the basis that they would be able to settle permanently should have that expectation honoured. This Government are committed to honouring that expectation.

As noble Lords have also noted, it is not just these people’s ability to live in the UK that we are committed to protect; we also want to ensure that EU citizens continue not only to be able to live here as they do now but to enjoy other important rights such as access to healthcare, education, benefits and pensions. That is why, on 26 June this year, we laid before Parliament a policy paper proposing that all EU citizens lawfully here when the UK exits the EU will have the opportunity to regularise their status to remain in this country, and all EU citizens here before a specified date will have the opportunity to acquire settled status after five years’ residence. This will enable EU citizens to reside in any capacity, as a worker, a student, a stay-at-home parent and so on, and undertake any lawful activity. We also intend to treat EU citizens with settled status in the same way as if they were UK citizens for the purposes of education, benefits and pensions. We have listened to the concerns of EU citizens who have made the UK their home and the concerns raised in this report. Those concerns are reflected in our offer and we believe that it is a fair and serious offer.

Noble Lords have also talked about the application process. We are determined that EU nationals who have built their lives here should continue to be able to live their lives here as they do now, and we have proposed a fair process to ensure that these rights are enforced. To this end, we will be providing eligible EU citizens with documentation enabling them to enforce their rights and prove their continuing right to live, work and access public funds and services in the UK after we leave the EU.

The noble Baroness, Lady Ludford, asked about the documentation and whether it amounts effectively to an ID card. I echo the comments of the Secretary of State for the Department for Exiting the EU, who said that,

“it is not an ID card. We are talking about documentation to prove that people have the right to a job and the right to residence, but they will not have to carry that around all the time. It is not an ID card”.—[Official Report, Commons, 26/6/17; col. 373.]

We have listened to concerns about the application process by which the resident population of EU citizens will be able to acquire settled status, which the noble Baroness, Lady Kennedy, asked about. This is why we have been clear that we will improve upon the existing application system, and why we have committed to ensuring the process is as simplified, streamlined and user-friendly as possible. For example, unlike EU law, which requires economically inactive EU citizens such as stay-at-home parents to hold comprehensive sickness insurance to acquire the right of permanent residence, we have proposed that no one will be required to demonstrate that they have held comprehensive sickness insurance to be eligible for settled status.

We want to reassure EU citizens that they will be able to acquire the necessary documentation confirming their status quickly and easily. We are working hard on this new system and expect it to be up and running in 2018. The noble Baroness, Lady Smith of Newnham, asked for the details of this system, and of course we will provide further details in due course. What is more, we have committed to providing a grace period, which we expect to last up to two years after we leave the EU, to give EU citizens the time and opportunity to regularise their status.

The noble Baroness, Lady Smith of Newnham, asked about Ireland, Cyprus and Malta. On Ireland, we have both been clear about the shared desire to protect the freedoms our nationals currently enjoy in each other’s states. Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements. I hope I can write to the noble Baroness on Malta and Cyprus.

The noble Baroness, Lady Ludford, asked what “strong ties” means when we are offering protections to those who have left the UK for more than two years. Settled status would generally be lost if a person was absent from the UK, unless they have strong ties here. This approach replicates the approach to returning residents with indefinite leave to remain under the Immigration Rules.

The noble Baroness, Lady Smith of Newham, also asked about the costs of the application process. The fees are being looked at as part of negotiations, but the aim is to keep them as reasonable as possible.

Family members were talked about, particularly by the noble Baroness, Lady Kennedy. We have listened when EU citizens told us their concerns that their families would be divided once the UK leaves the EU. My first point is that all EU citizens, be they children, students, husbands or partners, who arrive before the cut-off date, will be able to apply for settled status in their own right. However, I recognise that many EU citizens have family members who are not EU citizens, as the noble Viscount, Lord Waverley said. That is why we have proposed that family dependants who join a qualifying EU citizen in the UK before the UK’s exit will also be able to apply for settled status after five years, irrespective of the specified date. The Government are clear that we do not want to see families who have made their lives here together while we are still a member of the EU split apart.

[Viscount Waverley]

I apologise to the Minister. Maybe I misheard it, but I would just like a clarification. Supposing a non-EU spouse was married to a UK citizen but living on the continent, how will the five-year system that she has suggested work?

[Baroness Williams of Trafford]

I am sure that the noble Viscount knows the system now. If a dependant who joined a qualifying EU citizen in the UK before the UK’s—sorry—

[Viscount Waverley]

Perhaps the noble Baroness would care to write to me.

[Baroness Williams of Trafford]

I think I know the answer, but I do not want to be quoted as giving your Lordships’ House—

[Viscount Waverley]

Would the noble Baroness kindly consider writing?

[Baroness Williams of Trafford]

I will.