Draft Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 Draft Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 Draft Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020

Bambos Charalambous Excerpts

Wednesday 14th October 2020 General Committees

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Fovargue, and to see you in the Chair for the first time. Each of these statutory instruments is a little legislative beast in itself. I will begin with the draft Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.

We welcome the Government’s commitment to fulfilling the UK’s obligations under the withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement, to allow those who are employed or self-employed in the UK but living elsewhere to continue to do so as long as they remain a frontier worker.

Under part 3 of this statutory instrument, this group will be required to obtain a permit to evidence their right to enter the UK after 1 July 2020. I ask the Minister to confirm that it will be a physical document, because regulation 8(5) is somewhat ambiguous, suggesting that the permit

“may be in electronic form”,

but it is not definitive on this point. If so, as the explanatory memorandum suggests, why is there a requirement for this cohort of people to have physical proof, yet the request for physical proof for pre-settled and settled status was rejected? The Minister knows that that issue will return to the Chamber when we debate the Lords’ amendments to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill on Monday.

I now turn to the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020. Again, we will return in more detail to the issue of immigration detention on Monday, when the Bill returns from the Lords. These changes honour our obligations under article 20 of the withdrawal agreement to consider the conduct of a person committed before the end of the transition period, when relating to deportation decisions, in line with public policy, public security or public health. We welcome the fact that these decisions will continue to be appealable and do not plan to oppose this legislative change.

The more substantial of these three instruments is the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, or, as the Minister termed it, the grace period SI. This SI is slightly complicated. I know it was a source of much discussion in the Lords on Report of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.

As the Minister knows, we have been approached by the3million, which represents EU nationals in the UK, and the Immigration Law Practitioners Association, both of which have made direct representations on this matter to the Home Office. They are concerned that the way in which this instrument is drafted could technically mean that a large number of people would have a question mark over their rights during the grace period while their application under the settlement scheme was pending.

I know that the Minister has had discussions with my hon. Friend the Member for Halifax (Holly Lynch) and others on this issue, as we have tried to resolve and improve the wording. It is with regret that we have not been able ahead of today’s debates to change the text of this SI to remove any ambiguity about those rights. The Immigration Law Practitioners Association has suggested that changing the text from “lawfully resident” to “resident or present” would align much closer to the spirit of the EU settlement scheme and our obligations under the withdrawal agreement.

There is, therefore, currently no provision in relation to the resident’s status during the grace period for EEA and Swiss citizens or their family members who are not granted leave under the scheme by the implementation period completion date, which is 11 pm on 31 December 2020, and are not lawfully resident as defined by the SI. Such persons could, therefore, face difficulty in accessing services such as healthcare or employment during the grace period, or during the time that an in-time application is decided or an appeal is pending. Were no further provision made for these people, it would seem to diminish the meaning of the grace period and contradict the mechanisms made in other related regulations, which do provide for protection for persons who are eligible under the EU settlement scheme but not lawfully resident under the EEA regulations.

As we understand it, the protected cohort outlined in section 7 of the European Union (Withdrawal Agreement) Act 2020 should include all those who are eligible for status via the settlement scheme, not just those exercising their rights within the EEA regulations. The ongoing fear of a hostile environment makes nervousness persist when people do not have absolute clarity.

During the passage of the immigration Bill, Labour sought assurances from the Government that they would protect the rights of all people eligible to get status to remain legally in the UK via the settlement scheme during the grace period, and that those who had settlement scheme applications with the Home Office would benefit from the rights under the withdrawal agreement until a decision was made. The Government gave an unequivocal reassurance on this matter in Committee, when the Minister said during the sixth sitting that

“section 7 of the European Union (Withdrawal Agreement) Act provides powers to make regulations to provide temporary protection for this cohort during the grace period. That means that if someone has not applied under the EU settlement scheme by the end of the transition period, they will be able to continue to work and live their lives in the UK as they do now, provided that they apply by 30 June 2021 and are then granted status.”–– [Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 16 June 2020; c. 195.]

We want to believe the Minister when he makes that commitment, but I am afraid that without these small changes to the drafting of this instrument, which would ensure it delivered exactly that, we cannot lend our support to it. I acknowledge the Minister’s letter, which we received just before the Committee began, but unfortunately it does not go far enough. We need that commitment in black and white, because this could be subject to legal challenge.

The implications of the Government’s actions are potentially severe for individuals who do not have a legal basis to live in the UK, but are eligible for status via the EU settlement scheme, and who will be left in a legal limbo entirely of the Government’s own making if this is not resolved. As well as that, anyone who has submitted an application to the EU settlement scheme before the end of the transition period and is pending a decision after the transition period ends will have to demonstrate that they fall within the scope of the draft regulations to have the benefit of their protection. Again, in the letter, the Minister says that some of these protections will be subject to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill receiving Royal Assent, but we want that clarity now, because we are making this secondary legislation now.

I need not remind Members that just over a month ago the Public Accounts Committee released a damning report on the operational running of the Home Office, stating that it

“relies upon a disturbingly weak evidence base to assess the impact of its immigration enforcement activity”

and that it

“relies upon the judgements of senior staff rather than direct evidence”.

The Home Office itself has acknowledged how close it came to being declared institutionally racist in the Windrush lessons learned report, yet during a time of immense uncertainty and upheaval, these draft regulations seek to exacerbate the weaknesses of the Home Office and threaten the wellbeing and dignity of EEA and Swiss citizens who have chosen to live and work in the UK.

To reiterate, Labour cannot support this statutory instrument as drafted—the grace period SI, as we have called it—as it undermines and contradicts the promises made by the Government in the immigration Bill, as well as in paragraph 1 (b) and (c) of article 18 of the UK-EU withdrawal agreement. Accordingly, we intend to divide the Committee on this SI.