EEA Nationals (Indefinite Leave to Remain) Bill [HL]

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I too thank my noble friend for putting into legislative form a mechanism to enable those citizens to whom we want to say, “We’re so glad you’re here, please stay”, to stay without encountering the problems that have been and are the subject of such concern and anxiety. In that sense, in “Please stay”, perhaps we have another form of remain—certainly something that is humane, as the noble Lord, Lord Kerr, said. I wish I could be confident that it would find its way onto the statute book: I have less confidence about that than the noble Lord, Lord Cormack. I say that as the sponsor of a Bill introduced in this House in June 2017 and passed by the House in July 2018—since when I have written down, “dot, dot, dot”. But it gives us the opportunity to fulfil reassurances and pledges given in 2016—as a matter of honour, as the noble Baroness, Lady Altmann, said—and to raise some weaknesses, which, the more one considers the settled status scheme, the more one becomes aware of.

Ministers say at every opportunity that they want to find reasons to accept, not reject, applications. By definition, an application-based scheme is bound to lead to some rejections; my noble friend Lady Smith made that point. The Bill is rights-based, which is much more appropriate for a country concerned to uphold the rule of law. It can also be a safety net for the current scheme, as has been pointed out.

Earlier this week, some Members of the House were at a discussion arranged by the Bingham Centre for the Rule of Law about this model of administrative justice, which has at its heart automation—the rule of technology, not law. The work that was reported was on the settled status scheme, but the point applies more widely. I know that caseworkers—human beings—are involved in the scheme, but it represents the acceleration of a trend towards quick justice at the expense of important safeguards, and therefore has wide and lasting significance.

I will quote the conclusion of the Public Law Project’s report; noble Lords will understand that there is a lot of analysis behind it. It comments on the,

“growing gap in individual experiences of administrative justice. For those who get positive outcomes, they will—likely with the growing support of increasingly advanced and integrated technology—get their positive outcomes more quickly. This could be a great benefit, reducing the problems associated with waiting and delay. For those who do not get positive outcomes, however, their fall is less likely to be protected by effective redress and support systems. For those in a position of social and economic advantage, there is a greater possibility of accessing high-quality advice services to cushion the fall. For those in a position of social and economic disadvantage, the landing is likely to be much harder. Given the impact that an incorrect immigration decision can have on the lives of individuals and families, this effect ought not to be underestimated”.

It is fundamental to, and a crucial part of, the Bill that there is no cut-off date. Under the settled status scheme, an EU national who does not apply during the operational period will become illegally resident. The EU Justice Sub-Committee of this House, of which I am a very new member, is interested to know how the Home Office will deal with these people, who will range from prisoners—I understand that none of the organisations funded by the Home Office to assist applicants works in prisons—to people who have been granted pre-settled status and do not take it further.

As noble Lords have observed, it seems that pre-settled status is currently given in most cases when an application for settled status does not succeed. The Minister for Immigration told the sub-committee that the Home Office would consult the Cabinet Office on how best to “nudge” people who need to convert. The likelihood of misunderstanding—“I’m okay now, I’ve got status”—among people whose status is actually a precursor to settled status, is very high. We also heard that the Home Office will not agree to a physical document, because a computer record is the “most secure” form of evidence. “Digital first” has become “digital only”—and I do not need to refer to recent history here, which noble Lords have mentioned and which we could all talk about with considerable emotion.

I dislike the term “vulnerable”. To me, it sounds patronising, but it is widely adopted. The Public Law Project refers to people,

“in a position of social and economic disadvantage”.

I refuse to accept that elderly people are, by definition, vulnerable, and I think that the House will support me in that. Under the government scheme, people who we know fall into that group will, if they fail the application test—and many of them will struggle with it—become vulnerable to the Government’s policies. Whether hostile or compliant, or whatever you call them, these policies will affect you badly. People will be denied access to services and will be at risk of deportation.

Obviously, looked-after children and young care leavers fall into that category, and the right reverend Prelate drew our attention to that. I congratulate Coram Children’s Legal Centre and other organisations on the work that they undertake on this subject. In the time available, I can mention only a few of the issues that they have identified. One is the suitability criteria: is the applicant suitable for status? To quote a recent Coram report:

“Statistically, looked after children and care leavers are more likely to engage the suitability criteria than other children and young people”.


The report refers to the number of children aged over 10 who were looked after for at least a year and who have been,

“convicted or subject to youth cautions or youth conditional cautions”.

The Department for Education recognises these figures. The report also states:

“These children and young people will need to receive advice on the impact of any criminal record on their settlement scheme application before an application is made”—


and I want to stress those last five words. Looked-after children and care leavers will also need advice on nationality routes. They may have complex cases that fall outside the competency of an adviser accredited to the basic level introduced by the OISC for the scheme.

Then there are children who are eligible for the scheme but who do not have evidence of nationality or length of residence. Coram gives a number of case studies, such as that of Joao:

“Joao is a child whose estranged father is Portuguese. Joao’s mother (who holds a passport from Guinea-Bissau) fled his father, who was violent, in 2014. Joao’s mother has a biometric family member card that was issued in 2014 but Joao has no documents at all. The agency supporting Joao and his mother advised absolutely no contact between Joao/his mother and Joao’s estranged father due to the previous violence. Joao is unable to get a Portuguese passport without the active participation of both his parents in his nationality registration application”.


I could give a number of other examples, but in view of the time, I will not do so.

I will, however, refer to some of the recommendations made by Coram. It states:

“The Home Office should consult with the EU Commission on problems with accessing nationality documents and should have regard to its findings in guidance produced for both local authorities and for caseworkers on the exercise of discretion”.


It says that,

“the government should consider introducing a separate system that would ensure all children in the care of local authorities and care-leavers are granted settled status without having to meet the requirements of the EU settlement scheme”.

Reference is made to the statement of intent and to the fact that,

“the government ‘will accept alternative evidence of the EU citizen’s identity and nationality where the family member applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons’, but further guidance on what constitutes compelling practical or compassionate reasons is required. Where necessary, the Home Office should take a pragmatic, flexible approach”.

I hope that the Home Office is familiar with all the recommendations made by specialist organisations, which identify the complexities of the scheme. The numbers affected may be small—although as the noble Lord, Lord Kerr, pointed out, they may not be that small—but each person affected is an individual to whom we have a responsibility.

The Home Office wants to find reasons to accept. My noble friend’s Bill gets much nearer to achieving what most of us understand that to mean, having not necessarily initially understood the implications of the term “accept”. The Bill is much more inclusive to our friends, co-workers and fellow citizens, an approach that all noble Lords want to see, both for other EU citizens—I can still call them that—whom the UK says are welcome and for the 1.3 million UK citizens elsewhere in Europe. Like other noble Lords, including the noble Earl, I share a sense of shame at the position we are in the moment.