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

Baroness Hamwee Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the noble Baroness, Lady Neville-Rolfe, says that enforcement of immigration laws and regulations has been very weak. I say yes and no to that. Much could be said about evidence of torture and the age of young asylum seekers and so on; I do not want to get into that, nor the issue of which communities produce, as it were, the largest number of people here without authorisation.

From these Benches, we have long made the point that information is lacking. Information is basic to enforcement and we need that first and foremost. We need to know who arrives and who leaves. As I have understood it for a long time, including from speeches made by former Home Secretaries, the largest number of people who are here without leave are overstayers.

I said “yes and no” to the proposition about the weakness of enforcement. We believe it is important to have clear rules that are enforced; both are important for public confidence, as has been said. My noble friend Lord Paddick’s explanation of a loophole he has identified and pursued with enormous determination is a clear example of why both rules and enforcement are important. But it is the rules themselves that need to command confidence first, and we say they need to be sensible, clear and compassionate.

What has been enforced with enthusiasm are activities like “go home” vans and getting people such as landlords and employers to do the enforcing. What is published with enthusiasm are rules that are pretty much impenetrable—sometimes to those faced with interpreting them and almost always to those directly affected. The Minister said in Committee that the Government were

“actively exploring legislative options to ensure … enforcement … can be tightened up.”—[Official Report, 7/9/20; col. 573.]

I thought it sounded ominous, but I am sure she will take the opportunity today to explain what the Government are proposing. I hope she can be clear now, and whenever those options may come before us, about the facts, without going straight to assumptions about who is here without authorisation.

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[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

The noble Lord, Lord Young of Norwood Green, has withdrawn, so I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Judd, has clearly passed on to his grandson the importance of contributing to service in its widest sense. I very much agree with his analysis but then I almost always do.

By definition, members of the largest cohort in the social care sector do not fall within paragraph 1 of Schedule 1 but are very much affected. They are certainly part of the social care workforce and are impacted by the availability of social care workers employed in the sector. I mean, of course, the many people who support and care for someone older, disabled or seriously ill at home. According to Carers UK, one in eight adults—6.5 million people—are so engaged. The carer’s allowance is around £67 a week. I could go on but I do not get the impression that noble Lords need to be convinced of the importance of the sector, including those who do not have formal, paid-for care at home or in a care home. The informal carers and those for whom they care are impacted as well as those in public or private employment. The number of those in private employment is considerable. The noble Baroness, Lady Masham, referred to the NHS.

That is not the only reason we support the amendment. The noble Baroness, Lady Finlay, in Committee, reminded us that there are 115,000 European nationals in the social care workforce, despite high vacancy rates. It is, as other noble Lords, have said, a skilled profession with some skills that cannot be trained into a person and come from one’s personality and often culture, and include physical fitness, as we were reminded by the noble Baroness, Lady McIntosh. At a previous stage of the Bill, the noble Lord, Lord Lilley, said that he would have supported similar amendments but for the absence of a reference to training, which is now included in the amendment—rightly so—because training in practical and technical matters is important. However, that does not detract from my observations about personality.

The need for carers will not diminish. My noble friend Lady Barker reminded us, although I do not need reminding, that many of us are ageing and do not have children to shoulder the work—and it is work —done by families, however lovingly. She gave us the figure of 1 million but one should add families with a disabled child, for instance.

Like my noble friend Lady Smith, I have a lot of sympathy with Amendment 30 and many of my comments apply to it. In Committee, the Minister relied on the MAC having licence to consider any aspect of migration policy. However, when prompted by yesterday’s report, I looked at the website—it may have been changed now—which referred only to commissions by the Home Secretary. However, the committee’s pursuit of the matter is welcome. The noble Lord, Lord Horam, will note that in quoting the chair’s reference to the

“struggle to recruit the necessary staff if wages do not increase as a matter of urgency”,

I am relying on a press release, not the 600 pages of the report.

As regards the amendment of the noble Lord, Lord Rosser, it is right that the assessment should be commissioned by the Home Secretary, because she should own the work. We are not “incurious”, as the right reverend Prelate said, and will support the amendment.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in one of the most thoughtful debates on the Bill. I want to reflect first on the point made by the noble Baroness, Lady Smith of Newnham, who said that had it not been for the pandemic, we might not be having this debate. I honestly think that we would have been doing so in some form or other. I am not taking issue with what she said but I want to make a further point.

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Moved by

[Baroness Hamwee (LD)]

4: Clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”
Member’s explanatory statement
This amendment would restrict the Secretary of State’s discretion and preclude the making of unnecessary regulations.

[Baroness Hamwee (LD)]

My Lords, I moved Amendments 4 and 5 in Committee; they are amendments to what the Public Law Project called the “breathtakingly wide” powers proposed to be given to the Secretary of State. It is ironic that when elsewhere negotiations are going on—or maybe not going on—regarding the sovereignty of the UK Parliament, we are being faced with exercising our sovereignty in order to pass it back to the Executive.

Amendment 4 would substitute in Clause 4, which is about regulation-making powers, the word “necessary” for “appropriate”. Amendment 5 would take out the ability for the Secretary of State to make regulations “in connection with” anything in Part 1. Taken together, these terms give the Executive huge latitude. I am glad that the names of the noble Lords, Lord Rosser, Lord Pannick and Lord Alton, have been added to my amendments. The clause would read, “such provision as the Secretary of State considers necessary in consequence of any provision” of Part 1.

The amendments follow the report of the Delegated Powers and Regulatory Reform Committee, a member of which, the noble Baroness, Lady Meacher, made a very balanced speech at the last stage of the Bill. She acknowledged, as I do, that consequential amendments through means of secondary legislation are generally needed—although, as she said, when they can be they are to be put in the Bill, with regulations then used for tidying up. But as the breadth and number of amendments in Committee showed—that is, amendments to the Bill —a huge number of topics can fairly be said to be connected with Part 1. Those topics were all approved by the clerks to the House as being within scope of the Bill.

The noble Lord, Lord Blencathra, chair of the DPRR Committee, said that he spoke in sorrow, rather than being vicious, about its reported criticisms or concerns about the clause. I think we are entitled to expect more of the Government—and this is not vicious, but many degrees up from sorrowful—than the defence that:

“There are clear constraints on the use of the power in Clause 4. It can be used only to make regulations that amend primary or secondary legislation ‘in consequence of, or in connection with’ Part 1”.


That is exactly what we object to. I had forgotten to comment on the offensive—and I say that deliberately—power to amend primary legislation through regulations. The Government’s reply to the committee’s report included the Minister again asking your Lordships to consider the illustrative draft of the regulations which, shortly before the last stage, had been circulated, and to

“take comfort that this power is specifically to deliver the end of free movement”.—[Official Report, 7/9/20; col. 641.]

That is also relied on in the long letter from the Home Office, which I received at lunchtime today—and I dare say that the timing was similar for other noble Lords. I have to confess that I have not been able to get my head around quite all of it.

The draft regulations referred to are, frankly, fiendishly complicated, and are causing a lot of anxiety both as to the extent they are understood—especially as to any omissions—and to the extent they are not understood. But whatever they are like, we have nothing that we can look to as an assurance that there will not be more regulations. The “lawyers”, I am told, are engaged in an exhaustive process of analysing this draft. It may bore others as much as it does me to say it, but whatever the intentions of this Government and this Minister today, that would not matter one jot tomorrow in terms of curbing the power in Clause 4. I beg to move.

[Lord Pannick (CB) [V]]

My Lords, I agree, as I usually do, with the noble Baroness, Lady Hamwee. She mentioned the report of the Delegated Powers and Regulatory Reform Committee. There was also a report on this subject by your Lordships’ Constitution Committee, of which I am a member. We issued a report on 2 September, our 11th report of the session. At paragraph 22, we said:

“We agree with the conclusions of the Delegated Powers and Regulatory Reform Committee about the powers in clause 4. A Henry VIII clause that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable. Such vague and subjective language undermine fundamental elements of the rule of law.”


That is the view of your Lordships’ Constitution Committee, in a unanimous report from Members from around the House. I am very disappointed that the Government have been so far unwilling to engage with that advice—and certainly to accept it.

The Delegated Powers and Regulatory Reform Committee noted, in paragraphs 18 to 19 of its excellent report, the exceptional breadth of Clause 4(1). What it does is empower the Secretary of State not merely to make regulations “in consequence of” this legislation but “in connection with” this legislation. As the committee explained, that would confer on Ministers the power to make whatever regulations they think appropriate, provided they have some connection with the legislation, “however tenuous”. Given the exceptional breadth of the delegated powers in Clause 4, I also support Amendment 9 in the name of the noble Lord, Lord Rosser, which would impose a sunset clause on these powers.

I have one further point. This Bill is far from unique in seeking to confer excessively broad powers on Ministers. The Constitution Committee has repeatedly drawn attention to the need for effective limits on delegated legislation, to ensure ministerial accountability to Parliament. I am pleased that Members of the House of Commons, in the last few days, have begun to recognise the dangers of such legislation, not least because, when regulations are brought forward, they are unamendable. Your Lordships’ Constitution Committee has regularly made this point in reports over the last few years. The unacceptable breadth of provisions such as Clause 4 in the Bill is, I regret to say, typical of a Government who, too often, see Parliament as an inconvenience rather than the constitutional authority to which the Government are accountable.

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the ending of free movement by Part 1 of the Bill. The greater the passage of time, the less likely this will be, so the power cannot be used indefinitely. The power cannot be used to amend wider legislation unrelated to the ending of free movement, now or in the future. Nor can it be used to amend future primary legislation. Any resulting regulations amending primary legislation will be subject to the full scrutiny and approval of both Houses of Parliament. I hope that those assurances will reassure the noble Baroness and the noble Lord and persuade them not to press their amendments.

[Baroness Hamwee (LD)]

My Lords, I thought I would leave the Constitution Committee to the noble Lord, Lord Pannick, and he did not disappoint—he never does. Words such as Parliament being “an inconvenience” and “the fiction” of Parliament’s involvement have been referred to. I am sorry that the noble Baroness, Lady Meacher, was not here to hear my compliments to her on her very measured speech as a member of the DPRRC at the previous stage, but it was measured, and the more powerful for that.

I do not resile from the comments that I have made about the single words which somebody said we get excited about. I do get excited about single words—they are very important. Like other noble Lords, I feel that Parliament is being sidelined.

The lawyers who have been engaged on the draft SIs that have been published must be absolutely exhausted. I think that they would probably be the most enthusiastic supporters of Amendment 9, but perhaps I am too sympathetic as a long-retired lawyer. I wonder whether there might be a need for further tidying up but I do not want to make the Government’s case for them.

The Minister said that the debate has been assisted by the DPRRC and its chair. It has been assisted but it has not led to any change. In the reply that we have had today, she has used similar language—that the inclusion of “in connection with” provides a clearer basis for dealing with issues and that the words are more apt to describe the cohorts referred to. However, for me, that raises more problems, because it distinguishes between those who have exercised the opportunities to apply for settled status and those who would rely on treaty rights to which they are not entitled. I am becoming quite technical here but that takes us to the issue of comprehensive sickness insurance, which I hope we will get to on Monday.

I have said it before and will say it again today—I hope, for the last time—that of course we do not expect to see another illustrative draft instrument, but there would be nothing to prevent the Minister bringing forward further statutory instruments in the next few months. It is the words in the clause rather than any limited time in which the clause might apply that are the most relevant.

Now that I have said all that, I shall not say it all again and I do not propose to ask the House to consider it. I therefore beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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[Lord Judd (Lab) [V]]

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.

[Baroness Hamwee (LD)]

My Lords, late applications are indeed very important, and guidance will be essential. There is a lot of concern about what may lie behind an EU citizen not having applied for settled status, not with the intention of somehow evading the authorities or doing anything sinister or underhand. For instance, as we have said before, people may believe that an application is not necessary because they have a permanent residence document. Many reasons are cited, and no doubt there are many which none of us has thought of. After all, that is the human condition.

There are people whom the Home Office information has failed to reach or who have not understood it. I am aware that the Home Office plans to step up its communications after the end of the year to try to reach those who have not applied. However, it is worth mentioning again that, when the UK switched to digital television, there was an enormous campaign which was generally accepted as successful, but even that success left 3% of households not switching and finding overnight that their televisions did not work, and that was a much more straightforward subject than this is.

The point made within the amendment, and by the noble Lord, about status in the interim period is hugely important, and I hope to come back to that later in this Bill. They have got to be secure in the interim; it would be an enormous breach of faith if that was not the case. In Committee, the Minister sought to reassure noble Lords that there is plenty of time to apply under the EU settled status scheme, but that is not the point; it is what the Government’s “compassionate and flexible approach” will amount to in practice in their pragmatic take on this.

I confess that I had hoped to get an amendment down on comprehensive sickness insurance—essentially, what the position is on the grace period—in time for today, but it defeated me. I refused to be completely defeated and, with a little more energy, got back to it and it has been tabled, but too late for today, so we will have an opportunity on Monday.

We have the Government’s SI in draft in what I understand to be close to its final form, but those who know this subject inside out—and I do not—are still poring over it. That includes the3million, which is doing the most impressive job on all of this subject, both at a technical and at a human level. It is entirely appropriate to seek an assurance that the draft regulations provide the protection that we, and the noble Lord, Lord Rosser, would expect to see during the grace period.

The noble Lord, Lord Judd, was right to remind us of the particular position of children who have not been able to exercise treaty rights, if I understand the position properly. The guidance needs to be as extensive as is appropriate or, to hark back, as is necessary. I say that because on a different matter, on 9 September, the noble Lord, Lord Parkinson, from the Dispatch Box, said that an amendment which I was speaking to was not necessary, and referred the Committee to the draft illustrative regulations proposed under Clause 4(1), which, as he said, do not include any provisions relating to the subject matter I was discussing. They do not. But reading that afterwards—and I do not think the noble Lord meant it as cynically as I then read it—it was tantamount to saying, “It is not necessary because we are not doing it.” I did read the passage through two or three times.

I have my concerns, as I have said, about the whole of Clause 4, but I am not sure it is appropriate to hold back on all the regulations until this temporary protection is sorted out. But then, frankly, I am not here to help the Government sort out that type of thing. I am glad the noble Lord has tabled this amendment, spoken to it and drawn the potentially precarious position of a number of people—possibly quite a lot of people—to our attention, and I support him.

[Baroness Williams of Trafford (Con)]

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.

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Moved by

[Baroness Hamwee]

11: Clause 4, page 3, line 8, at end insert—
“(5A) Regulations made under subsection (1) must make provision to enable UK citizens falling within the personal scope of—(a) the Withdrawal Agreement,(b) the EEA EFTA separation agreement, or(c) the Swiss citizens’ rights agreement,to return to the United Kingdom accompanied by, or to be joined in the United Kingdom by, close family members.(5B) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members of UK citizens which could not have been imposed under EU law relating to free movement, as on the day on which this Act comes into force.(5C) For the purposes of subsection (5A)—“close family members” means—(a) children (including adopted children), and(b) other close family members where that relation subsisted on or before 31 January 2020 and has continued to subsist; “Withdrawal Agreement”, “EEA EFTA separation agreement” and “Swiss citizens’ rights agreement” have the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”

[Baroness Hamwee (LD)]

My Lords, at the previous stage of the Bill and very late in the debate on this amendment, which was then in the name of the noble Lord, Lord Flight—I am glad that he is able to be here this evening—having listened to the Minister I asked what she would advise a couple living in the EU, one British and one an EU national, if they both have elderly parents, on one side of the family in the UK and on the other in that EU country. They would be—they are—faced with not just the end of free movement but an impossible choice: not just where they should live after March 2022 but which parents they should decide to care for personally. They will have to make that decision within the next 18 months—15 months after the end of the transition. The Minister had an impossible task in responding to my question as to whether picking between parents was a humane response. She argued that people will have had plenty of time, but does that really address the point?

Since Committee, I have had so many emails, as no doubt have other noble Lords, making it clear how many different family situations there are, but all presenting families with similarly impossible choices. I thank everyone who has written to me and to other noble Lords. They have taken such care to contact us, not with standard formulaic emails but with powerful descriptions of their situations, their concern and their distress. Noble Lords will understand that I want to read some of them into the record, and that I cannot read them all. As examples, however, there is a lady of 75 living in the Netherlands supporting a Dutch companion, and vice versa, whose mother is 96 and in a care home there. There is a lady of 79 in the UK who expected to receive support and part-time care from her daughter, who would be prepared to give it provided that her French husband is able to move to Britain. A couple in France with a 12 year-old son are faced with whether to uproot him from school. There is a family in Italy, one parent British and one Italian, with two teenagers of dual nationality—one of whom has just started at university in the UK, while the other may want to make her life here; the parents may want one day to follow their daughters. And so it went on.

We are a global society. Families come in all shapes and sizes, and in all places. Many people make the point that their residence outside the UK makes them feel no less British and that they are surprised to find themselves writing as they do. Many say that the prospect of separation from family is unbearable. All say that when they moved abroad, they had no idea that there could be restrictions or conditions on returning as a family.

The amendment provides that the regulations

“must make provision to enable UK citizens falling within the personal scope of”

the agreements referred to

“to return to the United Kingdom accompanied by, or to be joined in the United Kingdom by, close family members”

without

“conditions on the entry or residence of close family members … which could not have been imposed under EU law relating to free movement … on the day on which this Act comes into force.”

I have been asked about a detail of the amendment: the reference to “close family members”. As it happens, in a Select Committee yesterday the Immigration Minister used exactly that phrase in discussing family reunion. I suppose the technical answer is that these provisions would be implemented by regulations which would be precise, but by anyone’s definition partners and parents “where that relation subsisted”, which in the case of parents it obviously would, at the end of the year and continues to do so would fall within it, as well as children.

The Minister explained in the context of various amendments in Committee that the Government were seeking to be not discriminatory but to end discrimination between, on the one hand, EEA/Swiss citizens and, on the other hand, other citizens. But the Government’s proposals for ending the current arrangements in March 2022 would discriminate between those families of mixed nationality who happened to have settled in the UK and those who settled elsewhere in the EU. They would require Britons who wish to return to meet conditions for sponsoring a spouse and children.

The financial requirements—the minimum income requirements—are not easy nor by any means available to everyone. Some 40% of UK workers could not reach the minimum income requirement, and the non-British partner’s income can be taken into account only after six months, assuming he or she can get here in the first place. If you want to bring elderly parents, they have to be so much in need of care that, according to evidence given to a working party that I chaired some years ago, they would probably be unfit to travel. If you yourself are older and no longer earning, can you reach the income threshold? This would be discrimination against our own citizens, imposed retrospectively on citizens who had no expectation that this choice might lie ahead.

Lifting the end date would not mean unlimited numbers of people coming here with their families. As I have explained, we are talking about people who fall within the agreement, their families and children, and others with whom the relationship subsisted before January 2020. I asked rhetorically in Committee if this was really humane. I ask now whether it is the right approach—to ask that, I think, would also be rhetorical. Since Committee, I have begun to realise just how inhumane it is, so I give notice now—I suppose it is notice for Monday—that, barring assurances which I cannot say I anticipate, though they would be very welcome, I will press the matter to a vote in accordance with current procedure. For the purposes of the debate this evening, I beg to move.

[The Earl of Clancarty (CB)]

My Lords, I have added my name to Amendment 11 in the name of the noble Baroness, Lady Hamwee. When I spoke to it in Committee, I genuinely thought that this was something the Government had overlooked. I discover that this is not the case and that there is some history behind the Government’s position. The reason perhaps for my naivety is that the argument as I saw it, and as I still see it, is very simple: it would be wrong to put a deadline on British citizens returning to the UK with their families. It would be deeply unfair to do so, and I am glad that the noble Baroness intends to press this to a vote if the Government do not accept the amendment.

The Minister cited in Committee the case that the Conservative Government of the day brought against Surinder Singh in 1992, and said at the beginning of her reply that the amendment

“refers to a specific cohort of people relating to what is known as the Surinder Singh route for family immigration.”—[Official Report, 9/9/20; col. 827.]

I fear that this statement betrays an element of cynicism in government thinking about this issue—for which I of course do not blame the noble Baroness. However, this is an inappropriate analogy, in the sense that the Government have clearly not accepted the decision made in Surinder Singh’s favour. It is an inappropriate analogy for a couple of other reasons. One is that there is a universal cut-off point that applies both to British and European families, which is of course the end of this year. We will not then be part of the EU and there will be a limit on the number of families, European and British, who might then come to this country from Europe.

The second thing to say is that we are talking about many British citizens who have been married for many years, often to other European partners—though it should not matter where in the world their partners have come from—and often they are building families with strong and complex roots in the UK and the rest of Europe. They have done so believing at the time that they had a settled life in Europe, wherever that may be in Europe; that was their bone fide position. Yes, people get divorced—and indeed married—for all kinds of reasons; that is life. But this Government are applying the Government of 1992’s perception of that case to generalise about all British families living in Europe. British citizens and their families in Europe are not that cohort, as this Government perceive it, and it is insulting to all British families currently living in Europe that they should draw that analogy.

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[Baroness Hamwee (LD)]

My Lords, I agree with the noble Baroness on one thing: I am not going to withdraw my amendment. I thank all the speakers, all those who have written to us and the organisation British in Europe, which has helped us understand the position and made sure that so many British people in Europe understand it.

It was notable to me that the speakers all used different examples. I think all of us have had the experience of being briefed and finding that one’s briefing is anticipated by several previous speakers—not so today. Our correspondents have written a variety of speeches for us. What I had not known until this evening was the position of veterans who served in the Armed Forces abroad, and who—this is very powerful—are making their views known. I am grateful to the noble Earl for raising that.

The Minister said we were asking to for ever bypass immigration laws. That is a very loaded way of putting it. She talked about simple fairness; well, simple fairness demands not changing the rules affecting our fellow citizens, who could never have anticipated the situation, nor anticipated that their own spouse would be regarded as an unacceptable burden on the state.

We should not be callous, to adopt one term that is being used, about the legitimate expectations of our fellow citizens. Let us not be callous, and, as the noble Lord, Lord Flight, said, let us be civilised. So, I do not beg leave to withdraw the amendment, and I will put it to the House when we are able to have a Division on the matter.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I will now put the question on Amendment 11. Notice has been given of the intention to press this amendment to a Division. I will need to collect the voices, but if there is a dissenting voice, the Division will have to be deferred.

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Moved by

[Baroness Hamwee (LD)]

12: Clause 4, page 3, line 8, at end insert—
“( ) The power to make regulations under subsection (1) does not include power to make provision inconsistent with the withdrawal agreement as defined by section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This amendment would ensure that the power created in subsection (1) can only be used in ways that are consistent with the UK’s obligations under the EU Withdrawal Agreement.

[Baroness Hamwee (LD)]

My Lords, this is an amendment I moved in Committee. I said then that there was nothing subversive about it, no cunning plan; it simply seeks to ensure consistency with the withdrawal agreement in the light of the power in Clause 4 to make regulations which may modify primary legislation.

When the amendment was originally drafted, the issue was not so topical as it has subsequently become—in another context, of course—and it is still topical. But I do not need to go there. The objection is to Clause 4. The withdrawal agreement is an international treaty; we should be entitled to rely on it and not have the risk of the Government resiling in any way from it through any means, and certainly not through inherently low-profile secondary legislation, which is, in effect, unamendable and unstoppable.

Immigration law is fiendishly complicated and quite often changed through rules. I am not accusing Ministers of attempting to slip something through, but mistakes can happen. We should stick with where we believe we are on the withdrawal agreement. I beg to move.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

I call the noble Lord, Lord Flight, who will be followed by the noble Lord, Lord Rosser.

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[Lord Parkinson of Whitley Bay (Con)]

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.

[Baroness Hamwee (LD)]

My Lords, it is fairly recently that some of us have felt it necessary to require assurances that legislation that a particular Government make will not be changed and broken—even in a specific and limited way. One understands that successive Governments may do so. It seemed necessary to make the point again because we are in such a strange situation. I was not sure about the powers of the Independent Monitoring Authority; I was under the impression—this is my failure to do my homework properly—that it would not have the power to take legal proceedings in a way which met this point. I am interested to know that.

I am clearly not going to pursue this. I want to take what is said at face value and I hope that the noble Lord’s successors do not prove me too naive in doing so. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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[Lord Judd (Lab) [V]]

My Lords, it is always a particular pleasure for me to support anything put forward in this context by my noble—and very good personal—friend Lord Dubs. As I have asked on other amendments, do we or do we not see the well-being of children as one of our high responsibilities in any future society that we want to become? How can it be in the interests of stability and security to have children who are semi-alienated by the situation in which they find themselves? That spells trouble for the future.

However, it is not just about our security. It is about wanting to ensure that children who have been through God knows what—it is very difficult to imagine the traumas that they must have had—are given the certainty that they need, with the backing of local authorities. This is not just a technical matter. In requiring local authorities to play their part in this, we will be building up a culture in which the nation shares in this commitment to children.

[Baroness Hamwee (LD)]

My Lords, yesterday the EU Security and Justice Sub-Committee was discussing refugees and unaccompanied asylum-seeking children with the Immigration Minister. He said, and I made a particular point of noting it—the Minister here does not need to look worried—“We always listen very carefully to Lord Dubs.” Well, that will be important for the next amendment, but I will apply it to this one as well, and I am very pleased to have added my name to the amendment on behalf of these Benches.

My noble friend Lord Bruce of Bennachie said at the last stage:

“We all know that children in care are especially disadvantaged, almost by definition”.—[Official Report, 16/9/20; col. 1292.]


I much prefer that term to “vulnerable” because many of them are extraordinarily resilient. But, however resilient you are, if you do not neatly fit a Home Office category, you are likely heading for problems and any parent, including a corporate parent, should do their best to pre-empt that.

In Committee the Minister explained the support services, I think she called them, for looked-after children and care leavers to assist them to make applications. That is of course welcome, but it would take someone much more confident than I am to be certain that no one will slip through the cracks.

In view of the time and in particular of the very thorough analysis of the amendment, especially by the noble Lord, Lord Kerr, I do not think I should take more of the House’s time, other than to encourage noble Lords to support the amendment—unless of course we hear from the Minister that the point is going to be taken up.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I fully support Amendment 14, moved by my noble friend Lord Dubs, which would add a new clause to the Bill. This clause was debated in Committee. I was persuaded by my noble friend’s argument then, and I am very much of the opinion that he is right on this issue and deserves the full support of the House when we vote on this issue next Monday, if the Government are not prepared to give way.

The clause would provide for children who are EEA or Swiss nationals and in care, along with those entitled to care leavers’ support, to be granted automatic indefinite leave to remain under the EU settlement scheme. The amendment, as we have seen tonight and as we saw in our debates a few weeks ago, has cross-party support. I am sure the Government have seen that support, and it would be good if the Minister could tell us what discussions took place at the Home Office between Committee and Report. I would be interested to know that; I hope this has not just been rejected out of hand.

My noble friend Lord Dubs said that the amendment would ensure that none of the children became undocumented. Identification is a serious problem for individuals, as my noble friend has outlined. There is also the whole issue that my noble friend talked about of local authorities all having different practices.

The amendment would speed up the process and enable social workers—who generally do a fantastic job, and we all know how much pressure they are under —to go straight to the Home Office and not have to deal with consulates and embassies, getting documents from abroad and the general bureaucracy of dealing with another country. It would avoid all that paperwork. My noble friend also set out the real problems that these children could suffer if the amendment is not agreed.

I agree with the remarks of the noble Earl, Lord Dundee. This really is a sensible amendment that deserves a positive response from the Government. I also agree with the remarks of the noble Lord, Lord Kerr, and the noble Baroness, Lady Meacher.

This is the decent thing to do for these children. We are talking about a relatively small number of children, but the amendment would ensure that no one fell into the trap of becoming undocumented. As the noble Lord, Lord Bruce, mentioned in the previous debate, children in care face all sorts of additional challenges. They are not with their parents. In effect, the local authority is the parent looking after them. All this amendment seeks to do is ensure that they do not have further issues to deal with, either as a young person leaving care or in many years’ time when being undocumented may pose a problem and leave them unable to establish their identity properly. The Government should give way on this small measure.

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[The Deputy Speaker (Lord Alderdice) (LD)]

I have received requests to ask short questions from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy of Southwark. I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD)]

My Lords, the Minister has talked about declaratory arrangements, and said that the lessons of Windrush are that this is dangerous. Is the problem not how the Government respond to situations in the future, rather than what type of scheme it is?