Brexit: Acquired Rights (EUC Report)

Baroness Ludford Excerpts

Tuesday 4th July 2017 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I concur with the praise for our chair, the noble Baroness, Lady Kennedy of The Shaws, who does a splendid job, not least in steering and shepherding us to this report.

I can try to answer the question from the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Like others, I have had the very useful briefing from British in Europe, a coalition of UK citizens in Europe which has joined with the 3million, representing EU citizens here, to produce a response to the Government’s paper. Both groups feel very let down. They maintain, rightly, that their acquired rights are being retrospectively taken away. This is because there is a mismatch between the EU and UK offers. As the noble Viscount, Lord Waverley, and the noble Duke, the Duke of Somerset, said, the EU approach is a mutual guarantee of status and rights derived under Union law, with an overarching principle of equal treatment for EU citizens here and British citizens in the rest of the EU. The UK paper does not respond to that offer. It is not an affirmation or incorporation of such acquired rights but a proposal for a different offer: a new status under UK immigration law, called settled status, which has to be applied for and appears to be essentially indefinite leave to remain—perhaps the Minister could explain how it is different from ILR. This is a significant reduction in protection, despite paragraph 3 of the paper claiming that there is no “unravelling” of “previous commitments”. There is some misunderstanding in the paper, in that paragraph 14 talks about how, after we leave the EU:

“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”.


This conflates and therefore confuses the new acquisition of free movement rights in the future, after we have left the EU—unless we stay, let us hope, in the EEA—with the retention of rights acquired while we were in the EU. That is a pretty fatal confusion.

The two offers do not legally correspond and cannot be fitted into a framework of reciprocity aimed at mutual guarantees—a vital framework of reciprocity. As I heard the Italian ambassador to the UK say this morning on the “Today” programme, it is not only inaccurate but patronising to people who have made a huge contribution to this country, and done so under their EU law rights, to call the UK offer a “generous” one. On perhaps the true spectrum of criteria, from “fair” to “unfair”, I would say that the Government’s proposals are found wanting.

I do not know what has been gained by having to wait until now to come up with this not-so-generous offer. The offer—or rather an affirmation of acquired rights—should have been proposed immediately after the referendum. It would have provided certainty for individuals and families and avoided all the anxiety they have suffered. It would have avoided the haemorrhage of skilled personnel—I read in the Financial Times that some enterprising Polish carbon credits trader has set up a website called Expat Exit. The report describes him as arguing that,

“Britain’s Brexit vote has created a market for highly qualified workers who have burnished their skills in the UK but are now returning to the continent”—

ouch.

If the government offer had been made a year ago, it could have avoided putting people through the hassle, expense and waste of time of applying for permanent residence—the new procedure that was invented last July. They must feel rather mocked, having done this in good faith and now been told that it is essentially worthless. It is good that the Government are now saying that there is no need for private health insurance, which is their translation of comprehensive sickness insurance, although that of course has been the subject of legal difference with the European Commission. So why did they put people through all that bother, expense and worry of having to get private health insurance? Could the Minister perhaps also explain whether the lack of need for private health insurance applies to the future as well as to the past? Could the Government not at least make some amends to those people who went the permanent residence route by giving them settled status automatically, not just offering some kind of streamlined procedure for those who already have the permanent residence document that they did not need but they felt they needed to get in the absence of anything else in the past year?

Why can the Government not now say what the cut-off date is? Surely it should be the date of leaving the EU. After all, the Government’s paper confirms, as the Government themselves have done many times, that, while the UK remains a member of the EU, EU citizens resident here continue to enjoy rights that they have under EU treaties. So why can that not be followed through by saying that the cut-off date will be when we actually leave the EU?

I share with colleagues other questions that have been asked tonight. Will the rights be for life? Will family members have their rights protected for life in the case of death or divorce? Will there be votes, at least for local elections? Will there be recognition of qualifications and the diplomas and certificates relating to them? What will the fees be? I gather that the current cost of an ILR application is £2,297, a huge amount for a family. Will a minimum income threshold be applied to people who want to stay? How light-touch will the application process be? What evidence will need to be provided? In what way will it be simpler than ILR? What does the phrase “The Government seek to protect healthcare rights” mean in practice? The word “guarantee” is absent from the paper. Will there be free access to the NHS or will people have to pay an NHS surcharge? I would welcome answers on that.

It is proposed to make deportation easier, but what will the precise criteria be? It is said that those criteria will include “serious or persistent” criminals. What kind of crime does it need to be to qualify as persistent—dropping litter in the street? How will the European Convention on Human Rights apply to those deportation criteria? Will there be a right of appeal against a refusal of settled status or temporary leave and, if so, within what parameters? What about EEA and Swiss nationals, and vice versa? Are they included under the proposals?

Lastly on my list of questions: the residence document that is proposed will be a de facto ID card. I hope the Government can assure us that this is not a back door to an ID card scheme for British citizens as well. Is the proposal that there should be evidence of biometric information designed to mean fingerprints? If so, or even if it does not, is the proposal for a residence card, which presumably will be backed up by a residence database, compliant with the CJEU judgment on the German residence database in the case of Huber?

The proposal that family reunion would be in line with British nationals, not on the basis of EU free movement law, is a diminution of current rights. The British rules have recently been adjudged the least family-friendly of 38 developed countries. If settled status is in reality ILR, how are the Government going to avoid the ILR rule that a two-year absence automatically means a loss of status? The document talks about having strong ties here being a safeguard in these circumstances. How will that work? What do “strong ties” mean? The fear is that this vagueness will deter people from taking up jobs that involve overseas postings if they do not know whether an absence of more than two years is going to mean that they cannot come back.

Other noble Lords, including the noble and learned Lord, Lord Brown of Eaton-under-Heywood, have talked about enforcement, which is a key issue. If these rights are enshrined only in UK law, the fear would be a future amendment, abrogation or repeal, perhaps in response to public pressure about too many foreigners. The document makes no mention of how any breaches of the rules agreed, or any enforcement, are to be ordered. Can the Minister fill that gap in our knowledge? This is key because the enforcement issue cuts both ways. There is no clear explanation of how the Government expect to protect the rights of British citizens in the rest of the EU. The national approach that they have taken regarding EU citizens here is not going to help UK citizens in the rest of the EU because it is not an EU law approach. There is no dimension of European citizenship or recognition of EU legal jurisdiction. It appears to the groups representing UK citizens that they are essentially being abandoned.

Although the paper is better than no paper, it leaves many questions unanswered; it is too little, too late, because what is in it could have been said a year ago, to be a catalyst for reciprocity. I remind the noble Baroness that her colleague, the noble Lord, Lord Howard, said to us in the Committee last year that a unilateral recognition of the rights of EU citizens here would undoubtedly have triggered a reciprocal guarantee of the rights of British citizens in the rest of the EU. So this bargaining chip approach has been both unnecessary and unproductive. I look forward to the Minister’s response.

--- Later in debate ---

[Baroness Williams of Trafford]

Can I write to the noble Baroness on that as well as I do not want to give her duff information either?

The noble Baroness, Lady Ludford, asked about the income threshold to qualify for settled status. EU nationals will not have to meet the income threshold. Further details on the eligibility criteria will be set out in due course, but the policy document sets out what the essential conditions will be—an applicant who arrived before the cut-off date and has been resident for five years and has had an assessment of conduct and criminality. That goes to my point, which I will clarify with the noble Lord, about refusal of settled status.

[Baroness Ludford]

I apologise for another interruption, but can the noble Baroness also address another of my questions? Will there be a system of appeal against refusal of settled status in whatever application of the criteria there are? I take it the noble Baroness will circulate all the letters to all of us.

[Baroness Williams of Trafford]

I will circulate letters to all noble Lords and place copies in the Library. I do not know the answer to the question about appeals and will write to the noble Baroness. I have just been told that I am running out of time, so I hope that I do not have to take too many more interventions.

Perhaps I may address the point about ECJ jurisdiction. It has been suggested by noble Lords that EU citizens should depend on the CJEU to defend their continued rights in the UK. Once the UK has left the EU, the EU courts should no longer have jurisdiction in the UK. However, we remain wholly committed to ensuring that EU citizens’ rights are respected and believe that our world-class judicial system, some of whose members are represented here, is the right and appropriate place to enforce that.

The noble Baroness also asked whether we would comply with our ECHR obligations. We will of course comply with our obligations under the ECHR and, as the Government set out, we will remain signatories to it for the duration of the next Parliament. It is also why we have been clear that we want to see agreement with the EU on citizens’ rights included in the withdrawal treaty—a point raised by, I think, the noble Duke, the Duke of Somerset, and the noble Lord, Lord Kennedy. That will ensure that our obligations to EU citizens in the UK, and vice versa, are binding upon the EU 27 under EU law and upon the UK as a matter of international law.

This country has always been compassionate in dealing with people, irrespective of whether they are from the EU or outside it. These principles define us as a nation and are reflected in the offer that we have put forward to the other member states. There is already much common ground between the positions of the UK and the EU, and we are confident that we can reach an agreement on this early on in the negotiations. EU citizens can have our full and unreserved reassurance that we will put citizens first in our exit negotiations. We will do all we can to provide reassurance to the EU citizens who have made the UK their home—and likewise for UK nationals who have done the same in countries across the EU.

Again, I thank noble Lords who have taken part in this debate, particularly the noble Baroness, Lady Kennedy, who secured the debate. I will of course write to your Lordships on some of the matters of detail that I dare not declare at the Dispatch Box in case what I say is wrong.