British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021

Baroness Ludford Excerpts

Monday 7th June 2021 Grand Committee

[Baroness Ludford (LD)]

My Lords, I thank the Minister for her introduction. I warmly welcome this measure, which is not always something that I can say about government legislation, particularly in the field of immigration and citizenship. The SI is practical, sensible and humane, as well as consistent with Article 18.3 of the withdrawal agreement, in safeguarding the right to acquire British citizenship for children born after 30 June to EU citizens who do not have settled status at the time of the child’s birth, either because the application has not been processed in time or because a late application was allowed on reasonable grounds, but who go on to get it later.

I have one question about the SI and then I want to raise some points on other aspects of the EU settlement scheme. The question is this: why is the concession being made only in respect of children born after 30 June? Can the Minister clarify the position for children born before 30 June whose parents have a gap in their immigration status after 30 June that is later resolved? What is the situation for those children? The Minister may tell me that I ought to know the answer, but I would be grateful anyway. Could she also explain what happens to children of parents who go on, in the scenario posited, to get pre-settled status? As far as I can see, they are not covered by the SI.

For children who are covered by the SI, I would be grateful to learn from the Minister what the communications plan is to make families aware of the citizenship opportunity under new Section 10A, and what evidential requirements will be imposed. We are all only too aware of what happened to many of the Windrush generation. Studies earlier this year by the JCWI and the Social Market Foundation found that high percentages of their interviewees in social care and low-skilled work were unaware of the scheme.

Of special concern among children would be those estranged from their parents. How many children in care entitled to British citizenship have not yet been registered by local authorities? Will the Home Office be able and willing to assist—through its records, whether of eligibility for settled status before 1 July or of the timing of an application for settled status and the reasons for a late grant of status—in confirming a parental relationship and the British citizenship or settled status of the parent at the relevant time? I believe that is required under Section 55 of the Borders, Citizenship and Immigration Act 2009 and by the UN Convention on the Rights of the Child. Will the child, parent, adoptive parent, local authority or other carer with parental responsibility get access to those records if necessary? Obviously it would be inappropriate and unfair for the Home Office to insist that a child produced the original of the document, given that that original was issued by the Home Office to their parent. The child could produce a copy and explain the fact of estrangement.

There is also, of course, the question of the fees for applying for citizenship, which are over £1,000. That is a huge barrier for many people—an issue that many in this House regularly raise. That is compounded by the lack of legal aid for complex cases. Has there been any reconsideration of these matters?

Turning then to other, less benign consequences of a late application, it seems curious to me that, in contrast to the subject matter of this SI, a person applying after 30 June will face drastic circumstances: the loss of lawful status, and with it the loss of the right to work, to rent accommodation, and to get free non-emergency NHS care, benefits or homelessness assistance. In fact, the full hostile environment will fall upon them, with the possible risk of removal. This is the case, as I understand it, even for those who are accepted to have reasonable grounds for a late application. Can the Minister tell us whether, three weeks from the deadline, there is any inkling of a softening in the Home Office’s approach?

Will EU citizens and their family members who miss the deadline but continue to work or rent be committing a criminal offence? Would the employer or landlord themselves face criminal proceedings? My friend in the other place, Stephen Farry MP, asked the Prime Minister 10 days ago for clarity on this, but all he got in response was that the Prime Minister was

“sure the law will be extremely merciful to anybody who finds themselves in a difficult position”.—[Official Report, Commons, 26/5/21; col. 369.]

Can the Minister spell out what on earth this means in practice? I hope that it was not one of those promises like the infamous, “There will be no paperwork for Great Britain to Northern Ireland trade”.

An article in the Guardian on 27 May reported a Home Office spokesperson as saying that

“Further information will be provided to employers shortly about what they should do if they have an employee who finds themselves in this situation.”


Similarly, an answer to another Parliamentary Question said that the Home Office would be

“updating … guidance and communicating with landlords in the coming weeks”.

Can the Minister tell me whether such information and guidance has now been provided?

I understand that an announcement is due later this week on new EU settlement scheme Covid-19 guidance, which will say that absences longer than 12 months for Covid-related reasons will not break “continuous residence”, so that affected EU citizens will still be able to build up their residence period for settled status. This would also be a welcome concession. If the Minister could tell me that the Home Office will continue to be in flexible mode, that would be most helpful—although of course guidance does not provide legal certainty, and there is a case for enshrining that concession in law.

In particular, there is a very good case to avert the status gap by granting the temporary right to reside during at least the period until those applicants recognised as having a good reason for a late application get a grant of status. Can the Minister give me a glimmer of optimism on that score? Surely if the Government can, as it were, freeze rights as they are doing on citizenship in this SI, they can do the same in respect of other rights, instead of the proposed drastic loss of residence rights even for those recognised to have reasonable grounds.

Will the Home Office also look again at the treatment of those judged not to have reasonable grounds? The Government have a huge set of discretionary powers and responsibilities in this area, and the worry is that there will be differing interpretations and applications of the caseworker guidance.

Could the Government also consider expanding the list of reasons considered reasonable for lateness to include, for instance, primary carers of children applying late; lack of capacity, as an automatic good reason; pregnancy and maternity around the deadline, which particularly during Covid have been even more stressful and preoccupying than they normally are; and having permanent residence, which many, however mistakenly, think is sufficient? Will the Home Office train all its decision-makers working on late application requests and monitor all decisions to ensure consistency?

Can the Minister give us an up-to-date figure on the number of outstanding applications not yet processed? In a recent letter to parliamentarians, the Home Secretary said that, as of 30 April, over 5.4 million applications had been received and over 4.9 million grants of status made. How many of the remaining half a million have been refused and how many are still to be processed? Will the Home Office publish figures on the time it is taking to process applications, the average wait and those waiting longer than, say, three, six or 12 months?

The “New Plan for Immigration” Statement of 24 May refers to the Government “Building on the success” of the fully digital EU settlement scheme. Many EU citizens are not so impressed that they are being refused a physical proof of status. Indeed, many worry about how they will prove their status after 30 June if they make a late application that is accepted on good reasons grounds. How will their prospective employers and landlords prove their right to work, rent and access healthcare and benefits? Article 18.3 of the withdrawal agreement states that:

“Pending a final decision … on any application … all rights … shall be deemed to apply to the applicant”.


How is that being complied with if they cannot generate an online “share code”? An employer or landlord required to contact a checking service will surely not bother unless they really want that employee or tenant.

EU citizens’ trust in a fully digital scheme which rests on confidence in the Home Office’s records and systems will not have been increased by the extraordinary move—to which my attention was first drawn by journalist Robert Peston—of British citizens being sent letters telling them that they need to apply for settled status. Can the Minister explain this mistake?

Lastly, press reports of extraordinarily harsh treatment of EU citizens newly arriving have not inspired confidence—far from it. Was it really necessary to detain and even deport some people, because surely even those seeking work had a right to attend an interview? What can the Minister tell me about what went wrong? Can she reassure me about training now for Border Force personnel?

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

I have noticed that the noble Baroness, Lady Ludford, would like to ask a supplementary question for clarification. If the Minister is happy, and given the time, I suggest we proceed. I call the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

I thank the Minister for her replies, and on the question of British citizens I confess I have not seen her tweet in reply, although it is true that I tweeted at her—I am glad she was actually enjoying herself on the day. But I could have got one of those letters. Why should a British citizen be judged to be within the scope of the cohort who should get a letter? I have seen some comments following that thread suggesting that there is some Home Office scoping exercise to see who it might be missing, but it does not inspire confidence that people with British citizenship who do not need to apply for settled status are getting letters. They are always official, if not officious, letters from the Home Office which put the wind up many people—and would do so for me if I got one—implying that there is something wrong with your existing status. If you are a British citizen and get this letter, you would be nervous. I do not understand what mistake, or deliberation, has led to British citizens getting the letter.

As a second point, I think the Minister—forgive me if I am wrong—did not address what happens to children born before 30 June whose parents make a late application, or do not make one at all, but where it is later resolved. The SI is all about children born after 30 June; if they are born before 30 June but their parents, for whatever good or not so good reason, are none the less delayed in getting their status, what happens to them?

[Baroness Williams of Trafford (Con)]

A child born before 30 June whose parent has not applied to the EU settlement scheme—if it were just the child—would clearly have the reasonable excuse that their parent did not apply to the EU settlement scheme, even though they were born in the UK. That is the answer to that question. Clearly, we are now trying to capture those children born after 30 June whose parents have applied.

On the letter, the rationale behind it is that we wanted to capture as many people as we could, not as few people, so I acknowledge that people to whom it does not apply may have received letters. I can say to the noble Baroness that we are doing a data-cleansing exercise to try to reduce that duplication. We do not want to worry people, but we do want to make sure that as many people apply as possible.