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

Baroness Whitaker Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I have little to add to the magisterial introduction made by the noble Baroness, Lady Hamwee, to Amendment 27A, but I will emphasise the deficit of the Bill as it stands especially with regard to Roma women with settled status who look after their children full-time and who apply for British citizenship. The underlying problem—in real life rather than in Home Office rules—is that while their children are little, the mothers have a weak connection to the labour market, like other full-time mothers. I am surprised that this Government should prejudice mothers in this way.

So, because they cannot prove they were exercising treaty rights—according to the Home Office, which does not accord with the European Commission’s interpretation—by showing that they have comprehensive sickness insurance, their application fails. I remind your Lordships that Theresa May, as Home Secretary, recognised this injustice and promised to do away with the requirement for CSI in these cases. So it is very odd that updated Home Office guidance in 2020 changed the application process to direct caseworkers to check whether such applicants had CSI. An undefined power of discretion has not proved much use in rectifying the injustices to full-time mothers. It is shocking that the Government have not honoured the earlier commitment.

In her letter to us of 29 September, the Minister said that the Government’s policy is that CSI is not required to obtain status under the EUSS. Nevertheless, the grace period SI maintains CSI as a requirement for lawful residence during the grace period as a student or self-sufficient person, such as a full-time mother, under the saved EEA regulations because, according to the Home Office, this is consistent with EU law. This is not the European Commission’s view, and it is not right or just that applications are turned down because there is no CSI.

[Baroness Ludford (LD)]

My Lords, I will go over very similar ground to that raised by my noble friend Lady Hamwee.

The background is that, under the withdrawal agreement, the UK is obliged to create a grace period following the end of the transition period. During this grace period, EEA citizens have the opportunity to apply by a deadline for a new immigration status through the EU settlement scheme, as it is called in the UK.

As EU rights will end on 31 December, the Government need to create an interim status for those who have yet to acquire their new status via the EU settlement scheme—hence the grace period SI. As we know, it sets the deadline for applications to the settlement scheme as 30 June next year, but the Minister said last Wednesday, on the first day of Report, that it would also

“protect the existing rights of resident EEA citizens and their family members during the grace period.”

What does “existing” mean? A fact sheet published in July also used that adjective when it said that the power in Section 7 of the European Union (Withdrawal Agreement) Act 2020 would be used—as has now happened with this grace period SI—to make regulations

“to protect the existing rights of those individuals who are eligible to apply to the EU settlement scheme”.

As the noble Lord, Lord Parkinson, did in Committee on 16 September, the Minister said last Wednesday that she could reassure us—here, I repeat a quotation given by my noble friend—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”,

which, as we have learned, was set by Theresa May,

“that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”

Therefore, so far we have established two government statements: first, that the existing rights of those eligible to apply to the EU settlement scheme will be protected; and, secondly, that acquiring settled status will not involve a requirement for CSI. So far, so good. Ministerial assurances seemed to accord with Article 18(3) of the withdrawal agreement, which provides that, pending a final decision, all rights provided for in the citizens’ rights section of that agreement shall be deemed to apply to the applicant. That means residence rights and all related equal treatment rights.

However, things then get somewhat murkier. Last Wednesday, the Minister added a caveat—again, quoted by my noble friend—when she said:

“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.”—[Official Report, 30/9/20; cols. 243-4.]


When I checked back, I saw that the noble Lord, Lord Parkinson, had explicitly said on 16 September in Committee:

“The grace period SI maintains”


comprehensive sickness insurance

“as a requirement for lawful residence during the grace period for a student or self-sufficient person under the saved EEA regulations, as is consistent with EU law.”—[Official Report, 16/9/20; col. 1340.]

I will not go round all the houses again, but I beg to differ with that last comment, as I believe that the Commission is pursuing infringement proceedings—it is taking a while; it launched them in 2012—over the Government’s wrong interpretation of CSI as meaning private health insurance. In this country, it should mean accessing the National Health Service. However, for current purposes, I will just concentrate on the first part of the noble Lord’s statement: namely, the proposal that during the grace period students and self-sufficient persons will have to show that they have CSI—that is, private insurance—in order to qualify as lawfully resident.

The remarks confirm that in their current form, limiting a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period, the regulations appear, as my noble friend said, to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and while their application is pending. In general, a worker and someone who is self-employed will benefit from legal protections, but those not economically active by the end of the transition period will likely be unable to do so, with the consequences that my noble friend enumerated—possible removal, the denial of NHS treatment, being put out of a job, or whatever.

Even where someone successfully lodges an application with the EU settlement scheme, if they are awaiting a decision beyond the end of the grace period and are not in scope of the regulations, they will not have the legal protections it offers. Therefore, someone with a complex EUSS case could be without a legal basis to remain in the UK for many months beyond the grace period.

As a taste of things to come, a case has been brought to my attention where parents seeking to renew their five year-old son’s British passport were told that the EU citizen father had to supply evidence of having had CSI—I repeat: private health insurance—when he was a student many years ago.

To recap where I think we are, we have three government statements: first, that the existing rights of those eligible to apply to the settlement scheme will be protected in the grace period; secondly, that CSI is not a requirement for acquiring settled status; and, thirdly, that CSI is a requirement for some people to have lawful residence in the grace period. We can add in a fourth, given in the course of this Bill: that discretion will be exercised—we have not heard how—in regard to the absence of CSI in assessing eligibility for citizenship.

I am struggling to make sense of how those four statements fit together and to understand how the Government really intend to treat people. So far as I can see, it leaves matters as clear as mud and full of contradictions and obstacles. It seems that the Government are set on making a person cross a crocodile-infested river of legal uncertainty over residence before they can reach the safe shore of settled status.

Therefore, I back up the questions that my noble friend asked the Minister about the practical implications for people who do not fall within the scope of the regulations. Will there be further regulations to cover those eligible for settled status but not in scope of the regulations? When they apply for settled status, will they be told, “Oh no, we don’t need to ask you for CSI, but in the meantime, under the grace period SI, you need CSI”. It is like being on a chessboard, although I can think of some other analogy.

I have one last question. Are the Government willing to consider changing the draft regulation from stating a requirement to have been “lawfully resident”—which, as we know, according to the Government’s interpretation is an extremely loaded term—to a requirement simply to have been “resident”? Given that this definition operates for only six months, save in cases where a settled status application has been made, this might be a simple, workable solution that could save a lot of people a lot of anxiety. This sounds like an awfully complicated and arcane situation. It is, and in the real world a lot of people are affected by it. They are represented by the the3million group, which, again, is doing sterling work, although, as far as I know, even it has not got its head round it, so I do not know what hope there is for someone like me.

I hope the Minister can bring some coherence to this situation, or display a willingness to look again at the regulations under the grace period SI to see if the Government are creating unnecessary hurdles for people who were told they would not need CSI or settled status when perhaps applying later for citizenship. It seems to be creating an awful lot of unnecessary hassle.