Brexit: Acquired Rights (EUC Report)

Baroness Williams of Trafford Excerpts

Tuesday 4th July 2017 Lords Chamber

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy, for bringing this debate to the House this evening. A number of noble Lords have asked why we have not yet responded to the report. I understand the importance of engaging with Parliament and the courtesy of responding to reports, and this is no exception. I undertake that we will, of course, respond to it in due course, but I hope that tonight’s debate goes some way to give a flavour of the Government’s thoughts. It is obviously a very important topic, particularly at this time. As the noble Baroness said, this is about people’s lives and we cannot forget that. The Government have listened carefully to the recommendations made in the report and the concerns raised in it, in this House and across the country, on the rights of those citizens who make such an important contribution to the UK and to the member states in which they choose to live. As noble Lords have alluded to, last week we published our offer for EU citizens in the UK and our expectations for UK citizens elsewhere, which responds to those concerns and recommendations. I am grateful for the opportunity to discuss these in greater detail with noble Lords this evening. If I run out of time or do not answer every question, I shall of course respond in writing.

We have been clear that we want to give EU citizens in the UK certainty about their future. This report noted our obligation to provide certainty and clarity to EU citizens in the UK and British nationals living elsewhere in the EU, and we have done so. Indeed, I remind noble Lords that last year the Prime Minister sought to agree on this very issue with the EU, but was told at the time that there could be no negotiation without notification.

We committed to this House that we would undertake comprehensive work to examine each of the rights afforded to EU citizens under EU law and examine the different circumstances in which people find themselves to ensure that there are no unforeseen or unintended consequences as we move forward with the process of exiting the EU. Providing certainty on what could be achieved for those individuals also requires consideration of the other member states’ position. The EU set out its position on citizens’ rights on 9 June 2017 and we responded promptly and appropriately, with the Prime Minister publishing ours soon after. It is now clear that there is much common ground between the UK and the EU positions and we are confident that we can reach an agreement on this issue early in negotiations. Our starting point is that it is the Government’s intent to reassure all those EU citizens who are in the UK and who have made their lives and homes in the UK that no one currently lawfully resident will have to leave as a result of our exit from the EU. What is more, we are clear that we will not see families enjoying their lives here together split apart.

The committee’s report rightly notes that the rights to live and work in another member state and to gain a permanent right of residence in that state after five years are the most fundamental of EU citizens’ rights. As the report accurately describes, these are the rights that are necessary for EU citizens and their families,

“to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State”.

We share the committee’s assessment that international law does not provide for these rights to be retained automatically. After we leave the EU, the UK will no longer be subject to EU law. 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. However, this Government are clear that it is right and proper that the substance of those rights noted by the report should be protected, and that EU citizens who have built their lives here and who came to the UK on the basis that they would be able to settle permanently should have that expectation honoured. This Government are committed to honouring that expectation.

As noble Lords have also noted, it is not just these people’s ability to live in the UK that we are committed to protect; we also want to ensure that EU citizens continue not only to be able to live here as they do now but to enjoy other important rights such as access to healthcare, education, benefits and pensions. That is why, on 26 June this year, we laid before Parliament a policy paper proposing that all EU citizens lawfully here when the UK exits the EU will have the opportunity to regularise their status to remain in this country, and all EU citizens here before a specified date will have the opportunity to acquire settled status after five years’ residence. This will enable EU citizens to reside in any capacity, as a worker, a student, a stay-at-home parent and so on, and undertake any lawful activity. We also intend to treat EU citizens with settled status in the same way as if they were UK citizens for the purposes of education, benefits and pensions. We have listened to the concerns of EU citizens who have made the UK their home and the concerns raised in this report. Those concerns are reflected in our offer and we believe that it is a fair and serious offer.

Noble Lords have also talked about the application process. We are determined that EU nationals who have built their lives here should continue to be able to live their lives here as they do now, and we have proposed a fair process to ensure that these rights are enforced. To this end, we will be providing eligible EU citizens with documentation enabling them to enforce their rights and prove their continuing right to live, work and access public funds and services in the UK after we leave the EU.

The noble Baroness, Lady Ludford, asked about the documentation and whether it amounts effectively to an ID card. I echo the comments of the Secretary of State for the Department for Exiting the EU, who said that,

“it is not an ID card. We are talking about documentation to prove that people have the right to a job and the right to residence, but they will not have to carry that around all the time. It is not an ID card”.—[Official Report, Commons, 26/6/17; col. 373.]

We have listened to concerns about the application process by which the resident population of EU citizens will be able to acquire settled status, which the noble Baroness, Lady Kennedy, asked about. This is why we have been clear that we will improve upon the existing application system, and why we have committed to ensuring the process is as simplified, streamlined and user-friendly as possible. For example, unlike EU law, which requires economically inactive EU citizens such as stay-at-home parents to hold comprehensive sickness insurance to acquire the right of permanent residence, we have proposed that no one will be required to demonstrate that they have held comprehensive sickness insurance to be eligible for settled status.

We want to reassure EU citizens that they will be able to acquire the necessary documentation confirming their status quickly and easily. We are working hard on this new system and expect it to be up and running in 2018. The noble Baroness, Lady Smith of Newnham, asked for the details of this system, and of course we will provide further details in due course. What is more, we have committed to providing a grace period, which we expect to last up to two years after we leave the EU, to give EU citizens the time and opportunity to regularise their status.

The noble Baroness, Lady Smith of Newnham, asked about Ireland, Cyprus and Malta. On Ireland, we have both been clear about the shared desire to protect the freedoms our nationals currently enjoy in each other’s states. Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements. I hope I can write to the noble Baroness on Malta and Cyprus.

The noble Baroness, Lady Ludford, asked what “strong ties” means when we are offering protections to those who have left the UK for more than two years. Settled status would generally be lost if a person was absent from the UK, unless they have strong ties here. This approach replicates the approach to returning residents with indefinite leave to remain under the Immigration Rules.

The noble Baroness, Lady Smith of Newham, also asked about the costs of the application process. The fees are being looked at as part of negotiations, but the aim is to keep them as reasonable as possible.

Family members were talked about, particularly by the noble Baroness, Lady Kennedy. We have listened when EU citizens told us their concerns that their families would be divided once the UK leaves the EU. My first point is that all EU citizens, be they children, students, husbands or partners, who arrive before the cut-off date, will be able to apply for settled status in their own right. However, I recognise that many EU citizens have family members who are not EU citizens, as the noble Viscount, Lord Waverley said. That is why we have proposed that family dependants who join a qualifying EU citizen in the UK before the UK’s exit will also be able to apply for settled status after five years, irrespective of the specified date. The Government are clear that we do not want to see families who have made their lives here together while we are still a member of the EU split apart.

[Viscount Waverley]

I apologise to the Minister. Maybe I misheard it, but I would just like a clarification. Supposing a non-EU spouse was married to a UK citizen but living on the continent, how will the five-year system that she has suggested work?

[Baroness Williams of Trafford]

I am sure that the noble Viscount knows the system now. If a dependant who joined a qualifying EU citizen in the UK before the UK’s—sorry—

[Viscount Waverley]

Perhaps the noble Baroness would care to write to me.

[Baroness Williams of Trafford]

I think I know the answer, but I do not want to be quoted as giving your Lordships’ House—

[Viscount Waverley]

Would the noble Baroness kindly consider writing?

[Baroness Williams of Trafford]

I will.

[Baroness Kennedy of The Shaws]

I want to ask the noble Baroness a similar question. I raised an issue that arose from a letter that the committee received. It involves a family where an Englishman is married to an Italian wife, his wife is an only child and her parents are elderly and in Italy. It is expected that, when one of her parents—the in-laws—dies, the lone in-law is allowed to come here, but it may not be within the next two years. What happens in that situation? Will it be possible for an in-law left alone in another country in Europe to be able to join their daughter or son to live here?

--- Later in debate ---

[Baroness Williams of Trafford]

I will write to the noble Lord on the absolute detail about whether it could be refused. I am sure there will be circumstances under which it could be refused, and I can imagine the sort of circumstances that we might be talking about. As I have said, we intend settled status to be a very simple process, literally perhaps proving, perhaps with a gas bill or a rental agreement, that you are actually here in the UK. I will write to the noble Lord on the circumstances under which it might be refused.

I was about to come on to the noble Baroness’s question about the ability of those currently resident in the UK to bring in family members after we leave the EU, such as the elderly member of that family. It is important to note that they will have the opportunity to do so either by applying under post-exit immigration arrangements for EU citizens who arrive after the specified date or by applying under the same rules as those joining British citizens. I hope that answers the question.

[Baroness Kennedy of The Shaws]

I am sorry, but I have just one more point. It is another letter from someone who came here as a European and bought a property here but because of his work is now working abroad. Is that continuing tie of owning a property in Britain enough to establish his entitlement to apply for settled status?

[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.