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

Baroness Williams of Trafford Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 21st October 2020 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1A: Because Skills for Care and the Migration Advisory Committee already have the remit to report on matters relating to social care and the immigration system.

[Lord Rosser (Lab) [V]]

In the Commons on Monday, the Government chose to describe your Lordships’ amendment calling for an independent report on the impact of the end of free movement on the social care sector as “well intentioned”, but went on to claim that it was “unnecessary”—

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

My Lords, if I may intervene, I was going to give a speech. Would the noble Lord bear with me while I speak?

[Lord Rosser (Lab) [V]]

Yes. I thought I had been called.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I was very politely waiting to be asked, then the noble Lord, Lord Rosser, came in. Shall we start again?

My Lords, with the leave of the House, I will turn to Motion A, Amendment 1, and Amendment 1B in lieu, proposed by the noble Lord, Lord Rosser, which would require the Secretary of State to publish an independent report on the impacts of ending free movement on the social care sector. I start by acknowledging the work of noble Lords in the scrutiny of this important Bill, which ends free movement between the EU and the UK, and the passion and commitment with which your Lordships have spoken on a number of issues. We have debated many issues, and although there are some areas on which we may still disagree, I always come back to the focus of this Bill: ending free movement and delivering on the Government’s manifesto commitment to introduce a firmer, fairer points-based immigration system.

Amendment 1B requires the Secretary of State to publish the response to the independent assessment within two months of publication and make a statement to Parliament within seven sitting days of publishing the response. I recognise the good intentions behind Amendment 1, but the other place disagreed to it because independent reporting already exists in this area through Skills for Care and the Migration Advisory Committee. The Government remain committed to improving social care, focusing on increased funding and training opportunities and improved recruitment practices. I will reflect further on a few related points.

--- Later in debate ---

[Baroness Hamwee (LD) [V]]

I am, of course, pleased to hear the Government’s decision on this. From and on behalf of our Benches, I added my name to the previous versions of this amendment. The point has been made throughout the Bill that the amendment is unnecessary, but, given that its proposers have kept on pressing, clearly they have not been satisfied. This is good news, but one always has to think around the subject, and I wonder what the correct level of scrutiny is. To me, it involves stakeholders very widely and the context for consideration of a proposal, which, in this case has to be more than just the immigration provisions which may apply. One thing on which I agreed with the Commons and with others who have spoken is that the social care crisis cannot be solved through immigration alone: it is much wider than that.

The correct level of scrutiny involves the organisation being scrutinised—in this case, the Government and their proposals—not being committed to its initial proposition but being prepared to listen to the responses. We are always faced with statutory instruments where there is no possibility of making a change. It would be tragic—I do not think that is putting it too highly—if the opportunity is not taken on this occasion to adopt a much more open-minded practice. Having said that, I welcome what the Minister has said.

[Baroness Williams of Trafford (Con)]

I apologise to noble Lords; I keep wanting to pop up at the wrong time during this debate. However, I thank all noble Lords who have spoken in this part. First, I come to the noble Lord, Lord Rosser, and absolutely commit to the timescales set out in his amendment. He asked, with a certain degree of cynicism, I think, who will carry it out and suggested the Migration Advisory Committee. It must be a hot contender for it, but I take his point about the skills of the people who carry it out.

When settling on the proposals for the new points-based system, we did not do it in isolation; we conducted an extensive programme of engagement with stakeholders— as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hunt of Kings Heath, alluded to—across the whole of the UK, including in the social care sector, listening to people’s concerns and hearing about the unique challenges they face.

Both the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Hamwee, have in different ways pinpointed that the workforce challenges are not single silver-bullet issues—they will not be solved by continuing along the trajectory of low pay. It is incumbent on employers in what has been, throughout the last few months and years, a very valued occupation not to continue to rely on low-paid workers. As the noble Baroness, Lady Hamwee, said, social care cannot be solved just by immigration; progress needs to be made with a whole plethora of interventions in this area of a much-needed, well-respected and very much appreciated workforce.

--- Later in debate ---

Motion B

[Baroness Williams of Trafford]

Moved by

That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.

2A: Because the Commons consider it appropriate to ensure equal treatment of family members of all UK nationals under the immigration system.

[Baroness Williams of Trafford (Con)]

My Lords, Amendment 2, in its previous form, was also disagreed to in the other place. It seeks to continue certain family reunion arrangements provided by EU law—the so-called Surinder Singh route.

Amendment 2B, tabled in lieu by the noble Baroness, Lady Hamwee, would require the Government to provide the right for British citizens resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied, or joined, by their non-British close family members on current EU free movement law terms until 31 December 2040—that is, for a period of 20 years from the end of the transition period. They would retain preferential family reunion rights for that period. For the next 20 years, family members of British citizens living in the EEA or Switzerland would continue not to be subject to the same Immigration Rules as family members of other British citizens. This would perpetuate a lack of parity, which the Government cannot accept.

Family members of British citizens resident in the EEA or Switzerland at the end of the transition period are not protected by the withdrawal agreements in terms of returning to the UK, but we have made reasonable transitional arrangements for them. British citizens living in the EEA or Switzerland will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, unmarried partner in a long-term relationship, child or dependent parent—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after that date, and must continue to exist when the family member seeks to come to the UK. Those family members will also then be eligible to apply to remain in the UK under the EU settlement scheme.

Family members will be able to come to the UK after 29 March 2022 but will then need to meet the requirements of the family Immigration Rules. Those rules apply to the family members of other British citizens, irrespective of where they come from, and reflect the public interest in preventing burdens on the taxpayer and promoting integration. This is a fair and balanced policy. It was announced on 4 April 2019, so those affected will have had almost three years to decide whether they wish to return to the UK by 29 March 2022 on current EU law terms and, if they do, to make plans to do so.

The Government’s approach strikes the right balance between providing sufficient time for British citizens and their family members living in the EEA or Switzerland to make decisions and plans for returning to the UK, and ensuring equal treatment of the family members of British citizens under the Immigration Rules as soon as is reasonably possible once free movement has ended. We must be fair to other British citizens, whether they are living overseas or in the UK. The same rules should apply to all, not continue for the next 20 years to give preferential treatment to those relying on past free movement rights, which will have been abolished. That is what a fair global immigration system means.

I hope that noble Lords will not insist on their Amendment 2 or agree to Amendment 2B in lieu. I beg to move.

Motion B1 (as an amendment to Motion B)

[Baroness Hamwee]

Moved by

At end insert “but do propose Amendment 2B in lieu—

--- Later in debate ---

[Lord Rosser (Lab) [V]]

We do not minimise the importance of this issue any more than we minimise the importance of any of the amendments and the issues they covered which this House sent to the Commons and which the Commons rejected. As has been said, British citizens who moved to other EU countries will lose the right they had to return to this country of birth with a non-British partner or child, perhaps to look after an ageing parent, unless they can meet financial conditions that will be beyond the reach of many. While British citizens who have moved to the EU or EEA before the end of 2020 will face these restrictions, EU citizens who have moved to the UK before the end of 2020 will not.

However, while this issue of the right for UK citizens to return with their family was referred to by some speakers during the Commons proceedings on Monday, it was not taken to a Division. This rather indicates that we have now taken this matter as far as we can at present, having sent it to the Commons once. For that reason we will abstain if Amendment 2B in lieu is taken to a vote. In the Commons on Monday, the Government said they would

“continue to keep this area under review”.—[Official Report, Commons, 19/10/20; col. 804.]

We call on it to continue to look further at this issue, in which I declare a personal family interest, outside the Bill and well before the deadline date of 29 March 2022 for bringing existing close family members to the UK on current EU law terms.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken. I start with the noble Lord, Lord Rosser, who rightly points out that the Commons did not divide on this matter on Monday. We should remind ourselves that the British people voted to leave the EU in 2016; we are now four years on from that point.

I will answer the noble Baroness, Lady Hamwee: of course we keep all legislation and policy under review, and we are assisted by MAC in that endeavour. We recognise that UK nationals who moved to the EU expected free movement rights to continue. That is why we have provided for these transitional arrangements, but we have to be fair to other UK nationals whether they live overseas, beyond the EU, or in the UK. The UK family Immigration Rules reflect the public interest in preventing burdens on the taxpayer and promoting integration. UK nationals protected by the withdrawal agreement because they are living in the EEA before the end of the transition period do, of course, have lifetime rights to be joined in their host state by existing close family members. This mirrors the rights of EEA citizens living in the UK by then.

The noble Baroness, Lady Ludford, challenged me about the date of 29 March 2022 being arbitrary. It represents three years after the date when the UK was originally supposed to leave the EU. For me, it strikes the right balance between providing sufficient time for UK nationals and their family members living in the EEA or Switzerland to make decisions and plans for returning to the UK, and ensuring equal treatment of the family members of UK nationals under the Immigration Rules as soon as reasonably possible, once free movement to the UK has ended.

[Baroness Hamwee (LD) [V]]

I am of course grateful to my noble friends who supported this amendment. I hope that I never give my noble friend Lady Ludford cause to look up what I have said in the past. I am particularly grateful to my noble friend Lord Oates, who—if you will—embodies the point I was making about the differences between those who married EU citizens, not knowing what was coming down the road, and those in his position.

I am disappointed in Labour’s response to this because it is a legislative opportunity to get this sorted quickly. The noble Lord, Lord Rosser, and I asked about keeping the policy under review, but it sounds from the Minister as if this is no more than the normal keeping of a policy under review: no detail, no particular plan, no timetable. What she said is not a reason not to pursue this amendment. As my noble friend says, this is not fair and I beg to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 3, to which the Commons have disagreed for their Reason 3A.

3A: Because local authorities are supporting children in care and those entitled to care leaving support to obtain UK immigration status under the EU Settlement Scheme.

[Baroness Williams of Trafford (Con)]

I ask that this House do not insist on its Amendments 3, 6, 7, 8 and 10, as set out in Motions C, F, G, H and K respectively, to which the Commons have disagreed for their Reasons 3A, 6A, 7A, 8A and 10A.

I will speak to Motion C on Lords Amendment 3, which provides for children in care and care leavers who lose their free movement rights under the Bill to obtain indefinite leave to remain—or settled status—under the EU settlement scheme where they apply to the scheme or a local authority does so on their behalf. This would be regardless of how long the child or young person had been in the UK. I will also address Motions F, G, H and K, covering Lords Amendments 6, 7, 8 and 10, which cover a time limit on detention.

I know that the noble Lord, Lord Dubs, will be disappointed with me on the position taken by the other place on Lords Amendment 3, but I reassure him that the Government agree as to the importance of protecting the rights of children in care and care leavers and other vulnerable groups as we end free movement. The Home Office continues to provide extensive support to local authorities, which have relevant statutory responsibilities for this cohort, to ensure that these children and young people, like other vulnerable groups, get UK immigration status under the EU settlement scheme. This includes the Settlement Resolution Centre, which is open seven days a week to assist local authorities with this work. It also includes grant funding over last year and this year of up to £17 million to organisations across the UK to support vulnerable groups in applying to the scheme. The number of organisations funded for this work has now been increased from 57 to 72.

A recent survey of local authorities by the Home Office has so far identified fewer than 4,000 children in care and care leavers eligible for the EU settlement scheme, with over 40% of these having already applied for status under the scheme. Most of those who have applied have already received an outcome of settled status. Local authorities are making good progress to identify and support relevant cases.

The Government have made it clear that, in line with the withdrawal agreements, where a person eligible for status under the EU settlement scheme has reasonable grounds for missing the 30 June 2021 deadline, they will be given a further opportunity to apply. We have also made it clear that those reasonable grounds will include where a parent, guardian or local authority does not apply on behalf of a child. Therefore, if a child in care or a care leaver misses the deadline, they will still be able to obtain lawful status in the UK.

The Government are not therefore persuaded of the need for this amendment, which also presents some technical problems that the Government cannot accept. It effectively exempts this cohort from the suitability requirements of the scheme when there is absolutely no reason to do so. It also seeks to backdate the settled status granted following an application made after the 30 June 2021 deadline. This runs completely counter to the general operation of the Immigration Rules made under the Immigration Act 1971, under which status has effect from the date on which it is granted.

I hope noble Lords will agree that, while understanding and supporting the motivation behind this amendment, the House should not insist on this amendment.

I shall now address Motions F, G, H and K on Lords Amendments 6, 7, 8 and 10, which relate to introducing a detention time limit on EEA and Swiss citizens. Detention is a very important issue that merits debate, but it is not directly relevant to the purpose of this Bill, which is to end free movement. The central point of the Bill is a commitment to a global immigration system, and equal treatment of immigrants from all nationalities as we exit the transition period. These amendments seek to impose a time limit on detention only for EEA and Swiss citizens, which would lead to a discriminatory position for those who are not. It is important to acknowledge that the other place disagreed to the amendment for these reasons.

On the substance of the amendment, to impose a 28-day time limit on detention is not practical and would encourage and reward abuse. No European country has adopted anything close to a time limit as short as that which is proposed in these amendments, and countries such as Australia and Canada have not gone down this route at all. We need an immigration system which encourages compliance but, where people refuse to leave voluntarily, we must have the ability to enforce that removal. We do not detain indefinitely; there must always be a realistic prospect of removal within a reasonable timescale, and this is a complex process that requires a case-specific assessment to be made for every single person for whom detention is considered.

A time limit would allow those who wish to frustrate the removal process to deliberately run down the clock until the time limit is reached and release is guaranteed. Under these amendments, any person in scope who is detained for 28 days will automatically be released, regardless of the facts of their case, including some foreign national offenders who present a genuine threat to public safety.

The Home Office operates a number of safeguards to review detention and prevent anyone entering detention who would otherwise comply with a removal from the community. Some 95% of people who are liable for removal from the UK are managed in the community while their cases are progressed. The detention gatekeeper and case progression panels are key operational safeguards. Where detention is deemed necessary, there is judicial oversight through bail applications to the tribunal, and the continuing detention of any individual remains under regular review by the Home Office.

Everyone in immigration detention is protected by these safeguards, which entitle them to apply for bail hearings at any point, to appeal against any refusal of asylum and to have access to legal representation. If we accept a 28-day time limit, it will enable these people to exploit the immigration system, making unmeritorious claims to avoid their removal. In the current immigration system, it is only in the most complex cases that detention exceeds 29 days. A time limit would cripple the function of the detention system, exposing it to abuse, undermining our capacity to enforce removals and potentially endangering public safety. I hope that noble Lords will agree that this amendment is not only unconnected with the main purpose of this Bill but unsupportable, and I urge them not to insist on this amendment, which would lead to unfair treatment between EEA and non-EEA citizens. I beg to move.

--- Later in debate ---

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

My Lords, the decisions taken by the other place on all these issues are most disappointing. I thought my noble friend Lord Dubs made a convincing case, but sadly it was not listened to in the other place, as is so often the case now. I hope the Government will take a constructive attitude in working with local authorities to protect vulnerable children. Many local authorities have considerable pressures on them in terms of looking after children in care, and I hope the noble Baroness will confirm that there is a positive attitude from the Government to address these concerns, even if they are not prepared to accept my noble friend’s amendment today.

I note the comment—the noble Baroness, Lady Hamwee, also made the point—that the other Motions in this group make reference to all these dangerous criminals who would potentially be released into the public. I think we have to accept that the people we are talking about here are vulnerable people, and that if there are people who are dangerous criminals, there are other procedures to deal with them. We should not be wrapping people up like that: these are vulnerable people who need our help and support. There is an issue about people being locked up in detention when they have done nothing wrong and not knowing when they will get their release date.

The noble Baroness may well say that they are normally released into the community. That is obviously really good news, but if you are locked up in a cell or in a detention centre and you do not know when you will be released, the fact that you will be released at some point in the future may not be a huge comfort to you. Again, we are not going to pursue these issues any further today, but the fact that the Government rely on those arguments underlines the weakness of their case in this respect. The noble Baroness, Lady Hamwee, said that we will return to these issues at a later date, but we will not be pressing any of them today.

[Baroness Williams of Trafford (Con)]

I thank noble Lords for their comments. The noble Baroness, Lady Hamwee, initially challenged me on what the Government have to lose. It is not really about what the Government have to lose; it is a demonstration that, throughout this process, we have constantly articulated just what the Government are doing to ensure that children in care, or other vulnerable people, are able to register for the EU settlement scheme. We have put in quite a lot of resource to ensure that that happens. We have increased the number of organisations helping in this regard from 57 to 72 and we will put significant funding in place to ensure that people eligible to apply do so.

The noble Baroness, Lady Hamwee, said that we are acting as though all detainees are offenders, and the noble Lord, Lord Kennedy, talked about the number of people detained who are vulnerable. In fact, a snapshot of offenders from the EU detained at the end of March 2020 found that if a 28-day time limit were in place, we would have been required to release into the community 166 foreign national offenders being held under immigration powers to effect their deportation. Of these offenders, 35 had committed very serious crimes, including murder, rape, offences against children and other serious sexual or violent offences. There is no indefinite detention, but it is necessary sometimes to keep people detained, particularly serious offenders and those frustrating their removal.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received no requests to speak after the Minister, so I shall put the question.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A.

4A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

[Baroness Williams of Trafford (Con)]

My Lords, Lords Amendment 4 and Amendment 4B in lieu, tabled by the noble Lord, Lord Dubs, relate to family reunion and unaccompanied asylum-seeking children. I ask noble Lords to note that the other place highlighted that Lords Amendment 4 would engage financial privilege. Amendment 4B in lieu would remove the previous restriction on charging a fee for applications for leave to enter under the proposed new route; however, there remain a number of costs with this amendment. These relate to family reunion applications—not just the cost of processing the application but the cost of providing asylum support and accommodation for asylum seekers awaiting a decision on their claim. Clearly those costs could not and should not be recouped via an application fee.

Turning to the substance of the amendment, we had many interventions on this issue on Report and I confirm the Government’s commitment to the principle of family unity and to supporting vulnerable children—we take their well-being very seriously. We have a proud record of providing safety to those who need it, through our asylum system and world-leading resettlement schemes. We have granted protection and other leave to more than 44,000 children seeking protection since 2010. The UK continues to be one of the highest recipients of asylum claims from unaccompanied children across Europe: we received more claims than any EU member state in 2019, and 20% of all claims made in the EU and UK.

We have made a credible and serious offer to the EU on new arrangements for the family reunion of unaccompanied asylum-seeking children. It remains our goal to negotiate such an arrangement. I reaffirm my commitment to further constructive engagement to identify ways to level up access to safe and legal work pathways for talented displaced persons. I once again thank the right reverend Prelate the Bishop of Durham and Talent Beyond Borders for discussing this with us and I look forward to continuing to work together to attract the best and brightest talent to the UK, regardless of background. Furthermore, as the Home Secretary made clear in her speech at the Conservative Party conference, safe and legal routes are a core part of our proposed reforms to the asylum system to ensure that it is both fair and firm.

I therefore ask the noble Lord, Lord Dubs, not to insist on his amendment, or to divide the House on Amendment 4B in lieu. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

--- Later in debate ---

[Lord Rosser (Lab) [V]]

Currently, the only legal way to reach this country from the EU in order to claim asylum, including for unaccompanied children, is through the Dublin III regulation on family reunion. That route, as we know, will cease to be available at the end of the transition period in a few weeks’ time. The Government have no comparable proposals to replace Dublin III, since their alternative removes the mandatory requirement to facilitate family reunion, removes a child’s right to appeal against refusal and further narrows the definition of “family”, since a child or teenager would no longer be able to join, for example, an aunt, an older sister or someone who could look after them when they have been separated from their parents

Safe Passage, to which reference has already been made, which supports child refugees, has said, I believe, that more than 90% of the young people and children it has supported through the Dublin III legal pathway would be unlikely to qualify under the Government’s alternative system. The numbers involved are not large and are very small indeed compared with the numbers of those from outside the EU whom the Government, by choice, each year, have enabled to come to this country. Before the mandatory Dublin III provisions came into effect, about 10 or 11 children per year came to this country under the scheme. Since 2016, when it became mandatory, the average number of children per year has been just over 500.

We support the amendment in lieu, Amendment D1, moved by my indefatigable noble friend Lord Dubs, which represents the guaranteed continuation of a decent and humane approach, particularly to children and young people in real need, including in real need of a safe and legal route to safety.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate and particularly the noble Lord, Lord Dubs, who makes this plea so genuinely and passionately. I hope, at this late stage, he might consider withdrawing his amendment to the Motion when he hears what I am going to say. First of all, we do not just use financial privilege for child refugees. That is not the case at all, but I think he knows that. The wording—

“trusting that this Reason may be deemed sufficient”—

is standard parlance.

I say to the noble Baroness, Lady Meacher, in response to her question, that it is true that the state does not have to fund children who are living with relatives, although, of course, it is different for children who are living in local authority care. I go back to the point I made earlier, which is that the Home Secretary made it absolutely clear in her speech at the Conservative Party Conference that safe and legal routes are a core part of our proposed reforms to the asylum system to ensure it is both firm and fair. In fact, the noble Lord, Lord Dubs, said that very thing today in his speech. I can confirm that, as an integral part of that work, the Government will conduct a review of safe and legal routes to the UK for asylum seekers, refugees and their families, which will include reviewing routes for unaccompanied asylum-seeking children to reunite with their family members in the UK. As noble Lords will recollect, we intend to bring legislation next year that will deliver those reforms.

Both the noble Lord, Lord Dubs, and the noble Baroness, Lady Hamwee, talked about bilateral negotiations. I understand noble Lords’ concerns about the risk of a non-negotiated outcome on asylum and illegal migration, and I can, today, make a commitment to the House that in the event of a non-negotiated outcome, this Government will pursue bilateral negotiations on post-transition migration issues with key countries with which we share a mutual interest. This will include new arrangements for the family reunion of unaccompanied asylum-seeking children. I hope noble Lords listened carefully to what I have just said.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A.

5A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

[Baroness Williams of Trafford (Con)]

My Lords, Amendment 5 and Amendment 5B, tabled in lieu and proposed by the noble Lord, Lord Oates, require a physical document to be offered to any EEA citizen who applies for it and who has been granted leave under the EU settlement scheme. The other place has rejected the previous amendment submitted by the noble Lord, Lord Oates, as they considered it would incur significant costs. The amendment in lieu removes the provision prohibiting charging a fee for the physical document. However, this does not fully address our concerns about the cost of this proposal.

To allow the now nearly 4 million people who have been granted status under the EU settlement scheme to apply for physical documents, we would have to incur significant up-front costs. These costs would include setting up and designing the application process to issue a secure biometric document, some caseworking resource and significant communications costs; much of this cost would be incurred regardless of how many people applied for a physical document.

As we would not know how many people will apply, we would not be able to set an individual application fee that covered these costs without that being beyond the reach of most applicants. Much of the concern expressed in this House relates to the most vulnerable, and I really do not think we would want to pass on to them the costs of setting up this process. The cost of producing a biometric immigration document is about £75, but that fee does not cover the costs that would be incurred in setting up the process and communicating it. Therefore, being able to charge a fee does not in and of itself fully address the reasons given in the other place for rejecting the previous amendment.

We cannot accept the amendment, but that does not mean that the Government do not understand the concerns raised. We are committed to working with this House and with stakeholders to ensure that measures are in place to support those who may find the transition to digital services difficult. We will run a campaign to ensure that third parties understand how to check a person’s immigration status and the need not to discriminate when doing so. In some cases, the check will be directly with the Home Office, and we are confident that this system will reduce the scope for error and better ensure that people have access to the services they are entitled to.

The Government have clearly set out their ambition to move to a system which is digital by default. That will produce a better system for migrants and will make it easier for them to prove their status where all migrants, not just EEA citizens, will have online access to their immigration status. Other countries, such as Australia, have had a system like this in place for some time, so we know that it works.

This amendment is well intentioned, but it will have an adverse impact on our plans for modernisation and digitisation of our immigration system. These plans include the support services we need to provide to migrants for the future. It will also adversely impact employers and landlords, who would still need to conduct manual checks to authenticate a document and go through the process of photocopying it, signing and dating it and then filing it away in a cabinet.

The Government recognise that digital processes represent a major change for some people. However, as I have outlined in this House, we will provide a physical document in the form of a written notification of their permission to stay in the UK, which they can print off and store as a record. We will require EEA citizens to use the online system to prove their immigration status to employers and landlords only after 30 June 2021, to give them time to adjust, and we will continue to provide information and support to enable them to do so. Many thousands are already successfully using the service now to evidence their status in the UK, as I pointed out during the passage of this Bill.

I am aware that many noble Lords are worried about the impact of digital by default on the elderly and the vulnerable, but I reassure them that we are taking steps to ensure that those individuals are not disadvantaged by the move to digital services, particularly in accessing public services. System-to-system checks with other government departments and the NHS will mean service providers, such as healthcare and benefits, will check status directly with the Home Office at the point at which the person seeks to access them. This will reduce the number of occasions where individuals need to prove their rights, where such information can be made available directly to the service provider on their behalf.

In moving to a digital system, we recognise that there are people who cannot access online services and will need additional support. We are committed to delivering a service that reflects the diverse needs of all users. Help on how to use the online service and share status information is already available through our telephone contact centre, and we provide a free-to-use assisted digital service where those applying to the EU settlement scheme, or others making online applications in the UK, are able to get support. We continue to improve the support services to ensure that they are inclusive and available to all who need them, and we would welcome continued discussions on what additional support we would need to provide to address the concerns that many noble Lords have raised.

We want a robust and secure system that is efficient as well as convenient. Migrants will be able to access details of their immigration status online at any time and from anywhere, with a variety of devices, such as a smartphone or laptop. The Government want a better immigration system, and we believe that the move to a digital service is an important part of that. The amendment would prevent our moving in that direction and would require significant expenditure, which would be better used in supporting those using the services. I hope noble Lords will not insist on this amendment. I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

--- Later in debate ---

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

My Lords, we may all have different views of this Government. While some might think that they are useless and incompetent, others might take a different view. However, I think that we would all agree that they certainly make many strange decisions—often ludicrous, inconsistent, contradictory and largely disappointing. This is one example. As the noble Baroness, Lady Hamwee, said, a consistent argument has been made about this issue, but the Government are just not listening. That is much to be regretted on the part of the Government because they should have given way on this point, but it is quite clear that they are not going to do so. I do not know if that is down to unelected advisers, the Home Secretary, or the general attitude of the Government as a whole. However, it is clear that they are not going to give way and that is most disappointing. For that reason, we are not going to support sending this issue back to the other place again because I do not think that the Government will change their position.

However, I have a few other comments to make. A few days ago, we had a debate about the costs to enable British children in care to get their British citizenship. The Government were happy to charge over £1,000; there was no issue about that at all. That is many hundreds of pounds more than the cost, so apparently there is no issue there at all. Here, of course, the Government have raised the issue of cost, saying that they are not sure and that it could be too much for people. I have equally made the point by asking for years why we cannot stop council tax payers having to subsidise planning applications. But no, the Government say that we have to continue letting those taxpayers subsidise such applications. That is completely ludicrous, contradictory and inconsistent, but that is what we have before us again today.

In all of these debates, I have never had an answer to this question. The point is made about how we cannot have certificates because they are not needed, everything is now digital, and we should not be worried about it. Yet, at the same time, we are handing out certificates to people who become British citizens. This is done in ceremonies in town halls up and down the country. You have to hand them out, they are signed by the Home Secretary of the day, and you tell the person that the certificate is really important. You hand it to them, a photograph is taken, and off they go with a document that at the moment is signed by Priti Patel. I have handed out hundreds of these things over the years, but I do not believe that those certificates are biometric. I think that they are a piece of paper. I might be wrong about that; perhaps they are biometric now and I do not know. Again, this is from the same department, so it is inconsistent and completely ludicrous. It is a real shame that the Government have not listened and that they are not going to do so. I think that that is much to the regret and shame of the Government.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken on this amendment—in particular, the noble Lord, Lord Oates, who moved it.

One of the first areas of disagreement that he raised was on costs. We have used published costs for enrolling biometrics and issuing a BRP, which are £19.20 and £56 respectively. They cover only the casework in the applications and not the significant set-up costs. There are costs of issuing and replacement, and one-off costs of upgrading pre-settled status cards. There is a cost of communication of the change and, of course, of facial technology.

The noble Lord, Lord Oates, suggested that the system should be trialled. The fact is that people are using it now. It is not going live on 1 January; people are already using it to prove status. That is proof of the success of the “trial”, as he puts it. Surely the fact that 4 million applications have already been made suggests that the system is working. This takes me to the point made by the noble Baroness, Lady Ludford, regarding the difficulties of the system. I have seen how the application process works. It is very easy; I have suggested previously in this place that noble Lords take time to look at just how easy it is to set up.

The noble Lord, Lord Oates, also stated his dismay that the PSED has not been published. I do not have any update on my previous statement that we intend to publish it.

On discrimination, the BNO route will be launched in January. Applicants will receive digital status using the technology based on the EU settlement scheme. People receiving that status will be required to use it from January, so the system relates not just to people from EU member states but to our BNO friends who we expect to come here from then. The system is therefore not discriminatory in the sense that our BNO friends will use it from January as well.

My noble friend Lady Neville-Rolfe is absolutely right: although it might not be the way forward for older people, digital by default is the way forward. It is completely retrograde to talk about physical documents when in fact, to date, the system appears to be working well. The noble Baroness, Lady Ludford, talked about physical documents being less open to abuse. They are more open to abuse and far easier to forge than a digital status that an employer or landlord can access.

Finally, regarding a power outage at the PNC, I should tell my noble friend Lord Polack that our back-up systems are very robust, as I have previously explained.

I do not think that I will convince some noble Lords—indeed, I think that the noble Lord, Lord Oates, intends to divide the House—but it is a retrograde step to talk about returning to physical documents. I remember my noble friend, joined by the noble Lord, Lord Clement-Jones, talking about the importance of physical identity, which we fully intend to take forward. I hope that the noble Lord, Lord Oates, will withdraw his amendment but I do not think that he will.

[Lord Oates (LD)]

My Lords, I thank the noble Baroness for her response. I do not understand the issue with set-up costs; a system exists. I also do not understand the point about casework costs for people who already have settled status.

All the arguments have been aired extensively. I very much regret that the Labour Front Bench is unable to come with us, not least because of the strong arguments made by the noble Lord, Lord Kennedy, for exactly my position. However, I hope that, despite the view of the Front Bench, my friends on the Labour Benches will support us, just as my friends on the Conservative Benches will do. I thank noble Lords on all sides of the House for their support and I appeal for their support again. I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 6, to which the Commons have disagreed for their Reason 6A.

6A: Because procedural safeguards already exist to ensure the lawfulness of the period of any detention.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 7, to which the Commons have disagreed for their Reason 7A.

7A: Because procedural safeguards already exist to ensure the lawfulness of the period of any detention.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 8, to which the Commons have disagreed for their Reason 8A.

8A: Because a detained person can apply for immigration bail at any time.

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 9, to which the Commons have disagreed for their Reason 9A.

9A: Because the Commons consider it appropriate, once free movement ends, for EEA or Swiss nationals who are confirmed victims of modern slavery to be considered for a grant of leave in the same way as such victims who are not EEA or Swiss nationals are considered currently.

[Baroness Williams of Trafford (Con)]

My Lords, this Government are committed to tackling the heinous crime of modern slavery, which has no place in our society. We are now identifying more victims of modern slavery and doing more to bring perpetrators to justice than ever before, and we are committed to supporting victims and helping them to rebuild their lives.

Lords Amendment 9, tabled by my noble friend Lord McColl, would require arrangements to be made in the Immigration Rules for the grant of leave to remain for confirmed victims of modern slavery who are EEA citizens in specified circumstances. I am therefore pleased to see that he has tabled Amendment 9B in lieu, which reiterates the Government’s commitment to him in this area.

The original Amendment 9 is unnecessary and should not be insisted upon for the following reasons. Currently, confirmed victims of modern slavery who are foreign nationals from non-EEA countries and who do not already have immigration status are automatically considered for discretionary leave to remain. By “automatic”, I mean that they do not need to apply for it. Our national referral mechanism arranges for that consideration after a decision has been reached that there are conclusive grounds to believe they are a victim of modern slavery. EEA citizens are currently not automatically considered in this way.

However, in line with assurances given in the other place, following the end of free movement, EEA confirmed victims who do not already have permission to stay in the UK, for example through our EU settlement scheme, will be treated in the same way as other foreign national victims and therefore receive automatic consideration for a grant of discretionary leave. The published policy will be amended to make this clear.

The published policy already provides for a grant of leave in cases where the victim is supporting the police in an investigation; is to be a witness in court; is pursuing compensation for the exploitation that they have suffered; requires medical treatment that needs to be provided in the UK; or because there is a risk they may be retrafficked if they are required to return to their country of origin. This is substantially the same as the qualifying criteria set out in the original amendment.

I hope that, in the light of the assurances I have given, the House will agree that Amendment 9 and Amendment 9B in lieu should not be insisted on. There are further issues to take forward about how we can best identify and support victims of modern slavery and I have undertaken to discuss these matters in further detail with the noble Lord, Lord McColl. However, it is important that, for immigration purposes, EEA victims are treated in the same way as other victims from abroad once free movement ends. I beg to move.

Motion J1 (as an amendment to Motion J)

Moved by

--- Later in debate ---

Moved by

[Baroness Williams of Trafford]

That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.

10A: Because it is consequential on Lords Amendments 6 to 8 to which the Commons disagree.