Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020

Baroness Williams of Trafford Excerpts

Wednesday 18th November 2020 Grand Committee

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020.

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

My Lords, the order was laid before Parliament in October and is required to enable a number of changes arising as a result of the end of free movement. First, it allows nationals of the EU, EEA and Switzerland—who I will collectively call EEA citizens—aged 12 or above, using a biometric national passport rather than an EEA ID card and seeking to enter the United Kingdom as a visitor under the Immigration Rules, to be granted such leave by passing through an e-gate, without routinely having to be interviewed by a Border Force officer.

The order also allows EEA citizens, as well as other nationalities already eligible to use e-gates, arriving in the UK under the new S2 healthcare visitor route to also be able to obtain six months’ leave to enter as an S2 healthcare visitor, either granted orally by a Border Force officer, or automatically by passing through an e-gate, in a similar way to standard visitors. It allows those holding a service provider from Switzerland entry clearance to enter the UK on an unlimited number of occasions during its validity, receiving 90 days’ leave to enter upon each entry; and it defines the type of leave obtained by a person passing through an e-gate, thus enabling Border Force officers to examine such persons and to cancel their leave where appropriate.

The first change is needed to give effect to our established policy to maintain access to e-gates for EEA citizens resident in the UK and for visitors. Noble Lords’ agreement to this order will ensure the change can be implemented immediately after free movement comes to an end and ensure the continued efficient processing of all arriving passengers in the UK.

With the end of free movement, EEA citizens who do not have an existing status or eligibility to apply for status under the EU settlement scheme will require leave to enter the UK and will be subject to the requirements of the Immigration Rules in the same way as all other nationalities who are not British or Irish citizens. This amendment does not change that but allows EEA citizens passing through e-gates to be granted six months’ leave to enter as a visitor. As such, they will not be permitted to work or obtain benefits and will be expected to leave the UK, or extend their stay, before their leave expires, in accordance with the rules. Should they breach those rules, they might be liable for enforcement action, including removal from the UK.

To be clear, this new order will allow EEA citizens to be granted leave to enter as visitors for up to six months when they pass through an e-gate at a UK port of entry. EEA citizens coming to the UK for other purposes—such as work or long-term study, and those resident here—will also continue to be able to enter using our e-gates, but no change to the law is required to allow this as they will have already obtained, prior to arrival in the UK, the necessary leave to enter, either in the form of a visa, residence permit or digital status.

Noble Lords might recall that a similar amendment in May 2019 extended e-gate eligibility to visitors from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA—the countries we now refer to as the B5JSSK—and this amendment brings the treatment of EEA citizen visitors, after the end of free movement, in line with the treatment of this group of foreign nationals.

Retaining the ability of EEA visitors to use e-gates to cross the border will be beneficial for passengers and the UK and will be important to maintain efficient flows of passengers through the border. Although the Covid-19 pandemic is still likely to mean that passenger flows are temporarily reduced in comparison with previous years, the use of e-gates will remain the best mechanism for ensuring the secure, efficient processing of EEA citizens across the UK border following the end of the transition period. It will also signal that the UK remains open for business to EEA tourists and business visitors alike.

The continued use of e-gates also needs to be seen in the context of the development of our new global border and immigration system, which makes better use of data, biometrics, analytics and automation to improve both security and fluidity across the UK border. Part of our long-term vision has always been to utilise digital technology to improve the passenger experience while maintaining security at the border. The use of e-gates is an important component of that as they provide a safe, secure and efficient means of processing arriving passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and wider border threats. I would also like to be clear that although this amendment enables us to allow EEA visitors to use e-gates to cross the border, it does not oblige us to do so; and as part of ensuring the UK border is operating in the interests of the UK, we will be keeping the policy under regular review.

The order also allows for permission to be granted to those who enter through an e-gate and qualify as an S2 healthcare visitor—to ensure that they obtain the correct type of leave on entry—and provides for service providers from Switzerland to use multi-entry visas. These groups’ rights to enter the UK are protected by the withdrawal agreement, the EEA EFTA separation agreement and, in particular for service providers from Switzerland, the Swiss citizens’ rights agreement.

Finally, the order also provides for leave obtained by a person passing through an e-gate to be treated as though it had been granted before arrival. The effect of this amendment will be to enable Border Force officers to examine persons who have obtained leave to enter by passing through an e-gate to decide whether that leave should be cancelled. This will complement existing powers already available to Border Force officers to curtail or cancel leave to enter. An example of where this might be used would be where further information, such as evidence of the commission of a customs offence, comes to light after they have passed through the e-gate and obtained their leave to enter. I commend the order to the Committee.

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[Baroness Williams of Trafford (Con)]

I thank both noble Lords for their points. Indeed, I welcome the positive comments about this statutory instrument made by the noble Lord, Lord Bhatia. The noble Lord, Lord Paddick, asked a number of questions about security and the impact of the ending of free movement and other things, while the noble Lord, Lord Rosser, made a couple of additional points, which I will attempt to answer.

To answer the first point made by the noble Lord, Lord Paddick, when individuals use e-gates, they are not routinely questioned by a Border Force officer. However, I assure the Grand Committee that our e-gates conduct a full range of security checks. The biometric check that they undertake on people’s travel documents means that they are a highly effective method of detecting imposters, people with fake passports, fake facial images, et cetera. The e-gates also allow our allow highly trained Border Force officers to focus their efforts on high-risk cohorts—[Interruption.] I shall stop there.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the Division Bell is ringing so the Committee will adjourn for five minutes.

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[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

Five minutes has now elapsed so I invite the Minister to continue her remarks.

[Baroness Williams of Trafford (Con)]

My Lords, e-gates are and will continue to be able to identify pre-existing adverse information about travellers and individual subjects. Such information will be seen by a Border Force officer. If officers require information about any person’s previous immigration history, the Home Office has access to data, including advance passenger information and exit check records, to verify the person’s individual history. Those officers will retain the ability to exercise the full range of powers at the border, so they will be able to continue to refuse entry where appropriate to those whom they deem ineligible for entry.

The noble Lords, Lord Paddick and Lord Rosser, asked about UK citizens travelling to the EU. They will know that this is part of the ongoing negotiations, of course. For our part, we have ensured fairness in the system by setting up the EU settlement scheme so that no one from the EU is in any doubt about their rights.

On SIS II and what will replace it, those negotiations are ongoing. However, I agree with both noble Lords that having our full range of law enforcement capabilities is absolutely essential as we go through the transition period. If I may, I will get back to the noble Lord, Lord Rosser, on the impact assessment of the small number of people who will be negatively impacted by e-gates; of course, it is a small number because most people will see a positive impact from them.

The noble Lord, Lord Paddick, asked how this is different from free movement. EEA citizens and their family members will be subject to UK immigration control from 11 pm on 31 December this year on the same basis as non-EEA citizens except where they form part of the citizens’ rights cohort.

In answer to the noble Lord, Lord Rosser, the new border and immigration system will see EEA citizen visitors become subject to the same Immigration Rules, criminality thresholds and travel document requirements as other third-country nationals. However, in contrast to the situation under free movement, EEA citizen visitors passing through e-gates after 31 December who do not have another form of UK status or eligibility to apply to the EU settlement scheme will be granted six months’ leave to enter but will not be permitted to work or access benefits and services. They will also be expected to leave the UK or extend their stay before their leave to enter expires. Any EEA citizens arriving for work or long-term study will need to apply under our new system and obtain prior permission, just like all other non-visa nationals. Without such a permission, they will not be able to demonstrate their entitlement to remain in the UK for anything other than a visit.

The noble Lord, Lord Paddick, was concerned about repeat visits. He talked about refreshing leave to enter every six months by leaving for a short period—a point that he has talked about at length—but it is not possible to do so and obtain the same rights and entitlements as residents. Anyone seeking to abuse the system in this way would find themselves prohibited from working and obtaining benefits. If their intentions were to become known to the Home Office, they could be refused when seeking entry at the border. Further, if they seek to stay longer than six months or breach the conditions of their stay as a visitor, they may also be liable to enforcement action, including removal from the UK. That also answers the point made by the noble Lord about being able to rent.

Returning briefly to the EU treatment of UK citizens, it is not based on the EU providing reciprocal access to its e-gates for British citizens. The UK has always sought to manage its border in the country’s best interest. That is why we did not join the Schengen zone and why, on leaving the EU, we are determined to enhance our ability to manage our border in a way that continues to protect the public and facilitates the passage of legitimate travellers.

Motion agreed.