Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020

Baroness Williams of Trafford Excerpts

Thursday 10th December 2020 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the Regulations laid before the House on 18 November be approved.

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

My Lords, I will refer to this instrument as the consequential amendments SI. Parliament has approved the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which will end free movement on 31 December, at the end of the transition period. The Act gives the Government full control of UK borders for the first time in decades, delivering on our promise to the British people. It represents an important milestone in paving the way for the new UK points-based immigration system, to operate from 1 January 2021.

The consequential amendments SI is the next step in ending free movement, and completes the legislative changes necessary for this historic act. It is made under the regulation-making power in Section 5 of the Act, the scope of which we and the other place debated extensively during the passage of the legislation. I was pleased to share with noble Lords an illustrative text of the SI in early September.

The SI amends primary and secondary UK legislation as a consequence of, or in connection with, the provisions in Part 1 of the Act, which end free movement and make provisions for the new status for Irish citizens. It amends legislation relating to immigration, nationality, benefits and services. It amends devolved matters where changes are required for an immigration purpose, to reflect the end of free movement.

As noble Lords will have noted, the SI is lengthy, given the breadth of amendments to domestic legislation required. The effect of the legislative changes is to align the immigration treatment of EEA citizens and their family members who are not protected by the withdrawal agreements and the UK’s implementation of these agreements, with that of non-EEA citizens under the UK’s immigration system. Once free movement has ended, newly arriving EEA citizens and their family members will be subject to the same UK immigration law as non-EEA citizens. They will need to meet the requirements of the new points-based immigration system set out in the immigration rules made under the Immigration Act 1971.

The SI provides clear protection for Irish citizens and EEA citizens and their family members who have been granted status under the EU settlement scheme. It also removes references in domestic legislation to the UK’s membership of the European Union and EU-derived law that has been retained by the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020, at the end of the transition period.

Most of the changes will come into force at 11 pm on 31 December, at the end of the transition period. There are some exceptions, which include the provision to bring EEA citizens within scope of the immigration skills charge, which came into force on 1 December to coincide with the opening of the new skilled worker route. It means that the charge will apply to EEA citizens who arrive in the UK from 1 January 2021 under this route.

Another exception consists of the various provisions that bring EEA citizens within the scope of the sham marriage and civil partnership referral and investigation scheme. They will come into force on 1 July 2021, after the deadline for applications to the EU settlement scheme, at which point it will be easier for the Anglican Church to differentiate between EEA citizens who have status under the EU settlement scheme and those who do not.

The consequential amendments SI reflects the repeal of free movement at the end of the transition period, as enacted by Parliament’s approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Act. It makes the statute book coherent, and terminates arrangements relevant to the operation of free movement law in UK legislation, which will no longer be appropriate, while implementing our obligations under the withdrawal agreements. It is an essential step in fulfilling our promise to end free movement. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

I thank all noble Lords for their questions. I am sure that the noble Lord, Lord Rosser, will forgive me—he asked so many questions that I am not sure I can get through all of them this afternoon.

The noble Baroness, Lady Ludford, talked about the complexity of the SI—a point reiterated by the noble Baroness, Lady Hamwee. The changes are required to fully implement the end of free movement by removing references to retained EU law and preferential arrangements for EEA citizens and their family members. Domestic legislation includes these references as a result of decades of membership of the EU. So the SI contains these consequential provisions; it is not a self-contained new policy, and it needs to operate on the statute book as it is now. As a result, yes, the SI is lengthy and includes amendments to a wide range of primary and secondary legislation. However, the overarching effect is simple: the SI aligns EEA citizens and their family members, except Irish citizens and those protected under the withdrawal agreement, with non-EEA citizens. This will pave the way for the points-based immigration system that will treat people on the basis of their skills and their contribution, not their nationality.

The noble Baroness talked also about the examples raised in the House of Commons. I actually did look at the Hansard of the questions raised there. I would not have wanted to reply to those questions because obviously, every single case is different and there may be elements in people’s circumstances that do not elicit a one-size-fits-all response. That also goes to the point made by the noble Baroness, Lady Hamwee—if there will be a chart setting out the rights in all sorts of eventualities. I would have thought that that would be the wrong thing to do because, as I say, everyone’s case is slightly different. We have the Settlement Resolution Centre and GOV.UK, which assist people, and we have also launched a further awareness campaign so that people know their rights.

The noble Baroness also brought up the issue of over 4 million people now applying. The EU settlement scheme is clearly a system that works, given the number of people who have already applied. Yes, some have pre-settled status—that is absolutely to be expected—and there are some with full settled status as well. She asked whether the SI is compatible with Article 18(3), and I can confirm that it is. She asked about the EEA, Turkish citizens and the Civil Service, as did the noble Lord, Lord Rosser. As he said, the SI makes changes to the Aliens’ Employment Act 1955, which will lead to changes in the Civil Service nationality rules concerning who is eligible to work in the Civil Service.

The effect is that newly arriving EEA citizens from 1 January next year will no longer be eligible to work in the Civil Service on the basis of exercising free movement rights, since we are ending free movement. But the instrument protects those EEA citizens and their family members with status under the very successful EU settlement scheme, those who would have been eligible for status at the end of the transition period but have other leave to remain granted before the end of the transition period, and Turkish nationals in specified circumstances in relation to the EC Association Agreement with Turkey. Separate provision has been made in the grace period SI, of course, to protect existing rights to work in the Civil Service during the grace period.

The noble Baroness, Lady Ritchie of Downpatrick, questioned not only the affirmative SI process but the illustrative draft SI process. It was requested and made available ahead of Committee stage of the immigration Bill to facilitate scrutiny of the legislation, so if there is any doubt about parliamentary scrutiny, that was an opportunity for Parliament—both Houses—to scrutinise this SI.

The noble Lord, Lord Rosser, asked whether some of the provisions are unrelated to the end of free movement, and about the compatibility with Section 5. The power to make regulation is provided by Section 5 of the immigration Act, as he said, and that provision is to make changes appropriate as a

“consequence of, or in connection with”

the ending of free movement and provisions in the Act relating to the rights of Irish citizens, so all the provisions in the SI are made accordingly.

The noble Lord, Lord Green of Deddington, and my noble friend Lady Neville-Rolfe asked about the cap. It is a very pertinent point. We have ended free movement and introduced the new points-based immigration system. It is absolutely right and fair that in the coming months and years, we look at how that all pans out. My noble friend made a point about the data, which is so important here. It will be kept under review. The noble Baroness, Lady Ritchie of Downpatrick, asked for a debate on the points-based system—obviously, over to noble Lords on that. These things are allowed for in your Lordships’ House, and I look forward to having a debate, perhaps in the first quarter, on how that new system is working. The resident labour market and the key sectors will be kept under very close scrutiny, and we will of course retain the ability to make any changes necessary.

The noble Baroness, Lady Ritchie of Downpatrick, also asked about the impact assessment on health and social care. Noble Lords will recall that back in the debates on the immigration Bill, the noble Lord, Lord Rosser, asked if we could publish an independent review on the impact on the sector of ending free movement, and I undertook to do that.

My noble friend Lady Neville-Rolfe asked about monitoring. She asked me not to talk about the MAC all the time, but I think it will monitor the impact of the new system. She asked for a breakdown by country and sector of who was applying to the EU settlement scheme. I do not have that at the moment, but I can look into it for her and see if we have any information to date.

I hope I have answered all noble Lords’ questions. I will have to write to the noble Lord, Lord Rosser, on some of his points because I could not write them down quickly enough. On that note, I beg to move.

Motion agreed.