British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021

Baroness Williams of Trafford Excerpts

Monday 7th June 2021 Grand Committee

[Baroness Williams of Trafford]

Moved by

That the Grand Committee do consider the British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021.

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

My Lords, for ease, I will refer to this instrument as the “British Nationality Act SI”. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 ended free movement on 31 December last year. That Act enabled us to take back control of our borders for the first time in decades, delivering on manifesto promises to the British people and paving the way for the new points-based immigration system, which began operating from 1 January 2021.

Parliament also approved the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. These provide an additional six months—referred to as the grace period—in which an EEA or Swiss national and their family members resident here by the end of the transition period can still make an application to the EU settlement scheme by 30 June this year for the status they need to secure their rights under the citizens’ rights agreements, and have their existing EEA residence rights protected in the meantime. The Immigration Rules for the scheme, at appendix EU, also confirm that, in line with the citizens’ rights agreements, an application can be made after the 30 June deadline where there are reasonable grounds for missing that deadline.

The British Nationality Act SI reflects the ending of the grace period on 30 June 2021 and the scope for an application to the EU settlement scheme to be made after that date, or to be decided after that date having been made before it. The SI protects nationality rights for children born after 30 June but before the outcome of such an application. It is only after 30 June, and with the ending of the grace period, where there is a risk of parents losing status previously held and protected.

The British Nationality Act SI is made under the delegated regulation power in Section 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, the scope of which was debated extensively in both Houses during the passage of the legislation. The SI amends primary UK legislation as a consequence of, or in connection with, the provisions in Part 1 of the Act, which end free movement. It amends legislation relating to nationality acquired through birth in the UK. We are determined to ensure that children do not miss out on British citizenship through no fault of their own.

The very positive effect of the legislative change that we are discussing is to allow a child to automatically become a British citizen when born in the UK after 30 June 2021 and once the EU settlement scheme application submitted by their parent or parents is resolved through the granting of indefinite leave—known under the EU settlement scheme as “settled status”—which occurs after that birth. This might occur in two scenarios: where an application was submitted by 30 June but has not been resolved at the point of the child’s birth; or where an application is submitted after the 30 June deadline, based on reasonable grounds for missing that deadline, and is resolved favourably after the child’s birth. In this scenario, the parent would clearly need to demonstrate that they would have met the relevant eligibility requirements immediately before 1 July 2021.

The immigration rules and guidance already set out how any late applications to the EU settlement scheme should be considered and the approach to take to what may constitute reasonable grounds. The British Nationality Act SI provides clear protection for a child in this position without the need to make a separate nationality application, reflecting the unique position of those affected. The change will come into force on 1 July, immediately after the end of the grace period.

This SI ensures that there are no unintended consequences from the necessary deadline for the EU settlement scheme. It is basically an essential step in protecting the status of children, and I commend it to the Committee.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I will first answer the question on the citizenship fee from the noble Lord, Lord Ponsonby, because it is at the forefront of my mind. We are doing a Section 55 assessment at this point in time, so that is being reviewed. It will not necessarily change the fee, but nevertheless we are doing that which the court asked of us and doing that Section 55 assessment.

The noble Baroness, Lady Ludford, asked how many children—I presume she means in local authority care—do not have settled status. I am afraid I do not know the answer, but I can tell her that a lot of effort has been made to engage with local authorities to ensure that children whose corporate parent is the state are signed up to the settlement scheme. In any event, should that fail, they would very clearly come under the reasonable excuses category. We are being very pragmatic on the reasonable excuses category; we are taking a sensible approach to people who for reasons of disability, domestic violence or the local authority just not meeting their obligations, for example, would very clearly have come under the category of being able to apply to the EU settlement scheme being in scope of that reasonable excuses framework.

On the right to work and the implications after 1 July, I say to the noble Baroness, Lady Ludford, that landlords are under a duty to do those right-to-work due diligence checks. In line with that pragmatism from the Government, we will give people time, no matter what the issue—whether the right to rent or right to work—to prove their status. I think the time is 28 days, so people will be given time.

On whether the EUSS Covid guidance is being sent out this week, I certainly know it is being sent out. Again, going back to that pragmatism, people who have not been able to get here clearly have more than a reasonable excuse not to have been here.

To answer the question from the noble Baroness, Lady Ludford, yes, the guidance will be updated in the light of the statutory instrument. In line with other issues, we will try to communicate as widely as possible what those people who might be in scope of this statutory instrument will need to do.

Are we going to expand the reasonable excuses? The reasonable excuses guidance is, I think, one of those areas where, as time goes on, we may find that people will suddenly come into scope. We will keep that under review.

On outstanding applications, there is not actually a backlog because they are within three months of application; it is more that they are progressing through the system. About 300,000 applications are estimated to be in scope. I say to the noble Baroness and the noble Lord that that work in progress might concern those who are going through the criminal justice system, and people who do not have national insurance numbers are another set who are in scope. To be pedantic, it is not actually a backlog.

On the British citizens who have been sent letters, I saw the tweet on Saturday—I was at the derby so I did not answer it, but I thought I might give the official answer today. If the noble Baroness looks carefully at the letter, she will see that it very clearly states that if you already have status or indefinite leave to remain then you can ignore the letter. If she refers to the tweet, she will see it. We are criticised when we do not do things and then we are criticised when we have duplications. In this situation, they are duplicates. For the people who do not need to apply, that is clearly stated on the letter.

Citizenship is not retrospectively granted, like much in UK law. It is from the date that their parents get settled status.

I cannot remember what the noble Lord, Lord Ponsonby, asked, but basically, once the EU settlement scheme application submitted by the parent or parents is resolved through a grant of indefinite leave, known under the EU settlement scheme as settled status, which occurs after that birth, it is free of charge.

The noble Baroness, Lady Ludford, asked why the date. It reflects the ending of the grace period, that being the last day on which EEA residents’ rights will exist for those persons resident here by 31 December 2020 and who have not made an application to the EU settlement scheme.

I think I have already attempted to answer the question on the number we expect. It is very difficult to know but, as I said, we are doing all we can to engage with people accessing things such as midwifery services to remind them to secure EU settlement scheme status for themselves and any expected children.

I think I have answered all the questions—I know the noble Baroness, Lady Ludford, is not happy with all the answers, but I think I have answered them all. If there are any supplementary questions, I would be very happy to answer them, given that we have plenty of time.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

I have noticed that the noble Baroness, Lady Ludford, would like to ask a supplementary question for clarification. If the Minister is happy, and given the time, I suggest we proceed. I call the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

I thank the Minister for her replies, and on the question of British citizens I confess I have not seen her tweet in reply, although it is true that I tweeted at her—I am glad she was actually enjoying herself on the day. But I could have got one of those letters. Why should a British citizen be judged to be within the scope of the cohort who should get a letter? I have seen some comments following that thread suggesting that there is some Home Office scoping exercise to see who it might be missing, but it does not inspire confidence that people with British citizenship who do not need to apply for settled status are getting letters. They are always official, if not officious, letters from the Home Office which put the wind up many people—and would do so for me if I got one—implying that there is something wrong with your existing status. If you are a British citizen and get this letter, you would be nervous. I do not understand what mistake, or deliberation, has led to British citizens getting the letter.

As a second point, I think the Minister—forgive me if I am wrong—did not address what happens to children born before 30 June whose parents make a late application, or do not make one at all, but where it is later resolved. The SI is all about children born after 30 June; if they are born before 30 June but their parents, for whatever good or not so good reason, are none the less delayed in getting their status, what happens to them?

[Baroness Williams of Trafford (Con)]

A child born before 30 June whose parent has not applied to the EU settlement scheme—if it were just the child—would clearly have the reasonable excuse that their parent did not apply to the EU settlement scheme, even though they were born in the UK. That is the answer to that question. Clearly, we are now trying to capture those children born after 30 June whose parents have applied.

On the letter, the rationale behind it is that we wanted to capture as many people as we could, not as few people, so I acknowledge that people to whom it does not apply may have received letters. I can say to the noble Baroness that we are doing a data-cleansing exercise to try to reduce that duplication. We do not want to worry people, but we do want to make sure that as many people apply as possible.

Motion agreed.