European Union (Withdrawal Agreement) Bill

Brandon Lewis Excerpts

Committee stage & Committee: 1st sitting: House of Commons & Committee: 1st sitting
Tuesday 7th January 2020 Commons Chamber

[Stuart C. McDonald]

I fully support that decision, and I will come to the court case in a moment. Another example I found when searching for cases is that parents have to choose which child will become a British citizen. They cannot afford to pay for two or three, so they have to pick which child will benefit from citizenship. It is a really appalling and cruel game.

It is therefore welcome, as my hon. Friend pointed out, that the fees have been found unlawful in the High Court because they do not properly take into account the best interests of children. I pay tribute to the Project for the Registration of Children as British Citizens, Amnesty International and others for their work on that case. Instead of appealing against that decision, the Home Office should listen to the reasoned arguments and stop this absolute scandal. Among the victims of this scandal are many EU and European Economic Area nationals—for example, a young Belgian girl born in the UK to Belgian parents just after they moved here and before they were settled. She becomes entitled to British citizenship automatically after 10 years, or if the parents become UK citizens or settled themselves, but she or her family quite simply may not be able to afford the £1,000 fee. She, along with many others, will be forced to register under the settlement scheme, when they have a far stronger right to citizenship. As the Project for the Registration of Children as British Citizens and Amnesty pointed out in a letter to the Minister’s predecessor, children and young people in the care system are especially at risk.

There are many things that need to be done to allow children and young people to access their right to British citizenship, but one key aspect is ensuring that all who have that right through registration can afford it. That is why new clause 18 sets out to limit the fee that can be charged for the administrative cost and to provide for free exemptions and waivers in appropriate circumstances. I do not want this to be limited to EU citizens, but it has to be because of the scope of the Bill. However, there is a far bigger job of work to be done in ensuring that these things are done right across the board. As my hon. Friend the Member for Glasgow Central (Alison Thewliss) pointed out, we should look to reimburse those who have had to break the bank, take loans or do whatever else simply so that their children can become British citizens or register the right to British citizenship that they are entitled to under statutes passed in this place. It seems a simple matter of justice to me. I cannot understand how any Government or MP would want to continue to deprive de facto British citizens of the legal British citizenship they are entitled to, and that is why new clause 18 should be put to a vote this evening.

In conclusion, many EU citizens are having an incredibly difficult time, to put it mildly. They were hurt again by the lazy rhetoric coming from the Conservative party during the election about the cost of benefit payments to EU migrants, and by the Prime Minister’s remarks about EU citizens daring to treat the UK like their own country. Instead of occasional platitudes in this Chamber, we need consistent and vocal support for EU nationals. More than that, we need action, not words, and these amendments and new clauses are exactly the action that is needed to improve the lives of those people.

[The Minister for Security (Brandon Lewis)]

It has now been over three years since the referendum, and we are here today because the Conservative party can finally break the deadlock and ensure that there is no more delay. This Bill means that the UK will leave the EU on 31 January, delivering on our pledge to get Brexit done. Our Prime Minister, standing right here at the Dispatch Box, laid out a powerful vision for a rejuvenated, forward-looking, optimistic United Kingdom. This Bill will allow us to unite the whole country and take advantage of the opportunities that lie ahead for us.

Throughout the negotiations, our first priority has been to safeguard the rights of EU citizens, those who have built their lives here and contributed to the UK. The clauses laid out in the citizens’ rights part of the Bill are essential to implementing the withdrawal agreement so that EU citizens’ rights to live, work, study and access benefits in the UK are protected. We have delivered on that commitment, and this Bill provides certainty to EU citizens and their family members who are covered by our implementation of the withdrawal agreement.

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[The First Deputy Chairman of Ways and Means (Sir George Howarth)]

Order. I draw Members’ attention to the fact that interventions should be brief and to the point. I am not necessarily saying the hon. Gentleman’s was not, but for further reference I think that advice should be taken.

[Brandon Lewis]

Thank you, Sir George. As my right hon. and hon. Friends will outline, we are working with our colleagues and friends around Europe, and they are all very happy with the scheme. In fact, as I will come to in a few moments, our scheme is far more generous than what many countries around Europe offer to UK citizens. I hope that will change, but this programme does deliver—I will come to some specifics in further clauses, but I am sticking to the clauses that are before us today. It is delivering a scheme that, as I say, has had over 2.8 million applications already, and nearly 2.5 million people have already been granted status. That is a success. EU citizens in the UK also have until the end of June 2021 to apply.

[Stuart C. McDonald]

I have two quick questions for the Minister. First, how many individuals have applied? I note that some may have made several applications. Secondly, and more importantly, does he dispute my estimate that hundreds of thousands of EU citizens will fail to apply in time? Has the Home Office made such an assessment?

[Brandon Lewis]

I disagree with the hon. Gentleman. In fact, I disagreed with quite a lot of what he said when he was on his feet a few moments ago, when he gave some clear misrepresentations of what is happening with this system. Over 2.8 million people have already applied, with nearly 2.5 million applications being granted, so that shows that the scheme, which has not been running for a year and still has at least a year and a half to run, is working.

On the second part of the hon. Gentleman’s question, I remind him and other colleagues who are unaware that not only have we said that if somebody has a good, reasonable reason for not applying earlier, we will still process their EU settled status application—even after June 2021—but we are doing specific work with groups around the country to reach the most vulnerable people. We have the road shows and our online work, and the phone centre is working around the clock, seven days a week, to deal with people’s queries. We have put in some £9 million to work with voluntary groups around the country to reach everyone, so, yes, I disagree with him in the sense that I think that we will get to these people.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

Will the Minister give way?

[Brandon Lewis]

I will in a moment.

If EU citizens do not apply through the EU settlement scheme, it may prove difficult to distinguish them from those who arrived after the end of the implementation period. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) ignored that fact completely earlier. It is essential that EU citizens have the evidence that they need to demonstrate their rights here in the UK.

[Dr Whitford]

Will the Minister give way?

[Brandon Lewis]

Not at the moment. Such an approach could also lead to EU citizens who have not applied for documentation suffering inadvertent discrimination compared with those who have. That is exactly what happened to the Windrush generation, and the Government are adamant that we must avoid a repeat of that dreadful situation.

[Stephen Doughty]

Given that the Minister mentions the Windrush generation, he will surely recognise that many of the amendments relate to concerns that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), others and I raised during Select Committee on Home Affairs sessions that examined the EU settlement scheme and, of course, the Windrush scandal. There is no malign intent behind the amendments. They are about ensuring that people have their rights and are able to exercise them. What lessons has the Minister learned from the Windrush scandal and, indeed, the evidence taken by that Committee?

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[Brandon Lewis]

The hon. Gentleman makes a good point. It is clear, as I have just said, that we all want to ensure that we avoid the problems that we had with the Windrush generation. One of the key issues—

[Stuart C. McDonald]

Will the Minister give way on that point?

[Brandon Lewis]

I will finish answering the first intervention before I consider taking any others. Part of the problem with a declaratory scheme is that it leads to the problems of Windrush. This scheme means that people have evidence of their rights, which means that they cannot be contestable in future, avoiding that problem in the first place. Moreover, this scheme is already more generous in its scope than the agreements themselves require, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East did outline earlier. For example, some people do not meet all the current requirements of free movement law and therefore are outside the scope of the agreement. As a matter of domestic policy, we have decided, nevertheless, that such people should be in scope of the EU settlement scheme, so we have granted them residence rights.

I will go a bit further on physical documentation. We are developing a new border and immigration system that is digital by default for all migrants, not just EU citizens. It is being rolled out incrementally and, over time, we intend to replace all physical and paper-based documents, which can be lost or stolen. Eventually, all migrants, not just those from the EU, will have digital status only, so amendment 5 would impede our ability to deliver an improved, equal and fair digital status.

[Dr Whitford]

Does the Minister not understand that someone getting to the end of the settled status process may be told that an email is meaningless and they will not have a document, which will not be reassuring? Part of the Windrush issue was that the Home Office destroyed records, so people who are depending on the Home Office to keep digital records are naturally pretty nervous. They would keep their records quite safe at home.

A declaratory system does not prevent registration. We can register people, but we can automatically say that they have a right. This is an application system, and people are being turned down or given pre-settled status—it is not the same.

[Brandon Lewis]

It is important that I clarify some of the hon. Lady’s misrepresentations. Her point argues for and against her colleague’s earlier comments. We want to ensure that people have a status, and a digital status means that it is there for ever. It means that employers, landlords or anybody can access it in future. It is not reliant on somebody keeping any documentation or ensuring that it is not stolen. As for her comments about the process, it is fast and easy—

[Dr Whitford]

Not for everyone.

[Brandon Lewis]

Let me finish the point. It takes five to 10 minutes online—the same as renewing a driving licence or passport.

The hon. Lady should be aware that, as of the last set of official figures, only two[Official Report, 13 January 2020, Vol. 669, c. 1MC.] people have been actively refused settled status, and both refusals were on serious criminality grounds. I stand by this country’s right to protect the security and safety of people in this country by refusing settled status to people with a serious criminal record.

Pre-settled status is granted only to people who have not been living in the country for five years. I will come back to the process around that in a moment, but anyone who has lived in the country for five years or more—we are helping them with ways of evidencing that—is entitled to full settled status.

[Alison Thewliss]

Will the Minister give way?

[Brandon Lewis]

I will just finish my point. Protections for those who do not apply by the June 2021 deadline are already built into the agreements. There will be no cliff edge for vulnerable people who are unable to make an application due to circumstances beyond their control. As with all aspects of the EU settlement scheme, we will adopt a flexible and pragmatic approach and exercise discretion in applicants’ favour. I urge hon. Members to withdraw their amendments, but I will take the hon. Lady’s intervention.

[Alison Thewliss]

What the Minister is saying is not accurate. I have a constituent who has a national insurance number card, which are not even issued anymore, who was only given pre-settled status. That constituent was able to prove that they had been here, and everything they submitted was correct, yet they have pre-settled status. How many more people have been given that?

[Brandon Lewis]

As I said, anybody who has lived in the country for five years or more is entitled to settled status. I am very happy—[Interruption.] Will the hon. Lady listen to the answer? If hon. Members have individual cases in which somebody has been granted pre-settled status when they feel that they should have received full settled status, I will personally look at those cases. Every such case that has come forward so far has turned out to involve an issue. In one case, the person had not actually even applied for settled status and had gone through an entirely different system. In other cases, applicants had not been able to provide evidence. However, our teams are working with people—that is why we are doing the road shows—to ensure that anything that people can provide as evidence of their being in this country for more than five years will allow them to be granted settled status. With nearly 2.5 million settled statuses already granted out of 2.8 million applications, I think that highlights the success.

[Stephen Doughty]

Will the Minister give way again?

[Brandon Lewis]

No, I will not give way on that point any further.

Clause 8 enables the Government to protect frontier workers and means that we can establish a registration scheme providing certainty to such workers about their rights going forward. Clauses 9 and 10 go hand in hand, enabling us to continue to apply EU deportation thresholds when assessing conduct committed before the end of the implementation period for the purposes of restricting a person’s right to enter or reside here in the UK. Conduct committed after the end of the implementation period will be assessed according to UK rules on criminality and behaviour non-conducive to the public good. That creates a fair and even system for all that does not benefit any foreign nationals over others.

Clause 11 provides a power to put in place various rights of appeal in connection with citizens’ rights and immigration decisions, including refusals under the EU settlement scheme, which are an essential and important part of our commitments.

I ask hon. Members to not to press amendments 3, 2, 20, 21, 7 and new clause 34 because they are unnecessary. Thanks to the power contained in clause 11, EU citizens who are appealing a decision on residence will be able to do so under the EU settlement scheme. Individuals who have been granted pre-settled status who believe they should have been granted settled status can also appeal.

The amendments would also potentially do damage. The situations requiring the right of appeal under the agreements are numerous, and the applications of existing rules relating to appeal rights are complex. Putting a right of appeal into the Bill would mean that none of that detail could be properly reflected.

The amendments would make it harder for EU citizens to appeal against an exclusion decision. They would actually remove our ability to provide EU citizens with access to the special appeals immigration commission when challenging an exclusion decision through judicial review. They would also prevent the Government from treating EU citizens in the same way as third country nationals when it comes to removals during an appeal process. Furthermore, the amendments create a perverse incentive for individuals to launch appeals and would mean that people who have applications that have absolutely no chance of succeeding could access social security benefits. I am concerned that this would open our immigration system to potential benefits abuse, which is something we should not allow. I hope what I have said assures hon. Members that these amendments are not only undesirable but unnecessary, so I urge them not to press them.

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[Stuart C. McDonald]

That is exactly why new clause 18(5) would allow Ministers to extend the reduced fees and the waiver scheme to everybody else. It would be entirely within the Minister’s gift to make sure such discrimination does not arise. What is discriminatory is the horrendous fee, which prohibits some kids from getting the British nationality to which they are just as entitled as the children of everybody in this place.

[Brandon Lewis]

New clause 18, as drafted, would discriminate by nationality because, as I said, it would give EU citizens preferential fees for citizenship.

My next sentence would have negated the need for the hon. Gentleman’s intervention, because I was about to say that new clause 18 would also undermine the legislative structure that is already in place. This Bill is not the place to set fees, including specific fee exceptions, as that is done in different legislation.

Part 2 of the Bill honours our obligation to EU citizens who are living in the UK by ensuring they have the certainty they need as our country moves forward. Frankly, it is disappointing that not all European countries have provided the same assurances to British nationals living in the EU, which is something we hope will change. We will continue to work towards that for our citizens.

This Government have always put citizens’ rights first and foremost, and we will continue to do so. EU citizens are our friends, our family members and our colleagues. They have made and continue to make a hugely important contribution to our country, our economy, our communities and our society, and we want them to stay. This Bill will ensure we can deliver that unequivocal guarantee, both now and in the future.

[Paul Blomfield]

I rise to speak to new clause 5 on the system for providing settled status, on which we will be seeking a vote, and to amendments 2, 3, 20 and 21 on the right of appeal, as well as amendment 37 on the Independent Monitoring Authority.

I regret the Minister’s combative response to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who made a typically thoughtful and considered contribution that did not reflect division across the Committee because, when these issues have previously been debated in Parliament, considerable concern has been expressed on both sides about the consequences of getting this wrong. If we do get it wrong, it will have a significant impact not only on EU citizens in the UK and on Brits in Europe but, frankly, on our caseload as Members of Parliament.

I believe it is possible to reach agreement on some of these issues, and it is in that spirit that I address our amendments. On new clause 5, the Minister said that providing certainty for EU citizens is central to the Government’s agenda. The Prime Minister said:

“under this Government they”—

EU citizens—

“will have the absolute certainty of the right to live and remain.”—[Official Report, 25 July 2019; Vol. 663, c. 1459.]

That seems clear, but the reality of applying for settled status is different. It is a constitutive system in which EU citizens acquire settled status or pre-settled status only by successfully applying for their right to live and work in the UK post Brexit. New clause 5 seeks to avoid that by making the scheme declaratory, meaning that EU citizens and family members who meet the eligibility criteria would automatically have the right to continue to live and work in the UK and would simply need to register for the purpose of proving their status.

We believe our approach would avoid a repeat of Windrush. The Minister suggested that the Government’s objective is to avoid such a Windrush situation and that a declaratory system could encourage a repeat. The Windrush scandal was caused by a number of factors: the changing legal environment for people who had lived here for decades; the 2012 introduction of the hostile environment; the lack of record keeping by the Home Office both under this Government and when we were in power—I am not trying to score party points; and by Home Office staff being incentivised by targets and bonuses to reach deportation targets. But for the Windrush victims, crucially, there was at least the legal safety net of the Immigration Act 1971, so they could seek recourse against their treatment.

What the Government are saying is that making the EU settlement scheme declaratory would create a second Windrush. They are perversely blaming the scandal—it was a scandal, as the Minister recognises—on that safety net, which is a fundamental misunderstanding. They are saying that the way to avoid another Windrush is to remove the safety net that the Windrush victims faced.

No system will get 100% of those eligible to apply, and I recognise the Minister’s point about the Government’s efforts to ensure that as many apply as possible. I take his point that 2.8 million have already done so, and I am sure many more will apply by the deadline of June 2021, but not everybody will. The Government do not even have a target for how many people they think should be eligible to apply. If only 3% of the estimated 3.5 million EU nationals living in Britain fail to apply, which is not beyond the bounds of possibility, it will leave 100,000 people facing a hostile environment and facing possible deportation. I have talked to many EU citizens who, despite all the Government’s publicity efforts, are unaware that the rights they have enjoyed for 30 years need to be applied for, and I have had to explain to them about how to apply for settled status. The Government have recognised that, as has the Minister. In an interview with the German newspaper Die Welt, he said:

“If EU citizens have not registered”

by the deadline for settled status

“without an adequate justification, the immigration rules will apply,”

When pressed on whether that would mean deportation, he said:

“Theoretically, yes, we will apply the…rules.”

The possibility of people whom we describe as our neighbours, friends, taxpayers and colleagues being deported exists while we pursue the same approach to settled status as the Government are now.

It is not too late to correct course. In our view, and that of others proposing similar amendments, a declaratory system is the only way to prevent hundreds of thousands of people from potentially being criminalised and deported. Under a declaratory scheme, if somebody does not register for settled status before June 2021, they will not lose rights; they will simply need to register for the Government to provide them with the proof of their status.

[Paul Blomfield]

The hon. Gentleman is absolutely right to say that there would be every incentive to apply, because without the proof these people will not be able to exercise their rights. We are simply seeking to ensure, through our new clause, that they do not lose their rights. The approach we are suggesting is explicitly allowed under the withdrawal agreement. The Government had a choice about what kind of system they would implement and, in our view, they chose wrong. We need to remember that this is not just about EU citizens in the UK; the largest national group affected by Brexit are the 1.2 million British citizens in Europe. The EU and the individual member states, not all of which have met our expectations, have been clear that rights granted to UK citizens will be based on reciprocity. The Minister is right to want to see other countries stepping up to the mark, but that will not be assisted if we reduce rights of citizens within the UK, because that will risk a reduction of rights of citizens across the EU27. So a declaratory scheme for EU citizens will be good not only for those here, but for UK citizens living in Europe.

I wish to move on to another aspect of the problems with the settlement scheme. The Minister said that 2.8 million have applied and he went on, unintentionally, I am sure, to give the wrong impression about the granting of status, because he said that 2.5 million had been granted status—that is correct, but it is not the status they had applied for. The most recent statistics show that almost half of the applicants for settled status are being granted pre-settled status, which comes with substantially fewer rights; it is a temporary form of leave lasting up to five years—[Interruption.] It is not indefinite leave to remain.

[Brandon Lewis]

You are misleading people—

[Paul Blomfield]

In a moment, I will ask the Minister to come back on me on some of these points and he might want to respond on that. In addition to the cliff edge at the end of 2021, when anyone who has not applied to the settlement scheme will face possible deportation, pre-settled status creates hundreds of thousands of individual cliff edges when people come to the point of confirming their individual position, because it does not provide—[Interruption.] I see my friend and former Committee colleague the hon. Member for Worcester (Mr Walker) looking puzzled about that, but if pre-settled status does not provide a permanent right to remain, that is granted only at the point at which settled status is gained. We are creating hundreds of thousands of individual cliff edges.

The campaign group the3million has shared one case with me that illustrates many of the problems with settled status. It involves an older Dutch woman who has been living in the UK for decades. Despite her living at the same address for more than 30 years, and paying council tax, income tax and NI, the online system could not find a trace of her, so she was forced to trawl through paperwork to provide evidence of seven years of residency. For some of those years she had saved council tax bills, but she had to find at least six bank statements for each of the other years. She then faced huge difficulties scanning and uploading the documents. After she had eventually sent them off, she waited several weeks for a response, only to be told that the Home Office required more evidence. After another difficult process of finding and submitting documents, she was finally granted settled status, but this woman has said that she could not have done it without help, and her journey shows that although the app may be simple for the most straightforward of cases, as soon as somebody faces difficulties, it can be immensely difficult to resolve them and secure the right status.

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[Bambos Charalambous]

My hon. Friend makes an excellent point. We need to have safety nets in place, and these new clauses would provide the safety nets needed to ensure that people’s rights are protected, no matter how few people might be affected.

In short, EU citizens who have been here lawfully and qualify for settled status should not have their rights limited by any barriers, such as time limitation or fees. If the Government do not to listen to these warnings, there is a very real risk of another Windrush. The Government will then be found to have been asleep at the wheel, because another scandal is avoidable. This situation is unacceptable, totally avoidable and easily remedied. I therefore invite the Minister to accept new clauses 5, 18 and 34.

[Brandon Lewis]

I will be brief; I just want to respond to a couple of points that have been raised during the debate. The hon. Member for Sheffield Central (Paul Blomfield) quoted me during an interview some time ago—with a German journalist, if I recall correctly. Sadly, he did not give the whole quote, so colleagues are probably not quite aware of the point I was making, which was that the whole point of the settled status scheme is to ensure that nobody is left behind and all rights are properly protected. That is why not only are we running the scheme until the end of July[Official Report, 13 January 2020, Vol. 669, c. 2MC.] 2021, but we have also said—as I said at the Dispatch Box again today—that we will be looking to grant settled status to anybody who comes forward after that stage who has not acquired settled status because they have not applied for it for a good, reasonable reason. This scheme is based on a very different principle.

[Yasmin Qureshi]

Will the Minister give way?

[Brandon Lewis]

No, I will not be giving way at the moment.

The hon. Member for Cardiff South and Penarth (Stephen Doughty) said that the whole process is different from previous systems. We are looking to grant status. I give great credit to the superb team of Home Office civil servants, particularly in Liverpool, who have delivered this scheme—a scheme that, as the hon. Gentleman said, is unprecedented in now having taken more than 2.8 million applications and processed some 2.5 million of them. To be clear with colleagues, of the almost 2.5 million applications that have been processed, I can confirm that only five have been refused—all on grounds of serious criminality. It is right that we do those checks and ensure that there is proper evidence.

Let me go a bit further in response to the comments of the hon. Member for Sheffield Central regarding the difference between pre-settled status and settled status. What he said at the Dispatch Box risks creating a scaremongering regime that has been portrayed in a couple of other speeches this evening. Pre-settled status is a pathway to settled status, ensuring that people who have lived in this country for five years or more have their rights fully secured. There is no cliff edge. When somebody has lived in this country for five years or more, having got pre-settled status, they can move straight to full settled status; their rights will be the same. They will be protected from the moment they have pre-settled status, and the evidence is an important part of that.

The hon. Gentleman asked a very specific question about appeal rights. Yes, appeal rights apply to all cases under the new settlement scheme. That also goes to the point raised by the hon. Member for Edinburgh West (Christine Jardine). My hon. Friend the Member for Fareham (Suella Braverman) is absolutely right: we are determined to make sure that we are delivering on the rights of EU citizens and that we in this country play our part in delivering on the promises we made.

[Paul Blomfield]

When the Minister says that this will apply to all citizens, does he include those who came under the Zambrano and Surinder Singh routes?

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[Brandon Lewis]

Yes, absolutely.

I say to my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) that we are always reviewing the outreach work. The Home Secretary and I are particularly focused on this work to make sure that it is not just giving good value for money for the taxpayer but is also reaching the hardest-to-reach places and communities in the country. We are working with some 57 voluntary organisations around the country and with commercial and public sector organisations that employ large numbers of EU citizens, and we will be looking to continue that work and drive it further and further.

It is important that we encourage people to apply for this settled status. It is simple, quick and easy; it delivers on people’s rights; and it delivers on our promises. That is why we will not accept any amendments or new clauses this evening.

[The First Deputy Chairman of Ways and Means (Sir George Howarth)]

Order. I say for the benefit of new Members in particular that although the Minister has responded to the debate, I am now going to call the mover of the lead amendment to conclude and respond to the debate.