Draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019

Caroline Nokes Excerpts

Monday 11th March 2019 General Committees

[The Minister for Immigration (Caroline Nokes)]

I beg to move,

That the Committee has considered the draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019.

It is a pleasure to serve under your chairmanship, Mr Austin. The Government’s priority is to protect the rights of European economic area and Swiss citizens living in the UK. Deal or no deal, they will be able to stay and apply to the EU settlement scheme, which will be fully open from 30 March. Delivering a deal with the EU remains the Government’s priority; nevertheless, we are preparing for a range of scenarios.

In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. Once free movement has ended in a no-deal scenario, our intention is that transitional immigration arrangements will be put in place until the new skills-based immigration system is introduced in January 2021. Let me be clear: the arrangements would not apply to EEA and Swiss nationals who were here by 29 March this year. They would apply to people seeking to come to the UK after we had withdrawn from the EU. Under the temporary arrangements, EEA and Swiss nationals would be granted three months’ leave to enter automatically, with no restriction on their ability to work or study. Their experience at the border would be unchanged, including their use of e-gates.

[Michael Fabricant (Lichfield) (Con)]

I am delighted with the idea of the motion, particularly as Iceland and Norway were two of my biggest clients when I was in business selling radio stations—that is not relevant, I know. What I would like to know is whether the measure is reciprocal. Will we have similar rights for United Kingdom citizens hoping to work in, say, Ríkisútvarpið or in the Norsk rikskringkasting in Oslo?

[Caroline Nokes]

Which is easy for my hon. Friend to say. In a deal scenario, it is certainly intended to be reciprocal, but, with no deal, it is a unilateral offer that we are making, because we value the contribution EU citizens can make.

If EEA and Swiss nationals wished to stay for longer than three months, they would need to apply for a 36-month European temporary leave to remain, beyond which they would need to apply under the new skills-based immigration system.

The draft order supports the approach I have just described. First, it provides the mechanism by which, in a no-deal scenario, EEA and Swiss citizens arriving after free movement has ended will automatically be granted three months’ leave to enter. Secondly, it makes changes to support the EU settlement scheme in both a deal and a no-deal scenario.

[Vernon Coaker (Gedling) (Lab)]

If someone is automatically granted entry, there will be no stamp or visa in their passport, so how will we know when the three months are up and they have to apply to stay on?

[Caroline Nokes]

The hon. Gentleman makes a point. I gently remind him that they receive no stamp in their passport now; they travel through e-gates with no stamp, and the order extends that right.

[Vernon Coaker]

Will the hon. Lady give way again?

[Caroline Nokes]

If the hon. Gentleman stops chuntering from a sedentary position, that will allow me to finish responding to his first intervention. Those citizens will come through the e-gates and receive their automatic three months’ leave to enter, but beyond that it is important to reflect that we will have left the European Union and there will indeed be a change.

[Vernon Coaker]

I apologise for chuntering; I do not normally chunter—I normally shout. My question is: how will we know when the three months are up? Currently, they have the right to stay, but they will presumably have to leave after three months unless they apply to stay for longer. How will the enforcement authorities know that the three months are up?

[Caroline Nokes]

The hon. Gentleman is right to point out that we will be transitioning to the new system, so there will be very light-touch enforcement. It is important to reflect, however, that the process is changing until the point at which we introduce the new immigration system in 2021.

[Nic Dakin (Scunthorpe) (Lab)]

Would the Minister like to clarify what “light-touch enforcement” looks like?

[Caroline Nokes]

As we have always said, we will take a proportionate approach to EU citizens. It is important that people have the right to be here, but they must apply for temporary leave to remain. That is an important distinction. It is not our intention to have a robust enforcement process, but from 2021 people will be expected to have leave to be here. It is important that we reflect that, once the Bill that we took through Committee last week is on the statute book, free movement will have ended.

The order also provides that the settlement scheme leave granted to a Crown servant who is an EEA national, a member of Her Majesty’s forces or somebody accompanying them will not lapse because of an overseas posting.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

The Minister is obviously moving on to the exceptions, which I am sure most people will welcome. On the three-month period, the order says that people will be granted leave to enter for a limited period where specified circumstances are met. How will anyone know whether those specified circumstances are met if there will be no application, limit or checking? Is she implying that people can simply come in and stay for three months without any interaction?

--- Later in debate ---

[Caroline Nokes]

It is absolutely the Government’s intention that EEA nationals and Swiss nationals should be able to come through the border in the same way that they do now, using their passport either at an e-passport gate or a passport control point. There will be no checking; it will be the same process. We recognise that, until 2021, when the future borders and immigration system comes in, there will be a transitional period. It is absolutely our intention to facilitate the movement of EEA nationals so they can come and go without the requirement of a visa. Should they wish to stay for longer than a three-month period, the expectation is that they will have to apply for temporary leave to remain.

This order also facilitates overseas applications to the settlement scheme, and clarifies that scheme applicants will not need to pay the immigration health charge. These are important measures to support the delivery of the EU settlement scheme and our no-deal contingency planning. I commend the order to the Committee.

--- Later in debate ---

[Vernon Coaker]

I agree absolutely. That is the point I am making to the Minister. By the way, I agree with the hon. Member for Lichfield about reciprocal arrangements. The Opposition Front-Bench spokesman made the same point, and the Government will no doubt be arguing the point with other EU countries. Irrespective of the rights and wrongs of the policy, however, the least that the public can expect is that it will be bureaucratically cohesive. My point and that of the House of Lords is this: how can it be when we have no idea about how the three months will be judged? Will it be guessed? Will the employer, the university, the college or somebody in the family have to say? I say honestly to the Minister that nobody has a clue and that she needs to have a better answer about how enforcement will take place.

Let me ask another point about the bureaucracy. How long will the process take if somebody thinks, after a couple of months, that they might need to stay? What happens if they go beyond the three months but they are applying for indefinite leave to remain? Does that stop the enforcement action? I am saying this because sometimes I contact the Home Office and it takes months to get a reply. Again, the issue is the bureaucracy. I am not saying whether the policy is right or wrong, but what will happen? Is the enforcement action automatically put on hold if somebody has applied and they go beyond the three months? Is the enforcement action automatically stopped? I hope that I have made sense.

The Minister has confirmed that the application is free, but how long will it take? It would be helpful if she explained to the Committee what will happen with respect to all that process. Can she explain what “enforcement” means? Is it gentle persuasion, or what? Enforcement sometimes means people going round and forcibly removing individuals. Is that what we expect to happen in the worst circumstances? Is it a possibility?

Let me move on from the three months. If somebody gets indefinite leave to remain, is that forever? Does indefinite leave mean that they can stay? If somebody then leaves the country—

[Caroline Nokes]

I want to make to the hon. Gentleman a really important point of clarification. He has repeatedly used the phrase “indefinite leave to remain”. That is not what we are discussing: we are discussing temporary leave to remain.

[Vernon Coaker]

So after the three months, somebody has temporary leave to remain. Then they go back—outside the country. The Minister, in the measure, extends the period from two years to five years, when that temporary leave presumably stays—the Minister will have to explain that, because there is confusion. The explanatory note talks about this, and the House of Lords Committee has written about it. In relation to the temporary arrangements, if the period for which somebody can be outside the country is extended from two years to five years, how will they prove that they have that entitlement if there is no stamp in their passport, or no document?

[Caroline Nokes]

It is important to make this distinction. The five years for which somebody can be outside the country does not relate to the European temporary leave to remain; it relates to the EU settled status scheme. Those are two quite separate things.

--- Later in debate ---

[Caroline Nokes]

I am very grateful for the Committee’s contributions—not least the suggestion that I am about to eat this elephant one bite at a time. A number of specific issues have been raised, and I will try to address each in turn.

The hon. Member for Manchester, Gorton asked whether the draft order should have been included in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. I gently point out that these vital protections as part of the EU settled status scheme can be put in place now, before that Bill gets Royal Assent. If we had waited for the Bill, we would not have been able to open the EUSS fully by 30 March, which I am sure Members will agree is a significant priority.

The hon. Gentleman mentioned the Costa amendment, which of course the Government agreed to the week before last. Both we and the EU have been very clear that providing certainty for citizens is a priority, and of course—Members might expect me to say this this afternoon—the best way to do that is to secure a deal with the EU. Reaching an agreement remains the Government’s priority, but we did accept the amendment tabled by my hon. Friend the Member for South Leicestershire (Alberto Costa), and we have written to the EU to seek clarification on its position on ring-fencing the citizens’ rights part of the withdrawal agreement. The Foreign Secretary has written to all his counterparts, and we are holding further urgent discussions with EU member states to seek assurances on the rights of UK citizens in those states.

The hon. Gentleman asked why Swiss nationals are permitted only four years’ absence, as opposed to the five years we have indicated for EU nationals. For those granted settled status as Swiss citizens and their family members, the period of absence will be up to four consecutive years, which is in line with the citizens’ rights agreement negotiated with Switzerland and the reciprocal arrangements that will apply to UK nationals in Switzerland under that agreement. He sought assurance that resident EEA nationals who apply to the settlement scheme from overseas will be treated in the same way as those who apply in the UK. I confirm that that will be precisely the case.

I now turn to the knotty issue of European temporary leave to remain, which has occupied the concerns of many Members this evening, and what leave people should apply for after three months. I hope to be able to clarify that. In the event of no deal, and following the end of free movement, EEA and Swiss nationals would need to apply for European temporary leave to remain if they wished to stay longer than three months. There would be no restriction on their ability to work or to study. That would apply only in the event of no deal—as I said a few moments ago, we very much hope that there will be a deal—but it would allow EEA and Swiss nationals to stay in the UK temporarily for 36 months.

I absolutely heard the representations by the hon. Member for Central Ayrshire and others about the important issue of those studying at Scottish universities and those studying longer courses at universities in the rest of the UK. That issue is important, and I am listening very closely and considering advice on how we can best adapt the scheme to reflect that there may be people studying medicine, for example—as we all know, that course is a significantly longer than three years—or, of course, studying for PhDs.

[Dr Whitford]

I thank the Minister for coming to that subject, which is of particular concern. It says in the explanatory memorandum that there was no consultation, and it is very clear that there was no consultation with the Scottish Government or Scottish universities. Will the Minister undertake to explore this issue, both with respect to longer courses such as medicine and taking into account the fact that the norm in Scotland is a four-year honours course?

[Caroline Nokes]

The hon. Lady may be aware that as part of the future immigration system, I am consulting on specific issues, along with Home Office colleagues and officials across the whole United Kingdom. The 36-month temporary leave to remain is uppermost in the minds of organisations such as Universities UK, and representations were made about it in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee’s recent evidence sessions. Home Office officials and Ministers are very much alive to the issue.

The hon. Member for Manchester, Gorton mentioned the fee level for the European temporary leave to remain. He will be aware that we do not comment on leaks, but the announcement on fees will be made shortly. The European temporary leave to remain scheme is being developed, and would be delivered, using infrastructure already in place for the EU settlement scheme. In the event of a deal, we will not need the temporary leave to remain scheme; in the event of no deal, we would not expect the inflow of EEA citizens to be any greater than the number of people arriving during the implementation period between exit and 31 December 2020 in a deal scenario, who would otherwise have been eligible for the EU settlement scheme. We are therefore confident that we will have sufficient capacity to process applications.

Hon. Members asked about the EU settlement scheme, which is in its third public testing phase. I would like to give an update: there have now been more than 160,000 applications under the scheme, of which the vast majority have been settled within three days. We are pleased with the progress made, but of course we continue to keep it under very close observation.

[Vernon Coaker]

For the benefit of the Committee, that is 160,000 out of how many?

[Caroline Nokes]

The hon. Gentleman will be very well aware of the figure used: 3.5 million. I am sure that he cannot be unfamiliar with that figure, because we mention it a lot of the time.

As I said, the scheme is still in a testing phase. It is important to emphasise that it is still not fully open; if the draft order is approved, the scheme will open on 30 March and will then be free. I am sure that hon. Members will be relieved to hear that last week we laid before Parliament the statutory instrument that will enable us to make the scheme free and effect refunds to those who have already been through it. Individuals will not have to apply for refunds; they will be made automatically to the card originally used to pay the fee. In the relatively few instances in which the card has expired in the meantime, we will make provision to contact the relevant individuals and ensure that they are refunded.

[Dr Whitford]

The Minister says that in a deal situation, those who come for longer, such as students, will apply for settled status. They will not have been here for five years, so on what basis will they be able to apply? Someone who comes as a student will still require a visa to stay for a number of years, whether they stay permanently or go back after their time as a student.

--- Later in debate ---

[Caroline Nokes]

In a deal situation, an individual who comes here as a student will be perfectly entitled to apply for the EU settled status scheme. They do not have to have been here for five years; they can be granted pre-settled status and then accrue the five years over their stay in the UK. Some students may well not want to do so, because they may intend to leave after their period of study, but in a deal scenario, that option will be open to them.

[Dr Whitford]

May I ask the Minister to clarify that point? If students or people coming for a circumscribed period do not want to apply for settled status, will the temporary leave to remain still exist? She suggested that it would exist only in a no-deal scenario.

[Caroline Nokes]

The hon. Lady is right to pick up that point. Temporary leave to remain is a mechanism that we intend to use in a no-deal situation, not in a deal situation. In a deal situation, people will have exactly the same rights as they have now to come, apply for the settled status scheme and stay for the duration of their studies. She is right to highlight the issue of those who may be here for longer; these are matters on which we are in intense discussion, both with our EU counterparts and with the Department for Education.

Several hon. Members asked about right to work and right to rent checks. In our December White Paper, the Government made it clear that there will be no changes to the system of right to work or rent checks until the future border and immigration system is introduced at the start of 2021. In the meantime, European economic area nationals will continue to be able to demonstrate a right to work or rent by using a national passport or ID card. Alternatively, they may use the online checking service if they have been granted status under the EU settlement scheme. Non-EEA family members will use Home Office documentation. We have made it clear that we will not require employers to conduct retrospective checks on their existing EEA workers when the future border and immigration system is introduced.

[Alison Thewliss]

rose—

[Caroline Nokes]

I want to cover some more ground, because I am conscious that if I do not complete my comments, there will be a vote at 7.30 pm without my having responded to many of the points that have already been made.

The hon. Member for Central Ayrshire raised the issue of how individuals would know whether they had met the conditions to qualify for automatic leave. The draft order sets out the conditions that need to be met to qualify for automatic leave. They include a person being an EEA or Swiss national; holding an EEA or Swiss passport or national identity card; requiring leave to enter—that is, not having been previously resident in the UK before it leaves the European Union; and being entitled to apply for the EU settlement scheme.

A number of Members raised the issue of enforcement and how we would establish whether people had been here for more than three months. Those EEA and Swiss nationals who arrive after free movement has ended, in a no-deal scenario, should apply for European temporary leave to remain if they wish to stay longer. I am clear on the importance of clear communication, so that individuals understand their status. Upstream communications would seek to ensure that individuals are aware of the requirement to apply for European temporary leave to remain if they wish to stay longer than three months.

The Home Office is working closely with other Departments on communicating the immigration arrangements in a no-deal scenario to key sectors and stakeholders. That includes information on gov.uk to reassure inbound travellers, which went live on the 4th of this month. In addition, preparations are under way for a comprehensive communications campaign in two weeks. As I mentioned, the EU settled status scheme has so far received well over 160,000 applications. I have referred to the SI that will ensure that the scheme fee is lifted and that refunds will be possible.

A number of Members mentioned Windrush; the scheme’s design anticipates many of the Windrush issues. EEA nationals will have plenty of time to make an application. There are dedicated caseworking teams. Support is available for the vulnerable on the phone, in local libraries, in a dedicated call centre, and even in people’s homes. The Home Office has made available £9 million of grants to organisations working with the vulnerable, to enable them to assist those people in the process.

It is important that we provide clear communications on the rights of those in the UK before the UK leaves the EU, and on the requirements for those who arrive after the UK leaves. If EU citizens in the UK prior to exit fail to apply under the settled status scheme, they will not be here actively unlawfully in the same way as clandestine entrants or overstayers. We will give those who have reasonable grounds for missing the deadlines further opportunities to apply.

There was mention of entry via Ireland. We do not operate routine immigration controls on journeys from within the common travel area to the UK. However, EEA and Swiss citizens entering from Ireland will benefit from the leave by order provisions. Those entering from the Crown dependencies will already have leave granted by the islands, recognised by the UK under our integrated legal framework.

The hon. Members for Central Ayrshire and for Glasgow Central raised the subject of women who might be in abusive relationships. We accept a wide range of documents to evidence five years of residence, and dedicated casework teams will help applicants to prove their residence. As I said, we are providing £9 million of funding to help those with vulnerabilities, which is important to ensure they can access the support services we have targeted specifically at them.

I was asked in which circumstances leave would be cancelled at the border. The automatic leave to enter provision will ensure that we can continue to smooth the passage of legitimate travellers through the border, while maintaining the security of the borders. The ability to cancel leave is therefore a key element in making sure we maintain the correct balance.

A question was raised about whether the EU settled status scheme was compliant with the requirements of the general data protection regulation. We take our data protection and security responsibility very seriously. All our data activity must be compliant with the data protection legislation. We want to reassure applicants that we do not allow access to their information by any unauthorised person or body, and can share data only where it is absolutely necessary and where we have a legal basis for doing so.

There are some good examples of where the ability to share data has been of benefit, not least in the settled status scheme’s ability to share information with HMRC and the Department for Work and Pensions; that has enabled a significant majority of those going through the process to have achieved settled status already, without having to provide any additional information. The hon. Member for Gedling spoke about the complexity of the immigration rules, and I have some sympathy with his view. He may not yet be aware of the Law Commission’s consultation on the immigration rules, which is specifically designed to make them simpler and more straightforward, but I urge him and all hon. Members to participate in it.

[Vernon Coaker]

I wish them luck!

[Caroline Nokes]

The hon. Gentleman wishes them luck; on my first day as Immigration Minister, I made the point that the more than 1,000 pages of immigration guidance and rules was excessive, and asked what steps we could take to simplify them. I very much hope that this process with the Law Commission and, indeed, the future borders and immigration system will be simpler and more straightforward than our current system, which of course has evolved over many decades.

Questions were raised about how long the European temporary leave to remain applications would take. As I have said, we intend to use the architecture of the EU settled status scheme and for the applications to be similarly streamlined. Some 75% of applicants in the most recent phase of the EU settled status scheme received their decision within three days.

There were also questions raised about the automatic leave provisions allowing individuals to travel into and out of the UK, and to be granted leave to enter for three months at a time on each arrival. This arrangement is absolutely intended to avoid a cliff edge and to smooth the passage of legitimate travellers across the border after the end of free movement. My hon. Friend the Member for Poole stressed the importance of avoiding cliff edges and allowing ourselves time to transition to the new borders and immigration system, which of course will not be introduced until January 2021.

The arrangements are, as was intended, similar to the status quo under EU law. EU nationals can live here for three months, but their right to stay in the UK for longer than three months is conditional; they must be a worker, a student or self-sufficient. Temporary leave to remain, just like settled status, will have a digital status, so people will be able to provide evidence of their right to be here. Non-EEA dependants will have biometric immigration cards.

The hon. Member for Glasgow Central mentioned allowing EEA nationals to travel into and out of the UK frequently. That is absolutely our intention. We want them to be able to travel smoothly and easily. Some of her other comments related more broadly to the immigration White Paper, which she will be aware we are engaging on over the course of this year, and not necessarily to the statutory instrument before us.

[Dr Whitford]

Has there been any discussion between the Minister’s Department and the DWP about the fact that women are being disenfranchised from benefits such as universal credit, as they are struggling to provide the necessary proof, even though the UK is still in the EU? She mentions that temporary leave to remain will be like settled status, but the three parts of settled status are the passport, the HMRC check and the criminal check. If someone has only been here three months, there will be no significant HMRC or criminal records.

[Caroline Nokes]

The suggestion would be that European temporary leave to remain should be about identity and declaration of any criminal convictions, as with the EU settled status scheme, and that it would omit the HMRC check—although the issue is not necessarily an HMRC check, but evidence of residence. The Government will take as evidence of residence a wide variety of proofs; it does not have to be an HMRC check.

The hon. Lady raised the question of conversations between the Home Office and the DWP; I must say that they occur on a regular basis. I am conscious, and not only from matters raised with me by right hon. and hon. Members across the House, that there have been occasional incidents to date, and those are problems we are working hard to iron out with the DWP.

[Alison Thewliss]

The reason I mentioned the £30,000 threshold was to ask whether it would apply to people who are coming in for three months at a time and working.

[Caroline Nokes]

As I said, the hon. Lady is confusing this with the future borders and immigration system, which will enter service in 2021. We are engaging on that threshold over the course of this year. It is absolutely not part of the order and applies not to European temporary leave to remain, but to the future borders and immigration system; I hope that hon. Members have understood that. With that, I commend the order to the Committee.

Question put.