European Union (Withdrawal Agreement) Bill

George Howarth Excerpts

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

[Sammy Wilson]

Yes. I—

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

Order. I was hesitating to interrupt the right hon. Gentleman, because I thought that he was reaching his peroration, but may I just remind him that he should keep his remarks as close as possible to the clauses and new clauses that we are debating?

[Sammy Wilson]

Let me conclude my speech, Sir George, by issuing a word of caution about clause 33. While a deadline of December this year can put pressure on the EU, it can also put pressure on the Government. As we in Northern Ireland have learned, the pressure on the Government from the 31 October deadline led to concessions that were not good for, at least, our part of the United Kingdom. This is where Government will and determination are important.

Equally, the deadline that the Government have imposed on themselves could be used by EU negotiators to make demands. Those negotiators could say, “If you want a deal by that stage, here are the things that we want from you: we want you to make concessions on fishing, on level playing fields, on payments and on a whole range of other things.” That is the only word of caution that I will issue. Deadlines put pressure on both sides, and come December this year, whether the Government are prepared to stand firm in the face of their own deadline and not be pushed around will be a test of their will.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 to 6 ordered to stand part of the Bill.

Clause 7

Rights related to residence: application deadline and temporary protection

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move amendment 5, page 9, line 36, leave out from “Crown” to end of clause and insert

“must by regulations make provision—

‘(a) implementing article 18(4) of the withdrawal agreement (right of eligible citizens to residence documents proving legal status), including making provision for a physical document;

(b) implementing article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to residence documents proving legal status) including making provision for a physical document; and

(c) implementing article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to residence documents proving legal status).’”

This amendment would mean that EEA and Swiss citizens residing in the UK would automatically have rights under article 18(4) of the withdrawal agreement (and equivalent provisions in the EEA EFTA and Swiss citizens’ rights agreements) rather than having to apply for them, and would have the right to a physical document proving their status.

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

With this it will be convenient to discuss the following:

Amendment 6, page 10, line 41, at end insert—

‘(3A) Regulations made under this section shall apply to—

(a) the rights of all persons eligible for leave to enter or remain in the United Kingdom by virtue of—

(i) the withdrawal agreement, or

(ii) residence scheme immigration rules (see section 17) as in force on 21 December 2019, and

(b) such other persons as Ministers consider appropriate.

(3B) The residence scheme immigration rules (see section 17) may not be amended so as to reduce the range of persons eligible for leave to enter or remain in the United Kingdom by virtue of those rules (other than by primary legislation), but other persons may be added as Ministers consider appropriate.”

This amendment would ensure that the range of persons entitled under UK law to benefit from the rights set out in the Withdrawal Agreement cannot be reduced except by primary legislation.

Amendment 27, page 10, line 41, at end insert—

‘(3A) Regulations made under this section may not prevent EEA and Swiss nationals, or their family members, who are resident in the United Kingdom on or prior to 31 December 2020 applying for settled status at any time.”

This amendment would ensure that people eligible for settled status would not be prevented from obtaining it by an application deadline.

Clause stand part.

Clauses 8 to 10 stand part.

Amendment 2, in clause 11, page 14, line 2, leave out subsection (1) and insert—

‘(1) A person may appeal against a citizens’ rights immigration decision to the First-tier Tribunal.”

This amendment would give a right of appeal against a citizens’ rights immigration decision.

Amendment 3, page 14, line 24, leave out subsections (3) and (4) and insert—

‘(3) Subject to subsection (4), while an appeal is pending, the person concerned shall be deemed to have all the rights associated with indefinite leave to remain under the residence scheme immigration rules, in particular as concerns residence, employment, access to social security benefits and other services.

(4) Subsection (3) does not apply to an appeal against a decision falling within subsection (2)(a) or (c).

(4A) “Pending” shall have the same meaning for the purposes of subsections (3) and (4) as in section 104 of the Nationality, Immigration and Asylum Act 2002.”

This amendment would protect the rights of EU citizens while their appeals are pending.

Amendment 20, page 14, line 24, leave out “also”

This amendment is consequential on Amendment 2.

Amendment 7, page 14, line 25, leave out “(including judicial reviews)”

This amendment would remove the power being provided to ministers to make regulations about judicial review of certain immigration decisions.

Amendment 21, page 14, line 27, leave out “(1) or”

This amendment is consequential on Amendment 2.

Clauses 11 to 14 stand part.

That schedule 1 be the First schedule to the Bill.

Clause 15 stand part.

Amendment 22, in schedule 2, page 46, line 12, leave out “Secretary of State” and insert

“Independent Chief Inspector of Borders and Immigration”.

This amendment would make the Independent Chief Inspector of Borders and Immigration responsible for appointing non-executive members to the independent monitoring authority, rather than the Secretary of State.

Amendment 23, page 46, line 20, leave out “Secretary of State” and insert

“Independent Chief Inspector of Borders and Immigration”.

This amendment would make the Independent Chief Inspector of Borders and Immigration, rather than the Secretary of State, jointly responsible with non-executive members of the Independent Monitoring Authority for ensuring that, as far as possible, numbers of non-executive members exceed the number of executive members on the IMA.

Amendment 37, page 59, line 15, leave out paragraphs 39 and 40

This amendment would require any transfer or abolition of the functions of Independent Monitoring Authority for the Citizens’ Rights Agreements to be by way of primary legislation.

That schedule 2 be the Second schedule to the Bill.

Clauses 16 and 17 stand part.

New clause 5—Protecting EU Citizens’ Rights—

‘(1) This section applies to—

(a) European Union citizens having the right to reside permanently in the UK according to Article 15 (“Rights of permanent residence”) of the Withdrawal Agreement;

(b) persons to whom the provisions in (a) do not apply but who are eligible for indefinite leave to enter or remain, or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).

(2) A person to which this section applies has the rights and obligations provided in Article 12 and Title II Part II ‘Citizens’ Rights’ of the Withdrawal Agreement.

(3) The Secretary of State must by regulations make provision—

(a) implementing article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence;

(b) implementing article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence;

(c) implementing article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence.

(4) No provision of this or any other enactment, or adopted under this or any other enactment, may be used to require European Union nationals and their family members, or nationals of Iceland, Norway, Liechtenstein and Switzerland and their family members, who reside in the United Kingdom immediately prior to the end of the implementation period, to apply for a new residence status under Article 18(1) of the Withdrawal Agreement, or to introduce a deadline for applications under residence scheme immigration rules or relevant entry clearance rules.

(5) Residence scheme immigration rules and relevant entry clearance immigration rules may not be amended to provide that any person who benefited or is eligible to benefit under those rules on the day on which this Act is passed benefits any less than he benefited or was eligible to benefit on the day on which this Act is passed.”

This new clause provides for all EU citizens who are resident in the UK before exit day to have the right of permanent residence, whether or not they have been exercising treaty rights, and makes sure that every person who is entitled to settled status has the same rights.

New clause 18—Fee levels and exemptions—

‘(1) No person to whom regulations under section 7(1) (as qualified by section 7(2) and 7(3)) apply may be charged a fee to register as a British citizen that is higher than the cost to the Secretary of State of exercising the function of registration.

(2) No child of a person to whom subsection (1) applies may be charged a fee to register as a British citizen if that child is receiving the assistance of a local authority.

(3) No child of a person to whom subsection (1) applies may be charged a fee to register as a British citizen that the child or the child’s parent, guardian or carer is unable to afford.

(4) The Secretary of State must take steps to raise awareness of people to whom this section applies of their rights under the British Nationality Act 1981 to register as British citizens.

(5) A Minister of the Crown may amend, waive or restrict any requirement of any other person to pay a fee to register as a British citizen where the Secretary of State considers it appropriate or necessary to do so in consequence of any discrimination between people of, or children of people of, differing nationality or other status.”

This new clause would ensure that persons entitled to benefit from the citizens’ rights protections in the Bill did not miss out on registering as a citizen of the UK because of the level of fee currently charged.

New clause 33—EU Settlement Scheme: physical documented proof—

‘The Secretary of State must make provision to ensure that EEA and Swiss nationals and their family members who are granted settled or pre-settled status are provided with physical documented proof of that status.”

This new clause would require the Government to provide physical documents to enable people to prove their settled status.

New clause 34—Settled status: right to appeal—

‘(1) A person may appeal against a settled status decision to the First-tier Tribunal.

(2) A settled status decision includes a decision—

(a) to refuse to grant leave to remain under Appendix EU of the Immigration Rules made under section 3(2) of the Immigration Act 1971, or

(b) to grant limited leave to remain under Appendix EU of the Immigration Rules made under section 3(2) of the Immigration Act 1971 to a person who has applied for indefinite leave to remain under that Appendix.

(3) An appeal against a decision under subsection 2(b) may be brought only on the grounds that the person is entitled to indefinite leave to remain under Appendix EU of the Immigration Rules.

(4) While an appeal under subsection 2(a) is pending, the person concerned shall be deemed to have all the rights associated with indefinite leave to remain under Appendix EU of the Immigration Rules in particular as concerns residence, employment, access to social security benefits and other services.

(5) While an appeal under subsection 2(b) is pending, the limited leave to remain granted under Appendix EU to the Immigration Rules shall continue in force.

(6) “Pending” shall have the same meaning for the purposes of subsections (4) and (5) above as in section 104 of the Nationality, Immigration and Asylum Act 2002.”

This new clause would establish a right to appeal settled status decisions.

[Stuart C. McDonald]

It is a pleasure to serve under your chairmanship, Sir George.

For us, this part of the Bill is relentlessly dire. For decades, British citizens and citizens across Europe have enjoyed the extraordinary benefits of free movement—to live, work and study across a continent. This part of the Bill implements part 2 of the withdrawal agreement, the part that brings all those benefits of free movement to a crashing halt. Future generations throughout Europe will miss out, but none more than UK citizens.

[The First Deputy Chairman]

Order. I hope that those who are standing at the back of the Chamber will take the advice that it is discourteous to chunter while the hon. Gentleman is speaking.

--- Later in debate ---

[Peter Grant (Glenrothes) (SNP)]

As the Minister will know, I questioned the Prime Minister on this issue on 25 July. I reminded him that during the referendum he personally promised that no EU citizen living in the UK would be treated any less favourably as a result of our leaving the European Union. I asked the Prime Minister whether he would

“now guarantee the right to healthcare, pension rights, the right to leave and return, the right to bring over family, the right to vote and all the other rights currently enjoyed by EU citizens”.—[Official Report, 25 July 2019; Vol. 663, c. 1498.]

The Prime Minister, at the Dispatch Box, told me and this House that the Government were giving those guarantees “unilaterally”. Which clauses make good on those promises from the Prime Minister about the right to pensions, the right to healthcare and the right to bring family members over at some time in the future? If they are not in the Bill, the Prime Minister has made promises from the Dispatch Box that the Government have no intention of keeping.

[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.

--- Later in debate ---

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

I thank you, Sir George, and the many Members who have made contributions today. Some really important points have been made on all the amendments on this crucial subject, which many of us who served on the Home Affairs Committee in the previous Parliament examined in great detail. The Minister gave a rosy depiction of how the scheme is working and how everything will function. Of course, we would all like to see people register for the scheme and get the right information, and we would all like to see more digital systems that work for everybody. The reality, though, is somewhat different, as those of us who have regular daily experiences with the immigration system on behalf of our constituents, and who have seen the many pieces of evidence that we took on the Home Affairs Committee, recognise.

The amendments that have been tabled, including by my party’s Front-Bench team, which I support, are there to improve the system and ensure that it actually delivers the rights that were promised to EU citizens and EEA citizens who have been resident in this country for many years and who have, as many have said in this debate, made huge contributions to our communities and to our country as a whole. Certainly in my own constituency, the contribution of EU citizens over many decades has been immense. Over the past few years, many constituents have come to me with concerns about the scheme, including those that are reflected in the amendments that many of us are supporting this evening.

We are not scaremongering if we look at the record of the Home Office and its continued failures on a series of issues. We have only to look back to 2017, when the Home Office sent letters to 100 EU citizens telling them that they had to leave the UK immediately—an episode for which the then Prime Minister, the right hon. Member for Maidenhead (Mrs May), had to apologise in 2018. Members of Parliament were sent letters about the importance of applying for the EU settlement scheme, even though they were not EU nationals. It was an extraordinary situation, which the then Home Secretary had to explain.

One has only to look at the regular monthly statistics from the Home Office to see the number of cases of wrongful deportations and wrongful detentions as a result of the hostile environment policy and as a result of mistakes and problems. That is why appeal rights are so crucial. If we look at the compensation pay-outs that are being made when the Home Office makes mistakes, we can see how much this is costing the Government. We have all those examples and, of course, the example of the Windrush scandal, which was so shocking and so shaming to our country. People who had contributed to our country over so many years were treated in such an incredible way. With all those examples ringing in our ears, we should be taking these issues incredibly seriously. I urge the Minister and the Government, and those in the other place when they are examining these parts of the Bill, to look seriously at ways in which this legislation can be improved, so that we can deliver on the commitments that have been made. I do not doubt the Minister’s intent. I am sure that he is sincere in wanting to provide EU citizens with the rights that they deserve, but the reality is often different.

I want to raise with the Minister the specific point about physical documentation. Of course we all want to see digitalisation; we all want to see more efficient systems. We all want to see a system where we can quickly get information—whether that is employers, housing providers or other providers of services—to ensure that people receive the things that they are entitled to under the law. But the reality is, as we all know, that these systems break down. There are mistakes in them and names are often rendered incorrectly. What is the back-up? What will happen when somebody is trying to apply for a house, access medical services, apply for a job or apply for an education that they are entitled to in this country and the system breaks down? The computer may say no, or the blue screen of death may come up on the computer. Whatever the problem, we all know that these things fail.

When we are talking about such a fundamental thing as the right to live, work and exercise rights in this country, which many EU citizens should have under this legislation and deserve, we have to ensure that there is back-up. We have our birth certificates and passports—physical documents for the most crucial aspects of our rights and citizenship rights in this country. I caution the Minister: when the mistakes happen—the inevitable breakdown, a cyber-attack on the system or the system becoming unavailable—what will happen to the people who get caught up in them? All those mistakes will generate not only a huge cost for the Government in rectifying them in due course, but great harm and concern to the individuals involved. Anyone who deals with the immigration system on a weekly basis, as many of us do, can point to myriad examples.

There is also the crucial issue of numbers, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who served with me on the Home Affairs Committee, mentioned. No exercise on this scale has been attempted before the registration of millions of individuals under this system. Problems are inevitably going to occur, not least when the Government themselves cannot tell us exactly how many EU and EEA citizens are lawfully resident in the UK. They also cannot tell us—this has been asked on a number of occasions—how many people they estimate will not have applied by the deadline that is now being put in place. I find it deeply worrying that the Government propose to implement a policy without even knowing the number of people that it is going to affect. We do not want to see the unlawful detentions and deportations of individuals that we have sadly seen in the past, nor the harm they cause to the individuals whose rights are affected.

This issue goes back to some fundamental promises that were made—not only by the current Prime Minister, but by the previous Prime Minister and by those who advocated leaving in the first place. The3million campaign, which has done so much good to highlight the concerns of those affected by these changes, rightly points out that it was made clear during the 2016 referendum that there should be

“no change for EU citizens already lawfully resident in the UK…EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”

That was a clear promise and a solemn undertaking, and it is one that has been repeated by the Prime Minister and Ministers since. I have no doubt that the Minister intends these measures in good faith, but the reality of accessing the scheme, demonstrating those rights and being able to prove that they are being lawfully exercised will be very different. I think we will be picking up the pieces of this in years to come, so I urge the Minister to look carefully at these amendments.

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

I call Sir Desmond Swayne, who is known for many things in the House, not least his brevity.

[Sir Desmond Swayne]

Thank you, Sir George.

I am persuaded that the amendments are unnecessary, and I support the provisions of the Bill. But just one word of caution: I have received a number of inquiries from constituents—European citizens—who clearly have not been reached at all by any of the outreach, such are the basic questions that they ask. Indeed, I received one such inquiry today. On that score, when I think about it, I do not know whether I have been living in a bubble, but I have not seen any of that outreach at all myself. Admittedly, I have not been looking for it. Nevertheless, I just ask Ministers to re-examine the outreach that there has been and to reassure their level of confidence that it is adequate.

--- Later in debate ---

[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.

[Stuart C. McDonald]

Thank you, Sir George. I thank all hon. Members for their contributions to this robust and very helpful debate in which I think every single speaker spoke of the contribution that EU nationals make to this country and the importance of protecting their rights.

So far so good, but beyond that, there are fundamental differences about how best we do it. Opposition Members say that we must automatically protect EU nationals’ rights in law, so that nobody will lose their rights overnight, while Government Members say that they must apply to stay. The Government have not challenged at all our assertion that that almost certainly means that tens, probably hundreds, of thousands will potentially lose their rights overnight. The Minister said that there will be a period in which anyone with a good, reasonable reason for missing a deadline will be able to get that all fixed. We are possibly talking about a six-figure number—and what is a good, reasonable reason? I gave two hypothetical examples in my speech, one being a French lady who has been here since 1970, has retired, had permanent residence under the old EU scheme, and does not think she needs to apply. There are lots of folk in that boat. Is that a good, reasonable reason—that she did not think she had to apply? What about the Polish guy that I cited? He was born in the United Kingdom. He therefore thought that he was British because his father was British, but actually, because of his parents’ marital status at the time of his birth, he is not British. He fails to apply. Is that a good, reasonable reason—that he thought he was British but was wrong about nationality law?

There will be tens of thousands of cases just like that, and the Government have done absolutely nothing to reassure us about the cliff edge that awaits us. Amendment 5 would go some way towards solving that by putting in place a declaratory system. The Opposition’s new clause 5 is more comprehensive. I therefore beg to ask leave to withdraw the amendment so that we can support the new clause instead.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clauses 8 to 14 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 15 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clauses 16 and 17 ordered to stand part of the Bill.

[The First Deputy Chairman]

Before I put the Question on the first new clause to be voted on, I should inform Members that the split of letters at the desks in the Division Lobbies has changed slightly—there’s a treat! Members whose surname begins with G will now need to go to the middle desk instead of the left-hand desk. There have been no other changes. The distribution of names is different in the new Parliament and the revised lettering should mean that the queues at the desks are more even.

New Clause 5

Protecting EU Citizens’ Rights

“(1) This section applies to—

(a) European Union citizens having the right to reside permanently in the UK according to Article 15 (“Rights of permanent residence”) of the Withdrawal Agreement;

(b) persons to whom the provisions in (a) do not apply but who are eligible for indefinite leave to enter or remain, or limited leave to enter or remain by virtue of residence scheme immigration rules (see section 17).

(2) A person to which this section applies has the rights and obligations provided in Article 12 and Title II Part II ‘Citizens’ Rights’ of the Withdrawal Agreement.

(3) The Secretary of State must by regulations make provision—

(a) implementing article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence;

(b) implementing article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence;

(c) implementing article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence.

(4) No provision of this or any other enactment, or adopted under this or any other enactment, may be used to require European Union nationals and their family members, or nationals of Iceland, Norway, Liechtenstein and Switzerland and their family members, who reside in the United Kingdom immediately prior to the end of the implementation period, to apply for a new residence status under Article 18(1) of the Withdrawal Agreement, or to introduce a deadline for applications under residence scheme immigration rules or relevant entry clearance rules.

(5) Residence scheme immigration rules and relevant entry clearance immigration rules may not be amended to provide that any person who benefited or is eligible to benefit under those rules on the day on which this Act is passed benefits any less than he benefited or was eligible to benefit on the day on which this Act is passed.”—(Paul Blomfield.)

This new clause provides for all EU citizens who are resident in the UK before exit day to have the right of permanent residence, whether or not they have been exercising treaty rights, and makes sure that every person who is entitled to settled status has the same rights.

Brought up, and read the First time.

Question put, That the clause be read a Second time.