European Union (Withdrawal Agreement) Bill

Debate between George Howarth and Stuart C McDonald

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

[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 ---

[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.