Draft Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020

Kevin Foster Excerpts

Tuesday 24th November 2020 General Committees

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I beg to move,

That the Committee has considered the draft Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020.

Diolch, Ms Rees. It is a pleasure to serve under your chairmanship for the first time.

The order was laid before Parliament in October, and is required to enable a number of changes arising from the end of free movement. First, it allows nationals of the European Union, the European economic area and Switzerland—for the sake of simplicity, I will refer to them from here on in collectively as ‘EEA’ citizens—who are aged 12 or above; using a biometric national passport rather than an EEA identity card; and seeking to enter the United Kingdom as a visitor under the immigration rules to be granted such leave by passing through an e-Gate, without routinely having to be interviewed by a Border Force officer about their intentions.

The order also allows EEA citizens, as well as other nationalities already eligible to use e-Gates, who are arriving in the UK under the new S2 healthcare visitor route to obtain six months leave to enter as an S2 healthcare visitor, either granted orally by a Border Force officer, or automatically by passing through an e-Gate in a similar way to standard visitors. The order allows those holding a service provider from Switzerland entry clearance to enter the UK on an unlimited number of occasions during its validity, receiving 90 days leave to enter upon each entry. It also defines the type of leave obtained by a person passing through an e-Gate, thus enabling Border Force officers to examine such persons and to cancel their leave where appropriate, for example if customs offending was identified at a later point in the airport.

Given the relatively simple and, I hope, the uncontroversial nature of the statutory instrument, I commend it to the Committee.

--- Later in debate ---

[Kevin Foster]

I thank my shadow for her overall constructive approach and response.

EEA nationals who are eligible to apply to the EUSS will still be able to use their passport and their ID card at the border to enter, as they do today. Let me clear that going through an e-Gate would not invalidate their position in terms of making an EUSS application, if they are entitled to do so, before the end of the grace period. We have discussed in other forums the provisions for late applications.

Given the grace period and the deadline for EUSS application not being until 30 June, for the purposes of a right to work check, an employer can accept an EEA passport or identity card as proof of entitlement to work up to 30 June 2021. We do not intend to require retrospective status checks, but beyond 1 July 2021 we will expect employers not only to take that passport as a form of identity but to check EUSS status is in place, or other status under the points-based system for those who arrive after 1 January. After that date, EEA nationals will enter who are not entitled to the protections under the withdrawal agreement.

Where an employer carries out a compliance check for the right to work between 1 January 2021 and 30 June 2021, it would be a reasonable excuse for that employer to say that they saw an EEA passport, even if it later transpired that that person was not covered by the withdrawal agreement, and was not entitled to be here. Obviously, that would have consequences for them, having effectively made a dishonest declaration to their employer that they were covered. The employer, however, would have the reasonable excuse that they had done what they were required to do to comply with the necessary checks and requirements. There are also provisions in place for those who, for the sake of argument, are temporarily away from the United Kingdom on the night of 31 December to 1 January. I am conscious that that issue has been raised, but being away from home at 11.01 on the evening of 31 December will not see someone lose their entitlements if they have yet to apply to the EUSS. However, and as the shadow Minister has heard me say before, if any one has any concerns about their position next year, or beyond 30 June, we have a simple message for them: get your application into the EUSS today. It is free, simple to do and all that people are required to do is prove their identity, show evidence that they live in the United Kingdom, and declare any criminal records. Those who have been here for more than five years’ residence are granted settled status. I hope that answers the hon. Lady’s queries about EEA nationals and makes it clear that the system will not prejudice them. I think we would all agree that it would be rather odd to send people to the primary control point to have such discussions about entry.

The hon. Lady made a fair point about concerns relating to border security. She will be aware that a range of non-EEA nationals from our most trusted partners can already use the e-Gates. Those nationals include those from border five countries, such as Canada, Australia, and the United States, plus those from Japan, Singapore and South Korea. We have strong information-sharing arrangements with those countries. In fact, e-Gates have the advantage in identifying a slightly higher rate of incorrect documents than those spotted by physical examination. She will appreciate that I do not want to go into all the details about how our systems at the border identify dodgy documents, but e-Gates offer some good security advantages.

We check against a range of databases, and I know that attention has been paid to the Schengen Information System – SIS II. We made an offer to the EU to continue to be a part of that, subject to appropriate negotiation, but my advice is that the European Commission has stated its view that it is not legally possible for a non-Schengen third country to co-operate through SIS II. Switzerland has been cited as one such third country, but, unlike the UK, it is a Schengen country. We have maintained that offer, and regret the view expressed by the Commission. Some of the figures quoted in relation to SIS II also include UK law enforcement officer checks on the police national computer—something not inherently linked to information on border checks through SIS II. Some of the records also relate to documents rather than to people.

We are working on fall backs very similar to Interpol and information sharing. Clearly we will talk to colleagues because we have a mutual interest as neighbouring friendly democracies, and as we talk to New Zealand, Canada and other partners. That dialogue ensures that those who may present a threat, those whom we should not look to welcome to the United Kingdom, or those who fellow law enforcement agencies may wish to catch up with are automatically checked.

The type of information that is available when someone is at a primary control point and they swipe their passport is similar to the information derived from checks at e-Gates. I hope that reassures people. If there is a reason for someone to be interviewed, they will be flagged to a Border Force official, who will intervene. The system has the necessary resource and people should be reassured that the information garnered is the same at both a primary control point and at an e-Gate. If there is a query or warning, a Border Force official will intervene or make the necessary decision. We continue to work on capacity via existing bilateral agreements and Interpol. We understand that a number of counterparts in EU states look to circulate SIS II information via Interpol channels, although as the shadow Minister and her colleague, the shadow Security Minister are aware, there are issues about some elements of Interpol’s operation.

I should make it clear that we use SIS II for law enforcement and not, I understand, for immigration purposes, but we will obviously check security information at the border. That partly reflects the fact that we are not in Schengen.

We are continuing to negotiate with the EU. We hope to reach a mutually beneficial deal, but just as the EU has not taken no deal off the table, nor has the UK if the red lines set by the UK Government are crossed. We are having constructive discussions, however, and I am sure that the Prime Minister looks forward to updating the House on their progress when he is able to do so.

This has been a useful opportunity to consider some of the issues related to the SI, and I commend it to the Committee.

Question put and agreed to.