Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Oates Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Lord Oates (LD)]

My Lords, there is little positive to say about this Bill and much, as my noble friend Lady Hamwee has so eloquently summarised, that is not only negative but deeply alarming. In its current state, the Bill has the potential to disrupt the family life of British citizens resident in the EU and risks creating a bureaucratic quagmire for EU citizens after the settled status deadline expires, leaving all of them without physical proof of their right to live in the UK—a point that I will come back to in Committee.

The very first clause abolishes free movement. From January next year, EU citizens will lose their free movement rights in the UK. At the same time, every British citizen will lose their right to live, work and travel freely throughout the European Union. EU citizens will lose their rights and privileges in one country; British citizens will lose their rights and privileges in 27 across the European continent. Ministers who enjoyed those rights for the majority of their lives have ensured that they are stripped from their children and grandchildren for ever. They have shrunk the horizons of our country and of our children’s futures, and it is a shame. I recognise that the Government will not reverse course, but I hope that they will at least reduce the impact by listening to the arguments to improve the Bill as it progresses through the House.

I want to focus on three particular areas for improvement. The first is in respect of British citizens resident in the European Union. Those with non-British spouses and family members need to know that, should they wish to return to live in the UK with their family, they will be able to do so. All British citizens living in the EU want to be reassured that we will uphold the treaty rights of EU citizens in the UK; the better to insist that they are upheld for our citizens in the EU. Secondly, the current Prime Minister and Home Secretary made a categorical commitment to EU citizens during the referendum that they would retain exactly the same rights as they had before exit. That promise has long since been betrayed but, at the very least, the Government could make one small concession and provide EU citizens with settled or pre-settled status with physical proof of their right to be in the UK. It is a small thing to ask, but it would make a huge difference, especially to the elderly, many of whom are particularly anxious about the current digital-only status. Finally, I urge the Government to amend the Bill to guarantee that the rights of EU citizens will not be subject to alteration by ministerial fiat, but guaranteed in primary law.

In conclusion, let me make this appeal. The Government have the opportunity to reconsider the Bill by accepting amendments that will bring it at least a little closer to the promises made in the referendum campaign and will help to alleviate the anxiety felt by millions of people facing an uncertain future. To do so, they will need the strength and humility to swallow their pride and do the right thing. I hope that they will find it.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Oates Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

[Lord Dholakia (LD)]

My Lords, the Data Protection Act is designed to fundamentally affect the way we use data to market, provide services and run our businesses. It also provides an obligation to warn people how their data will be gathered and used. My noble friend has already spoken about why the immigration exemption in the Data Protection Act 2018 does not apply to EEA or Swiss nationals. I support the arguments that have been advanced, particularly in the field of immigration.

Immigration is a fairly emotive issue and the use of data has caused serious problems in this country. There is an insatiable appetite to question migrants about their movements, but to put very little emphasis on what has been said. The Minister arranged a briefing session prior to Committee. I was not satisfied when I asked why some of the agencies can share the information collected but the police have been excluded from this arrangement. We need clarity on this issue, and I hope that the Minister will be able to provide that today.

I do not dispute the procedures, which are to admit those who are eligible and to remove those who are not, but in any administrative system questions arise about priorities. The administration of the immigration system is no exception and we know that the points system is to be introduced at the tail end of this particular withdrawal Bill. The purpose of the data collection is not in dispute. The administration of the immigration system about the need to exclude the ineligible is no exception. It has always been the case that to exclude the ineligible means that checks have to be made to determine who is eligible and who is not. The immigration officers have similar powers to those of the police in this matter. There is always a concern about fishing raids unless they are done on intelligence. The problem is that the more intensive these checks are, the more delay and expense there is to those who are eligible. The matter of proper documentation has been a point of dispute and likely to cause serious problems. We have seen this in relation to Windrush, which is so often mentioned in debates on this subject. Even today, after 70 years, we have not resolved this issue. We may head towards the EU settled migrants with similar problems if we fail to give proper documentation backed up by proper data collection and the proper use of information collected.

There are ample safeguards on how the information on individuals is to be used. It is explicit that such information may not be used for immigration control or enforcement. All we want to ensure is that there is less adversarial contact with migrants. The police need adequate information in their duties as providers of public services, as is the case with public service organisations such as the NHS and schools.

[Lord Oates (LD)]

My Lords, I want to address my remarks to Amendments 43 and 74 in the names of my noble friends. As my noble friend Lady Ludford has so eloquently outlined, the exemption from data protection for migrants is unjustifiable. Indeed, as she said, the suggestion that we might even withdraw from the European Convention on Human Rights only adds to the alarm that we should feel about that.

This issue goes back some way, as my noble friend Lady Ludford said. During the passage of the Data Protection Bill through Parliament, my noble friend Lady Hamwee raised this issue and sought to amend the Bill, sadly unsuccessfully at that time. She asked the Government to justify the exemption, but from my reading of Hansard, they either could not or would not. She also asked for reassurance from the Minister —and I believe it was the same Minister, the noble Baroness—but, sadly, she did not seem to get much. In fact, the Minister told the House that a decision on whether to apply the exemption could be exercised not only by the Home Office but by contractors who worked for the Home Office. She said that it would apply not only to migrants but to British citizens who supported the applications of migrants. The one piece of assurance that the Minister gave was that the exemption would be used in only a very small number of cases. She was quite explicit about that, so I hope that in her reply, the Minister will tell us how many times the exemption has been applied and, if not, whether she will undertake to write to us.

The truth is that the exemption gives huge discretion to the Home Office and its contractors to determine when access to data can be denied. The Government say that it would not be abused. That might be fine if we had not had the events of Windrush, which my noble friend Lord Dholakia referred to, and if we really felt that we could trust the Home Office and its contractors in this era of the hostile environment. However, in these circumstances it is very hard to do so. We have no way of knowing how the exemption is being applied, unless the Minister is able to tell us a bit more about that. Therefore, this is a matter of significant concern to us. As my noble friends have noted, we are seeking to remove the exemption from EEA nationals. I hope that we will not hear from the Minister that that is in some way discriminatory, as we want it removed from everybody.

Finally, and briefly, on Amendment 74, as my noble friend Lady Ludford said, we really want to hear an assurance from the Minister on this matter that will appear in Hansard.

[Lord Rosser (Lab)]

As we know, the Data Protection Act 2018 provides for an exemption from some general data protection provisions where personal data is processed for the maintenance of effective immigration control. Of course, that allows an entity that processes data for immigration control purposes, such as the Home Office, to set aside a person’s data protection rights in a range of circumstances. It can also prevent people involved in immigration cases being able to request access to the data that the Home Office holds on them, and that could affect EEA or Swiss nationals applying for a new immigration status in the UK after Brexit.

As has been said, Amendment 43 would preclude the exemption from applying where the person in question is an EEA or Swiss national. EEA and Swiss nationals will become subject to this exemption as a result of our departure from the EU.

Amendment 72 would ensure that personal data belonging to an EEA or Swiss national resident in the UK before the Act that has been gathered through their use of public services cannot then be shared and used for the purposes of immigration enforcement. The relevant public services include primary and secondary education, and primary and secondary healthcare services, as well as where a person has contacted law enforcement to report a crime.

Amendment 74 would provide that a third party—for example, a landlord—given access to check a person’s settled status for specific purposes may not be allowed to use that access or information for any other purposes.

The issue is that there have been reports and evidence of data sharing as part of the Government’s rebranded hostile environment controls when people have, for example, access to education or report a crime to the police. In that latter regard, there appear to be examples of migrant women in particular suffering domestic abuse and being deterred from reporting a crime for fear of getting pulled into the immigration system. The comment has already been made about the independent Windrush Lessons Learned Review identifying a number of people from the Windrush generation who have been wrongly subject to proactive compliant environment sanctions, where the Home Office has shared data with other departments. Therefore, there is a lot of evidence that this data sharing goes on and that it has a detrimental effect on some individuals.

The Independent Chief Inspector of Borders and Immigration has found a 10% error rate in immigration status checks. Therefore, being unable to find out what immigration data the Home Office holds that led to an error—for the purposes of an appeal, for example—is of significance. The figure that I have been given—I am sure the Minister will correct me if I am wrong—is that, since the beginning of 2019, 60% of requests for disclosure have been denied. I hope that in their response the Government will, at the very least, say how they intend to address the concerns raised by this group of amendments.

--- Later in debate ---

Moved by

[Lord Oates]

49: After Clause 4, insert the following new Clause—
“EU Settlement Scheme: physical documented proof
(1) The Secretary of State must issue physical proof confirming pre-settled status or settled status to all EEA and Swiss nationals and their families who have been granted such status under the EU Settlement Scheme and who request such proof.(2) No fee may be charged for issuing physical proof under this section.”Member’s explanatory statement
This new Clause seeks to provide physical proof of settled and pre-settled status to those who make a successful application through the scheme, providing physical evidence of their migration status.

[Lord Oates (LD)]

My Lords, I will speak to Amendment 49, to which the noble Lords, Lord Polak, Lord Kerslake and Lord McNicol of West Kilbride, have added their name. The noble Lords, Lord McNicol and Lord Kerslake, have asked me to pass on their apologies for not being able to participate in the debate—the noble Lord, Lord McNicol, cannot do so for obvious reasons—and to make my remarks on their behalf also.

I pay tribute to the3million for its tireless advocacy on behalf of EU citizens in the UK, as well as to British in Europe and the other country-specific groups that represent UK citizens in the EU and work so hard on their behalf.

The amendment’s importance is underlined by the fact that it not only commands cross-party support but is backed both by people, like me, who passionately wanted us to remain in the European Union and by those who, like the noble Lord, Lord Polak, were equal in their passion to leave. This amendment is not about refighting the battles of Brexit. It is simply about ensuring that EU citizens feel secure in their new status and do not face discrimination in the provision of services or the right to employment. It might even be described—properly, on this occasion—as specific and limited in its nature.

The amendment would require the Government to provide physical proof confirming settled or pre-settled status to all EEA and Swiss nationals and their families who have been granted such status and who request it. It would also require that the document be provided free of charge. The only way in which it appears to diverge from Amendment 51 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, and the noble Baroness, Lady Bennett of Manor Castle, is that physical documents would be provided on request rather than automatically, so that those who did not feel the need for a physical residence card would not get one but those who did would be guaranteed one.

If the Government are correct that the system of verification and cloud-based proof of status will prove simple to use and will run smoothly, there may be little demand for such documents. But if, as I suspect, those granted settled status find that the digital system does not work effectively or is not understood by the service providers they must interact with—or if they simply want the physical surety that I would certainly desire were I permanently resident in another country—it will be available to them as it should be.

The arguments for the Government’s position are a little hard to follow but they seem principally to be these: first, that it would be confusing to people to have a digital system as well as a physical proof of status; secondly, that a digital proof is better than a physical proof because a digital proof cannot be lost; thirdly, that the Government intend to move to a wholly digital system in future and that it therefore makes sense for this new settled status scheme to adopt a wholly digital model from the outset.

On the first point, it is not clear why the Government think that having both physical proof and digital proof would be confusing, as this is exactly the system that exists for non-EEA citizens. They can access a digital proof of status and have a physical document. Landlords, employers and others who are expected to check for immigration status already operate under this system.

Within the settled status scheme itself, there are two different categories. Astonishingly, non-EEA nationals who are family members of EEA nationals—and who therefore acquire settled status through their family relationship—have the right to a physical document, while the EEA family member through whom they gain their status does not. Can the Minister explain to the House the logic behind this very curious arrangement and how it can possibly be said to provide clarity to anyone?

Secondly, when we discussed these matters, the Minister argued that digital proof is better than physical proof because it cannot be lost. I will be very clear to the Government and the Minister that this amendment would ensure that a physical document complements digital proof and would not replace it.

Thirdly, the Government have argued that it makes sense to adopt a digital model as this is the direction of travel of the Government as a whole. However, if a wholly digital system is to be introduced, it should be extensively piloted first with British citizens who are secure in their immigration status. We should not conduct an experiment with the lives of millions of people who are in receipt of an entirely new status, whose rights are not even underpinned in primary legislation and who are, understandably, extremely nervous about the situation in which they find themselves. It is, quite simply, wrong, especially when we already know the problems it will lead to. In 2018, the Government trialled their digital right-to-work scheme with non-EU citizens who have the backup of a physical residence card. Their own internal assessment stated the following:

“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”


In her response, can the Minister explain to the House what has changed since the Government made that assessment?

I hope that, during this evening’s debate, the Minister will be able to put her brief aside and try to walk in the shoes of the people who will be subject to this new system. I hope she will consider the anxiety and distress that they will be caused by the fact that, of the 70 million people living in Britain, they alone will be refused physical proof of their right to do so. I hope she will consider the fact that this anxiety and distress will be particularly acute among the elderly, the vulnerable and those lacking digital literacy.

I have tried to imagine what it would be like if I had an elderly relative who was an EU citizen and I had to explain to them that the whole proof of their continuing right to live in the UK existed only somewhere in the cloud, dependent on the resilience of government IT systems, the integrity of the data within them and the vagaries of an internet connection. I can imagine the distress and disbelief with which that relative would receive this information, and I wonder how I would explain to them why the Government were unwilling to do a simple thing and provide them with the reassurance of a physical document: something they could hold in their hand and show, themselves, to whoever in authority required it. This is something that will be provided to all UK citizens resident in the EU. I do not know whether the Minister or any of her colleagues in government have really thought about how those conversations will go and the distress that will be caused. However, if they have not, I hope they will now think about it and the position they have taken.

We still await the policy equality statement on the settlement scheme, which was originally promised in the spring. On July 28 this year, the Minister for Future Borders and Immigration, Kevin Foster, stated that it would be published shortly. Can the Minister confirm that the equality statement exists, that it will be published and when it will be published? Does she recognise that the failure to provide such information before we debate legislation makes it very hard to make parliamentary accountability effective?

While the most vulnerable will inevitably suffer the most, all those with settled status are likely to be impacted by the absence of physical documents. Briefing from the3million group provides illustrative examples of the problems that people will encounter under the new system, which could have a severe impact on their ability to work, rent a property or access medical and other services. They are instructive illustrations and I hope the Government will look at them—and the issues they give rise to—carefully.

As the briefing tells us, research conducted by the Residential Landlords Association found that 20% of landlords are less likely to consider renting to EU or EEA nationals as a consequence of their lack of physical documentation. The Joint Council for the Welfare of Immigrants conducted 150 mystery shopping enquiries and found that 85% of prospective tenants who asked landlords to conduct an online check received no response at all. Of those landlords who did reply, only three said explicitly they would carry out such checks.

The situation is little better when it comes to employment. A poll of 500 employers conducted on behalf of the3million found that only 36% of employers knew that an online verification system would be applicable to EU citizens after the end of the grace period. This fell to just 17% among small businesses with a turnover of under £500,000, which means that four out of five such employers are not aware how right-to-work checks will operate under the new system.

What is the likely outcome of such confusion? It is that landlords and employers, who face unlimited fines and potential imprisonment if they employ or rent to someone who does not have the right to work or rent in the UK, will play it safe. As a result, EU citizens will be discriminated against compared with those who can show a physical document indicating their right to live or work in the UK. This is the real world, and these are the real effects on people’s lives, which could be corrected so easily by this amendment.

I hope that in the face of this compelling evidence of the clear harm that this discriminatory system will impose on millions of EU citizens, and in accordance with the promises made by senior members of the Government during the referendum campaign, the Government will think again, show themselves to have empathy and compassion and agree to this simple amendment, which would prevent so many unnecessary problems and so much unnecessary hardship from arising.

I beg to move.

[Lord Polak (Con)]

My Lords, I am pleased to have added my name to this amendment, and I pay tribute to the noble Lord, Lord Oates, for his excellent and thoughtful introduction.

Non-EU citizens are given physical proof of their settled status. Can it really be that EU citizens will be the only group without physical proof of status? The immigration system should treat people fairly and justly. People who have come to the UK and live here lawfully should not struggle to demonstrate their rights. A physical document, such as a biometric residence permit like those issued to non-EU citizens, will give that peace of mind.

I am entirely at one with the Government and specifically the Home Office’s ambition to digitalise. Of course, it is the way forward. But we are not there yet and, as the noble Lord, Lord Oates, said, the lack of physical proof will be of great concern to those who may not be digitally literate—specifically, some older people. So I was happy to support this amendment once it was agreed to add the requirement that the Government provide the physical proof if requested, thus alleviating the strain on the department.

As the noble Lord, Lord Oates, began, this amendment is neither political nor a repeat of arguments. It is simply a practical and sensible option to give some people comfort. I hope that my noble friend the Minister will agree with me that it is just the right thing to do.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

Yes, I would be happy to do that.

[Lord Oates (LD)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. They all made important contributions and have provided consistent support on these issues over the extended period we have been discussing them. In view of the time, I will not go through all the contributions but I want to thank my noble colleague, if I may call him that, the noble Lord, Lord Polak, for his support and for the clear and eloquent way in which he spoke in support of the amendment. As he said, this is not a partisan issue; in reality, it is a practical and simple measure.

When I spoke earlier, I asked the Minister to consider putting aside her brief and walking in the shoes of the people who will have to work the system. I am afraid that she absolutely did not do that, and I am deeply disappointed. She said of physical documents, “I do not think they are necessary”. With respect, what matters is not what the Minister thinks but what the people who will have to live under this system think. They think they are necessary, and I do not blame them, because if I were a permanent resident in another country, I would want physical proof of my status. I suspect that many people in the Government would too. On previous groups, the Minister spoke at great length about discrimination between EEA citizens and non-EEA citizens, but that is exactly what the government scheme proposes and would do. She talked about how physical documents could be lost, stolen or tampered with. Then why on earth are the Government issuing such documents under the settled status scheme to non-EEA citizens who gain their rights through family relationships?

I asked the Minister what had changed since her own Government’s assessment of the digital right-to-work scheme found, as I said, that:

“There is a clearly identified user need for the physical card … and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”


She did not enlighten the House. We heard instead much about the Home Office’s apparent plans to digitise the whole system. My noble friend Lord Paddick asked the Minister whether the Government intend, for example, to abolish the physical driving licence. I do not think he got an answer but I wondered about the status of the famous blue passport, which has caused such excitement in some quarters recently. Do the Government really intend to abolish it in favour of a digital status? If so, I would not fancy being the Minister who has to explain that to the Daily Mail.

However, there is a really serious point here. The Minister read out a brief that addresses none of the important questions that were raised. She referred to the important point made by the noble Baroness, Lady Bull, about those who may be fleeing domestic abuse and whose partner may have been the person who controlled the email address and applied for the settled status scheme. I do not know whether the noble Baroness, Lady Bull, got an answer but I did not hear what it was.

When Michael Gove appeared before the European Union Select Committee of this House in May, in answer to a question from the noble and learned Lord, Lord Morris of Aberavon, about documentary proof for EU citizens in the UK, he told us that

“the moral and social case for it remains as strong as ever, and I shall reinforce that argument.”

I hope the Government will think about those comments by the Chancellor of the Duchy of Lancaster. To give them time to do so, I beg leave to withdraw my amendment.

Amendment 49 withdrawn.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Oates Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I was prompted to speak in support of the amendment by an email that I received this week from a British citizen born of British parents in Britain. During voluntary service overseas, she met and married an Italian. She lived in Italy, working for a UN agency for 30 years. They adopted a boy whose nationality is Italian. After her husband died, she hoped to return to the UK, where her brother and sister live. However, this would now mean her leaving her son behind, which, she writes,

“I could never do. We are very close. I could never leave him behind, with me in one country and him in another.”

Both she and others in a similar situation cannot believe that their families will be split up in this way in future.

I refer to what the Minister said in Committee at the end of the debate on another amendment relating to family reunion. She appeared to agree with the argument of the noble Lord, Lord Green of Deddington, for raising the minimum income threshold—referred to earlier by the noble Baroness, Lady Hamwee—from £18,600 to £25,700, or even £38,000, to cover the cost of public services or make a net contribution to public finances. I know that these figures came from the Migration Advisory Committee but they are premised on a narrow understanding of what constitutes a contribution to our society. It is the same kind of thinking that will exclude care workers and other key workers from immigration, as we heard during the debate on a previous amendment. The argument discounts the importance of the right to family life. I hope that the Minister will say now that I misread what she was saying and that she was not supporting the suggestion to raise the threshold.

The damaging impact of the minimum income threshold has been documented in a number of studies, most recently from the University of Bristol. It wrote of

“not just emotional impacts of separation, but financial, mental and physical hardship.”

The family reunion rules divide far too many families already. They need reviewing. For now, we can at least prevent even more families—like those of the mother who emailed me and the many other people who have emailed other Members of your Lordships’ House—being split up in this cruel and heartless way. We can prevent that happening by supporting this amendment.

[Lord Oates (LD) [V]]

My Lords, my noble friend Lady Hamwee has already eloquently set out the powerful arguments for this amendment, as have the noble Earl, Lord Clancarty, and the noble Baronesses, Lady Bennett of Manor Castle and Lady Lister of Burtersett.

As my noble friend Lady Hamwee told us, in Committee she asked the Minister how she would advise a couple, one British and one an EU national, who both have elderly parents, in which country they should choose to live. Which set of elderly parents should they pick? In response, as my noble friend reminded us, the Minister said that the Government had given people “plenty of time”, but that is not an answer. It does not matter how much time they have had; they could have had all the time in the world. It does not change the fact that the Government are forcing them to make an invidious choice, to make it by 2022 and to live with it ever after. If they need to stay in the EU member state of the EU national to look after his or her parents, after 2022 they will no longer be eligible to return to the UK together. I ask the Minister once again: how should that family make their choice? I would like her to provide an answer to that essential question—which she failed to give to my noble friend—because it goes to the heart of the issues and the terrible choices that will be inflicted on our citizens and their families as a result of the Government’s policy.

The Government have made much of taking back control. This is a test for Ministers of what that control will mean in practice. Will they act with compassion or with cold-hearted indifference and in doing so inflict intolerable injustice on thousands of families of our citizens? I am sure I am not alone—and we have heard testimony from previous speakers—in having been contacted by numerous British citizens with heartrending stories of the misery that the Government’s present policy will cause to them and their loved ones. People who settled as British citizens in the EU and who made their lives there with their partners, who now, through no fault of their own, face their future plans being torn up by ministerial obduracy and callousness.

One such example is Fiona, who lives in Luxembourg with Miguel, her German-Chilean husband. He studied his O and A-levels in the UK, where his father was a professor. He later took a job as a translator in Luxembourg, where Fiona joined him. They have now been married 25 years and have lived in Luxembourg all that time. They always assumed they would be able to return together to the UK, as Miguel was an EU citizen, and they made their life plans on that reasonable assumption. Now—through no fault of their own—unless they return before 2022, Fiona would only be able to do so alone. In theory, her two children could come with her, as they are dual nationals, but if this is the way the UK intends to treat their German father they have no wish to do so, and I cannot say I blame them. Fiona says: “As a British citizen, I feel exiled from my country of birth and the rest of my UK family.” That is the reality of the Government’s position: to de facto exile British citizens from the land of their birth.

The only argument I have heard Ministers advance to justify the injustice they are about to inflict is that somehow maintaining the existing position would not be fair on British citizens living outside the EU who are married to non-UK nationals. This is the hollowest of empty arguments. British citizens moving to live in an EU member state had the reasonable expectation that they would be able to return to the UK with their partner at any point. The gross injustice lies in the fact that existing rights are being stripped away. If the Government do not move on this policy, British citizens will face a very stark choice come 2022: they will either have to return alone, without their wife, husband or other family members, or not at all. That is the reality.

I hope that all Members of the House will be clear, when they eventually get to vote on this amendment, that they will not be voting on some abstract piece of policy; they will be deciding the future of thousands of British citizens and their families. They will be deciding whether those families have to pick which elderly parent they will stay to care for, or which life plans they have to tear up. Above all, they will be deciding whether to lift a massive burden of anxiety from the shoulders of our citizens in the EU or to impose a further weight of misery upon them. Even at this late stage, it remains in the Government’s hands to show, by accepting this amendment, that they have a human face. However, if they do not, I hope that they will be resoundingly defeated when the virtual Lobbies function once again.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Oates Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

Moved by

[Lord Oates]

18: After Clause 4, insert the following new Clause—
“EU Settlement Scheme: physical documented proof
(1) The Secretary of State must issue physical proof confirming pre-settled status or settled status to all EEA and Swiss nationals and their families who have been granted such status under the EU Settlement Scheme and who request such proof.(2) No fee may be charged for issuing physical proof under this section.”Member’s explanatory statement
This new Clause seeks to provide physical proof of settled and pre-settled status to those who make a successful application through the scheme, providing physical evidence of their migration status.

[Lord Oates (LD)]

My Lords, I rise to speak to Amendment 18 in my name and that of the noble Lords, Lord Polak, Lord Kerslake and Lord McNicol of West Kilbride. In doing so, I give notice of my intention to test the opinion of the House unless the Government are willing to move on this issue. I also thank all noble Lords who are speaking in the debate and all those who have spoken in previous debates over the years; they have shown consistent support on this issue.

It seems that we have been over this ground on numerous occasions over the past few years. In that time, the Government have failed to put forward any convincing arguments to deny EEA nationals, alone among all of the people residing in the United Kingdom, physical proof of their right to do so. This amendment would right that wrong and in doing so it would alleviate anxiety for millions of people, in particular the elderly and the most vulnerable.

The amendment has no partisan or ideological flavour and it is backed by Peers from all sides of the House, from all parties and from none. It is simply a practical measure to make life easier for a large number of people and to deliver a consistent system of proof of residents’ rights which does not discriminate between nationalities. It is deliberately modest in its ambitions. It does not require that physical proof is issued to every EEA national who is granted settled status, only that EEA nationals must be provided with physical proof of their status if they request it.

The Government’s arguments against this very modest proposal seem to be as follows. The first is that offering both digital and physical proof of status would be confusing. That argument is hard to understand because this is exactly the system that operates for all other permanent residents in our country. Far from avoiding confusion, a digital-only system will sow it in abundance. Landlords, employers and others required to check immigration status will now be confronted by two systems, one for EEA nationals and one for non-EEA nationals. They may wonder at this discrimination between nationalities and, given that they face crippling fines and the possibility of imprisonment if they get things wrong, they may decide that in the absence of physical proof, it is safer to replicate the Government’s discrimination and not to employ, rent a property to or provide a service to an EEA national.

Secondly, the Government claim that a digital proof is better than a physical proof because a digital proof cannot be lost. The answer to this is simple. We are not suggesting the removal of digital proof or digital records; we are simply arguing that physical proof should complement digital status. None the less, it is worth questioning the Government’s repeated claims in Committee about the resilience and robustness of the digital system. These arguments come to us in a month in which the Tokyo stock exchange lost a full day of trading due to a technological failure not only of its main system but also of its back-up, the Conservative Party virtual conference was rendered inaccessible to many of its delegates, denying them what is doubtless, for Conservatives at least, the unrivalled pleasure of a speech by Michael Gove, and of course the failure of our own House of Lords voting system when we were discussing this very Bill on Wednesday last and the failure of our hybrid proceedings this afternoon.

Let us be clear: systems failures are not a matter for the history books but happen every day. Technical faults occurred on the EU settled status scheme website in August this year, a nationwide failure of the US Customs and Border Protection system happened in August last year, and we all know of the scandalous injustice visited on sub-postmasters and sub-postmistresses as a result of the supposedly infallible Horizon IT system. In each case, those responsible made extravagant and categorical claims about the robustness and resilience of their system.

Even temporary failures may give rise to permanent effects. If an employer or a landlord is unable to access the system at the point they have to decide between potential employees or tenants, the likelihood is they will give the job or rent the home to someone who can provide physical proof of their right to work or rent accommodation.

Thirdly, the Government argue that they intend to move to a wholly digital system in future and that it therefore makes sense for this new settled status scheme to adopt a digital-only model from the outset. It makes no sense at all. If a digital-only system is to be adopted, it should be extensively trialled in advance with widespread pilot schemes conducted with citizens who are confident in their status and who have the security of physical documentation as well. Australia, one of the few countries to have moved to a digital-only system, trialled it over a period of more than a decade.

As I said in Committee, we should not conduct an experiment with the lives of millions of people who are in receipt of an entirely new status, whose rights are not even underpinned in primary legislation and who are understandably nervous about their status, given the Government’s declared intention to violate the very treaty on which that status is based. We should especially not conduct an experiment with the lives of millions of people when the one trial the Government have undertaken, which involved non-EU citizens who had the back-up of a physical residence card, found the following:

“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”


I asked the Minister in Committee to explain to the House what has changed since the Government made that assessment in 2018. She either could not or would not answer that question. Neither could she tell us when the policy equality statement related to this policy, which the Government have confirmed exists, will be published. It is unacceptable that we are being asked to decide on legislation that will affect millions of lives when the Government are withholding from us such vital information, so I ask the Minister to address these issues in her response.

On every occasion we have discussed this matter, I have asked the Minister and other members of the Government, just as my noble friend Lady Hamwee did on an earlier amendment this afternoon, to try to walk in the shoes of others and to understand the huge anxiety which the Government’s refusal to listen and make this minor change is causing to EEA nationals, particularly to the elderly, vulnerable and those who lack IT literacy. At the end of the day, this argument is not about technology, documents or computer systems—it is about people’s lives, whether EEA nationals can feel secure in the status on which their whole lives are based, and whether the elderly and vulnerable can operate the system without dependency on others. It is about whether victims of domestic abuse will face further misery as an abusive partner exercises control over their lives through control of the email address on which their status is based, as the noble Baroness, Lady Bull, raised in Committee. It is about whether those seeking employment, accommodation or access to services will be discriminated against by employers, landlords or service providers who are confused that EEA nationals alone cannot produce physical documentation.

The case for this modest amendment is overwhelming. The practical arguments demand it, the principle of non-discrimination requires it, and the most basic level of consideration for the EEA nationals who have made their home with us compels it. I beg to move.

[Lord Polak (Con)]

I pay tribute to the noble Lord, Lord Oates, for his tenacity. We sat together on the Justice Committee some years ago, discussing these exact issues. As I stated at Second Reading, I am pleased to add my name to the amendment. I also thank my noble friends Lord Parkinson and the Minister for the time they gave me last week.

Like other noble Lords, I have received many messages from individuals supporting the amendment, from people whom I have never met to a number of colleagues from all sides of the Chamber—and I am grateful for that. As I have stated, the amendment is not political in nature but practical and sensible, and it should not prove onerous, as it mandates the Government to provide physical proof only if requested by an individual. Rather than giving my own opinion, I quote from a letter that I received from Maria:

“I am an EU national who has been based in the UK for over 26 years. As of 1 July 2021, I will be faced with proving my right to live and work here on a continual basis, hindered by the fact that I have no physical document with which to do so. Instead, for every different employer I work for, I will need to go through a lengthy, contorted, multi-step process involving my passport, my birth date, a unique one-off code sent to my phone, the employer’s email address, their business details and us both accessing the government website separately. I also must count on having all the necessary correct information to hand, the wi-fi connection being strong enough, the website not being down and there being no access errors with the database. In addition, I must hope that the other party is willing enough to go through the entire complex and time-consuming process with me. This is also the process I will need to go through to access the NHS, to rent a flat or, indeed, convince a sceptical airline employee abroad that I have the right to return to the UK without a visa in my passport or a physical document.”

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[Baroness Williams of Trafford (Con)]

I will say just two things to the noble Baroness. The first is that I hope I have explained in quite a lot of detail the level of security back-up inherent in this system. I also hope that she will acknowledge something that I have had experience of before: walking through an airport, I suddenly could not find my passport.

[Lord Oates (LD)]

My Lords, I thank all noble Lords who have taken part in this debate, in particular, my fellow signatories to the amendment, my noble friends and—above all—those Members on the government Benches who have supported this. I know it is hard to do that when your party takes a different view, so I am very grateful to everybody for that. In view of the hour, I will not go through everybody’s contributions; I hope noble Lords will understand that. I give my commiserations to my colleague, the noble Lord, Lord Polak, and the noble Lord, Lord Alton, over the trials and tribulations of Liverpool, and I am sure I will not endear myself to the noble Lord, Lord Horam, by telling him that I am a Spurs fan.

We heard compelling testimony from the noble Lord, Lord Polak, and a number of noble Lords across the House from people actually affected by this system. The noble Lord, Lord McNicol of West Kilbride, spoke about the future heartache and pain that will be caused if the Government will not move, and noble Lords across the House raised a whole series of points that I will not repeat.

In her reply, the Minister made a number of statements. She said that the system was very robust. We said at the beginning—as did other Peers, such as the noble Lord, Lord Cormack—that this is what is said about every system that goes wrong. She said that our data is all backed up. The Tokyo stock exchange had a back-up system; it failed as well. The noble Baroness spoke about systems such as the tax disc system, which is entirely electronic, and she is right to say that. However, we are not talking about the tax disc on your car; we are talking about your absolute status of having the right to stay in the country in which you have made your home. From the Windrush examples et cetera, we know how that can be threatened; we have very recent examples of this.

The Minister seemed to try to make out that some of us were against a digital system. I think everybody who spoke said that they understood and agreed with the need to move to a digital system. The noble Baroness said that we were on a journey, but do not start it with the more than 3 million people who feel most vulnerable about their status in this country. Start it with people who do not feel that way; trial it properly, as other systems have been trialled. The Minister talked about the letter that people are sent, but it sets out specifically that it is not proof of status, and the Minister acknowledged that.

I shall finish by raising two questions that have not been answered. There was a trial in 2018. It said that we should not bring forward a system without biometric residence permits unless there was strong evidence to show that they were no longer needed. The Minister did not share that with us.

The Minister told us that the Home Office had a comprehensive plan to address the cultural failings that led to Windrush, which included the finding that the Home Office was often thoughtless about the consequences for people affected by its policies. If the department really wants to demonstrate that, it would act in a way that shows that it cares about the consequences for people. In view of the Minister’s unwillingness to move on this issue, I wish to test the opinion of the House.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Oates Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 21st October 2020 Lords Chamber

The Conservative Party has long claimed to be the party of the family. Please can it demonstrate that it is the party of families of UK citizens who chose, in reasonable expectation of free movement rights continuing, to live and set up home and families with citizens from the rest of the EEA. They are now placed in extremely difficult and worrying circumstances. It is not fair play to them to do that. My noble friend has given the Government an opportunity to find a way a through this which preserves honour and fairness all round.

[Lord Oates (LD)]

My Lords, I shall speak only briefly because my noble friends Lady Hamwee and Lady Ludford have comprehensively set out the injustices that will be visited on thousands of British citizens and their families if the Government’s policy stands. I shall make just two points.

First, the argument that to retain the existing rights of UK citizens with EEA spouses or families is somehow discriminatory or unfair as against UK citizens with non-EEA spouses has no merit. I speak as a UK citizen with a non-EEA spouse. When we made decisions about our lives, we did so in the knowledge and understanding of the rules at the time, just as UK citizens with EEA spouses made decisions about their lives on the basis of the rules at the time, which they could have had no reasonable expectation would change. The only way in which one could say that discrimination would occur would be if this amendment suggested that UK citizens forming relationships with EEA citizens going forward should be afforded different rights, but that is not what it says.

Secondly, yesterday, your Lordships’ House passed two amendments in lieu on agri-food standards. They were important and I was pleased to support them, but this amendment, I venture, is much more important, because it is about people’s lives. If it is not passed, huge misery will be inflicted on a large number of people. I do not think that we have really understood the level of suffering that will be inflicted. Frankly, it is wrong and heartless, and we should not allow it to stand.

[Lord Rosser (Lab) [V]]

We do not minimise the importance of this issue any more than we minimise the importance of any of the amendments and the issues they covered which this House sent to the Commons and which the Commons rejected. As has been said, British citizens who moved to other EU countries will lose the right they had to return to this country of birth with a non-British partner or child, perhaps to look after an ageing parent, unless they can meet financial conditions that will be beyond the reach of many. While British citizens who have moved to the EU or EEA before the end of 2020 will face these restrictions, EU citizens who have moved to the UK before the end of 2020 will not.

However, while this issue of the right for UK citizens to return with their family was referred to by some speakers during the Commons proceedings on Monday, it was not taken to a Division. This rather indicates that we have now taken this matter as far as we can at present, having sent it to the Commons once. For that reason we will abstain if Amendment 2B in lieu is taken to a vote. In the Commons on Monday, the Government said they would

“continue to keep this area under review”.—[Official Report, Commons, 19/10/20; col. 804.]

We call on it to continue to look further at this issue, in which I declare a personal family interest, outside the Bill and well before the deadline date of 29 March 2022 for bringing existing close family members to the UK on current EU law terms.

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Moved by

[Lord Oates]

At end insert “but do propose Amendment 5B in lieu—

5B: Insert the following new Clause—
“EU Settlement Scheme: physical documented proof
The Secretary of State must issue physical proof confirming pre-settled status or settled status to all EEA and Swiss nationals and their families who have been granted such status under the EU Settlement Scheme and who request such proof.””

[Lord Oates (LD)]

My Lords, in moving Motion E1, which includes Amendment 5B, I give notice of my intention to test the opinion of the House, unless the Government are willing to change their position on this issue. I express my thanks to all noble Lords on all sides of the House who have so steadfastly and consistently supported this cause, in particular the original signatories to the amendment: the noble Lords, Lord Polak, Lord Kerslake and Lord McNicol of West Kilbride.

We have discussed this issue frequently over a number of years, but it appears that the Government have not been listening. Either that or perhaps I have not been listening properly, because I am still at a loss to understand the arguments that they have put forward to justify their decision to deny EEA nationals alone, among all the people residing in the United Kingdom, physical proof of their right to do so.

This issue, as we have said before, has no partisan flavour. It has been supported by Peers across the House of all parties and of none, commanding one of the largest majorities in your Lordships’ House of any amendment on this Bill. It involves no Brexit arguments; it may be happily supported by any Member, whatever their position on those past arguments. It is, quite simply, the right thing to do to alleviate the anxieties and hardship that will otherwise be visited on millions of people who have made their home with us in the United Kingdom.

In Committee, the Government appeared to advance three principal arguments against our amendment: that a system with both digital proof and physical proof would be confusing; that a digital proof is better than a physical proof because a digital proof cannot be lost; and, lastly, that the Government intend to move to a digital-by-default system in future and therefore that it makes sense for the new settled status scheme to adopt a digital-only model from the outset.

On Report, a new argument was raised—or at least advanced more vigorously—and that was of cost. As noble Lords will be aware, the Government, in rejecting our amendment, have claimed financial privilege, advancing no other argument against it. Therefore, to address the issue of financial privilege and to tackle the Government’s concerns over cost, we have removed the requirement that physical proof must be provided free of charge, which was in the original amendment. It should be noted, therefore, that this amendment in lieu requires only that the Government offer physical proof of status to those who request it; that it allows the Exchequer to charge for such a document; and that the charge is permitted under the terms of the withdrawal agreement.

The Minister told us on Report that if 89% of those with settled status sought a physical document, it would cost £100 million—I think that was at col. 472 —which, by my calculation, would mean, in order to cover costs, a charge of £28.09. I therefore question the Minister’s statement just now that the cost would be £75, and I wonder how she marries that up with the figure she gave us before. Perhaps she will say, “We would have to take into account the setting up of a whole new process”—but I do not understand that. There is a process for issuing biometric residence permits, so there is no need to set up a new process. Indeed, non-EEA citizens who are granted settled status via their spousal relationship are given biometric residence permits—so I do not understand that at all.

I would much prefer that there was no charge for a physical document—not least because our citizens abroad are being issued physical proof of status without charge, as I understand it. Nevertheless, if this is the only way that EEA citizens who have made their homes here can be given the surety and confidence that they seek, I suspect that they would probably regard the fee of £28.09 as money well spent. I hope, therefore, that this addresses the issue of costs and privilege.

As to the response to the Government’s other arguments, I shall try to be brief, both because they have already been well rehearsed in this House and because even the Government do not seem to have the heart to argue them convincingly. First, on the argument that it would be confusing to people to operate a digital system as well as physical proof of status, it remains unclear to me why the Government make this claim. It is exactly the system that exists for non-EEA citizens with indefinite leave to remain, who can access a digital proof of status and can apply for a physical document. Landlords, employers and others who are expected to check for immigration status already operate under such a system, so I fail to understand who the Government think will be confused. What is likely to be confusing, therefore, is not the presence of a physical document but its absence.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken on this amendment—in particular, the noble Lord, Lord Oates, who moved it.

One of the first areas of disagreement that he raised was on costs. We have used published costs for enrolling biometrics and issuing a BRP, which are £19.20 and £56 respectively. They cover only the casework in the applications and not the significant set-up costs. There are costs of issuing and replacement, and one-off costs of upgrading pre-settled status cards. There is a cost of communication of the change and, of course, of facial technology.

The noble Lord, Lord Oates, suggested that the system should be trialled. The fact is that people are using it now. It is not going live on 1 January; people are already using it to prove status. That is proof of the success of the “trial”, as he puts it. Surely the fact that 4 million applications have already been made suggests that the system is working. This takes me to the point made by the noble Baroness, Lady Ludford, regarding the difficulties of the system. I have seen how the application process works. It is very easy; I have suggested previously in this place that noble Lords take time to look at just how easy it is to set up.

The noble Lord, Lord Oates, also stated his dismay that the PSED has not been published. I do not have any update on my previous statement that we intend to publish it.

On discrimination, the BNO route will be launched in January. Applicants will receive digital status using the technology based on the EU settlement scheme. People receiving that status will be required to use it from January, so the system relates not just to people from EU member states but to our BNO friends who we expect to come here from then. The system is therefore not discriminatory in the sense that our BNO friends will use it from January as well.

My noble friend Lady Neville-Rolfe is absolutely right: although it might not be the way forward for older people, digital by default is the way forward. It is completely retrograde to talk about physical documents when in fact, to date, the system appears to be working well. The noble Baroness, Lady Ludford, talked about physical documents being less open to abuse. They are more open to abuse and far easier to forge than a digital status that an employer or landlord can access.

Finally, regarding a power outage at the PNC, I should tell my noble friend Lord Polack that our back-up systems are very robust, as I have previously explained.

I do not think that I will convince some noble Lords—indeed, I think that the noble Lord, Lord Oates, intends to divide the House—but it is a retrograde step to talk about returning to physical documents. I remember my noble friend, joined by the noble Lord, Lord Clement-Jones, talking about the importance of physical identity, which we fully intend to take forward. I hope that the noble Lord, Lord Oates, will withdraw his amendment but I do not think that he will.

[Lord Oates (LD)]

My Lords, I thank the noble Baroness for her response. I do not understand the issue with set-up costs; a system exists. I also do not understand the point about casework costs for people who already have settled status.

All the arguments have been aired extensively. I very much regret that the Labour Front Bench is unable to come with us, not least because of the strong arguments made by the noble Lord, Lord Kennedy, for exactly my position. However, I hope that, despite the view of the Front Bench, my friends on the Labour Benches will support us, just as my friends on the Conservative Benches will do. I thank noble Lords on all sides of the House for their support and I appeal for their support again. I wish to test the opinion of the House.