EEA Nationals (Indefinite Leave to Remain) Bill [HL]

Lord Oates Excerpts

2nd reading (Hansard): House of Lords
Friday 19th July 2019 Lords Chamber

Moved by

[Lord Oates]

That the Bill be now read a second time.

[Lord Oates (LD)]

My Lords, two years and 13 days after it received its First Reading in this House, I am pleased and a little surprised to have the opportunity to debate this Bill. This is not a complicated piece of legislation; it is not a complex issue. At heart, it is a simple matter of honouring a pledge made over three years ago to EU citizens resident in the United Kingdom. The Bill seeks to establish a declaratory approach in which the right of residence for EU citizens is based upon eligibility rather than acquired through application. Registration would therefore merely confirm the existing right and missing any deadline would render one undocumented but not unlawful.

Clause 1 amends the Immigration Act 1971 to grant the right of abode to all EEA citizens resident in the United Kingdom on the date of exit from the European Union. Clause 2 sets out what would qualify as being resident in the UK for this purpose and Clause 3 specifies the basis on which a person would be regarded as a family member, based on existing EEA provisions. In summary, the Bill would put into law the categorical commitment made to EU citizens during the referendum campaign by, among others, our most likely next Prime Minister. In June 2016, Boris Johnson, Michael Gove and Priti Patel made the following pledge in a written statement on behalf of the leave campaign:

“there will be no change for EU citizens already lawfully resident in the UK. These 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”.

Since then, every one of those individuals has served in government, at Cabinet rank, yet that pledge has still not been honoured. The aim of this Bill is to right that wrong and to put their pledge into law.

Noble Lords will be aware that, after a long and discreditable period, the Government finally conceded last year that a unilateral commitment must be made to EU citizens. As a result, the settled status scheme was established and began operation earlier this year. While the scheme does provide a route for EEA nationals to apply for settled status and, if successful, to be granted permanent residence rights, it does not deliver on the promise made to EU citizens by the leave campaign, for a number of reasons. First, the settled status scheme is not the automatic route to indefinite leave to remain that was promised by the leave campaigners. It is an application-based system with a finite cut-off date of 30 June 2021, or 31 December 2020 in the event of a no-deal Brexit. After midnight on that date, any person who has not applied will be deemed to be unlawfully in the United Kingdom whether or not they would otherwise have been eligible for permanent residence under the scheme.

I do not think that anyone seriously believes that the Home Office will be able to reach, and grant settled status to, all the 3 million EEA nationals estimated to be resident in the UK in just two years. Based on evidence from studies of other application-based government schemes, it is possible that between 5% and 10% of those eligible will not have been reached by the cut-off date. That means that tens or even hundreds of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 17 months’ time. Inevitably, those most at risk will be vulnerable: young people in care, the elderly and the marginalised. I hope that no future British Government would even contemplate attempting to detain and deport such people; but, at the very least, that so many may become criminalised by the state will create a Kafkaesque nightmare which will then have to be painstakingly unravelled. In the process, many thousands of people will be subjected to misery and disruption.

The Government’s argument for a cut-off date seems to be that it will help avoid a repeat of the injustice inflicted on people by the Home Office in the Windrush scandal, but it will do nothing of the sort. The cut-off date will simply empower the Home Office lawfully to inflict such injustice. Under the settled status scheme, there will be no hope of redress for EU citizens as there was for at least some of the Windrush victims because, after June 2021, they will have automatically lost their lawful immigration status by virtue of having failed to meet the cut-off date, regardless of being otherwise fully eligible for permanent residence under the scheme.

A second issue with the settled status scheme is that, unlike the system of indefinite leave to remain, it does not provide successful applicants with physical proof of their right to be in the United Kingdom. Instead, they must rely entirely on a code issued to them by the Home Office which has to be entered into the relevant website by whoever requires proof of their immigration status. The3million group, which represents EU citizens in the UK, has highlighted the difficulties that this will inevitably cause for EU citizens. Interactions with landlords, airline staff or other officials obliged to check immigration status will become fraught with anxiety, dependent on the fragility of an internet connection and the resilience of a government IT system.

Thirdly, the settled status scheme requires proof of continuous residence over a five-year period. That may be difficult for some people to provide and contradicts the leave campaign’s pledge, which was made to all EU citizens lawfully in the UK regardless of the length of residence.

Finally, and perhaps most fundamentally, the current settled status scheme rests on immigration regulations which can be changed virtually at the stroke of a ministerial pen and on the undertakings of Ministers who may be out of office as early as next week. Noble Lords will not be surprised that EU citizens find it hard to have much confidence in a scheme constructed on such shaky foundations. This Bill, by contrast, would for the first time provide all EEA nationals resident in the United Kingdom with a guarantee in primary legislation of their right to remain. Consequently, their status could be altered in future only with the active consent of both Houses of Parliament.

Beyond the flaws in the principles of the settled status scheme, there are also concerns about its practicalities. Since it started operating, the Government have made much of the fact that few applications have been rejected, but we should not get carried away by this reassurance. Anecdotal evidence suggests that, while applications may not have been wholly rejected, many people are told that they have not provided sufficient documentary evidence and must provide more. Others who have applied for settled status have been granted pre-settled status instead—we do not know how many because, for some reason, the Government do not seem to say, but I hope that, at least on this point, the Minister will be able to enlighten us today.

The last three years since the referendum have been a time of fear and uncertainty for EU citizens resident in the UK and British citizens resident in the EU. That fear and uncertainty have been compounded by the increasing prospect of a no-deal Brexit and the repeated failure of Brexit politicians to honour the pledges they have made. For those affected, this is not a debate about some abstract principle; it is a debate about their lives and their futures, whether they will retain the right to remain in the country in which they have chosen to live, whether their loved ones will have the right to settle with them if in future they should return home, whether their pensions will continue to be uprated and whether they can continue to access healthcare and remain in employment. It is about all the things that are the very essence of a person’s sense of security. That security should never be reliant solely on the whim of an ever-changing cadre of Ministers increasingly cavalier about the impact of a no-deal Brexit on the rights of millions of British and other EU citizens. This Bill cannot solve all those difficulties—that can be done only by remaining in the EU—but, imperfect though the Bill inevitably is, it will provide a greater sense of security and certainty to the EU citizens who have contributed so much to our country. With the co-operation of Ministers, it could be strengthened further to address the concerns of British citizens in the EU about family reunification rights and the uprating of pensions in the event of a no-deal Brexit.

In October 2017, speaking to the Polish community, Boris Johnson, the man we are told will be our Prime Minister in a matter of days, had this to say:

“I have only one message for you all tonight: you are loved, you are welcome, your rights will be protected whatever happens”.


Since then, as on so many things, his actions have not lived up to his rhetoric. This Bill will offer him the opportunity to demonstrate, if he becomes Prime Minister, that he is capable of marrying his actions to his words and finally honouring the definitive and categorical pledge he made to EU citizens more than three years ago. I beg to move.

--- Later in debate ---

[Lord Oates]

My Lords, I thank all noble Lords for having taken part in this debate and for the long-standing commitment of many of them. As well as my noble friends on these Benches, I particularly note the commitment that has been shown on the issue of EU citizens’ rights by the noble Lords, Lord Cormack and Lord Kerr, the noble Baroness, Lady Altmann, and the right reverend Prelate the Bishop of Rochester. I am also grateful for the support of the Labour Front Bench. In previous debates when I have spoken on this issue, many Labour Peers have also been passionate in their support.

I share the deep regret and sense of shame expressed by many noble Lords that the Government have allowed the issue of EU citizens’ rights to suffer such uncertainty since the referendum. I thank the Minister for the courtesy of her response but, I am afraid, not for the complacency of it. Perhaps I may tackle some of the points that she raised.

First, the Minister made the point that in some ways the residency criteria in my Bill are more restrictive than under the current settled status scheme. To that, I say that this Bill was constructed two years ago. In Committee I will be very happy to work with the Government while they fast-track the Bill to ensure that those criteria are reflected as widely as possible. However, the real point of the Bill and the real need for it were set out by the noble Lord, Lord Kerr. It is—we should be careful about using this word—a backstop or guarantee to underpin people’s rights and ensure that their status in this country is based on eligibility, regardless of the cut-off date.

The Minister also tackled the question of physical proof of status—an issue raised by many EU citizens as a matter of concern. She said that digital status is more secure. Of course, there is no reason at all why there cannot be digital status with an accompanying document. The Government really should think about that, particularly in the context of groups of people who are less comfortable in the digital sphere and will be very nervous about it.

The Minister gave us reassurances that it is not the Government’s intention to round up children or anybody else. Of course, I take that point and her reassurance, but who knows who the Government will be in a week, a month or a year? The history of Windrush and so on does not give anybody any confidence that people will not be mistreated.

Sometimes it seems that the Government have no idea at all of the devastating personal impact that their failure to uphold the pledge to automatically grant indefinite leave to remain has had on people’s lives. I detected that a bit in the Minister’s response, although that is no personal slight, as I am sure the Government provided that response. For example, just today I heard the example of an 80 year-old woman—an EU citizen who came to this country in 1964, has lived here ever since, brought up her family here and contributed to her local community. She was in floods of tears this weekend as she filled in an application form, without which her presence in the country that is her home will become unlawful at the stroke of midnight in less than two years’ time. That scene will be played out in thousands of homes across the country. It brings shame on all of us, but it is something we can and should do something about.

I conclude by again quoting from our most likely next Prime Minister. Speaking on BBC Radio 4’s “World at One” programme just last month, he said:

“I think what we should do is take the provisions on citizenship, take the offer that we made to the 3.2 million EU citizens in our country … do it of our own accord, pass it through Parliament”.


Given this implicit endorsement by the future Prime Minister, I trust that the Minister will be able to revise her position and join me in commending my Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.