European Union (Withdrawal Agreement) Bill

Lord Oates Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

Moved by

[Lord Oates]

2: Clause 7, leave out Clause 7 and insert the following new Clause—
“Rights related to residence
(1) This section applies to—(a) persons within the personal scope of the withdrawal agreement (defined in Article 10) having the right to reside in the United Kingdom;(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) The Secretary of State may by regulations make provision to extend the scope of persons 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).(3) A person has settled status in the United Kingdom if that person meets the criteria set out in ‘Eligibility for indefinite leave to enter or remain’ in Immigration Rules Appendix EU, or any amendment of these rules according to subsection (2).(4) A person with settled status holds indefinite leave to enter or remain and has the rights provided by the withdrawal agreement for those holding permanent residence as defined in Article 15 of the agreement, even if that person is not in employment, has not been in employment or has no sufficient resources or comprehensive sickness insurance. (5) A person has pre-settled status in the United Kingdom if that person meets the eligibility requirements set out in ‘Eligibility for limited leave to enter or remain’ in residence scheme immigration rules (see section 17), or any amendment of these rules according to subsection (2).(6) A person who has pre-settled status has leave to enter or remain and has the rights provided by the withdrawal agreement for those holding permanent residence as defined in Article 15 of the withdrawal agreement, even if that person is not in employment, has not been in employment or has no sufficient resources or comprehensive sickness insurance, except for the right to reside indefinitely in the United Kingdom and subject to the limitations set out in Article 23(2) of the withdrawal agreement.(7) The Secretary of State must by regulations made by statutory instrument 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.(8) The regulations adopted under subsection (11) must apply to those defined in subsections (1)(a) and (1)(b).(9) A person holding pre-settled or settled status does not lose the right to reside for not having registered that settled or pre-settled status.(10) A person who has settled or pre-settled status who has not registered their settled or pre-settled status by 30 June 2021 or any later date decided by the Secretary of State may register at any time after that date under the same conditions as those registering prior to that date.(11) After 30 June 2021 or any later date decided by the Secretary of State, a person or their agent may require proof of registration of settled or pre-settled status under conditions prescribed by the Secretary of State in regulations made by statutory instrument, subject to subsections (12) to (14).(12) Any person or their agent who is allowed under subsection (11) to require proof of registration has discretion to establish by way of other means than proof of registration that the eligibility requirements for pre-settled or settled status under the provisions of this Act have been met.(13) When a person within the scope of this section is requested to provide proof of registration of settled or pre-settled status as a condition to retain social security benefits, housing assistance, access to public services or entitlements under a private contract, that person shall be given a reasonable period of at least three months to initiate the registration procedure set out in this section if that person has not already registered.(14) During the reasonable period under subsection (13), and subsequently on the provision of proof of commencement of the registration procedure and until a final decision on registration on which no further administrative or judicial recourse is possible, a person cannot be deprived of existing social security benefits, housing assistance, access to public services or private contract entitlements on the grounds of not having proof of registration.(15) A statutory instrument containing regulations under this section may not be made unless a draft instrument has been laid before and approved by a resolution of each House of Parliament.” Member’s explanatory statement
This amendment creates a declaratory registration that provides incentives for registration while at the same avoiding EU citizens becoming illegally resident if not registering by the deadline. It ensures EU citizens receive physical proof of registration. It consolidates both the current eligibility criteria of the EU Settlement Scheme immigration rules, and the rights of those eligible under the Scheme, into primary legislation.

[Lord Oates (LD)]

My Lords, in moving Amendment 2 I shall speak also to Amendment 3, in my name and those of the noble Lords, Lord Kerslake and Lord McNicol of West Kilbride, The noble Lord, Lord Kerslake, gives his apologies that he cannot be in the Chamber because he has been called away to another meeting.

Amendment 2 seeks to create a declaratory registration system to replace the existing application-based system. Its intention is, first, to continue to provide incentives for registration but to avoid making EU citizens who do not register by the deadline immediately and by definition illegal. Secondly, it seeks to ensure that EU citizens can receive physical proof of registration, which is a concern that I know has been expressed to many Members of your Lordships’ House, and indeed has been the subject of representations made by EU sub-committees.

Thirdly, it would consolidate in primary legislation both the current eligibility criteria of the EU settlement scheme Immigration Rules and the rights of those who are eligible under the scheme. Amendment 3 tries to do similar things: that is, it would establish the declaratory principle and make provision for physical proof, but it would not seek to put into primary legislation the rules and rights under the scheme.

The aim of Amendment 2—that of seeking to put these issues into primary legislation—is to be helpful to the Government by ensuring the categorical commitment made to EU citizens, referred to by my noble friend Lord Greaves, during the referendum campaign by the current Prime Minister, the current Home Secretary and the current Chancellor of the Duchy of Lancaster, to guarantee that those rights would be automatic and that EU citizens would be treated no less favourably than they are at present. The current scheme does not honour that commitment. 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 of 30 June 2021. In fact, the only thing that is automatic about the scheme is that, after midnight on that date, any person who has not applied will be criminalised. They will be deemed to be unlawfully in the United Kingdom whether or not they are otherwise eligible for permanent residence under the scheme, and they will therefore be subject to deportation.

I echo the comments of my noble friend and others: the Home Office is clearly making strenuous efforts in this regard. But we know that, inevitably and despite its best efforts, it will not be able to reach and grant settled status to every one of the 3.6 million—we do not know the exact number—EU, EEA and Swiss citizens. Tens or even hundreds of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 18 months’ time. Inevitably, those most at risk will be the most vulnerable: young people in care, the elderly and the marginalised.

The Government’s argument for a cut-off date seems to be that it will help avoid a repeat of the injustice inflicted by the Home Office in the Windrush scandal. But it will do nothing of the sort. It will just criminalise the latter-day Windrush people. The solution of the Home Office to the problem of Windrush seems to be simply to ensure that it will not be acting unlawfully by removing eligible people, as it was found to be in the case of the Windrush victims. It is a bizarre form of protection.

Another issue with the settled status scheme is that, unlike the indefinite leave to remain scheme, where you have a stamp in your passport, 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, which represents EU citizens in the UK, has highlighted the many difficulties and concerns that this inevitably will cause for EU citizens. Interactions with landlords, airline staff and other officials obliged to check immigration status will become fraught with anxiety and will be dependent on the fragility of an internet connection or the resilience of a government IT system.

Finally, and 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. But, as we know, Ministers come and go. We know already that the commitments—categorical, without any room for confusion or misunderstanding—that were issued by the Home Secretary and the Prime Minister have not been honoured. So why should EU citizens in this country have faith that this system will not be changed at a later date?

Beyond the principles of the settled status scheme, there are also lots of concerns about how it is applied: who is actually getting settled status and who is instead getting presettled status. In summing up at Second Reading last night, the Minister, the noble and learned Lord, Lord Keen, said that

“presettled status is a pathway to settled status,”—[Official Report, 13/1/20; col. 552.]

as if it did not matter which you got—but it does. It matters very much because the rights under each are different.

We are not seeking to change anything about the rights of citizens under the EU settled status scheme, or about eligibility. We are asking, first, that the rights are placed in primary legislation to give the reassurance that EU citizens need and want, so that they can feel secure and settled in their status in this country. Secondly, we ask that their request for a means of having physical proof is answered. It may be that not everybody wants that, but there should be an option for EU citizens to have it. Lastly, we ask for a shift to a declaratory system in which eligibility is the basis on which one has rights, not the application system. As the amendment sets out, it is perfectly possible to continue to give incentives to registration while establishing a declaratory system that will ensure that a whole load of vulnerable people are not criminalised when the registration date passes in 2021. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, by preference I do my tax online and get an email confirmation. If I book a train ticket, it is on my phone. In fact I rarely take my credit or debit card out any more; everything is on my phone. However, if the noble Lord is honestly suggesting screenshotting your settled-status proof online and then printing it off, I suggest that that might be forgeable.

[Lord Oates]

My Lords, I am grateful to all noble Lords who have taken part in this debate. This discussion, and even the confusion from the Dispatch Box about some of the rules, demonstrates the issues that are going to be faced by EU citizens if there is not even clarity in this House.

I want to pick up on a number of points. The noble Lord, Lord Hamilton, talked about reciprocity. As the Minister has explained, Part 2 of the withdrawal agreement, on citizens’ rights, applies equally to UK citizens in the European Union. I was a little astonished because I thought I heard the noble Lord arguing for free movement. He is notably not a pro-European so I am a little baffled by that. I can only guess that because, I understand, he has Liberal politicians in his ancestry, perhaps he has a genetic disposition to Europhilia that he cannot escape from.

A more serious point is this: the current Prime Minister and Home Secretary made a categorical, unequivocal commitment to European Union citizens. It was not based on whether the EU did this or that; it was a categorical statement. The noble Lord, who sits on the Conservative Benches, seems to be saying, “It’s absolutely fine—we should use EU citizens as bargaining chips”. I am glad that the Government have not done that; it is absolutely the wrong approach. All the bodies representing UK citizens in the EU that have been in contact with me and, I am sure, many other noble Lords in this House have always made the point throughout these negotiations that Britain should act early and unilaterally. I am glad that we did eventually but goodness me, it took a long time.

The Minister said that it was a very noble decision of the former Home Secretary to waive fees on this scheme. I find that an astonishing statement. EU citizens had rights in this country that they were going to lose as the result of a referendum in which they had no say whatever, and then we were planning to charge them for the privilege of retaining any rights. To call it “noble” to not charge them I find astonishing.

Physical proof has been discussed at length. The Minister said that two systems would confuse people. It is not two systems—it is one system that has a digital output and a physical one. That is pretty common and it is not confusing. While the Minister says we should not have these two systems because they are confusing, she then tells us that we do have two systems: the European Union settled status scheme and the permanent residence scheme. If we want to avoid confusion, perhaps we should address that point.

The noble Lord, Lord Warner, made the important point that we have to live in the real world of how these things work. I know this from experience because my partner is not a citizen of the UK—not a citizen of the EU, I should say—but a citizen of the United States. He has in his passport his permanent residence stamp that he can show to people. That is quite a simple thing and I am sure that we could apply such a system as well. Doubtless, it is also on an official computer system somewhere—I hope so.