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

Lord Rosser Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, in replying to this and the other amendment on no recourse to public funds in Committee, the Minister, the noble Baroness, Lady Williams, said, according to Hansard, that Home Office analysts were looking at the data to determine what figures could be “reduced”. I would like to think that that might have been about reducing the numbers of people with no recourse, but I suspect that it was a misprint for “produced”. The noble Baroness is nodding.

Almost all the speakers have lit on the issue of lack of data. It occurs to me that a lack of data indicates something of a shortfall in interest among the policy makers on the impact of the policy that they are making. Like much that relates to the immigration system, this amendment is about humanity and common sense: common sense because of the important public health argument about ensuring that people are not prone to disease that can be prevented and that children are fed well enough to be educated and to grow into good citizens, and humanity for obvious reasons.

Hard cases are not to be excluded when we think about policy; they have to be considered to bring attention to bad law. I do not think that the taxpayer is a single cohesive figure. Taxpayers have a wide range of views and there are quite a lot among us who would like to see our taxes spent differently and better. If that means more tax being raised, that is a price that we understand we have to pay.

[Lord Rosser (Lab) [V]]

My Lords, Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle, would prevent regulations being made under Clause 4 until the Secretary of State had provided legislative measures to ensure that EEA and Swiss nationals in the UK are not subject to no recourse to public funds. This includes repealing or amending relevant no recourse to public funds provisions in the Immigration Act 1971 and the Immigration and Asylum Act 1999. I assume this means any regulations under Clause 4 and not just regulations relating to no recourse to public funds.

We had an amendment in Committee that would have had the effect of not applying the no recourse to public funds rules during the current Covid-19 pandemic, and then until such time as Parliament decides. To keep the amendment within the scope of the Bill it applied only to EEA and Swiss nationals. We have been calling since April for no recourse to public funds to be suspended for the duration of the coronavirus crisis. We asked the Government to lift no recourse to public funds as a condition on a person’s migration status to ensure that nobody was left behind in the public health effort undertaken in the fight against the coronavirus. In June, the Home Affairs and Work and Pensions Select Committees recommended that the Government should “immediately suspend NRPF” for the duration of the pandemic on public health grounds. The Work and Pensions Committee said:

“As a result of the no recourse to public funds condition, many hardworking and law-abiding people are being left without a social safety net and at risk of destitution and homelessness.”


Our amendment found no favour with the Government —as, indeed, may prove to be the case with every amendment on this Bill, with the exception of perhaps just one. As set out in Hansard, I asked—as did my noble friend Lady Lister—for some numbers in relation to no recourse to public funds. The Minister said they were not part of published statistics, but that Home Office analysts were looking at the data to determine what figures could be produced. As has been pointed out by the noble Baroness, Lady Hamwee, it said “reduced” in Hansard, but it has now been confirmed that it should have said “produced”. Whatever the situation, it would be very helpful if the Minister could say exactly when the Home Office analysts expect to complete the exercise that they are undertaking in relation to figures, information and data available.

This amendment goes further than our amendment in Committee on no longer applying NRPF, in that it does not relate only to the period of the pandemic and does not leave it for Parliament to decide if and when its terms are no longer to apply. Like the noble Baroness, I await the Government’s response.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Baroness, Lady Bennett of Manor Castle, and all other noble Lords for their contribution to this debate. I completely understand the concern that they have expressed for the welfare of people with no recourse to public funds, especially during the current pandemic. As the noble Baroness, Lady Hamwee, says, it is a matter, first and foremost, of humanity, but the Government cannot accept this amendment.

As noble Lords will be aware, the Government’s general expectation is that people immigrating to the United Kingdom should be able to maintain and accommodate themselves without recourse to public funds. That reflects the importance of maintaining the confidence of the public in general that immigration overall brings benefits to our country, as it certainly does, rather than costs to the public purse. Those restrictions, which have been in place under Governments of all political hues for many years, are an important plank of immigration policy designed to assure people that public funds are being protected for those who are normally or habitually resident in the UK, reflecting the strength of their connection to the United Kingdom. This includes those with indefinite leave to remain, refugees, protected persons and people granted discretionary leave.

I acknowledge the level of concern that has been expressed today, and, indeed, in Committee, particularly regarding the deprivation of children. The noble Baroness, Lady Lister of Burtersett, asked a number of questions about children. She generously suggested that I could write to her on the timetable for the review and other points, and I am very happy to commit to do that so she can have the fullest possible answer. I will certainly ensure that the point she raises about free school meals has been heard by the Department for Education. I am sure it has been but I will take that forward and make sure it is reinforced. On free school meals generally, they are not listed as public funds under immigration legislation; they are available to the most disadvantaged pupils, including asylum-seeking children whose parents or guardians receive support under Part 6 of the Immigration and Asylum Act. I hope that that gives her some reassurance in the meantime, but I will certainly take the point forward, as she asks.

The noble Baroness will not be surprised that I cannot comment on leaks, so I shall not, whatever their suspected provenance. I can point her to the words of my right honourable friend the Home Secretary, both in her speech to the Conservative Party conference over this weekend—which I am glad the noble Baroness noted was marked by its compassion—and also in a number of Statements she has made in another place about the Wendy Williams review, committing herself and the Home Office to taking on board all the recommendations that Wendy Williams had made and shifting the culture of the Home Office. I would direct the noble Baroness to those words for the view of the Home Office.

Regarding children more generally, where a child is in need, local authorities are already required to provide support through Section 17 of the Children Act 1989. Recognising the potential financial impact on local authorities at the moment, the Government have allocated more than £4.3 billion to those in England, and additional funding under the Barnett formula to the devolved Administrations, to help them respond to the pressures of Covid-19 across all the services they deliver, including services helping the most vulnerable people. The funding will mean that councils can continue to provide vital services, including adult social care and children’s services. To ensure that children who have been affected by the no recourse to public funds condition are protected from destitution, as we pointed out in Committee, people with leave under the family and human rights routes can apply to have this condition lifted through a change of conditions application. Change of condition decisions are being prioritised, at this difficult time, and dealt with compassionately. The change of conditions team in UK Visas and Immigration is working through applications as quickly as possible and is exercising flexibility when seeking additional evidence, which is often needed, to help reduce unnecessary delays. Additional staff have also been trained to work on these cases in response to the increased demand and urgency during the pandemic.

The noble Lord, Lord Rosser, and the noble Baroness, Lady Hamwee, asked about the statistics that would be produced—not “reduced”—on this. The Home Office chief statistician recently replied to a letter from the UK Statistics Authority on the subject. He made clear in that letter why it is not practical for the Home Office to produce an estimate of the total population subject to no recourse to public funds at any one time. However, the Home Office has acknowledged that there is a clear public interest in publishing the number of applications to have the restriction lifted by making a change of conditions application. I am pleased to say that these data have now been published, and will be released as part of the regular migration transparency data henceforth.

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[Lord Rosser (Lab) [V]]

The grace period regulations limit a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period. This must mean that such citizens who are not exercising their treaty rights fall outside the protection of having a legal basis to live in the UK. This appears to cover a potentially significant number of people, including those who have not held comprehensive sickness insurance.

Amendment 27A ensures EU nationals cannot have an application denied for citizenship, settled status, or pre-settled status on the basis they have not held comprehensive sickness insurance. It is clear from the debate there is considerable confusion—which I share—about the actual position. Surely, any doubts, confusion or uncertainty would be removed by the Government accepting this amendment or returning with their own amendment at Third Reading. That would help clarify the situation.

I conclude by simply saying this, as I do not want to repeat all the valid points that have been made. If Government will not do that, could the Minister spell out the circumstances in which an EU national would have an application denied for citizenship, settled status or pre-settled status on the basis they have not held comprehensive sickness insurance?

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Hamwee, who has tabled Amendment 27A. I hope I can provide clarification.

The new clause has three main purposes. First, it seeks reassurance that comprehensive sickness insurance is not, nor will be in future, an eligibility criterion for applications to the EU settlement scheme. Secondly, it seeks to provide that if someone is eligible to apply to the scheme, their previous residence should be deemed lawful, whether or not that was the case under the EEA regulations. Thirdly, the new clause seeks to remove the lawful residence requirement from British citizenship applications by those who hold settled status under the EU settlement scheme.

Let me address the noble Baroness’s concern about comprehensive sickness insurance, which has been raised several times during consideration of the Bill. Subsections (3) and (4) of her proposed new clause concern eligibility to apply to the EU settlement scheme. I can assure the noble Baroness that currently, there is no requirement for comprehensive sickness insurance or previous lawful residence under the EEA regulations in order to be eligible to apply under the scheme. This will not change for applications made after the transition period, nor after the grace period. I can reassure the House that an application made before or after the deadline of 30 June 2021 will not be refused for failure to hold comprehensive sickness insurance. Accordingly, the amendment is not necessary.

I turn to proposed new subsection (2), which seeks to provide that the previous residence of anyone who is eligible to apply to the EU settlement scheme by the deadline of next June will be deemed to have been lawful whether or not it in fact was. In doing so, the intention is to support applications for citizenship, which I will come to shortly. However, the effect of this amendment is wider. It would create new residence rights for those who do not have them at the end of the transition period, as they are not complying with free movement law and have yet to apply to the EU settlement scheme. Those who are currently here without residence rights will continue to have no residence rights until they apply to the EU settlement scheme; that is why we are encouraging them to apply to the scheme.

In line with the withdrawal agreement, the Government are using secondary legislation under the European Union (Withdrawal Agreement) Act 2020—the so-called “grace period SI”—to save the existing rights of those EEA citizens and their family members who are lawfully resident in the UK at the end of the transition period under 2016 EEA regulations. The noble Baroness, Lady Ludford, asked me to set out the existing rights; they are pre-settled or, indeed, settled status. This means that an EEA citizen, or their family member, who is resident in the UK at the end of the transition period but is not exercising free movement rights will still be able to apply to the EU settlement scheme by the deadline of 30 June next year. However, they will not have any residence rights under free movement law protected during the grace period. This is for the simple reason that they do not possess these rights at the end of the transition period. This reflects the current situation, as set out in the free movement directive and the EEA regulations.

The noble Baroness’s amendment seeks to create new EU rights of residence beyond those saved by the grace period SI once free movement has ended. That cannot be right, nor accepted by the Government. Having an EU “right to reside” provides other rights beyond the right to stay in the UK, as it can confer access to social security benefits. I am sure noble Lords would agree that, at this juncture, after we have left the EU, it would not be appropriate to widen EEA citizens’ benefit eligibility any further than those groups who are already entitled to it.

This brings me to the final limb of the new clause, which I think is probably its main objective, concerning how EEA and Swiss citizens who hold settled status might then proceed to naturalise and become British citizens. The noble Baroness will be aware that the power to determine naturalisation applications from all migrants—not just EEA and Swiss citizens—is set out in the British Nationality Act 1981. Under Section 6(1) of the Act, an applicant is required to show that they have sufficient residential ties here. For example, they must have resided here lawfully for at least five years and they must no longer be subject to any immigration time restrictions. Proposed new subsection (1) would require any residence before the granting of settled status to be treated as lawful, regardless of whether it actually was or the circumstances under which it occurred. That cannot be right, and I do not consider it unreasonable to ask anyone wishing to become British to have resided here lawfully.

Amendment 27A seeks to treat those with settled status under the EU settlement scheme differently from other EEA and Swiss citizens, and also non-EEA citizens. I believe the noble Baroness is most concerned about those who—as the noble Baroness, Lady Ludford, outlined—are here as students or are self-sufficient. This is because free movement rules require them to hold comprehensive sickness insurance after their initial three months of residence in order to be lawfully resident. This is not a new issue. Had a student or self-sufficient person previously made an application for permanent residence documentation without holding CSI, they would have been refused.

The noble Baroness may be aware that, even where CSI has not been held by a student or self-sufficient person, it does not mean that a naturalisation application must be refused. The British Nationality Act permits the application of discretion to this requirement in the special circumstances of a particular case. Caseworkers will therefore continue to examine each application to understand why the individual did not comply with the EEA regulations, as well as any reasons which can nevertheless allow an application to be granted. This is already set out in published guidance for decision-makers. However, it is right that we assess on an individual basis, rather than having a general rule to overlook any non-compliance.

The noble Baroness, Lady Whitaker, made a point which we went over in detail yesterday, about people who are applying either to the EU settlement scheme or for citizenship, which are two different things. There are a lot of voluntary organisations to help people who might need assistance through this process, but naturalisation as a British citizen is not part of the EU settlement scheme; nor is it covered by the withdrawal agreement. We welcome people who make the personal choice to become British citizens, but there is no need for any new arrangements because of our leaving the EU. The existing system already applies equally and fairly to all applicants. I hope that I have given the noble Baroness the assurance that she sought and that she is happy to withdraw her amendment.

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[Lord Rosser (Lab) [V]]

I congratulate the noble Lord, Lord Pannick, on having persuaded the Government to introduce their Amendment 32A, in the light of his comments on this in Committee, and on tabling Amendment 32, to which I have added my name.

The similar concern over wording that resulted in Amendment 33 has not been addressed by the Government. Amendment 33 would remove paragraph 6 of Schedule 1. As noble Lords know, paragraph 6, like paragraph 4(2), is broadly drafted. It provides that any EU-derived rights, powers, et cetera, that are inconsistent with or “capable of affecting” the Immigration Acts or functions cease to be recognised.

The Delegated Powers and Regulatory Reform Committee and the Constitution Committee have both expressed their strong concerns about the sweeping powers that the Government are seeking to take under the Bill—powers that will not be subject to any effective parliamentary scrutiny. In Committee, in response to the noble Lord, Lord Pannick, the Minister said:

“I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.”—[Official Report, 7/9/20; col. 580.]


Why then are the Government not also prepared to lay out the law and provide that certainty over the EU-derived rights, powers, et cetera, that are being referred to in paragraph 6 of Schedule 1? I hope the Minister will answer that point in her response.

One has already been mentioned as a possibility. Bearing in mind that, in Committee, the Minister also said

“I note that the drafting of paragraph 6(1) of Schedule 1 ensures that nothing is missed that might mean free movement was only partially repealed”,—[Official Report, 7/9/20; col. 576.]


that could mean that the Government are not prepared to move on paragraph 6(1) because they do not rate their ability to ensure that the Bill says all it needs to say to ensure that free movement is fully repealed. To cover up for their anticipated deficiencies, the Government take these powers to act without full parliamentary scrutiny and leave people in a situation where the legislation, in paragraph 6(1) of Schedule 1, does not enable them to identify the exact nature of their obligations and rights. If that is the motive for not moving on paragraph 6(1) of Schedule 1, in the way that the Government have on paragraph 4(2), one can say only that that is not the purpose for which use of these powers was originally intended. No doubt we will hear from the Minister why the Government have not moved on paragraph 6(1) of Schedule 1 or at least produced their own amendment in response to Amendment 33 of the noble Lord, Lord Pannick.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Lord, Lord Pannick, and other noble Lords who have spoken to Amendments 32 and 33. I was grateful for the opportunity to meet the noble Lord and draft Amendment 32A as a result.

I understand why noble Lords find these provisions difficult to follow. They are, however, essential in repealing EU free movement. Paragraphs 4 and 6 of Schedule 1 disapply elements of retained EU law, where they are inconsistent with or affect the interpretation, application or operation of the Immigration Acts. “The Immigration Acts” is a commonly used legislative shorthand for the UK’s domestic immigration legislation. Most importantly, it includes the Immigration Act 1971, which sets out the requirement for non-British and non-Irish citizens to have leave to enter or remain. “The Immigration Acts” is defined in Section 61 of the UK Borders Act 2007, and the Bill, once enacted, will be added to that definition by Clause 3.

These phrases therefore clarify that the retained EU law in question does not provide a back-door route to enter or reside in the UK outside of the system of leave to enter and remain, once the main free movement legislation is repealed. That system is made up partly of Immigration Rules made under the 1971 Act. That is why the words

“by or under the Immigration Acts”

feature in these paragraphs.