Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020

Debate between Neil Coyle and Kevin Foster

Tuesday 8th December 2020 General Committees

[Kevin Foster]

I thank members of the Committee for the debate we have had and for the observations they have made.

I will start with the comments of my hon. Friend the Member for South Leicestershire and then move on to the shadow Front Benchers. To be clear, we have said that we will publish a non-exhaustive list of examples. In each instance, a decision-maker should be able to use discretion if it is fair in the circumstances to do so. I have given examples, such as those who were under 18 on deadline day and their parent or local council, who had a duty to apply for them, did not. As I reassured my hon. Friend, when they hit the age of majority, which could be in 10, 13 or perhaps even 14 or 15 years’ time, and realise that there was no application, we would see it as reasonable for them to have assumed that their parent or guardian had done it.

Again, other circumstances include ill health or mental incapacity to make an application. I reassure Members that we will look at situations where someone has clearly received faulty or negligent legal advice in relation to their status. Generally, we will ensure that decision-makers are able to look at the circumstances and see whether there are reasonable grounds, rather than having a list and saying, “If you don’t meet that list, you can’t apply.”

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

If that extra discretion, and the complexity and anomalies that my hon. Friend the Member for Halifax mentioned, were being added to a functioning, gold-plated, brilliant system, Members might be assured, but it is being added to a dysfunctional Home Office that is failing many of our constituents week in, week out through delays and erroneous decisions that leave people destitute.

[Kevin Foster]

I am sorry to hear that description of the EUSS that has already had 4.26 million applications. I give the hon. Gentleman a tip that it is about to hit another milestone in numbers of applications. We think that it is working fairly well. For most people, making an application is a 15-minute job at home, using a smartphone.

We want to take the lessons from how the EUSS has worked into the wider immigration system. Hon. Members may not have picked this up, but in the skilled worker route, an EEA national can use their smart phone from home to apply rather than making a trip to a visa application centre. Building on the experience of the EUSS, we have been able to provide secure identity checks from home. For obvious reasons, I will not go into all the details of what we do to verify identity, but this has been a real success and I am sorry to hear that description of it.

To reassure my hon. Friend the Member for South Leicestershire, we will have a range of circumstances listed along non-exhaustive lines. The longer the delay, the more there is a chance that someone knows that they do not have entitlement under the withdrawal agreement, but is claiming that they do. We want decision-makers to have flexibility and to treat this as faces, not cases. There will be a list, but it is not exhaustive.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East always makes well thought-through contributions, even though we have fundamental policy disagreements on this and a range of other issues. I will provide a detailed written response to him and the Committee, but I shall deal with a couple of points now. He mentioned two EEA nationals. Let us assume that they are in England, because as he will know the right to rent checks do not apply outside England. If they were renting before 30 June a landlord is perfectly entitled to accept an EEA passport or national identity card as proof that they meet the compliant environment checks. If anyone has concerns, they can regularise and make their application via the EUSS straight after. We will not be asking landlords to make retrospective checks if they have accepted an EEA passport or identity card, just as we would not expect employers on 1 July suddenly to check that every member of their staff has EUSS status. Up until that point, landlords and employers cannot insist on it, provided that someone has presented an appropriate document. They can, of course, use it and we are finding that it is very popular. Between April and June there were 400,000 checks under the new improved service, 100,000 of which were to look at EUSS status. Those who have it are already finding it a handy and convenient way of meeting the checks.

Draft Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 Draft Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 Draft Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020

Debate between Neil Coyle and Kevin Foster

Wednesday 14th October 2020 General Committees

[Kevin Foster]

The simple answer is yes. As my hon. Friend says, our main focus is on ensuring that people register before the deadline. We recently confirmed grant funding for 72 organisations, which will receive support to assist vulnerable people who need extra help to apply. We will, as I have said before, take a generous approach to what reasonable grounds are, and we will publish illustrative, not exhaustive, guidance. We are keen to take into consideration whether the individual circumstances in which a late application is made are reasonable.

I regularly cite the relevant example of a child in the care of a local authority that has the duty to make the application on their behalf. If the local authority fails to do that, and the person becomes an adult and realises that the application was not made for them, that would be seen as an eminently reasonable ground, because they were entitled to believe that the local authority would have done its duty and made the application on their behalf.

Moreover, there is no set time period for reasonable grounds. For example, in the case of a looked-after child, the Home Office accepts that it could be some time before they run into the problem. For the sake of argument, an eight-year-old child will become an adult in 10 years’ time and might discover when they go for their first job that the local council had not made the application 10 years ago. That would still be seen as a reasonable ground for a late application, because the child would not have known about it.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

I commend the campaign by the hon. Member for South Leicestershire. The Government have provided some £17 million to grant-based organisations to identify those who are more vulnerable and to reach those affected. How many people have been reached so far? And how many others who need this safeguard and protection do the Government think have not been reached?

[Kevin Foster]

It is impossible to give an exact number because we will have free movement until 31 December. People can arrive in the United Kingdom tomorrow and gain free movement rights and eligibility to apply to the European settlement scheme. We have been monitoring performance with the grant-funding organisations. Performance has been strong. I visited one in Southwark recently. I was pleased to see the work it was doing with the Spanish-speaking community in Southwark.

Overall, the scheme has had just over 4 million applications. In the early part of next month we will publish the next set of numbers up to the end of September, which will break it down in more detail. The grant-funding organisations have been doing quality work. We are loth to go purely on numbers because some of them work with people with incredibly chaotic lifestyles. For example, one in Scotland works with the homeless. Doing it purely by numbers would not necessarily reflect the quality of the work they have done in supporting the vulnerable and ensuring that they have an EU settlement scheme application.

As has been touched on, we will have an illustrative list of reasonable grounds as to why an application might be made late. We will judge each individual case. In some cases, there will not be a time limit. We are keen that each circumstance will be looked at to see whether there is a reasonable ground. My example of the child in care will probably be among those cases with the longest periods, because it would be reasonable for them not to have realised that the council had not made the application on their behalf. If they are eight years old today, it could be 10 years before they engage in the issue as an adult and they may need to present certain things under the compliance environment.

Finally, I have sent around a letter—I apologise to Opposition Members for it coming not long before the Committee—following a constructive conversation yesterday with a number of Members of both Houses of Parliament about the impact of some provisions on those who are here but not exercising a free movement right. We have extended to them the ability to apply to the EUSS by making the criteria under our domestic law residence and not exercising a free movement right regulation. We think it is right to be generous because some of these people have been in the UK for many decades, so that is the right thing to do rather than asking people to prove exactly which free movement right they are exercising. We had queries and have issued a letter setting out the Government’s position on the grace period, pending them applying to the European settlement scheme.

I turn to the draft Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020, which protect the rights of EEA citizens who have begun frontier working in the United Kingdom by 31 December 2020 and wish to continue to do so. A frontier worker is a person resident outside the UK who comes to the UK for work. They continue to have the right to come here to work once freedom of movement has ended, for as long as they continue to be a frontier worker.

The regulations establish a frontier worker permit scheme to allow protected frontier workers to apply for a permit confirming their rights. Applications for frontier worker permits will be made online and will be simple, streamlined and, like other routes, free of charge. From 1 July 2021—the end of the grace period—frontier workers will be required to hold a valid frontier worker permit as evidence of their right to enter the UK on that basis.

The regulations set out the circumstances in which a protected frontier worker’s rights can be restricted and a permit can be refused or revoked, in accordance with the withdrawal agreement. They also provide protected frontier workers with statutory rights of appeal against decisions that restrict their rights, as well as a right of administrative review against certain decisions concerning eligibility. For the benefit of those Committee members who are wondering, I can confirm that Irish nationals who are in effect frontier working across the Irish border do not need to go through the process, given the status of Irish nationals under UK immigration law and their ability to live and work in the UK. The vast majority of frontier workers across the border in Ireland are Irish citizens, and that is the status they need to have. They would not be required to apply to that process.

I turn to the draft Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020. The regulations give effect to the UK’s obligations under the withdrawal agreements that require the UK to consider conduct committed before the end of the transition period in accordance with the current EU thresholds when restricting the rights to enter and reside of a person protected by those agreements. These protections extend to people protected by the UK’s domestic implementation of those agreements.

Now that we have left the EU, it is right and important that parity is created for all foreign nationals in the United Kingdom. Currently, the test for whether a third-country national is liable to deportation is stricter and more specific than that for EEA citizens, which means it is easier to deport third-country nationals who have committed criminal offences. Similar distinctions exist for other types of restriction decisions—for example, a person’s exclusion from the United Kingdom.

We are required by the agreements to apply the EU thresholds of public policy, public security and public health, as set out in the EEA regulations, when assessing conduct committed before the end of the transition period, for the purpose of restricting a person’s right to enter or reside in the UK. The thresholds will apply to those protected by the agreements or the UK’s domestic implementation of those agreements, including those with status under the EU settlement scheme; those with an EU settlement scheme family permit; those who have a right to enter the UK for the purposes of a continuing course of healthcare; those who have entered the UK as a Swiss service provider; and those who are frontier workers. Conduct committed after the end of the transition period will be assessed according to the same criminality thresholds that apply to non-EEA nationals today, consistent with the agreements and creating a fair immigration system for all.

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill contains provisions to revoke the EEA regulations at the end of the transition period, after which these regulations will come into force. To comply with our obligations under the withdrawal agreement, we need to save and modify relevant provisions in the EEA regulations in so far as they apply to deportation decisions. That will allow us to apply the current EU law thresholds to conduct committed before the end of the transition period. The regulations also provide that deportation decisions made in accordance with these protections continue to be appealable in accordance with the UK’s obligations. I can confirm that that will be when the conduct was committed, not when the conviction is received. To clarify, when the matter that is the subject of the conviction occurred will determine whether this applies.

To conclude, these three draft instruments implement the Government’s citizens’ rights commitments under the withdrawal agreement. I commend the regulations to the Committee.