EU Settlement Scheme

Stuart C McDonald Excerpts

Friday 20th January 2023 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to raise the issue of the EU settlement scheme. It goes without saying that my Scottish National party colleagues and I thoroughly regret Brexit and the loss of free movement rights. When Brexit happened, we argued that the rights of European economic area citizens should have been protected automatically rather than requiring an application to retain them. However, the Government took a different approach and 6 million citizens have secured some form of status by applying under the EU settlement scheme—a higher number than I think anybody would have anticipated. The Minister will probably quite fairly say that the implementation of the scheme has worked much more successfully than I and some of my colleagues anticipated. Indeed, there are things to be learned from the scheme for other parts of his own Department.

This debate is not about reopening all of those previous arguments. First and foremost, its purpose is to serve as a reminder that the EU settlement scheme is still very much here and, indeed, very much open for applications, despite the deadline for initial applications being 30 June 2021. Far from being finished, there are many tens of thousands still waiting for a decision on their application. There are a couple of a million who will need to apply again and hundreds of thousands who may have lost their status. Even those successfully with status in the system are too often facing some significant ongoing problems, so this is still a hugely important issue that we need to scrutinise.

That takes me to the second purpose of the debate, which is to create an opportunity to flag up some of these ongoing concerns and challenges that need to be addressed. I am grateful to the University of York’s Brexit hub for organising a recent seminar at which many of these issues were highlighted. I also pay tribute to the campaign group the3million for its relentless ongoing campaigning on behalf of EEA nationals.

There are a significant number of issues that I wish to try to cover, so I will probably be able to scratch only the surface with many of them and will need to return to some others on a future date.

First, I turn to the approach of the Government to those with pre-settled status. Obviously, this is of massive significance, because there are around 2 million or so with pre-settled status, I think, unless a small percentage have upgraded successfully to fully settled status. In December, the High Court ruled that it was inconsistent with the withdrawal treaty to place those people in a position whereby they would lose their rights and entitlements if they did not apply again for settled status. The issue of whether the policy is consistent with the withdrawal treaty is not for this place or this debate, but we do need to debate the merits of persisting with such a policy, even if it is eventually found lawful.

Why should we put people through this process again? It is a stressful process and often seriously disruptive for all involved. It is also an unnecessary burden for the Home Office, which needs all the capacity it can muster for various other tasks, so why not free up people from this pointless process? That, ultimately, is the question. What really is the point of asking these people to apply again? Is it really worth all the time and resource?

I am especially concerned about people with pre-settled status not because they have not been here for many years already, but because, for various reasons such as vulnerability, chaotic lifestyle and other challenges, they simply have not been able to prove long residence, which is required to justify permanent residence rather than pre-settled status. How can we believe that it really will be any different for them this time around? They are at serious risk of becoming undocumented altogether if they cannot provide the necessary residence evidence before their current status expires.

I turn to the challenges with digital status, which include problems with the system itself and problems with people’s understanding of the system. The Home Office has been made aware of problems that some holders of settled and pre-settled status are experiencing when using digital status. There are two types of failure. The first is technology failures. Sometimes, to put it simply, the digital status produced by the Home Office checking system is wrong. On occasions, it appears that the status of someone else entirely has appeared on a check, which is described as “entanglement”. At other times, details on the check have erroneously changed. For example, there have been cases—especially where a previous refusal has been superseded by a grant—where a person has been flagged up to border officers and held up or turned back at the border just because they previously had a refusal, and the subsequent successful application has not been reflected.

It is difficult to know the full extent of these issues, and it would be useful to hear from the Minister what the Home Office’s understanding is and what has been done to try to fix these problems. I also want to know why the Information Commissioner’s Office has not been involved, as I understand it. After all, digital status is now to become the norm, and the introduction of electronic travel authorisations in the near future will make it all the more important that these systems work smoothly.

Secondly, even if the technology works, sometimes those using it get it wrong. We hear of employers that do not accept digital status as proof, and people have lost their jobs. There is an increasing number of reports that landlords are even less likely to accept it as a form of ID than other forms of immigration proof that were already problematic. People have too often been stopped by airlines when trying to come home, because staff do not understand the status, even though guidance should mean that EU nationals are not yet having their status checked in that way. What is the strategy to ensure that people fully understand the digital status being presented to them?

On a related note, I would like to hear more about the controversial reintroduction of banking checks. They were paused by the then Home Secretary because he could not be sure of their accuracy, and the independent inspector highlighted a significant 10% failure rate. What has changed to ensure that EEA nationals and others will not be wrongly deprived of access to their finances and thus unable to pay their rent or utility bills?

These systems are vital. People are at risk of losing their jobs—some have already. They are at risk of losing their homes, their access to public services and even their ability to get back into the country that they call home. Some are now too scared to leave the UK in case they cannot return. These are not hypothetical problems but ones that too many people have already faced or are facing. We have long argued for a physical document alongside digital. Digital-first does not need to mean digital-only. If the Government want to stick to their guns on digital-only, they must pull out all the stops to ensure that they are not letting people down through either the technology or the systems and that digital status is being accepted.

People are facing challenges in understanding their rights and persuading others that they have these rights. Various complicated statutory instruments throughout the Brexit process have removed the disparate retained and domestic laws that protected the rights of EEA nationals generally. However, there has been no replacement in domestic law of the rights of those EEA nationals who have secured settled or pre-settled status. When I have raised this issue previously, the response from Government seems to be, “Not to worry—your rights are protected in the withdrawal treaty, and that’s sufficient,” but that does not recognise how difficult that can be. When applying to a civil servant or any other sort of decision maker—even a tribunal judge—it is infinitely easier to get them to understand a person’s rights if those are set out in a domestic Act of Parliament or statutory instrument, rather than a broad international treaty. Going to a jobcentre and pointing to an article of the withdrawal treaty is far from ideal. This is causing problems, and it could be easily remedied. It would be interesting to hear the Minister’s thoughts on that.

I turn to certain aspects of the Government’s interpretation and implementation of these rights. There is an ongoing debate about the rights of those with pre-settled status, but a lot of people will be very surprised about how the Government interpret withdrawal treaty rights in relation to certain late applicants and their access to free NHS treatment. In fairness, it seems from previous discussions and correspondence that it is the Department of Health and Social Care that is the biggest block here, rather than the Home Office, but the Minister is here, so I will press the case with him.

Let us take the example of an elderly EU citizen who has been here for many years and had an old-style permanent residence card. Home Office guidance rightly says that such a person has a reasonable excuse if they apply late, but what happens if that old person first realises that they should have applied to the settled status scheme only when someone at the hospital to which they have been admitted tells them that their old residence card counts for nothing?

This elderly person undergoes medical treatment and applies for settled status afterwards. She will get settled status and will not be liable to pay for any NHS treatment from the date of her application. But bizarrely, despite the Government having acknowledged that she had an excuse not to apply in time, the very same Government will then penalise her for not having applied in time by making her pay the medical bill incurred between the deadline and her late application. That is nonsensical and cruel.

Debts of several thousand pounds will be life-changing for such people yet, given that the number of people this will happen to is probably going to be pretty small, the sums involved for the Department of Health and Social Care will be insignificant. I simply do not understand why the Department does not just return any fees that are paid or refrain from pursuing them in the first place. Perhaps the Minister would be willing to discuss that issue with colleagues in the Department of Health and Social Care.

A similar issue relates to the debate about comprehensive sickness insurance. Eventually, the European Court held that sickness insurance was not necessary in order for someone to exercise treaty rights in the UK. However, as I understand it the Government have not properly changed their guidance to reflect this fact. They took out a reference to NHS access not being sufficient to prove lawful residence on its own, but nothing was inserted to confirm positively that it is sufficient. I wonder whether that can be rectified.

Let me turn to the issue of late applications. As I understand it there have been around 120,000 late applications, around half of which have been refused. I also understand that no records are kept about the reasoning for such refusals. In particular, nobody knows whether the refusals were because people did not have a reasonable excuse for being late or because the eligibility criteria were not met, even if the lateness could be excused.

Transparency about this issue is very important. We need to know whether the Home Office is being harsh on late applicants, or whether it just happens that a lot of late applicants did not actually qualify anyway. One research report that I have been sent recently suggests that many late applicants would meet the qualifying criteria, which makes me worried that the Home Office is in fact now being harsh on those who are late. Will the Minister provide a better understanding of what the Home Office believes is going on?

I understand there to be around 180,000 pending applications to the settlement scheme, more than 30,000 of which have been pending for more than 15 months, including a disproportionate number of Romanian and Bulgarian cases. Why is there such a backlog? What are the reasons for the delays? Why is there such apparent disproportionality between nationalities? What is the Home Office strategy to try to resolve the matter?

I have heard people discussing what they termed the “hidden second queue” of family members from outside the EEA seeking a family permit. How many are waiting for such permits? Am I right to understand that unlike for any other application, there is no Home Office service standard for that? If that is the case, how can that be justified? Is it consistent with our treaty obligations? The backlogs are definitely interfering with the exercise of people’s rights under the withdrawal treaty. The Government should be careful that this does not become an issue of compliance with the treaty.

What strategies are in place to support marginalised communities? If I understood correctly what I heard at the seminar I attended last week, one Roma rights organisation had conducted a survey that showed that a worryingly low proportion of the Roma population was aware of digital status, and even fewer said they would be able to prove their status, with many requiring help to do so. Up to 75% did not know how to update their status from pre-settled to settled. All sorts of other groups will face similar challenges, so what is the strategy? What support will be available?

That brings me to the issue of ongoing advice and support. One danger of people thinking the EU settlement scheme is all over and done with is that it might be thought that funding for advice services is no longer needed. That could not be further from the truth; indeed, in some ways applications are becoming more complex, not less. Even if we put the application process to one side, there will be an ongoing need to assist vulnerable communities and individuals with proving their status digitally. We also need to be aware of an apparent rise in the number of advice sharks who take money off vulnerable people by pretending to be able to help them to access their rights. We cannot let them corner the market.

[Matt Rodda (Reading East) (Lab)]

The hon. Gentleman is making an excellent speech. Does he agree that there is a great deal of concern among many elderly people, particularly long-standing residents who originate from EU countries? They would like to have physical proof of their right to remain in the UK and it is deeply disturbing for them not to have that.

[Stuart C. McDonald]

I agree wholeheartedly with the hon. Member. We have argued for the provision of a physical document on a number of occasions, and will continue to do so.

Let me now turn to the issue of those whose applications have been refused. I think I am right in saying there have been about 400,000 refusals; the Minister can provide me with an accurate figure if that is not correct. On top of that, there will be those who have lost status simply because they did not apply. Has the Home Office any estimate of how many people that will affect? Even if the failure rate is only 5% or 10%, it will involve 300,000 or 600,000 people. If we add those who will not successfully transfer from pre-settled to settled, we could be talking about at least a further 1 million new undocumented people in the UK. It is a huge issue, and I do not think we have even started to have a conversation about what is to happen. This is obviously one of the downsides of not adopting the approach that we advocated, namely the automatic conferral of rights. Will the Minister outline the Home Office’s thinking on that?

Finally—although this is probably an issue for an altogether different debate—I want to mention the UK citizens who face challenges in other EU countries. Who will look out for them now? In the UK, the Independent Monitoring Authority and various other organisations are tasked with ensuring that the rights of European Economic Area nationals are respected. Do we not need a similar arrangement for UK citizens in the EEA?

I will stop at this point. There are probably other issues that I could touch on, and much more that I could say about the issues I have raised, but that can wait for other debates. I look forward to hearing the Minister’s reply. As I have said, whatever our differences on overall policy, the motivation of the debate is to seek improvements in the way in which the implementation of that policy is affecting EEA citizens. I think we all agree that we want to do whatever we can to protect those who have made the United Kingdom their home and are contributing to our society.

[The Minister for Immigration (Robert Jenrick)]

I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) for securing the debate, and for the constructive way in which he posed his series of questions to me and to my Department.

First and foremost, it is important to recognise that the EU settlement scheme has been a significant success, as indeed the hon. Member did. We have gone above and beyond our obligations under the withdrawal agreement, and other separation agreements, to protect the rights of EEA and Swiss citizens and their family members, and to give them a route towards settlement in the UK. As a result, I am pleased to say that through the scheme, which is the UK’s largest ever immigration scheme, we have delivered more than 6 million grants of status.

Let me now answer the specific questions that the hon. Member raised on behalf of those involved in this process. With regard to the so-called pre-settled status, we take our obligations on citizens’ rights very seriously, and have implemented the arrangements that we agreed in the withdrawal agreement in good faith, but it is true that the Independent Monitoring Authority has challenged the Government’s requirement for those with pre-settled status to apply for settled status in order to maintain rights under the withdrawal agreement. The High Court found against the Government in its judgment at the end of last year. We do not agree with the Court’s interpretation of the withdrawal agreement, and we are considering whether to appeal against its judgment. It therefore would not be appropriate for me to comment further at this stage, but as soon as we reach a decision on how to proceed, I shall be happy to update the hon. Member and others on both sides of the House. In the meantime, while the first grants of settled status will not expire until August this year, pre-settled status holders are encouraged to apply for settled status as soon as they are eligible, and as of the end of September last year, nearly 438,000 people had done just that.

With regard to the volume of applications and the time it is taking to process them, according to the latest published statistics, as of the end of September last year we had received nearly 6.9 million applications, of which 6.7 million had been concluded. Of those whose applications were concluded, 90% were granted status, with 50% granted settled status and 40% pre-settled status. The remaining 10% received other outcomes, with 6% of cases refused. The remainder were either invalid or, indeed, withdrawn.

The hon. Member asked what happens to individuals who are not successful in the process. They are then irregular migrants and either have to regularise their status or leave the country in the usual way.

As of the end of September 2022, a decision was pending on approximately 188,000 applications, about 3% of the total received. Over half of those were less than three months old, so I think it fair to say that the system is operating well, but of course with any system on such a scale, some cases will take longer than they should. Applications take longer to process if they are incomplete or require the applicant to furnish more information before a decision can be made. Where applications have been pending for long periods, in the majority of cases this is a result of suitability or criminality concerns.

Approximately 1,500 Home Office staff continue to work on the scheme, including 300 staff in the resolution centre that exists to provide applicants with reassurance and assistance and answer their questions about the scheme. I hope that that gives a sense of the scale of the operation that we run at the Home Office and the effort that the Government are making to deliver the scheme as expeditiously and as fairly as possible.

The hon. Member asked about late applications. Although the deadline for applications was 30 June 2021, the Government have rightly chosen to operate a pragmatic approach. We have continued to encourage those who are eligible to apply as quickly as possible. This has been set out in very clear, non-exhaustive published guidance since 2021.

We have also made it clear that a person’s rights will be temporarily protected from the point at which a valid application to the scheme is made until they receive a decision on their application or the outcome of any administrative review or appeal. While the application is with the Home Office, there is no reason for any applicant to be concerned or for their rights to be affected.

The hon. Member asked a question about healthcare and sickness. It is true that the Independent Monitoring Authority has raised concerns about the scheme’s applicants with pending applications and questioned whether it is appropriate retrospectively to charge for healthcare if an application is ultimately refused. The Department of Health and Social Care, which leads on that aspect, is assessing its policy on the issue and is taking steps to clarify the position on charging late applicants if their application is ultimately unsuccessful. DHSC has already amended its guidance and communicated the change to the NHS via its communications channels, and I understand that it has committed to further liaison with the Independent Monitoring Authority on the issue. I hope that that provides the hon. Member with some reassurance.

[Stuart C. McDonald]

I am following quite a lot of what the Minister says. I think the issue that I raised in relation to health is very slightly different, because it is about charges incurred between the deadline and the submission of the application. The person I was speaking about has a good excuse, and it seems very strange that they will not be reimbursed any fees that they paid or will be pursued for any medical charges that they incurred at the time. Could the Minister encourage the Department of Health and Social Care to rethink that?

Secondly, the Minister has not really addressed the issue of transparency on how many late applications have been refused because they did not have a reasonable excuse, and how many applications for which a reasonable excuse was accepted have been refused because the criteria were not met. Is there any transparency on that?

[Robert Jenrick]

I will happily take up the hon. Member’s first point with the Department of Health and Social Care and revert to him. On his second point, I did give some guide as to the likely reasons why an application has been declined, but I will provide him with further statistics if it would be helpful.

The headline is that the vast majority of people who are rejected should not be here in the UK, for good reason, and their status is that of an irregular migrant to the UK. The hon. Member is right to say that that is a significant number of individuals; we will now need to work through it to ensure that those people either regularise their status or leave the UK as soon as possible.

On support and assistance for vulnerable groups, throughout the process we have been aware of the need to support those who may find this process more challenging. For that reason, we have set up a broad range of communications for minorities such as, for example, Roma and Traveller communities across the UK. The Home Office has also committed significant funding to support outreach to those communities, and that funding is ongoing. The resolution centre, which I mentioned earlier, is also available and fully staffed to support individuals by telephone or email seven days a week. We take that issue very seriously.