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Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018

Volume 792: debated on Tuesday 24 July 2018

Motion to Approve

Moved by

My Lords, these draft regulations form one part of the statutory underpinning of the new EU settlement scheme for resident EU citizens and their family members to obtain UK immigration status. The other parts are the Immigration Rules for the scheme and the associated fees regulations, which were both laid before Parliament on 20 July. Together, these measures will enable the first phase of the implementation of the EU settlement scheme to begin on 28 August.

This will involve the participation on a voluntary basis of employees of 12 NHS trusts, and employees and students of three universities, in the north-west of England. By the way, I had no part in that decision. This phase will enable the Home Office to test the relevant processes and ensure that they work effectively before we begin to open the scheme more widely from later this year.

I trust that the House will welcome the early progress in bringing forward this important scheme, and I thank the 15 institutions that have agreed to take part in the initial phase. It is appropriate that the National Health Service and the higher education sector, which both benefit so greatly from the contribution of EU citizens, should be involved in helping to establish the EU settlement scheme.

On 21 June the Government published a statement of intent on the EU settlement scheme, and I repeated in this House the Oral Statement given by my right honourable friend the Minister of State for Immigration. The statement of intent set out details of how EU citizens and their family members will be able to obtain settled status in the UK. It also set out how the application process will be straightforward and streamlined.

There will be three core criteria that EU citizens will need to meet to be granted status under the EU settlement scheme: proving their identity, showing that they are resident in the UK, and declaring whether they have any criminal convictions. The draft regulations apply the existing powers to take and retain biometrics which apply across the immigration system to the new Appendix EU to the Immigration Rules, which will provide the basis for the Home Office to grant leave to EU citizens and their family members under the EU settlement scheme.

As we set out in the statement of intent, and as we currently require for applications for residence documents under EU law, the draft regulations will enable us to require EU citizens and their family members to provide a facial photograph as part of their application for status under the EU settlement scheme. We need this to help check their identity and to confirm that the passport or identity card they have provided belongs to that person. It will also help us to identify and deter fraudulent applications.

As happens now across the immigration system, the draft regulations will enable us to require non-EU citizen family members applying under the scheme to enrol their fingerprints, where they have not already done so in being issued with a biometric residence card under EU law. We will not be taking fingerprints of EU citizens applying under the scheme.

Recording biometric data and biographical information is important because it enables us to confirm and fix a person’s biographical details to their unique biometric identifiers, and establishes a reliable link between the holder and their status. It also allows us to check against existing records to make sure that the applicant is not known to us or to the police by another identity.

Under the scheme, EU citizens—and non-EU family members who already hold a biometric residence card—will be able to upload a passport-style photograph of themselves as part of the streamlined digital application process. Non-EU family members who do not already hold a biometric residence card will, as now, need to attend one of our application centres to enrol their fingerprints and facial image. Consistent with our approach across the immigration system, non-EU citizen children under the age of five will not be required to enrol fingerprint biometrics. A facial photograph will be required for security and safeguarding reasons, but their fingerprints will not be taken.

Approval of the regulations is an important step in getting the EU settlement scheme up and running, thereby enabling us to provide real certainty to resident EU citizens and their family members, and to their employers, about the basis on which they will be able to remain here permanently. I commend these regulations to the House.

I thank the Minister for setting out the purpose and content of this instrument. I also take this opportunity to thank her officials for meeting me yesterday. If I still have not understood precisely what the regulations are about then that is my fault, rather than their inability to explain it to me.

I want to make one or two points, because the meeting with officials yesterday was helpful. As I understand it—I think this is what the Minister was saying—the next stage is to go to a pilot scheme, which will begin from 28 August. As she also said, it covers certain NHS workers and students. What I want to be clear on is, first, how long will that pilot scheme last? Secondly, at the end of that scheme will a further statutory instrument be needed to extend it to other groups? In other words, will there be an opportunity in this House for a proper debate about how the pilot scheme has worked so that the Government will not simply decide, off their own bat, to extend the scheme to other groups on the basis that the Government think that the pilot has been successful? I would like an assurance on that point.

Can the Minister also say whether the intention is to extend the pilot scheme in stages to other groups or, at its conclusion, to extend it across the board? As I understand it, there will be the requirement for a facial photograph and, as I think the Minister said, in respect of non-EU citizen family members a fingerprint requirement as well. Simply to get this on the record, as much as anything, what will happen as far as the individual is concerned if the facial photograph supplied does not meet the requirements of the check against the ID photograph? Will they be told why it is not considered a facial photograph that meets the requirements? Will they be contacted or given help by Home Office officials in a positive way, bearing in mind that, as I recall, the Government have said that the approach with applications of this kind will be not “Why should it be agreed?” but “Why should it not be agreed?”, and that there would therefore be a positive approach from Home Office officials? I would like confirmation that that would apply, for example, where the facial photograph was not deemed to meet the requirements.

I would like to raise one or two other points. The Explanatory Memorandum refers to the consultation outcome and says that account was taken of those discussions. It says:

“The Home Office has not undertaken a full public consultation, but the policy has been discussed with its internal and external stakeholders”.

What points were made in those discussions of which account was taken, and what points were made that the Government did not feel it necessary to take into account? Who were the,

“groups representing EU citizens in the UK”,

with whom this policy was discussed, as referred to in paragraph 10.1 on the “Consultation outcome”?

What will the cost be to the individual of going through this process? I am sticking strictly to the statutory instrument in front of us in relation to the facial photograph and the fingerprints since, subject to what the Minister may say, for a fairly large family it could presumably add up to a not insignificant sum of money. No doubt that is something the Minister will address.

It has been very helpful to be given by officials a copy of the Statement made by the Minister of State for Immigration on 23 July, which, as I understand it, is the one that talks about, effectively, pilot arrangements, and a copy of a press release dealing with that. I do not think, although I am happy to be put right if I am wrong, that that was necessarily made clear when the matter was discussed in the Commons, which I think was on or around 16 July. Perhaps some of the issues that were raised in the Commons might not have been raised, had the intentions as far as a pilot is concerned been clear. On the basis that there is to be a pilot to see how well or otherwise it works, I hope that there will be an opportunity, perhaps through a further statutory instrument, for a proper discussion about how it has worked because there are potential concerns about this process simply because of the vast number of people involved, the time it could take, the possibility of people being wrongly rejected and matters of that kind. There are concerns about it. A pilot will be helpful if it draws attention to some of the difficulties and gives a chance for those to be put right before it is extended. I am seeking an assurance that there will be a discussion in this House about how the pilot has gone before the scheme is extended to other groups.

My Lords, I, too, thank the Minister for explaining these regulations to the House. I am not as concerned as the noble Lord, Lord Rosser, about whether this is a pilot as my understanding is that there will be a period of three years from now for EU citizens to register and overcome any of the problems that may arise during the pilot scheme, so I am slightly more relaxed on that front. Can the Minister confirm that the continued operation of these regulations will be subject to satisfactory negotiations being concluded with the European Union and each of the 27 remaining EU countries, which will decide on a country-by-country basis what conditions they will impose on UK citizens’ residence in their countries if we leave the European Union? As the Minister will know, some European Union countries already require UK workers to register while others do not.

Can the Minister confirm that the database of photographs of EU citizens applying for leave to remain in the UK will be kept not just for the purpose of initial identification to ensure that the applicant matches their national identity document, but in perpetuity? Can she also confirm that every employer in the United Kingdom is expected to carry out a check of every prospective employee against Home Office databases to ensure that the individual has the right to work in the UK, whether they are a citizen of the UK, the EU or any other country?

The Minister has already confirmed that only non-EU members of EU citizens’ families will be required to supply a set of fingerprints along with a photograph. If I understood her correctly, this is to ensure that they have not been involved in crime or that in other ways it would not be desirable for them to remain in the UK. Again, will these fingerprints be retained on a database after they have been checked against, for example, criminal records? If the answer to both those questions— about photographs and fingerprints—is yes, are this Government changing their position on having a national identity card database, because this sounds like the beginning of that process?

The regulations are about EU citizens’ status in the UK if we leave the European Union. I therefore hope that the Minister will accept that the following question is within the scope of this debate. Can she confirm whether I correctly understood from the briefing by officials that she kindly arranged that there will be free movement of EU citizens into the Republic of Ireland, even if the UK leaves the EU: that there will be no immigration checks on anyone either at the border between the Republic of Ireland and Northern Ireland or at any crossing point between Northern Ireland and the rest of the United Kingdom?

Can she therefore confirm that there will be no way that the UK could control inward immigration from the EU via the Republic of Ireland even if we leave the EU, that the only immigration controls will be those carried out by banks, landlords, the NHS and employers, and that, therefore, an unlimited number of EU nationals could live indefinitely in the UK if they came through the Republic of Ireland?

Can she also confirm that the UK’s border security will be totally reliant on the checks carried out by Republic of Ireland immigration officials who, in any event, will be unable to question any EU citizen as to their reason for entry under free movement rules? Presumably, the Irish Government have always been happy to share responsibility for guarding the EU’s external borders, but what discussions have the UK Government had with the Irish Government about their immigration officials effectively policing the UK border from the Republic?

I thank both noble Lords for their questions. The first question from the noble Lord, Lord Rosser, was about an evaluation of the private beta phase, or the pilot phase, which I can confirm will run from 28 August until October. On amendments to extend the scheme any further, we will provide further information in due course about our plans for the phased rollout of the EU settlement scheme later this year so that, in line with the draft withdrawal agreement, it is fully open by 30 March next year. Those plans will absolutely reflect the experience of the pilot phase and the learning that we draw from those who choose to apply under the scheme during that phase.

There will not be a formal report back, but any extension of the scheme will be subject to parliamentary consideration of the required changes to the Immigration Rules for the scheme, further to those for the private beta phase laid on 20 July. We will explain clearly any changes and the reasons for making them at that point.

I thank the Minister for giving way. When she mentioned “any extension”, is that any extension beyond the pilot?

Any extension in terms of what the pilot entailed or beyond what was in the pilot? I am not entirely clear about the noble Lord’s question.

My point was that there is to be a pilot scheme. Will there be an opportunity for a discussion in this House if it is decided, as presumably it will be, to extend the pilot scheme to other groups, or will the Government just decide that the pilot scheme has been successful and be able to extend it without any debate or discussion in this House? That was the point of my question about whether there will need to be a further statutory instrument.

I understand that any changes at all in the Immigration Rules for the scheme will be laid out, and why they will be laid out. We will need new Immigration Rules to extend the pilot to other groups, which is what I think the noble Lord was asking.

My Lords, I am now slightly confused. I am grateful to the noble Baroness for giving way. Presumably, if the pilot works perfectly with this pilot group of EU citizens, it can then be rolled out to cover all EU citizens without any further regulation. Is that the case?

My Lords, I understand that this is a specific pilot scheme for a specific purpose, so it would then have to come back for extension to other groups. It will be the same thing, but for other groups. I hope that that explains it clearly. It will come back.

On the question of the receipt and retention of the photograph, there are three reasons why we need to receive and retain them. First, as part of the basic checks required to protect the scheme from abuse, we will compare the photograph with the one in the applicant’s identity document to confirm that they are one and the same person. Secondly, by keeping a record of the photograph, we can help secure the person’s identity and the status we have granted them against any attempt by another person to use those in a fraudulent application. Thirdly, the photograph will be contained in the secure digital status they receive under the scheme and will thereby provide a convenient means by which they can, for example, evidence their right to work to an employer. I will say a bit more about that shortly.

The noble Lord, Lord Rosser, asked about the photograph not meeting requirements and being chucked out. There will be a lot of guidance on how to take a photograph that matches and meets the requirements. If an applicant submits a photograph that is not sufficient, the Home Office will proactively contact them in a positive way—which I think the noble Lord was also driving at. I will underline that we are looking for a reason to grant this status, not refuse it. If there are any problems of any sort with an application, we will contact the applicant to help them resolve the matter, rather than reject it. I think that that was at the heart of the noble Lord’s question.

The noble Lord also asked about costs to the applicant. The agreement reached with the EU allows a fee of up to the cost of an equivalent document for UK nationals. We have used the cost of a passport of £75.50 as a point of reference. A fee of £65 to apply for status under the EU settlement scheme is in line with the current costs of obtaining permanent residence documentation, and it will contribute to the overall costs of the system. The fee for a child under 16 will be half that: £32.50. Where an applicant is granted pre-settled status under the scheme, from April 2019 there will be no fee when they apply for settled status. Applications will be free of charge for those who hold valid permanent residence documentation or valid indefinite leave to enter or remain, or for the children in local authority care. To charge a lower fee than the current fee that EU citizens are charged for permanent residence documentation would disadvantage those who have already paid the £65 fee to require that documentation to confer their exercise of free movement rights. To charge a higher fee would disadvantage those who have followed our advice since the referendum that they did not generally need to apply for EU documentation.

The noble Lord, Lord Rosser, asked about the consultation. We have been engaging with stakeholders throughout the process, including the user groups we have established, involving EU citizens’ representatives, embassies, employers, and others. These groups are helping us to develop the scheme and get it right. We have engaged with EU citizens at every stage of the development process and will continue to do so. We will also continue to expand our communications to ensure that EU citizens are aware of the scheme, how it will operate and what information they will need to provide, and so that they are reassured that they will have plenty of time in which to apply for their new UK immigration status.

We have established a particular user group focusing on potentially vulnerable applicants, which has been mentioned a number of times, to help us to develop the right forms of support for them. Since the publication of the EU Settlement Scheme: Statement of Intent on 21 June, we have held more than 20 events across the country, reaching a diverse audience, including representatives of EU citizens, heads of industry, immigration lawyers, regional chambers of commerce and local authority leaders. We have also met and received feedback from the devolved Administrations. This engagement has helped us to improve the drafting of family provisions. I have a two-page list that I hope noble Lords will not mind me not reading—but I have it here for their perusal afterwards, should they want to look at it or take it away.

The noble Lord, Lord Paddick, asked about the retention of photographs. There are reasons why we need to receive and retain, and I have gone through them, but he then asked about the retention of fingerprints. The biometric information collected under the EU settlement scheme will be used and shared only in accordance with the law. It will be mainly for law-enforcement purposes or as specified in the regulations. They include the following: the exercise of a function by virtue of the immigration Acts or in relation to nationality and in connection with the prevention, investigation or prosecution of an offence, or to protect national security. They do not include sharing biometric information with commercial partners.

We will retain biometric information only for so long as its retention is necessary in connection with an immigration or nationality purpose. We will normally delete the fingerprints of individuals granted indefinite leave to remain, including those granted settled status under the scheme, 10 years after the leave has lapsed, should it do so, unless the person is considered a threat of high harm to the UK, where we will retain them indefinitely. If a person becomes a British citizen, their fingerprints are deleted at that point.

The noble Lord, Lord Paddick, asked about a no-deal situation. We have reached an agreement with the EU guaranteeing the rights of EU citizens living in the UK and vice versa, and we do not expect that to be reopened. The Prime Minister has been clear from the beginning of this process that she wants EU citizens and their families in the UK to be able to stay, and she gave a personal commitment to EU citizens in October when she said:

“I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay”.

We have developed the EU settlement scheme as a basis for them to do so.

The noble Lord also asked about right-to-work checks. The EU citizens granted status under the scheme will be given a digital status, which will be a digital record held by the Home Office, and will control who they wish to share this with to demonstrate their status via a secure passcode. A digital status checking service is already live for some non-EU citizens and will provide the same convenient and secure way for EU citizens to demonstrate their rights. This is part of moving the UK immigration system to digital by default. EU citizens will be able to demonstrate their online digital status to employers and others during the implementation period if they choose to, but it is important to stress that, during the implementation period, EU citizens can demonstrate their right to work or to access benefits and services by showing a passport or identity card.

Finally, to the point about the common travel area and Ireland. The CTA with Ireland and, of course, the Crown dependencies predates the UK’s and Ireland’s membership of the EU. I am pleased that the EU recognises that, and recognised it early on in the negotiations, and agreed that it should be maintained after we leave. Security checks are undertaken on all passengers arriving into the CTA, and this will continue. The Government are considering a range of options for the future immigration system, and will set out details in a White Paper this autumn. However, I have to say that free movement will end.

What is important is that we control immigration in the national interest, which means being clear about who has permission to live and work in the UK. The CTA does not actually affect this. For example, currently an American can travel to Dublin and then to Belfast, but has no right to work in Belfast without a visa. This could be the case for EU citizens in future. The key point is that everyone will have undergone security checks as they enter the CTA, as is the case now, and they will then need the right permission if they want to work.

The White Paper on our future relationship with the EU makes it clear that we want travel for short-term business trips and tourism to continue. It is good for our economy and for society and, of course, lots of British people enjoy holidays in the EU. But in future we will control the number of people who come from the EU to live and work here. That is behind people’s concerns about unlimited immigration. I hope that I have satisfactorily answered all the questions that noble Lords asked. With that, I beg to move.

Motion agreed.