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Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020

Volume 807: debated on Wednesday 18 November 2020

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020.

My Lords, the order was laid before Parliament in October and is required to enable a number of changes arising as a result of the end of free movement. First, it allows nationals of the EU, EEA and Switzerland—who I will collectively call EEA citizens—aged 12 or above, using a biometric national passport rather than an EEA ID card and seeking to enter the United Kingdom as a visitor under the Immigration Rules, to be granted such leave by passing through an e-gate, without routinely having to be interviewed by a Border Force officer.

The order also allows EEA citizens, as well as other nationalities already eligible to use e-gates, arriving in the UK under the new S2 healthcare visitor route to also be able to obtain six months’ leave to enter as an S2 healthcare visitor, either granted orally by a Border Force officer, or automatically by passing through an e-gate, in a similar way to standard visitors. It allows those holding a service provider from Switzerland entry clearance to enter the UK on an unlimited number of occasions during its validity, receiving 90 days’ leave to enter upon each entry; and it defines the type of leave obtained by a person passing through an e-gate, thus enabling Border Force officers to examine such persons and to cancel their leave where appropriate.

The first change is needed to give effect to our established policy to maintain access to e-gates for EEA citizens resident in the UK and for visitors. Noble Lords’ agreement to this order will ensure the change can be implemented immediately after free movement comes to an end and ensure the continued efficient processing of all arriving passengers in the UK.

With the end of free movement, EEA citizens who do not have an existing status or eligibility to apply for status under the EU settlement scheme will require leave to enter the UK and will be subject to the requirements of the Immigration Rules in the same way as all other nationalities who are not British or Irish citizens. This amendment does not change that but allows EEA citizens passing through e-gates to be granted six months’ leave to enter as a visitor. As such, they will not be permitted to work or obtain benefits and will be expected to leave the UK, or extend their stay, before their leave expires, in accordance with the rules. Should they breach those rules, they might be liable for enforcement action, including removal from the UK.

To be clear, this new order will allow EEA citizens to be granted leave to enter as visitors for up to six months when they pass through an e-gate at a UK port of entry. EEA citizens coming to the UK for other purposes—such as work or long-term study, and those resident here—will also continue to be able to enter using our e-gates, but no change to the law is required to allow this as they will have already obtained, prior to arrival in the UK, the necessary leave to enter, either in the form of a visa, residence permit or digital status.

Noble Lords might recall that a similar amendment in May 2019 extended e-gate eligibility to visitors from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA—the countries we now refer to as the B5JSSK—and this amendment brings the treatment of EEA citizen visitors, after the end of free movement, in line with the treatment of this group of foreign nationals.

Retaining the ability of EEA visitors to use e-gates to cross the border will be beneficial for passengers and the UK and will be important to maintain efficient flows of passengers through the border. Although the Covid-19 pandemic is still likely to mean that passenger flows are temporarily reduced in comparison with previous years, the use of e-gates will remain the best mechanism for ensuring the secure, efficient processing of EEA citizens across the UK border following the end of the transition period. It will also signal that the UK remains open for business to EEA tourists and business visitors alike.

The continued use of e-gates also needs to be seen in the context of the development of our new global border and immigration system, which makes better use of data, biometrics, analytics and automation to improve both security and fluidity across the UK border. Part of our long-term vision has always been to utilise digital technology to improve the passenger experience while maintaining security at the border. The use of e-gates is an important component of that as they provide a safe, secure and efficient means of processing arriving passengers, allowing our highly trained Border Force officers to focus their efforts on those who seek to abuse or exploit the system and wider border threats. I would also like to be clear that although this amendment enables us to allow EEA visitors to use e-gates to cross the border, it does not oblige us to do so; and as part of ensuring the UK border is operating in the interests of the UK, we will be keeping the policy under regular review.

The order also allows for permission to be granted to those who enter through an e-gate and qualify as an S2 healthcare visitor—to ensure that they obtain the correct type of leave on entry—and provides for service providers from Switzerland to use multi-entry visas. These groups’ rights to enter the UK are protected by the withdrawal agreement, the EEA EFTA separation agreement and, in particular for service providers from Switzerland, the Swiss citizens’ rights agreement.

Finally, the order also provides for leave obtained by a person passing through an e-gate to be treated as though it had been granted before arrival. The effect of this amendment will be to enable Border Force officers to examine persons who have obtained leave to enter by passing through an e-gate to decide whether that leave should be cancelled. This will complement existing powers already available to Border Force officers to curtail or cancel leave to enter. An example of where this might be used would be where further information, such as evidence of the commission of a customs offence, comes to light after they have passed through the e-gate and obtained their leave to enter. I commend the order to the Committee.

My Lords, this instrument was prepared by the Home Office. It will ensure that the UK can continue to utilise electronic passport gates, which are described as

“a secure and efficient mechanism for travellers to cross the border, to process the arrival of citizens of current EU and EEA member states and Switzerland entering the UK as visitors after the end of the transition period on 31 December 2020”.

Heathrow is a particularly busy airport, with flights arriving and leaving all the time—for almost 20 hours a day. E-gates have been a big blessing for the airport authorities there. Similar problems exist in other airports in the UK, such as Gatwick.

It is also said that:

“This SI is important to maintain security and fluidity across the UK border.”

Whereas all the above makes sense and is good, we have to worry about terrorists entering the UK. With the recent events in France, security for the UK must be enhanced. There are also many migrants crossing the channel in small boats; many of them are unable to cross due to the waves, which can cause their deaths. The security of our borders is very important and I welcome this SI.

My Lords, I thank the Minister for introducing this draft order. Its main purpose is, to quote from the Explanatory Memorandum that accompanies it, to

“ensure that the UK can continue to utilise electronic passport gates (e-Gates), a secure and efficient mechanism for travellers to cross the border, to process the arrival of citizens of current EU and EEA member states and Switzerland entering the UK as visitors after the end of the transition period”.

I want to draw the Committee’s attention to the hypocrisy of a Government who campaigned to leave the European Union on the back of the slogan “Taking Back Control”—a phrase that they continue to use to this day, particularly in relation to our borders. The only way this order can be described as taking back control of our borders is that the decision to keep them open with the same level of control, or lack of it, as when we were members of the EU is going to be taken by the UK Government, rather than that decision being a consequence of being a member of the European Union.

What is more, in a vain attempt to avoid being accused of hypocrisy in the face of their promise not to treat EU citizens more favourably than those from outside the EU, the Government have weakened the UK border in relation to citizens of the B5JSSK countries—Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA—by allowing citizens from those countries to use e-gates. Not only are the Government not taking back control of their borders; they admit in their own documentation that e-gates are not secure, or at least do not deliver an acceptable level of security. Let me explain. The Explanatory Memorandum goes on to say that, with the end of free movement, EEA citizens will require leave to enter and remain in the UK

“but those coming as visitors will be able, like other non-visa nationals, to obtain leave to enter at the border for six months”

and that this instrument will

“allow EEA citizen visitors to obtain leave by going through an e-Gate. This leave will be granted for six months in the same way as it is granted to … B5JSSK nationals … who have been able to obtain leave”

by entering through the e-gate since 2019. I think the Minister explained that this happened in May 2019.

Cynics will accuse the Government of extending e-gate access to B5JSSK nationals, which was done only last year, only to avoid being accused of treating EU citizens more favourably after Brexit. The Government have previously said that the decision was made to “better manage the queues” at the UK border, but the point of the border is to keep undesirable people out of the UK—not to make it easier for everyone, including undesirable people, to pass through it. Until the changes were made, B5JSSK nationals had to hand a boarding card to a Border Force officer at the UK border, explain the purpose of their visit and how long they were staying, and prove that they had somewhere to stay and sufficient funds to sustain them during their time in the UK. I am told—the Minister will correct me if I am wrong—that approximately 3,000 USA nationals were turned away at the border annually when these checks were in place. Now there are no checks.

In the chapter entitled “The border of the future” in the Government’s published plans for a points-based immigration system, they outline an idea for “Electronic Travel Authorisations” to be introduced at some unspecified time in the future. The Government claim that these

“will allow security checks to be conducted and more informed decisions taken on information obtained at an earlier stage, as to whether individuals should be allowed to travel to the UK.”

Presumably, these checks and “more informed decisions” will be similar to the checks and informed decisions that Border Force officers used to undertake at the UK border, resulting in 3,000 American citizens a year not being allowed to enter the UK, and before the B5JSSK citizens were allowed to use e-gates. But what happens to UK border security in the meantime? Are the Government now saying that we will take back control of our border eventually?

Continued access to EU databases is also in doubt, particularly the electronic system that allows UK authorities to check whether an EU citizen has been convicted of a criminal offence in any EU country. Not only will allowing EU citizens to use e-gates not be taking back control of our borders; we are less likely to be able to identify criminals entering the UK.

The Government have published advice for UK citizens seeking to visit the EU next year. It states that UK citizens must have at least six months left on their passport, show an onward or return ticket, have enough money for their stay, use separate lanes from EU, EEA and Swiss nationals, and be limited to visits of 90 days in any 180 days. Meanwhile, EU, EEA and Swiss nationals visiting the UK will continue to use the e-gates and be able to stay for six months, take a day trip to Lille on the Eurostar and come back for another six months—not that there will be any way in which to check whether they have overstayed their six-month leave to remain.

Only the EU is taking back control of its borders. This Government are significantly, albeit voluntarily, giving up control of the UK border, thereby making it easier for criminals and those who want to stay in the UK illegally to enter and remain. To use an often-used government phrase, that is not what the British people voted for. I may table a Motion of Regret when this order comes before the House for approval.

I, too, thank the Minister for her explanation of the content and purpose of this draft order. As we know, with the end of free movement, EEA citizens will require leave to enter or remain in the UK. The order provides for EU and EEA citizens without existing status to continue to use e-passport gates after the end of this year, and thus obtain leave to enter for six months when they are visiting the UK, as opposed to those coming to the UK to work or live, or for periods of more than six months, who will require permission to enter in advance of travel. The order also allows some other groups to use the gates in relation, for example, to pre-arranged healthcare.

We are introducing this arrangement for EU and EEA citizens but, as the noble Lord, Lord Paddick, was, in effect, saying, we have apparently not yet been able to negotiate a reciprocal arrangement for UK citizens travelling to Europe. Will the Government confirm that that remains the case and, if it does, can we have an update on that point when the Government respond?

Citizens of countries currently permitted to use e-passport gates are those from Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA. To those will now be added EU and EEA countries. Do the Government keep that list under review? What are the criteria for being on the list, and for being taken off it? Are there plans to add any more countries to the list?

We are aware that the organisation the3million has written to the Immigration Minister, expressing concern that people entering the UK after the end of this year who are protected by grace period regulations will be granted leave via the e-gates. That will inadvertently impact on their ability to exercise rights, including the right to work, given that the automatic grant of leave to remain via e-gates for EU citizens is done on the basis of no recourse to public funds and no permission to work or rent. What steps have the Government taken, or will they take, to prevent that situation arising?

The Explanatory Memorandum in paragraph 7.3, to which the noble Lord, Lord Paddick, referred, states:

“The change will benefit the operation of the UK border as a whole by ensuring that the large number of EEA citizen visitors are able to cross the border in the most secure and efficient manner possible.”

However, as the noble Lord was asking, how reliable are the e-passport gates proving to be in detecting people who should not be allowed into this country? How will it be known when visitors entering via the e-passport gates do not have a right to work or rent in the UK?

Many issues and changes face our border security from the beginning of next year. Potentially serious is the likely loss of access to the Schengen Information System database. In an evidence session with the Home Affairs Select Committee last week, the Minister for Future Borders and Immigration had few, if any, answers to questions on the number of checks we make from the information system database, the proportion of people we check or which system will be there to replace it in January if our access to it ceases. Will the Government now say if the loss of access to that security database will impact on the information we have on people using e-passport gates to enter the UK, and what instantaneous checks will be available on a person arriving at our border.

Finally, I refer to paragraph 10.1 in the Explanatory Memorandum, which is on consultation. It states:

“This instrument was not subject to a consultation exercise because the Government judges that significant numbers of passengers will benefit, with only very limited impact on the experience of others.”

What is that limited impact and which passengers will experience it?

I thank both noble Lords for their points. Indeed, I welcome the positive comments about this statutory instrument made by the noble Lord, Lord Bhatia. The noble Lord, Lord Paddick, asked a number of questions about security and the impact of the ending of free movement and other things, while the noble Lord, Lord Rosser, made a couple of additional points, which I will attempt to answer.

To answer the first point made by the noble Lord, Lord Paddick, when individuals use e-gates, they are not routinely questioned by a Border Force officer. However, I assure the Grand Committee that our e-gates conduct a full range of security checks. The biometric check that they undertake on people’s travel documents means that they are a highly effective method of detecting imposters, people with fake passports, fake facial images, et cetera. The e-gates also allow our allow highly trained Border Force officers to focus their efforts on high-risk cohorts—[Interruption.] I shall stop there.

Sitting suspended for a Division in the House.

My Lords, e-gates are and will continue to be able to identify pre-existing adverse information about travellers and individual subjects. Such information will be seen by a Border Force officer. If officers require information about any person’s previous immigration history, the Home Office has access to data, including advance passenger information and exit check records, to verify the person’s individual history. Those officers will retain the ability to exercise the full range of powers at the border, so they will be able to continue to refuse entry where appropriate to those whom they deem ineligible for entry.

The noble Lords, Lord Paddick and Lord Rosser, asked about UK citizens travelling to the EU. They will know that this is part of the ongoing negotiations, of course. For our part, we have ensured fairness in the system by setting up the EU settlement scheme so that no one from the EU is in any doubt about their rights.

On SIS II and what will replace it, those negotiations are ongoing. However, I agree with both noble Lords that having our full range of law enforcement capabilities is absolutely essential as we go through the transition period. If I may, I will get back to the noble Lord, Lord Rosser, on the impact assessment of the small number of people who will be negatively impacted by e-gates; of course, it is a small number because most people will see a positive impact from them.

The noble Lord, Lord Paddick, asked how this is different from free movement. EEA citizens and their family members will be subject to UK immigration control from 11 pm on 31 December this year on the same basis as non-EEA citizens except where they form part of the citizens’ rights cohort.

In answer to the noble Lord, Lord Rosser, the new border and immigration system will see EEA citizen visitors become subject to the same Immigration Rules, criminality thresholds and travel document requirements as other third-country nationals. However, in contrast to the situation under free movement, EEA citizen visitors passing through e-gates after 31 December who do not have another form of UK status or eligibility to apply to the EU settlement scheme will be granted six months’ leave to enter but will not be permitted to work or access benefits and services. They will also be expected to leave the UK or extend their stay before their leave to enter expires. Any EEA citizens arriving for work or long-term study will need to apply under our new system and obtain prior permission, just like all other non-visa nationals. Without such a permission, they will not be able to demonstrate their entitlement to remain in the UK for anything other than a visit.

The noble Lord, Lord Paddick, was concerned about repeat visits. He talked about refreshing leave to enter every six months by leaving for a short period—a point that he has talked about at length—but it is not possible to do so and obtain the same rights and entitlements as residents. Anyone seeking to abuse the system in this way would find themselves prohibited from working and obtaining benefits. If their intentions were to become known to the Home Office, they could be refused when seeking entry at the border. Further, if they seek to stay longer than six months or breach the conditions of their stay as a visitor, they may also be liable to enforcement action, including removal from the UK. That also answers the point made by the noble Lord about being able to rent.

Returning briefly to the EU treatment of UK citizens, it is not based on the EU providing reciprocal access to its e-gates for British citizens. The UK has always sought to manage its border in the country’s best interest. That is why we did not join the Schengen zone and why, on leaving the EU, we are determined to enhance our ability to manage our border in a way that continues to protect the public and facilitates the passage of legitimate travellers.

Motion agreed.

Sitting suspended.