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British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021

Volume 812: debated on Monday 7 June 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021.

My Lords, for ease, I will refer to this instrument as the “British Nationality Act SI”. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 ended free movement on 31 December last year. That Act enabled us to take back control of our borders for the first time in decades, delivering on manifesto promises to the British people and paving the way for the new points-based immigration system, which began operating from 1 January 2021.

Parliament also approved the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. These provide an additional six months—referred to as the grace period—in which an EEA or Swiss national and their family members resident here by the end of the transition period can still make an application to the EU settlement scheme by 30 June this year for the status they need to secure their rights under the citizens’ rights agreements, and have their existing EEA residence rights protected in the meantime. The Immigration Rules for the scheme, at appendix EU, also confirm that, in line with the citizens’ rights agreements, an application can be made after the 30 June deadline where there are reasonable grounds for missing that deadline.

The British Nationality Act SI reflects the ending of the grace period on 30 June 2021 and the scope for an application to the EU settlement scheme to be made after that date, or to be decided after that date having been made before it. The SI protects nationality rights for children born after 30 June but before the outcome of such an application. It is only after 30 June, and with the ending of the grace period, where there is a risk of parents losing status previously held and protected.

The British Nationality Act SI is made under the delegated regulation power in Section 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, the scope of which was debated extensively in both Houses during the passage of the legislation. The SI amends primary UK legislation as a consequence of, or in connection with, the provisions in Part 1 of the Act, which end free movement. It amends legislation relating to nationality acquired through birth in the UK. We are determined to ensure that children do not miss out on British citizenship through no fault of their own.

The very positive effect of the legislative change that we are discussing is to allow a child to automatically become a British citizen when born in the UK after 30 June 2021 and once the EU settlement scheme application submitted by their parent or parents is resolved through the granting of indefinite leave—known under the EU settlement scheme as “settled status”—which occurs after that birth. This might occur in two scenarios: where an application was submitted by 30 June but has not been resolved at the point of the child’s birth; or where an application is submitted after the 30 June deadline, based on reasonable grounds for missing that deadline, and is resolved favourably after the child’s birth. In this scenario, the parent would clearly need to demonstrate that they would have met the relevant eligibility requirements immediately before 1 July 2021.

The immigration rules and guidance already set out how any late applications to the EU settlement scheme should be considered and the approach to take to what may constitute reasonable grounds. The British Nationality Act SI provides clear protection for a child in this position without the need to make a separate nationality application, reflecting the unique position of those affected. The change will come into force on 1 July, immediately after the end of the grace period.

This SI ensures that there are no unintended consequences from the necessary deadline for the EU settlement scheme. It is basically an essential step in protecting the status of children, and I commend it to the Committee.

My Lords, I thank the Minister for her introduction. I warmly welcome this measure, which is not always something that I can say about government legislation, particularly in the field of immigration and citizenship. The SI is practical, sensible and humane, as well as consistent with Article 18.3 of the withdrawal agreement, in safeguarding the right to acquire British citizenship for children born after 30 June to EU citizens who do not have settled status at the time of the child’s birth, either because the application has not been processed in time or because a late application was allowed on reasonable grounds, but who go on to get it later.

I have one question about the SI and then I want to raise some points on other aspects of the EU settlement scheme. The question is this: why is the concession being made only in respect of children born after 30 June? Can the Minister clarify the position for children born before 30 June whose parents have a gap in their immigration status after 30 June that is later resolved? What is the situation for those children? The Minister may tell me that I ought to know the answer, but I would be grateful anyway. Could she also explain what happens to children of parents who go on, in the scenario posited, to get pre-settled status? As far as I can see, they are not covered by the SI.

For children who are covered by the SI, I would be grateful to learn from the Minister what the communications plan is to make families aware of the citizenship opportunity under new Section 10A, and what evidential requirements will be imposed. We are all only too aware of what happened to many of the Windrush generation. Studies earlier this year by the JCWI and the Social Market Foundation found that high percentages of their interviewees in social care and low-skilled work were unaware of the scheme.

Of special concern among children would be those estranged from their parents. How many children in care entitled to British citizenship have not yet been registered by local authorities? Will the Home Office be able and willing to assist—through its records, whether of eligibility for settled status before 1 July or of the timing of an application for settled status and the reasons for a late grant of status—in confirming a parental relationship and the British citizenship or settled status of the parent at the relevant time? I believe that is required under Section 55 of the Borders, Citizenship and Immigration Act 2009 and by the UN Convention on the Rights of the Child. Will the child, parent, adoptive parent, local authority or other carer with parental responsibility get access to those records if necessary? Obviously it would be inappropriate and unfair for the Home Office to insist that a child produced the original of the document, given that that original was issued by the Home Office to their parent. The child could produce a copy and explain the fact of estrangement.

There is also, of course, the question of the fees for applying for citizenship, which are over £1,000. That is a huge barrier for many people—an issue that many in this House regularly raise. That is compounded by the lack of legal aid for complex cases. Has there been any reconsideration of these matters?

Turning then to other, less benign consequences of a late application, it seems curious to me that, in contrast to the subject matter of this SI, a person applying after 30 June will face drastic circumstances: the loss of lawful status, and with it the loss of the right to work, to rent accommodation, and to get free non-emergency NHS care, benefits or homelessness assistance. In fact, the full hostile environment will fall upon them, with the possible risk of removal. This is the case, as I understand it, even for those who are accepted to have reasonable grounds for a late application. Can the Minister tell us whether, three weeks from the deadline, there is any inkling of a softening in the Home Office’s approach?

Will EU citizens and their family members who miss the deadline but continue to work or rent be committing a criminal offence? Would the employer or landlord themselves face criminal proceedings? My friend in the other place, Stephen Farry MP, asked the Prime Minister 10 days ago for clarity on this, but all he got in response was that the Prime Minister was

“sure the law will be extremely merciful to anybody who finds themselves in a difficult position”.—[Official Report, Commons, 26/5/21; col. 369.]

Can the Minister spell out what on earth this means in practice? I hope that it was not one of those promises like the infamous, “There will be no paperwork for Great Britain to Northern Ireland trade”.

An article in the Guardian on 27 May reported a Home Office spokesperson as saying that

“Further information will be provided to employers shortly about what they should do if they have an employee who finds themselves in this situation.”

Similarly, an answer to another Parliamentary Question said that the Home Office would be

“updating … guidance and communicating with landlords in the coming weeks”.

Can the Minister tell me whether such information and guidance has now been provided?

I understand that an announcement is due later this week on new EU settlement scheme Covid-19 guidance, which will say that absences longer than 12 months for Covid-related reasons will not break “continuous residence”, so that affected EU citizens will still be able to build up their residence period for settled status. This would also be a welcome concession. If the Minister could tell me that the Home Office will continue to be in flexible mode, that would be most helpful—although of course guidance does not provide legal certainty, and there is a case for enshrining that concession in law.

In particular, there is a very good case to avert the status gap by granting the temporary right to reside during at least the period until those applicants recognised as having a good reason for a late application get a grant of status. Can the Minister give me a glimmer of optimism on that score? Surely if the Government can, as it were, freeze rights as they are doing on citizenship in this SI, they can do the same in respect of other rights, instead of the proposed drastic loss of residence rights even for those recognised to have reasonable grounds.

Will the Home Office also look again at the treatment of those judged not to have reasonable grounds? The Government have a huge set of discretionary powers and responsibilities in this area, and the worry is that there will be differing interpretations and applications of the caseworker guidance.

Could the Government also consider expanding the list of reasons considered reasonable for lateness to include, for instance, primary carers of children applying late; lack of capacity, as an automatic good reason; pregnancy and maternity around the deadline, which particularly during Covid have been even more stressful and preoccupying than they normally are; and having permanent residence, which many, however mistakenly, think is sufficient? Will the Home Office train all its decision-makers working on late application requests and monitor all decisions to ensure consistency?

Can the Minister give us an up-to-date figure on the number of outstanding applications not yet processed? In a recent letter to parliamentarians, the Home Secretary said that, as of 30 April, over 5.4 million applications had been received and over 4.9 million grants of status made. How many of the remaining half a million have been refused and how many are still to be processed? Will the Home Office publish figures on the time it is taking to process applications, the average wait and those waiting longer than, say, three, six or 12 months?

The “New Plan for Immigration” Statement of 24 May refers to the Government “Building on the success” of the fully digital EU settlement scheme. Many EU citizens are not so impressed that they are being refused a physical proof of status. Indeed, many worry about how they will prove their status after 30 June if they make a late application that is accepted on good reasons grounds. How will their prospective employers and landlords prove their right to work, rent and access healthcare and benefits? Article 18.3 of the withdrawal agreement states that:

“Pending a final decision … on any application … all rights … shall be deemed to apply to the applicant”.

How is that being complied with if they cannot generate an online “share code”? An employer or landlord required to contact a checking service will surely not bother unless they really want that employee or tenant.

EU citizens’ trust in a fully digital scheme which rests on confidence in the Home Office’s records and systems will not have been increased by the extraordinary move—to which my attention was first drawn by journalist Robert Peston—of British citizens being sent letters telling them that they need to apply for settled status. Can the Minister explain this mistake?

Lastly, press reports of extraordinarily harsh treatment of EU citizens newly arriving have not inspired confidence—far from it. Was it really necessary to detain and even deport some people, because surely even those seeking work had a right to attend an interview? What can the Minister tell me about what went wrong? Can she reassure me about training now for Border Force personnel?

My Lords, I again thank the Minister for explaining these regulations. As she explained, the draft British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021 seek to prevent children born after 30 June 2021 failing to acquire British citizenship as a result of their parents not having EU settled status at the time of their birth. As my noble friend has just said, it covers only late applications made or resolved at the end of the grace period on 30 June 2021. Although it is welcome, it raises a series of issues. British citizenship is granted on the date when settled status is granted.

I commend my noble friend Lady Ludford on her excellent questions to the Minister. As a consequence, I can be brief. First, can the Minister explain why British citizenship is not being backdated to the date of birth? If the parent was entitled to remain in the UK indefinitely when the baby was born, albeit that by reason of late processing or late application settled status was not granted until after the end of the grace period, surely the baby is entitled to British citizenship from birth. Secondly, how can a child born in the UK to a parent entitled to remain in the UK indefinitely be denied British citizenship because its parent did not fill in the right forms? The resonance with the Windrush generation, as my noble friend has just alluded to, is deafening.

Surely if the Government can amend the British Nationality Act 1981 by means of this statutory instrument to deal with a baby born in the UK to parents who do not at the time of birth have formal legal indefinite leave to remain but are subsequently granted EU settled status, they could amend the Act so that a baby born in the UK in such circumstances could be granted British citizenship from birth. The point I am trying to make is this: a differentiation is being made on the basis of an administrative process—the application for and granting of EU settled status—rather than on the right of the parent to remain in the UK as a result of living and working in the UK before 31 December 2020, for example. I understand that the Government’s position may be that EU citizens who do not apply for settled status before the end of the grace period without a reasonable excuse are not legally entitled to indefinite leave to remain, but that is a restriction that the Government have put in place.

In the case of the Windrush generation, the Government have quite rightly accepted that those who have lived and worked in this country for decades but who were undocumented because they did not apply for British citizenship or a UK passport were treated wrongly, and they are compensating—too slowly, and inadequately—those who were wronged. The Government have accepted that these people were entitled to indefinite leave to remain, despite the fact that they did not apply for proof of their entitlement. Why are the Government repeating the same mistake with EU citizens?

I am sure that this statutory instrument is meant to be a positive step, but for me it raises more fundamental questions. It demonstrates clearly what the Government can do if they so wish—and what they wish to do is to penalise EU citizens in a similar way to which they penalised those from the Windrush generation, not because they do not have every right to indefinite leave to remain in the UK but because they did not apply for it. We support this SI as far as it goes, but it does not go far enough.

My Lords, I, too, welcome this instrument and, along with the noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, I shall raise a number of questions, many of which overlap with the questions that they have already asked.

The British Nationality Act provides that a child born in the UK automatically acquires citizenship where, at the time of their birth, at least one parent is British or settled. A person waiting for their settled status to be resolved or who is eligible but has failed to apply would not count as settled during that time. This instrument amends the current law and provides that, first, a child born after the end of the grace period may be considered British from the date that their parent is granted settled status after a late application, and, secondly, that a similar protection is given to a child born after the grace period where their parent had applied to the scheme before the deadline but was still awaiting their status on the date the child was born.

We welcome this instrument, which seeks to fill a gap in provision for children born while their parents are still awaiting confirmation of their settled status or who are eligible but enter a late application. For absolute clarity, will a child born in the UK under these circumstances automatically—and by that I mean with no separate application—acquire citizenship when their parents’ status is confirmed to reflect the situation as it would have been before 30 June? Secondly, can I confirm that they will not have to register to access their citizenship and be charged the exorbitant fee, now declared unlawful, which children registering their British citizenship currently face?

Crucially, how will parents and children be alerted to the child’s right to citizenship? That was a point that was emphasised by the noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick. We welcome the fact that the non-exhaustive reasonable grounds for a late application have now been published. What is being done to reach those people who are eligible but have not made an application? Will public services that expectant parents come into contact with be aware of and able to advise on this law change?

The organisations the3million, Amnesty International and the Project for the Registration of Children as British Citizens have written to Home Office Ministers to welcome this step of securing children’s rights to citizenship. They have asked them to seek to clarify the law under this instrument on a number of points.

One question is around what information will be made available to an EU citizen who becomes settled on or after 1 July about the provisions of new Section 10A, and what it means for any children of theirs. What records will the department maintain relating to: first, the timing of any application for settled status, particularly of persons applying by the deadline but whose applications are granted after that date; secondly, the eligibility of settled status immediately before 1 July of persons granted settled status on or after that date; and, thirdly, the reasons for a grant of settled status on or after 1 July? What records will be kept for those different scenarios?

A further question is whether the department will provide access to these records to the child to whom new Section 10A applies. What other steps will the department take to ensure that the child is able to confirm their British citizenship, whether during childhood or adulthood? This was a point that the noble Baroness, Lady Ludford, made as well. Will the department provide access to these records to the parent—whether the parent is an EU citizen or otherwise—adoptive parent, local authority or other carer with parental responsibility for the child?

On those still awaiting their settled status while the deadline approaches, what extra initiatives are the Government putting in place to handle the extremely high backlog of cases of people who applied in time but are waiting for a Home Office response? In May, the backlog stood at more than 300,000 cases. Can the Minister give an update on that figure? We know that people are already being impacted by the Home Office’s delay and that it is affecting their ability to get a mortgage or their university applications. These applications have been held up by the wait people are currently undergoing.

On child citizenship more widely, earlier this year, the Home Office’s £1,000 fee for children registering their citizenship was ruled unlawful by the Appeal Court. The court found that the Government had failed in their duty to consider the best interests of children impacted by this scandalously high fee. Can the Minister say what the Government’s action will be when they reconsider this unlawful fee?

My Lords, I will first answer the question on the citizenship fee from the noble Lord, Lord Ponsonby, because it is at the forefront of my mind. We are doing a Section 55 assessment at this point in time, so that is being reviewed. It will not necessarily change the fee, but nevertheless we are doing that which the court asked of us and doing that Section 55 assessment.

The noble Baroness, Lady Ludford, asked how many children—I presume she means in local authority care—do not have settled status. I am afraid I do not know the answer, but I can tell her that a lot of effort has been made to engage with local authorities to ensure that children whose corporate parent is the state are signed up to the settlement scheme. In any event, should that fail, they would very clearly come under the reasonable excuses category. We are being very pragmatic on the reasonable excuses category; we are taking a sensible approach to people who for reasons of disability, domestic violence or the local authority just not meeting their obligations, for example, would very clearly have come under the category of being able to apply to the EU settlement scheme being in scope of that reasonable excuses framework.

On the right to work and the implications after 1 July, I say to the noble Baroness, Lady Ludford, that landlords are under a duty to do those right-to-work due diligence checks. In line with that pragmatism from the Government, we will give people time, no matter what the issue—whether the right to rent or right to work—to prove their status. I think the time is 28 days, so people will be given time.

On whether the EUSS Covid guidance is being sent out this week, I certainly know it is being sent out. Again, going back to that pragmatism, people who have not been able to get here clearly have more than a reasonable excuse not to have been here.

To answer the question from the noble Baroness, Lady Ludford, yes, the guidance will be updated in the light of the statutory instrument. In line with other issues, we will try to communicate as widely as possible what those people who might be in scope of this statutory instrument will need to do.

Are we going to expand the reasonable excuses? The reasonable excuses guidance is, I think, one of those areas where, as time goes on, we may find that people will suddenly come into scope. We will keep that under review.

On outstanding applications, there is not actually a backlog because they are within three months of application; it is more that they are progressing through the system. About 300,000 applications are estimated to be in scope. I say to the noble Baroness and the noble Lord that that work in progress might concern those who are going through the criminal justice system, and people who do not have national insurance numbers are another set who are in scope. To be pedantic, it is not actually a backlog.

On the British citizens who have been sent letters, I saw the tweet on Saturday—I was at the derby so I did not answer it, but I thought I might give the official answer today. If the noble Baroness looks carefully at the letter, she will see that it very clearly states that if you already have status or indefinite leave to remain then you can ignore the letter. If she refers to the tweet, she will see it. We are criticised when we do not do things and then we are criticised when we have duplications. In this situation, they are duplicates. For the people who do not need to apply, that is clearly stated on the letter.

Citizenship is not retrospectively granted, like much in UK law. It is from the date that their parents get settled status.

I cannot remember what the noble Lord, Lord Ponsonby, asked, but basically, once the EU settlement scheme application submitted by the parent or parents is resolved through a grant of indefinite leave, known under the EU settlement scheme as settled status, which occurs after that birth, it is free of charge.

The noble Baroness, Lady Ludford, asked why the date. It reflects the ending of the grace period, that being the last day on which EEA residents’ rights will exist for those persons resident here by 31 December 2020 and who have not made an application to the EU settlement scheme.

I think I have already attempted to answer the question on the number we expect. It is very difficult to know but, as I said, we are doing all we can to engage with people accessing things such as midwifery services to remind them to secure EU settlement scheme status for themselves and any expected children.

I think I have answered all the questions—I know the noble Baroness, Lady Ludford, is not happy with all the answers, but I think I have answered them all. If there are any supplementary questions, I would be very happy to answer them, given that we have plenty of time.

I have noticed that the noble Baroness, Lady Ludford, would like to ask a supplementary question for clarification. If the Minister is happy, and given the time, I suggest we proceed. I call the noble Baroness, Lady Ludford.

I thank the Minister for her replies, and on the question of British citizens I confess I have not seen her tweet in reply, although it is true that I tweeted at her—I am glad she was actually enjoying herself on the day. But I could have got one of those letters. Why should a British citizen be judged to be within the scope of the cohort who should get a letter? I have seen some comments following that thread suggesting that there is some Home Office scoping exercise to see who it might be missing, but it does not inspire confidence that people with British citizenship who do not need to apply for settled status are getting letters. They are always official, if not officious, letters from the Home Office which put the wind up many people—and would do so for me if I got one—implying that there is something wrong with your existing status. If you are a British citizen and get this letter, you would be nervous. I do not understand what mistake, or deliberation, has led to British citizens getting the letter.

As a second point, I think the Minister—forgive me if I am wrong—did not address what happens to children born before 30 June whose parents make a late application, or do not make one at all, but where it is later resolved. The SI is all about children born after 30 June; if they are born before 30 June but their parents, for whatever good or not so good reason, are none the less delayed in getting their status, what happens to them?

A child born before 30 June whose parent has not applied to the EU settlement scheme—if it were just the child—would clearly have the reasonable excuse that their parent did not apply to the EU settlement scheme, even though they were born in the UK. That is the answer to that question. Clearly, we are now trying to capture those children born after 30 June whose parents have applied.

On the letter, the rationale behind it is that we wanted to capture as many people as we could, not as few people, so I acknowledge that people to whom it does not apply may have received letters. I can say to the noble Baroness that we are doing a data-cleansing exercise to try to reduce that duplication. We do not want to worry people, but we do want to make sure that as many people apply as possible.

Motion agreed.

Sitting suspended.