Motion to Approve
My Lords, I beg to move that the House approves the draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019. Delivering a deal with the EU remains the Government’s priority. We are nevertheless preparing for a range of scenarios. As the Prime Minister has pointed out, the legal default in UK and EU law is that the UK will leave without a deal on 29 March unless something else is agreed.
UK domestic law has given effect to our obligations in the fields of immigration, nationality and asylum arising from our membership of the European Union. The UK has also been subject to directly effective EU law. When we leave the EU, aspects of our legislation and retained direct EU law will fail to operate effectively. They will contain deficiencies if they are not modified or revoked by this instrument.
These regulations make changes to a range of measures in domestic primary and secondary legislation to prevent, remedy or mitigate deficiencies in law arising from the UK’s exit from the EU. They ensure that our statute book operates on exit day if the UK leaves the EU without a deal until new legislation on these issues is commenced.
First, the instrument makes the technical changes required to correct wording in our legislation that describes the UK in terms of our membership of the EU or the European Economic Area. The changes do not alter the effect of the legislation. Similarly, it makes technical amendments to domestic legislation that refers to EU rights that are retained by the European Union (Withdrawal) Act 2018.
Secondly, this instrument revokes relevant retained EU legislation relating to immigration. It also revokes a number of instruments that give effect to the UK’s membership of EU asylum acquis and which will be inoperable on exit. This is because, by leaving the EU, the UK also leaves the asylum acquis. This instrument therefore revokes the Dublin regulation and the Eurodac regulation.
The instrument makes a number of transitional and saving provisions—
I have just taken advice and apparently I cannot do that. Please ignore everything I have just said.
On a day when you have three statutory instruments, an Urgent Question, a Question and a speech to deliver to the LGBT conference, this is what happens. I apologise to noble Lords that I have got the right speeches but in the wrong order. I will sit down for a minute to make sure that I have got the right instrument.
Take two, my Lords. The Government’s priority is to protect the rights of EEA and Swiss citizens who are already here. Deal or no deal, they will be able to stay and apply to the EU settlement scheme, which will be fully open from 30 March.
Delivering a deal remains the Government’s priority. We are nevertheless preparing for a range of scenarios. In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. Once free movement has ended, transitional immigration arrangements will be in place until the new skills-based immigration system is introduced from January 2021. The intention is to minimise disruption at the border and avoid a cliff edge, providing initial continuity for EEA and Swiss citizens and for businesses. The Government announced these arrangements on 28 January.
I make it clear that these transitional arrangements will not apply to EEA and Swiss citizens resident in the UK before exit. These citizens will be able to apply to secure their status under the EU settlement scheme. Nor will they apply to Irish citizens, who, under common travel area arrangements, will continue to be able to enter and remain in the UK without requiring leave.
Those who are not eligible for the EU settlement scheme will require leave to enter once free movement has ended, and this order provides the mechanism by which that leave to enter will be granted. Such citizens will be granted leave to enter for a period of three months, automatically, upon arrival at the border. This means that they will be able to cross the border much as now, including using e-passport gates. They will not be questioned routinely or have their passport stamped. This leave will allow them to work, study or visit for short periods as we transition to the new skills-based immigration system to be introduced from 2021.
For many individuals, a single three-month period of leave will be sufficient. Others, such as regular business visitors or frontier workers who live in the EU but work in the UK, may wish to come on more than one occasion. The order will enable them to do so by granting leave to enter automatically on each arrival. As now, there will be some EEA and Swiss nationals whom we will not wish to enter the UK—for example, where their presence in the UK is undesirable on criminality or non-conducive grounds. Those who are the subject of exclusion or deportation orders or other specified decisions will not benefit from the automatic leave provisions, and Border Force officers will be able to cancel automatic leave where an individual’s presence in the UK is deemed to be non-conducive. Those who wish to remain for longer than three months would need to apply for European temporary leave before the end of the initial three-month period. This would give them a further 36 months’ leave to remain. These arrangements are a contingency plan, necessary only in a no-deal scenario, to allow us to transition smoothly from the end of free movement to the future skills-based immigration system.
The order also makes changes to support the EU settlement scheme in both a deal and a no-deal scenario. It provides that those granted settled status may be absent from the UK for up to five consecutive years without it lapsing. For Swiss citizens granted settled status or their family members, this period will be up to four consecutive years, in line with the citizens’ rights agreement negotiated with Switzerland. It also ensures that scheme leave granted to a Crown servant, to a permanent member of the British Council who is an EEA or Swiss national or to a member of Her Majesty’s forces will not lapse as a result of an overseas posting. This will also apply to a person with scheme leave accompanying them, or accompanying a British citizen, on such a posting. The order facilitates overseas applications to the scheme and clarifies that scheme applicants will not need to pay the immigration health charge.
These are important measures to support the delivery of the EU settlement scheme and our no-deal contingency plan. I beg to move.
Amendment to the Motion
At the end insert “but that this House regrets that the draft Order provides for changes to the status of European Economic Area nationals entering or resident in the United Kingdom that should be made with the full scrutiny of both Houses in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill; and that Her Majesty’s Government have failed to provide details on the practicalities of the varying types of leave to remain, including how they will be enforced, the length of an application process for extended leave to remain, and the impact on individuals who may be asked to prove their status”.
My Lords, the Minister is so liked and respected in the House that we were all sitting here listening with complete attentiveness to every word she said, and it was only when the word “Dublin” was mentioned that we realised we were dealing with the wrong instrument. We all like the Minister very much and know that she is very busy outside the House as well.
An immigration Bill is going through Parliament, and there is a theme here: yet again, we feel that the Government are hiding from scrutiny and have come up with a patchwork of complicated law through secondary legislation, which we do not think is the right thing to do. They will argue that these provisions need to go through very quickly but, as we have heard, the immigration Bill provides for the end of freedom of movement, so the provision in the order for automatic leave to enter for EEA nationals after freedom of movement has ended can come into force only once the Bill has been passed into law. The timescales are identical, so these provisions should have been up for debate and amendment in that legislation.
The Secondary Legislation Scrutiny Committee has raised questions about how the three-month period will be enforced because, as the Minister said, those entering the country will not be stamped on entry. I have heard the term “light-touch enforcement” used. Could we have an explanation of what that means in practice?
The House of Commons was told that to remain longer than the initial three months, an EEA national would have to apply for temporary leave to remain for up to 36 months. After that, they would have to apply through the new immigration system that should be in place by then. Can we know how long an application will take for temporary leave to remain? If a person goes over the initial three months while waiting for leave to remain, what happens then?
EEA nationals will be over here under three different systems: settled status, the three-month visa and temporary leave to remain for longer than three months. In light of the Windrush scandal, are the Government doing everything they can to ensure that individuals with the right to be here are not routinely and wrongfully challenged or adversely affected, and that they will have no problem proving their right to be here if necessary? This is a most regrettable statutory instrument, which is why I have tabled my amendment. I beg to move.
My Lords, the first extraordinary thing to say about this statutory instrument is that the Secretary of State did not consider it necessary to consult anyone about it. The second is to make clear its effect and to contrast it with the Government’s often-repeated mantra, not just for leaving the EU but for the dead horse that is Theresa May’s withdrawal agreement, both of which the Government and those in favour of leaving the EU describe as “taking back control of our borders”. The only sense in which this instrument can be interpreted as taking back control of our borders is that the Government have decided by themselves to give up control of our borders without any influence from the EU.
The other contradiction between what the Government claim to be doing and are actually doing is that they say that they are going to create a level playing field for EU and non-EU citizens regarding entry to the UK. This instrument gives preferential treatment to EU citizens after we leave the EU. It grants automatic entry to the UK for EU and EEA citizens even after we leave the EU, with leave to remain for a period of three months. EU and EEA citizens do not even have to have a passport; they can travel on a national identity card. If they do have a passport, they can use the automatic e-gates at airports. In other words, they are as free to enter the UK as they were under freedom of movement. Can the Minister confirm this?
The instrument says that a person given leave to enter under its rules may be examined by an immigration officer in the usual way to see whether there are grounds for cancelling leave. The Minister mentioned foreign-national criminals and those whose presence may not be conducive to the well-being of the UK. Can the Minister confirm the difference between the current ability of the UK to stop such individuals, including EU nationals, entering the UK under the freedom of movement rules, and our ability under the rules of this statutory instrument?
The instrument exempts those granted leave to enter from the Immigration (Health Charge) Order 2015. My understanding is that the charge is payable only for a stay of six months or more. As this instrument grants leave for only three months, can the Minister explain why there needs to be an exemption?
The Explanatory Memorandum says that there will be no restriction on the activities that EU and EEA citizens can undertake, which means that they can work, study or visit while in the UK after we have left the European Union. Can the Minister confirm that non-EU, non-EEA citizens will not be given automatic entry to the UK with no restrictions on the activities they can undertake?
Can the Minister tell the House how long an EU or EEA citizen will have to spend outside the UK before they would be eligible to enter again for another three months, with no restrictions on the activities they undertake? For example, could a French citizen go to Calais for the weekend, then return for another three-month unrestricted stay in the United Kingdom?
The instrument has no impact assessment, as,
“no, or no significant, impact”,
on the private, voluntary or public sector is foreseen. Bearing in mind that EU and EEA citizens will effectively be allowed to live and work in the UK unrestricted, bar the occasional weekend outside the UK, without having to pay the immigration health charge, is the assertion that there will be no impact on the private, voluntary or public sector sustainable? In addition, if this instrument were not implemented, and EU and EEA citizens were not granted automatic entry, surely there would be a significant impact on the Border Force. Should the impact assessment not reflect this? Can the Minister explain how the Government intend to prevent EU and EEA nationals entering and remaining in the UK for more than three months, and how they intend to monitor and enforce this restriction?
Noble Lords should not misinterpret our position: we want free movement to continue. What I object to is the Government claiming to be taking back control of our borders, ending free movement and creating a level playing field for those entering the UK from EU and non-EU countries, when this instrument appears to do exactly the opposite. Saying “well, the difference is that now we are deciding to throw open our borders, not the EU”, is an interesting position to take. However, removing the cap on the number of skilled workers entering the UK, as the Government are suggesting in their year-long consultation on their future immigration policy, is at least consistent with this SI. We support the SI, but not the apparent hypocrisy of the Government.
My Lords, we risk getting somewhat lost in the detail here. It seems that the Government are now proposing to open up some 9 million jobs to worldwide competition, while at the same time effectively continuing with free movement to the European Union, as the noble Lord, Lord Paddick, said. As I said before, the risk is that this will run straight out of control. We really need to get hold of this, stay on the main points and be quite sure that the Government are ready to react if the numbers start getting really difficult.
My Lords, I add to what my noble friend Lord Paddick said—it is the disjuncture and hypocrisy that upsets us. Of course, this is a one-way continuation of free movement. Many of us were extremely distressed when the Prime Minister cited the top reason for celebrating her ill-fated draft withdrawal agreement and political declaration last November; apparently, its top benefit was ending free movement. In fact, this is not happening—at least, not into the UK—and no consideration was given to the benefits of free movement for UK citizens in the rest of the EU. This instrument says nothing about those opportunities, which are being torn away from UK nationals. This will particularly affect young people and those of all ages who want to work or retire in the rest of the EU. It is the Government’s inconsistency which strikes such a difficult note.
Had I had the opportunity to ask my noble friends on the Front Bench, who know a great deal more about immigration law than I do, I may not have needed to ask this question, which concerns the difference between Articles 3 and 7, which I do not really understand. Article 3 is entitled:
“Grant of leave to EEA and Swiss nationals”.
Article 7 is entitled:
“Grant of leave by virtue of Appendix EU to the immigration rules”.
I simply do not understand the difference between those legal bases for extension of leave, as “EEA nationals” covers EU nationals as well. Perhaps the Minister could help me. That also spills over to the health charge, because Article 10, on exempting from the health charge, appears to apply only to those who acquire leave to enter or remain,
“by virtue of Appendix EU to the immigration rules”.
It does not appear to cover those who get leave under draft Article 3. As I say, it may just be that I do not understand how all this interacts, but perhaps the Minister can enlighten me.
My Lords, I thank my noble friend for the careful and charming way in which she introduced this SI. But we had better remind ourselves what “free movement” actually means. It means that people can move from one part of the European Union to another—but in fact, of course, at some stage they have to have a job. You can remove them from one country to another if they do not have one. That is part of the arrangement.
My worry about this is that we say that we are ending free movement, but actually we have not included the one thing that is a perfectly proper restriction on free movement that we have had up to now. So we are removing the one thing that most people would find unacceptable, which is the mechanism whereby you make sure that people move around the European Union with a purpose and do not become a burden on a particular country they have chosen to go to. I find that bit really very peculiar. No doubt the Government have thought that all through, so we will hear exactly how it works.
Although I shall say this as politely as I possibly can, I think that this is a load of old nonsense. I really do think that the idea that we will grant these opportunities for the rest of Europe but are putting ourselves into a position in which none of these opportunities might be granted to any of our citizens seems to be one of the best examples of the fact that Brexit is a mechanism for shooting ourselves in the foot. The reason we are doing this in a one-sided way is exactly the same as with every other SI we have had: the only things we can do with SIs are the things that affect us, rather than anything in the rest of Europe that affects our people. What better exemplar of the stupidity of leaving the European Union can there be?
My noble friend is of course bound to defend the Government’s policy—although I have to say that I am not really sure what the Government’s policy now is. Indeed, I have not really been sure for some long time, and today it seems even less clear than it was yesterday. No doubt tomorrow it will be more opaque still. But the reality is that this SI displays the fundamental problem that, during the referendum campaign, a lot of promises were made. One of them was, as the noble Lord, Lord Paddick, said, that we would “take back control”. So we are taking back control to allow other people to travel into our country, but removing our right to travel into their countries. As a piece of control taking back, that seems somewhat limited in its attraction.
I often ask myself how I would speak on a platform if I was asked a question about these SIs. Indeed, it is a way I think when I look at what we are proposing on the climate change committee. I say to myself, “How would I explain that on a platform?” It is a useful thing for a long-term politician. So I am standing on a platform and somebody says, “Can I go to the rest of Europe like I have always done?” The answer is, “We don’t know, because we haven’t done a deal on that”. “Can my aunt, who happens to be French, come to Britain even if she hasn’t got a job?” The answer to that is probably yes. “How do they make sure she’s here for only three months if she doesn’t have to show her passport or have it stamped?” The answer is that they probably cannot. “Well, will they look out for her?” “No, we’ve agreed that there’s not going to be any looking out for people; it’s not going to be like that at all”.
How does that draw that into the same position as somebody who comes from the United States? Of course, that is entirely different; they have to show a passport and make the arrangements. I do not mind that, because we do not have a mutual arrangement with the United States—but at least we do not have a one-sided arrangement with the United States. At least we do not say that Americans can come here and do all these things and we have no willingness to go there.
I really got up to say to my noble friend how sorry I am that she has had to defend this SI—because it is indefensible. It is a nonsense. It is quite wrong to give other people the rights to enter our nation and say that that is taking back control, and it is quite wrong to give those rights without having previously arranged that we should have the same rights in the rest of Europe. To hide it behind the use of the phrase “free movement” is, of course, the really serious thing, because free movement has always been restricted. If the Government have not used those restrictions effectively, that has been the fault not of the European Union but of United Kingdom Governments of all denominations and types. So I say to my noble friend: okay, no doubt the SI will be passed, but do not think that it does any honour to this Government—and it certainly does no honour to Britain. I am getting more and more embarrassed at the way the rest of the world is seeing us.
My Lords, following on from the point made about stamps in passports, and as a procedural point, would the Minister confirm that all persons exiting the UK are now properly registered as having left the UK? There was a point in recent times when that was not the case. There were stamps for entry, but I understand not for exiting. Clarification at an appropriate time would be helpful.
I would like to follow up that last point. It is what I have been talking about for years. We have totally inadequate means of knowing who has come in, when they have come in, when they should leave and whether they have left. The whole system is a shambles. This is an opportunity to get it right.
I thank noble Lords for their contributions to this debate. My noble friend Lord Marlesford is correct; this is an opportunity to get it right.
It would probably be helpful to start by stating the purpose of this statutory instrument, and that, I hope, will go to some extent to my noble friend Lord Deben’s point. This statutory instrument is essentially a temporary arrangement in a no-deal situation, until free movement ends under the immigration Bill. In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. In a no-deal scenario, once free movement has ended, there would be a transitional period until the new skills-based immigration system is introduced in January 2021. This order ensures that during this period, we would minimise disruption at the border and provide initial continuity for EEA and Swiss citizens, and for businesses. The Government announced these transitional arrangements on 28 January. Regarding the points made by the noble Lord, Lord Paddick, about seeming to favour EU nationals, the whole point of this is to provide that transitional certainty.
The noble Lord, Lord Kennedy, talked about how the three-month period would be enforced. Obviously these are transitional arrangements, to be put in place only in the event of no deal. We cannot switch things off and on overnight, so we need to ensure that the correct legislation and operational plans are in place. It will take some time to prepare for our new skills-based immigration system, but the Government have been clear that our intention is for it to be in place by 2021.
These arrangements lay the foundations for the future. We cannot control European immigration until all EEA and Swiss citizens here have a UK immigration status, which will take some time. In a no-deal scenario, those resident here by 29 March 2019 will have until the end of 2020 to apply to the EU settlements scheme. These arrangements enable us to move from a rights-based system of free movement to a UK system where everyone requires permission to be here. Accordingly, until the new system is introduced, a proportionate, light-touch enforcement approach will be taken in respect of EEA and Swiss citizens. The noble Lord asked me to define “light touch”—I assume that it means without too much bureaucratic involvement in form filling and other matters that make life very difficult.
If an EEA or Swiss citizen is found not to have appropriate status, we will encourage them to make the relevant application. I am absolutely clear on the importance of clear communications so that individuals understand their status. This is imperative for those resident in the UK before we leave the UK on 29 March, and those who arrive here afterwards. Our focus is on encouraging and supporting EEA and Swiss citizens to acquire an appropriate status and ensure that they have sufficient time to do so. We are committed to a fair immigration system which operates with integrity and which welcomes those who are here legally. But we are clear that compliance with UK immigration laws and rules is essential in supporting this.
For those who arrive after free movement ends, we will make it clear that they need to apply for European temporary leave to remain before their three months’ automatic leave expires. Where they have good reason for not doing so, we will encourage them to make this application, or to leave the UK voluntarily, but where there is abuse of the system, we will consider enforcement action.
The noble Lord, Lord Kennedy, asked how long the application will take. Applications for 36-month temporary leave to remain will use the EU settlement scheme infrastructure, which allows them to be determined within a period of days. He also asked what will happen at the end of the three months to those who will have applied for 36 months’ leave. If a person applies for 36 months leave within three months, they can still stay lawfully in the UK until their application is decided.
The noble Lord, Lord Paddick, asked why the exemption from the immigration health surcharge is needed. The exemption in this order applies to those applying for leave under the EU settlements scheme, not those who obtained three months’ leave to enter under part 2 of the order. The noble Lord also asked if people could leave the UK, then return and obtain a further three months. The answer is yes.
The noble Lord, Lord Kennedy, asked about the three months’ automatic leave to enter. The order provides that in a no-deal scenario, three months’ leave to enter would be granted to EEA and Swiss citizens who required such leave once free movement has ended. It would be granted automatically upon arrival at the border, allowing them to work, study or visit for short periods as we transition towards the new skills-based immigration system, to be introduced from 2021.
The noble Lord, Lord Paddick, asked about consultation on the order. These are transitional arrangements to ensure that the border remains fluid after the end of free movement, and until we move to the order arrangements, from 2021 onwards. These plans were set out in the Government’s White Paper, The UK’s Future Skills-Based Immigration System, and the Government intend a 12-month period of engagement on such plans. The noble Lord also asked about the exit checks on EU nationals now. They will be introduced when we leave.
I am a little confused. At points, the Minister appeared to say that this was a temporary arrangement in the event of no deal; at other times, she talked about a temporary arrangement pending the introduction of a skills-based scheme. At some points, she talked about that scheme being in place by January 2021; in other places, she talked about it being our intention to have a skills-based scheme in place by January 2021. Is it definite or an intention?
On the light-touch regulatory regime, does that mean that there is a mechanism to enforce the three-month limit on stays in the UK or that there is no such mechanism? Light touch and non-existent are two different things.
I thank all noble Lords who have spoken in support of my amendment. The inconsistency, the lack of scrutiny and the whole basis on which the Government are making the regulations are the issues in question for me. The noble Lord, Lord Deben, said much more eloquently than me everything that I wanted to say and I agreed with every word. The only thing I would add is that I am equally confused by the position of my own party on these matters, but that is probably for another place. I am happy to withdraw my amendment.
Amendment to the Motion withdrawn.