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Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Volume 806: debated on Wednesday 21 October 2020

Commons Reasons

Motion A

Moved by

That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.

1A: Because Skills for Care and the Migration Advisory Committee already have the remit to report on matters relating to social care and the immigration system.

In the Commons on Monday, the Government chose to describe your Lordships’ amendment calling for an independent report on the impact of the end of free movement on the social care sector as “well intentioned”, but went on to claim that it was “unnecessary”—

I was very politely waiting to be asked, then the noble Lord, Lord Rosser, came in. Shall we start again?

My Lords, with the leave of the House, I will turn to Motion A, Amendment 1, and Amendment 1B in lieu, proposed by the noble Lord, Lord Rosser, which would require the Secretary of State to publish an independent report on the impacts of ending free movement on the social care sector. I start by acknowledging the work of noble Lords in the scrutiny of this important Bill, which ends free movement between the EU and the UK, and the passion and commitment with which your Lordships have spoken on a number of issues. We have debated many issues, and although there are some areas on which we may still disagree, I always come back to the focus of this Bill: ending free movement and delivering on the Government’s manifesto commitment to introduce a firmer, fairer points-based immigration system.

Amendment 1B requires the Secretary of State to publish the response to the independent assessment within two months of publication and make a statement to Parliament within seven sitting days of publishing the response. I recognise the good intentions behind Amendment 1, but the other place disagreed to it because independent reporting already exists in this area through Skills for Care and the Migration Advisory Committee. The Government remain committed to improving social care, focusing on increased funding and training opportunities and improved recruitment practices. I will reflect further on a few related points.

The Department of Health and Social Care funds Skills for Care to deliver a wide range of activity to support the Government’s priorities for the social care sector. This includes programmes to support employers and the workforce with skills development, promote and support recruitment into the sector and support leadership development. The DHSC’s funding also supports the development of Skills for Care’s adult social care workforce data system, which forms the national minimum dataset for social care. Skills for Care publishes two annual reports: on the size and structure of the adult social care sector and workforce in England, and the state of the adult social care sector and workforce in England. In addition, Skills for Care makes available national and regional data through its website. The DHSC uses the data produced by Skills for Care, and the trends identified, to inform its policy development to support the adult social care sector to recruit, train and develop its workforce.

As I have said, the independent Migration Advisory Committee now has an expanded remit to examine any aspect of the immigration system and provide annual reports. The Government continue to reiterate their continued commitment to keeping all policies, including the skilled worker route, under review. The MAC is a world-class independent body and has the means and the will to ensure that the views of interested stakeholders and users of the system are fully considered. In doing so, the MAC’s consideration always goes beyond its core economic expertise.

Noble Lords will have heard me say a number of times during the passage of this Bill that the immigration system is not the solution to all issues in the social care sector and we must not continue to rely on migrants coming to the UK when the domestic workforce can help to address shortages. Training, recruitment, and retention of staff are the key; we must ensure that these essential workers feel valued. That is why the Government are focused on working alongside the sector, including through Skills for Care, to develop new career pathways within the sector and ensure that the workforce can meet the increasing demands and continue to deliver quality compassionate care. It is also why the Government are committing record funding and investment.

Under the UK’s new points-based system, as is now the case, there will be routes for people with general work rights, such as dependants, those joining family or those on youth mobility visas, who may choose to work in the social care sector. I have made this point before, but even with free movement between the EU and the UK, the majority of workers in the social care sector are British citizens, which we must continue to encourage, and non-EEA citizens outnumber EEA citizens, without a specific immigration route. We also intend to review which occupations are eligible for the health and care visa, expanding its remit and benefiting more main applicants and their family members.

Noble Lords will see from what I have said that there is already independent reporting on social care. However, I am prepared to go further and commit today that we will agree to publish an independent assessment of the impact of ending free movement, which will comprehensively cover the impact on the social care sector, within six months of this Bill being passed. We therefore believe that Amendment 1B is unnecessary, although it is very well intentioned. However, I would like to discuss with the noble Lord, Lord Rosser, how we take this forward to ensure that we get the detail right, strike the correct level of scrutiny and clarify some of the definitions that he uses. As the noble Lord has requested, I am happy to give a commitment to carry out the terms of his amendment. I hope that, on that basis, the noble Lord will not insist on his amendment or divide the House on Motion A1.

Motion A1 (as an amendment to Motion A)

Moved by

1B: Insert the following new Clause—

“Impact of section 1 on the social care sector

(1) The Secretary of State must commission and publish an independent assessment of the impact of section 1, and Schedule 1, on the social care sector within six months of this Act being passed.

(2) The Secretary of State must appoint an independent Chair to conduct the assessment.

(3) The assessment must consider the impact of provisions in section 1, and Schedule 1, on—

(a) the social care workforce

(b) available visa routes for social care workers;

(c) long-term consequences for workforce recruitment, training and employee terms and conditions; and

(d) such other relevant matters as the independent Chair deems appropri-ate.

(4) A copy of the independent assessment must be laid before both Houses of Parliament within fourteen days of its publishing date.

(5) The Secretary of State must publish a response to the independent assessment within two months of its publishing date.

(6) The Secretary of State must make a statement to Parliament within seven sitting days of publishing the response under subsection (5).””

I thank the Minister for what she has just said about my amendment, which started off life in Committee, being moved by my noble friend Lord Hunt of Kings Heath, albeit not with exactly the same words. As I understand it from what the Minister has just said, the Government are not prepared to accept the amendment to the Bill but are giving a commitment to carry out the terms of the amendment in full, and that must, therefore, include the timescales laid down in it. If that is the case—and the Minister gave a commitment to carry out the terms of my amendment—then I will not seek pursue my Motion to a vote.

I note that the Minister said that she wished to discuss with me how we ensure—I I think that was what she said—that we get the detail right, and, of course, I am happy to do that within the context of the Government having committed to carry out the terms of my amendment in full, including the timescales laid down in it. I do not think I misheard what the Minister said: I certainly heard the phrase “give a commitment to carry out the terms of his amendment” being used with no caveats added. Therefore, on the basis that the Government are committing themselves to carry out the terms of my amendment in full, then I would be prepared to withdraw my Motion when the time comes.

However, I would like to add one further comment. Within the terms of the amendment, it is, of course, left to the Government to decide who will undertake the

“independent assessment of the impact of section 1, and Schedule 1, on the social care sector”.

These relate to the ending of free movement. From what the Minister has said, I suspect that a candidate will be the Migration Advisory Committee, whose views on even the single issue of funding social care for higher wages have been ignored “for some years”, to use the MAC’s words. That does not suggest that it is a body whose views on that issue carry much weight with the Government. It will be vital for the independent assessment to have a significant and meaningful input from people of influence who understand fully the way in which the social care sector functions and the constraints under which it operates. Although it is a matter for the Government, I hope they will ensure that that vital, significant and meaningful input occurs.

On the basis that I have understood clearly what the Minister has said on behalf of the Government—namely, that she has made a commitment to carry out the terms of my amendment, and that this must be in full because there were no caveats added—then I would be prepared not seek to pursue the matter to get it written into the Bill. I beg to move.

I thank the Minister for her response this afternoon and her agreement that an independent assessment would be undertaken. I endorse the remarks of my noble friend Lord Rosser. At the end of the day, whatever the worthy work of Skills for Care has been and whatever the recommendations made by the Migration Advisory Committee, we have a big problem with the social care sector in relation to the workforce challenges. The intention that, basically, most care workers cannot meet the criteria in the new health and care visa means that, from the beginning of next year, further pressure will be leant upon the sector.

Given that the sector is almost totally dependent either on government funding or on self-funders—who are already hugely overstretched because they sometimes pay more than £1,000 a week for their care—this will not be solved simply by saying that we can rely on the UK population. There will have to be an injection of resources; this is inescapable. In thanking the Minister, which I do very much, for her response this afternoon, I remind the House that the social care sector faces many huge challenges, and, in the end, the Government are going to have to come up with the necessary if we are going to get it out of the problems that it now faces.

Does anyone in the Chamber wish to speak? We have not received any requests as yet. Does the Minister wish to reply to the noble Lord, Lord Hunt? No? Then I call the noble Baroness, Lady Hamwee.

I am, of course, pleased to hear the Government’s decision on this. From and on behalf of our Benches, I added my name to the previous versions of this amendment. The point has been made throughout the Bill that the amendment is unnecessary, but, given that its proposers have kept on pressing, clearly they have not been satisfied. This is good news, but one always has to think around the subject, and I wonder what the correct level of scrutiny is. To me, it involves stakeholders very widely and the context for consideration of a proposal, which, in this case has to be more than just the immigration provisions which may apply. One thing on which I agreed with the Commons and with others who have spoken is that the social care crisis cannot be solved through immigration alone: it is much wider than that.

The correct level of scrutiny involves the organisation being scrutinised—in this case, the Government and their proposals—not being committed to its initial proposition but being prepared to listen to the responses. We are always faced with statutory instruments where there is no possibility of making a change. It would be tragic—I do not think that is putting it too highly—if the opportunity is not taken on this occasion to adopt a much more open-minded practice. Having said that, I welcome what the Minister has said.

I apologise to noble Lords; I keep wanting to pop up at the wrong time during this debate. However, I thank all noble Lords who have spoken in this part. First, I come to the noble Lord, Lord Rosser, and absolutely commit to the timescales set out in his amendment. He asked, with a certain degree of cynicism, I think, who will carry it out and suggested the Migration Advisory Committee. It must be a hot contender for it, but I take his point about the skills of the people who carry it out.

When settling on the proposals for the new points-based system, we did not do it in isolation; we conducted an extensive programme of engagement with stakeholders— as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Hunt of Kings Heath, alluded to—across the whole of the UK, including in the social care sector, listening to people’s concerns and hearing about the unique challenges they face.

Both the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Hamwee, have in different ways pinpointed that the workforce challenges are not single silver-bullet issues—they will not be solved by continuing along the trajectory of low pay. It is incumbent on employers in what has been, throughout the last few months and years, a very valued occupation not to continue to rely on low-paid workers. As the noble Baroness, Lady Hamwee, said, social care cannot be solved just by immigration; progress needs to be made with a whole plethora of interventions in this area of a much-needed, well-respected and very much appreciated workforce.

In the light of what the Minister has said, which I appreciate and welcome, I shall withdraw my Motion. Obviously, I do so on the basis of the Government having given a commitment to carry out the terms of my Amendment 1B in full. I am happy to participate in the further discussions which the Minister has said she wishes to have with me, and I therefore beg leave to withdraw the Motion.

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A agreed.

Motion B

Moved by

That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.

2A: Because the Commons consider it appropriate to ensure equal treatment of family members of all UK nationals under the immigration system.

My Lords, Amendment 2, in its previous form, was also disagreed to in the other place. It seeks to continue certain family reunion arrangements provided by EU law—the so-called Surinder Singh route.

Amendment 2B, tabled in lieu by the noble Baroness, Lady Hamwee, would require the Government to provide the right for British citizens resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied, or joined, by their non-British close family members on current EU free movement law terms until 31 December 2040—that is, for a period of 20 years from the end of the transition period. They would retain preferential family reunion rights for that period. For the next 20 years, family members of British citizens living in the EEA or Switzerland would continue not to be subject to the same Immigration Rules as family members of other British citizens. This would perpetuate a lack of parity, which the Government cannot accept.

Family members of British citizens resident in the EEA or Switzerland at the end of the transition period are not protected by the withdrawal agreements in terms of returning to the UK, but we have made reasonable transitional arrangements for them. British citizens living in the EEA or Switzerland will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, unmarried partner in a long-term relationship, child or dependent parent—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after that date, and must continue to exist when the family member seeks to come to the UK. Those family members will also then be eligible to apply to remain in the UK under the EU settlement scheme.

Family members will be able to come to the UK after 29 March 2022 but will then need to meet the requirements of the family Immigration Rules. Those rules apply to the family members of other British citizens, irrespective of where they come from, and reflect the public interest in preventing burdens on the taxpayer and promoting integration. This is a fair and balanced policy. It was announced on 4 April 2019, so those affected will have had almost three years to decide whether they wish to return to the UK by 29 March 2022 on current EU law terms and, if they do, to make plans to do so.

The Government’s approach strikes the right balance between providing sufficient time for British citizens and their family members living in the EEA or Switzerland to make decisions and plans for returning to the UK, and ensuring equal treatment of the family members of British citizens under the Immigration Rules as soon as is reasonably possible once free movement has ended. We must be fair to other British citizens, whether they are living overseas or in the UK. The same rules should apply to all, not continue for the next 20 years to give preferential treatment to those relying on past free movement rights, which will have been abolished. That is what a fair global immigration system means.

I hope that noble Lords will not insist on their Amendment 2 or agree to Amendment 2B in lieu. I beg to move.

Motion B1 (as an amendment to Motion B)

2B: Page 3, line 8, at end insert—

“(5A) Regulations made under subsection (1) must make provision to enable UK citizens falling within the personal scope of—

(a) the Withdrawal Agreement,

(b) the EEA EFTA separation agreement, or

(c) the Swiss citizens’ rights agreement,

to return to the United Kingdom before 31 December 2040 accompanied by, or to be joined in the United Kingdom before 31 December 2040 by, close family members.

(5B) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members of UK citizens which could not have been imposed under EU law relating to free movement, as on the day on which this Act comes into force.

(5C) For the purposes of subsection (5A)—“close family members” means—

(a) children (including adopted children), and

(b) other close family members where that relation subsisted on or before 31 January 2020 and has continued to subsist;

“Withdrawal Agreement”, “EEA EFTA separation agreement” and “Swiss citizens’ rights agreement” have the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).””

My Lords, I am moving an amendment similar to that moved at a previous stage but with a change to meet one of the points made against it.

It came as a shock to me to learn that there will be restrictions on, and conditions applying to, a UK citizen wishing to return to the UK with a non-British family. In Committee, I asked what the Minister would advise a couple with elderly parents in both countries, for both of whom they wanted to care. This rather follows on from the previous amendment. Following that, I received many emails describing many, varied families affected. They all explained the anxiety they felt.

The minimum income requirement will apply, as the noble Baroness said, after March 2022 as it applies now to a UK citizen wishing to bring a non-UK—currently non-EEA—family to this country. I have always felt that the MIR is very harsh. It presents real difficulties, including as regards the spouse’s contribution to the household income. In the 21st century, most households are necessarily two-income households. In response to the point that these families should be treated the same as families that include non-EEA citizens, I say that it should not apply to them either, but that would not be within the scope of this Bill—although I would have liked to have taken that opportunity. Those families will, in very many cases, have been aware of the situation when the family unit was created.

I understand the Government’s concern that EEA citizens should be treated the same as citizens in the rest of the world after the end of free movement, but the situations are not exactly the same. When marriages were made and families created after we had acquired rights of free movement, who would have given a thought to what might happen if those rights ended, or indeed given thought to whether those rights might end? And who in the British military who met their spouse when they were serving abroad would have contemplated this situation? I do hope that the Secretary of State has read their letters.

The provision may not be retrospective in a technical sense, but in an everyday sense it is. This is not something that is widely understood, even now. The Government’s original proposal in June 2017 did not deal with the issue. As the noble Baroness said, the public announcement of the 2022 date came out in a paper in April 2019 and was presented as a concession. The paper said that the Government recognised that UK nationals needed certainty—this was after we were supposed to have left the EU.

I wondered whether I had missed something here, so I checked on what had been done, and when, to make people aware of the position. Had the Foreign and Commonwealth Office attempted to draw this to people’s attention? Had our embassies raised it in local town hall meetings abroad? One, rather dry, comment made to me was that, if these citizens had voting rights, the embassies would have been able to make direct contact with them. I understand that the targeted FCO campaigns have focused largely on rights in the host country, advising people to register and to change their driving licence, for instance.

On the “Living in France” and “Living in Italy” pages on GOV.UK, I clicked on “Ending your time living abroad” and, after a couple more clicks, found—because I was looking for it—“bringing your family”, which told me that a visa would be needed for them. One might easily stop there. Immigration rules required further clicks, and so on. I understand that all this is still coming as a surprise, and of course a shock, to those who happen to trip over it.

An EU citizen here now or by the end of this year can bring in family members—and quite right too. But is it not right for our own compatriots? This is discrimination against UK citizens. It is not as if what we propose would open any floodgates. It is self-limiting: no-one would qualify after free movement had ended; it is not a “perpetual” or “for ever” right, as it has been badged.

Criticism was made on Report that there was no cut-off date by which a UK national must return to the UK. Ministers say that three years gives a reasonable period to plan. This version of the amendment includes a cut-off date—deliberately long—of 20 years after the end of the transition period. By then, most of those affected, who will have formed settled relationships and families, are likely to be over 50 with parents of 70 or 80, so their families would be in a better position to know whether returning to the UK was likely to be necessary. The Minister in the Commons presented the 2022 date as reflecting a need

“to be fair to other British citizens”—[Official Report, Commons, 19/10/20; col. 804.]

as if there is something “other” about UK people who have married people from the EEA. He also said that the Government would keep the policy “under review”, so I would be grateful if the noble Baroness the Minister could expand on that today: when, how, with whom? She has described the policy as simple fairness. We disagree. What we are proposing is what I would describe as fair, and I will wish to test opinion of the House.

The following Members in the Chamber have indicated a wish to speak: the noble Baroness, Lady Ludford, and the noble Lord, Lord Oates. I now call the noble Baroness, Lady Ludford.

My Lords, I agree with everything that my noble friend Lady Hamwee has said. The Minister said that the arrangements that the Government have made are “reasonable”, but one has also to think of the reasonable expectation of British citizens who may have moved abroad, married, set up partnerships and had families with citizens from elsewhere in the EEA. They would have had no reason to suppose that the conditions and rules under which they did that would change—after all, the promise of a referendum in 2015 came somewhat out of the blue; it really was not expected. My noble friend’s amendment would accommodate fairly those reasonable expectations while meeting the Government’s apparent objection that they do not want a period which is unlimited.

The Conservative manifesto for the 2017 general election promised to legislate for “votes for life” for Britons living abroad. That has not happened, but, at the time, the Conservatives rejoiced at scrapping what they called the previous Labour Government’s “arbitrary” 15-year rule. I think that one could also describe the Government’s three-year rule in this scenario for UK citizens living in the EU as arbitrary.

Mr Chris Skidmore, who at the time was Minister for the Constitution, said:

“British citizens who move abroad remain a part of our democracy and it is important they have the ability to participate … Our expat community has an important role to play.”

One can deploy that statement in this context. These were valuable sentiments about Britons living abroad. I would transfer them to say that British citizens residing elsewhere in the EEA should have the right to participate not only politically but economically and socially in this country. To put them now in a quandary of having to decide by March 2022 what their family circumstances with parents and children could be in the decades ahead is an unnecessary, arbitrary and unreasonable imposition. Twenty years is a highly reasonable proposition.

The Conservative Party has long claimed to be the party of the family. Please can it demonstrate that it is the party of families of UK citizens who chose, in reasonable expectation of free movement rights continuing, to live and set up home and families with citizens from the rest of the EEA. They are now placed in extremely difficult and worrying circumstances. It is not fair play to them to do that. My noble friend has given the Government an opportunity to find a way a through this which preserves honour and fairness all round.

My Lords, I shall speak only briefly because my noble friends Lady Hamwee and Lady Ludford have comprehensively set out the injustices that will be visited on thousands of British citizens and their families if the Government’s policy stands. I shall make just two points.

First, the argument that to retain the existing rights of UK citizens with EEA spouses or families is somehow discriminatory or unfair as against UK citizens with non-EEA spouses has no merit. I speak as a UK citizen with a non-EEA spouse. When we made decisions about our lives, we did so in the knowledge and understanding of the rules at the time, just as UK citizens with EEA spouses made decisions about their lives on the basis of the rules at the time, which they could have had no reasonable expectation would change. The only way in which one could say that discrimination would occur would be if this amendment suggested that UK citizens forming relationships with EEA citizens going forward should be afforded different rights, but that is not what it says.

Secondly, yesterday, your Lordships’ House passed two amendments in lieu on agri-food standards. They were important and I was pleased to support them, but this amendment, I venture, is much more important, because it is about people’s lives. If it is not passed, huge misery will be inflicted on a large number of people. I do not think that we have really understood the level of suffering that will be inflicted. Frankly, it is wrong and heartless, and we should not allow it to stand.

We do not minimise the importance of this issue any more than we minimise the importance of any of the amendments and the issues they covered which this House sent to the Commons and which the Commons rejected. As has been said, British citizens who moved to other EU countries will lose the right they had to return to this country of birth with a non-British partner or child, perhaps to look after an ageing parent, unless they can meet financial conditions that will be beyond the reach of many. While British citizens who have moved to the EU or EEA before the end of 2020 will face these restrictions, EU citizens who have moved to the UK before the end of 2020 will not.

However, while this issue of the right for UK citizens to return with their family was referred to by some speakers during the Commons proceedings on Monday, it was not taken to a Division. This rather indicates that we have now taken this matter as far as we can at present, having sent it to the Commons once. For that reason we will abstain if Amendment 2B in lieu is taken to a vote. In the Commons on Monday, the Government said they would

“continue to keep this area under review”.—[Official Report, Commons, 19/10/20; col. 804.]

We call on it to continue to look further at this issue, in which I declare a personal family interest, outside the Bill and well before the deadline date of 29 March 2022 for bringing existing close family members to the UK on current EU law terms.

I thank all noble Lords who have spoken. I start with the noble Lord, Lord Rosser, who rightly points out that the Commons did not divide on this matter on Monday. We should remind ourselves that the British people voted to leave the EU in 2016; we are now four years on from that point.

I will answer the noble Baroness, Lady Hamwee: of course we keep all legislation and policy under review, and we are assisted by MAC in that endeavour. We recognise that UK nationals who moved to the EU expected free movement rights to continue. That is why we have provided for these transitional arrangements, but we have to be fair to other UK nationals whether they live overseas, beyond the EU, or in the UK. The UK family Immigration Rules reflect the public interest in preventing burdens on the taxpayer and promoting integration. UK nationals protected by the withdrawal agreement because they are living in the EEA before the end of the transition period do, of course, have lifetime rights to be joined in their host state by existing close family members. This mirrors the rights of EEA citizens living in the UK by then.

The noble Baroness, Lady Ludford, challenged me about the date of 29 March 2022 being arbitrary. It represents three years after the date when the UK was originally supposed to leave the EU. For me, it strikes the right balance between providing sufficient time for UK nationals and their family members living in the EEA or Switzerland to make decisions and plans for returning to the UK, and ensuring equal treatment of the family members of UK nationals under the Immigration Rules as soon as reasonably possible, once free movement to the UK has ended.

I am of course grateful to my noble friends who supported this amendment. I hope that I never give my noble friend Lady Ludford cause to look up what I have said in the past. I am particularly grateful to my noble friend Lord Oates, who—if you will—embodies the point I was making about the differences between those who married EU citizens, not knowing what was coming down the road, and those in his position.

I am disappointed in Labour’s response to this because it is a legislative opportunity to get this sorted quickly. The noble Lord, Lord Rosser, and I asked about keeping the policy under review, but it sounds from the Minister as if this is no more than the normal keeping of a policy under review: no detail, no particular plan, no timetable. What she said is not a reason not to pursue this amendment. As my noble friend says, this is not fair and I beg to test the opinion of the House.

Motion B agreed.

Motion C

Moved by

3A: Because local authorities are supporting children in care and those entitled to care leaving support to obtain UK immigration status under the EU Settlement Scheme.

I ask that this House do not insist on its Amendments 3, 6, 7, 8 and 10, as set out in Motions C, F, G, H and K respectively, to which the Commons have disagreed for their Reasons 3A, 6A, 7A, 8A and 10A.

I will speak to Motion C on Lords Amendment 3, which provides for children in care and care leavers who lose their free movement rights under the Bill to obtain indefinite leave to remain—or settled status—under the EU settlement scheme where they apply to the scheme or a local authority does so on their behalf. This would be regardless of how long the child or young person had been in the UK. I will also address Motions F, G, H and K, covering Lords Amendments 6, 7, 8 and 10, which cover a time limit on detention.

I know that the noble Lord, Lord Dubs, will be disappointed with me on the position taken by the other place on Lords Amendment 3, but I reassure him that the Government agree as to the importance of protecting the rights of children in care and care leavers and other vulnerable groups as we end free movement. The Home Office continues to provide extensive support to local authorities, which have relevant statutory responsibilities for this cohort, to ensure that these children and young people, like other vulnerable groups, get UK immigration status under the EU settlement scheme. This includes the Settlement Resolution Centre, which is open seven days a week to assist local authorities with this work. It also includes grant funding over last year and this year of up to £17 million to organisations across the UK to support vulnerable groups in applying to the scheme. The number of organisations funded for this work has now been increased from 57 to 72.

A recent survey of local authorities by the Home Office has so far identified fewer than 4,000 children in care and care leavers eligible for the EU settlement scheme, with over 40% of these having already applied for status under the scheme. Most of those who have applied have already received an outcome of settled status. Local authorities are making good progress to identify and support relevant cases.

The Government have made it clear that, in line with the withdrawal agreements, where a person eligible for status under the EU settlement scheme has reasonable grounds for missing the 30 June 2021 deadline, they will be given a further opportunity to apply. We have also made it clear that those reasonable grounds will include where a parent, guardian or local authority does not apply on behalf of a child. Therefore, if a child in care or a care leaver misses the deadline, they will still be able to obtain lawful status in the UK.

The Government are not therefore persuaded of the need for this amendment, which also presents some technical problems that the Government cannot accept. It effectively exempts this cohort from the suitability requirements of the scheme when there is absolutely no reason to do so. It also seeks to backdate the settled status granted following an application made after the 30 June 2021 deadline. This runs completely counter to the general operation of the Immigration Rules made under the Immigration Act 1971, under which status has effect from the date on which it is granted.

I hope noble Lords will agree that, while understanding and supporting the motivation behind this amendment, the House should not insist on this amendment.

I shall now address Motions F, G, H and K on Lords Amendments 6, 7, 8 and 10, which relate to introducing a detention time limit on EEA and Swiss citizens. Detention is a very important issue that merits debate, but it is not directly relevant to the purpose of this Bill, which is to end free movement. The central point of the Bill is a commitment to a global immigration system, and equal treatment of immigrants from all nationalities as we exit the transition period. These amendments seek to impose a time limit on detention only for EEA and Swiss citizens, which would lead to a discriminatory position for those who are not. It is important to acknowledge that the other place disagreed to the amendment for these reasons.

On the substance of the amendment, to impose a 28-day time limit on detention is not practical and would encourage and reward abuse. No European country has adopted anything close to a time limit as short as that which is proposed in these amendments, and countries such as Australia and Canada have not gone down this route at all. We need an immigration system which encourages compliance but, where people refuse to leave voluntarily, we must have the ability to enforce that removal. We do not detain indefinitely; there must always be a realistic prospect of removal within a reasonable timescale, and this is a complex process that requires a case-specific assessment to be made for every single person for whom detention is considered.

A time limit would allow those who wish to frustrate the removal process to deliberately run down the clock until the time limit is reached and release is guaranteed. Under these amendments, any person in scope who is detained for 28 days will automatically be released, regardless of the facts of their case, including some foreign national offenders who present a genuine threat to public safety.

The Home Office operates a number of safeguards to review detention and prevent anyone entering detention who would otherwise comply with a removal from the community. Some 95% of people who are liable for removal from the UK are managed in the community while their cases are progressed. The detention gatekeeper and case progression panels are key operational safeguards. Where detention is deemed necessary, there is judicial oversight through bail applications to the tribunal, and the continuing detention of any individual remains under regular review by the Home Office.

Everyone in immigration detention is protected by these safeguards, which entitle them to apply for bail hearings at any point, to appeal against any refusal of asylum and to have access to legal representation. If we accept a 28-day time limit, it will enable these people to exploit the immigration system, making unmeritorious claims to avoid their removal. In the current immigration system, it is only in the most complex cases that detention exceeds 29 days. A time limit would cripple the function of the detention system, exposing it to abuse, undermining our capacity to enforce removals and potentially endangering public safety. I hope that noble Lords will agree that this amendment is not only unconnected with the main purpose of this Bill but unsupportable, and I urge them not to insist on this amendment, which would lead to unfair treatment between EEA and non-EEA citizens. I beg to move.

My Lords, I very much regret the rejection of the clause to which your Lordships had agreed regarding children in care. The Minister said on a previous occasion that we were united on children in local authority care needing a secure status. But insisting on this being achieved for this cohort—and we all understand the difficulties—through the EU settled status scheme rather than on a declaratory basis seems to indicate that the Government are more concerned not to acknowledge that the scheme cannot perfectly deal with every situation rather than to acknowledge the special situation of these children and young people.

The Commons formal reason is that local authorities are supporting this cohort, and the Government are funding support. Well, good—but what do the Government have to lose? The Minister in the Commons said that the idea of applying such a provision retrospectively runs counter to the general operation of the Immigration Rules. But when it is not a tightening of the rules, I do not understand the comment—but there it is.

I also of course regret the rejection of applying a time limit to the detention of asylum seekers and others. The suite of amendments applies clear criteria for detention, and national security would disqualify a detainee from the time-limit provisions. I do not think that it is right to use the position of foreign national offenders as if all detainees were offenders. The amendments would also prevent cat-and-mouse redetention.

The great majority of detainees are released eventually into the community, but they do not know when this will be. Again, the Commons Minister said that it was not possible just to detain someone indefinitely “as such”. That misses the point that there is no time limit, and that means a loss of hope. For months, people in the UK whose lives are restricted to some extent have been saying that they need to know when all this will end, which is understandable—and there is something of a read-across.

The Commons formal reason is that there are already procedural safeguards to ensure the lawfulness of the period of detention. They work so well that, as my right honourable friend Alistair Carmichael observed, £7 million in compensation was paid out last year for 272 cases of wrongful detention.

But I can at least use this opportunity to say how much we welcome the Court of Appeal’s judgment today quashing the judicial review and injunctions policy on the application of medical justice, with the intervention of the Equality and Human Rights Commission and the good work of the Public Law Project—not, if I have the Minister’s word correctly, an “unmeritorious” application.

We shall not pursue this matter today, but we will be back soon on the issue, because it is a matter of fairness and humanity.

My Lords, the decisions taken by the other place on all these issues are most disappointing. I thought my noble friend Lord Dubs made a convincing case, but sadly it was not listened to in the other place, as is so often the case now. I hope the Government will take a constructive attitude in working with local authorities to protect vulnerable children. Many local authorities have considerable pressures on them in terms of looking after children in care, and I hope the noble Baroness will confirm that there is a positive attitude from the Government to address these concerns, even if they are not prepared to accept my noble friend’s amendment today.

I note the comment—the noble Baroness, Lady Hamwee, also made the point—that the other Motions in this group make reference to all these dangerous criminals who would potentially be released into the public. I think we have to accept that the people we are talking about here are vulnerable people, and that if there are people who are dangerous criminals, there are other procedures to deal with them. We should not be wrapping people up like that: these are vulnerable people who need our help and support. There is an issue about people being locked up in detention when they have done nothing wrong and not knowing when they will get their release date.

The noble Baroness may well say that they are normally released into the community. That is obviously really good news, but if you are locked up in a cell or in a detention centre and you do not know when you will be released, the fact that you will be released at some point in the future may not be a huge comfort to you. Again, we are not going to pursue these issues any further today, but the fact that the Government rely on those arguments underlines the weakness of their case in this respect. The noble Baroness, Lady Hamwee, said that we will return to these issues at a later date, but we will not be pressing any of them today.

I thank noble Lords for their comments. The noble Baroness, Lady Hamwee, initially challenged me on what the Government have to lose. It is not really about what the Government have to lose; it is a demonstration that, throughout this process, we have constantly articulated just what the Government are doing to ensure that children in care, or other vulnerable people, are able to register for the EU settlement scheme. We have put in quite a lot of resource to ensure that that happens. We have increased the number of organisations helping in this regard from 57 to 72 and we will put significant funding in place to ensure that people eligible to apply do so.

The noble Baroness, Lady Hamwee, said that we are acting as though all detainees are offenders, and the noble Lord, Lord Kennedy, talked about the number of people detained who are vulnerable. In fact, a snapshot of offenders from the EU detained at the end of March 2020 found that if a 28-day time limit were in place, we would have been required to release into the community 166 foreign national offenders being held under immigration powers to effect their deportation. Of these offenders, 35 had committed very serious crimes, including murder, rape, offences against children and other serious sexual or violent offences. There is no indefinite detention, but it is necessary sometimes to keep people detained, particularly serious offenders and those frustrating their removal.

Motion C agreed.

Motion D

Moved by

4A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

My Lords, Lords Amendment 4 and Amendment 4B in lieu, tabled by the noble Lord, Lord Dubs, relate to family reunion and unaccompanied asylum-seeking children. I ask noble Lords to note that the other place highlighted that Lords Amendment 4 would engage financial privilege. Amendment 4B in lieu would remove the previous restriction on charging a fee for applications for leave to enter under the proposed new route; however, there remain a number of costs with this amendment. These relate to family reunion applications—not just the cost of processing the application but the cost of providing asylum support and accommodation for asylum seekers awaiting a decision on their claim. Clearly those costs could not and should not be recouped via an application fee.

Turning to the substance of the amendment, we had many interventions on this issue on Report and I confirm the Government’s commitment to the principle of family unity and to supporting vulnerable children—we take their well-being very seriously. We have a proud record of providing safety to those who need it, through our asylum system and world-leading resettlement schemes. We have granted protection and other leave to more than 44,000 children seeking protection since 2010. The UK continues to be one of the highest recipients of asylum claims from unaccompanied children across Europe: we received more claims than any EU member state in 2019, and 20% of all claims made in the EU and UK.

We have made a credible and serious offer to the EU on new arrangements for the family reunion of unaccompanied asylum-seeking children. It remains our goal to negotiate such an arrangement. I reaffirm my commitment to further constructive engagement to identify ways to level up access to safe and legal work pathways for talented displaced persons. I once again thank the right reverend Prelate the Bishop of Durham and Talent Beyond Borders for discussing this with us and I look forward to continuing to work together to attract the best and brightest talent to the UK, regardless of background. Furthermore, as the Home Secretary made clear in her speech at the Conservative Party conference, safe and legal routes are a core part of our proposed reforms to the asylum system to ensure that it is both fair and firm.

I therefore ask the noble Lord, Lord Dubs, not to insist on his amendment, or to divide the House on Amendment 4B in lieu. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

4B: Insert the following new Clause—

“Leave to enter: family unity and claims for asylum

(1) For at least such time as a relevant agreement has not been concluded and implemented, a person to whom this section applies must be granted leave to enter the United Kingdom for the purpose of making a claim for asylum.

(2) This section applies to a person who—

(a) is on the territory of any relevant Member State;

(b) makes an application for leave to enter for the purpose of making a claim for asylum; and

(c) would, had that person made an application for international protection in that Member State, have been eligible for transfer to the United Kingdom under Regulation (EU) No. 604/2013 by reason of a relevant provision if the United Kingdom remained a party to that Regulation.

(3) The Secretary of State shall make arrangements to ensure that applicants receive a decision regarding their application under subsection (2)(b) no later than two months from the date of submission of the application.

(4) A claim for asylum made under subsection (2)(b) must remain pending throughout such time as no decision has been made on it or during which an appeal could be brought within such time as may be prescribed for the bringing of any appeal against a decision made on a claim or during which any such appeal remains pending for the purposes of section 104 of the Nationality, Immigration and Asylum Act 2002 (pending appeal); and a claim for asylum remains one on which no decision has been made during such time as the claim has been made to the Secretary of State and has not been granted, refused, abandoned or withdrawn.

(5) The Secretary of State must, within six months of the day on which this Act is passed, lay before both Houses of Parliament a strategy for ensuring that unaccompanied children on the territory of a relevant Member State continue to be relocated to the United Kingdom, if it is in the child’s best interests.

(6) For the purposes of this section—

“applicant” means a person who makes an application for leave to enter under this section;

“claim for asylum” means a claim for leave to enter or remain as a refugee or as a person eligible for a grant of humanitarian protection;

“Regulation (EU) No. 604/2013” means Regulation (EU) No. 604/2013 of the European Parliament and of the Council including the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast);

“relevant agreement” means an agreement negotiated by a Minister of the Crown, on behalf of the United Kingdom, with the European Union in accordance with which there is provision for the transfer of a person who has made an application for asylum in a Member State of the European Union to the United Kingdom which is no less extensive than Regulation (EU) No. 604/2013 insofar as that regulation operated to enable the transfer of a person to join a child, sibling, parent or other family member or relative in the United Kingdom before exit day;

“relevant Member State” means a Member State for the purposes of Regulation (EU) No. 604/2013;

“relevant provision” means any of the following articles of Regulation (EU) No. 604/2013—

(a) Article 8;

(b) Article 9;

(c) Article 10;

(d) Article 16;

(e) Article 17.””

My Lords, in moving the amendment in my name, I shall comment on the Commons reason for rejecting an amendment from this House, which states:

“Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.”

Given the time we spent on the issue and its importance, to say that the technicality of financial privilege is sufficient to dispose of it in the eyes of the Commons, I think falls short of being humanitarian and falls short of respecting the opinions of this House.

When I was in the Commons, there were some colleagues who made themselves experts on parliamentary procedure and were virtually walking Erskine Mays. I have no wish to follow them down that path, but I note the issue of financial privilege seems to occur only when the Government do not like something to do with child refugees. If I can take the House back to 2016, we passed an amendment to the then Immigration Bill; when it got to the Commons the Government used financial privilege as a technical reason, so when it came back to this House we changed the wording and eventually it passed again and the Government accepted it.

Financial privilege, as defined in relation to this amendment, is merely a footnote to Erskine May. Still, it may be important to the Government. However, normally when an amendment involves some financial expenditure, a charge on public funds, the Government waive the issue of financial privilege. But they did not do so for this amendment or the one in 2016. I would contend that the majority of amendments passed by this House are inevitably bound to involve some charge on public funds. As I said, the Government normally waive this argument, but have not done so in this case.

However, with colleagues from Safe Passage and other NGOs who have been helping me with this, we looked at the amendment that the Government took exception to on the grounds of charge to public funds and removed from it the reference that there should be no fee for the making of a particular application. That has been removed, so there will be a fee.

Furthermore, the Government have said that they put forward a proposal—which we considered very weak and would exclude most of the children who ought to be eligible—which would itself involve some recourse to public funds. The Government must have been prepared for this. Frankly, I am not persuaded by this argument. The merits of the case are much too important to be sidelined on what I regard as a bit of a technicality.

I turn very briefly to the substance of the amendment, as a lot of the arguments have already been well rehearsed in this House in Committee and on Report. The Government are keen to say that the Immigration Rules might be sufficient. I contend that that will not do. The Immigration Rules are a blunt instrument; they are not susceptible to amendment by this House, and when changes are put forward again, they are on a “take it or leave it” basis. The Immigration Rules are not a sufficient excuse for saying this amendment is unnecessary.

It is also possible to apply for family reunion outside the Immigration Rules. This is a highly exceptional procedure that does not often happen. It is not a reason for rejecting the rights of a number of children who are desperate for safety.

We have only 10 weeks to go before the end of the transition period, and it does not look as if there will be any agreement on child refugees, even on the basis of the Government’s rather weak proposals, which I understand are not under discussion. The last chance we have before 1 January next year is to pass this amendment. We have seen and know of the difficulties facing young people who are sleeping rough under the trees in Calais or in the camps on the Greek islands. We have seen the terrible tragedy that befell the Moria camp when it was burned down. What will happen to the children and other people there? It seems to me that when other EU countries are willing to offer safety to some of the children in the camps on the Greek islands, the least we can do is to do likewise.

We are talking about a small number of young people, many of whom in the end make their way here across the dangers of the channel, either on the back of a lorry or in rubber dinghies. For some, there are tragic consequences—maybe they drown in the channel—but others manage to make it here. If we keep safe and legal routes open, there is at least a chance of having an orderly process which is fair to the young people involved—and to this country as well, because it means the process can be managed and they do not all arrive in Kent, putting a lot of pressure on the local authority there.

This is a really important issue. How we deal with family reunion for unaccompanied child refugees is crucial to whether we are a humanitarian country or not. I believe we are. I also believe, although not all people in this country will agree, that if the argument is put the majority will still say, “Yes, we should do the right thing by unaccompanied child refugees.” If passed, this amendment will give hope to a small number of very vulnerable children. I beg to move, and will wish to test the opinion of the House unless the Government agree to the amendment.

My Lords, I have not received any indication that any Member wishes to speak who is not listed. Does any noble Lord in the Chamber wish to speak at this point before I move on? In that case, I call the next speaker, the noble Baroness, Lady Meacher.

My Lords, I support most strongly the amendment of the noble Lord, Lord Dubs, which provides for refugee children to come to the UK from EU countries if they have family here with whom they can reunite.

The Government say they have proposals to deal with family reunion, but as the noble Lord has pointed out—I will not repeat his explanation—those proposals would not provide a secure route for child refugees to join their families here in the UK. Why is this country so much less willing than our neighbours in Europe to accept these vulnerable children? Germany stands out as the most generous and morally correct European country on this issue, having taken 71,000 children in 2019, but we do not even measure up to France, Greece or Spain—and two of those countries are a great deal less well off than we are.

It is important to note that local authorities, if adequately funded, are willing to welcome refugee children from Europe and, as my noble friend Lord Kerr pointed out on Report, the Government will have public support if they accept the amendment of the noble Lord, Lord Dubs. Surely the Government want some public support, do they not? They have enough problems on other issues at the moment. The British public understand the importance of refugee children being able to join their families, whatever the reason they became separated in the first place.

In her introductory remarks, the Minister referred to the costs of housing asylum seekers. Will she clarify that the Government would not have to fund the housing of unaccompanied children who come over here to live with their relatives? It is quite important that there is not that financial hit for the Government.

If the Government reject this amendment and children are not able to join their families under the Government’s proposals, many will inevitably resort to the traffickers and the rubber dinghies, with inevitable loss of life. Surely, it is only a matter of time before the Government are challenged under the Human Rights Act, in particular Article 8, on the right to respect for your family life. I would be grateful if the Minister responded to that point.

As the Minister will recognise, this amendment has huge cross-party support and public support across the country. I hope she can persuade her colleagues to accept it.

My Lords, at every stage, tributes have been paid to the noble Lord, Lord Dubs—rightly so, but I imagine he must sometimes be shouting at his screen, while on mute, “Forget the tributes, just accept the amendment.”

The Commons reason is that leave to enter to make an asylum claim, and a strategy to ensure that an unaccompanied child can be relocated in the UK if it is in the child’s best interests, would be, in their words, as the noble Lord said, a “charge on public funds”. Like him, I appreciate that this is a standard response, but it in no way reflects the debate. They trust that we will regard it as sufficient; it is not a sufficient reason.

We were told that it would not be right to undermine negotiations with the EU, with which, it must be said, agreement on this issue shows no sign of life at all. Domestic legislation must be the least threat in this context. It is still not too late to do the right thing.

Our Immigration Rules are inadequate, and applications outside them rarely successful. The Government have announced that they are looking at safe and legal routes for those seeking sanctuary next year. We on these Benches will not subscribe to the notion that this is an issue for next year. The routes are unsafe now, and we could make them considerably safer. We support the amendment.

Currently, the only legal way to reach this country from the EU in order to claim asylum, including for unaccompanied children, is through the Dublin III regulation on family reunion. That route, as we know, will cease to be available at the end of the transition period in a few weeks’ time. The Government have no comparable proposals to replace Dublin III, since their alternative removes the mandatory requirement to facilitate family reunion, removes a child’s right to appeal against refusal and further narrows the definition of “family”, since a child or teenager would no longer be able to join, for example, an aunt, an older sister or someone who could look after them when they have been separated from their parents

Safe Passage, to which reference has already been made, which supports child refugees, has said, I believe, that more than 90% of the young people and children it has supported through the Dublin III legal pathway would be unlikely to qualify under the Government’s alternative system. The numbers involved are not large and are very small indeed compared with the numbers of those from outside the EU whom the Government, by choice, each year, have enabled to come to this country. Before the mandatory Dublin III provisions came into effect, about 10 or 11 children per year came to this country under the scheme. Since 2016, when it became mandatory, the average number of children per year has been just over 500.

We support the amendment in lieu, Amendment D1, moved by my indefatigable noble friend Lord Dubs, which represents the guaranteed continuation of a decent and humane approach, particularly to children and young people in real need, including in real need of a safe and legal route to safety.

My Lords, I thank all noble Lords who have spoken in this debate and particularly the noble Lord, Lord Dubs, who makes this plea so genuinely and passionately. I hope, at this late stage, he might consider withdrawing his amendment to the Motion when he hears what I am going to say. First of all, we do not just use financial privilege for child refugees. That is not the case at all, but I think he knows that. The wording—

“trusting that this Reason may be deemed sufficient”—

is standard parlance.

I say to the noble Baroness, Lady Meacher, in response to her question, that it is true that the state does not have to fund children who are living with relatives, although, of course, it is different for children who are living in local authority care. I go back to the point I made earlier, which is that the Home Secretary made it absolutely clear in her speech at the Conservative Party Conference that safe and legal routes are a core part of our proposed reforms to the asylum system to ensure it is both firm and fair. In fact, the noble Lord, Lord Dubs, said that very thing today in his speech. I can confirm that, as an integral part of that work, the Government will conduct a review of safe and legal routes to the UK for asylum seekers, refugees and their families, which will include reviewing routes for unaccompanied asylum-seeking children to reunite with their family members in the UK. As noble Lords will recollect, we intend to bring legislation next year that will deliver those reforms.

Both the noble Lord, Lord Dubs, and the noble Baroness, Lady Hamwee, talked about bilateral negotiations. I understand noble Lords’ concerns about the risk of a non-negotiated outcome on asylum and illegal migration, and I can, today, make a commitment to the House that in the event of a non-negotiated outcome, this Government will pursue bilateral negotiations on post-transition migration issues with key countries with which we share a mutual interest. This will include new arrangements for the family reunion of unaccompanied asylum-seeking children. I hope noble Lords listened carefully to what I have just said.

As I was leaving the Home Office today, the Greek Minister for Immigration and Asylum was in the Home Secretary’s office, and I hope that is a clear demonstration of our commitment to these issues. I will also commit, on the back of that, to report back to the House in good time regarding our intentions to make progress in this area. I hope the noble Lord, Lord Dubs, and other noble Lords who have heard my words just now will feel that, at this point, he can withdraw his amendment.

My Lords, I am grateful to the Minister for her explanation and to other noble Lords who supported the amendment.

The Minister referred to the Home Secretary’s commitment that she wants safe and legal routes for family reunion of children. Of course, that is an aspiration, but it has to be made effective, and I am not convinced that anything the Government are doing will actually give effect to the Home Secretary’s commitment. The Minister also said that even after 31 December, the Government will continue to talk to achieve bilateral arrangements. That is well and good, but that is a long way ahead, and the Government have, in the past, given undertakings, and, frankly, nothing much has come of them.

This issue tests our humanity; it tests whether we are willing to do something now, not at some point in the future. It is a test of whether we are a decent, humanitarian country. We are talking about a small number of highly vulnerable people, the majority of whom are children who want to join family here. What could be more humanitarian or more in our traditions than allowing young people to join members of their family who are here and find safety down that path. I beg to test the opinion of the House.

Motion E

Moved by

5A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

My Lords, Amendment 5 and Amendment 5B, tabled in lieu and proposed by the noble Lord, Lord Oates, require a physical document to be offered to any EEA citizen who applies for it and who has been granted leave under the EU settlement scheme. The other place has rejected the previous amendment submitted by the noble Lord, Lord Oates, as they considered it would incur significant costs. The amendment in lieu removes the provision prohibiting charging a fee for the physical document. However, this does not fully address our concerns about the cost of this proposal.

To allow the now nearly 4 million people who have been granted status under the EU settlement scheme to apply for physical documents, we would have to incur significant up-front costs. These costs would include setting up and designing the application process to issue a secure biometric document, some caseworking resource and significant communications costs; much of this cost would be incurred regardless of how many people applied for a physical document.

As we would not know how many people will apply, we would not be able to set an individual application fee that covered these costs without that being beyond the reach of most applicants. Much of the concern expressed in this House relates to the most vulnerable, and I really do not think we would want to pass on to them the costs of setting up this process. The cost of producing a biometric immigration document is about £75, but that fee does not cover the costs that would be incurred in setting up the process and communicating it. Therefore, being able to charge a fee does not in and of itself fully address the reasons given in the other place for rejecting the previous amendment.

We cannot accept the amendment, but that does not mean that the Government do not understand the concerns raised. We are committed to working with this House and with stakeholders to ensure that measures are in place to support those who may find the transition to digital services difficult. We will run a campaign to ensure that third parties understand how to check a person’s immigration status and the need not to discriminate when doing so. In some cases, the check will be directly with the Home Office, and we are confident that this system will reduce the scope for error and better ensure that people have access to the services they are entitled to.

The Government have clearly set out their ambition to move to a system which is digital by default. That will produce a better system for migrants and will make it easier for them to prove their status where all migrants, not just EEA citizens, will have online access to their immigration status. Other countries, such as Australia, have had a system like this in place for some time, so we know that it works.

This amendment is well intentioned, but it will have an adverse impact on our plans for modernisation and digitisation of our immigration system. These plans include the support services we need to provide to migrants for the future. It will also adversely impact employers and landlords, who would still need to conduct manual checks to authenticate a document and go through the process of photocopying it, signing and dating it and then filing it away in a cabinet.

The Government recognise that digital processes represent a major change for some people. However, as I have outlined in this House, we will provide a physical document in the form of a written notification of their permission to stay in the UK, which they can print off and store as a record. We will require EEA citizens to use the online system to prove their immigration status to employers and landlords only after 30 June 2021, to give them time to adjust, and we will continue to provide information and support to enable them to do so. Many thousands are already successfully using the service now to evidence their status in the UK, as I pointed out during the passage of this Bill.

I am aware that many noble Lords are worried about the impact of digital by default on the elderly and the vulnerable, but I reassure them that we are taking steps to ensure that those individuals are not disadvantaged by the move to digital services, particularly in accessing public services. System-to-system checks with other government departments and the NHS will mean service providers, such as healthcare and benefits, will check status directly with the Home Office at the point at which the person seeks to access them. This will reduce the number of occasions where individuals need to prove their rights, where such information can be made available directly to the service provider on their behalf.

In moving to a digital system, we recognise that there are people who cannot access online services and will need additional support. We are committed to delivering a service that reflects the diverse needs of all users. Help on how to use the online service and share status information is already available through our telephone contact centre, and we provide a free-to-use assisted digital service where those applying to the EU settlement scheme, or others making online applications in the UK, are able to get support. We continue to improve the support services to ensure that they are inclusive and available to all who need them, and we would welcome continued discussions on what additional support we would need to provide to address the concerns that many noble Lords have raised.

We want a robust and secure system that is efficient as well as convenient. Migrants will be able to access details of their immigration status online at any time and from anywhere, with a variety of devices, such as a smartphone or laptop. The Government want a better immigration system, and we believe that the move to a digital service is an important part of that. The amendment would prevent our moving in that direction and would require significant expenditure, which would be better used in supporting those using the services. I hope noble Lords will not insist on this amendment. I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

5B: Insert the following new Clause—

“EU Settlement Scheme: physical documented proof

The Secretary of State must issue physical proof confirming pre-settled status or settled status to all EEA and Swiss nationals and their families who have been granted such status under the EU Settlement Scheme and who request such proof.””

My Lords, in moving Motion E1, which includes Amendment 5B, I give notice of my intention to test the opinion of the House, unless the Government are willing to change their position on this issue. I express my thanks to all noble Lords on all sides of the House who have so steadfastly and consistently supported this cause, in particular the original signatories to the amendment: the noble Lords, Lord Polak, Lord Kerslake and Lord McNicol of West Kilbride.

We have discussed this issue frequently over a number of years, but it appears that the Government have not been listening. Either that or perhaps I have not been listening properly, because I am still at a loss to understand the arguments that they have put forward to justify their decision to deny EEA nationals alone, among all the people residing in the United Kingdom, physical proof of their right to do so.

This issue, as we have said before, has no partisan flavour. It has been supported by Peers across the House of all parties and of none, commanding one of the largest majorities in your Lordships’ House of any amendment on this Bill. It involves no Brexit arguments; it may be happily supported by any Member, whatever their position on those past arguments. It is, quite simply, the right thing to do to alleviate the anxieties and hardship that will otherwise be visited on millions of people who have made their home with us in the United Kingdom.

In Committee, the Government appeared to advance three principal arguments against our amendment: that a system with both digital proof and physical proof would be confusing; that a digital proof is better than a physical proof because a digital proof cannot be lost; and, lastly, that the Government intend to move to a digital-by-default system in future and therefore that it makes sense for the new settled status scheme to adopt a digital-only model from the outset.

On Report, a new argument was raised—or at least advanced more vigorously—and that was of cost. As noble Lords will be aware, the Government, in rejecting our amendment, have claimed financial privilege, advancing no other argument against it. Therefore, to address the issue of financial privilege and to tackle the Government’s concerns over cost, we have removed the requirement that physical proof must be provided free of charge, which was in the original amendment. It should be noted, therefore, that this amendment in lieu requires only that the Government offer physical proof of status to those who request it; that it allows the Exchequer to charge for such a document; and that the charge is permitted under the terms of the withdrawal agreement.

The Minister told us on Report that if 89% of those with settled status sought a physical document, it would cost £100 million—I think that was at col. 472 —which, by my calculation, would mean, in order to cover costs, a charge of £28.09. I therefore question the Minister’s statement just now that the cost would be £75, and I wonder how she marries that up with the figure she gave us before. Perhaps she will say, “We would have to take into account the setting up of a whole new process”—but I do not understand that. There is a process for issuing biometric residence permits, so there is no need to set up a new process. Indeed, non-EEA citizens who are granted settled status via their spousal relationship are given biometric residence permits—so I do not understand that at all.

I would much prefer that there was no charge for a physical document—not least because our citizens abroad are being issued physical proof of status without charge, as I understand it. Nevertheless, if this is the only way that EEA citizens who have made their homes here can be given the surety and confidence that they seek, I suspect that they would probably regard the fee of £28.09 as money well spent. I hope, therefore, that this addresses the issue of costs and privilege.

As to the response to the Government’s other arguments, I shall try to be brief, both because they have already been well rehearsed in this House and because even the Government do not seem to have the heart to argue them convincingly. First, on the argument that it would be confusing to people to operate a digital system as well as physical proof of status, it remains unclear to me why the Government make this claim. It is exactly the system that exists for non-EEA citizens with indefinite leave to remain, who can access a digital proof of status and can apply for a physical document. Landlords, employers and others who are expected to check for immigration status already operate under such a system, so I fail to understand who the Government think will be confused. What is likely to be confusing, therefore, is not the presence of a physical document but its absence.

Secondly, the Government claim that digital proof is better than physical proof because digital proof cannot be lost. The answer to this is the same one we have given every time the matter has been debated. We are not suggesting the removal of digital proof or digital records; we are simply arguing that physical proof should complement digital status. None the less, on Report I questioned the Government’s repeated claims about the resilience of the digital system. I will not list all the examples that I and many other noble Lords gave of allegedly infallible systems failing, but I will simply say that almost every occasion of a failure of a major system has been preceded by claims about its robustness and the impossibility of what subsequently happened happening. Even temporary failures, however short lived, are very likely to give rise to permanent effects, because employers or landlords unable to access the system at the point when they have to decide between potential employees or tenants are very likely to give the job or rent the home to someone who can provide physical proof.

The last of the Government’s arguments was that they intend to move to a wholly digital system in future, and therefore that it makes sense for this new settled status scheme to adopt a digital-only model—except that it does not. If a digital system is to be adopted—and I have no objection to that—it should be extensively trialled in advance with widespread pilot schemes. Australia seems to be a popular country for the Government to compare itself with at the moment. Australia is, as the Minister said, just about the only country in the world to go entirely digital. It did so over a number of years. Indeed, it trialled the system over nearly two decades. So I repeat, as I have every time we have discussed this matter, that we should not conduct an experiment with the lives of millions of people who are in receipt of an entirely new status and who are understandably nervous, given the Government’s declared intention to violate the very treaty on which their status is based.

The one trial that the Government have undertaken which involved non-EU citizens who had the back-up of a physical residence card found:

“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable low-digital skilled users, it should be retained.”

The trial also made clear that “digital by default” does not mean “digital only”.

I asked the Minister in Committee and on Report to explain to the House what had changed since the Government made that assessment in 2018. She either could not or would not—but certainly she did not. Nor could she tell us on either occasion when the policy equality statement, which the Government have confirmed exists, will be published, beyond the entirely unsatisfactory “shortly”. I highlight again how unacceptable it is that we are being asked to decide on legislation that will affect millions of lives when the Government withhold such vital evidence.

As I said on the previous amendment in the name of my noble friend Lady Hamwee, yesterday we agreed two amendments in lieu on the issue of agri-food standards, and I was pleased to support them—but this amendment, like that of my noble friend before, deals with people’s lives. As I said on Report, ultimately the argument is not about technology, documents or computer systems but about people’s lives and whether they can feel secure in their status. This amendment would alleviate the huge anxiety which the Government’s refusal to listen and make this minor change is causing to EEA nationals, particularly the elderly, the vulnerable and those who lack technology.

In conclusion, the noble Lord, Lord Rosser, stated that the Labour Front Bench could not support my noble friend Lady Hamwee’s earlier amendment on the grounds that the matter had not been divided on in the Commons. I will draw the attention of noble Lords to the fact, which they will be aware of, that this issue was divided on in the House of Commons, and in this House received, if not the largest then one of the largest majorities of any amendment on the Bill. So I hope that my friends in the Labour Party and, indeed, my friends across all the parties in this House, and no party, will continue to support EU citizens in the virtual Lobbies tonight.

The Windrush Lessons Learned Review made it clear that a huge part of the problem was the Home Office’s refusal to listen to outside voices. Those outside voices are speaking loud and clear. I hope that this time the Government will learn the lesson and open their ears. I beg to move.

Five Members have indicated that they wish to speak at this point: the noble Lord, Lord Polak, the noble Baroness, Lady Ludford, the noble Lord, Lord Cormack, and the noble Baronesses, Lady Neville-Rolfe and Lady McIntosh of Pickering. I call the first of those speakers, the noble Lord, Lord Polak.

My Lords, I have no intention of delaying the House as I have made my views on this pretty clear. The noble Lord, Lord Oates, has been very clear and precise. I believe that the Government are sticking their heels in for no good reason.

I should make it known that this morning there was a power outage at the police national computer centre in Hendon—run, of course, by the Home Office. As a result, police forces across the country were not able to access the police national computer. I do not need to explain to noble Lords that power outages of this sort have a serious effect on police operations. Following the technical issue that affected our voting on 30 September and this issue today, surely those EU citizens who request physical proof should be able to receive it like any other citizen.

The noble Lord, Lord Oates, tabled the amendment in lieu to deal with the cost element that the Minister brought up on Report. I agree with him, because non-EEA citizens now receive physical proof, so I really fail to understand what the up-front costs that the Minister referred to are. It is an existing scheme. EU citizens deserve to be treated equally and the amendment deserves to be accepted. This is a matter not of policy, but of process. Non-EU citizens can obtain physical proof of settled status, so EU citizens will be the only group without that physical proof. I fail to understand why the Government are unable to accept the compromise amendment that now deals with the financial question.

My Lords, I am pleased to follow my noble friend Lord Oates’s excellent speech, and that of the noble Lord, Lord Polak, with whom I worked on the EU Justice Sub-Committee. The Minister referred to people being able to use their smartphones for this purpose. A friend of mine could not open the link in the email she received confirming her settled status. She had to go to an internet café to do so. I am not quite sure what went wrong there.

I will refer to a report published yesterday by the Committee on the Future Relationship with the European Union in the other place called Implementing the Withdrawal Agreement: Citizens’ Rights. I do not know whether the Minister has had a chance to look at it, but it backs the amendment so that EU citizens should have

“the option of … a physical document to evidence their residency status … in addition to their digital status.”

I am very pleased indeed that it has given that support. It refers to a number of reasons why this should be accepted. It talks about

“examples of people getting assistance from unregulated immigration advisers to make their application, then the third party retain the log-in details necessary to access the platform”

and make a

“charge to send on details to employers.”

I hope that is something the Home Office might look into.

The committee also talks about how, because the online product

“remains linked to the physical document, such as a passport, used by the individual in their application … If the passport is changed, then the applicant has to update the online system.”

That is an issue that will recur. The committee also says that

“accessing the online profile is not straightforward for people not fluent in IT”—

something we have discussed a lot on this subject—so they

“end up relying on the pdf document they receive informing them that a status has been granted”.

The Minister referred to that being put in the desk drawer. It is, of course,

“not a substitute for actual evidence of status”,

but unfortunately it might be used by some people who are confused by the online environment, which is a recipe for some difficulty.

Then, of course, the person asking the EU citizen to demonstrate their status has to understand it. The Minister referred to support for the holders of settled status. I am not sure whether she plans to give lots of tuition to prospective landlords, employers and so on. She talked about the NHS. It was not quite clear what that system will be. The Public Law Project has listed nine steps that a third party such as an employer would have to take to check the status of an EU citizen. It is worth quickly mentioning them:

“Request the code from the applicant … Wait for an email with a link to arrive … Open and read the email … Search, identify, and open the correct website”,

because apparently there is no link in the email,

“Start the checking process … Enter the share code from the email … Enter the applicant’s date of birth … Enter their company name”—

I am not sure what happens for an individual landlord—and, lastly,

“Check that the photo on their screen looks like the person applying for the job and keep a secure copy of the online check, either electronically or in hard copy.”

All this requires reliable access to the internet. If you do not have access to wi-fi, which you might not in an empty flat that you are showing it to a prospective tenant, a person would have to rely on mobile signal, which is honestly not great, even in London.

Also, the committee’s report says that apparently

“the lack of a physical document has contributed to the confusion over eligibility for benefits, because claimants have been unable to show a photo ID card showing their status … it was unclear how some decisions have been made by the DWP in terms of using settled status as a proof of eligibility.”

It is quite a serious point that even the DWP does not seem to have got this right.

The report says that

“the option of a physical card would give an additional layer of safety against criminal attempts to ‘hijack’ someone’s status.”

We are being warned all the time about cybersecurity, and the dangers of malware, hacking and so on. The report says that, in a recent survey of 3,000 EU citizens, apparently more than 10% had been asked

“to provide proof of settled status, and that the digital only status was deterring some from applying.”

It was actually putting them off. The report continues,

“physical proof came right at the top of concerns of EU citizens: 89% said that they would like an option, not compulsory, of physical proof.”

Having gone through all that evidence, it is hardly any wonder that the committee in the other place backed this sincere, reasoned request for EU citizens to have the option of a physical document. I know the noble Baroness cares about people and people’s lives, but it really seems the Government ought to find a way to accede to this request.

My Lords, here we go again on this one. I have not been persuaded any more by my noble friend—whom I hold in very high regard—this evening. She regurgitated the brief from last time, with a few little gildings, and did not convince me at all.

We are dealing with EU citizens. As my noble friend Lord Polak said very forcefully, they are being discriminated against in comparison with other foreign citizens resident in this country. This amendment asks for an option. If there was a weak point in the argument of the noble Lord, Lord Oates, in the previous debate and a strong one from my noble friend on the Front Bench, it was over the issue of cost. The noble Lord has dropped that, and he is wise to do so. Frankly, people who want this physical proof will, I am sure, be glad to pay for it, whether it is £28 or, to take my noble friend’s figure, £75. There are ways and means of ensuring that those who cannot afford £75 are able to do it.

We must not stumble on this particularly weak, faulty argument of the Government. I say “of the Government” because I like to think that my noble friend the Minister, who is held in genuine high regard in this House, is, as the noble Baroness, Lady Ludford, said a few moments ago, a woman who has demonstrated that she does care. She has not been given a kind brief. She is acting as a mouthpiece for a government department that does not have a history of great humanity.

Windrush was mentioned. If many of those people who suffered as a result of maladministration—and that is what it was—had had this sort of physical proof, we would not have gone through those agonising moments, and months, and years. This is common sense.

As far as the fallibility of the technology is concerned, my noble friend Lord Polak gave an up-to-the-minute example. We have heard many examples in your Lordships’ House since our last debate. One day last week, we had to adjourn for albeit not a long period, because the system had malfunctioned in some way.

We also must bear in mind that many of those about whom we are talking are of the generation that many of us in this House belong to. We are behaving in a rather arrogant way towards people who are not used to these systems. It is not a crime to be not particularly technological; if it were, I should be locked up for life. One sees the same sort of arrogance creeping in with those who say that we should have no more cash or cheques with which to pay our bills. We need to recognise that the whole of our society should be treated in a fair and equal way. What is being suggested this evening by the Government is that they should not be treated in a fair and equal way.

I appeal to my noble friend, who cannot—and does not, I know—believe in discrimination and who believes in fairness and equity, to do as I urged her to do last time: for goodness’ sake, tear up the brief and accept the argument. I know that these things are formulaic—I sat in the other place for 40 years—but the only reason the Government can dredge up is cost. Well, we have dealt with that one through the revised amendment.

Let us move forward. I will certainly vote for the revised amendment in the name of the noble Lord, Lord Oates, as I voted for his last one. I hope that I will not need to; I hope that none of us will need to. I hope that, if we do need to and it goes back to the other place, the other place will have the guts and the gumption to realise that we are not driving a coach and horses through any party-political policy and that we are not doing anything against the Government because they are a Conservative Government—a slightly odd one, but that is another matter. We are making a plea for people who, in many cases, are extremely vulnerable; who have made a real contribution to our society; who have lived in our country and made it their own in many ways; who love the place and who have served it, many of them with great distinction.

Please, let us be sensible. Let the Government be sensible. If it is necessary, let us give the noble Lord, Lord Oates, another thumping majority tonight.

My Lords, there are three strong arguments that support my noble friend the Minister’s position and the Government’s decision to seek to reverse the Lords amendment.

The first is the cost, which, as we heard on Report, might be more than £100 million. I know that £100 million seems like tuppence ha’penny after discussions about Covid but it is a very large sum. The movers have brought the cost down by proposing a charge, which the Minister says will be £75 on that basis. We must accept the Government’s figure; I know that the noble Lord, Lord Oates, argued that the cost is less but I am sad to say that, in my experience, government estimates are usually under-estimates rather than the reverse.

The second argument—this is the one that I feel most strongly about—is that there is always a risk of error and enhanced fraud with two versions of the truth, with one online version and one paper version. I do not think that that issue has been addressed properly in our debates.

The third argument, which this House may not like, is that digital is the way of the future; in my experience, everyone emphasises that unless they are pleading for a special case. In the words of my noble friend the Minister, digital by default is what we need because it gives access from anywhere from lots of different digital devices. It is precedented: as we have heard, digital ID has been used in Australia. Moreover, none of us worry about US ESTAs, which have the merit of providing one version of the truth. My noble friend also committed the Government to giving extra support to those who need help coping with the system; I am sure that DWP will also help.

I am afraid that I must disagree with the other noble Lords who have spoken. We should look forward, not back, and reject this proposal.

My Lords, I am tempted to support this amendment, moved by the noble Lord, Lord Oates, as we both approach the anniversary of our entry into this House, five years ago. I urge my noble friend the Minister to keep an open mind on this amendment and to agree to it.

As I reminded my noble friend, in 2014-15, the Government—at that time, it was the Defra department —tried to introduce a digital-only farm payments scheme. It was scrapped because it simply could not be delivered and the department reverted to paper-only applications. I remind the House that many of the applicants will live in rural areas—they will not all live in inner-city areas and major towns—where broadband is woeful. Many existing not-spots do not have the capability to carry this scheme. The Government acknowledged this recently and are backing down from their commitment to universal coverage by 2025, so they recognise the limitations of their digital by default-only policy.

I remind the House that on 16 October, the National Audit Office reported that broadband users in rural areas are being left behind in major network upgrades. The Home Office should recognise that there is not universal coverage of the broadband and internet technology that will be required to deliver the digital service by default. While I have the greatest regard for both my noble friends Lady Neville-Rolfe and the Minister, we have to accept that some 5% of people are living in the hardest-to-reach areas. In my view, this digital-by-default policy is being driven by an unelected adviser whose respect for the rules and the law is less than exemplary, and I think that he should join the real world with regard to some of the policies being brought forward.

The other difficulty I have with this policy is a very real one. I remind the House that my mother became a naturalised Brit, having come over to Britain from Denmark via Germany in 1948. What grieves me most about the policy that we will end up with without the amendment in the name of the noble Lord, Lord Oates, is that most of the applicants do not have English as their first language; it is not their mother tongue. In the words of my noble friend Lord Cormack, why are we seeking to discriminate against people in this way? I therefore urge my noble friend to show the big heart and affection that she has for these people and make sure either that we adopt the amendment in the name of the noble Lord, Lord Oates, in lieu of his earlier amendment for the reasons he has given, or that the Government should come forward with an amendment of their own. Digital by default in these circumstances is not going to work.

I know that almost everyone in the Chamber has spoken to the Motion, but I have to ask whether anyone else wishes to contribute at this point. Silence being the case, I shall move on to the next speaker, the noble Baroness, Lady Meacher.

My Lords, I shall speak in support of the amendment tabled by the noble Lord, Lord Oates. He has removed the only apparent government objection to his original amendment —that no fee could be charged—and, in her opening remarks, the Minister produced a few rather more minor costs. However, he undermined that argument, so perhaps she can clarify that point in her summing up.

As I understand it, this amendment will do no more than bring EEA nationals into line with all other immigrants residing in the UK. The Government have argued in relation to many amendments to this Bill that they are determined to treat EEA nationals in exactly the same way as other people who are resident in this country. Surely the Minister cannot then argue in relation to this amendment that EEA nationals should be treated differently when compared with immigrants from other countries. If she does not accept this amendment, can she explain this apparent inconsistency of approach?

The noble Lord, Lord Oates, has cogently set out the case for this amendment and his arguments need no repetition. For me, the two most powerful are first, that, as others have mentioned, IT system failures and technical faults are all too frequent, while the second is that large numbers of people have limited IT skills. The Minister responded to that point by saying, “That will not be a problem because there will be department-to-department communication.” Let us suppose that someone goes to a doctor needing medical help, but the Home Office system has gone down or some other technical problem has arisen; the doctor cannot treat them. I do not think that it is good enough to say, “Oh, do not worry, it will all be fine on the night.”

Just imagine, as an example, that we no longer had physical passports, merely an entry online to prove our UK citizenship. We could arrive at an airport and not be entirely confident that our details would be found to enable us to board an aircraft. How many of us would be comfortable with that? I certainly would not be. I wonder, when the Government talk about these things, whether they are actually planning to abandon physical passports, because that would be the logic of this situation. I will support this amendment if it is put to the vote.

My Lords, it is rare for a campaign to take off in the way that the call for physical proof has done. The Government have made their arguments over a number of stages and those who have been calling for this have not been satisfied—they certainly have been following what is going on. I regret that the Minister in the Commons did not address the issue but, apart from the standard financial privilege response, said that the issue had been debated many times. Yes, it has, but no one seems to have changed their position.

The Government again seem more concerned about not appearing to draw back from their policy of digital by default. Accepting the amendment tabled by my noble friend would not be a failure on the part of the Government because it would not be a failure to acknowledge that changes like this to the system take time, as the Australians have found. It would actually be a success to respond to public feeling and not to treat our EU friends in the UK as a convenient test phase for all-out digital. I hope that the House will support my noble friend.

My Lords, we may all have different views of this Government. While some might think that they are useless and incompetent, others might take a different view. However, I think that we would all agree that they certainly make many strange decisions—often ludicrous, inconsistent, contradictory and largely disappointing. This is one example. As the noble Baroness, Lady Hamwee, said, a consistent argument has been made about this issue, but the Government are just not listening. That is much to be regretted on the part of the Government because they should have given way on this point, but it is quite clear that they are not going to do so. I do not know if that is down to unelected advisers, the Home Secretary, or the general attitude of the Government as a whole. However, it is clear that they are not going to give way and that is most disappointing. For that reason, we are not going to support sending this issue back to the other place again because I do not think that the Government will change their position.

However, I have a few other comments to make. A few days ago, we had a debate about the costs to enable British children in care to get their British citizenship. The Government were happy to charge over £1,000; there was no issue about that at all. That is many hundreds of pounds more than the cost, so apparently there is no issue there at all. Here, of course, the Government have raised the issue of cost, saying that they are not sure and that it could be too much for people. I have equally made the point by asking for years why we cannot stop council tax payers having to subsidise planning applications. But no, the Government say that we have to continue letting those taxpayers subsidise such applications. That is completely ludicrous, contradictory and inconsistent, but that is what we have before us again today.

In all of these debates, I have never had an answer to this question. The point is made about how we cannot have certificates because they are not needed, everything is now digital, and we should not be worried about it. Yet, at the same time, we are handing out certificates to people who become British citizens. This is done in ceremonies in town halls up and down the country. You have to hand them out, they are signed by the Home Secretary of the day, and you tell the person that the certificate is really important. You hand it to them, a photograph is taken, and off they go with a document that at the moment is signed by Priti Patel. I have handed out hundreds of these things over the years, but I do not believe that those certificates are biometric. I think that they are a piece of paper. I might be wrong about that; perhaps they are biometric now and I do not know. Again, this is from the same department, so it is inconsistent and completely ludicrous. It is a real shame that the Government have not listened and that they are not going to do so. I think that that is much to the regret and shame of the Government.

My Lords, I thank all noble Lords who have spoken on this amendment—in particular, the noble Lord, Lord Oates, who moved it.

One of the first areas of disagreement that he raised was on costs. We have used published costs for enrolling biometrics and issuing a BRP, which are £19.20 and £56 respectively. They cover only the casework in the applications and not the significant set-up costs. There are costs of issuing and replacement, and one-off costs of upgrading pre-settled status cards. There is a cost of communication of the change and, of course, of facial technology.

The noble Lord, Lord Oates, suggested that the system should be trialled. The fact is that people are using it now. It is not going live on 1 January; people are already using it to prove status. That is proof of the success of the “trial”, as he puts it. Surely the fact that 4 million applications have already been made suggests that the system is working. This takes me to the point made by the noble Baroness, Lady Ludford, regarding the difficulties of the system. I have seen how the application process works. It is very easy; I have suggested previously in this place that noble Lords take time to look at just how easy it is to set up.

The noble Lord, Lord Oates, also stated his dismay that the PSED has not been published. I do not have any update on my previous statement that we intend to publish it.

On discrimination, the BNO route will be launched in January. Applicants will receive digital status using the technology based on the EU settlement scheme. People receiving that status will be required to use it from January, so the system relates not just to people from EU member states but to our BNO friends who we expect to come here from then. The system is therefore not discriminatory in the sense that our BNO friends will use it from January as well.

My noble friend Lady Neville-Rolfe is absolutely right: although it might not be the way forward for older people, digital by default is the way forward. It is completely retrograde to talk about physical documents when in fact, to date, the system appears to be working well. The noble Baroness, Lady Ludford, talked about physical documents being less open to abuse. They are more open to abuse and far easier to forge than a digital status that an employer or landlord can access.

Finally, regarding a power outage at the PNC, I should tell my noble friend Lord Polack that our back-up systems are very robust, as I have previously explained.

I do not think that I will convince some noble Lords—indeed, I think that the noble Lord, Lord Oates, intends to divide the House—but it is a retrograde step to talk about returning to physical documents. I remember my noble friend, joined by the noble Lord, Lord Clement-Jones, talking about the importance of physical identity, which we fully intend to take forward. I hope that the noble Lord, Lord Oates, will withdraw his amendment but I do not think that he will.

My Lords, I thank the noble Baroness for her response. I do not understand the issue with set-up costs; a system exists. I also do not understand the point about casework costs for people who already have settled status.

All the arguments have been aired extensively. I very much regret that the Labour Front Bench is unable to come with us, not least because of the strong arguments made by the noble Lord, Lord Kennedy, for exactly my position. However, I hope that, despite the view of the Front Bench, my friends on the Labour Benches will support us, just as my friends on the Conservative Benches will do. I thank noble Lords on all sides of the House for their support and I appeal for their support again. I wish to test the opinion of the House.

Motion E agreed.

Motion F

Moved by

6A: Because procedural safeguards already exist to ensure the lawfulness of the period of any detention.

Motion F agreed.

Motion G

Moved by

7A: Because procedural safeguards already exist to ensure the lawfulness of the period of any detention.

Motion G agreed.

Motion H

Moved by

8A: Because a detained person can apply for immigration bail at any time.

Motion H agreed.

Motion J

Moved by

9A: Because the Commons consider it appropriate, once free movement ends, for EEA or Swiss nationals who are confirmed victims of modern slavery to be considered for a grant of leave in the same way as such victims who are not EEA or Swiss nationals are considered currently.

My Lords, this Government are committed to tackling the heinous crime of modern slavery, which has no place in our society. We are now identifying more victims of modern slavery and doing more to bring perpetrators to justice than ever before, and we are committed to supporting victims and helping them to rebuild their lives.

Lords Amendment 9, tabled by my noble friend Lord McColl, would require arrangements to be made in the Immigration Rules for the grant of leave to remain for confirmed victims of modern slavery who are EEA citizens in specified circumstances. I am therefore pleased to see that he has tabled Amendment 9B in lieu, which reiterates the Government’s commitment to him in this area.

The original Amendment 9 is unnecessary and should not be insisted upon for the following reasons. Currently, confirmed victims of modern slavery who are foreign nationals from non-EEA countries and who do not already have immigration status are automatically considered for discretionary leave to remain. By “automatic”, I mean that they do not need to apply for it. Our national referral mechanism arranges for that consideration after a decision has been reached that there are conclusive grounds to believe they are a victim of modern slavery. EEA citizens are currently not automatically considered in this way.

However, in line with assurances given in the other place, following the end of free movement, EEA confirmed victims who do not already have permission to stay in the UK, for example through our EU settlement scheme, will be treated in the same way as other foreign national victims and therefore receive automatic consideration for a grant of discretionary leave. The published policy will be amended to make this clear.

The published policy already provides for a grant of leave in cases where the victim is supporting the police in an investigation; is to be a witness in court; is pursuing compensation for the exploitation that they have suffered; requires medical treatment that needs to be provided in the UK; or because there is a risk they may be retrafficked if they are required to return to their country of origin. This is substantially the same as the qualifying criteria set out in the original amendment.

I hope that, in the light of the assurances I have given, the House will agree that Amendment 9 and Amendment 9B in lieu should not be insisted on. There are further issues to take forward about how we can best identify and support victims of modern slavery and I have undertaken to discuss these matters in further detail with the noble Lord, Lord McColl. However, it is important that, for immigration purposes, EEA victims are treated in the same way as other victims from abroad once free movement ends. I beg to move.

Motion J1 (as an amendment to Motion J)

Moved by

9B: Insert the following new Clause—

“Consideration of discretionary leave to remain for confirmed adult victims of modern slavery who are EEA nationals

(1) The Secretary of State must ensure that a person aged 18 years or over is automatically considered for discretionary leave to remain when—

(a) the person is either a Swiss national or an EEA national who is not also an Irish Citizen; and

(b) there has been a conclusive determination that the person is a victim of slavery or human trafficking.

(2) The Secretary of State must ensure that persons granted leave to remain in accordance with this section have recourse to public funds for the duration of the period of leave.

(3) The Secretary of State must ensure that the person is considered for the grant of leave to remain immediately once a conclusive determination is made that they are a victim of slavery or human trafficking.

(4) In this section—

“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Council of Europe Convention on Action against Trafficking in Human Beings;

“conclusive determination” means a determination that a person is, or is not, a victim of slavery or human trafficking when the identification process conducted by a competent authority concludes that the person is, or is not, such a victim;

“EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at

Oporto on 2 May 1992 (as it has effect from time to time);

“victim of slavery” and “victim of human trafficking” mean a person falling within the definition of a “victim of slavery” or “victim of human trafficking” in section 56 of the Modern Slavery Act 2015 (section 56: interpretation).””

My Lords, I should make it clear from the outset that I will not be pressing the amendment in lieu to a vote. I am very grateful to the clerks who have advised me through the intricacies of ping-pong procedure, enabling me to speak today to thank those noble Lords who supported my amendment on 6 October, and to put on the record my response to events in another place on Monday and various undertakings that have been given by the Government.

I have decided not to move a Motion today to insist that what was Clause 12 be reinstated into the Bill for two reasons. In the first instance, I am very grateful for the Minister’s assurance that the Government will amend the guidance on discretionary leave to remain for victims of modern slavery to make it clear that, from 1 January, all confirmed victims who are EEA nationals should be automatically considered for DLR. This is very welcome. While it will not address the fact that many non-EEA confirmed victims of modern slavery will be able to access additional recovery routes, including asylum and humanitarian protection, it means that, as far as DLR is concerned, EEA and non-EEA confirmed victims of modern slavery will be treated in the same way. I thank the Government for this clear commitment.

My amendment in lieu effectively demonstrates what the Government have committed to doing in relation to automatic consideration and, for this reason, I will not be pressing it to a Division. I very much hope that, under this new arrangement, the Government will publish statistics on the immigration outcomes for all confirmed victims of modern slavery following their automatic assessment for DLR. I also welcome the assurance of the Minister in the other place that being a confirmed victim of modern slavery will be considered an acceptable reason for late application for settled status; that again is very positive.

The second reason I have decided not to move an amendment to reinstate Clause 12 is that the Government have agreed to a series of meetings with the right honourable Member for Chingford and Woodford Green, Sir Iain Duncan Smith, and me on our Modern Slavery (Victim Support) Bill to work through the issues with the objective of trying to identify common ground around victim support. I particularly welcome this.

The commitment to further talks is vital because, although I welcome the Government’s commitment to consider EEA nationals automatically for discretionary leave, I remain concerned that EEA victims will be left with a discretionary system as their one and only route to remaining in the UK. This is particularly concerning when one has regard for the fact that a previous Minister described granting DLR as possible only when there are

“exceptional or compelling reasons to justify a grant”

and when FoI data suggests that the proportion of confirmed victims getting DLR is just 8% to 9%.

As a firm supporter of Brexit, I believe it is absolutely right that we are ending free movement based on treaty rights, which grant all EEA nationals residency, immigration status and recourse to public funds. It does not follow from that, however, that we cannot provide recourse to public funds, ongoing support and immigration status for a limited recovery period to those confirmed victims of modern slavery who need it.

The truth is that our modern slavery legislation needs to be updated to take proper account of Brexit, which, even with automatic consideration, will leave confirmed victims of modern slavery who are EEA nationals worse off than they are today and with fewer recovery options than confirmed victims who are non-EEA nationals.

The people of this country are endowed with a keen sense of fair play. Many find it strange that, while someone who is confirmed to be a refugee gets with that status five years leave to remain, a confirmed victim of modern slavery gets no leave to remain at all. Our approach to recognised refugees in this regard should not change, but our approach to confirmed victims of modern slavery should, and this is a particularly important message in the week in which we mark Anti-Slavery Day.

I conclude by thanking the Home Secretary for the following commitment in her foreword to the 2020 UK Annual Report on Modern Slavery, published on Monday. She says:

“My message is clear: I will not tolerate the despicable exploitation and abuse of innocent people through modern slavery, and I will not stop until this terrible crime is finally consigned to the history books.”

I also thank the noble Baroness, Lady Hamwee, the noble Lords, Lord Kennedy of Southwark and Lord Alton, and Sir Iain Duncan Smith for all their help in this work. I am most grateful.

Given the commitments of the Government that I have set out, and with thanks to them for those commitments, I beg to move.

My Lords, I have received no notice of unlisted speakers. Does anyone in the Chamber wish to speak? No. In that case, I now call the noble Baroness, Lady Hamwee, and hope that she has been unmuted.

This stage does not need a long speech, so I will say only that I understand why the noble Lord, Lord McColl, is not pursuing matters today. I know that he will continue to press for all the things his Bill covers with regard to victims of trafficking and exploitation, and no doubt many other things as well. Of course, we support him. We, too, are concerned about this dreadful crime and the importance of supporting all those who have been victims of it.

My Lords, I was pleased to hear that the noble Lord, Lord McColl of Dulwich, has received assurances. I am particularly pleased that the noble Baroness, Lady Williams of Trafford, has given him assurances regarding what she will do to help progress this, and it was also good to hear that he has accepted them.

We all know that the noble Lord, Lord McColl of Dulwich, is highly respected, not only by me but by the whole House. He is a wonderful Member of this House, both in his previous professional career as a surgeon and in his work on the Mercy Ships. While I have been in this House for the past 10 years, he has consistently campaigned on violence against women and violence against people in general and on modern slavery. As I have said before, it is high time that the Government agreed with the noble Lord and moved things forward. The noble Lord’s Bill, which he referred to, which he and Iain Duncan Smith are promoting in the other place, is reasonable, sensible and practical, and the Government should be proud to support it. I hope that, in the not too distant future, we will see the Government give active support to the Bill because, sadly, it has left this House twice only to be wrecked in the other place by a group of people who seemed to get pleasure out of wrecking good Private Members’ Bills, so I hope that will stop and that we will get the Bill through. In his Private Member’s Bill he asks only that people are treated with dignity and respect and that if you are accepted as a victim of modern slavery in England and Wales, you should be treated exactly the same as you are treated in Northern Ireland and in Scotland, because their legislation is superior to ours, and we want it all the same.

I am therefore delighted that there will be a discussion and that the Minister and the noble Lord will be involved in that, and I hope that we will have some good news in the weeks and months ahead.

I thank everyone for their support, and I particularly thank the Minister, who is a real star and who has been so helpful in this whole business. Without further ado, I beg leave to withdraw my amendment.

Motion J1 withdrawn.

Motion J agreed.

Motion K

Moved by

10A: Because it is consequential on Lords Amendments 6 to 8 to which the Commons disagree.

Motion K agreed.