Motion to Approve
My Lords, in moving this Motion, I will speak also to the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 and the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.
Since the referendum, the Government have prioritised the protection of EU, other EEA and Swiss citizens who have made their home in the UK. We have repeatedly said that they are our friends and neighbours and we want them to stay. Parliament passed the European Union (Withdrawal Agreement) Act 2020 to protect their rights.
The Government have established the EU settlement scheme to provide a simple means by which they and their family members can obtain the status they deserve to remain living and working in the UK. More than 4 million applications to the scheme have now been received and nearly 3.8 million grants of status have been made. This is a remarkable achievement and the biggest immigration scheme in UK history.
The Government have now brought forward three statutory instruments that further protect citizens’ rights. They give effect to the UK’s obligations to EU, other EEA and Swiss citizens—who I will refer to as EEA citizens for simplicity—under the EU withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement. The instruments are made under powers in the European Union (Withdrawal Agreement) Act. I will explain briefly the purpose of each.
The first SI is the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020—or the grace period SI. The Government were pleased to share an illustrative text of the statutory instrument with the House in early September. Noble Lords also discussed this instrument in Committee on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.
The grace period SI has two purposes. First, it establishes the deadline of 30 June 2021 for applications to the EU settlement scheme by those EEA citizens and their family members who are resident in the UK by 31 December this year—the end of the transition period. Secondly, it saves existing relevant EU law rights for those EEA citizens and their family members who are lawfully resident in the UK at the end of the transition period but who have yet to obtain status under the EU settlement scheme. This is because, at the end of this year, the Immigration (European Economic Area) Regulations 2016 will be revoked, subject to Parliament’s agreement to the Immigration and Social Security (EU Withdrawal) Bill. The grace period refers to the period between the ending of free movement and the deadline for applications to the scheme.
The SI saves existing relevant EU law rights for those who make their EU settlement scheme application before the end of the grace period, until the application is finally determined. It makes some modifications to the EEA regulations to reflect the end of free movement, as well as to reflect recent case law, which remains binding on the UK. It does not alter the eligibility criteria for the EU settlement scheme; nor does it affect the Government’s commitment, in line with the agreements, to accept late applications where there are reasonable grounds for missing the deadline.
Broadly, the instrument maintains the status quo during the grace period, meaning there is no change to the way in which EEA citizens live and work in the UK. Those who have yet to apply to the scheme, whether they are here lawfully or not at the end of the transition period, will be in no lesser position in respect of their rights of residence in the UK on 1 January 2021 than they were on 31 December 2020, pending an application to the scheme.
The second statutory instrument is the Citizens’ Rights (Frontier Worker) (EU Exit) Regulations 2020, or the “frontier workers SI”, as I will refer to it. This instrument protects the rights of EEA citizens who work in the UK but live elsewhere, who are referred to as “frontier workers”, by 31 December 2020. Protected frontier workers have the right to continue to come here to work once free movement has ended for as long as they continue to be a frontier worker.
In accordance with the withdrawal agreements, the instrument will establish a frontier worker permit scheme so that protected frontier workers can apply for a permit certifying their rights under the agreements. The permit does not grant frontier workers a new immigration status. The frontier worker permit scheme will open in December this year. Applications for frontier worker permits will be made online, and the process will be simple, streamlined and free of charge.
From the end of the grace period, which is 1 July 2021, frontier workers will be required to hold a valid frontier worker permit in order to evidence their right to enter the UK on this basis. The instrument also sets out the circumstances in which a protected frontier worker’s rights can be restricted and a permit can be refused or revoked, in accordance with the withdrawal agreements. Finally, the frontier worker SI provides protected frontier workers with statutory rights of appeal against decisions that restrict their rights as well as a right of administrative review against certain decisions concerning eligibility.
The third instrument is the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020, or the “restrictions saving SI”. This instrument gives effect to the UK’s obligations under the withdrawal agreements. When restricting the rights to enter or reside of a person protected by those agreements, the agreements require the UK to consider conduct committed before the end of the transition period in accordance with the current EU public policy, public security and public health test. We are also extending this approach to people protected by the UK’s domestic implementation of the agreements. Therefore, the EU law threshold will apply to those who are protected by the agreements or by the UK’s domestic implementation of them. This includes those who have status under the EU settlement scheme, have an EU settlement scheme family permit, have a right to enter the UK for the purpose of a continuing course of healthcare, have entered the UK as a Swiss service provider or are a frontier worker.
However, now that we have left the EU, it is right and important that we create parity for all foreign nationals in the UK. Currently, there is a stricter and more specific test for non-EEA nationals liable to deportation than that for EEA citizens. This means that it is easier to deport non-EEA nationals who have committed criminal offences. A similar distinction exists for other types of restriction decisions—for example, a person’s exclusion from the UK. Conduct committed after the end of the transition period will be assessed according to the same UK criminality thresholds that apply to non-EEA nationals. Again, this is consistent with the agreements and creates a fair immigration system for all.
This instrument will come into force once the Bill revokes the EEA regulations at the end of the transition period, subject to the agreement of Parliament. We need to save and modify relevant provisions in the EEA regulations in so far as they apply to deportation decisions in order to comply with our obligations under the withdrawal agreements. This will allow us to apply the current EU law thresholds to conduct committed before the end of the transition period. The instrument also provides that deportation decisions made in accordance with these protections continue to be appealable in accordance with the UK’s obligations.
These three draft instruments implement the Government’s citizens’ rights commitments under the withdrawal agreements, and I commend them to the House.
Amendment to the Motion
As an amendment to the above motion, to leave out from “that” to the end and to insert “this House declines to approve the draft Regulations because the so-called ‘grace period’ of six months from 1 January 2021 for applications to the EU Settlement Scheme does not replicate the provisions which apply during the implementation period.”
My Lords, I am grateful to the Minister for going through those detailed and technical provisions. I have tabled this amendment opposing the grace period statutory instrument not because I oppose the grace period as such—and, in any event, at least six months is required by the withdrawal agreement—but in the hope of persuading the Government to sit down quietly to discuss the detail with those who are concerned about some of its not immediately obvious effects: “A slow conversation”, as she might put it.
The limitations of parliamentary procedures lead me to this. We cannot amend the instrument and, although I share the regret of the noble Lord, Lord Rosser, merely expressing concern does not require anyone to do anything. Effective scrutiny should lead somewhere: if not to a change in policy, at least to a consensus as to exactly what an instrument means and how best to express it. Everyone needs to know where they are; immigration law is quite complex enough.
The widely held view is that the grace period is a straightforward continuation of the transition period, with no difference in any EEA citizen’s position. In our view, that is just what it should be, in every detail, because that is right in itself and because of that wide- spread understanding.
The Minister, Mr Foster, has spoken of the SI saving “relevant … rights” and
“broadly maintaining the status quo”.—[Official Report, Commons, 14/10/20; col. 4.]
The qualifying terms are significant. The savings under the SI apply to individuals and their families who, by the end of this year, do not have leave to enter or remain under the scheme. That is, they apply if your application has not been determined or if you have not yet applied but are entitled to status, provided you are “lawfully resident”—a very significant qualifying term in the instrument.
If you were not exercising treaty rights on 31 December this year, it seems you will not, in the interim period, have all the rights that go with that status. Crucially, you will not be able to access benefits or healthcare. Mr Foster said that you can “work and live” as now, provided that you are subsequently granted status. I will leave aside the retrospective effect on you and your employer if it is not granted. He has written that an EEA citizen or family member who is resident but does not have a right of permanent residence and is not exercising specific free movement rights will not have those rights protected during the grace period and will not be able to start exercising them.
If you have not been exercising treaty rights but are here, for instance, as a family member, can you apply for a job or a tenancy in this period? What about benefits or healthcare, as I have mentioned? I can do no more in the time available than flag up the issue of private health insurance and treaty rights. The term “lawfully resident” begs a question that would be answered by a change to simply “resident” or “present”.
I doubt I need to emphasise the difficulty of finding a job in the current circumstances so as to exercise treaty rights if someone has not previously done so, nor the problem of a last-minute surge in applications, or if a lockdown causes delays in decisions in the Home Office. I appreciate that the department is encouraging citizens to apply to the EUSS by the end of the year and we will shortly see the arrangements and the guidance for people who have a reasonable excuse for not having applied. However, the encouragement to apply by the end of the year will be seen as something administrative and I doubt whether it will be understood that a citizen who does not have status under the scheme will be in a different position after the year end. Ironically, however, today’s announcement on criminality rules may highlight this because it states:
“These changes do not apply to EU citizens protected by the Withdrawal Agreement, such as those with status under the EU Settlement Scheme.”
Briefly, on the restrictions instrument, perhaps I might ask about people who have criminal convictions, both those who are serving and those who have served their sentences; they have rights too, which should not be lost retrospectively. If they do not have status under the scheme by the end of this year, does the Home Office intend automatically to issue deportation notices where it could not do so at the moment? Will it ensure that EEA citizens in prison or on licence understand the importance of applying for status without delay? Briefly, Keeling schedules should be used in the SIs so that the reader can see exactly what is being proposed without following up dozens of references.
These are not easy points technically, never mind politically. I hope that noble Lords will understand my concern for clarity and shared understanding. That is why I seek at least to pause the process and ask that the Home Office should work with stakeholders, who have spent a lot of time analysing the grace period SI to this end. I beg to move and I will seek the opinion of the House when the moment comes.
My Lords, the terms of my amendment are that this House regrets that citizens’ rights applications in the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 do not provide clear statutory protection during the grace period for all EEA, Swiss nationals and their family members who are eligible for the EU settlement scheme. Unless the Government persuade me otherwise in their response, I will seek the opinion of the House on my amendment.
We will not support the amendment in the name of the noble Baroness, Lady Hamwee, because it is well established that this unelected House, except in the most exceptional circumstances, does not vote down statutory instruments. This instrument has already been through the elected House of Commons, where it was passed following a Division in which we voted against it. It is also the case that voting down this SI would mean that the unelected House had voted down a measure passed by the elected House and as a result, the rights and protections applicable very shortly, which this SI guarantees to a significant number of people, would no longer be there.
We are considering three draft regulations. In respect of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020, we do not have any specific concerns. The regulations fulfil our obligations under agreements to allow those who are employed or self-employed in the UK but living elsewhere to continue to do so as long as they remain a frontier worker. This group of people will be required to obtain a permit as evidence of their right to enter the UK after 1 July 2021.
The Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 deliver our obligations under the withdrawal agreement to consider the conduct of a person before the end of the transition period in accordance with the current EU thresholds when relating to deportation decisions. These decisions will continue to be appealable.
I have a couple of questions. As with the grace period SI, which I will come on to, are there any EU citizens who are currently living in the UK to whom the current thresholds will not continue to apply for conduct committed before the end of the transition period and who will have the UK thresholds after 1 January 2021 retrospectively applied to them?
Crucially, there have been reports this morning that the Government intend to make homelessness grounds for deportation. The shadow Home Secretary has raised his concerns over these immoral plans, which are particularly shocking in the midst of a pandemic and a jobs crisis. This issue is not covered by the SI before us today, but it would be good to have further clarity on the changes we are paving the way for. Can the Minister tell us whether it is the Government’s view that a person falling into homelessness is grounds for deportation?
Our main concern today is with the draft regulation usually referred to as the grace period SI, to which our amendment to the Motion relates. The3million, representing EU nationals in the UK, and the Immigration Law Practitioners’ Association are concerned that the way in which this regulation is drafted could technically mean that a large number of people would have a question mark over their rights during the grace period and while their application under the settlement scheme was pending. The Immigration Law Practitioners’ Association did suggest that changing the text from “lawfully resident” to “resident or present” would align much more closely with the spirit of the EU settlement scheme and our obligations under the withdrawal agreement.
Currently there is no provision in relation to the resident’s status during the grace period for EEA and Swiss citizens, or their family members, who are not granted leave under the scheme by the implementation period completion date in some 10 weeks’ time and are not lawfully resident as defined by the SI. Such persons could therefore face difficulty in accessing services, such as healthcare or employment, during the grace period or during the time that an in-time application is decided or an appeal is pending.
Can the Minister confirm that the individuals not covered by this SI would include a person who is dependent on their spouse, so is self-sufficient but does not have comprehensive sickness insurance, and a person who is unable to enter the labour market due to a disability, and so is not working? If no further provision is made for these people, it would seem to diminish the meaning of the grace period and contradict the mechanisms made in what I understand to be other related regulations which do provide for protection for persons who are eligible under the EU settlement scheme but not lawfully resident under the EEA regulations.
As we understand it, the protected cohort under the European Union (Withdrawal Agreement) Act 2020 should include all those who are eligible for status via the settlement scheme, not just those exercising their rights within the EEA regulations. In Committee on the immigration Bill in the Commons, assurances were sought from the Government on this point. The Government gave an unequivocal assurance in Committee when the Minister said, during the sixth sitting, that
“section 7 of the European Union (Withdrawal Agreement) Act provides powers to make regulations to provide temporary protection for this cohort during the grace period. That means that if someone has not applied under the EU settlement scheme by the end of the transition period, they will be able to continue to work and live their lives in the UK as they do now, provided that they apply by 30 June 2021 and are then granted status.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 16/6/20; col. 195.]
The draft regulation ought to reflect that position and protect the entire cohort of those who are eligible to apply for settled status. As it stands, the consequences of the wording of the draft regulation are potentially severe for those affected, who are eligible for status via the EU settlement scheme but will be left in legal limbo, entirely of the Government’s own making, if this is not resolved.
In addition, anyone who has submitted an application to the EU settlement scheme before the end of the transition period and is pending a decision after the transition period ends will have to demonstrate that they fall within the scope of the draft regulations to have the benefit of their protection. The Government’s answer so far on this issue appears to be that no one will be challenged on their rights during the grace period, but that is no way to make law. If the Government knew this was to be their position—if they planned this carefully—what extra work has gone into ensuring that those who will not be covered by this SI have been supported to apply for the EU settlement scheme before 31 December this year?
What statutory provision do those EU citizens not protected by the regulations but eligible for status via the EU settlement scheme rely on in relation to their rights to work or to rent, and rights to protection from removal from the UK during the grace period? What statutory provision do those EU citizens not protected by the regulations, who have an application pending with the EU settlement scheme past the grace period deadline, rely on in relation to their rights to work or to rent, and rights to protection from removal from the UK?
The terms of the regulations ought to make it clear beyond any doubt, but fail to do so, that they are giving statutory protection during the grace period for all EEA and Swiss nationals and their family members who are eligible for the EU settlement scheme—as the Minister said in the Commons was the Government’s position. I beg to move.
For the convenience of the House, I remind your Lordships that the Question before it is the amendment in the name of the noble Baroness, Lady Hamwee. The noble Lord, Lord Rosser, will have the opportunity to move his amendment if her amendment is defeated at the end of the debate.
My Lords, I thank my noble friend for her introduction and the clarity that she has brought to these issues. That said, I have great sympathy with the views expressed by the noble Baroness, Lady Hamwee, although, for the reasons given by the noble Lord, Lord Rosser, I cannot support a fatal amendment. I will listen to what my noble friend says in answer to the points raised by the noble Lord.
My attention was brought to these instruments by virtue of their title on engaging citizens’ rights. We need to take the greatest care with the rights of those who, until now, have enjoyed with us not only national but European citizenship.
My first observation about all three instruments is that they are extremely difficult to follow. It may be that I am no good at following these matters but, given the many cross-references to other pieces of primary, European and secondary legislation, we are trying to uncover very tangled documents. While that might not matter for us, and I understand that these issues are complex and must be legally correct and certain, the rules set out in the instruments engage and affect citizens, some of whom will not have English as a first language. There is reference in the Explanatory Memorandum to publication of guidance, which might be fine, but not all official guidance, in my experience, is easy to comprehend, and posting these texts or the guidance on a website will not be sufficient. What efforts will we therefore make to reduce these measures into plain language for citizens to understand without the need for a lawyer, and how will we publicise them? We hear a great deal from Ministers telling us to get prepared for Brexit, but we do not know quite what we are preparing for and we need some clarity.
My second general point relates to the statement in each Explanatory Memorandum that no consolidation version is planned. Surely, with as many pieces of legislation from disparate sources such as these, that should be considered.
Regarding the instrument on frontier workers, I am surprised that there has been no consultation on implementation, even if the Government are bound to produce the regulations. Nor do I understand the statement that the instrument does not affect small businesses, even if they employ frontier workers. The Minister has confirmed that that the application for frontier workers will be free of charge. Can she confirm that the certificate will be free of charge? Further, while the Explanatory Memorandum states that the permit
“can be issued in a digital form”,
does that mean that a hard copy will be available? If so, why are we making a distinction between this permit and the confirmation of settled status?
The noble Viscount, Lord Waverley, has withdrawn from the debate, so I call the noble Lord, Lord Foulkes of Cumnock.
It is becoming increasingly difficult to reconcile debates in this House with the reality of the world outside, particularly in relation to whether and how the Government are adhering to the provisions of the withdrawal agreement.
As others have done, I want to deal particularly with the application deadline and temporary protection regulations, which we in Labour opposed in the House of Commons, as my noble friend Lord Rosser said, and were debated here during Report on the Bill. Incidentally, I do not understand why the extent of the regulations is described as
“England and Wales, Scotland and Northern Ireland”,
while in the other two instruments it is “the United Kingdom”. What is the difference? Perhaps the Minister can explain. But that is just incidental.
The real concern with this instrument is that there is no provision in relation to residence status during the so-called “grace period”—which I must say is an unfortunate term; it sounds like grace and favour, and it may be that people on the other side of the House think of it in those terms—for EEA and Swiss citizens and their families, who are now “lawfully resident”, as they are defined in the statutory instrument. We sought to change that term in the Commons to something like “resident and present”—not, as the noble Baroness, Lady Hamwee, said, “resident or present”. Otherwise, as my noble friend Lord Rosser said, they are likely to face difficulties accessing services such as healthcare and employment during this period.
Given the hostility fostered towards those people by people such as the Home Secretary, I can understand their fear. Remember that many of them are the people whose dedication has kept our NHS and care sector going during the current pandemic. The implications are severe for those who do not have a legal basis to live in the UK, but they are eligible to apply for status under the scheme, and they will be left in legal limbo. Given the record of the Home Office on Windrush and other such issues, I must say that I do not think that any of the verbal assurances are sufficient. We need much greater clarification on this.
The Liberal Democrats have tabled a fatal amendment to the Motion, which I fear is either more of their virtue signalling or, it may be, an exculpation of their dark deeds when they were in coalition with the Tories. Presumably, they will then be on to social media like a measles rash attacking us for not supporting what they know is only a gesture but they pretend has some effect. As my noble friend Lord Rosser said, if we vote down this SI, it would mean not only the unelected House overturning the elected Chamber but losing the other rights and protections included in the regulations. Our amendment is meant to follow up the opposition in the Commons Committee, where Labour and, indeed, the SNP—no Liberal Democrats—voted against the regulations.
If the Government and this Minister had any sense, they would accept the powerful arguments we have made today but, more important, the concerns of the people involved, and the Minister would agree to take this issue away and look at it again. In the letter which she helpfully sent, dated today—and we received it today—the Minister says that, following my noble friend Lady Lister’s amendment at Report on the Bill on 5 October, she would be discussing this with the Home Secretary. Surely, this is the opportunity. This is where and when this issue could and should be resolved.
My Lords, the noble Baroness, Lady Warsi, has withdrawn, so I call the noble Baroness, Lady Ludford.
My Lords, we are facing a perverse and peculiar situation. The Government have generously extended the scope of the settlement scheme beyond those exercising EU treaty free movement rights to those simply continuously resident here. Thus, echoing remarks he made in the other place on 16 June that the noble Lord, Lord Rosser, cited, the Immigration Minister, Kevin Foster, said in a letter last week to Holly Lynch MP,
“the Government has made it clear we will protect the rights”
of EEA citizens
“who have made the UK their home, but may not be exercising a specific Free Movement right.”
He also said in that letter:
“an EEA citizen or their family member who is resident in the UK at the end of the transition period, but who does not have a right of permanent residence and is not exercising specific free movement rights … will still be able to apply to the EU Settlement Scheme by the deadline of 30 June 2021.”
In that and other sentences in the letter, he kept referring to “those resident here”, with no reference to having to be lawfully resident under the EEA regulations 2016. He affirmed that those people would have the right to rent and the right to work in the six-month period, but without the caveat that my noble friend Lady Hamwee cited from his remarks on 16 June about needing to be subsequently granted status. How that would work retrospectively is a mystery.
So the Government will apparently protect the rights of all EEA citizens and they want them to stay, but those promises from the Government have not been translated into the text of the grace period SI and in fact they set an obstacle course for the period from January to June next year for those not exercising treaty rights. Yes, they can rent, work and apply to the settlement scheme, but they will not be lawfully resident in those six months. What good is that? When the Immigration Minister said
“we want them to stay”,
he failed to add an honest “but we will make them illegal residents for six months”.
The Government should create new residence rights to apply for six months for all those covered by the withdrawal agreement and eligible to apply for settled status. It is deeply unfair and capricious to lead people to believe that their rights are fully protected until they get settled status when that is not actually the case. The Government could of course just correct that problem by making the test for the grace period SI simple “residence” rather than “lawful residence”.
Thus, my noble friend’s fatal amendment should be supported. In fact, the noble Lord, Lord Rosser, gave very good reasons for doing so, notwithstanding the rather polemical remarks of the noble Lord, Lord Foulkes.
Finally, I would be grateful if the Minister could explain what changes the Government are making on the back of assurances referred to in the European Commission’s report of the recent meeting of the EU-UK joint committee. It says:
“The EU side further sought and received political assurances that under the UK settlement scheme, all EU citizens with residence status will benefit from the same set and level of rights as those guaranteed by the Withdrawal Agreement.”
Can the Minister explain what that paragraph means and what assurances have been given?
My Lords, we have been most fortunate to have had many EU and EEA citizens working in our country for many years. Without them and the services that they have performed, and still do perform, many of our key businesses and public services would be hard pressed.
One of the greatest areas of mutual benefit of our membership of the EU has been the possibility of free movement and the choice made by Europeans to work and live here, and by many UK subjects to work and live in other European countries. Therefore, whatever we can do to alleviate the new pressures on those who wish to continue their lives here is to be welcomed.
I had the privilege of serving as the Immigration Minister in the Home Office for a time in the 1990s. Then, although I was a strong adherent to UK immigration and asylum procedures, I adopted a principle of dealing with cases in a way that we deemed firm but fair. I therefore noted the reference to that principle by the Minister on the immigration Bill yesterday and am glad to see that it has remained in the Home Office psyche ever since.
In dealing with our EU citizens here, we now need rather better mood music. Whatever rules and regulations we need to introduce, such as the three measures before us today, we really must ensure that the new requirements and burdens on those subject to the provisions are operated not only firmly and fairly but, above all, sympathetically, where needed.
I fully recognise that, once the transition period ends, the Government intend to remove the more favourable treatment offered to European citizens over citizens from other parts of the world, but the withdrawal agreement, which we and the EU parties signed, set down clearly the arrangements on which these three measures are based. It gave EU citizens here and UK citizens in Europe certain specific rights and an exceptional status in the short term. On frontier workers, it is mainly of relevance to Irish citizens, who, since July, have required a permit to be here. Recent debates have been to do with the form of that permit. Can my noble friend confirm that this is now a physical document, not merely an electronic notice? The restrictions on rights of entry or residence arise under Article 20 of the withdrawal agreement. Can my noble friend confirm that all decisions on removal are fully appealable?
On the third item, regarding the application deadline and temporary protection, a period of six months is described as a period of grace. This needs clarification in a number of respects. There are contradictions, so can my noble friend assist us in describing precisely the status of an applicant for residence during the period of grace following the end of the transition period on 31 December 2020? If leave is not granted by that date, applicants are no longer lawfully resident. What of their rights to healthcare and employment? Will they be protected throughout the grace period? What is the position if a decision on their case has been taken and an appeal is pending? The period of grace must allow for some generosity in the implementation. The applications are for residency, often for people who have been here for years.
Many of us are hoping that the outcome of current negotiations with the EU will include major co-operation areas in the fields of justice and security. As someone who spent many years in the European Parliament helping to put together many provisions which are there to protect us all from terrorism and criminality, I strongly hope that we reach a satisfactory outcome. Without a close arrangement, matters such as those being debated here will be more problematic in cases where some joint action or enforcement is required. The announcement today in the other place of a toughening up of action against EU criminals will be of little use unless the real-time exchange of data between law enforcers and intelligence agencies negotiated and agreed by me and many others over many years is protected and available to us.
These are necessary SIs, but as with so many others they depend on our reaching a friendly accord with the 27 states of Europe and, of course, on proper adherence to the withdrawal agreement in which these specific items are enshrined.
My Lords, I thank all noble Lords who have contributed to the debate. I think some confusion has arisen because it is, in fact, a lot simpler than might first have been thought. Those who have yet to apply to the scheme will be in no less a position regarding their right of residence in the UK on 1 January 2021 than they were on 31 December 2020, pending an application to the EU settlement scheme.
I turn first to the amendment moved by the noble Baroness, Lady Hamwee, which, although she says it does not oppose the grace period, actually abolishes it. The grace period SI does not replicate the provisions which apply during the implementation period because, subject to Royal Assent to the Bill, free movement will end at end of that period, so those living in the UK but not exercising EU law rights at that point will be able to regularise their position by applying for status under the EU settlement scheme, if they have not already done so. The grace period SI complies with the withdrawal agreement and confirms the protections for those EEA citizens to whom the agreement applies. Like the noble Lord, Lord Rosser, I do not think that Parliament should refuse to support that.
I now turn to the amendment in the name of the noble Lord, Lord Rosser. Where a person has yet to obtain status under the EU settlement scheme, the grace period SI will protect any relevant EU law rights which they hold when, subject to Royal Assent to the Bill, free movement to the UK ends at the end of the transition period. This is in line with agreements and reflects the current position under EU law. An EEA citizen or their family member who is resident in the UK at the end of the transition period but is not exercising EU treaty rights will not have residence rights under free movement rules to be protected during the grace period. They will not be able to start exercising free movement rights in the UK after free movement in the UK has ended at the end of the transition period, but they will still be able to, and will be encouraged to, secure the status that they need under UK law to continue living in the UK beyond 31 June 2021 by obtaining status under the EU settlement scheme.
The noble Baroness, Lady Hamwee, raised comprehensive sickness insurance. The grace period SI does not change the eligibility criteria for the EU settlement scheme. As I have said on many occasions and repeat today, there is no change to the Government’s policy that CSI is not required to obtain status under the scheme. The grace period SI maintains CSI as a requirement for lawful residence during the grace period as a student or self-sufficient person under the saved EEA regulations, and this is consistent with EU law.
The noble Baroness, Lady Hamwee, and other noble Lords raised Minister Foster’s speech made in Committee in the other place in June. The Government have provided the means to protect all who are resident in the UK by the end of the transition period by establishing the EU settlement scheme. When speaking in the other place, my honourable friend the Minister for Future Borders and Immigration did not suggest that this instrument would be used to create new free movement rights once free movement has ended. To regularise their status in the UK, those not residing here lawfully at the end of the transition period can apply to the EU settlement scheme.
The noble Baroness, Lady Hamwee, and the noble Lords, Lord Rosser and Lord Foulkes of Cumnock, raised the question of replacing “lawfully resident” with “resident” or “present” in the UK. Having an EU right to reside confers other rights beyond the right to remain in the UK, such as access to benefits, and after the end of the transition period it would not be appropriate to widen EEA citizens’ entitlements beyond those groups who have them now. The Government have instead given EEA citizens not exercising EU treaty rights the means to resolve their situation by making an application to the EU settlement scheme. It was never the Government’s intention to change how we have implemented EU law by bringing within scope of the saved EEA regulations individuals not residing lawfully in the UK at the end of the transition period. To regularise their status in the UK, they need to make an application to the EU settlement scheme.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, also raised the issue of exclusion of EEA nationals. Decisions to exclude EEA nationals are outside the scope of this instrument, which saves only deportation powers, although the noble Lord may have mentioned deportation. Decisions to exclude those protected by the withdrawal agreement will be made by the Home Secretary directly, as is the process for non-EEA nationals. Where the exclusion is based on conduct which took place before the end of the transition period, the Home Secretary will ensure that the decision meets the EU law thresholds on the grounds of public policy, public security or public health.
My noble friend Lord Kirkhope of Harrogate talked about the Article 8 threshold for deportation. Article 8 of the ECHR’s right to respect for private and family life is a qualified right, which can be circumscribed, where lawful, necessary and proportionate, in the interests of a number of factors, including national security, public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others.
Section 117C of the Nationality, Immigration and Asylum Act 2002 provides that when assessing whether deportation breaches Article 8 of the ECHR, the deportation of a foreign national offender must be in the public interest, unless certain exceptions apply. This is a stricter threshold than in non-criminal cases, because of the greater public interest in deporting serious or persistent foreign criminals. Parliament has expressly required a particularly strict threshold when assessing whether the deportation of those sentenced to at least four years’ imprisonment is in the public interest. This reflects Parliament’s view that the more serious the crime, the more serious the response.
The noble Lord, Lord Rosser, referred to rough sleeping. We are committed to transforming the lives of some of the most vulnerable people living in this country, and to ending rough sleeping for good. This year, the Government spent more than £700 million in total to tackle homelessness and rough sleeping, which includes the £112 million of funding for the rough sleeping initiative and the £266 million this year for the Next Steps Accommodation Programme, which aims to ensure that as many people as possible do not return to the streets; it also puts in place support over winter. For those who refuse support, the new rules provide a discretionary basis to cancel or refuse a person’s leave where they are found to be rough sleeping and are engaged in persistent anti-social behaviour. I assure the noble Lord that the new provision will be used sparingly and only when individuals refuse to engage with the range of available support mechanisms.
The noble Lord also asked about enforcement action against those eligible to apply to the EU settlement scheme during the grace period. The Government have made it clear that EEA citizens and their family members who are resident in the UK by 31 December of this year have until the end of the grace period, on 30 June next year, to apply to the EUSS. During the grace period, the Home Office will not enforce the removal from the UK of those who are eligible to apply to the EU settlement scheme, pending their application to the scheme and its final determination. This includes those without a right to reside, for example individuals who are studying or living here and do not possess comprehensive sickness insurance, or who are not in genuine and effective work. Our focus will remain on signposting individuals to the scheme and providing the necessary support to apply. We will, though, continue to take enforcement action against those involved in serious or persistent criminality. For conduct committed after the end of the transition period, this will be on the ground that it is conducive to the public good.
The noble Lord also asked about the position of someone with a pending EUSS application at the end of the grace period. The grace period SI will save relevant rights at the end of the transition period, in relation to residence and access to benefits and services, for those who make a valid application to the EUSS by 30 June 2021 and until it is finally determined. This includes pending the outcome of any appeal against a decision to refuse status under the scheme. This means that someone who applies by the 30 June deadline and has not yet been granted status under the EU settlement scheme can continue to live their life in the UK as now until their application is finally determined. An individual undergoing an eligibility check while the outcome of an application made by the deadline is pending will have the same entitlement to accommodation, work, benefits or services as they did before the grace period ended. Where it is needed, the Home Office will be able to confirm that an application is pending.
My noble friends Lord Bowness and Lord Kirkhope of Harrogate asked about engaging with frontier workers, first, so that they can be alerted as to their rights and what they need to do. The applications will open in December this year. They will be made online and the process will be simple, streamlined and—my noble friend Lord Bowness asked about this—free of charge. Ahead of the scheme opening, the Government will ensure that EEA frontier workers and their UK employers are fully aware of their rights and obligations, and will encourage frontier workers to obtain the permit to certify their rights under the agreements. Regarding a physical document being available—this goes to my noble friend Lord Kirkhope’s other question—those with an ID card with an inoperable biometric chip will initially be issued with a physical permit, but as soon as the technology is available, it will be a digital system.
I hope that I have answered all noble Lords’ questions. I ask the Liberal Democrats to reflect on the effect that a fatal Motion will have on those EU citizens whom they so badly want to protect.
My Lords, I say to the noble Lord, Lord Bowness, that I wondered whether I might talk about the drafting for a full eight or nine minutes and decided that that would not be very appealing to your Lordships. To the noble Lord, Lord Foulkes, I say that I do not use social media—I am a dinosaur. I am sure that he knows far more about the dark arts than I do; he might regard that as a compliment, of course.
With regard to the substance, the Minister repeated many of the terms that your Lordships have questioned and did not, I think, answer the concerns that were expressed. I remain uneasy about approving an SI when I am still unclear about the detail regarding status during the grace period. I still think that there is a lack of clarity and an uncertainty affecting a very large number of people.
I made my objective quite clear: to seek to persuade the Government to discuss the detail and get a consensus on the meaning of what is provided. What I am proposing would not affect citizens if there was a consensus as to the meaning—even leaving aside what underlies it—so citizens, who are indeed our friends, would not be affected because there is time to get that consensus and bring an agreed SI back to the House. I refute the motivation that has been implied; it is not that at all.
Noble Lords are well aware of the constraints of our proceedings. This is the only step now open. Therefore, I seek to test the opinion of the House.
Amendment to the Motion
As an amendment to the above motion, at end to insert “but that this House regrets that the draft Regulations do not provide clear statutory protection during the “grace period” for all European Economic Area and Swiss nationals and their family members who are eligible for the EU Settlement Scheme.”
As I understand it, I am now to formally move my amendment. I think I have the opportunity just to say a few words, and they will be a few.
I gave two specific examples: first, someone dependent on their spouse, so self-sufficient but without sickness insurance, and, secondly, someone unable to enter the labour market due to a disability and so not working. I asked the Government to confirm that in neither of those examples would the individual be covered by this SI. In my opinion, I did not get a specific yes or no. I was left with the strong impression from what was said that, even though in both examples the individuals affected would be eligible for the EU settlement scheme, they would not be protected during the grace period by this SI if still seeking settled status as they would be in the category of those deemed not to be exercising EU free movement rights.
We need clarity. We need the Government to put wording in this SI that reflects what the Minister said in Committee on the Bill in the Commons about protection during the grace period for all EEA nationals and their family members. I wish to test the opinion of the House on my amendment.
Motion, as amended, agreed.