European Union (Withdrawal Agreement) Bill

Lord Oates Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

Moved by

[Lord Oates]

1: Clause 7, leave out Clause 7 and insert the following new Clause—
“Rights related to residence
(1) The Secretary of State must by regulations make provision implementing—(a) Article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document),(b) Article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document), and(c) Article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document),including making provision for a physical document providing proof of residence.(2) Subsection (1) applies in the same way to—(a) persons within the personal scope of the withdrawal agreement having the right to reside in the United Kingdom, and(b) persons to whom the provisions in paragraph (a) do not apply but who are eligible for—(i) indefinite leave to enter or remain, or(ii) limited leave to enter or remain,by virtue of residence scheme immigration rules (see section 17).”Member’s explanatory statement
This amendment removes the Bill’s references to a constitutive system and instead makes clear it will implement the Withdrawal Agreement via a declaratory registration system that ensures EU citizens can receive a physical document to prove their right of residence in the UK.

[Lord Oates (LD)]

My Lords, Amendment 1 is in my name and those of the noble Lords, Lord Warner, Lord Kerslake and Lord McNicol of West Kilbride. It seeks to achieve two things. First, it would provide citizens covered by the settled status scheme with a right to a physical form of proof of status; at present, only a digital proof is available. Secondly, it would shift the settled status scheme from a constitutive application scheme to a declaratory basis, meaning that rights were based on eligibility and not forfeit as a result of not meeting an arbitrary deadline.

I want to be clear at the outset. This amendment is not a partisan matter. It is not in any way an attempt to challenge Brexit, frustrate this Bill or change the substance of the rights established under the settled status scheme and in the withdrawal agreement. It simply seeks to ensure that the scheme will work effectively; that a plethora of problems that will, on the current basis, be encountered inevitably by the Government and EU citizens after the registration cut-off period are avoided; and that EU citizens have the option to have physical proof of their status should they wish it.

As noble Lords will recall, in June 2016, the current Prime Minister, Boris Johnson, the current Home Secretary, Priti Patel, and the current Chancellor of the Duchy of Lancaster, Michael Gove, made the following, unequivocal statement:

“there will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present.”

Sadly, although a great deal of progress has been made with the settled status scheme, these commitments have not been honoured.

First, the settled status scheme is not the automatic route to indefinite leave to remain that was promised. It is an application-based system with a finite cut-off date of 30 June 2021. The only thing automatic about it is that after midnight on that date, any person who has not applied will be criminalised—deemed to be unlawfully in the United Kingdom, whether or not they would otherwise have been eligible for permanent residence under the scheme—and subject to deportation. We know that despite its best efforts the Home Office will inevitably not be able to reach, and grant settled status to, every one of the 3.6 million-plus eligible EEA and Swiss citizens resident in the UK. As a result, possibly tens of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 18 months’ time. Inevitably, those most at risk will be the most vulnerable: young people in care, the elderly and the marginalised.

The Government’s argument for a cut-off date seems to be that it will help avoid a repeat of the injustice inflicted on people by the Home Office in the Windrush scandal, but it will do nothing of the sort. The cut-off date will simply empower the Home Office lawfully to inflict such injustice. Under the settled status scheme, there will be no hope of redress, as there was for at least some of the Windrush victims, because after June 2021 EU citizens will have automatically lost their lawful immigration status by virtue of having failed to meet the cut-off date, regardless of being otherwise fully eligible under the scheme. That cannot be right, and it is not what the Prime Minister and the current Home Secretary promised.

A second issue with the settled status scheme is that, unlike the system of indefinite leave to remain for non-EU, EEA and Swiss citizens, it does not provide successful applicants with physical proof of their right to be in the United Kingdom. Instead, they must rely entirely on a code issued to them by the Home Office, which has to be entered on the relevant website by whoever requires proof of their immigration status. The group the3million, which represents EU citizens in the UK, has published today the largest survey undertaken so far of settled status scheme applicants. It finds that 89% of EEA and Swiss citizens surveyed wanted physical proof of their right to reside because they are afraid of the difficulties that a lack of physical proof will inevitably cause. Interactions with landlords, airline staff or other officials obliged to check immigration status will become fraught with anxiety for them, dependent on the frailty of an internet connection and the resilience of a government IT system.

I have seen at first hand how these problems can arise, even before the settled status scheme comes into force. Some months ago, I was travelling back from Kenya to London with a colleague who is a German citizen and permanently resident in the UK. At the airline check-in desk, the official wanted proof of her right to residence in the UK because with all that was going on about Brexit, that was how he understood the situation. She explained that she did not need any proof; she was an EU citizen and, as such, had the right of entry to the UK. But we can imagine many circumstances in which people trying to travel will find themselves asked to provide physical proof but be unable to do so. Given that physical proof is provided to other people, such as non-EU citizens who have permanent leave to remain, this will inevitably cause confusion to officials around the world.

Your Lordships can see that if you are to tell people that you do not have physical proof but do have a number that an official must look up, on many occasions you would just be looked on with incredulity. If the internet is down or there is a problem with the Government’s IT system—I understand that it happens on occasion—then what predicament will that airline traveller be in? Will they be carried by the airline concerned but be unsure of their status? Will the carrier be liable if they allow that passenger to board?

As the noble Lord, Lord Warner, said in Committee, we must live in the real world. In the real world, in respect of permanent residence, proof of immigration status is in physical documentation; that is what people are used to. Those expected to comply with immigration rules will expect physical proof, and EU citizens will be severely disadvantaged if they do not have it.

--- Later in debate ---

[Baroness Williams of Trafford]

The point I was trying to make was that any agency that has access to information about proof of digital status has access only to the information for the purpose it is required to prove, such as right to work or right to rent. Data is given only for the purpose for which it is required.

The noble Lord, Lord Oates, talked about deportation and criminality for those failing to apply by the deadline. I explained in Committee that EU citizens who failed to apply to the scheme by the deadline will not be acting unlawfully in the same way as illegal entrants or overstayers and will not be subject to automatic deportation—they will not have knowingly entered the UK in breach of the Immigration Acts or overstayed their leave. Once free movement has ended, they will need leave to remain in the UK. That is why we set up the EU settlement scheme. As the noble Lord, Lord Kerslake, and my noble friend Lady Altmann said, we have been clear that we will take a pragmatic approach. In line with the agreements, those with reasonable grounds for missing the deadline will be given further opportunities to apply.

On the reliability of IT systems, I say to the noble Lord, Lord Cromwell, and my noble friend Lady Altmann that immigration decisions have been securely recorded and stored digitally since the turn of the century, so this is nothing new. I ask the noble Lord not to press his amendment.

[Lord Oates]

My Lords, I thank all noble Lords who have taken part in the debate. I thank the Minister for her response, but I must say that I am utterly bewildered by it. This really is not a complicated issue. Millions of EU, EEA and Swiss national citizens are desperately concerned and asking for physical proof.

In Committee, the Minister said that to provide them with physical proof would be confusing and create a two-tier system. We have a system of permanent residence in this country for non-EU citizens; my husband is one of them. In his passport is a Home Office sticker, a nice colourful thing with watermarks and all sorts of anti-fraud protection, which gives him permanent leave to remain. It is physical proof. Doubtless it is also recorded on some Home Office computer system—I certainly hope so. There is no complication about this; we can do it. We just need the same scheme. The complication with a system where there is no physical proof is that landlords, employers or others who may be used to having physical proof may not accept, or find it difficult to deal with, people who do not have it.

Let me pick up on a few points. The Minister talked about the driving licence issue. We have a physical driving licence. The Minister is indicating that I have missed her argument but the licence is proof of my right to drive. All these people are asking for is physical proof of their right to residence, which the Government are not providing. The Minister also said that there was a danger of ID-card creep; I do not think there is any danger of that. Again, we already have a system for permanent residence in which physical proof is provided.

The Minister said that the system is working well because a large number of applications have already been made. I will say two things about that. First, the argument that we have always made about why we need a declaratory system is to do not with the number of people who have applied by now but with the number of people who will not have applied by the cut-off date. That is what concerns us. Secondly, the Minister says that the system is working well, but I refer her to the information provided by the Public Law Project from freedom of information requests. It shows that 90% of those decisions to give people pre-settled status under the scheme—rather than settled status when they have come under administrative review, at a charge of £80 to the people applying for it—have been found to be wrong.

In summary, people having the right to physical proof is a critical issue. It is absolutely essential that the Government honour the commitments that the Prime Minister and the Home Secretary made at the time of the referendum. In view of how important this issue is, I beg leave to test the opinion of the House.