Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020
(Limited Text - Ministerial Extracts only)
Read Full debate17:12 - Division conducted remotely on Baroness Hamwee’s amendment to the Motion - Ayes: 120 / Noes: 266 - Baroness Hamwee’s amendment to the Motion disagreed.
17:26 - Division conducted remotely on Lord Rosser’s amendment to the Motion - Ayes: 261 / Noes: 252 - Lord Rosser’s amendment to the Motion agreed.
Baroness Williams of Trafford
That the draft Regulations laid before the House on 21 September be approved.
Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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
Baroness Williams of Trafford (Con)
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.