Brexit: Acquired Rights (EUC Report)

Tuesday 4th July 2017 Lords Chamber

Motion to Take Note

19:03

Moved by

[Baroness Kennedy of The Shaws]

To move that this House takes note of the Report from the European Union Committee Brexit: acquired rights (10th Report, Session 2016–17, HL Paper 82).

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in the immediate aftermath of the referendum, the European Union Justice Sub-Committee, which I chair, embarked on an inquiry into one of the most pressing issues to arise: what happens to the rights of European Union citizens who live in the UK, and what happens to the rights of UK citizens living in other parts of Europe? Being part of the European Union means that people can live, work, study and set up businesses in a member state of their choosing. Millions have chosen to do that. While the report we published did not deal with commercial rights, many of the legal principles applied as much to companies as to individuals.

Before the referendum, there was a lot of speculation and claims that people would be protected by the doctrine of acquired rights in international law, so that they could just carry on as before. This turned out to be what nowadays is called “fake news”. The evidence we heard was clear that this was a red herring and it distracted from the very real problems posed for people by our withdrawal. International law provides no meaningful protection. The committee received anguished letters from families, and it is family issues that will be most testing for the Government. This is about people and their lives. When we talk about trading, at the end of the day its purpose is to enhance lives. In the end, it is always about human beings.

We recommended that the UK Government should take unilateral action. We felt that that was the moral thing to do and that it should have been done before we ever entered into negotiations. We urged that upon the Government, but it was not accepted. The Government’s response was that this might leave at risk our citizens living in other parts of the European Union. Unfortunately, the response seemed to be, “If we can’t help everybody, we’ll just help nobody”, so it was left until now, and it is still looking very difficult to resolve.

We accepted that the much-vilified European Convention on Human Rights might provide some protection, particularly against deportation. It would also protect against loss of possessions, physical or intangible, such as commercial rights, which are currently protected by European Union law. Similarly, bilateral investment treaties might provide limited safeguards for investors from losing European Union rights, but only when to do so does not clash with European Union law.

However, it become very clear to us that the thousands of rights that derive from European Union law are simply not replicated in other instruments, and there would be a real deficit of rights without an agreement to protect. Professor Sionaidh Douglas-Scott and other very distinguished legal experts gave evidence before us that certain European Union rights could be protected only within the withdrawal agreement itself. That was the inescapable consequence of the evidence we had. The Government, it seems, are coming to agree. Any agreement on citizens’ rights will end up being binding under international law. Many of our British folk living in other parts of the European Union believe that the offer being put on the table by the European Union 27 is a more comprehensive offer, and we should listen to what they are telling us.

We recommend that the rights safeguarded in any withdrawal agreement should be frozen at the date of Brexit. We emphasised that the majority of such rights would be reciprocal, with parallel European Union rights, and it was therefore necessary that they be applied consistently with European Union rights. In other words, there would have to be a level playing field. That means that as the parallel European Union rights evolve over time, so it is likely that UK law will have to evolve with them.

The 27 are urging that the ultimate overseer should be the European Court of Justice. That is the question that we have to keep asking: who has the last word? We will come up against that question time and time again in the course of these negotiations over all manner of rights. When you have cross-border relationships—whether they are trading relationships, relationships through marriage or relationships on consumer rights—you will end up having to ask that question. Who has the last word? Who will be the ultimate arbiter?

I am not alone, nor were my colleagues on the committee, in being concerned about this matter, which seemed to be neglected by having a line drawn through any possibility of our having anything to do with a supranational court. We made it clear that a mechanism could be developed to ensure that UK law takes account of developments in EU law in the jurisprudence of the European Court of Justice, and that EU law takes account of relevant developments in UK law in the same way, so that it is reciprocal. That is what happens in the EEA under EFTA. Some sort of court has to exist. The EU 27 have made their offer, and the Government have now made a corresponding offer, but questions remain to be settled. There are serious and important questions.

I remind this House of something that has come from the Bar Council. Lawyers who have been looking at this emphasise:

“Rights are not worth much if they cannot be enforced”.


So the issue is very much about enforcement. They state:

“Clear and useable enforcement mechanisms are essential to the rule of law. Certainty is currently provided by the interpretive role of the”,


European Court of Justice,

“and to reject this would deprive EU citizens in the UK of that safeguard”.

They point out that you have to deal with the problem that can arise when someone says, “The courts in Britain are not protecting my rights as a European”, and that there may have to be resolution somewhere else. In the same way, a British person living in Spain may feel that the Spanish courts are not doing the right thing by them with regard to their rights and will want to go to a court beyond Spain—perhaps to the European Court or some such court, depending on what we arrange. The Government have to be mindful of that.

A number of questions still arise and I ask the Minister to respond to them. Is settled status for life? That is a question being asked by Europeans in Britain and our citizens living in other parts of Europe. Will European Union nationals lose their right to vote? If they are given settled status surely they should be allowed to vote, not only in local and European elections but also in our general elections if they live here and pay taxes. Will they be able to bring in spouses without meeting the UK’s minimum income threshold requirement? Will European Union citizens have the same rights as UK citizens, where families, including parents, dependants, adults and children, can move from one country to another? As my mother could come down from Scotland and live with me, or children I may have had before who lived in Scotland or in Ireland could come and join us, can a settled French family bring over their granny to join them? Could a woman who has remarried in Britain and has been living here for 15 years bring over her 17 year-old son she had previously when she was living in Germany with her German first husband to join her here at this stage? If he was shared between the two of them over the years and spent his summer vacations here, could he come to university here? What are the family reunification rights?

The same question will be raised by British people who live in other parts of Europe. Will they have reunification rights with regard to family? What happens to EU nationals married to Britons who are not exercising EU treaty rights, such as housewives who are not working, not setting up companies, but doing important work in rearing children? Will they get settled status too or will they have to apply under UK immigration rules, requiring therefore another five years’ spouse status before qualifying for indefinite leave to remain? Will rights to pensions, healthcare, work, rights of establishment and mutual recognition of qualifications all be safeguarded?

Can we ring-fence a definitive agreement soon in advance of other parts of our negotiations? We keep hearing that it is not over until it is over but some people want it to be over and want to know now what the position will be because uncertainty is so painful. These are deeply serious matters because, in the end, it is about human lives.

The issues of contention will be resolved initially by immigration departments—we know this—but will end up being dealt with by poorly trained officials making significant decisions against tight deadlines, and the risk of endless litigation is high. More than 3 million people in Britain alone will be making applications for this special status. What will we do about administering those applications in a fair and just way? Our relations with the rest of Europe and our neighbours abroad will be deeply damaged if we get this wrong. Getting it right from the outset is vital and it should be done in a spirit of generosity, not pettifogging strictures to keep people out. I urge the Government to be welcoming and to make any system simple and clear, and to give people certainty soon.

I hope the Government will welcome our report. We have received no response from them and I am looking forward to what the Minister will say tonight.

19:14

[Baroness Smith of Newnham (LD)]

My Lords, I welcome the report by the European Union Justice Sub-Committee. I did not serve on the committee and so I can say that it is a splendid report. It would be easy simply to say that the noble Baroness, Lady Kennedy of The Shaws, has said everything that needs to be said and sit down, but, needless to say, I have a few questions that I would like to raise with the Minister.

It is often suggested that debates are timely, as was said at the start of the previous debate on the Middle East; it is always said that the debate is timely, but this is beyond timely. For the past year, Members of your Lordships’ House, Members of the other place and ordinary citizens in the United Kingdom and elsewhere in the European Union have been crying out for answers to questions about the rights of EU nationals resident in this country and UK nationals resident elsewhere in the European Union. It has been apparent to almost everyone that some of these questions could be dealt with unilaterally and could have been dealt with last summer. However, Her Majesty’s Government chose not to do that.

After a year, some proposals were published last week. The noble Baroness, Lady Kennedy, said that the Government have not formally replied to the committee’s report, but we now have the government paper on safeguarding the rights of citizens. It has been six months since the committee produced its report, during which time men, women, husbands, wives, children, extended families have been unclear about what the future holds. One of the biggest difficulties since June 2016 has been the mantra that we kept hearing that, “Nothing changes until the day we leave”. However, everything changed on 24 June 2016 for people who were living in one country but with family in other countries. All sorts of questions have been raised again and again, and we still do not have many answers. The paper brought forward last week on safeguarding the rights of citizens does not go very far in dealing with the uncertainty that has been raised. It goes a little way—I give it a cautious welcome—but not very far.

Last year the noble Lord, Lord Lucas, introduced a debate from the government Back Benches on the rights of EU nationals. He asked: what is the problem? Surely there is a way of dealing with the rights of EU citizens resident in the United Kingdom. There appeared to be only one problem at that stage. I thought, and it was muttered at the time, that perhaps it was the former Home Secretary, who then became the Prime Minister, who was the one person who might have had the ability to say that we would secure the rights of EU nationals. Recently, the former Chancellor of the Exchequer, who has been reincarnated as a journalist and editor of the Evening Standard, has suggested that Her Majesty’s Government wanted to secure unilateral rights for EU nationals and that the one person who refused to do that was Theresa May.

It is therefore with reluctance and perhaps schadenfreude that we listened to the Prime Minister’s words last week when, on introducing the paper on Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU, she stressed, “we want certainty”. So does everyone else; the difference is that we have all been saying it for a year. She went on to say:

“I have always been clear that I want to protect their rights”.—[Official Report, Commons, 26/6/17; col. 302.]

So do we all; the difference is that none of us individually was able to change government policy. The one person who could have been clear and made decisions a year ago was the Prime Minister.

It is good to see the safeguarding paper, but it is rather little and rather late. The proposals are an improvement on the uncertainty that has dogged people for a year, but it is far from the generous offer that was being heralded. At best, it gets down to the “fair and serious” that has been suggested more recently, but it still relies on reciprocity. Certainly over the last months and the last year, as the noble Baroness, Lady Kennedy, pointed out, many people will have received letters, emails and pleas from UK nationals resident in other EU countries saying, “What about us? You keep talking about the rights of EU nationals in the UK. Don’t you care about us?”. Of course we do, but reciprocity raises certain issues.

The only way there will be a reciprocal deal is if there is a negotiated solution for withdrawal. At the moment, the European Union expects that the rights of its citizens should be dealt with by the Court of Justice of the European Union. In its paper, the British Government seem to suggest that cannot be the case and that any decisions would be taken by UK courts. How are we going to get to a solution that allows reciprocity and justiciability that will not leave UK citizens and EU citizens uncertain and insecure?

There are some welcome elements of the paper, particularly that EU citizens will no longer have to prove that they have had comprehensive sickness insurance. That is one of the slight peculiarities at present about proving they have the right to be here and have been here for five years. But the tests of residency remain rather unclear. Will the Minister explain to us what the streamlined processes and light-touch approach the Prime Minster has talked about mean in practice? How will continuous residency be shown? Can we be assured there will be no more 84-page documents?

What will the cost be? Getting British citizenship is prohibitively expensive. One of my cousins is married to a German national. She has not taken British citizenship because it is simply too expensive. Many people are in that position. It is often suggested by those who have perhaps not thought about the cost, “Why don’t people just take British citizenship?”. It is because it is time-consuming and expensive, and people have assumed they have not needed to. For those EU citizens legally resident here for five years, who we understand from the Government’s document will be given the right to remain—so indefinite leave to remain or settled status—will it be possible for them to do that free of charge, or at a minimal cost, perhaps akin to getting a British passport, rather than going through the costs we have seen for residency rights or taking citizenship?

Will the Minister tell us what is meant in the safeguarding paper by,

“these rights will apply to all EU citizens equally and we will not treat citizens of one member state differently to those of another”?

I ask that because three nationalities are currently treated differently: citizens of the Republic of Ireland, citizens of Malta and citizens of Cyprus, the latter two being Commonwealth citizens. At present, if you are a citizen of Malta or Cyprus, you can vote in local elections and European elections but also British general elections; if you are an EU national other than from Malta, Cyprus or Ireland, you do not have the right to vote in general elections. If they are all being treated the same, are we proposing to take away voting rights from Irish, Maltese and Cypriot nationals? Are we proposing to give voting rights to the nationals of other EU countries? Or is that something the Government simply have not thought about?

All this presumes there will be a satisfactory outcome to the negotiations. After all, the Government’s offer is predicated absolutely on reciprocity, and that presumes a deal. What happens if there is no deal? We have heard a lot about no deal being better than a bad deal. For EU nationals resident in the United Kingdom, who have suddenly been given a glimmer of hope by the Government’s paper on safeguarding their rights, no deal would surely be worse than a bad deal. Yet, if the UK is so reluctant to countenance a role for the Court of Justice of the European Union in enforcing the rights of EU citizens, do Her Majesty’s Government really expect to get a deal?

There are many questions. Some of the questions raised in the European Union Committee’s report had been partially answered by the Government’s safeguarding paper, but only partially. If the Minister can give us some answers this evening that, would be most welcome.

19:24

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, I congratulate the noble Baroness, Lady Kennedy of The Shaws, and her committee on an excellent report on this most challenging of Brexit subjects. I hope she does not feel that the Government’s recent and generous offer on safeguarding the position of EU nationals living in this country has in any way stolen her thunder; it is but the opening—I hesitate to say—shot in the UK’s negotiations. I, too, wish the offer had been able to have been made sooner.

It is a generous first offer, even if it does not go all the way to continuing the freedom of movement that many in this House sought for the 510 million EU citizens. Instead, it extends the ability to apply for settled status to the 3.2 million already living in the UK on 29 March, including access to benefits, pensions, education and healthcare for them and their dependents. As the noble Baroness suggested, there are many important issues still to be resolved.

The overarching challenge is how to agree a deal that is both fair and reasonable. When the Maastricht treaty introduced the concept of European citizenship, few envisaged that millions of people would wish to travel to one European country and settle there. Indeed, for many member states this would have been impossible under communism. But the population of the UK has risen by 5.6 million in the past 11 years and has been estimated by Migration Watch to rise a further 5 million to 70 million by 2025, although only some of this increase represents movement here from EU countries.

We have always been an outward-looking nation, welcoming and in the early days even seeking immigrants, who have in turn contributed to the richness of our cultural life and the wealth of our businesses. More recently, our public services simply could not have functioned without the excellent professionals who have chosen to live here. The same is true of many other industries, including building and tourism. So immigration is, has been and will continue to be a good thing for the United Kingdom post Brexit. Most of us will continue to feel European after Brexit, even if we do not see our identity defined as being part of a political structure called the EU. But there must be a tipping point at which uncontrolled immigration just puts too much stress on our public services, housing stock, jobs and public finances. If that leads to resentment, acts of xenophobia, as identified in the committee’s report, and community unrest, it will risk much of what successive Governments have achieved in creating the vibrant, multicultural society we live in.

By all means, let us construct a very generous offer to EU citizens living in the UK. Equally, let us construct an attractive route to UK residence for those whose services or businesses we decide we need in the future, either by quotas, permits or other means. We have a long way to go in our negotiations for defining and ensuring reciprocal rights. What is proving to be even more challenging is deciding how those rights can be safeguarded in the future.

If we are to regain fully our judicial sovereignty, then there can be no role for the European Court of Justice—a scenario which is unacceptable to the EU. There surely can therefore be only one solution, which is for an independent court or tribunal to act as a binding arbiter. As with many matters during these complex negotiations, a compromise will be required. This will need to reflect the competing desires of a United Kingdom that wishes to regain control over judicial matters and the need to provide certainty to those EU citizens whom we wish to continue living and working here. As the report suggests, there is both a moral and an economic case that the sooner this happens the better.

19:28

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too congratulate the committee and its staff on producing this excellent report, and the noble Baroness, Lady Kennedy, on her illuminating opening of this debate. There is comparatively little I want to say about the substantive rights of EU citizens and their families to be enshrined in the withdrawal agreement. Mostly, I will focus on the enforcement of that agreement.

As to substantive rights, to my mind it is unsurprising that once we leave the EU, so that EU nationals no longer enjoy EU citizenship rights as such, we shall wish to put those who come to acquire settled status here on the same, rather than better, terms than British nationals, not least with regard to bringing in family members from overseas.

I would also entirely understand it if the UK were to reject what I understand to be proposed as a term of the rights to be protected—this is in paragraph 21(b)(ii) of the annex to the European Commission’s negotiating directives of 3 May—namely, certain social security rights, set out in two particular EU regulations,

“including future amendments of both Regulations”.

Surely, after withdrawal, acquired rights must be as fixed at that date—

“frozen as at the date of Brexit”—

as is suggested in paragraph 136 of the committee’s report.

As to the questions asked by the noble Baroness, Lady Kennedy, on how long into the distant future such rights will remain, I suppose that they will last as long as the person remains settled, with the consequent right in future to apply for UK citizenship. Perhaps the Minister will tell me whether my supposition is correct.

It is suggested that the EU 27 are disappointed by our proposals for EU nationals living here. What precisely, besides the question of enforcement, are the particular matters which concern them, and what do our own nationals living in other EU members states think about these proposals? Do they feel sold short by the UK? Let us remember that they will enjoy reciprocal rights under the agreement.

I turn to the enforcement of the withdrawal agreement, which is addressed by the committee in its report at paragraphs 136 to 138. In her Statement on the European Council on Monday 26 June, the Prime Minister said with regard to the offer on citizens’ rights:

“Our obligations in the withdrawal treaty with the EU will be binding on the UK as a matter of international law. We will incorporate commitments into UK law guaranteeing that we will stand firmly by our part of the deal”.—[Official Report, 26/6/17; Commons, col. 303.]


In the Government’s published proposals of the same date, Command Paper 9464, at paragraph 58 and under the heading “Legal status and enforceability”, appears this:

“The arrangements set out above will be enshrined in UK law and enforceable through the UK judicial system, up to and including the Supreme Court. We are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU)”—


which, I interpolate, is still generally referred to as the ECJ, which was its earlier incarnation—

“will not have jurisdiction in the UK”.

It is all very well for the UK Government to say that our obligations will be binding as a matter of international law, but, for my part, I could understand why that rather bland assertion might be greeted by the other 27 with some scepticism. In the Government’s original February 2017 White Paper on exiting the EU, in chapter 2 under the heading,

“Taking control of our own laws … Ending the jurisdiction of the Court of Justice of the European Union in the UK”,

paragraph 2.3—I shall not quote it all; it is all easily available—ends thus:

“We will bring an end to the jurisdiction of the CJEU in the UK. We will of course continue to honour our international commitments and follow international law”.


This red line in the Government’s position is plainly among the most damaging obstacles to the prospects of successful Brexit negotiations, as the noble Baroness, Lady Kennedy, said, on several fronts. Let me focus on that last sentence:

“We will of course continue to honour our international commitments and follow international law”,


which, of course, is what the Government now say in the present context of safeguarding citizen’s rights, but how confident of this can the other 27 states be? We have an international law commitment under the European Convention on Human Rights to give effect to Strasbourg court judgments, but we are in flagrant breach of that commitment on prisoner voting, for example. That may have been a dubious ruling, and it is highly likely that many in this country and all too probably several in Parliament muddle up Strasbourg judgments, which are those of the human rights court, and Luxembourg judgments, which are those of the EU court, and wrongly blame the ECJ for the prisoner voting decision and for other contentious decisions such as those which have periodically inhibited our ability to deport foreign terrorists.

Although this may go some way towards explaining our misconceived hostility to the European Court of Justice—its absurd and unfair demonisation, as I described it in last week’s Brexit debate—and the Government’s wish simply to acknowledge an international law commitment to abide by the terms of the withdrawal agreement, I am unsurprised that the EU 27 demand more; in short, that EU citizens’ acquired rights here should be put beyond the reach merely of the UK’s parliamentary sovereignty.

How then should this requirement best be met? The EU Committee recommends a reciprocal mechanism be established to ensure that UK and EU law each takes account of the relevant developments in the other’s law. To this end, the committee suggests an arrangement akin to that provided for under the 2006 extradition agreement between the EU, Norway and Iceland—see particularly Articles 36 and 37 of that agreement, as set out at paragraph 134 of the report.

For my part, however, I would regard this as a needlessly cumbersome and ultimately less effective route to finding a satisfactory, supranational tribunal to which a disappointed party could turn for a final definitive interpretation and application of an agreed provision—why not the ECJ itself? To anyone who questions that on the basis that, after Brexit, the ECJ will not be an independent supranational court but rather will be akin to the supreme court of one of the parties to the withdrawal agreement—namely, the other 27 EU states—I would respond, first, that this is an unreal objection given that, whatever the court were to rule on a reference would apply no less to UK nationals now settled in other member states. Indeed, those expatriate UK nationals will have no less, and sometimes perhaps rather more, of a need for a supranational tribunal to which to appeal from another member state’s supreme court. Secondly, I would suggest that, even though there may no longer be a UK judge on the ECJ after Brexit, one could be specifically nominated as a member of the court for the purpose of any UK reference. A close analogy here would be with the ECHR, where, on any application against a member state whose own judge may in the circumstances for any reason be unable to sit—they may be conflicted, unwell or whatever—that state can nominate another judge. Indeed, I twice sat on that basis as an ad hoc judge in the Strasbourg court.

If there is to be any hope of a successful Brexit negotiation on a number of issues, including that now before us, the Government will have to modify their puzzling ideological resistance to any future acceptance of the ECJ’s jurisdiction. Surely this would be a good place to start.

19:39

[Lord Judd (Lab)]

My Lords, those were very important legal observations from someone with a particularly distinguished legal career behind him. It will be important to hear a clear answer to what was covered.

I am a member of this sub-committee. I put on record what a privilege and joy that has been. We have an outstanding chairman in my noble friend Lady Kennedy of The Shaws. She is always lively and stimulating, enabling us to work well together to produce particularly useful observations. I thank her most warmly.

It is totally unacceptable how long it has taken the Government to reply to this report, given the importance of the issue with which it deals. Much more importantly, there is all the anxiety and distress meanwhile suffered by ordinary people in this country and abroad. I do not like living in a Britain where that kind of distress is unnecessarily suffered by people who live here or where my fellow citizens serving abroad, often to very good effect, or living abroad after distinguished lives are equally in anxiety. I ask myself what kind of Britain we want to be. Of course, it would be a great thing if we had acted forthrightly and decisively right at the beginning. That would have earned us immense standing in the world. Yet we wasted that opportunity and anything we do now will be trying desperately to regain ground lost in terms of our place in the world.

I am also concerned because the Government we have at the moment always stress strongly and repeatedly their commitment to family. As my noble friend put so well in her introductory remarks, what is this doing to the whole concept of family and all the love, emotion and relationships that go into family life? Why are we continuing to perpetrate all this uncertainty?

We had a particularly telling morning in the committee when we took evidence from the French, Romanian and Polish ambassadors. It was not an easy morning. They were very forthcoming to the committee. When we asked them what had been the immediate impact on their work in this country as representatives of the people of their countries, they were all in agreement that they had been besieged by numerous people worried stiff about their future well-being and status.

We are not just relying on what was said in a committee such as ours by the ambassadors. We think of our own lives. I live in one of a small set of houses, a close-knit community in rural Cumbria. One of my fellow citizens is a Polish lady who has worked hard in a professional capacity in Leeds. Her husband is a Yorkshireman of Irish origin. They are very sincere Catholics. They are a lovely couple. She was in tears about the situation immediately after the vote on 23 June. This is also what the ambassadors said: their people have come to them, saying, “We had been making homes here, we had felt part of the community in which we lived. Suddenly we find ourselves strangers with no certainty about our future”. This Polish lady said what was wonderful was how, at work in Leeds, her colleagues rallied round her in no time at all. They were only upset that she was so upset. In personal terms, they did a great deal to reassure her. I am very upset myself that we can be generating these kinds of social and emotional realities in our midst. These are people. They are people with children—as my noble friend said, they have grannies and the rest. It is terribly urgent not only that we get a convincing formal reply from the Government to our report but that we settle this matter. We should have done so right at the beginning.

One of the things I came to appreciate in my schooling many years ago was, in the history of Europe, the importance of citizenship. It is a fact that, through the referendum on 23 June last year, we unilaterally stripped thousands of people of their citizenship. They had European citizenship to which they believed they would be entitled in perpetuity. There may have been all sorts of qualifications at the time that that was agreed but this is what they believed. They always built their lives in Britain on that basis and we removed that. That doubles the urgency and importance of making sure that whatever we do is watertight and generous. I repeat that word, “generous”, because we owe so much in this country to many of these people for what they have done for us. It is crucial we get nothing less than a generous settlement that puts the situation in unquestionably legally enforceable statutes.

19:47

[Viscount Waverley (CB)]

My Lords, I could not agree more with the noble Lord, Lord Judd, when he asked what type of country we wished to be. I further note—he prompts me in suggesting this—that, frankly, all successful economies have inclusive immigration policies. I will refer to the game of poker during my remarks. What a winning hand that during consecutive debates this afternoon I should follow the noble Lord, Lord Judd.

I must congratulate the noble Baroness, Lady Kennedy, and her committee team. She has done the House, the Government and the country, together with all those most directly affected, wherever they be, an inestimable service. Emotions understandably run high on this issue, both here and on the continent. Some issues belong elsewhere. Matters that impact targets should be recognised but tagged for resolution in legislative debate and amendments to the appropriate Acts. But what we are dealing with today is the here and now. I have detained the House on multiple occasions already as I, too, will be impacted by the end result, as a long-term resident on the continent—but I will not rehearse what is already on the record. An equitable divorce is sought, but I sense that the situation has the potential to get out of hand.

Mrs Golding, a barrister specialising in EU law and a tenacious chair of the British in Europe movement, represents the interests of the two combined groupings of the 4.5 million Britons on the continent and EU citizens in the UK. Allegations that the Government of the United Kingdom are neither listening nor engaging are troubling. There is a view that the Government are playing poker with the lives of millions of good, decent people, who are caught up in a situation through no fault of their own. Although UK Ministers have made themselves available, the Secretary of State has been described as “elusive”. Conversely, it appears that Monsieur Barnier and his team, representing the European Commission, have had constructive and transparent meetings with the group’s representatives and are described as supportive.

A number of issues have emerged following the Prime Minister’s offer to the European Commission, as highlighted by Mrs Golding. The UK proposal does not respond to the comprehensive offer made by the EU on 22 May to guarantee the vast majority of rights, but instead represents an entirely different form of offer founded in UK law, which relates to the future immigration status of EU citizens in the UK. Thus, when comparing the two proposals, it is not possible to compare like with like, and the application and principle of reciprocity is complicated.

The UK proposal lacks detail on safeguarding the rights of UK citizens in the EU. By contrast, the EU offer is a detailed proposal to guarantee the vast majority of the rights that UK citizens in the EU currently have. This includes free movement and would protect the rights of UK citizens in the EU, subject to certain clarifications as regards freedom of establishment, the position of students commencing their studies now, and voting rights. Arguably, therefore, the offer set out in the UK proposal for EU citizens in the UK represents the substitution of acquired rights of EU citizenship under EU law with a lesser “settled status”, for which EU citizens will be required to apply and which is not for life. This status could be lost following a two-year absence from the UK, and these citizens would then have to apply to return to the UK under UK immigration rules unless they could prove that they had “strong ties” to the UK—a vague concept that is not defined.

It is also claimed that EU citizens would no longer benefit from the same family reunification rights or from the overarching principle of equal treatment to British citizens in the UK. In addition, the position as regards both groups on other rights, such as pensions, healthcare, rights to work, rights of establishment and the mutual recognition of qualifications, requires clarification. We are aware that the UK proposal states that the ECJ,

“will not have jurisdiction in the UK”.

Opponents argue that, given the cumulative experience in case law of the ECJ on the rights of both groups, reference by UK courts to the ECJ would clearly represent the easiest and most practical option.

Perhaps a more efficient and pragmatic solution would be to create a dispute resolution body with jurisdiction to enforce citizens’ rights, offering a way for all affected individuals to safeguard their rights as regards the final guarantee set out in the Article 50 withdrawal agreement. Divergent interpretations of the rights of EU nationals living in the UK before Brexit and British nationals living in the EU before Brexit must be avoided.

The EU insists that nothing is agreed until everything is agreed. Is this wise? Instead, a separate and definitive agreement on citizens’ rights should be reached now, well ahead of the main Article 50 negotiations, if current anxiety and uncertainty are to be alleviated. The definitive agreement needs to be confirmed in the Article 50 withdrawal agreement to give it treaty status and the force of international law.

An additional issue must once again be flagged. Families, many with children, face the stark reality of enforced separation because of the quirks of being a non-EU spouse and not meeting immigration criteria for residence in the UK. So for the fourth time I ask the Government: will the repeal Bill ensure that UK law conforms to the European Court of Justice ruling C-127/08 on the implementation of directive 2004/38/EC for the rights of non-EU spouses of EU citizens to move freely in the EU, with unfettered access to the UK? A government response claims:

“United Kingdom law relating to the rights of EU nationals and their family members”—


this is the key point—

“to enter and reside in the UK is fully compliant with the decision”,

of the ECJ. Will the Minister ask her officials to look very carefully at this, and state unequivocally that non-EU spouses and family can enter and reside in the UK without precondition? Will she kindly ensure that a copy of that response is placed in the Library?

Recognising the gravity and importance of what is before us this evening, I have asked my own IT development team to ensure that relevant papers pertaining to citizens’ acquired rights—including a link to the committee’s report, the expert opinions presented by Mrs Golding and today’s proceedings—be made readily available for public viewing. To this end, I have registered a domain—eumatters.uk—and invite members of all parliaments in the European Union, Governments and the public at large to keep abreast of proceedings.

I cannot believe for one moment that 4.5 million people deserve such potential disruption to their lives. Is it possible that the matter is becoming overcomplicated and we are losing sight of the woods in contemplating each tree? It is entirely possible that EU citizens can simply become dual nationals, as people all over the world do when they wish to obtain or retain dual rights. Certainly, British citizens currently in the EU have more limited rights as residents than if they became citizens of the countries wherein they currently live. At present they must comply with national residency criteria, particularly with the 183-day rule, taking into account primary residence status and centre of economic interest; pay national social security and municipal taxes as required; and convert driving licences, and so on. This visible and verifiable commitment of intent and compliance with these rules should then allow for an absolute right to remain status.

The Government assure us that their offer ensures that EU citizens in the UK will have the same rights as UK citizens in the UK. Are British citizens being offered the same protections, rights and benefits across the EU? It is the duty of government to act to protect the equal legal and moral rights of all citizens, regardless of origin. This House should attempt to steer the Government and the negotiations away from the cliff edge and the abyss beyond.

20:00

[The Duke of Somerset (CB)]

My Lords, this valuable report makes it quite clear that one of the most serious implications of the Brexit decision is the position of EU citizens living and working in the UK and the corresponding position of UK nationals in the European Union. I congratulate the committee on the rather hard-hitting stance it has taken.

The outcome of the negotiations will impact directly and hugely on the lives of millions of human beings, their families, livelihoods, businesses and place of residence. That sentiment was echoed by the noble Lord, Lord Judd. These people are not trifling pawns in a great game; they are our fellow neighbours and citizens and as such they deserve properly thought-out, compassionate decisions as these will affect their lives for ever. As the Government wrote in their paper Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU:

“The UK is one of the most tolerant and welcoming places in the world and will remain that way. ... We recognise the need to honour that expectation”.


However, there are not many people affected by the current state of affairs who have much confidence that the Government are showing any inclination to do so.

We know that many of our industries and institutions will fail without a continuing supply of non-UK labour, and many of those who might come here have already been frightened off. Other speakers have made this point and made it clearly. I declare a sort of interest in that two of my children are living in Europe, forging careers that they wish to continue for a long time. Many thousands of other young people wish to do the same, to benefit from an Erasmus education, to broaden their horizons, to learn other languages and not to be confined to the narrow—brackets, minded, close brackets —borders of our island. Other people—retirees, for example —are distressed about pensions, healthcare and residence and employment rights during this uncertain period.

The unilateral immigration announcement of last week, which was derided in some quarters as too little and too late, is at variance with the general tone of the Home Office’s bureaucratic, long-winded, nit-picking procedures, which are highlighted in the report. Indeed, it notes the Court of Appeal’s comment that the rules are “Byzantine in their complexity”. How telling is that? It seems that this department of government wants to exercise the letter of the law, but not necessarily the spirit.

There is a lot of uncertainty over various terms that are being thrown around in the Brexit debate, such as “acquired rights”, “residence”, “citizenship”, “comprehensive sickness insurance cover” and “parties to treaties”. These terms are all capable of different interpretations, and they badly need clarifying and defining throughout the EU.

The report goes into detail to discuss various treaties and articles that may govern the future position and possible discrimination, but it does not point to very clear conclusions, save that there may be confusion and litigation. The report recites various agreements, such as the citizens directive 2004, the TFEU of 1993, Article 20 and the ECHR. All these purport to address rights, and they partially overlap, yet there are still gaps. I believe that we need an overarching commitment in EU and UK law. That is why these matters must be addressed in the withdrawal agreement. Will the Minister confirm that that is the Government’s intention, as that will give the greatest legal certainty in future?

Concurrently, in the event of the UK exiting without any agreement, safeguards must be maintained by national law. I ask that the forthcoming repeal Bill includes the continuation of the Immigration (European Economic Area) Regulations 2006 as they implement the EU citizens directive. As we know, reciprocity is not within the Government’s power to deliver, but now that they have finally acknowledged the principle of unilateral protection for EU citizens here, which this House has long called for, one is hopeful that the other member states will be more inclined to offer full protection for UK nationals in their states. In order to fulfil their pledge, the Government need quickly to safeguard the full scope of EU citizenship rights in the withdrawal agreement. This is recognised as a moral obligation by the report and by most other commentators. It is also economically vital in order to maintain our labour market.

I shall ask the Minister a couple of questions. The first is about visas. Does she envisage UK nationals having to apply for a visa to go to Paris for the weekend in two years’ time? Will we have to queue up at airport passport control with the multitude of other third-country nationals? If so, will this encourage our business men and women to travel to Europe to make trading deals there?

What about the cost of the fees, which we have already heard about? Does the Minister consider the £7,500 quoted in the report for a family of four to make an application for settlement in the UK affordable and reasonable? There is reference to the new simplified online system coming in in 2018, which I hope will address this matter in a proper manner.

My reading of the report is that the Government are determined to reduce immigration numbers considerably. However, they have had the legal opportunity to reduce non-EU migration for many years but have failed to act. Instead, they have concentrated on soft targets, such as students, and now are turning their fire on EU citizens. This is unacceptable from a moral and economic standpoint. Acquired rights must be addressed properly under Article 50, with reciprocity, speed and indivisibility. These rights should be frozen at the date of Brexit.

All these points are very well made in the committee’s report, and I urge the Government to act on them and perhaps to confirm them this evening.

20:08

[Baroness Ludford (LD)]

My Lords, I concur with the praise for our chair, the noble Baroness, Lady Kennedy of The Shaws, who does a splendid job, not least in steering and shepherding us to this report.

I can try to answer the question from the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Like others, I have had the very useful briefing from British in Europe, a coalition of UK citizens in Europe which has joined with the 3million, representing EU citizens here, to produce a response to the Government’s paper. Both groups feel very let down. They maintain, rightly, that their acquired rights are being retrospectively taken away. This is because there is a mismatch between the EU and UK offers. As the noble Viscount, Lord Waverley, and the noble Duke, the Duke of Somerset, said, the EU approach is a mutual guarantee of status and rights derived under Union law, with an overarching principle of equal treatment for EU citizens here and British citizens in the rest of the EU. The UK paper does not respond to that offer. It is not an affirmation or incorporation of such acquired rights but a proposal for a different offer: a new status under UK immigration law, called settled status, which has to be applied for and appears to be essentially indefinite leave to remain—perhaps the Minister could explain how it is different from ILR. This is a significant reduction in protection, despite paragraph 3 of the paper claiming that there is no “unravelling” of “previous commitments”. There is some misunderstanding in the paper, in that paragraph 14 talks about how, after we leave the EU:

“Free movement rights will come to an end and therefore cannot be carried forward, as an EU legal right, into the post-exit UK legal regime”.


This conflates and therefore confuses the new acquisition of free movement rights in the future, after we have left the EU—unless we stay, let us hope, in the EEA—with the retention of rights acquired while we were in the EU. That is a pretty fatal confusion.

The two offers do not legally correspond and cannot be fitted into a framework of reciprocity aimed at mutual guarantees—a vital framework of reciprocity. As I heard the Italian ambassador to the UK say this morning on the “Today” programme, it is not only inaccurate but patronising to people who have made a huge contribution to this country, and done so under their EU law rights, to call the UK offer a “generous” one. On perhaps the true spectrum of criteria, from “fair” to “unfair”, I would say that the Government’s proposals are found wanting.

I do not know what has been gained by having to wait until now to come up with this not-so-generous offer. The offer—or rather an affirmation of acquired rights—should have been proposed immediately after the referendum. It would have provided certainty for individuals and families and avoided all the anxiety they have suffered. It would have avoided the haemorrhage of skilled personnel—I read in the Financial Times that some enterprising Polish carbon credits trader has set up a website called Expat Exit. The report describes him as arguing that,

“Britain’s Brexit vote has created a market for highly qualified workers who have burnished their skills in the UK but are now returning to the continent”—

ouch.

If the government offer had been made a year ago, it could have avoided putting people through the hassle, expense and waste of time of applying for permanent residence—the new procedure that was invented last July. They must feel rather mocked, having done this in good faith and now been told that it is essentially worthless. It is good that the Government are now saying that there is no need for private health insurance, which is their translation of comprehensive sickness insurance, although that of course has been the subject of legal difference with the European Commission. So why did they put people through all that bother, expense and worry of having to get private health insurance? Could the Minister perhaps also explain whether the lack of need for private health insurance applies to the future as well as to the past? Could the Government not at least make some amends to those people who went the permanent residence route by giving them settled status automatically, not just offering some kind of streamlined procedure for those who already have the permanent residence document that they did not need but they felt they needed to get in the absence of anything else in the past year?

Why can the Government not now say what the cut-off date is? Surely it should be the date of leaving the EU. After all, the Government’s paper confirms, as the Government themselves have done many times, that, while the UK remains a member of the EU, EU citizens resident here continue to enjoy rights that they have under EU treaties. So why can that not be followed through by saying that the cut-off date will be when we actually leave the EU?

I share with colleagues other questions that have been asked tonight. Will the rights be for life? Will family members have their rights protected for life in the case of death or divorce? Will there be votes, at least for local elections? Will there be recognition of qualifications and the diplomas and certificates relating to them? What will the fees be? I gather that the current cost of an ILR application is £2,297, a huge amount for a family. Will a minimum income threshold be applied to people who want to stay? How light-touch will the application process be? What evidence will need to be provided? In what way will it be simpler than ILR? What does the phrase “The Government seek to protect healthcare rights” mean in practice? The word “guarantee” is absent from the paper. Will there be free access to the NHS or will people have to pay an NHS surcharge? I would welcome answers on that.

It is proposed to make deportation easier, but what will the precise criteria be? It is said that those criteria will include “serious or persistent” criminals. What kind of crime does it need to be to qualify as persistent—dropping litter in the street? How will the European Convention on Human Rights apply to those deportation criteria? Will there be a right of appeal against a refusal of settled status or temporary leave and, if so, within what parameters? What about EEA and Swiss nationals, and vice versa? Are they included under the proposals?

Lastly on my list of questions: the residence document that is proposed will be a de facto ID card. I hope the Government can assure us that this is not a back door to an ID card scheme for British citizens as well. Is the proposal that there should be evidence of biometric information designed to mean fingerprints? If so, or even if it does not, is the proposal for a residence card, which presumably will be backed up by a residence database, compliant with the CJEU judgment on the German residence database in the case of Huber?

The proposal that family reunion would be in line with British nationals, not on the basis of EU free movement law, is a diminution of current rights. The British rules have recently been adjudged the least family-friendly of 38 developed countries. If settled status is in reality ILR, how are the Government going to avoid the ILR rule that a two-year absence automatically means a loss of status? The document talks about having strong ties here being a safeguard in these circumstances. How will that work? What do “strong ties” mean? The fear is that this vagueness will deter people from taking up jobs that involve overseas postings if they do not know whether an absence of more than two years is going to mean that they cannot come back.

Other noble Lords, including the noble and learned Lord, Lord Brown of Eaton-under-Heywood, have talked about enforcement, which is a key issue. If these rights are enshrined only in UK law, the fear would be a future amendment, abrogation or repeal, perhaps in response to public pressure about too many foreigners. The document makes no mention of how any breaches of the rules agreed, or any enforcement, are to be ordered. Can the Minister fill that gap in our knowledge? This is key because the enforcement issue cuts both ways. There is no clear explanation of how the Government expect to protect the rights of British citizens in the rest of the EU. The national approach that they have taken regarding EU citizens here is not going to help UK citizens in the rest of the EU because it is not an EU law approach. There is no dimension of European citizenship or recognition of EU legal jurisdiction. It appears to the groups representing UK citizens that they are essentially being abandoned.

Although the paper is better than no paper, it leaves many questions unanswered; it is too little, too late, because what is in it could have been said a year ago, to be a catalyst for reciprocity. I remind the noble Baroness that her colleague, the noble Lord, Lord Howard, said to us in the Committee last year that a unilateral recognition of the rights of EU citizens here would undoubtedly have triggered a reciprocal guarantee of the rights of British citizens in the rest of the EU. So this bargaining chip approach has been both unnecessary and unproductive. I look forward to the Minister’s response.

20:20

[Lord Kennedy of Southwark (Lab)]

My Lords, first, as have other noble Lords, I congratulate my noble friend Lady Kennedy of The Shaws and the other members of the European committee on their excellent report. I should make it clear that I wanted the United Kingdom to remain a member of the European Union. That, for me, was the best place for us to increase our prosperity, protect jobs and living standards and maximise our influence in the world, where we increasingly see spheres of influence on a global rather than national basis.

It is disappointing that the Government have not responded to the report. It is not the first time that House reports have been either not responded to before debates or responses have arrived just a day or two before the debate. It is disrespectful to the House, and the Government need to sharpen up their act in this respect.

Having said that, I fully respect that the decision of the UK was to leave the European Union, although I sometimes feel that some of the outrageous claims made by the leave campaign need referencing again. We forget “£350 million a week for the NHS if we leave Europe”, when Boris Johnson, Michael Gove and others stood in front of that poster during the leave campaign. Of course, they were given the opportunity to vote for that in the Commons, but they voted against it. We need to keep reminding people what went on in that campaign; some of it was quite outrageous.

We need a Brexit that protects British citizens, jobs and investment. For all the Government’s claims, it has not been going too well so far. Their position can be characterised as to talk big and tough in the UK, threaten walkouts and demand that a trade deal be the first thing on the table, but, when we get to the detail, there is a climb-down and a negotiation set out on the timescale determined by our 27 European partners. The noble Baroness, Lady Bloomfield of Hinton Waldrist, referred to the Government’s offer to the European Union. It is a start, that is for sure, but I suspect that it is far from where we will need to get to for an agreement acceptable to both UK and the European Union.

The Government’s approach so far has been far from sensible in the preparation for and the process of negotiating our exit from the European Union, as the noble Viscount, Lord Waverley, mentioned. He is right to say that we need an equitable agreement to separate, but that this could get out of hand and the Government could be accused of playing poker with people’s lives.

My noble friend’s report considers one of the most important aspects that has arisen from Brexit: what happens to the rights on which so many of us rely when the UK leaves the European Union. The report focuses specifically on the rights of those European Union citizens who have chosen to live here in the UK and those UK citizens who have chosen to live elsewhere in the European Union. In both cases, they are choosing to exercise their right to live and work anywhere in the European Union. The report looks at the issue of acquired rights and whether people will be able to rely on this protection under international law. There is great concern for those European Union citizens living here and British nationals living elsewhere in the European Union that this protection will not be enough, and to ensure proper protection it must be enshrined in the Brexit agreement.

Since the referendum we could have struck a very different note, of course, and straightaway made it clear that the rights of European Union citizens would be protected in full in the UK, as long as a similar guarantee was given to British citizens living elsewhere in the European Union, as the noble Baroness, Lady Smith of Newnham, said. That is not giving away a card or a negotiating point; it would have been a sensible move, acting in good faith with your friends, allies and partners, whom we want to remain our friends, allies and partners after we leave the European Union.

The concept of being a citizen of the European Union was first introduced into EU law by the Maastricht treaty in 1992; the citizens directive codified many of these rights, and it applies to the EEA states as well. All these rights are directly enforceable; they do not need to be granted by a member state. The rights of non-EU nationals in the UK are considerably more restrictive than the rights of EU nationals in the UK, meaning that the loss of EU citizenship would create a major loss of rights. After Brexit, the UK will become a third country for the purpose of EU law. UK nationals in other EU member states will become subject to common EU immigration rules for third-country nationals. I accept that all this depends on the agreement finally reached, which is why we should be on the front foot and positive.

Third-country nationals would have considerably fewer rights and have more restrictions when it comes to living, working and studying in the EU. British citizens may have to satisfy integration rules and apply for EU long-term residency status if resident in a member state for five years. There are concerns from citizens of other member states living here in the UK. This was brought home to me the day after the referendum result. There is a cafe that I often call into for a coffee and a croissant on my way into the Lords, which is run by two French people. They asked me the following morning whether they would be made to go back to France. These are people who have built up a business here; they employ local people and provide a great service to the local community. They play by the rules and make a positive contribution to the economy. They will be fine; they have lived here for many years, but they are one example of people living in uncertainty every day. My noble friend Lord Judd made a similar observation from the village where he lives in Cumbria.

There are thousands of EU nationals in the same uncertain position, and with uncertainty comes loss of confidence and loss of opportunity, and we all lose. My noble friend Lord Judd correctly identified how much uncertainty has been caused for families. I just do not understand how the Government think that that attitude will benefit the UK and its reputation and standing in the world.

The largest group of EU nationals living here include Polish, Romanian and French nationals. We have seen a rise in hate crimes and xenophobic abuse, which is shameful. The UK has a proud reputation as a safe, tolerant country which welcomes people and is a safe haven for people in peril, and on a number of fronts that reputation in recent times has been tarnished. UN statistics estimate that there are 1.2 million UK nationals living elsewhere in the European Union. Concerns have been expressed by UK citizens resident abroad to consular officials through FCO channels, including worries such as whether they will be able to continue living abroad or have to apply for residency. Will their qualifications be recognised? Will they require work permits? These concerns of UK nationals living elsewhere bear a striking similarity to those of EU nationals living in the UK. The noble Duke, the Duke of Somerset, made reference to this; there are huge concerns about the effect that it is having on people’s lives, and I agree very much with the remarks that he made today.

Those are the two groups of people most affected individually by Brexit, and neither is supportive of how the British Government have handled the negotiations so far. I agree very much with the committee when it says the Government have a moral obligation to provide certainty to UK nationals living, studying and working in the European Union. I agree that the most certain way to protect acquired rights is to put them into the agreement. The noble Baroness, Lady Williams of Trafford, could tell the House whether she agrees with that when she responds to this debate, because the protection of these rights by any other means seems fraught with difficulty. Article 70 of the Vienna convention protects acquired rights, but refers to states rather than individuals or companies. The principle of acquired rights in international law relates primarily to property rights. Public or civic rights to vote or reside in a particular state are not enforced under this agreement.

It could be said that the protection of acquired rights can be sought and enforced under the European Convention on Human Rights, as my noble friend Lady Kennedy of The Shaws referred to when moving the Motion. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was entirely correct when he referred to the “unfair demonisation” of the convention by various individuals and organisations. He is right that the Government are going to have to modify their ideological opposition to the convention. Thankfully, we have not pulled out of the convention—we are still a signatory—and I hope we never do. However, it all gets very messy, complicated and difficult; not effective, not good for individuals, not good for the UK. While any rights safeguarded in the withdrawal agreement should be enforceable, the agreement should freeze the legal situation at the moment of exit, so that all rights are at that point until repealed or altered by Parliament. My noble friend Lady Kennedy of The Shaws referred to that and her point about who is the final arbiter needs answering.

There is still time for the Government to make a more positive offer to our partners in Europe. Whether we are in or out of Europe, in whatever form, Europe will remain our major trading partner in all respects. It is the place our citizens will interact with first, be drawn to and enjoy. For Europe’s citizens, the same is true of this wonderful country, with our culture, history, love of sport, aptitude for business and the generosity of the British people. The country deserves better from the Government as we bring into effect probably the most important decision we have made since the Second World War.

This excellent report, so ably introduced by my noble friend Lady Kennedy of The Shaws, shows the Government what they need to do in respect of acquired rights. They should follows its recommendations; it will go a long way to getting the good deal that we all want as we leave the European Union.

20:32

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy, for bringing this debate to the House this evening. A number of noble Lords have asked why we have not yet responded to the report. I understand the importance of engaging with Parliament and the courtesy of responding to reports, and this is no exception. I undertake that we will, of course, respond to it in due course, but I hope that tonight’s debate goes some way to give a flavour of the Government’s thoughts. It is obviously a very important topic, particularly at this time. As the noble Baroness said, this is about people’s lives and we cannot forget that. The Government have listened carefully to the recommendations made in the report and the concerns raised in it, in this House and across the country, on the rights of those citizens who make such an important contribution to the UK and to the member states in which they choose to live. As noble Lords have alluded to, last week we published our offer for EU citizens in the UK and our expectations for UK citizens elsewhere, which responds to those concerns and recommendations. I am grateful for the opportunity to discuss these in greater detail with noble Lords this evening. If I run out of time or do not answer every question, I shall of course respond in writing.

We have been clear that we want to give EU citizens in the UK certainty about their future. This report noted our obligation to provide certainty and clarity to EU citizens in the UK and British nationals living elsewhere in the EU, and we have done so. Indeed, I remind noble Lords that last year the Prime Minister sought to agree on this very issue with the EU, but was told at the time that there could be no negotiation without notification.

We committed to this House that we would undertake comprehensive work to examine each of the rights afforded to EU citizens under EU law and examine the different circumstances in which people find themselves to ensure that there are no unforeseen or unintended consequences as we move forward with the process of exiting the EU. Providing certainty on what could be achieved for those individuals also requires consideration of the other member states’ position. The EU set out its position on citizens’ rights on 9 June 2017 and we responded promptly and appropriately, with the Prime Minister publishing ours soon after. It is now clear that there is much common ground between the UK and the EU positions and we are confident that we can reach an agreement on this issue early in negotiations. Our starting point is that it is the Government’s intent to reassure all those EU citizens who are in the UK and who have made their lives and homes in the UK that no one currently lawfully resident will have to leave as a result of our exit from the EU. What is more, we are clear that we will not see families enjoying their lives here together split apart.

The committee’s report rightly notes that the rights to live and work in another member state and to gain a permanent right of residence in that state after five years are the most fundamental of EU citizens’ rights. As the report accurately describes, these are the rights that are necessary for EU citizens and their families,

“to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State”.

We share the committee’s assessment that international law does not provide for these rights to be retained automatically. After we leave the EU, the UK will no longer be subject to EU law. Free movement rights will come to an end and therefore cannot be carried forward as an EU legal right into the post-exit UK legal regime. However, this Government are clear that it is right and proper that the substance of those rights noted by the report should be protected, and that EU citizens who have built their lives here and who came to the UK on the basis that they would be able to settle permanently should have that expectation honoured. This Government are committed to honouring that expectation.

As noble Lords have also noted, it is not just these people’s ability to live in the UK that we are committed to protect; we also want to ensure that EU citizens continue not only to be able to live here as they do now but to enjoy other important rights such as access to healthcare, education, benefits and pensions. That is why, on 26 June this year, we laid before Parliament a policy paper proposing that all EU citizens lawfully here when the UK exits the EU will have the opportunity to regularise their status to remain in this country, and all EU citizens here before a specified date will have the opportunity to acquire settled status after five years’ residence. This will enable EU citizens to reside in any capacity, as a worker, a student, a stay-at-home parent and so on, and undertake any lawful activity. We also intend to treat EU citizens with settled status in the same way as if they were UK citizens for the purposes of education, benefits and pensions. We have listened to the concerns of EU citizens who have made the UK their home and the concerns raised in this report. Those concerns are reflected in our offer and we believe that it is a fair and serious offer.

Noble Lords have also talked about the application process. We are determined that EU nationals who have built their lives here should continue to be able to live their lives here as they do now, and we have proposed a fair process to ensure that these rights are enforced. To this end, we will be providing eligible EU citizens with documentation enabling them to enforce their rights and prove their continuing right to live, work and access public funds and services in the UK after we leave the EU.

The noble Baroness, Lady Ludford, asked about the documentation and whether it amounts effectively to an ID card. I echo the comments of the Secretary of State for the Department for Exiting the EU, who said that,

“it is not an ID card. We are talking about documentation to prove that people have the right to a job and the right to residence, but they will not have to carry that around all the time. It is not an ID card”.—[Official Report, Commons, 26/6/17; col. 373.]

We have listened to concerns about the application process by which the resident population of EU citizens will be able to acquire settled status, which the noble Baroness, Lady Kennedy, asked about. This is why we have been clear that we will improve upon the existing application system, and why we have committed to ensuring the process is as simplified, streamlined and user-friendly as possible. For example, unlike EU law, which requires economically inactive EU citizens such as stay-at-home parents to hold comprehensive sickness insurance to acquire the right of permanent residence, we have proposed that no one will be required to demonstrate that they have held comprehensive sickness insurance to be eligible for settled status.

We want to reassure EU citizens that they will be able to acquire the necessary documentation confirming their status quickly and easily. We are working hard on this new system and expect it to be up and running in 2018. The noble Baroness, Lady Smith of Newnham, asked for the details of this system, and of course we will provide further details in due course. What is more, we have committed to providing a grace period, which we expect to last up to two years after we leave the EU, to give EU citizens the time and opportunity to regularise their status.

The noble Baroness, Lady Smith of Newnham, asked about Ireland, Cyprus and Malta. On Ireland, we have both been clear about the shared desire to protect the freedoms our nationals currently enjoy in each other’s states. Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements. I hope I can write to the noble Baroness on Malta and Cyprus.

The noble Baroness, Lady Ludford, asked what “strong ties” means when we are offering protections to those who have left the UK for more than two years. Settled status would generally be lost if a person was absent from the UK, unless they have strong ties here. This approach replicates the approach to returning residents with indefinite leave to remain under the Immigration Rules.

The noble Baroness, Lady Smith of Newham, also asked about the costs of the application process. The fees are being looked at as part of negotiations, but the aim is to keep them as reasonable as possible.

Family members were talked about, particularly by the noble Baroness, Lady Kennedy. We have listened when EU citizens told us their concerns that their families would be divided once the UK leaves the EU. My first point is that all EU citizens, be they children, students, husbands or partners, who arrive before the cut-off date, will be able to apply for settled status in their own right. However, I recognise that many EU citizens have family members who are not EU citizens, as the noble Viscount, Lord Waverley said. That is why we have proposed that family dependants who join a qualifying EU citizen in the UK before the UK’s exit will also be able to apply for settled status after five years, irrespective of the specified date. The Government are clear that we do not want to see families who have made their lives here together while we are still a member of the EU split apart.

[Viscount Waverley]

I apologise to the Minister. Maybe I misheard it, but I would just like a clarification. Supposing a non-EU spouse was married to a UK citizen but living on the continent, how will the five-year system that she has suggested work?

[Baroness Williams of Trafford]

I am sure that the noble Viscount knows the system now. If a dependant who joined a qualifying EU citizen in the UK before the UK’s—sorry—

[Viscount Waverley]

Perhaps the noble Baroness would care to write to me.

[Baroness Williams of Trafford]

I think I know the answer, but I do not want to be quoted as giving your Lordships’ House—

[Viscount Waverley]

Would the noble Baroness kindly consider writing?

[Baroness Williams of Trafford]

I will.

[Baroness Kennedy of The Shaws]

I want to ask the noble Baroness a similar question. I raised an issue that arose from a letter that the committee received. It involves a family where an Englishman is married to an Italian wife, his wife is an only child and her parents are elderly and in Italy. It is expected that, when one of her parents—the in-laws—dies, the lone in-law is allowed to come here, but it may not be within the next two years. What happens in that situation? Will it be possible for an in-law left alone in another country in Europe to be able to join their daughter or son to live here?

[Lord Kennedy of Southwark]

Can I possibly ask a question and then we can get it all out in one go? The noble Baroness just said that families can apply for settled status. Is applying for settled status a formality, or could it be refused?

[Baroness Williams of Trafford]

I will write to the noble Lord on the absolute detail about whether it could be refused. I am sure there will be circumstances under which it could be refused, and I can imagine the sort of circumstances that we might be talking about. As I have said, we intend settled status to be a very simple process, literally perhaps proving, perhaps with a gas bill or a rental agreement, that you are actually here in the UK. I will write to the noble Lord on the circumstances under which it might be refused.

I was about to come on to the noble Baroness’s question about the ability of those currently resident in the UK to bring in family members after we leave the EU, such as the elderly member of that family. It is important to note that they will have the opportunity to do so either by applying under post-exit immigration arrangements for EU citizens who arrive after the specified date or by applying under the same rules as those joining British citizens. I hope that answers the question.

[Baroness Kennedy of The Shaws]

I am sorry, but I have just one more point. It is another letter from someone who came here as a European and bought a property here but because of his work is now working abroad. Is that continuing tie of owning a property in Britain enough to establish his entitlement to apply for settled status?

[Baroness Williams of Trafford]

Can I write to the noble Baroness on that as well as I do not want to give her duff information either?

The noble Baroness, Lady Ludford, asked about the income threshold to qualify for settled status. EU nationals will not have to meet the income threshold. Further details on the eligibility criteria will be set out in due course, but the policy document sets out what the essential conditions will be—an applicant who arrived before the cut-off date and has been resident for five years and has had an assessment of conduct and criminality. That goes to my point, which I will clarify with the noble Lord, about refusal of settled status.

[Baroness Ludford]

I apologise for another interruption, but can the noble Baroness also address another of my questions? Will there be a system of appeal against refusal of settled status in whatever application of the criteria there are? I take it the noble Baroness will circulate all the letters to all of us.

[Baroness Williams of Trafford]

I will circulate letters to all noble Lords and place copies in the Library. I do not know the answer to the question about appeals and will write to the noble Baroness. I have just been told that I am running out of time, so I hope that I do not have to take too many more interventions.

Perhaps I may address the point about ECJ jurisdiction. It has been suggested by noble Lords that EU citizens should depend on the CJEU to defend their continued rights in the UK. Once the UK has left the EU, the EU courts should no longer have jurisdiction in the UK. However, we remain wholly committed to ensuring that EU citizens’ rights are respected and believe that our world-class judicial system, some of whose members are represented here, is the right and appropriate place to enforce that.

The noble Baroness also asked whether we would comply with our ECHR obligations. We will of course comply with our obligations under the ECHR and, as the Government set out, we will remain signatories to it for the duration of the next Parliament. It is also why we have been clear that we want to see agreement with the EU on citizens’ rights included in the withdrawal treaty—a point raised by, I think, the noble Duke, the Duke of Somerset, and the noble Lord, Lord Kennedy. That will ensure that our obligations to EU citizens in the UK, and vice versa, are binding upon the EU 27 under EU law and upon the UK as a matter of international law.

This country has always been compassionate in dealing with people, irrespective of whether they are from the EU or outside it. These principles define us as a nation and are reflected in the offer that we have put forward to the other member states. There is already much common ground between the positions of the UK and the EU, and we are confident that we can reach an agreement on this early on in the negotiations. EU citizens can have our full and unreserved reassurance that we will put citizens first in our exit negotiations. We will do all we can to provide reassurance to the EU citizens who have made the UK their home—and likewise for UK nationals who have done the same in countries across the EU.

Again, I thank noble Lords who have taken part in this debate, particularly the noble Baroness, Lady Kennedy, who secured the debate. I will of course write to your Lordships on some of the matters of detail that I dare not declare at the Dispatch Box in case what I say is wrong.

20:52

[Baroness Kennedy of The Shaws]

I thank everyone who has participated in this important debate. It has emphasised that this is not an easy matter and that reaching an agreement is vital because people want certainty—people from other parts of Europe who are living in this country, contributing hugely to our society and enriching our lives, and our citizens living in other parts of Europe who are enjoying and taking delight in having lives there. We owe it to all those people to resolve this matter generously and speedily, and in a way that will not be expensive but recognises that rights need courts. There is no denigration of our judges in saying that at the end of the day people will ask, “Where is there a court beyond?”, if they feel that our nation or the nation that someone is living in in Europe is not meeting their rights. I am afraid that the Government will have to give careful thought to how to resolve that very difficult issue.

I thank everyone, including the Minister, who has kindly responded to this debate.

Motion agreed.

House adjourned at 8.54 pm.