Refugees (Family Reunion) Bill [HL]

Baroness Ludford Excerpts

2nd reading (Hansard): House of Lords
Friday 15th December 2017 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I agree with everything that has been said so far. I am pleased to support my noble friend’s Bill, on the basis of certain principles, the first of which is continuity and comparability with our existing EU responsibilities, or at least the essence of them; the second, reasons of humanity; and the third, rationality.

I turn first to continuity with the principles of EU law in comparable situations requiring the examination of family reunion. The free movement directive, 2004/38, which is on all our lips these days, refers to the spouse, a registered partner,

“direct descendants who are under the age of 21”,

and,

“the dependent direct relatives in the ascending line”.

That is reflected in the citizens’ rights provision of the divorce agreement reached last Friday, which I hope will be endorsed by the European Council today. My noble friend referred to the Dublin regulation, known in the jargon as Dublin III and shortly to become Dublin IV. That is a different situation, of course, because it is about grouping a family for the examination of asylum application, so it is not about residence or settlement, but it is a parallel situation. That regulation puts great stress on the best interests of the child; it should be a primary consideration. It stresses that children should not be separated from family members, including brothers or sisters. Member states even have an obligation to trace family members, including siblings and other relatives, residing in the European Union in order to bring the asylum applications together.

On Tuesday this week in the other place, the Conservative Member Tim Loughton sought, with cross-party support from Tim Farron and Yvette Cooper in particular, to persuade the Government to continue, if we Brexit, the essence of the Dublin regulation which, as he said,

“allows unaccompanied asylum-seeking children to be reunited with their adult siblings, grandparents, aunts and uncles, as well as their parents”.

He highlighted how for children who have lost their parents they are,

“the last vestiges of family connection. Quite often, those connections were with siblings, or uncles and aunts. For those young people, it was the only available bit of stability and continuity with their previous existence in places such as Syria”.—[Official Report, Commons, 12/12/17; col. 250.]

The family reunification directive, which of course the UK Government did not opt into in 2003, also has a much wider definition of family reunification than that in the Immigration Rules. It is worth noting that although Ireland did not opt into the directive, it has enshrined in its own domestic law the right of unaccompanied child refugees to act as sponsors for the purposes of refugee family reunion.

The second principle is humanity. One of the guiding principles of the Dublin regulation is that when the applicant is an unaccompanied minor, the presence of a family member or relative on the territory of a member state who can take care of him or her should be a binding responsibility criterion. That is how seriously the issue of family support is taken. In assessing the best interests of the child, member states should take due account inter alia of family reunification possibilities, the minor’s well-being and social development along with safety and security, particularly where there is a risk of the minor being a victim of human trafficking. It also mentions that the views of the minor should be taken into account. A recital to the 2004 free movement directive cites the criteria of “freedom and dignity” as an inspiration to the family unity provisions. This is not just an administrative issue; the recital talks about maintaining,

“the unity of the family in a broader sense”.

My noble friend, in referring to our moral obligations and the recognition of the importance of family in our culture, placed that idea centre stage. It has become a cliché that politicians of a certain persuasion, often of the governing party, routinely invoke family values; my noble friend Lord Paddick cited the Conservative Party manifesto. It is time to apply those values.

My third principle is rationality. It makes sense on grounds of public policy. Being reunited with close family is a way to ensure the welfare and safety of child refugees, as well as improve their chances of integration and recovery. Integration promotes economic and social cohesion, as mentioned by my noble friend Lady Hamwee. Splitting up families and relationships is costly for our society and economy, if we look at it from that level; it is also terribly costly for the people concerned, as highlighted by my noble friend Lord Alderdice. Last week, there was a Guardian article about a teenager from Afghanistan whose asylum application was initially refused because it was not believed that he was under 18 or from Afghanistan. He won his appeal, but he still has no contact with his mother or two brothers. He is trying to get to college. He could thrive much better in our society—and, given the resourcefulness of refugees, contribute to it, as noble Lords have mentioned, including the noble Baroness, Lady Afshar, and my noble friend Lady Hamwee.

In 2016, the Home Office published updated guidance. However, as mentioned by my noble friend, such cases of discretion will be “rare”. Without legal aid, making an application outside the rules is very difficult due to the complex rules. Separation of families can have a devastating impact on people’s lives, their rehabilitation from experiences of trauma and their ability to integrate in and adapt to our country. As has already been mentioned, the report from the Home Affairs Committee in the other place stressed the bureaucratic difficulty of family reunion and the current sponsorship and visa system. The Government should be doing all they can to help people in these circumstances rather than hindering their chance to reach safety. The report also recommended that the Government amend Immigration Rules to allow refugee children to act as sponsors for their close family.

On the grounds of all those principles, especially the last one, leaving families divided makes no sense and is costly in social and economic terms for us. Such people will be in the best position to start a life in and contribute to the UK, as so many have already done magnificently, if they have the support of their family.

Brexit: Acquired Rights (EUC Report)

Baroness Ludford Excerpts

Tuesday 4th July 2017 Lords Chamber

[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.

--- Later in debate ---

[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.

Brexit: UK-EU Security (EUC Report)

Baroness Ludford Excerpts

Tuesday 7th February 2017 Lords Chamber

[Baroness Ludford (LD)]

My Lords, my noble friend Lord Maclennan reminded us, as does the report, that the Prime Minister, when Home Secretary, said that it was vital that we stayed in the 35 policing and justice measures. The noble Lord, Lord Kirkhope, with whom I worked for 15 years in the European Parliament, strongly backed this up. He and I did not always agree during those 15 years but I am glad to say that we do now. The report stresses that the measures we are talking about are part of a complex and interconnected network of agreements and arrangements that are difficult to compartmentalise, and of course they have been through a filter, as the noble Lord, Lord Hannay, reminded us. Just two years ago these were boiled down from 130 measures to 35 that the Government regarded as vital. How can they be reduced any further?

However excellent our police are, anything short of full participation is going to be less effective, more cumbersome and more long-winded and will therefore hamper our police and prosecutors in apprehending criminals and terrorists, as the noble Lord, Lord Condon, reminded us. Indeed, we could, in the words of the noble Lord, Lord Hannay, fall off a cliff edge in this area, which would be unacceptable. Of course, we were blessed with not one but two former Met commissioners in the debate. The noble Lord, Lord Stevens of Kirkwhelpington, has just stressed that the UK has been a key player in EU co-operation. The noble Lord, Lord Soley, listed almost all the Brits in top positions. We have also had several—two at least—presidents of Eurojust.

Other noble Lords have picked out adjectives in the report in order to stress the key importance of participating in all these measures. I will not repeat them. Europol is a “critical priority”. Of course, it is only as a full member of Europol that we get the full rights of direct access to intelligence and information, and the ability to share those. On Eurojust, the Crown Prosecution Service said that,

“they were heavy users of Eurojust, listing it among their top priorities for any forthcoming negotiation”,

and that bilateral arrangements such as liaison prosecutors cannot,

“do what Eurojust does, which is to facilitate the multi-national co-ordination that is so important”.

The European arrest warrant is dear to my heart. My last work in the European Parliament was to write a report on the reforms that the European arrest warrant needed. This has not been pursued by the European Commission, to my regret. It could be improved but we need to work with what exists. The noble and learned Lord, Lord Brown of Eaton-under-Heywood—we were also blessed with a former Supreme Court Justice—said that it was impossible to overstate the importance of the European arrest warrant to securing justice. The report says that it is,

“a critical component of the UK’s law enforcement capabilities”.

The report also says that it would be,

“an abrupt shock to UK policing … posing a risk to the safety of the public”,

if we were not involved in the data-sharing arrangements. The National Crime Agency was,

“emphatic about the operational significance of access to SIS II”.

It said that being in SIS was one of its “top three priorities” and,

“an absolute game-changer for the UK”.

One could go on.

The case is so powerful and has been made so strongly tonight that we must stay in these measures. What is stopping us? Essentially, the Government are putting their objections to the European Court of Justice above national security. One thing that we will need to comply with are the data-protection arrangements, as enforced by the European Court of Justice. The report says that this is going to be,

“a necessary pre-condition for exchanging data for law enforcement purposes”.

The outgoing Independent Reviewer of Terrorism Legislation, David Anderson, said:

“It should not be assumed that Brexit will relieve the UK from the need for compliance with standards of privacy and data protection set out in EU legislation”,


or by the European Court of Justice.

We must also expect greater scrutiny of our surveillance practices, which perhaps we have not had to the same extent as has the United States while we have been a member of the EU. I think we can expect the content of the Investigatory Powers Act to come under close scrutiny when we are seeking an arrangement with the EU without being a member, particularly if we are trying to avoid oversight by the European Court of Justice. The Government claim that security is a top priority but they simply cannot deliver the same level of functionality if we are outside the EU framework because they are not in fact making security a top priority; they are making the political red line that suits the Conservative Party—rejection of the ECJ—the top priority. There was an astonishing response which the Secretary of State for Exiting the EU, David Davis, gave to a member of the other place. I confess I had not picked it up but I looked it up online. He said that yes, we would have to pull out of Prüm—I think he was referring to other measures—because we had to avoid the jurisdiction of the ECJ. That is a very peculiar turnaround of priorities.

The report reminds us that there is this tension between the maintenance of strong security co-operation and refusing oversight arrangements—perhaps not only those of the court but those of the European Parliament as well. We know that our police will do their best but it would be a dereliction of duty to fail to give them the support they need to work with their counterparts in other member states because of what I think the noble and learned Lord, Lord Brown, referred to as a doctrinal objection.

The Government will seek bespoke adjudication arrangements. We must hope that they will succeed however they can in keeping us close to practical EU co-operation, but there will be real problems in trying to step aside from the ECJ. The EU can act only in compliance with the European Charter of Fundamental Rights, and the court is the ultimate arbiter of that. It is impossible for the EU to sign an agreement with the UK that conflicts with either the charter or ECJ case law.

The agreement will have to be policed and enforced. If the UK acted in ways that breached the terms of our agreement, it might be open to an EU citizen to take a case to the ECJ and get the decision including the UK agreement annulled. That is what happened to the safe harbour arrangements with the US when an Austrian student, Max Schrems, went to the court because of concerns about US intelligence agencies. We need to think through what could actually happen. We will have to keep up with legal developments in the rest of the EU, a point that has been made this evening, because if we diverge from EU law a gap will open up and we will leave ourselves open to the potential of the agreement being annulled. It remains to be seen whether our EU partners will agree to set aside the ECJ in favour of a bespoke dispute resolution mechanism. But we do not seek just to stay in one measure, whether that is Europol, SIS, the EAW or whatever. We want to remain in the whole package and there is no precedent for the EU agreeing to sideline the ECJ with such a large agreement as we would seek.

I conclude that it would be truly extraordinary if the mantra of taking back control, interpreted by this Government as avoiding ECJ jurisdiction, ended up handing control over to the criminals and terrorists. When you have the experience that we have listened to this evening on the police and judicial side urging the Government to put safety first and back our police and prosecutors, it would surely be an unpatriotic neglect of national security to put political prejudice first and, in the words of the noble Lord, Lord Hannay, to demonise the court. That would involve being soft on crime, and I am sure the Government do not wish to do that.

Brexit: Residence Rights

Baroness Ludford Excerpts

Wednesday 1st February 2017 Lords Chamber

Asked by

[Baroness Ludford]

To ask Her Majesty’s Government what preparations the Home Office has made to process applications from European Union nationals resident in the United Kingdom for confirmation of a right to permanent residence or for British Citizenship.

[Baroness Ludford (LD)]

My Lords, I beg leave to ask the Question standing in my name on the answer paper.

[Noble Lords]

Order Paper.

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

My Lords, I will now give the Answer on my answer paper. We continue to make the application process quicker and easier. In October 2016, the facility for single EEA applicants to apply for documents certifying permanent residence status online was launched. We are currently working to expand this service further. In addition, the date on which applicants are deemed to have acquired permanent residence status is clearly notified to them so they are clear on when they can pursue an application for British citizenship.

[Baroness Ludford]

My Lords, recuperating myself, I am most grateful for that Answer. I am gratified if there have indeed been improvements, because given the Prime Minister’s claim about making the country fairer, I wonder how it is fair to make EU nationals—who have an automatic right to permanent residence after five years, as the noble Lord, Lord Bridges, confirmed in a debate last week—go through what many have said is a horrendous process to get a document from the Home Office attesting to that right. I have been told by the BMA that people cannot even fill out the 85-page document online. Can the Minister assure me that accounts of people being asked for reams of documentation, or receiving letters wrongly telling them that they have to leave immediately, are at an end?

[Baroness Williams of Trafford]

As I say to the noble Baroness, the system has been vastly improved. Having acquired permanent residence under the Immigration (European Economic Area) Regulations 2006, an individual must have 12 months free from immigration restrictions before pursuing an application for British citizenship. The inclusion of the date on which an applicant is deemed to have acquired permanent residence helps to inform applicants about the point at which they are eligible to apply for British citizenship. That removes the uncertainty surrounding the process and the cost to the applicant of submitting an application that might be refused on the basis that they have not been free of immigration restrictions for the required time.

European Union: Freedom of Movement

Baroness Ludford Excerpts

Thursday 12th January 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I think I did answer the noble Lord’s question. Each member state implements the free movement directive through their respective domestic legislation, all of which have different nuances within them.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for that confirmation that EU law on free movement is sound and not a charter for layabouts or benefit scroungers and that, if the strict conditions for eligibility are not enforced, that is a failure not of Brussels but of the UK Government and notably the Home Office, which the Prime Minister presided over for six years. Will the Minister offer the further reassurance that EU free movers contribute enormously to our economy, to the Treasury and to our society, and that it is a two-way street, with millions of UK citizens having taken advantage of EU free movement rights?

[Baroness Williams of Trafford]

My Lords, I do not disagree at all that the EU free movers contribute to the economy. We were talking yesterday about doctors, nurses and various other people who contribute to the public sector. I cannot remember the first part of the question, but I think I answered it previously. Each country enshrines the free movement directive in its own legislation.

Brexit: Immigration Policy

Baroness Ludford Excerpts

Wednesday 30th November 2016 Lords Chamber

[Baroness Williams of Trafford]

I thought I had explained it quite clearly.

[Baroness Ludford (LD)]

Do the Minister and the Government accept that there is cross-party support for the Government to give a unilateral guarantee to EU nationals? We just heard the noble Lord, Lord Forsyth, and the noble Viscount, Lord Hailsham, saying publicly on her Benches that that would give that stability and is the morally right thing to do. By setting an example, it would give us the good will and make it impossible for the 27 countries not to reciprocate for British nationals in their countries. It would cut the Gordian knot and it is the right thing to do.

[Baroness Williams of Trafford]

My Lords, I think I have just explained why that might be a foolish position.

Brexit: EU Citizens

Baroness Ludford Excerpts

Monday 24th October 2016 Lords Chamber

[Baroness Williams of Trafford]

My Lords, people are not bargaining chips, but the whole negotiating process has to be taken in the round. I absolutely acknowledge when the noble Lord says—because I hope I might be included as one of them—that EU nationals have made a great contribution with their skills and what they have done for this country.

[Baroness Ludford (LD)]

My Lords, is false reassurance being given to EU nationals who have been here for five years? They are told that they are fine, but my understanding is that their rights are under EU law and, presumably, would not persist beyond our exit, so they would have to translate that into domestic law through something like indefinite leave to remain. Can the Minister confirm that that is the case?

[Baroness Williams of Trafford]

My Lords, again I cannot comment on what will be the subject of negotiations. However, I can confirm that EU nationals who have been continuously and lawfully resident in the UK for five years automatically acquire a permanent right of residence under EU law. This will not change, as long as the UK remains in the EU.

Brexit: Role of Parliament

Baroness Ludford Excerpts

Monday 18th July 2016 Lords Chamber

[Lord Keen of Elie]

The Prime Minister has been very clear that it will take time for the UK Government to agree their position for negotiations in respect of the exit from Europe. They will consult widely, not only with all Westminster governmental institutions but also with the devolved Administrations, including the Scottish Parliament.

[Baroness Ludford (LD)]

My Lords, the Prime Minister has apparently promised a partnership involvement for the Scottish Government in Brexit negotiations. Why will the Government not show the same degree of respect to this Westminster Parliament, instead of offering the mere debate and discussions—crumbs off the table—that were envisaged in the response to the Urgent Question last week and, indeed, just now by the noble Lord, Lord Bridges, who said that there was no legal obligation to consult Parliament, as if that was the end of the story? Why can we not get the same respect as the Scottish Government?

[Lord Keen of Elie]

The Prime Minister has clearly extended the same respect to this Parliament as she has to the Scottish Parliament. The Prime Minister has also said that we will not trigger Article 50 until we have a UK approach and objectives. That will be the product of consultation with all these parties.

EU Citizens in the UK

Baroness Ludford Excerpts

Thursday 14th July 2016 Lords Chamber

[Baroness Ludford (LD)]

My Lords, it is a pleasure to follow that splendid speech by the noble Lord, Lord Cormack, with which I totally agree, as I did with the introductory speech by the noble Lord, Lord Lucas, who I thank for this debate. Indeed, I agree with everyone who has spoken. We need certainty and clarity instead of a destabilising vacuum. This is indeed an issue of morality, humanity, decency, honour and human rights. As the noble Viscount, Lord Waverley, said, the last thing we want is years of legal claims under human rights law on the basis of a breach of Article 8 on the right to family life.

As the noble Lord, Lord Bowness, said, there is also enlightened self-interest. To say that we will not guarantee the rights of EU nationals here until we have reciprocity is not only cruel to individuals—there are 4 million to 5 million EU nationals here and Brits abroad—it is also very damaging to the economy to use them as pawns. There has been talk that the Vienna Convention on the Law of Treaties protects acquired rights of free movement, but that seems far too insecure and unpredictable. We would need a specific clause in a withdrawal agreement. Far better than to wait for that agreement is to make a unilateral declaration. Even if we had an early deal on reciprocity, as has been mooted, we would still have to wait. We do not know whether the Government will seek EEA status. The new Chancellor spoke this morning about the importance of single market access for financial services, but you cannot cherry-pick bits of the single market, so there is great uncertainty. Even if we were in the EEA, and hence accepted free movement, we would lose the ability to influence the future shape and direction of free movement law. Perhaps the Government will seek an ad hoc solution, in which case, what kind of solution would that be?

The Immigration Minister James Brokenshire has talked about how people with existing permanent status are okay. He said:

“It is important to put on record that those who have been continuously lawfully resident in the UK for five years qualify for permanent residence. It is an important point for those who have raised points about constituents and family members who have been in this country for a long time that those rights already exist, so they should have no fear about that”.—[Official Report, Commons, 6/7/16; col. 948.]

That makes me rather angry. Those rights for people who have been here for five years are under EU law, specifically the free movement directive, 2004/38. That gives no assurance for their future if we withdraw from the EU. Presumably they would have to apply for either permanent residence or indefinite leave to remain under British law. We have heard the same guarantee echoed by leavers such as Gisela Stuart, who I think was on “Any Questions?” last week. It is a false reassurance, and it is actually quite cruel to try to convey a message that has no foundation—unless the Minister can assure me otherwise.

We have no idea—if there is no withdrawal agreement, which might regulate these things—whether those possessing permanent residence at present under EU law would keep that status or would be switched to ILR, which has less protection against deportation than permanent residence. We have no idea about what would happen to those who have been here for less than five years. We might have years of legal challenges about the loss of the expectation on which they had built their lives. We also know nothing about what would happen to those in the process of the acquisition of rights—for example, for teenagers’ future status regarding tuition fees. Others have talked about the insecurity for British citizens in other EU states. They would of course be subject to EU immigration law, a question that has never been a subject of any interest in this country because we have opted out of most of it. These are not national issues but EU immigration law.

I join others in making a plea to the Government to take unilateral action to give EU citizens living and working here a guarantee of an unconditional right to stay, as the Bill introduced yesterday by my honourable friend Tom Brake MP requests. That would be the implementation of “taking back control”, as the noble Lord, Lord Cormack, said. It would put us in a strong political and moral position to avoid the negative consequences of the UK withdrawal for British expatriates, and would be leverage to get their rights guaranteed in return. Surely it is the right and honourable thing to do for both sets of people.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, there are two things that I cannot clarify: the first is the Question that the noble Lord, Lord Lucas, has asked, which I will address, and the other is my position as I stand before your Lordships. I shall pick up a number of points made by the noble Lord, Lord Rosser. I acknowledge his expertise in the matter of political party splits, but I cannot accept his disdain for popular democracy. It was not a party referendum; it was a British referendum—a United Kingdom referendum.

I thank the noble Lord, Lord Lucas, as have others, for taking the time to table this debate on such an important topic. The Government are listening to the concerns that have been raised in this House, and across the country, on this issue. It is the Government’s intent to provide reassurance to all those in the UK. It is appropriate that we protect the rights of EU citizens in the UK and provide them with the security of knowing that they can continue to practise, work, live and study here.

These are, however, unprecedented circumstances, and we must now reflect on the situation that this country has voted for. There can be no doubt that the 3 million EU nationals currently in the UK make an invaluable contribution to our economy, our society and indeed our daily lives. As the noble Lord, Lord Berkeley, observed, people from the EU provide vital services to this country, not only to businesses but to our public sector, where nearly 250,000 employees are EU nationals. They are our doctors, nurses, teachers and carers. In the NHS alone, almost one in 10 doctors and one in 15 nurses are from an EU country. This Government are immensely grateful to EU nationals for the role that they play in making our country great, and we continue to welcome them to the UK. People from all around the country, including noble Lords and our colleagues in the other place, will have wives, husbands, parents and friends who are EU nationals. They are pillars of our communities and held dear by many.

It is precisely because of this that the Government want to be able to guarantee the status of EU nationals who are living in the UK, and we are confident that we will be able to do that. However, we must also have the same rights for British nationals living in European countries, who are contributing to their economies and societies. It will be an early objective for the Government to achieve these things together.

I reassure noble Lords that the Government respect that this is an uncertain and distressful time for EU nationals in the United Kingdom and UK nationals who have made their lives in other member states. 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 will guide us through future discussions with Europe.

I reiterate the remarks the Immigration Minister made in the other place. This does not mean that the Government view EU citizens as bargaining chips. Far from it—in the approach the Government take and the agreements we make we will never treat EU citizens in such a way. As the UK Government have made clear, there will, in any event, be no immediate changes in the circumstances of European nationals in the United Kingdom, and currently they can continue to enter, live, work and study in the United Kingdom as they did before the referendum. The UK currently remains in the EU. We remain subject to EU legislation until we have left the EU, and this includes the legal framework on free movement. There is no current requirement for EU nationals to apply for documentation from the Home Office to acquire this status.

It has been suggested here today and repeatedly over the last fortnight that the Government could fully guarantee EU nationals living in the United Kingdom the right to stay. This sounds so simple yet, as soon as you scratch the surface, it is in fact fiendishly complicated. When one says “guarantee rights”, do noble Lords seek to preserve the essence of the status of these individuals or the legal and operational system which underpins them? Another question is: from when should we make these guarantees? For example, would they be guaranteed only to those residing in the United Kingdom before the referendum result was announced, as was suggested by one noble Lord? What about the EU nationals who arrived later that day, or last week? Or would it be a date in the future, the date that Article 50 is invoked, the date the exit treaty is signed, or perhaps when it comes into force?

Exactly what rights are we talking about? This issue is not simply about the immigration status of an individual. Under EU free movement law, EU citizens’ rights are far broader than just the right to reside in the United Kingdom. For example, there are rights to work or be self-employed, to study, entitlements to benefits and pensions, and rights of access to public services and to run a business. EU nationals also have rights to be joined by family members and extended family members, in some cases from countries outside the EU. There are also rights for non-EU parents of EU children and for those who are married to EU nationals, or indeed for those who are divorced from EU nationals. In addition, what will we do about those who are subject to a deportation order, an appeal, or where appeal rights have not been exhausted? It is not therefore a simple binary question of whether we should guarantee rights, as under that there are a range of scenarios and considerations.

Of course, these rights do not just extend to EU citizens. As noble Lords are aware, they extend to citizens of the EEA and to Swiss nationals. All that has to be taken into consideration as well. Furthermore, these rights need to be considered in the context of the many different situations people face in real life; for example, an EU national who has just lost their job, or who has just arrived and is not yet into the period where they must exercise treaty rights—bearing in mind that they can be here for three months without employment and then have a further three months as a jobseeker. What will their status be if they arrived last week or arrive next week? What will be the status of an EU national who has just divorced a British citizen, or has just retired? The list is extensive.

Finally, once we have settled all that, how do we determine who these people are? Currently EU nationals are not required to register with the UK authorities to enjoy basic EU rights to reside, so we will need to work out how we identify fairly and properly the people who are affected by this.

[Baroness Ludford]

Surely that is why the Government are the Government—they have to work out all those difficult details. We are asking for the broad picture: guarantee the rights of those already here. Indeed it is hugely complicated—that is why leaving is incredibly complicated—but we are asking the Government to be the Government and sort that out.

[Lord Keen of Elie]

But you have to work out the complex details, which the noble Baroness, Lady Ludford, acknowledged, before you can come to a conclusion as to how you will deal with the matter. You cannot say in broad terms, “We give you a guarantee”, when you do not know to whom you are giving the guarantee or how it will work. As the noble Baroness, Lady Ludford, has raised certain matters, I will make one observation. She referred to the Vienna convention, meaning the Vienna convention on treaties, and alluded to the fact that that may preserve prior rights created by international treaty. I assume that she had in mind Article 70(1) of that convention. However, I point out that Article 70 preserves prior acquired rights under international treaties but applies only to the rights and obligations of states, not individuals, and therefore would have no application in this context.

As the noble Baroness, Lady Ludford, anticipates, the Government will need to undertake comprehensive work to examine each of these rights, and the different circumstances in which people find themselves, to ensure that there are no unforeseen or unintended consequences. That work will be led by the European unit, which is being established under the present Government, which will work in close consultation with all government departments that have an interest in this matter. As I have said throughout this debate, the protection of the rights of EU nationals and those British nationals who live in the EU will be at the heart of future discussions with our European partners, and EU nationals will continue to be welcome in the United Kingdom for so long as we remain members of the EU.

EU nationals have our full and unreserved reassurance that their right to enter, work, study and live in the United Kingdom remains unchanged and that they continue to be welcome here. Of course we value the tremendous contribution they make every day, up and down the country. Given that both the UK and EU want to maintain a close relationship, we are confident that we will work together and that both EU and British citizens will be protected through a reciprocal arrangement. We want to be able to conclude this matter as quickly as possible, and the new Prime Minister has been clear that resolving this issue is a priority. The Government keep the protection of the interests of EU nationals and British nationals alike at the forefront of their mind and we are determined to secure the best outcomes for both.

Migration

Baroness Ludford Excerpts

Monday 6th June 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. Where students come in legitimately for a period of study that extends to more than a year, normally to three years, there is an impact on public services, housing and other matters. It is therefore appropriate that they should be included within the net immigration figures. That practice is embraced not only by the United Kingdom but by other countries such as Australia, Canada and the United States. On bogus marriages, I concur that we need to ensure that these cannot succeed and therefore that appropriate checks are made.

[Baroness Ludford (LD)]

My Lords, does the Minister agree that Brexiteer proposals on migration are unworkable and contradictory? Mr Farage has admitted that the Ireland-Northern Ireland border would be a back door to EU migration on Brexit unless it was sealed as a hard order. As to the proposal of Messrs Gove and Johnson for an Australian points-based system, Alp Mehmet, the vice-chairman of Migration Watch has said:

“A Points Based System might suit the Australians who are trying to increase their population but … it is extremely complex and would be a non-starter for the UK”.

[Lord Keen of Elie]

There is no doubt that if the United Kingdom wished to remain within a single market it would have to acknowledge and allow for the free movement of persons as well as goods. Therefore, that would not be the panacea that some have suggested. As regards the other impacts of Brexit, one would have to acknowledge that if we did not decide to remain within the single market there would be impacts upon our economy, and if we damaged our economy that would withdraw one of the pull factors for economic migrants and we should kill the goose just because we do not want to share the golden eggs.