Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020

Baroness Hamwee Excerpts

Thursday 22nd October 2020 Lords Chamber

Moved by

[Baroness Hamwee]

As an amendment to the above motion, to leave out from “that” to the end and to insert “this House declines to approve the draft Regulations because the so-called ‘grace period’ of six months from 1 January 2021 for applications to the EU Settlement Scheme does not replicate the provisions which apply during the implementation period.”

[Baroness Hamwee (LD) [V]]

My Lords, I am grateful to the Minister for going through those detailed and technical provisions. I have tabled this amendment opposing the grace period statutory instrument not because I oppose the grace period as such—and, in any event, at least six months is required by the withdrawal agreement—but in the hope of persuading the Government to sit down quietly to discuss the detail with those who are concerned about some of its not immediately obvious effects: “A slow conversation”, as she might put it.

The limitations of parliamentary procedures lead me to this. We cannot amend the instrument and, although I share the regret of the noble Lord, Lord Rosser, merely expressing concern does not require anyone to do anything. Effective scrutiny should lead somewhere: if not to a change in policy, at least to a consensus as to exactly what an instrument means and how best to express it. Everyone needs to know where they are; immigration law is quite complex enough.

The widely held view is that the grace period is a straightforward continuation of the transition period, with no difference in any EEA citizen’s position. In our view, that is just what it should be, in every detail, because that is right in itself and because of that wide- spread understanding.

The Minister, Mr Foster, has spoken of the SI saving “relevant … rights” and

“broadly maintaining the status quo”.—[Official Report, Commons, 14/10/20; col. 4.]

The qualifying terms are significant. The savings under the SI apply to individuals and their families who, by the end of this year, do not have leave to enter or remain under the scheme. That is, they apply if your application has not been determined or if you have not yet applied but are entitled to status, provided you are “lawfully resident”—a very significant qualifying term in the instrument.

If you were not exercising treaty rights on 31 December this year, it seems you will not, in the interim period, have all the rights that go with that status. Crucially, you will not be able to access benefits or healthcare. Mr Foster said that you can “work and live” as now, provided that you are subsequently granted status. I will leave aside the retrospective effect on you and your employer if it is not granted. He has written that an EEA citizen or family member who is resident but does not have a right of permanent residence and is not exercising specific free movement rights will not have those rights protected during the grace period and will not be able to start exercising them.

If you have not been exercising treaty rights but are here, for instance, as a family member, can you apply for a job or a tenancy in this period? What about benefits or healthcare, as I have mentioned? I can do no more in the time available than flag up the issue of private health insurance and treaty rights. The term “lawfully resident” begs a question that would be answered by a change to simply “resident” or “present”.

I doubt I need to emphasise the difficulty of finding a job in the current circumstances so as to exercise treaty rights if someone has not previously done so, nor the problem of a last-minute surge in applications, or if a lockdown causes delays in decisions in the Home Office. I appreciate that the department is encouraging citizens to apply to the EUSS by the end of the year and we will shortly see the arrangements and the guidance for people who have a reasonable excuse for not having applied. However, the encouragement to apply by the end of the year will be seen as something administrative and I doubt whether it will be understood that a citizen who does not have status under the scheme will be in a different position after the year end. Ironically, however, today’s announcement on criminality rules may highlight this because it states:

“These changes do not apply to EU citizens protected by the Withdrawal Agreement, such as those with status under the EU Settlement Scheme.”


Briefly, on the restrictions instrument, perhaps I might ask about people who have criminal convictions, both those who are serving and those who have served their sentences; they have rights too, which should not be lost retrospectively. If they do not have status under the scheme by the end of this year, does the Home Office intend automatically to issue deportation notices where it could not do so at the moment? Will it ensure that EEA citizens in prison or on licence understand the importance of applying for status without delay? Briefly, Keeling schedules should be used in the SIs so that the reader can see exactly what is being proposed without following up dozens of references.

These are not easy points technically, never mind politically. I hope that noble Lords will understand my concern for clarity and shared understanding. That is why I seek at least to pause the process and ask that the Home Office should work with stakeholders, who have spent a lot of time analysing the grace period SI to this end. I beg to move and I will seek the opinion of the House when the moment comes.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I say to the noble Lord, Lord Bowness, that I wondered whether I might talk about the drafting for a full eight or nine minutes and decided that that would not be very appealing to your Lordships. To the noble Lord, Lord Foulkes, I say that I do not use social media—I am a dinosaur. I am sure that he knows far more about the dark arts than I do; he might regard that as a compliment, of course.

With regard to the substance, the Minister repeated many of the terms that your Lordships have questioned and did not, I think, answer the concerns that were expressed. I remain uneasy about approving an SI when I am still unclear about the detail regarding status during the grace period. I still think that there is a lack of clarity and an uncertainty affecting a very large number of people.

I made my objective quite clear: to seek to persuade the Government to discuss the detail and get a consensus on the meaning of what is provided. What I am proposing would not affect citizens if there was a consensus as to the meaning—even leaving aside what underlies it—so citizens, who are indeed our friends, would not be affected because there is time to get that consensus and bring an agreed SI back to the House. I refute the motivation that has been implied; it is not that at all.

Noble Lords are well aware of the constraints of our proceedings. This is the only step now open. Therefore, I seek to test the opinion of the House.