EU Settlement Scheme

Tom Tugendhat Excerpts

Wednesday 7th July 2021 Commons Chamber

[Stuart C. McDonald]

Lots of questions and loopholes have been identified. The fact that the Home Office had to issue hundreds of pages of guidance, even in the two or three weeks prior to the end of the transition period, shows that the issue has been difficult for it to address.

I come to what this debate should be about, which is looking forward to what can be done. We absolutely maintain that even now a declaratory scheme would be far preferable—people would still apply to the settlement scheme to prove their status, but at the very least the huge uncertainty would be removed and security would be delivered for them. Short of that, surely to goodness the transition period should be extended. There are a million reasons why that would be sensible—not least covid. Outreach work has been curtailed and embassies and scanning centres have been closed. People are not ready.

It is important to remember that this is not just a question of EU nationals being ready, but of employers, the Driver and Vehicle Licensing Agency, Department for Work and Pensions staff, landlords, local authority staff and bank staff having to be ready and NHS staff having to understand. As I said, the Home Office itself was still pumping out hundreds of pages of guidance in June and making tweaks to the system. I do not think the Home Office was ready for the end of the transition, and I do not think it can expect all those other organisations to be ready either. As I will mention, there is also an enormous backlog of cases.

Alternatively, the Government could at least remove the requirement for a reasonable excuse and keep the scheme open for the duration. It has to be open anyway, both for late applications and for people with pre-settled status who then go on to try to secure settled status. Why not simply allow people to come forward as it becomes necessary to secure their rights?

To be absolutely fair, the guidance on the reasonable excuse provision is reasonably generous, and more generous than it could have been, so I thank the Minister for that. But the very existence of that test plants huge seeds of doubt in people’s minds—if I have any doubt about whether my excuse will be accepted, am I putting myself at risk of enforcement action? I say that we should continue to encourage people to come forward, not discourage them.

That last proposal would be better than nothing, but it would not protect people from the impacts of the hostile environment in the meantime. That hostile environment is supposed to be undergoing an end-to-end review in the light of Wendy Williams’s Windrush report. The fact that the review has not yet been completed should be another ground for extending the grace period. More fundamentally, the hostile environment should be entirely suspended until the review takes place and its findings are implemented. All these are real, sensible, constructive options, open to the Government, that would ease the pain of the process. I hope the Government listen.

I turn now to a tiny number of examples of how difficult, technical and confusing the process has become. I am highlighting what groups such as the Joint Council for the Welfare of Immigrants and the3million are telling me. I do that to press the Minister for a response and to underline the case that there has at least to be an extension to the transition period.

First, I turn to the question of those who applied before the deadline but are still waiting for a decision. How on earth is it that, as I understand it, the backlog has risen to 570,000 cases? Back in October 2019, the resolution centre was able to conclude just over 400,000 cases, but in each of the three months up to the deadline, as I understand it, fewer than half that number were concluded each month, despite additional staff having been drawn in from the Post Office and elsewhere. Is that backlog not enough in itself to justify an extension?

Can the Minister tell us how many applications received in June were dealt with in the five-day target? According to EU settlement scheme statistics, applications from children comprise 15% of the total, with decisions on 25% of applications still pending; they also comprise around a quarter of applications pending for over three months. Why is that?

In theory, the full rights of people with outstanding in-time applications are protected while they wait—and that, of course, is welcome. But what is the reality on the ground? Already, all sorts of reports are coming in to representative groups about employers and landlords—and also the Home Office’s own Border Force staff—getting the checks wrong. That does not surprise me, because the situation is messy.

Some people with outstanding in-time applications will provide their prospective employer or landlord with a certificate of application to show that they have made the application. Some will provide a physical certificate, printed off, that leads to the employer contacting the employer checking service or the landlord checking with the landlord checking service. Others still will not have a certificate of approval but just an acknowledgement email; that, too, should lead to the checking service being consulted.

But in the last few days, the Home Office has started sending digital certificates of application to avoid the need for anyone to use the checking services, which can take a couple of days. The applicant will provide a code to the prospective employer or landlord, and when that is input into the system it should confirm that an application is outstanding. I hope hon. Members followed that, because all of us in this House are employers, but given that the guidance was issued only a couple of weeks before the deadline, I suspect that there are huge swathes of employers and landlords out there who do not have the first clue what somebody means when they approach them for a new tenancy or a new job and say, “Here’s my digital code. This should tell you that I have an application outstanding.”

[Tom Tugendhat (Tonbridge and Malling) (Con)]

I am absolutely delighted to hear this speech, because the hon. Gentleman is explaining the complexities of leaving a Union that we were part of for about 40 years, yet somehow he seems to assume that leaving this Union is really hard but that leaving one that includes the military, finance, pensions, homes and everything else is going to be incredibly easy. I am not quite sure whether he will explain that disconnect.

[Stuart C. McDonald]

The point, as I have said, is that the Government could have made this process a hell of a lot easier. Government decisions have made this difficult, not anything else.

We know from research that discrimination is widespread when private actors have to undertake even basic checks, such as passport and visa checks, and it is blindingly obvious that the half a million people who are in the queue are going to face discrimination on stilts if they have to explain these processes. Other than telling employers and landlords to follow guidance, what more is being done to clamp down on and prevent this discrimination? What monitoring, even, is being done?

In theory, public bodies should find this easier, yet we hear of cases of universities not being prepared to confirm that students are eligible for home fee status, or the Student Loans Company not confirming eligibility for student finance until their status is decided. Just an hour ago, I learned of a universal credit case being turned down because, even though the national insurance number and date of birth all matched up, the Department for Work and Pensions could not verify the digital share code. What is the Home Office doing to identify and accelerate these cases to ensure that no one is denied the educational opportunities that they are entitled to? How will people be compensated when they have been wrongly refused entry to the UK, work or housing, or been charged for NHS treatment or incorrectly denied home fees or student finance because of a failure to apply the law correctly?

Another huge problem is that use of the checking service provides a landlord or employer with only a six-month guarantee of protection from prosecution, but why would an employer or landlord take on someone when they can have a guarantee of only six months’ rent or six months’ work? That is why it was wrong to end the transition while over 500,000 people were in this perilous position. A freedom of information request in May showed that 100,000 people had been waiting for over three months for a decision. That is a hell of a long time to be in this semi-legal limbo.

Finally on this particular topic, I understand that there are also significant numbers of cases where people have completed parts of the application process online but not the whole process—for example, even just the final “submit” stage. Is the Home Office taking steps to identify and reach out to those people as well?

Turning to people who apply late, or have applied late and are waiting for a decision, it is welcome that they can continue to access healthcare and that, if I understand it correctly, they can continue to exercise rights that they are currently exercising, such as keeping an existing job or social security benefit if they apply with 28 days’ notice. However, the huge gap here is that there is no right to take on a new job or new accommodation in England, or to claim a new social security benefit or use other services, so an important first question is why the Home Office thinks this is consistent with the withdrawal agreement, which states that pending a decision on any application, all rights will be deemed to apply to the applicant.

It is easy for the Government to say, “Well the process is quick and therefore these issues should not be widespread. Get the application in and then get on with your job hunt or social security application”, but, in practice, it is not that simple. We know that over 100,000 people had been waiting for more than three months in May, and remember, too, that, as we know from Windrush, it is precisely when people are making new job applications or applying for social security or a tenancy that they suddenly realise that they have not applied and should have done. Waiting for three months at these moments of crisis could destroy lives, with employment, accommodation and financial support all missed out on.

The Home Office has mentioned a process for accelerating certain cases, which is welcome, but how does that work? How can we ask on behalf of our constituents that their case is accelerated for these very good reasons? What will the criteria be for accelerating cases, what will the timescales be, and what does that mean for other cases and how long they will take?

Finally, on late applications, I previously asked the Minister what would happen if someone incurred health charges because they had failed to apply for the settlement scheme, but, having realised their error, they then went on to apply late and successfully showed that they had a reasonable excuse. If I recall correctly, the Minister suggested at the Home Affairs Committee that it would be ridiculous to then insist on those charges being paid. After all, they had had a reasonable excuse for a late application, but, as I understand it—I would love to be corrected—that is exactly what will now happen in England. How can that be justified? Why is it that someone who is considered to have reasonable grounds to apply late can still be held liable for healthcare charges incurred before submission of their justifiably late application? It seems an incredibly strange situation.

What about those who have not applied at all? I want everyone to apply, though late—I am sure we all do—so what is the Government’s strategy here? Is there not a danger that the reasonable excuse test is going to put people off, especially if, as suggested in the guidance, it has to be more strictly interpreted the more time goes on? Why is that advice there? Those who encounter border enforcement, whether the Home Office version or delegated private actors such as employers, are going to have 28 days’ notice to apply, but what has been done to make sure that some of the people most likely to have missed a deadline—vulnerable and marginalised groups, and maybe those with health issues or with poor English—understand what that notice means and what exactly is required of them? For example, is it going be available in different languages, will they be signposted for advice and what happens if that 28-day deadline is missed?

It is much more likely that people who have not applied will become aware of the problem only through an encounter not with Border Force, but with an employer, the DWP, a landlord or somebody else, so what work has been done to ensure that, rather than just saying no, they signpost and, in the case of Government Departments, assist them in ensuring that an application can be submitted. The Government are committed to funding grant-funded organisations supporting EU citizens with late applications until September. Why is it only to September? Can we have funding for beyond that as well?

Finally, I turn to the issue for those who actually get settled or pre-settled status. Even if somebody is successful, that is not the end of their problems, and others, as I have said, will speak about the lack of a physical proof of status. There are more than 2 million people with pre-settled status, and many of them will struggle to prove the five-year residence required for settled status. What support will be available to help them with equally vital applications, and what happens to those who fail to apply at the time when their pre-settled status expires?

The settlement scheme may have been designed to be straightforward, but its interplay with our complicated immigration system means that it just cannot be. I struggle to follow its implications, and I suspect many hon. Members will have struggled to follow them as well, yet guidance for employers and landlords was issued just a couple of weeks back. This has, I am afraid, at the end of the day, ended up being a rush job. Even if all our other ideas are rejected, at the very least we need a longer transition period, and for the umpteenth time, I do ask that the Minister meets the3million campaign group.

In closing, during the referendum the now Chancellor of the Duchy of Lancaster also promised that, after Brexit, Scotland would have immigration powers. That seems to have gone the same way as his promise to EU nationals. We have debated the devolution of immigration or at least some immigration powers before, and it is on these occasions that the normally very measured Minister tends to start engaging in tub-thumping rhetoric rather than the arguments in the discussion. I am not going to repeat all those arguments today, but report after report from the Scottish Government, academics, thinktanks and immigration lawyers offer myriad reasons why this should be done, and templates for how this could be done.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

As the first Home Office Minister to come to the Dispatch Box since this afternoon’s news, I would like to pay tribute to my colleague and right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), and say that we will miss him as a Minister in the Home Office. We obviously still look forward to continuing to work with him as a Member of this House, and wish him the very best for the future.

I am very grateful to the SNP for the opportunity to use the time allocated for today’s debate to highlight the great success of the EU settlement scheme, our approach to late applications, and how welcome it is that so many of our friends and neighbours who arrived during the time of free movement want to make our United Kingdom their home on a permanent basis. I appreciate the generally constructive tone of my debates with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald): even though we disagree on some fundamental points, he has given some very constructive input, both during his time as my direct shadow and now in his slightly different role as the SNP’s lead spokesperson on home affairs.

As this House is aware, the deadline for applying to the scheme for those resident in the UK by the end of the transition period was last Wednesday, 30 June. As of that date, in excess of 6 million applications have been received by the scheme. More than 5.4 million of those have already concluded and more than 5.1 million grants of status have been issued, with literally thousands being decided every day.

[Tom Tugendhat]

I am delighted to hear my hon. Friend making these statements. Is he aware that if he had applied for settled status in France, he would probably be queuing up even now, and that if he had done the same in Belgium, he would even now be waiting for documents to be approved? The Home Office has secured a remarkable achievement: even when we were members of the European Union, the paperwork needed to be legally resident in France, Italy, Germany, the Netherlands, and in many other countries around the EU was significantly more complicated than the procedure that my hon. Friend has set up.

[Kevin Foster]

I thank my hon. Friend for his comments: obviously, he has a unique perspective on these issues, given his chairmanship of the Select Committee on Foreign Affairs. It is always worth reflecting that on the day the French system opened for applications for UK nationals living in France, the EUSS had already received over 4 million applications. That just shows the scale of the scheme, and most people had the ability to apply from home, using an app on their smartphone to verify their identity in conjunction with their national passport. We are very pleased, and we hope that others will learn lessons from our success at getting so many applications in and so many settled and concluded already when it comes to how they approach the position of UK citizens living in their own nations.

To be clear, any application posted on 30 June is also considered to be in time. In recognition of the time it can take for post from all parts of our Union, especially the highlands and islands, to be delivered, we will assume any application received in the post until midnight tonight was posted in time. This is to ensure there is no prospect of an in-time application being ruled out purely on the basis of when it was delivered to the Home Office. Overall, these numbers are significant just in themselves: despite all the warnings about our potential willingness and ability to deliver, literally millions of EU citizens in the UK and their family members now have their status protected and their rights secured under UK law.