My Lords, two years and 13 days after it received its First Reading in this House, I am pleased and a little surprised to have the opportunity to debate this Bill. This is not a complicated piece of legislation; it is not a complex issue. At heart, it is a simple matter of honouring a pledge made over three years ago to EU citizens resident in the United Kingdom. The Bill seeks to establish a declaratory approach in which the right of residence for EU citizens is based upon eligibility rather than acquired through application. Registration would therefore merely confirm the existing right and missing any deadline would render one undocumented but not unlawful.
Clause 1 amends the Immigration Act 1971 to grant the right of abode to all EEA citizens resident in the United Kingdom on the date of exit from the European Union. Clause 2 sets out what would qualify as being resident in the UK for this purpose and Clause 3 specifies the basis on which a person would be regarded as a family member, based on existing EEA provisions. In summary, the Bill would put into law the categorical commitment made to EU citizens during the referendum campaign by, among others, our most likely next Prime Minister. In June 2016, Boris Johnson, Michael Gove and Priti Patel made the following pledge in a written statement on behalf of the leave campaign:
“there will be no change for EU citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present”.
Since then, every one of those individuals has served in government, at Cabinet rank, yet that pledge has still not been honoured. The aim of this Bill is to right that wrong and to put their pledge into law.
Noble Lords will be aware that, after a long and discreditable period, the Government finally conceded last year that a unilateral commitment must be made to EU citizens. As a result, the settled status scheme was established and began operation earlier this year. While the scheme does provide a route for EEA nationals to apply for settled status and, if successful, to be granted permanent residence rights, it does not deliver on the promise made to EU citizens by the leave campaign, for a number of reasons. First, the settled status scheme is not the automatic route to indefinite leave to remain that was promised by the leave campaigners. It is an application-based system with a finite cut-off date of
I do not think that anyone seriously believes that the Home Office will be able to reach, and grant settled status to, all the 3 million EEA nationals estimated to be resident in the UK in just two years. Based on evidence from studies of other application-based government schemes, it is possible that between 5% and 10% of those eligible will not have been reached by the cut-off date. That means that tens or even hundreds of thousands of otherwise eligible people may find themselves undocumented and criminalised in as little as 17 months’ time. Inevitably, those most at risk will be vulnerable: young people in care, the elderly and the marginalised. I hope that no future British Government would even contemplate attempting to detain and deport such people; but, at the very least, that so many may become criminalised by the state will create a Kafkaesque nightmare which will then have to be painstakingly unravelled. In the process, many thousands of people will be subjected to misery and disruption.
The Government’s argument for a cut-off date seems to be that it will help avoid a repeat of the injustice inflicted on people by the Home Office in the Windrush scandal, but it will do nothing of the sort. The cut-off date will simply empower the Home Office lawfully to inflict such injustice. Under the settled status scheme, there will be no hope of redress for EU citizens as there was for at least some of the Windrush victims because, after June 2021, they will have automatically lost their lawful immigration status by virtue of having failed to meet the cut-off date, regardless of being otherwise fully eligible for permanent residence under the scheme.
A second issue with the settled status scheme is that, unlike the system of indefinite leave to remain, it does not provide successful applicants with physical proof of their right to be in the United Kingdom. Instead, they must rely entirely on a code issued to them by the Home Office which has to be entered into the relevant website by whoever requires proof of their immigration status. The3million group, which represents EU citizens in the UK, has highlighted the difficulties that this will inevitably cause for EU citizens. Interactions with landlords, airline staff or other officials obliged to check immigration status will become fraught with anxiety, dependent on the fragility of an internet connection and the resilience of a government IT system.
Thirdly, the settled status scheme requires proof of continuous residence over a five-year period. That may be difficult for some people to provide and contradicts the leave campaign’s pledge, which was made to all EU citizens lawfully in the UK regardless of the length of residence.
Finally, and perhaps most fundamentally, the current settled status scheme rests on immigration regulations which can be changed virtually at the stroke of a ministerial pen and on the undertakings of Ministers who may be out of office as early as next week. Noble Lords will not be surprised that EU citizens find it hard to have much confidence in a scheme constructed on such shaky foundations. This Bill, by contrast, would for the first time provide all EEA nationals resident in the United Kingdom with a guarantee in primary legislation of their right to remain. Consequently, their status could be altered in future only with the active consent of both Houses of Parliament.
Beyond the flaws in the principles of the settled status scheme, there are also concerns about its practicalities. Since it started operating, the Government have made much of the fact that few applications have been rejected, but we should not get carried away by this reassurance. Anecdotal evidence suggests that, while applications may not have been wholly rejected, many people are told that they have not provided sufficient documentary evidence and must provide more. Others who have applied for settled status have been granted pre-settled status instead—we do not know how many because, for some reason, the Government do not seem to say, but I hope that, at least on this point, the Minister will be able to enlighten us today.
The last three years since the referendum have been a time of fear and uncertainty for EU citizens resident in the UK and British citizens resident in the EU. That fear and uncertainty have been compounded by the increasing prospect of a no-deal Brexit and the repeated failure of Brexit politicians to honour the pledges they have made. For those affected, this is not a debate about some abstract principle; it is a debate about their lives and their futures, whether they will retain the right to remain in the country in which they have chosen to live, whether their loved ones will have the right to settle with them if in future they should return home, whether their pensions will continue to be uprated and whether they can continue to access healthcare and remain in employment. It is about all the things that are the very essence of a person’s sense of security. That security should never be reliant solely on the whim of an ever-changing cadre of Ministers increasingly cavalier about the impact of a no-deal Brexit on the rights of millions of British and other EU citizens. This Bill cannot solve all those difficulties—that can be done only by remaining in the EU—but, imperfect though the Bill inevitably is, it will provide a greater sense of security and certainty to the EU citizens who have contributed so much to our country. With the co-operation of Ministers, it could be strengthened further to address the concerns of British citizens in the EU about family reunification rights and the uprating of pensions in the event of a no-deal Brexit.
In October 2017, speaking to the Polish community, Boris Johnson, the man we are told will be our Prime Minister in a matter of days, had this to say:
“I have only one message for you all tonight: you are loved, you are welcome, your rights will be protected whatever happens”.
Since then, as on so many things, his actions have not lived up to his rhetoric. This Bill will offer him the opportunity to demonstrate, if he becomes Prime Minister, that he is capable of marrying his actions to his words and finally honouring the definitive and categorical pledge he made to EU citizens more than three years ago. I beg to move.
My Lords, I am delighted to support the Bill introduced so powerfully by the noble Lord, Lord Oates. I sincerely wish him well. There is no reason why that wish should not be fulfilled. The new Prime Minister could very easily decree that the Bill be fast-tracked through both Houses in the same way as the current Northern Ireland legislation.
I want to make another personal reference, not to the noble Lord, Lord Oates, but to the absent noble Baroness, Lady Hayter. I am certain that the noble Lord, Lord Kennedy, will do an admirable job today, but the noble Baroness has led on EU affairs with enormous distinction and great dedication. It is monstrous and outrageous that she should have been dismissed from her post. I know that she remains the Deputy Leader of the Labour Peers, and long may she so remain, but that she should have ejected from the Front Bench is frankly appalling and I am sure I speak for everyone in your Lordships’ House in sending her our unanimous good wishes for a happy return.
As I said, I am very glad to support the Bill. The noble Lord, Lord Oates, quoted the pledge given by the famous three: Boris Johnson, Michael Gove and Priti Patel. That pledge has been echoed by many fervent Brexiteers in the past three, increasingly difficult, years. My noble friend Lord Forsyth has himself made plain in your Lordships’ House that this is an issue on which he sees eye to eye with those three who made the pledge. It is something we should have done immediately after the referendum. I proposed in your Lordships’ House before the end of June 2016, and I was not alone, that we should take the moral high ground and make a unilateral gesture to demonstrate that, if we are preparing to take back control, we could take immediate control on this issue and so put the minds at rest of all those EU citizens living in this country, many of whom make an enormous contribution to our country.
One has only to think of our universities and the number of EU students and—much more important in this context, in a sense—lecturers and professors who give leadership, add distinction and help make our universities what they are, recognised among the greatest in the world. I had personal experience at the end of last year when I unfortunately had to be in hospital for a time and I frankly lost count of the number of EU citizens working as doctors and nurses and in other capacities in that hospital. That has been the experience, I am sure, of many noble Lords. These are people who have helped to make our country the community or communities that it is. They deserve that unilateral gesture. How much better it would have been had we got this out of the way before the end of 2016.
However, in those time-honoured words, we are where we are. Of course I welcome the fact, as does the noble Lord, Lord Oates, that the Government did make a unilateral declaration. I do not for a moment doubt their total sincerity in making that declaration but, as the noble Lord pointed out in his admirable introductory speech, there are a number of problems with it and it will not give that immediate peace of mind that a far-sweeping piece of legislation could have given. I therefore strongly support what the noble Lord is arguing for today. As I said when I began, at the moment we have a demonstration of how legislation can be fast-tracked, and this is something that deserves that treatment.
Whatever the fate of this Bill, it is really important that the new Prime Minister repeats what he said to that Polish audience a little while ago and that he takes immediate action. Speaking as one who was a remainer but who fully accepted the result of the referendum, and would have accepted the Prime Minister’s deal, as I made plain on many occasions, I look to Mr Johnson, who is so likely to be Prime Minister, to show that he is a man of his word in this area. Because a lot could hang on that—for Mr Johnson, for the Conservative Party and for our country. I am delighted to support the Bill.
My Lords, the only obvious defect in the Bill—it is a glaring defect and not the fault of the noble Lord, Lord Oates—is that it is so late. I am very glad that it is resuscitated, but as the noble Lord, Lord Cormack, says, the Bill does what we should have done three years ago. It was a glaring negotiating error not to have unilaterally and voluntarily done exactly this three years ago; a negotiating error almost as serious as that of not drafting and putting forward a framework for the future relationship before we triggered Article 50. We should have done this before we triggered Article 50. Had this been on the statute book, the whole atmosphere at the start of the negotiation would have been completely different. Because it was not, we made life uncertain and in some ways difficult for 6% of the population of these islands. It was an extraordinarily inhumane thing to have done. Because it is not on the statute book, we have acted dishonourably.
The noble Lord, Lord Oates, is quite right to recall the statement by Mr Johnson and Mr Gove of
I agree with the noble Lord, Lord Oates, about the defects in the system that the Home Office is now operating. The principal defect is that it is not automatic; it is an application system. We have the rigmarole of pre-settled status, settled status and indefinite right to remain, or the decision to go instead for British nationality. These are complicated questions being tackled by people some of whom are not necessarily internet savvy, some of whom do not necessarily have access to legal advice or the right linguistic skills. To take one example, in the event of a no-deal Brexit, if only 15% of the children from other EU member states who are now resident in this country fail to operate this system and regularise their position by the end of next year, 100,000 children living in this country will be in a Windrush situation. They will be here with irregular status and potentially—possibly actually—criminalised because they are here. They will be vulnerable to hostile environment policies and deportation if they go back. The noble Lord mentioned Windrush. It is an exact parallel, except there are an awful lot more people this time.
If you want to get rid of that risk, you need a legal backstop—to use a new word—underpinning the Home Office system. I am not saying that the Home Office system should be torn up, but the right to citizenship should be underlined, as is set out in this Bill. For those who cannot work the application system, there should be a safety net lurking round. We will need something like that at the end of next year if we fall out of the EU with no deal, because public opinion in this country will be just as shocked at the way we are treating some of these people as it was to discover how we had treated Windrush people.
In addition, as a more straightforward argument to advance, if we put this on the statute book, the likelihood that similarly generous reciprocal treatment will be handed out to the 1.3 million British citizens living in continental Europe will rise very steeply.
I agree with those such as the noble Lord, Lord Cormack, who say that now is Mr Johnson’s moment. He said what he said. He made a promise three years ago on
I look forward with keen interest to seeing the evidence, but one streak in Johnsonism is probably completely genuine—I think he is libertarian on issues such as this, and naturally likely to want to do what he said he would do three years ago. I very much hope that, whatever the Government tell us today, in a very few weeks they will tell us that they strongly support this Bill and would like to see it on the statute book as soon as possible. I certainly support it.
My Lords, it is frequently the case that, when Bills or debates are introduced, speakers congratulate the Peer who has introduced the legislation or secured the debate. Naturally, I do so this afternoon. It is also frequently the case that we talk about a Bill or debate as being timely. This Bill had its First Reading over two years ago, as my noble friend Lord Oates pointed out.
As the noble Lord, Lord Cormack, has pointed out, the debate goes back rather further. In preparation for today’s debate, I seemed to recall that I had spoken on this issue several times in the immediate aftermath of the referendum. I went back to Hansard and found a Question for Short Debate in the name of the noble Lord, Lord Lucas, on
It feels as if, over the last three years, the only thing that has had settled status, a right to reside in this Chamber, the other place and the country, is the Brexit groundhog that keeps appearing and raising its ugly head in whatever debate and on whatever issue. What did we have in the Northern Ireland (Executive Formation) Bill? Amendments on Brexit. It has been the subject of debate for months and years; the rights of EU citizens have been uncertain for the three years since the referendum. That is, frankly, disgraceful.
In the immediate wake of the referendum, the noble Lord, Lord Lucas, queried—perhaps to the world in general—whose fault it was that the rights of EU citizens were not unilaterally guaranteed. In those days after the referendum, there was virtual unanimity in this Chamber that the rights of EU citizens should be guaranteed immediately. The noble Lord, Lord Cormack, has pointed out that he made that case; the noble Baroness, Lady McIntosh of Hudnall, made the point on the Labour Benches; as did the noble Lords, Lord Forsyth and Lord Lawson; from these Benches, so did I and other Peers. The only people who disagreed at that time were any Ministers having the misfortune to be responding from the Government Front Bench. I am not even sure that those Ministers disagreed with us, but they clearly had to put forward the party line. In the three weeks following the referendum, the party line was set by the then Home Secretary: the right honourable Theresa May, MP for Maidenhead. That line persisted through her time as Prime Minister. There was a sense that, however many Members of your Lordships’ House and of the other place called passionately for the rights of EU citizens to be guaranteed immediately, Mrs May was not agreeable to it.
We said that EU citizens should not be treated as pawns, and yet what happened in the negotiations was precisely that: EU citizens and their rights, and the rights of UK nationals by extension, as the noble Lord, Lord Kerr, pointed out, were used as hostages in the debate. It was wrong then; it is wrong now. Three years after the referendum, EU citizens should be certain of their rights, but they still cannot be. I therefore very much welcome the opportunity to have this debate today. I realise that Private Members’ Bills very rarely make it to the statute book, but, as my noble friend made clear in introducing today’s debate, in many ways the issues we are discussing have already come on to the agenda through the Government’s settled status regime.
However, the Bill under consideration today goes a stage further. It would guarantee the rights of EU and EEA nationals. It would do it as a right, not requiring endless form-filling. It has been customary across the Chamber today to talk about the noble Baroness, Lady Hayter, in her absence. She made it very clear, in the previous debate, how difficult it is for people to fill out the necessary forms about indefinite right to remain; there are 80 pages of documentation. For EU citizens wanting indefinite right to remain, there is traditionally the need to say where they have been in the five years since they started being resident here. If you are an EU citizen exercising your right to free movement, your passport will not be stamped if you go back and forth between London and Brussels, or wherever your hometown might be. If you go home to Wrocław, Tallinn or any European city, your passport will not be stamped. Nobody keeps that sort of record. The rules that were in place made it very difficult for people to fulfil the requirements. The proposed settled status scheme is an improvement, but, as noble Lords have made clear, it still requires EEA nationals currently resident here to make applications. There is no automaticity.
I feel some sympathy with the noble Baroness, Lady Barran, for having to respond to this debate, because it touches on a set of issues that are outside the purview of the Home Office. The Windrush scandal has been mentioned. However, these applications have to be made through the Government’s IT procedures, and universal credit has demonstrated some of the difficulties with that. Is the Minister sure that the arrangements put in place for applications will be satisfactory, and is the government IT system fit for purpose? As the noble Lord, Lord Kerr, pointed out, not everyone will be IT savvy, so what arrangements do the Government envisage to assist people who do not have access to the internet? Indeed, is the government software available on all types of mobile device? Those have been issues of concern.
In addition, the recent experience of the European Parliament elections demonstrated the problems even for fairly savvy EU citizens resident in the United Kingdom. Many EU citizens who were on the electoral register were disenfranchised at the European Parliament elections. They voted without difficulty at the local government elections in early May, and three weeks later they turned up at the same polling stations and found that they were disenfranchised. They had failed to fill in an additional form, which some local authorities had informed them about, while others had not. However, if you suddenly get an email from your local authority, you do not necessarily open it and think, “My goodness! Here is a form I need to fill in to be able to vote”. If EU citizens who were seeking to vote and who were sufficiently interested to vote were disenfranchised, the danger is that many EEA nationals will find that, on the day we leave, they have not filled in the necessary paperwork.
The proposed legislation is open and tolerant. As noble Lords have pointed out, it would give the incoming Prime Minister the opportunity to live up to the words of the Vote Leave campaign and to make the situation clear for any EU citizens resident here at the time the United Kingdom leaves the European Union—if it happens on
My Lords, I congratulate the noble Lord, Lord Oates, on introducing the Bill and on his steadfast dedication to protecting our country’s reputation at this vital time.
This is a question not just of the rights of good people who have chosen to work and live in our country but of honour, trust and decency. Are we a country that keeps our word? We have heard from other noble Lords of the unequivocal assurances given to the 3 million EEA nationals who are living here, that they would be automatically granted indefinite leave to remain in the UK, with rights no weaker than now. Instead, as so eloquently described by the noble Lords, Lord Oates and Lord Kerr, and my noble friend Lord Cormack, they are being offered a settled status based on immigration regulations which can be changed by Ministers, and which are not even set in primary legislation. This will offer a code—no physical proof or stamp in a passport—and it must be applied for by a strict cut-off date, so if someone is unwell or unaware and misses the deadline, they will lose out. That is hardly an automatic grant of the indefinite leave to remain they were promised. The House of Commons Home Affairs Committee also supported a declaratory approach, with physical proof of approved rights.
So I add my thanks to the noble Lord, Lord Oates, for producing the Bill, which I fully support, and I urge the Minister on the Front Bench—whom I welcome very much to this debate—to offer, if she can, some words of support or assurance to the House that she will take this seriously and bring it back to the department for further discussion.
As so many noble Lords have said, we should have done this right at the start of the Article 50 process. We have treated these good people inhumanely. They have been subject to uncertainty—we have not taken the moral high ground. So, again, I urge the Minister to relay the desire to act, albeit belatedly, with honour and decency that has been expressed in this debate, to demonstrate that our Government’s words can be trusted—especially at this late stage, when a new Prime Minister will seek to reopen negotiations with the EU, which it has spent so long drawing together and which it has said it is not willing to reopen. I urge the Minister to consider the calls to fast track this piece of legislation now and show good will and appreciation towards the EEA citizens who perform such important work for us all, which should have been present right from the start. The Bill does what would have been needed and what we can still offer in a spirit of good will. It has my full support.
I also add my words of support, as expressed by my noble friend Lord Cormack, to the noble Baroness, Lady Hayter, for all the work she has done, and I express my regret at the way she has been treated, notwithstanding that I welcome the noble Lord, Lord Kennedy, who is here today.
My Lords, some hundred yards down the road from my cathedral in Rochester there is an establishment known variously as La Providence or the French Hospital. It is an alms house-type foundation established for those of Huguenot descent. After it was bombed out of its previous premises in the 1940s, a predecessor of mine, the late Bishop Christopher Chavasse, who was himself connected with that community, found premises for it in Rochester—and that is where it remains. That building, which I walk past several times a week, is for me a kind of visual reminder of the spirit of generous welcome shown to that earlier generation of European migrants.
Like other noble Lords, I welcome the Bill and thank the noble Lord, Lord Oates, for bringing it forward. It seems to seek to give practical and statutory expression to that spirit of generous welcome which I referred to, and what it proposes has the benefit of fairness and simplicity: the presumption that a person should be here, and that being here they should remain—in contrast to the scheme we now have where, as others have indicated, whatever its intention, it can feel as if it starts from the opposite presumption, and people are having to prove that they should be here.
These matters are of particular concern to my friends in the Roman Catholic community. The Catholic Bishops’ Conference of England and Wales estimates that, of the 3 million, some 60% would claim some form of Catholic connection or heritage, or active practised faith. However, even in my own Church of England diocese, despite being part of an English Church, I have clergy who are European nationals, and clergy spouses who are European nationals and who are having to go through these processes, and I find more and more people in my congregations—200-plus congregations across west Kent and south-east London—who are EEA nationals, brought here very often for work purposes. They indulge me by allowing me to speak French to them occasionally in various congregations around the place—and German, at which I am rather less proficient.
These are among the people who are making hugely valuable contributions economically and socially in our society, as other noble Lords have already observed. Like the noble Lord, Lord Cormack, I had cause to be treated by the NHS earlier this year, and the consultant who looked after me post surgery was a Polish Catholic who has been here for 30 years—just one example of the kind of people who have committed themselves hugely to the life and well-being of our nation and people.
Many, such as that gentleman, have been here for decades, or even generations. Many are, as we know, closely related to British citizens. We need these folks and it behoves us to make it as easy as possible for them to stay. Indeed, there is an argument of national self-interest here: if we do not make it easy for them to stay, we may be the ones who suffer.
I have a particular question for the Minister to which I hope she will be able to respond. It has been brought to my attention by the Children’s Society and concerns those children and young people who are looked after—who are in care—when we leave the EU. If the noble Lord’s Bill were to pass, it would automatically include them and give them the right of abode. Can the Minister give some assurance about how those incredibly vulnerable children and young people will be treated even if the Bill does not pass?
We have already heard about the complexity of the documentation required. For some of those young people, it is almost impossible to find the documentation to secure the right to remain. There is evidence that local authorities, who are responsible for them—in part, no doubt, because of resource issues—are not always pursuing applications on their behalf, where that is necessary, with the alacrity needed. Legal advice in these cases can be complex and hard to come by. I hope that for this group of vulnerable people in our midst, for whom we have a particular responsibility, the Minister may be able to give some assurance as to how things will stand.
If my noble friend looks at the list, he will find that we were hoping to hear from the noble Viscount, Lord Waverley.
My Lords I was in two minds about the need for the Bill brought by the noble Lord, Lord Oates, as I was unsure how elements were different in their effect from what the Government have already guaranteed through the pre-settled and settled status scheme. However, listening to the noble Lord’s introductory remarks, and given the current vagaries of the political arena—and this is a political matter—I have been persuaded otherwise.
It has always been a source of constant amazement, tallying the anomaly of decision-makers professing a global outlook for this country while being insular in approach. Not much need be said in support of the Bill, as it is not as if, from the word go, the Government have not been counselled—in this place and elsewhere. We all want the best for the UK, but—the noble Lord, Lord Kerr, captured the situation—we should be magnanimous and practical, we should consider the national interest, we should consider the uncertainty it causes and the plight that further uncertainty would cause, we should not fall foul of moral ineptitude but beware not to create a latter-day partition of sorts—not our finest moment.
Obstacles to working this out are time, political will and legal uncertainty—to which I may add that personal experience of the immigration decision-making process taught me that there is ill in the system. The rights situation and precarious status should be removed. It ill befits a country that prides itself as a global leader.
It should be noted that a number of EU countries—in my case, Portugal—have rightly acquiesced on citizens’ rights, whatever the UK’s upheaval. Who knows? It may well be that the UK will want to ally itself strategically to the EEA and EU in one form or another—so best not to upset the apple cart with aspects identified by the noble Lord, Lord Oates.
I ask for clarification on one point for the record: the question of who constitutes a family member who could accompany. The Minister may wish to comment on that point.
In conclusion, the time to address this is now. For reasons I have put before the House and so as not to leave anything to chance, I commend the Bill and encourage your Lordships to fast track it to the next stage.
My Lords, I again apologise to the House for speaking out of turn. The last time I did it was about 24 years ago, to another Viscount—the noble Viscount, Lord Falkland—and I would like to state that both noble Viscounts are very good friends of mine.
I congratulate the noble Lord, Lord Oates, on introducing his Bill today. I admire his clarity and care, shared with other noble Lords, in saying nothing that I do not wholeheartedly agree with. I also approved of his tone.
I am deeply Eurosceptic, but I voted remain because I wanted to preserve strategic stability in Europe. The EU was and is reformable, but it was too difficult to do. Finally, I considered: what did President Putin want us to do? But I am content that we leave with a deal. I strongly support the Bill. Like my noble friends Lord Cormack and Lady Altmann, I am ashamed that my party and this Government have not already legislated, as suggested by the noble Lord. What a perfectly rotten message to send to our EU friends. The noble Lord, Lord Kerr, called it a glaring negotiating error. I absolutely agree. The concession would have cost us almost nothing to make and was inevitable at some point, but it would have set a positive tone.
Several weeks ago, my Romanian taxi driver complained about the application process and its cost. I have to say that I lacked the moral courage to tell her that I was government spokesman for all immigration matters in the House of Lords in 2010 and 2011 and was a Conservative politician—but I can make up for that a bit this afternoon.
I believe that if you are legally in the UK, you are part of the club for as long as you want to be. It is okay to take the view that the UK population is rising too fast and decide to choke off the inflow—but it is not okay to unfairly penalise those who came here legally. We need to remember on immigration that migration is fiscally positive, that free movement allows economic upturns and downturns to be accommodated and that an increase in migration will, generally speaking, give us an increase in GDP. However, we also need to remember that it does not necessarily increase GDP per capita. That might be part of our problem with it.
I have one question for my noble friend. Post Brexit, which EU state will become subject to visa controls? France, Germany, Spain, Italy, Belgium, Holland or Portugal? I think not. So which of the other states will it be?
At some time in the future there will be an immigration Bill. The drafting of this Bill is an obvious amendment to insert in any such Bill. It is not clear to me how the Government would be able to resist such an amendment. As it is a Friday afternoon, the most powerful contribution I can make now is to sit down.
My Lords, I too thank my noble friend for putting into legislative form a mechanism to enable those citizens to whom we want to say, “We’re so glad you’re here, please stay”, to stay without encountering the problems that have been and are the subject of such concern and anxiety. In that sense, in “Please stay”, perhaps we have another form of remain—certainly something that is humane, as the noble Lord, Lord Kerr, said. I wish I could be confident that it would find its way onto the statute book: I have less confidence about that than the noble Lord, Lord Cormack. I say that as the sponsor of a Bill introduced in this House in June 2017 and passed by the House in July 2018—since when I have written down, “dot, dot, dot”. But it gives us the opportunity to fulfil reassurances and pledges given in 2016—as a matter of honour, as the noble Baroness, Lady Altmann, said—and to raise some weaknesses, which, the more one considers the settled status scheme, the more one becomes aware of.
Ministers say at every opportunity that they want to find reasons to accept, not reject, applications. By definition, an application-based scheme is bound to lead to some rejections; my noble friend Lady Smith made that point. The Bill is rights-based, which is much more appropriate for a country concerned to uphold the rule of law. It can also be a safety net for the current scheme, as has been pointed out.
Earlier this week, some Members of the House were at a discussion arranged by the Bingham Centre for the Rule of Law about this model of administrative justice, which has at its heart automation—the rule of technology, not law. The work that was reported was on the settled status scheme, but the point applies more widely. I know that caseworkers—human beings—are involved in the scheme, but it represents the acceleration of a trend towards quick justice at the expense of important safeguards, and therefore has wide and lasting significance.
I will quote the conclusion of the Public Law Project’s report; noble Lords will understand that there is a lot of analysis behind it. It comments on the,
“growing gap in individual experiences of administrative justice. For those who get positive outcomes, they will—likely with the growing support of increasingly advanced and integrated technology—get their positive outcomes more quickly. This could be a great benefit, reducing the problems associated with waiting and delay. For those who do not get positive outcomes, however, their fall is less likely to be protected by effective redress and support systems. For those in a position of social and economic advantage, there is a greater possibility of accessing high-quality advice services to cushion the fall. For those in a position of social and economic disadvantage, the landing is likely to be much harder. Given the impact that an incorrect immigration decision can have on the lives of individuals and families, this effect ought not to be underestimated”.
It is fundamental to, and a crucial part of, the Bill that there is no cut-off date. Under the settled status scheme, an EU national who does not apply during the operational period will become illegally resident. The EU Justice Sub-Committee of this House, of which I am a very new member, is interested to know how the Home Office will deal with these people, who will range from prisoners—I understand that none of the organisations funded by the Home Office to assist applicants works in prisons—to people who have been granted pre-settled status and do not take it further.
As noble Lords have observed, it seems that pre-settled status is currently given in most cases when an application for settled status does not succeed. The Minister for Immigration told the sub-committee that the Home Office would consult the Cabinet Office on how best to “nudge” people who need to convert. The likelihood of misunderstanding—“I’m okay now, I’ve got status”—among people whose status is actually a precursor to settled status, is very high. We also heard that the Home Office will not agree to a physical document, because a computer record is the “most secure” form of evidence. “Digital first” has become “digital only”—and I do not need to refer to recent history here, which noble Lords have mentioned and which we could all talk about with considerable emotion.
I dislike the term “vulnerable”. To me, it sounds patronising, but it is widely adopted. The Public Law Project refers to people,
“in a position of social and economic disadvantage”.
I refuse to accept that elderly people are, by definition, vulnerable, and I think that the House will support me in that. Under the government scheme, people who we know fall into that group will, if they fail the application test—and many of them will struggle with it—become vulnerable to the Government’s policies. Whether hostile or compliant, or whatever you call them, these policies will affect you badly. People will be denied access to services and will be at risk of deportation.
Obviously, looked-after children and young care leavers fall into that category, and the right reverend Prelate drew our attention to that. I congratulate Coram Children’s Legal Centre and other organisations on the work that they undertake on this subject. In the time available, I can mention only a few of the issues that they have identified. One is the suitability criteria: is the applicant suitable for status? To quote a recent Coram report:
“Statistically, looked after children and care leavers are more likely to engage the suitability criteria than other children and young people”.
The report refers to the number of children aged over 10 who were looked after for at least a year and who have been,
“convicted or subject to youth cautions or youth conditional cautions”.
The Department for Education recognises these figures. The report also states:
“These children and young people will need to receive advice on the impact of any criminal record on their settlement scheme application before an application is made”— and I want to stress those last five words. Looked-after children and care leavers will also need advice on nationality routes. They may have complex cases that fall outside the competency of an adviser accredited to the basic level introduced by the OISC for the scheme.
Then there are children who are eligible for the scheme but who do not have evidence of nationality or length of residence. Coram gives a number of case studies, such as that of Joao:
“Joao is a child whose estranged father is Portuguese. Joao’s mother (who holds a passport from Guinea-Bissau) fled his father, who was violent, in 2014. Joao’s mother has a biometric family member card that was issued in 2014 but Joao has no documents at all. The agency supporting Joao and his mother advised absolutely no contact between Joao/his mother and Joao’s estranged father due to the previous violence. Joao is unable to get a Portuguese passport without the active participation of both his parents in his nationality registration application”.
I could give a number of other examples, but in view of the time, I will not do so.
I will, however, refer to some of the recommendations made by Coram. It states:
“The Home Office should consult with the EU Commission on problems with accessing nationality documents and should have regard to its findings in guidance produced for both local authorities and for caseworkers on the exercise of discretion”.
It says that,
“the government should consider introducing a separate system that would ensure all children in the care of local authorities and care-leavers are granted settled status without having to meet the requirements of the EU settlement scheme”.
Reference is made to the statement of intent and to the fact that,
“the government ‘will accept alternative evidence of the EU citizen’s identity and nationality where the family member applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons’, but further guidance on what constitutes compelling practical or compassionate reasons is required. Where necessary, the Home Office should take a pragmatic, flexible approach”.
I hope that the Home Office is familiar with all the recommendations made by specialist organisations, which identify the complexities of the scheme. The numbers affected may be small—although as the noble Lord, Lord Kerr, pointed out, they may not be that small—but each person affected is an individual to whom we have a responsibility.
The Home Office wants to find reasons to accept. My noble friend’s Bill gets much nearer to achieving what most of us understand that to mean, having not necessarily initially understood the implications of the term “accept”. The Bill is much more inclusive to our friends, co-workers and fellow citizens, an approach that all noble Lords want to see, both for other EU citizens—I can still call them that—whom the UK says are welcome and for the 1.3 million UK citizens elsewhere in Europe. Like other noble Lords, including the noble Earl, I share a sense of shame at the position we are in the moment.
My Lords, I welcome the Bill proposed today by the noble Lord, Lord Oates. I also agree with the noble Lord, Lord Cormack, that this could have been fast-tracked through this House as other legislation has been and it is shameful that we have not made that generous offer that so many of us talked about in this debate. We live in hope that the new Prime Minister will listen to this debate and act swiftly in the next couple of weeks.
The noble Lord sent his best wishes to my noble friend Lady Hayter, who I count not just as my noble friend but as a dear friend. I first met my noble friend Lady Hayter in the early 1980s, when we were both active in the Labour Party in London. She has had a distinguished career outside this House—a considerable amount of it in and around the labour movement, including working in Europe for many years and as general secretary of the Fabian Society. I also worked closely with my noble friend when she served on the National Executive Committee of the Labour Party and as chair of the Labour Party, which she was very proud to be. At that time, I was the director of finance for the Labour Party and part of the senior management team. Towards the end of Governments, they become unpopular, money gets tight and the party membership goes down. My noble friend and other colleagues in my team worked to ensure that we got through some very difficult days, making sure that the party continued to function properly. The party owes my noble friend a great debt of gratitude for all she has done.
My noble friend is also one of a small group of Labour and Co-op Members of the House of Lords—about 18 of us. I do not know whether noble Lords know this, but the whole leadership of the Labour group here is all Labour and Co-op—the Opposition Leader, the Opposition Chief Whip and the deputy are all Labour and Co-op. The Co-op Party is very proud that the leadership of the Labour Peers are all Labour and Co-op. I am delighted that she remains Deputy Leader of our group. She was re-elected unanimously only last month and I wish her a speedy return to the Front Bench, where she enjoys the support not just of our party but of noble Lords across the House. I am delighted to be here today but I am not looking for any more jobs on this side. The worst day was when there were three government Statements from three Ministers and it was always me responding. I said, “Carry on, it’s me again”. I have more than enough jobs on this side of the House and I look forward to my noble friend being back soon.
I agree with the noble Baroness, Lady Hamwee, that it is likely that this measure will get only this far in parliamentary proceedings. We will have the new Prime Minister next week and we are already hearing reports of a Queen’s Speech and attempts to shut Parliament down, so I fear that the Bill make no more progress. That is regrettable. The Bill has much merit and should be supported.
I think we would also agree that, no matter which way one voted, Brexit has been a total car crash—a shambles in terms of delivery from day one. It does not matter how you voted; it is an utter shambles. I have lost count of the number of ministerial resignations that can be attributed to Brexit—there was apparently another a couple of days ago. They just come and go now and hardly get reported in the media. It used to be a matter of news on the BBC that a Minister had gone but that does not seem to happen any more. We have been left a laughing stock around the world.
The Bill is simple and straightforward and provides for EEA nationals who are resident along with their families on the date of exit of the EU the right of abode here in the UK. It is important that the noble Lord, Lord Oates, reminded us of the pledge made by Boris Johnson, Michael Gove and Priti Patel, and his Bill simply enables them to honour the pledge they made. I also associate myself with the comments of the noble Baroness, Lady Altmann. It is a question of honour and of trust. It is a question of behaving properly and of our standing in the world. I also associate my comments with those of the noble Earl, Lord Attlee, as I do with those of every other speaker in today’s debate.
The Government have their scheme, which is better than when it started out although not by much. I welcome the decision to scrap the fee, taken a few months ago. But as the noble Earl said, the scheme has many flaws and risks seeing many people left in a precarious position. The noble Earl set out those flaws. I understand that the right of abode is different from settled status and indefinite leave to remain, but my biggest concern is the risk that we could have another Windrush-type scandal at some point in the future. I am sure the Minister will tell us that that will not happen and we should not worry: it will all be fine. But none of us can predict the future. All we can do is look at the past and the record, as a pointer of future outcomes. If we do that, the prognosis is not good.
The right reverend Prelate the Bishop of Rochester was right when he said that the Bill has fairness and simplicity at its heart. I am the son of immigrants. My parents are both Irish and came here to find work in the 1950s. I know that Irish people have a different status from other European nationals in this country, but they are immigrants. I am the eldest son of immigrants. I was struck by the point that the right reverend Prelate made about the Catholic community. I went to Catholic school—primary school in Camberwell and secondary school in Peckham. The parents of the children there were Irish, Italian, Spanish or West Indian and there were a few Africans. I remember the names—the Giuseppes, Luigis, Patricks and Paddys and all sorts of names, but not many English names. That is what we were. I remember Marys, Siobhans and Margarets from junior school. That illustrates the right reverend Prelate’s point. All these people came here to find work and made contributions to our country, and they were welcomed.
My mum was a nurse for many years and my dad became a black cab driver. My mum ended her working career in the Members’ Tea Room in the House of Commons for many years, serving cups of tea to many Members of this House who were at one time in the other place. Immigrants come to countries and make a fantastic contribution and we have not made them feel very welcome in recent years. That is very regrettable.
I thank the noble Lord for bringing this Bill back to the House today. It is ridiculous that we have waited two years for it. That highlights to me that we must deal with Private Members’ Bills better in this House. We have some wonderful Bills that receive Second Readings and then we are told that they will be committed to a Committee of the whole House. But they could go into Grand Committee. We could have a Grand Committee sitting today to consider other Bills, but we cannot do that. It is ridiculous, and we need the Government to think about that. If we are to have 40, 50 or 60 Private Members’ Bills, the House should facilitate that and make more progress. I hope that when we get the new Government, they will do that.
I thank the noble Lord for bringing the Bill forward and I look forward to it making progress, but I am afraid I am rather sceptical that it will.
My Lords, I start by echoing the regret voiced by a number of noble Lords at the absence from the Front Bench of the noble Baroness, Lady Hayter. She was one of the first people I met here, because she was supporting the noble Baroness, Lady Bryan, and we were introduced together. She was incredibly warm and friendly then, but I have since witnessed her forensic analysis of legislation and her dignified leadership of the Benches opposite, so I share other noble Lords’ sentiments and hope we see her back on the Bench opposite soon.
I turn to the Bill before us. Since the 2016 referendum, securing the rights of EU citizens in the UK, and those of UK nationals in the EU, has been the Government’s priority, and we are delivering on this commitment. Much of the debate today has centred on questioning the solidity and robustness of that commitment, and I will do my best in the time available to reassure your Lordships that this is indeed the case.
EU citizens have immeasurably enriched this country and our way of life, as noted by my noble friend Lord Cormack. Like the noble Lord, Lord Kennedy, I also had two parents who were immigrants, from slightly further afield but both European, and went to a Catholic school—not the same school as him, but with plenty of similar names.
The Government absolutely share the desire of the noble Lord, Lord Oates, to secure their rights of EU citizens here in an inclusive, accessible and robust way. In my response I will try to cover five areas: the applicability of the right of abode to EEA citizens as currently drafted in the Bill; the relative inclusivity of the EU settlement scheme compared with the Bill; the scheme’s progress; the issue of physical documentation, which a number of your Lordships raised; and, finally, some of the risks implicit with a declaratory system.
The EU settlement scheme has been created to ensure that every EU citizen can secure their right to remain here, whether or not there is a deal to leave the EU. Settled status, or indefinite leave to remain, granted under the scheme provides the holder with the same access to benefits, education and healthcare as those who currently acquire permanent residence under EU law.
Granting a right of abode, as in the Bill, would be inappropriate and unnecessary. Not all British nationals have a right of abode in the UK—only British citizens, together with certain Commonwealth citizens. Others, such as British Overseas Territories citizens, do not have an automatic right of abode, so extending a right of abode to other groups of non-British nationals would mean they have more rights than some British nationals. In common with other Governments over time, we believe this would not be appropriate.
Turning to the scope of protection, we believe that the Bill potentially offers less protection to EU citizens than the Government’s approach. I acknowledge that that is the last thing the noble Lord, Lord Oates, is intending, but that is our analysis. Those applying under the EU settlement scheme are not generally required to show they meet all the requirements of current free movement rules. The UK has decided, as a matter of domestic policy, that the main requirement for eligibility under the scheme is continuous residence in the UK. The noble Baroness, Lady Hamwee, questioned this approach, but I hope noble Lords will agree that the principle of residence is relatively simple. By contrast, under the Bill a person would have to be lawfully resident here—that is, exercising their treaty rights under EU law. This could take many thousands of people out of the scope of protection, including those who are not economically active or self-sufficient and many vulnerable people who may not be exercising their treaty rights here.
I pause on that point, because the noble Lords, Lord Oates and Lord Kennedy, the noble Baroness, Lady Hamwee, and potentially other noble Lords talked about the risks of vulnerable people. Whatever language we use around vulnerability and whatever approach we follow, those groups are the most at risk.
The noble Viscount, Lord Waverley, asked for definitions of family members. There are slightly different definitions in the EU settlement scheme and the Bill, so in the interests of time I hope that he will accept it if I write to him and set out both.
I will now update your Lordships on progress with the EU settlement scheme. The noble Lord, Lord Oates, questioned whether we would be able to reach the 3 million or 3.6 million people we believe are eligible. I am pleased to say that the scheme is running successfully. It was launched fully on
The noble Lord, Lord Oates, asked about pre-settled status for those who applied for settled status. We know that 35% of people have been granted pre-settled status, but we do not know what percentage of them applied for settled status. I stress that no application has been refused. I think that is significant when we are at nearly one-third of the figure.
I share the natural scepticism of the noble Baroness, Lady Smith of Newnham, about government IT schemes —I am not sure I am allowed to say that, but it is too late—but this case may be the exception that proves the rule, based on the data we have so far. She also asked about being able to use an iPhone. One can complete the online application on a smartphone, tablet, computer or laptop. The identity verification app, which I think the noble Baroness was referring to, is currently available only on Android devices, but my right honourable friend the Home Secretary has confirmed that it will be available on Apple devices later this year.
The noble Lord, Lord Kerr, and my noble friend Lord Cormack talked about levels of anxiety—I think my noble friend used the term “peace of mind”—about one’s ability to stay in this country. Currently a straightforward application is being dealt with in between one and four days. I acknowledge the anxiety that people might feel, but the process is speedy. I am slightly anxious that the noble Baroness, Lady Hamwee, put the Government in a no-win situation. We are doing it quickly, but she rightly raised a question about whether automation carries risks with it. I think we would prefer to err on the side of a speedy response for those who are waiting for one.
A number of noble Lords asked about help for vulnerable individuals. We are committed to helping vulnerable individuals to obtain their status under the scheme. We have awarded up to £9 million to 57 voluntary and community-sector organisations across the UK to help us reach the estimated 200,000 vulnerable or at-risk EU citizens and help them apply. We are also working closely with local authorities and others to ensure we reach looked-after children, who were mentioned by the right reverend Prelate the Bishop of Rochester and the noble Baroness, Lady Hamwee. Local authorities are empowered to apply on behalf of looked-after children and they have been granted sufficient funding to have the capacity to do so. Additional support is available to those who do not have the appropriate access, skills or confidence to apply online.
There has been much debate about physical evidence of settled status. Those granted status under the scheme will be given a secure digital status as part of moving to the system of digital by default. EU citizens will not be issued with a physical document. Unlike many EU countries, the UK does not require people to carry an identity document. Those granted status under the scheme can access this via a secure online service. They can control who they wish to share that information with to demonstrate their status and to exercise their rights. We believe that digital status is more secure. It cannot be lost, stolen or tampered with and is more easily used by people with some disabilities.
In common with the approach advocated by some groups, the Bill would create a declaratory system. As all noble Lords noted, the Government do not agree that conferring leave to remain automatically, by statute, under a declaratory system is the right approach to securing the status of resident EU citizens and their families. A number of noble Lords, including the noble Lord, Lord Kennedy, touched on the experience of members of the Windrush generation. They were granted indefinite leave to remain but without the means of proving that status. We are very anxious not to make the same mistake again. We are concerned that even if we ran a scheme in which, as the Home Affairs Select Committee recommended, obtaining proof of status was conferred by law with an option to apply for physical documentation, it could cause confusion among employers and service providers and impede EU citizens’ access to benefits and services to which they are entitled.
The Government’s approach provides resident EEA and Swiss citizens and their family members with clarity and certainty about their status here. We have already confirmed that, deal or no deal, the EU settlement scheme will continue to operate. I hope that helps to reassure my noble friends Lord Attlee and Lady Altmann, who expressed concerns about this. The Government have made it clear that anyone with reasonable grounds for missing the deadline will be allowed to make a late application.
The noble Lord, Lord Kerr, was concerned about the risk to children. The spirit of the Government’s work in this area is that of creating a fair and compassionate system—we are not seeking to criminalise children.
The Government recognise the invaluable cultural, social and economic contributions that EU citizens make to the UK and as part of many of our families. Quite rightly, we have made generous provision to protect the status of those who have made the UK their home. I of course understand that the Bill seeks to protect those people. However, as I have tried to set out, the mechanism whereby it seeks to do that is not one the Government can support, as we believe that it could create difficulties for those same people and their families in the future. We continue to believe that the EU settlement scheme provides an inclusive route for EU citizens to secure their lives in the UK.
My Lords, I thank all noble Lords for having taken part in this debate and for the long-standing commitment of many of them. As well as my noble friends on these Benches, I particularly note the commitment that has been shown on the issue of EU citizens’ rights by the noble Lords, Lord Cormack and Lord Kerr, the noble Baroness, Lady Altmann, and the right reverend Prelate the Bishop of Rochester. I am also grateful for the support of the Labour Front Bench. In previous debates when I have spoken on this issue, many Labour Peers have also been passionate in their support.
I share the deep regret and sense of shame expressed by many noble Lords that the Government have allowed the issue of EU citizens’ rights to suffer such uncertainty since the referendum. I thank the Minister for the courtesy of her response but, I am afraid, not for the complacency of it. Perhaps I may tackle some of the points that she raised.
First, the Minister made the point that in some ways the residency criteria in my Bill are more restrictive than under the current settled status scheme. To that, I say that this Bill was constructed two years ago. In Committee I will be very happy to work with the Government while they fast-track the Bill to ensure that those criteria are reflected as widely as possible. However, the real point of the Bill and the real need for it were set out by the noble Lord, Lord Kerr. It is—we should be careful about using this word—a backstop or guarantee to underpin people’s rights and ensure that their status in this country is based on eligibility, regardless of the cut-off date.
The Minister also tackled the question of physical proof of status—an issue raised by many EU citizens as a matter of concern. She said that digital status is more secure. Of course, there is no reason at all why there cannot be digital status with an accompanying document. The Government really should think about that, particularly in the context of groups of people who are less comfortable in the digital sphere and will be very nervous about it.
The Minister gave us reassurances that it is not the Government’s intention to round up children or anybody else. Of course, I take that point and her reassurance, but who knows who the Government will be in a week, a month or a year? The history of Windrush and so on does not give anybody any confidence that people will not be mistreated.
Sometimes it seems that the Government have no idea at all of the devastating personal impact that their failure to uphold the pledge to automatically grant indefinite leave to remain has had on people’s lives. I detected that a bit in the Minister’s response, although that is no personal slight, as I am sure the Government provided that response. For example, just today I heard the example of an 80 year-old woman—an EU citizen who came to this country in 1964, has lived here ever since, brought up her family here and contributed to her local community. She was in floods of tears this weekend as she filled in an application form, without which her presence in the country that is her home will become unlawful at the stroke of midnight in less than two years’ time. That scene will be played out in thousands of homes across the country. It brings shame on all of us, but it is something we can and should do something about.
“I think what we should do is take the provisions on citizenship, take the offer that we made to the 3.2 million EU citizens in our country … do it of our own accord, pass it through Parliament”.
Given this implicit endorsement by the future Prime Minister, I trust that the Minister will be able to revise her position and join me in commending my Bill to the House.
Bill read a second time and committed to a Committee of the Whole House.