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My Lords, I thank all noble Lords who have spoken in the debate on this group. I take note of the words of the noble Lord, Lord Warner, about the 500 civil servants who could end my career—I am surprised I have lasted so long, given that there are so many people out to get me.
I commend noble Lords for what they seek to achieve in their amendments, because they do not seek to achieve anything different from the Government: to reassure those highly valued EU citizens already resident here that they will have the right to remain after exit. However, the amendments take a slightly different approach to getting there, and we think they undermine the whole approach under the EU settlement scheme in the creation of a declaratory system.
Under the proposed new clause in Amendment 2, EU citizens would be able to apply for a document confirming their residence status if they wished, but would have to provide evidence of their rights if they wanted to access benefits and services. This is inconsistent with our international obligations under the withdrawal agreement. Alternatively, the proposed new clause in Amendment 3 would make provision for rights to be automatically conferred and enable EU citizens to register for a document confirming their residence status only if they wished to do so. This change in approach would cause confusion and uncertainty among the very EU citizens who we are trying to protect, including the over 2.8 million people who have already applied under the EU settlement scheme.
After the implementation period, free movement will end and those who are not British or Irish citizens will require a UK immigration status to enter and reside in the UK. The EU settlement scheme is a vital part of transitioning the UK from free movement to a new points-based immigration system which starts in 2021. The UK’s immigration system has long been predicated on individuals applying to the Home Office to be granted leave to enter or remain, under what we call a “constitutive” system. A requirement to apply for an individual status by a deadline provides a clear incentive for EU citizens living here to secure their status in UK law and obtain evidence of it.
By contrast, a declaratory system, as proposed by both the amendments and under which individuals automatically acquire an immigration status, would significantly reduce the incentive to obtain evidence of that status. This risks creating confusion among employers and service providers, and inevitably would impede EU citizens’ rights to access benefits and services to which they are entitled. Notwithstanding the protections that the proposed new clause in Amendment 2 seeks to provide, such an approach could also lead to EU citizens who had not applied for documentation suffering inadvertent discrimination compared with those who had.
This must be giving your Lordships déjà vu, because this is exactly what happened to the Windrush generation. The Government are adamant that we must avoid a situation in which, years down the line, EU citizens who have built their lives here find themselves struggling to prove their rights in the UK.
The approach suggested in the amendment is also unnecessary. Managing the end of free movement in the UK and the transition for resident EU citizens has been an absolute priority. We believe that the current constitutive approach under the EU settlement scheme is the right one. The proof of the pudding is that it is already working well.