My Lords, I am grateful to all noble Lords who have taken part in this debate. This discussion, and even the confusion from the Dispatch Box about some of the rules, demonstrates the issues that are going to be faced by EU citizens if there is not even clarity in this House.
I want to pick up on a number of points. The noble Lord, Lord Hamilton, talked about reciprocity. As the Minister has explained, Part 2 of the withdrawal agreement, on citizens’ rights, applies equally to UK citizens in the European Union. I was a little astonished because I thought I heard the noble Lord arguing for free movement. He is notably not a pro-European so I am a little baffled by that. I can only guess that because, I understand, he has Liberal politicians in his ancestry, perhaps he has a genetic disposition to Europhilia that he cannot escape from.
A more serious point is this: the current Prime Minister and Home Secretary made a categorical, unequivocal commitment to European Union citizens. It was not based on whether the EU did this or that; it was a categorical statement. The noble Lord, who sits on the Conservative Benches, seems to be saying, “It’s absolutely fine—we should use EU citizens as bargaining chips”. I am glad that the Government have not done that; it is absolutely the wrong approach. All the bodies representing UK citizens in the EU that have been in contact with me and, I am sure, many other noble Lords in this House have always made the point throughout these negotiations that Britain should act early and unilaterally. I am glad that we did eventually but goodness me, it took a long time.
The Minister said that it was a very noble decision of the former Home Secretary to waive fees on this scheme. I find that an astonishing statement. EU citizens had rights in this country that they were going to lose as the result of a referendum in which they had no say whatever, and then we were planning to charge them for the privilege of retaining any rights. To call it “noble” to not charge them I find astonishing.
Physical proof has been discussed at length. The Minister said that two systems would confuse people. It is not two systems—it is one system that has a digital output and a physical one. That is pretty common and it is not confusing. While the Minister says we should not have these two systems because they are confusing, she then tells us that we do have two systems: the European Union settled status scheme and the permanent residence scheme. If we want to avoid confusion, perhaps we should address that point.
The noble Lord, Lord Warner, made the important point that we have to live in the real world of how these things work. I know this from experience because my partner is not a citizen of the UK—not a citizen of the EU, I should say—but a citizen of the United States. He has in his passport his permanent residence stamp that he can show to people. That is quite a simple thing and I am sure that we could apply such a system as well. Doubtless, it is also on an official computer system somewhere—I hope so.
We have had real examples of these digital systems going wrong, as in the case with the United States. When we first used to go to the United States, my partner was detained on every single occasion, even though he was an American citizen. Apparently, there was somebody with the same name on the Department of Homeland Security no-fly list. He was detained every time. He was not the person and looked nothing like the person. After the poor officials had been through the process, which usually took about an hour, they would say, “Well, you’re not the person.” He said, “How can I stop this?” They said, “You can’t. It is the computer system.” Eventually, the Department of Homeland Security thankfully came up with a scheme, issuing him with a letter which effectively says: “This is not the guy you are looking for.” It has changed our lives, because we now go through and it is fine. He gets the letter out and they go, “That’s great, thanks.”
In this country, we are sending all the people who have settled status a letter that says they have settled status, but the letter also says that it is not proof of settled status. It is a crazy Kafkaesque world. Obviously, a letter on its own is not enough; you need some documentation with watermarks or whatever. As I said, we do this at the moment with indefinite leave to remain status. It is not beyond the wit of this Government to do it. European Union citizens ask for this on a wide scale, as they are extremely concerned. It is particularly concerning for elderly EU citizens. I do not like to think of my elderly relatives being told first that they have to apply for the right to live here, having done so for maybe 40 years, and then being told, “You’ve got it but this piece of paper we’ve given you doesn’t prove it. It is on some system in the cloud.” I ask the Government and their Ministers to please think about the human experience and, as the noble Lord, Lord Warner, says, to live in the real world. I hope that the Government will take this back and really think about it. This is not a partisan point but a genuine appeal. Please can we look at this again?
On the declaratory principle, we have been told by the Minister that, in a way, we do not need to worry too much because after the registration date has passed, there will be some bases on which people will be given a further opportunity to apply—the Minister explained why she did not feel she could list them all, but she gave some examples. However, this will of course be entirely a matter of discretion; the courts will probably interpret what a good reason is. Simply not having been aware, for whatever reason, of the importance of meeting that deadline will not be seen as a good reason—we know that. However, we do not know the following: if somebody is allowed to apply after the date because they were hospitalised during that time, for example, and the Home Office—hopefully—regards that as a legitimate reason, is there clarity about their payment during the period in hospital when they were an illegal resident? If they were not legally resident, who is responsible? Do they have to pay during that period? As I understand it, even if the issue is corrected and they are given residence, it is not backdated.
The Minister said that we do not need to worry because people who do not meet the registration date and therefore become illegal residents in this country are not illegal on the same basis as people who had come into the country illegally. If they are breaking the law but in a different way, I am not sure about the reassurance on that. Are they breaking the criminal law or is it a matter of civil law? Where is the reassurance? To be told you are breaking the law in a different way does not seem terribly reassuring.
We know that mistakes are made in systems all the time. That is why the declaratory system will allow that leeway. We have had examples of people resident in this country for 15 years being given pre-settled status, entirely wrongly, so we know that mistakes are happening. It may well be that only five people have been refused under the scheme but 40%—or more on the last figures, I think—have been granted pre-settled status and not settled status. That is a materially significant difference. If you are offered a job, maybe on a contract to work for three years outside the country, but have pre-settled status you cannot go because you would lose your rights.
The final point is about putting these rules into primary legislation, which is such an important issue. Because of all the back-and-forth and bad faith on this, it really is important that people are given that reassurance. I fully accept that the Minister has told me that the problem with putting the rules in is because I do not have the amendment exactly right. I am very happy to sit down with her and her colleagues on this. Let us get it right and put it into primary legislation to reassure people. It cannot be that hard to do and the unwillingness of the Government to put this into primary legislation, particularly given that senior Ministers have already not lived up to their commitments, is a matter of great concern.
Both these amendments raise incredibly important points. I ask the Government to go away and think about them in a non-partisan way, from the point of view of the human beings who are having to deal with this situation. I really hope that they will take them on board and with that, I withdraw my amendment.
Amendment 2 withdrawn.
Amendment 3 not moved.
Clause 7 agreed.
Clauses 8 to 10 agreed.
Clause 11: Appeals etc. against citizens’ rights immigration decisions