Amendment 1

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (1st Day) – in the House of Lords at 4:15 pm on 7th September 2020.

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Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 4:15 pm, 7th September 2020

My Lords, I thank my noble friend Lady Neville-Rolfe, supported by the noble Lord, Lord Green of Deddington, for her thoughtful amendment. I understand noble Lords’ concern about the repeal of EU law relating to free movement set out in Schedule 1 and how that will be enforced. Before I address that, I want to pick up a question from my noble friend Lady McIntosh of Pickering, who wanted confirmation that the Bill was non-discriminatory. The whole point of this immigration Bill is that the whole world is treated the same, so I can confirm that.

Schedule 1 sets out a list of measures to be repealed in relation to ending free movement for EU, EEA and Swiss citizens, with the intention that both EEA citizens and their family members will fall within the scope of the Immigration Act 1971 and become subject to the UK’s immigration control—for ease of reference, I will refer to this group as “EEA citizens” during the committee debates. This will create a level playing field for EEA and non-EEA citizens. Those EEA citizens and their family members who arrive here after the end of the transition period from January 2021 must have leave to enter or remain. The Government want EEA citizens who are resident in the UK before that date, and who wish to do so, to stay, and our focus has been on helping them to apply for that status. They can apply online for the EU settlement scheme free of charge. As of 31 July, we have received 3.8 million applications, with plenty of time until the deadline of 30 June 2021.

In order to protect those living in the UK before the end of the transition period, we propose to use the power under Section 7 of the European Union (Withdrawal Agreement) Act 2020 to save free movement rights otherwise repealed by Clause 1 of the Bill and Schedule 1 so that those EEA citizens and their eligible family members resident by the end of 2020 but who have not yet applied to the settlement scheme will continue to be treated the same until 30 June next year. This will ensure that they are able to apply to the EU settlement scheme by the deadline and retain their existing rights in the meantime. This includes pending the decision on their application after that deadline and pending the outcome of an appeal against any decision to refuse status under the EU settlement scheme.

During this grace period, immigration officers who encounter EEA citizens who are still able to apply under the EU settlement scheme will not take any enforcement action but may encourage them to apply by the deadline. Furthermore, we have always been clear that where EEA citizens and their family members have reasonable grounds for missing the deadline, they will be given a further opportunity to apply. We will take a flexible and pragmatic approach to this, and those who need it will be supported through the application process.

Ultimately, however, we are aiming to reach the position where EEA citizens who do not qualify for leave are treated in the same way as non-EEA citizens. As such, if they require leave to enter or remain in the UK but do not have that leave, they will be liable to the same sanctions and enforcement measures. These enforcement provisions are set out in the Immigration Acts and my noble friend Lady Neville-Rolfe has mentioned that those cover the rights of access to work, renting property and banking services. It would take a long time for me to list all the relevant provisions here, but I would be happy to write to my noble friend to set those out.

In response to my noble friend’s question on whether this Bill can be used to amend the legislation, I do not think this is the right Bill in which to make any changes to enforcement provisions, which would need to cover both EEA and non-EEA citizens because it is limited to immigration changes as a result of EU exit. However, we are actively exploring legislative options to ensure that key elements of our immigration system, including around enforcement, can be tightened up. This work is at an early stage.

My noble friend also asked me about who the enforcement authorities are. They are primarily those of the Home Office Border Force and immigration enforcement, working in partnership with the police and other government departments, including the DWP, HMRC and the Ministry of Justice.

With regard to my noble friend’s question about available resources for enforcement using technology and the economics of charter flights, which she was right to ask, planning is under way to factor in the requirements of the new points-based system and ensure that all aspects of operational resourcing, recruitment and training are fully delivered. These plans include the redeployment and/or recruitment of new staff where appropriate to deal with applications from EEA citizens. Part of our long-term vision has always been to make better use of digital technology and greater automation to improve the passenger experience while maintaining security at the border.

In terms of staffing, we will always ensure that the Border Force has the resources and the workforce needed to keep the border secure. We will also introduce electronic travel authorisations—or ETAs—for visitors and passengers transiting through the UK who do not currently need a visa for short stays or who do not already have an immigration status prior to travelling. I hope that answers the question of the noble Lord, Lord Adonis. This will allow security checks to be conducted and more informed decisions to be taken on information obtained at an earlier stage as to whether individuals should be allowed to travel to the UK. Therefore, the ETA scheme will add an additional security measure while also providing individuals with more assurance at an earlier point in their time about their ability to travel. The noble Lord also asked about longer-term visit visas for EU citizens, and he is right. Arrangements for longer visas will be set out in the Immigration Rules for people coming to the UK.

On my noble friend’s question about charter flights, the majority of returns take place on commercially scheduled flights. Where a chartered flight is required, the Home Office procures the use of chartered aircraft through a broker to ensure competitive pricing and access to different aircraft and contractors depending on the requirements of the operation. We think that this blended approach provides the best value for money for the taxpayer. However, I will take her point back and ensure that it is made. I also assure noble Lords that the Home Office will be updating its published enforcement policy with regards to EEA citizens at the end of the transition period.

The noble Lord, Lord Green of Deddington, pressed that point about enforcing laws on illegal working, as did my noble friend Lady Neville-Rolfe. The overarching ambition of the illegal working strategy to tackle illegal working is to work with businesses to deny access to the labour market and encourage and ensure compliance. The illegal working strategy is intelligence-led and it focuses on three main areas: deterring illegal migration, safeguarding the vulnerable and protecting the UK economy,

The further report this amendment requires is unnecessary because policy guidance on enforcement is already published on the GOV.UK website. I can hear the noble Baroness, Lady Hamwee, virtually moaning from behind the screen on referring her to the website. However, I am sure noble Lords will join me in encouraging all those who are eligible to apply before the deadline expires next June. On that note, I hope that my noble friend will withdraw her amendment.

I turn now to the opposition of the noble Baroness, Lady Bennett, in total to Clause 1. The clause introduces the first schedule to the Bill, which contains a list of measures to be repealed in relation to the end of free movement and related issues. Noble Lords have asked whether it is needed at all. It fulfils a purely mechanistic function to introduce the schedule. Without Clause 1, we cannot deliver on the will of the people in the 2016 referendum result; we cannot end free movement without repealing Section 7 of the Immigration Act 1988.

In line with long-established practice, the detail of this future system will be set out in the Immigration Rules rather than in this Bill and it will be in place from January 2021. It is of paramount importance that, as an independent sovereign state, the UK must have the ability to forge its own immigration policy and depart from EU law. The people of the UK gave us the mandate to end free movement when they voted to leave the EU and the Government gave a commitment in their manifesto to deliver on that mandate. The people are now expecting us to uphold that commitment; Clause 1 is essential to doing so and this House should not stand in the way of delivering what is a priority for the people of this country. I hope that the noble Baroness, Lady Bennett, withdraws her opposition to Clause 1.

I turn now to Amendments 3 to 6. I thank the noble Lord, Lord Pannick, and the noble Baroness, Lady Hamwee, for speaking to their amendments. Their purpose is to retain rights derived directly from EU law after the end of the transition period. I say to the noble Lord, Lord Pannick, that, unlike Caligula, I am not going to put the law up at a height and in small writing so that people cannot read it.

However, I know that the noble Lord has an issue with paragraph 4(2) of Part 2 of Schedule 1 to the Bill, which disapplies directly effective provisions of the Workers Regulation where they are capable of altering the interpretation, application or operation of any part of the Immigration Acts. His amendment seeks to remove this paragraph, meaning that provisions within the Workers Regulation, which may be inconsistent with those in the Immigration Acts, will continue to apply.

For example, as we set out in the Explanatory Memorandum to the Bill, article 10 notes:

“The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.”

If the noble Lord’s amendment were accepted, it would permit an EEA citizen to claim a right of residence here if their child was in education here. It does not support the ending of free movement.

Paragraph 4(2) of Schedule 1 does not prevent the child of an EEA citizen who is legally resident and employed in the UK being able to rely on article 10 to access UK education on the same conditions as a British citizen. This remains unchanged by the Bill as it relates to education and not immigration. However, I note the noble Lord’s criticisms and will arrange a meeting before Report with noble Lords on this provision so that we can perhaps go through it more fully.

Paragraph 6(1) of Schedule 1 disapplies directly effective rights under EU law to the extent that they conflict with domestic immigration law or immigration functions. The amendments of the noble Baroness, Lady Hamwee, would instead allow directly effective rights to be retained in an immigration context. Directly effective rights are rights conferred on individuals in EU law that can be relied on in national courts, even without national legislation transposing them.

The European Union (Withdrawal) Act 2018 incorporates EU law into UK domestic law at the end of the transition period. It incorporates directly effective rights deriving from EU directives and treaties. If no action is taken to curtail those rights, they will continue to apply and be available in UK law after the transition period. EEA citizens could then attempt to rely on those rights to resurrect provisions of EU free movement law which had otherwise been repealed by the rest of this Bill.

I mentioned in response to the opposition of the noble Baroness, Lady Bennett, to Clause 1 the importance of the UK having the ability to forge its own immigration policy, independent of EU law. The Government are committed to delivering the people’s priority of ending free movement; terminating directly effective rights for immigration purposes is an essential part of that.

The purpose of paragraph 4(2) of Schedule 1 is to protect the new law the Bill outlines from being affected by any directly effective EU law not being repealed by this Bill. The paragraph ensures that the provisions of the Bill take effect as drafted, are not subject to interpretation and are clear. To remove this provision and potentially have the Immigration Acts operating in parallel with retained EU law, in so far as it is contained within the workers regulation, would have the opposite effect to the stated intention of the noble Lord, Lord Pannick. It would cause confusion in how the Immigration Acts operate and would allow EU law to continue to affect our immigration policy. We cannot allow that to happen.

In turning to the amendments proposed by the noble Baroness, Lady Hamwee, I note that the drafting of paragraph 6(1) of Schedule 1 ensures that nothing is missed that might mean free movement was only partially repealed. The noble Baroness proposes that we do not disapply directly effective rights deriving from EU directives. That would mean that all the rights conferred by the EU’s 2004 free movement directive—to enter and reside without leave and to be accompanied by family members—would continue even after the UK’s implementing legislation had been repealed. This would again lead to confusion and incoherence and would frustrate the will of the British people that EU free movement be ended, safely but completely.

Schedule 1 does not disapply directly effective rights in their entirety. Some, such as the right to equal treatment in the field of employment, as mentioned by my noble friend Lady McIntosh of Pickering, range more widely than immigration policy; they are disapplied only to the extent that they impact immigration laws or functions. With these reassurances, I hope noble Lords who have tabled these amendments will withdraw or not move them.

I move on to Amendment 60 in the name of the noble Baroness, Lady Prashar, supported by my noble friend Lady Fookes and the noble Baronesses, Lady Morris of Yardley and Lady Garden of Frognal. I thank the noble Baroness for her amendment, which, in light of the Government’s published intention to phase out the use of national identity cards for travel to the UK in 2021, seeks to encourage EEA minors to choose the UK for their English language studies by enabling them to travel here once a year using a national identity card. I note the concern of the noble Baroness, echoed today, that we might lose such students to Ireland or Malta.

We fully recognise the concerns of English language schools and acknowledge that they will have been exacerbated by the impact of coronavirus on travel, tourism and education this year. EEA students with status under the EU settlement scheme will be able to use their national identity card to enter the UK until at least 31 December 2025. However, it is our intention that all other EEA students should in future be treated like students from the rest of the world; they will be able to come either under the visitor route or as a student. We have, however, left the EU and it would not be appropriate for EEA students to be given the right of entry on production of an identity card that this amendment would confer.

Passports are required for travel to most countries outside the EU and are typically valid for between five and 10 years and priced accordingly, so should not be considered an uncommon or short-term investment. I also highlight that students of other nationalities, including those from the UK and from EU member states where ID cards are not available, must have a passport if they wish to travel abroad.

One alternative suggestion put forward by the noble Baroness at Second Reading was to create a passport-free joint travel document which could be used by a group of students travelling together with a group leader. The noble Baroness, Lady Morris of Yardley, alluded to that today. I am happy to report that such a document already exists in the form of the Council of Europe collective passport, which is a very good way for an organised group of young people to make a trip between certain European countries. While they are not widely used, the ratifying countries have the option to issue them.

The noble Baroness suggested that such a document would minimise delays at the border. However, for those eligible to use them, the fastest way to enter the UK is by using our e-gates. Following the end of the transition period, although we will keep our position under review, it is our intention that EEA citizens will continue to be able to seek entry to the UK using our e-gates—including 12 to 17 year-olds when accompanied by an adult—but only when travelling on a biometric passport.

The proposed amendment from the noble Baroness would also require an additional assessment of whether the EEA citizen was the right age and was seeking to enter the UK for the permitted period. That would further prolong the transaction time. Moreover, national identity cards are among the most abused documents detected at the border. Consequently, as well as reflecting our departure from the EU, limiting the use of national identity cards for travel to the UK to those with a retained right to use them under the withdrawal agreements will improve our national security.

Finally, the amendment proposed by the noble Baroness is inappropriate for this Bill because, as drafted, it does not recognise the ability of particular categories of EEA citizens to use their identity cards without restriction until at least 2025 under the terms of the withdrawal agreements. In addition, it would oblige us to treat certain EEA citizens without such rights more generously than others by giving them a right of entry at a time when we are ending free movement rights to align the immigration treatment of EEA and non-EEA citizens.

The noble Baroness also talked about improvements to the standards of ID cards. We recognise that EEA member states are looking to raise the standards of their ID cards, but the less secure documents will still be in circulation for quite a long time. I hope that, with all the explanation I have given, she will feel able not to press her Amendment 60.

I now finally move on to Amendment 61 in the name of the noble Lord, Lord Paddick, which seeks to ensure that EEA and Swiss nationals continue to have access to e-gates at UK ports. The Government have previously set out that EEA and Swiss nationals may continue to have access to e-gates at the end of the transition period. However, it has also been clear that this policy will be kept under review to ensure that we can run our border in the UK’s best interests. This position was most recently set out in The UK’s Points-based Immigration System: Policy Statement, published in July. Further details of any changes to border control procedures affecting EU citizens will be announced in due course, following the negotiations on the future UK-EU relationship.

Changes to the methods by which non-UK and Irish citizens may be permitted to enter the UK are usually covered by changes to the Immigration (Leave to Enter and Remain) Order 2000. The vires for the 2000 order are derived from Section 3A of the Immigration Act 1971, which allows the Secretary of State to make provision for how leave to enter may be granted. This secondary legislation process has already been used to extend e-gate eligibility, as the noble Lord pointed out, to nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the US.

The existing process of secondary legislation provides the flexibility required to run our border in the national interest, allowing us to respond quickly and appropriately to any changes in risk and threat. Therefore, we do not need to make the proposed change by way of this Bill, and noble Lords can be assured that there are processes available to make such an amendment to the 2000 order before the end of the transition period.

I finally turn to a question from the noble Baroness, Lady Ludford, on comprehensive sickness insurance; the Committee will come on to amendments relating to citizenship another day, but I will answer that. It is a requirement, under EU law, for EEA citizens who are students or self-sufficient to hold comprehensive sickness insurance but, if people who were previously here as a student or as self-sufficient lack this, it does not mean that an application will be refused. The British Nationality Act allows for discretion to be applied around this requirement in the special circumstances of a particular case. My officials will examine each application to understand why such a requirement has not been complied with, together with any grounds which can allow us to nevertheless grant an application. Our guidance reflects this, and our application form encourages anyone so affected to provide as much information as possible to allow us to reach a decision.

I am sorry I have gone on for quite a long time, but I hope that noble Lords will not press their amendments.