Amendment 23

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (2nd Day) – in the House of Lords at 5:00 pm on 9th September 2020.

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Lord Flight:

Moved by Lord Flight

23: Clause 4, page 3, line 8, at end insert—“(5A) Regulations made under subsection (1) must make provision to enable UK citizens falling within the personal scope of—(a) the Withdrawal Agreement,(b) the EEA EFTA separation agreement, or(c) the Swiss citizens’ rights agreement,to return to the United Kingdom accompanied by, or to be joined in the United Kingdom by, close family members.(5B) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members of UK citizens which could not have been imposed under EU law relating to free movement, as on the day on which this Act comes into force.(5C) For the purposes of subsection (5A)—“close family members” means—(a) children (including adopted children), and(b) other close family members where that relation subsisted on or before 31 January 2020 and has continued to subsist;“Withdrawal Agreement”, “EEA EFTA separation agreement” and “Swiss citizens’ rights agreement” have the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”

Photo of Lord Flight Lord Flight Conservative

My Lords, I must first apologise: I was supposed to introduce Amendment 12 on Monday evening, but I got stuck and impossibly delayed and did not get here in time.

The purpose of Amendment 23 is to preserve the rights of UK nationals living in the EEA, Switzerland and the EU who intend to return to live in the UK in future and bring with them, or to be joined by, non-British family members on the same terms they have at present. Unless the Bill is thus amended, British citizens who moved to the EU or EEA while the UK was a member will lose their right to return to their country of birth with a non-British partner or children unless they can meet financial conditions beyond the reach of many. If they need to return to look after elderly parents, thousands will now have to choose between returning alone, leaving their family behind or abandoning their parents to stay with their non-British family in the EEA. Nobody should have to face such a choice, and it is not necessary that they do so.

The problem is that the Government are using the end of free movement to make these British citizens meet, for the first time, the minimum income requirement for family reunion. The MIR has been roundly criticised both because the level is so high—40% of UK workers would not be able to meet it—and because of the Catch-22 rule that the non-British partner’s income can be taken into account only if they have been working in the UK for six months. How do they get into the UK if they cannot satisfy the MIR?

The MIR itself is harsh, but what makes it doubly unfair, when applying it to this group of British citizens, is that the change is, in effect, retrospective. When they left their homes in the UK to move to work in the EU or the EEA, they were safe in the knowledge that if they established a family while abroad, they would be able to bring them back to the UK. The British parents they left behind in the UK had the same expectation. There have been noticeable reports of widespread anxiety, among both the young and old, regarding what will happen if the parents need their children to care for them.

The British Government’s approach also leads to the perverse result of discrimination against their own citizens. While British citizens who moved to the EU or EEA before the end of 2020 face these restrictions, EU citizens who moved, or move, to the UK before the end of 2020 will not. They will have the right, under the withdrawal agreement, to bring existing family members here for life as well as keeping their existing right to return to their country of birth with families they have made in the UK.

I noticed, in other comments, a degree of concern about Clauses 4 and 5. I ask the Government to look into the points I have raised, which, if I am correct, could be resolved without too much difficulty.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 5:15 pm, 9th September 2020

My Lords, it is my pleasure to support Amendment 23 in the name of the noble Lord, Lord Flight—who just presented an excellent introduction to it—and signed by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser.

I also refer noble Lords to my Amendment 79, which addresses some of the same issues, although it is particularly addressed to children and was inspired by an issue that I have worked on many times over the years, known in shorthand as “Skype families”, whereby people are able to maintain family relationships only by Skype—perhaps we should call them “Zoom families” these days—over long periods for all of the reasons the noble Lord, Lord Rosser, just outlined.

We have seen many people trapped in this situation. In particular, I recall a gentleman who contacted me and was frantically trying to find anyone who could help him in a situation similar to the one described by the noble Lord, Lord Flight. His family origins were in south Wales, but he had been teaching English in Thailand for a number of years and was seeking to come back to care for his aged parents—care that would, of course, potentially save the British state considerable amounts of money as well as ensure family reunion—but he would not be able to bring his Thai wife and children with him.

We are now in a situation where many more people are likely to be caught in this trap. We know that there has been a huge exchange of people across the continent, and families have been created. One thing that I have found when working on this issue over the years is that, when many of the people who have found themselves caught in this situation talk to me, they say that they have talked to other British people—friends, neighbours and work colleagues—who say that this surely cannot be right and that surely a British person can live in their own country with their foreign spouse or partner and/or their children. They are British; that must be a right—this is what people believe. Indeed, I have encountered members of the public who, when they went to their MP for assistance, found that this was initially the impression that elected Members of Parliament had.

I believe that we should have a rule for everybody: a British person should be able to live in their own country with a foreign spouse or partner and their children, independent of any income situation at all. As referred to previously in this debate, the Public Bill Office tells us that, within the scope of the Bill, we are allowed to refer only to EU and EEA people, so that is what this amendment, like Amendment 79, does.

However, I will not talk at great length because this is an issue about which I am sure many Members of your Lordships’ House attending this debate—and I hope the Minister as well—are well aware. However, I will finally reflect that I am sure that the Conservative Party would claim to be a party of, and in support of, the family. Why would it want, through immigration law, forcibly to separate families, spouses and children, forcing people into impossible choices over caring for elderly loved ones, being with their children, living as a family and having a family life?

Photo of The Earl of Clancarty The Earl of Clancarty Crossbench

My Lords, I support this amendment and thank Brexpats—Hear Our Voice for the excellent “British in Europe” briefing. I will be brief because there is a straightforward argument here.

This is a simple matter of humanity. We are talking about British citizens living in Europe, who, like the rest of us, had no inkling up to four years ago of the significantly changed circumstances in which they would find themselves. Many have raised families in EEA countries with the reasonable expectation that their and their families’ mobility around Europe—including the UK—would not be affected in the future. Of course, Brexit has changed that.

We need to help our fellow British citizens and ensure that those who wish or need to do so can return to the UK with their families without deadlines being put on that return or any other conditions, such as the MIR, needing to be met. Indeed, as it stands, as the noble Lord, Lord Flight, said, we are discriminating against our own citizens if EU citizens who moved to the UK before the end of 2020 can, according to the withdrawal agreement, bring family members here for life and return to their own countries with their families. This is a clear discrepancy.

I cannot see any good reason why this amendment should not be accepted. I hope this is a matter that has just been overlooked. I will listen with interest to the Government's response.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, some years ago I chaired some work on the minimum income requirement affecting British people who, as has been said, never thought that they would be affected by their own country’s immigration laws.

The noble Baroness, Lady Bennett, mentioned someone from south Wales. I encountered someone from south Wales, David, whose second wife was a teacher from Canada—I do not think that you can get more respectable than being a teacher from Canada. By his first marriage he had a disabled daughter. Had he been able to bring his wife to the UK to share the care of his daughter, that, among other things, would have saved the state a lot of money. Instead, he had to limit the amount of work and the kind of work that he did and so did not meet the minimum income requirement. She was appallingly treated. I do not believe people in British society would support this, were they to know about it. Many do not until they are brought up against it personally. I have long thought that the answer to all this will be found only when a son or daughter of a Cabinet Minister finds himself or herself in this situation.

The focus at that time was largely on spouse visas and what can be taken into account in calculating incomes. That has been changed somewhat, but the issue remains. The rules about leave to enter for an individual’s parents are so harsh that they really amount to saying, “You need to be so much in need of care and support that you probably would not be fit to travel.”

The reality of this is striking home, as noble Lords have said. One of my noble friends received a letter, which she passed on to me at the weekend, from a UK citizen who has found herself in this situation. I shall read some short extracts: “As someone who married a non-UK EU national in the UK but then moved to his country to live as his parents were already elderly, never was it in my worst nightmares that I would not be able to do the same and I might be forced to choose between caring for him and caring for my mother. When I left, returning was always an option, as I work remotely, to be able to return to care for my parents. My parents are now on the brink of their eighth decade. My mother has lung issues. My father has prostate cancer. It is inevitable that I will want and need to return at some point. What child does not want to care for their parents themselves?”

She goes on: “I and many of the more than 1 million UK citizens living in the EU will not have that right. If we do not return before the end of 2022, our fate will become income-dependent. How is it conceivable that the British Government’s approach involves discrimination against its own citizens? Surely, the family is as sacrosanct in the UK as in the rest of Europe.” I am pleased, from our Benches, to support this amendment.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

My Lords, I declare a family interest in the issue raised by the amendment. As the noble Lord, Lord Flight, said, the wording in the Bill means that British citizens who moved to the EU or EEA while we were a member will lose their right to return to this country—their country of birth—with a non-British partner or children unless they can satisfy financial conditions that many may well find difficult or impossible to meet. Amendment 23, to which I am a signatory, seeks to address this situation.

I do not wish to repeat the points made by the noble Lord, Lord Flight, in moving this amendment. I agree with everything that he said. I hope that as well as responding to the arguments that he made, the Minister will also comment on his point that the change is, in effect, retrospective, since it is our country and our Government who are changing the rules that apply to our citizens on this issue. When they made their personal decisions to move to the EU or EEA, the rules, as they currently apply, may well have been a factor in making that decision; it is our Government who are now apparently seeking to change those rules.

No doubt the Minister, on behalf of the Government, will also comment on a further point made by the noble Lord, Lord Flight. He said that it appears that the new UK rules that will apply to British citizens in the situation that we are talking about will be much tougher in their terms than those that apply to EU citizens with settled status in respect of their ability to bring their dependants to join them in the UK. No doubt the Minister will confirm, in the Government’s reply, whether that is the case.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I thank my noble friend, Lord Flight, for his Amendment 23, which refers to a specific cohort of people relating to what is known as the Surinder Singh route for family immigration. It would require the Government to make provision in regulations made under Clause 4 for lifetime rights for UK nationals resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied, or to be joined, by their close family members. These family members would thereby continue indefinitely to bypass the Immigration Rules that would otherwise apply to family members of UK nationals.

The Surinder Singh route, so-called after the relevant judgment of the Court of Justice of the European Union, refers to arrangements whereby family members of UK nationals who have resided in the EEA or Switzerland with those UK nationals while they exercised their treaty rights are able to return with them to the UK under EU free-movement law. Surinder Singh family members are not protected by the withdrawal agreement but, as a matter of domestic policy, the Government have decided that UK nationals resident in the EEA or Switzerland under EU free-movement law by the end of the transition period will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, durable partner, child or dependent parent—to the UK on EU law terms. That is three years after the date when the UK was originally supposed to have left the EU. That says to me that it is not retrospective, but if my noble friend wishes to intervene after I sit down, I would be grateful if he would let me know whether I have satisfied that point.

The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after this date, and must continue to exist when the family member seeks to come to the UK. Other family members, such as a spouse, where the relationship was formed after the UK left the EU, or other dependent relatives, have until the end of the transition period on 31 December 2020 to return to the UK with a qualifying UK national on EU free-movement terms. If they return to the UK with the qualifying UK national by the relevant date, all these family members will then be eligible to apply for status to remain here under the EU settlement scheme. If they do not return to the UK with the qualifying UK national by the relevant date, they will need to meet the requirements of the Immigration Rules then applicable to family members of UK nationals if they wish to come to the UK.

We hope this is a fair and balanced policy. It was developed after we listened to the concerns of UK nationals living in the EEA and Switzerland. The policy was announced on 4 April 2019, as I said, giving UK nationals almost three years to decide whether they wished to return to the UK by 29 March 2022 with their existing close family members and, if so, to make plans to do so.

By contrast, Amendment 23 seeks to provide UK nationals resident in the EEA or Switzerland by 31 December 2020 with preferential family reunion rights on an indefinite basis. Under the withdrawal agreements, EEA and Swiss citizens have lifetime rights to be joined here by existing close family members, as long as they themselves are resident in the UK by the end of the transition period. By contrast, the amendment does not specify a date by which the UK national must return to the UK, meaning that they could return at any point in future and continue to benefit from EU family reunion rules. Such preferential treatment is unfair and cannot be justified.

The family reunion rights of UK nationals returning to the UK from the EEA or Switzerland after the transition period are not covered by the withdrawal agreements. Those rights should—after a reasonable period to plan accordingly, which our policy amply provides—be aligned with those of other UK nationals who have always resided in the UK or who seek to bring family members to the UK after a period of residence in a non-EEA country. To do otherwise would be manifestly unfair to all other UK nationals wishing to live in the UK with family members from other countries.

The Government’s policy, as implemented through the EU settlement scheme, strikes the right balance between providing sufficient time for UK nationals and their family members living in the EEA or Switzerland to make decisions and plans for returning to the UK, if they wish to do so, and ensuring equal treatment of the family members of UK nationals under the Immigration Rules as soon as reasonably possible once free movement to the UK has ended.

I hope that is a satisfactory explanation for my noble friend and he will feel happy to withdraw his amendment.

Photo of Lord Flight Lord Flight Conservative 5:30 pm, 9th September 2020

My Lords, I thank the Minister for her response. She covered such a large amount of territory that I am not certain I have taken it all in, but it struck me that there was the possibility that EU citizens living here might be in a slightly better position than British citizens who have been living in the EU.

I well remember that when we were joining the EU, a number of British civil servants went across to work for the EU in the same way as they might otherwise have worked for the Civil Service here. I think it important, particularly for good relations going forward, that British citizens who have lived in the EU with spouses who are not British have a fair deal, one that is better than the deal of those who are not British citizens.

While withdrawing this amendment, I hope the Government will look at this in greater detail and see whether a slightly more generous package cannot be made available for British citizens.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I apologise, but I have just received a request to speak after the Minister from the noble Baroness, Lady Hamwee.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I simply ask the Minister what she would advise a couple, one British and one an EU national, who both have elderly parents. She is suggesting that they should pick between them for future care by the end of 2022. Is this really a humane approach?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, I apologise for the slight discontinuity of speakers to the disbenefit of the noble Baroness, Lady Hamwee. Three years after we were supposed to leave the EU, and indeed some six years after this country voted to do so, we are giving people time. There are immigration rules in every country of the world, and we are trying to be as fair as possible. We have listened to the concerns of UK nationals living in both the EEA and Switzerland.

Photo of Lord Flight Lord Flight Conservative

I simply repeat my request that the Government might look at this territory in a little more detail and should arrange things such that British citizens have a slightly better deal to come and live here than non-British citizens. I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Amendment 24 not moved.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to Amendment 25. I remind noble Lords again that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division should make that clear in debate.