Amendment 44

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (3rd Day) – in the House of Lords at 5:15 pm on 14th September 2020.

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Baroness Hamwee:

Moved by Baroness Hamwee

44: After Clause 4, insert the following new Clause—“Late applications to EU Settlement Scheme(1) The Secretary of State must, before 30 June 2021, publish a report setting out proposals for dealing with late applications to the EU Settlement Scheme and a motion to approve the report must be debated by both Houses of Parliament.(2) Until the report has been debated and approved by both Houses of Parliament, the EU Settlement Scheme must remain open for applications and the Secretary of State must extend the deadline for applications accordingly. (3) “The EU Settlement Scheme” means the scheme for settled or pre-settled status under Appendix EU of the Immigration Rules.”Member’s explanatory statementThe new Clause will ensure that the EU Settlement Scheme will remain open until such time as the Minister has published proposals as to how to deal with late applications and that report has been approved by Parliament.

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

My Lords, I beg to move Amendment 44 and will speak to the other amendments in my name and that of my noble friend Lady Ludford—Amendments 45 and 46—and to Amendments 52 and 96, in the names of the noble Lords, Lord Rosser and Lord Kennedy.

This group of amendments brings us to the EU settled status scheme, which is dealing and has dealt with huge numbers of applications. I do not seek to deny that, but the task is huge to ensure that all EU citizens in the UK at a given date are able to remain when they have the right to do so. These amendments address aspects of the scheme. Later today we will continue with Amendment 49, in the name of my noble friend Lord Oates, which is about how to prove that status.

I am grateful to Ministers and officials for meeting me and representatives of the organisation the3million to discuss applications for settled status after the deadline of 30 June 2021 has passed. When I asked in June of this year as to the proposed criteria for accepting applications made after the end of the period, the Minister’s response referred to the Government’s “compassionate and flexible approach”, and I do not want to suggest that they will not be compassionate. She then gave examples, including

“children whose parent or guardian failed to apply on their behalf”;

I would add to that children who will be less than five years old and will not have completed five years in the UK. The Minister’s examples also included

“people in abusive or controlling relationships who were prevented from applying, and those who lack … physical or mental capacity”.

I understand that guidance for caseworkers is to be published, probably in January.

Before that meeting, the3million had talked with the Minister about the range of circumstances which might cause someone to miss the June deadline. Its examples included students, who will have completed a lot of formalities in order to be here as students. A lot of them think that because they are not settling in the UK, a scheme called “settled status” really is not about them. People who have been here a very long time already feel settled. They feel integrated and have done so for years. They simply do not believe that the scheme can apply to them. People who have obtained a permanent residence document do not think they need to do any more, which is understandable when they have a document that they can wave.

I accept that Home Office messages and posters mention that all EU citizens have to apply, and that holders of permanent residence status have to apply again. However, we all know what real life is like. People switch off before they read the small print, making an assumption that the topic simply does not apply to them. We could have a huge number of ordinary people who simply forgot or did not think it applied to them, or who were scared or overwhelmed by the process. Perhaps they did not have smartphones or see the advertisements. Perhaps they did not have children or grandchildren to prompt them. People may believe that they are ineligible, as the Migration Observatory has pointed out.

The examples in the Written Answer which I mentioned are regularly given. I understand that the Home Office wants to discourage people from thinking that the scheme can be left and picked up after next June, but its approach to what are reasonable grounds may not accord with that of affected individuals. The3million is urging EU citizens to get on with their applications but it believes—and I agree—that having a clearer idea of what is likely not to be considered reasonable would be helpful. I am therefore moving Amendment 44, so that the scheme should remain open until Parliament has dealt with a report on it. Amendments 52 and 96, in the name of the noble Lord, Lord Rosser, have the same objectives.

Amendment 45 deals with something which worries me very much: someone who, on the closing date, has not been in the UK for five years but has been granted pre-settled status so that he can subsequently apply for settled status when five years’ residence has been achieved. It would be all too easy for that further application to be overlooked, so the amendment provides for various notifications from the Home Office. If you are granted pre-settled status, you should be told straightaway about what else is required to be done; similarly if it is

“after this Act is passed”.

There would be another notification at least six months before your entitlement expires through that status.

I do not suppose that we can prove this but given the large proportion, so far, of grants of pre-settled rather than settled status, my concern is that when an application is not straightforward—because the applicant can prove only the last two or three years’ residence and not the longer period that he has in fact been resident in the UK—the caseworker grants pre-settled status rather than delving into those extra years and the applicant thinks “Oh, that’s okay”. As of 30 June, or possibly 31 July—I am not entirely sure from the website—almost 1.5 million grants of pre-settled status have been made, which is 41% of all concluded applications. Ministers refer to grants of just status, but that tells only a part of the story.

At the meeting to which I referred, the Minister and her officials talked about the communications strategy that they will roll out to remind people of the significance of next June’s date. The Minister teases me when I talk about GOV.UK, which I find extremely useful, but I am sure she agrees that it is not everybody’s daily reading. If you do not know that you need information, you are not going to look for it. I understand that the strategy includes contact with specialist groups who themselves have contact with relevant individuals and through embassies, but of course most embassies do not have information about their own citizens who are here. Much of what is in contemplation sounds likely to replicate what had been done already. From what the Minister said, I had the impression that the approach would be rather what one might expect in a commercial context by a company working in the commercial sector. I would be grateful if the Minister could give more information, perhaps by letter, on the selection of whoever is to be appointed to carry out the work, the appointment process and the specification for the job.

As we have been reminded, when the UK switched to digital television there was a huge campaign that was regarded as massively successful. Even so, 3% of people who needed to switch did not do so and were left overnight with a television which did not work, and 3% of 4 million, the number for which applications are now heading when by definition the relevant total must be higher, is 120,000. It would put 120,000 people in a precarious position. If you have pre-settled status and have not converted it you will need to leave the UK when it has expired and, during your residence, you do not have the same rights as under settled status, notably to welfare benefits. That is why I am so worried about this and why I tabled Amendment 45.

Amendment 46, on applications for citizenship from people with settled status, takes us to the issue of comprehensive sickness insurance. For citizenship, are we talking about something more than settled status and people who have exercised treaty rights? I know that my noble friend Lady Ludford has done a lot of work on the requirements for comprehensive sickness insurance, so I am sure she will cover that. I beg to move.

Photo of Baroness Altmann Baroness Altmann Conservative 5:30 pm, 14th September 2020

My Lords, I support Amendment 44 on late applications, to which I have added my name, especially in the light of the pandemic, with people perhaps not being well for quite some time or not knowing that they need to register. I hope that there will be explicit provision in the Bill for late applications. I also support Amendment 96, which would require publication of reasonable grounds for late application. Again, that would help people to understand that there is the wherewithal, for those who have missed the deadline, for genuine reasons to be catered for.

I also support Amendment 46 in the light of the information we have received from members of the public who are concerned about their lack of sickness insurance. I would be grateful if my noble friend could address that issue and what deliberations there have been in the department that might address the issues raised in this group of amendments. I look forward to hearing from my noble friend.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, I regret that I was deterred from joining the crowded ranks for the Second Reading of the Bill. I support all the amendments in the group and I shall speak to Amendment 46, to which I have added my name. The noble Lord, Lord Bourne of Aberystwyth, has asked me to reiterate his support for it, as he cannot be here today.

As we have heard, Amendment 46 concerns the retrospective requirement for comprehensive sickness insurance to have been taken out before settled status is granted throughout any period of self-sufficiency or as a student. This requirement has borne disproportionately hard on Roma people, with consequent unjust refusals of applications for naturalisation. This has been brought to my attention by the Roma Support Group, since it has particularly affected Roma women who have been looking after children full time, and thus are self-sufficient—neither employed nor self-employed—and who have applied for settled status using such documentation as they had, such as rental agreements or council tax bills, which were of course deemed insufficient. The requirement also prejudices the children of parents who have settled status but who did not acquire comprehensive sickness insurance themselves. The fees are usually out of their reach.

In answer to my Question HL6271 on this matter last July, the noble Baroness, Lady Williams, said that having comprehensive sickness insurance

“has always been a requirement” under EEA regulations, implying that students and self-sufficient people should have known about the requirement and ensured that they had the insurance. In fact, the CSI requirement results from the Home Office’s specific interpretation of EU regulations, which the European Commission considers to be in breach of EU law. I quote the European Commission’s own text:

“Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The United Kingdom, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.”

Secondly, the noble Baroness’s reference in her Answer to customer guidance and the implication that students and self-sufficient people should have known about the requirement also causes difficulties. Before the comprehensive sickness insurance scandal broke in early 2017, CSI was largely unheard of by anyone who had not had dealings with the Home Office, including the vast majority of EU citizens. It was never required in daily life or requested when accessing the National Health Service. Because of the surge of EU citizens applying for proof of permanent residence under EU rules after Brexit, it transpired that about 28% of applicants were being refused proof of long-term residence in the UK, mostly because of the CSI requirement. In October 2017, Theresa May publicly promised EU citizens that she would scrap the unfair requirement for the new EU settlement scheme. Why has this promise not been fulfilled?

Furthermore, the UK Government decided not to require proof of exercising treaty rights via the CSI requirement from applicants when granting settled status under the EU scheme. Now the Home Office is saying that anyone not exercising treaty rights was here unlawfully and is in fact introducing a two-tier system of access to citizenship for different groups of settled status holders. This will be a continuing issue of fairness and injustice.

Finally, in her Answer to my Question, the noble Baroness said that discretion could be exercised in such cases. It is not being so exercised. The guidance does not offer sufficient assistance, and, in any case, the earlier undertaking was not fulfilled. The Bill needs to put matters right through an amendment such as this.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 5:45 pm, 14th September 2020

The noble Lord, Lord Bourne of Aberystwyth, seems not to be with us, so I call the noble Baroness, Lady Smith of Newnham.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence)

My Lords, I essentially support all the amendments in this group, but in particular it is crucial to think about the EU nationals resident here for maybe five years or more who expected to get settled status and then were given pre-settled status. As my noble friend Lady Hamwee so eloquently outlined in her opening remarks, 41% of those EU nationals seeking status of some sort have so far been given pre-settled status.

Maybe members of Her Majesty’s Government are always fully on top of every detail of every document they are ever required to look at, sign or agree. Whenever they get a piece of paper—assuming they even get a piece of paper and it is not some digital communication—they presumably know where they put it and they will know that on some future date, perhaps 23 July 2023, they will have to say, “Now I’m due to have my settled status. Oh Government, please, what do I do now?”

Every Minister might be able to do this, but I suspect that many of the 1.4 million people with pre-settled status might be more like the rest of us: they would know at the back of their minds that they needed to do something. It is a bit like doing a tax return, but at least with an annual self-assessment, one is reminded of it constantly—not just by emails from HMRC but by regular newspaper and television advertisements telling people the date by which they have to do their annual self-assessment tax return. People with pre-settled status are not going to have a single date: each of them will have a different point at which their five-year residence is up and needs to be turned into settled status. Amendment 45 is therefore absolutely crucial.

The Minister may argue that each individual should take responsibility for themselves—this may be the government view. I am sure that everyone who has sought settled status and has so far been told that they can have only pre-settled status is trying to take responsibility for themselves, but there may be all sorts of reasons why they do not necessarily remember the precise date by which they need to regularise things. It could be because of individual specific circumstances. As the noble Baroness, Lady Altmann, mentioned, it could be because of the Covid crisis. There are all sorts of reasons people may not be able to deal with paperwork in the way they would normally be able to do. There may be a family bereavement—there could be a whole set of reasons why people have not thought through what paperwork is required.

There is, however, something to be said for the Government sending appropriate reminders. Surely one of the lessons of Windrush is that it is hugely important not only for individuals to have details of their own status but for the Government to have them too. If the Government are moving so much towards digitisation—so that all settled status documentation will be digital, unless the amendment in the name of my noble friend Lord Oates is passed—it ought not to be beyond the wit of the Government to have a mechanism for alerting people, six months out, to what they need to do to convert their status. If the Minister is minded to demonstrate Her Majesty’s Government’s compassionate and flexible approach—not something we very often see from the Home Office—that would be one way of going about it.

The amendment in the name of the noble Lord, Lord Rosser, requesting information about what would count as appropriate for a late application is most valuable. EU nationals who have used their rights of free movement in recent years would be fully aware of the requirement to seek settled status. But people who have lived in the United Kingdom for many years—who were maybe born here, to parents who are not British but who had the right to be here because of some other European citizenship—may not think to apply. Maybe they have lived all their lives in the United Kingdom and never stopped to realise that they did not have the rights of residency that settled status would give them, without which they may not even be permitted to be in this country. Unless the Government has an effective way of identifying a whole range of people eligible for settled status but who did not realise that they needed it, some flexibility is required. A tolerant country would surely allow these people to apply late when their status becomes clear.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I offer the Green group’s support for all the amendments in this group. We have already had a strong, informative debate, so I will not take up very much of the time of your Lordships’ House.

I wish to address a couple of points. On Amendment 46, on comprehensive sickness insurance, the noble Baroness, Lady Whitaker, powerfully and clearly set out the discriminatory effects of this surprising—possibly illegal—application of the rules. I am particularly concerned about the differential gender impact: invariably, it is women in caring situations who do not have their own income who will be affected by this.

I want to speak briefly to Amendment 44 in the name of the noble Baroness, Lady Hamwee. This can be described only as a modest and reasonable request for transparency, democracy and scrutiny from the Government. It asks them to show what their plans are for looking after the group—that will inevitably, by definition, be made up of more vulnerable people—affected by the inability to apply for settled status within the deadline. Debating this amendment in the other place, as well as in your Lordships’ House, would be a chance for scrutiny, as well as constructive engagement, the pointing out of flaws and making suggestions for improvement. Will the Minister consider this? We can assume, I hope, that we will receive many assurances from the Government about how they intend to use the right to late applications. The Government clearly already have in mind how this is going to look, so surely it would not be that difficult to set it out on paper.

I want to briefly follow on from what the noble Baroness, Lady Smith of Newnham, said about technology. These days, what people have to do practically and how they manage their lives is increasingly digital. Maybe you have put a reminder to yourself in a digital calendar to do something. The deadline is there and you have done the right thing, but we all know that sometimes technology goes wrong: computers die and people lose passwords. The Government should be able to ensure a steady recording and reminder process. They do not perhaps always have a great record when it comes to IT projects, but this should not be very difficult or very costly. It would provide people with a security blanket, which is what all these amendments seek to do. As the noble Baroness, Lady Hamwee, said in her introduction, we are talking here about enabling people to exercise the rights to which they are entitled. Surely that is something that the Government want to make as easy and practical as possible.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, this group of amendments, and the later group on the grace period, are somewhat interrelated. However, as I will not be speaking to that group, I want to make all my remarks now.

Amendments 44, 45 and 46, in my name and that of my noble friend Lady Hamwee, with support from the noble Baroness, Lady Whitaker, and the noble Lord, Lord Bourne of Aberystwyth, on Amendment 46, are designed to address concerns about late applications and the need for the EU settlement scheme to remain open. As my noble friend Lady Hamwee has fully explained, it would ensure that those granted pre-settled status get a reminder of the need to apply for full status and can, in the meantime, enjoy access to social assistance and housing. It would also rule out a retrospective requirement for private health insurance, which is what comprehensive sickness insurance means in this context, if a person with settled status applies for citizenship. I also fully support all the comments made by my noble friend Lady Smith of Newnham.

A week ago, in a debate on applications for citizenship, the Minister told us that

“if people who were previously here as a student, or as self-sufficient, lack this”—

“this” being CSI

“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.”—[Official Report, 7/9/20; col. 579.]

I do not think we were told what the nature and criteria of the exercise of this discretion would be. Perhaps the Minister can tell us a bit more about this.

In any case, as the noble Baroness, Lady Whitaker, recalled, Theresa May said in 2017, as Home Secretary, that CSI—which, I repeat, is private health insurance—would be dropped as a requirement for settled status for those who were economically inactive. It is, in fact, invidious to bring it back at all as a sting in the tail for those who seek citizenship. It is unfair reverse engineering. In addition, there is much concern that EEA citizens who are economically inactive might be caught out in applying for settled status, despite Theresa May’s promise. In last week’s proceedings, the Minister referred to how regulations under Clause 4(4) of the Bill would make provision for those not exercising free movement rights at the end of the transition period but who were still eligible for the EU settled status scheme. I am not sure whether those people will be required to show that they have CSI—private health insurance—but, in any case, the grace period SI, which the Minister kindly shared with the Committee 10 days ago, I believe, is issued under the European Union (Withdrawal Agreement) Act and applies only to those covered by the EEA regulations; that is, those who will be exercising free movement rights prior to the end of the transitional period.

This CSI business is not news to me. In the UK’s interpretation, which is disputed by the EU and has been since 2012—I was still an MEP when I saw the first step in infringement proceedings taken by the Commission—this means having private health insurance. I understand that, on Friday, attendees at the Home Office settled status users’ group were told by an official that this may well be an oversight or mistake in the drafting of the grace period SI and that the intention was not to exclude those without CSI—private health insurance—from late applications for settled status. Will the Minister confirm that it is not the Government’s intention to impose a requirement for CSI either retrospectively or just at the moment of 31 December 2020? As I previously asked, will she give details of the discretion not to impose it for applicants for citizenship?

A friendly lawyer has apparently said that there can be a relatively easy technical fix to the grace period SI by saying that, for the purposes of the rule, a person is lawfully resident during any period of time which would be taken into account for the purposes of calculating a period of continuous residence under Appendix EU—that is, the settlement scheme rules. If you change the terminology to relate to that appendix, rather than the EEA regulations, that would apparently solve the CSI issue. Dealing with this stuff is rather wet-towel-on-head time, but at least the Minister knows what I am talking about. Can she give the Committee some reassurance that the grace period SI will be fixed, as well as the other assurances that I have sought in relation to this thorny, persistent question of CSI? I know that I have said it before, but I am afraid I will say it again: when we drafted the citizens’ rights directive, it was understood that, if there was a public health system, accessing that—as EEA citizens do on a daily basis, as the noble Baroness, Lady Whitaker, said—was sufficient. It was never intended that, where a country had a free-at-the-point-of-use health service for people who were lawfully resident in the country, accessing that public health system would meet the test of comprehensive sickness insurance. I am not sure why the European Commission has been so slow about this since 2012, but I understood it took a further step earlier this year in progressing the infringement proceedings. From an EU point of view, the requirement for private health insurance is a breach of EU law. It would be good to hear the Minister offer comfort to a lot of people who are very worried on this subject.

Photo of Lord Greaves Lord Greaves Liberal Democrat 6:00 pm, 14th September 2020

My Lords, this is the first time that I have spoken in this Committee. I intended to speak last week but I was not feeling too well, so I did not and did not come. I apologise for that, although there may be members of the Committee who think an apology is not appropriate and who were quite pleased about it. I declare something of an interest. I have a close in-law who, I am pleased to say, has just achieved settled status, although it took him a long time to bring himself to even apply for it. I support the amendments in this group and all the speeches that have been made.

This group should be put in its context. Among a lot of European citizens living in this country, large numbers of whom now have settled or pre-settled status, there remains an acute sense of concern. A lot of people are still fearful and worried; some are still scared. They are worried particularly about family relationships. Jobs are a different thing, in a sense. People are worried about their jobs but somebody who has got a good job and skills can go and get another one. A lot of people are still wondering what to do. How long might they stay here; will they stay here for the rest of their lives as many intended to do? People keep saying to me: “Yes, we have got settled status and that is fine, but how do we know that they won’t change what it means?” This week, one person said: “Look, it’s part of the withdrawal agreement and an international treaty, but we have a Government who do not seem to care too much about that.” Whether or not that is true is a different matter; it is the impression that is being given, so they are asking what it means.

How long will it be before people come along and say, “Yes, but you are European citizens and we will change the basis on which you live in, work in, or have the right to return to this country”? It may be in small ways; it may be in the detail of complicated legislation. So much of what the Committee is talking about is exactly that. I do not think that this is something that the Government can give reassurance on. They have tried, but they cannot guarantee what a future sovereign Parliament may allow—or force—a Government to do. We talk about the hostile environment: a lot of people still believe that the way in which they are being treated and regarded by many British residents of this country is undesirably different from what it was before the referendum.

That is all history; we know what is happening. It would, however, help if the Government, instead of concentrating on what they are now calling the need to be compliant, and pursuing that kind of thing, came out with some positive spin: propaganda or publicity about the value of European citizens and how important they are to this country. The end of this year—the end of the transition period—would be a good opportunity to do that, because that still gives six months, and it could be tied to a renewed government campaign to pick up the people who have not yet applied for settled status.

My noble friend Lady Hamwee, in her brilliant introduction to this group, suggested that the number of people who might be caught at the end of June by not having applied and not fitting into whatever guidance the Government finally come up with—they have given some indications but they are not very comprehensive and the guidance will not come out before we have dealt with this Bill—might be huge. It does not matter whether it is a huge number or not; it might be a few hundred or a few thousand, although it is likely to be rather more than that. We do not know how many there will be, but for those individuals it is no more or less important if it is 10,000, 20,000 or 200,000. Many people think that it is going to be rather more than a few thousand, given the comparison between the number of people who have applied so far and estimates of how many European citizens there are in this country.

These amendments are very important. I will not repeat all the reasons why people may not have applied for settled status by June next year, or indeed why they have been given pre-settled status, except that it is fairly clear that in the majority, probably, of pre-settled status cases it is simply that people have not been living here long enough. That is fair enough: they can continue to live here and will then qualify. Anecdotal evidence—of which there is a lot—suggests, however, that much of it is error by the Home Office, or the inability or failure to provide some detail, often a quite trivial detail. The anecdotal evidence comes from two groups of people. The first group is those who have appealed; the rate of success among them is, I understand, quite high. That suggests that many other people have not appealed and have said, “Well, I am only going to live here another two, three or four years”, or, “Well, we will get it all sorted out in three or four years’ time”. They are the sort of people who will get caught by the system. We have no idea how many of them there are; we know, however, that in relation to the 40% or so who have status—the people the Government are so proud about—it is temporary status.

Why should the Government make an effort to tell people about the scheme? My noble friends went through a lot of reasons. One of them—a perfectly legitimate and acceptable reason—is that people change their minds. People who think that they will be here only another two or three years may experience a change in their circumstances. They might get married, have children, get a new job; they might do all sorts of things. When their circumstances change, they may just change their mind and decide that they would like to stay. They will then, however, have to reapply. Can the Minister give the House an absolute assurance that when, in due course, people who have been turned down for settled status but have pre-settled status apply for settled status, the Home Office will not revisit their original application, find errors in it and use that as an excuse for not giving them settled status? That is a fundamental point. Will the Minister give that assurance?

There is one more point that I had not picked up on earlier; it occurred to me when I was listening to the eloquent contribution from my noble friend Lady Smith of Newnham. If somebody’s pre-settled status runs out in, say, two years’ time—because they have already been here three years, and after two they are entitled to apply for settled status—will they then have the whole of the three years between that point and the five-year period following the end of June next year? I hope that I have made myself understood. Will they have the whole of that three years to go back and apply for settled status, or will there be a time limit within which they have to turn their pre-settled status into settled status? In other words, for somebody who has been here for two years and gets their pre-settled status now, does that last for five years regardless, or end at some stage when they are entitled to apply for settled status? I would like an answer to that.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 6:15 pm, 14th September 2020

First, we welcome the work that has been done on the EU settlement scheme so far, and the number of people who have been able to access it. We hope that the scheme proves successful, but that remains to be seen.

I will speak to Amendments 52 and 96, which are in my name and that of my noble friend Lord Kennedy of Southwark. Amendment 52 seeks clarity on the rights of EU citizens who have the right to apply for settled status but have not yet done so. What are their rights in the “grace period” between the end of the transition period and the deadline for applications?

The Government have now published a draft of the citizens’ rights (application deadline and temporary protection) (EU exit) regulations 2020—we might call it the grace period SI—during this stage of the Bill, which is helpful. This SI, made under Section 9 of the European Union (Withdrawal Agreement) Act 2020, would specify 30 June 2021 as the application deadline and provide that certain provisions of the Immigration (European Economic Area) Regulations 2016—the regulations that provide for free movement rights—will continue to apply during the grace period for relevant persons, despite the revocation of those regulations under this Bill.

In essence, the government factsheet tells us that the SI will temporarily “protect the existing rights” of EU nationals who are eligible for the settlement scheme during the grace period. Regulations 5 to 12 of the SI specify which provisions will continue to apply. Can the Government confirm to the House that the full existing rights of EU citizens will be carried into the grace period by this SI and there will be no substantive changes or loss of rights? We welcome the clarification that the person’s existing rights continue during the entirety of the processing of their application—even where, for example, they apply late in June and the deadline passes while their application is being considered.

We welcome the Government’s aims in the SI to provide legal protection to these rights. However, questions remain over how they will be protected in practical terms. If an EU national tries to open a bank account, rent a home or enrol their child in school during that period, what are the Government doing to ensure that their continuing rights are widely understood—because people are generally not aware that they have that right and there could be a difficulty?

Regulation 13 of the SI states:

“Where any question arises as to whether a person is or was lawfully resident in the United Kingdom at a particular point in time … it is for the individual in question to prove that they were”.

That is to say that they must prove that they were lawfully resident in the United Kingdom. Can the Government say in which situations they expect that people will have to prove their ongoing status and how they envisage people will do this? What documentation might they need, for example? Crucially—since one can see there might be some difficulty in being able to prove it—what support will there be for a person who runs into this kind of difficulty and who may well, in fact, be perfectly lawfully resident in the United Kingdom?

I am sure there will be many other questions that arise in relation to the draft SI, but I will move on to Amendment 96, which seeks more information on late applications to the settlement scheme. The Government have repeatedly said there will be “reasonable grounds” on which a late application will be accepted, but of course I am sure we would all acknowledge that the word “reasonable” is subjective. Different people will have different interpretations of what is reasonable. When can we expect full guidance on late applications? If a person was completely unaware that they had to apply, will that count as reasonable grounds? Would this also apply to a person who just made a mistake and missed a deadline? At one time or another, most of us have made such a mistake.

However, our main question is on the immigration status of people who miss the deadline. An NHS doctor, for example, misses the deadline but continues to go to work. If they are then granted status in, say, 2022, they will—presumably—have been officially unlawfully resident in the UK for a number of months. Will they be considered to have been working illegally and, if so, will there be consequences for that? What status will they be deemed to have had between the June 2021 deadline and the granting of status in 2022?

Another example might be an elderly person who missed the scheme entirely because they are not digitally literate—something I can empathise with—and who continues to use healthcare services before any application is organised on their behalf. Will they be liable for high NHS fees because they did not know that their right to use those services lawfully had lapsed?

I hope the Government will be able to provide answers to the questions that I and other noble Lords have raised—either in their response or subsequently—and, not least, to the points on CSI made by my noble friend Lady Whitaker and the concerns expressed over the potential implications for the future of the high percentage of those who have been given pre-settled status.

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

I thank all noble Lords who have spoken in this debate and rightly probed me on some of the detail of what the Government are intending to do across all the various issues that are raised in these amendments. I am pleased to say that, on most points, I think I will be able to reassure noble Lords on the issues they raise.

On Amendments 44 and 96, both concern how the Government will deal with late applications to the EU settlement scheme. Both are incredibly well-intentioned, as they concern how we ensure that those eligible for the scheme obtain status under it. There is plenty of time for those EEA citizens and their family members resident here by the end of the transition period to apply for status under the EU settlement scheme by the deadline of 30 June 2021. Furthermore, in line with the citizens’ rights agreement, they will be able to apply after the deadline where they have reasonable grounds for missing it.

I think noble Lords will find that, throughout my response, I will outline how the Government intend to take a very pragmatic approach to all these issues. During the Second Reading debate, I confirmed that, early in 2021, the Government will publish guidance on what constitutes missing the deadline. In answer to the noble Lord, Lord Rosser, I say that the timescale is appropriate because, for the time being, our priority has been to encourage all those who are eligible to apply to the scheme to do so before the deadline. We do not want to risk undermining that effort by inadvertently encouraging people to put off making the application.

Amendment 44 would cause confusion over the deadline for a scheme which has been designed to be simple and straightforward. We must also deliver on our promise to the people to end free movement and, from 2021, introduce the new global points-based immigration system. However, as I said earlier, the EU settlement scheme does not close on 30 June 2021. It will continue to operate thereafter for applications by people with pre-settled status applying for settled status and by those who are joining family members in the UK as well as by those with reasonable grounds for applying after the 30 June 2021 deadline. A report setting out proposals for dealing with late applications—as sought by Amendment 44—is not needed because we have been clear that we will take a pragmatic and flexible approach to late applications and will be publishing that guidance early next year.

Amendment 96, concerning such guidance, is also unnecessary. Our guidance on reasonable grounds for applying after the deadline will be indicative and not exhaustive. I think noble Lords will agree that this is the right approach; we will consider all cases in light of their individual circumstances. A person with reasonable grounds for missing the deadline who subsequently applies for and obtains status under the scheme will enjoy the same rights from the time they are granted status as someone who applied to the scheme before the deadline.

The withdrawal agreement obliges us to accept late applications indefinitely where there are reasonable grounds for missing the deadline. This and other rights under the agreements now have direct effect in law via the European Union (Withdrawal Agreement) Act 2020, so this commitment is already effectively enshrined in primary legislation agreed by Parliament.

The Government are also doing all they can to raise awareness of the scheme and ensure support is available. In March, we announced a further £8 million of funding, in addition to £9 million last year, for organisations across the UK to help vulnerable people to apply. Plans for a further burst of national advertising are under way because we are determined that no one will be left behind. My noble friend Lady Altmann specifically asked about this point, as did the noble Lord, Lord Rosser, in a more indirect way.

I will take a moment to outline what we are going to do between now and next year. With less than a year to go until the deadline, we will continue to update our communications approach. We will have further and future national advertising, which will have adjusted messaging and emphasis to ensure that it speaks to the remaining audiences still to apply.

From the autumn, a new cohort of grant-funded organisations will continue the successful work of the current network, supporting those who need to apply. Home Office officials are engaging with educational institutions to ensure that students are aware of the actions that they will need to take. For long-term residents, we make it clear in our communications materials that even EEA citizens who have lived in the country for many years or have a permanent residence document will still need to apply. We are increasing that engagement with partners who work closely with such audiences to continue to drive applications.

I think that my noble friend asked about paid marketing. The EUSS communications will be targeted to key audience segments. Paid marketing will reach the audience segments across the UK; a campaign will launch later in the year, with subsequent bursts of activity in 2021 in the lead-up to the scheme deadline. It will use a combination of broadcast channels, such as catch-up TV and radio, and highly targeted channels, such as social media, digital advertising and paid search, to reach audiences effectively. There will be some wider communications in terms of working closely with EUSS vulnerabilities, with MHCLG, the DfE, the LGA and the Association of Directors of Children’s Services. It is a Home Office-led communication, but it is absolutely across the breadth of government. I hope that gives my noble friend a good idea of the sorts of activity that will be going on.

Amendment 45, proposed by the noble Baroness, Lady Hamwee, would require the Government to issue reminders to those granted pre-settled status under the EU settlement scheme to apply for settled status. EEA citizens and their family members granted pre-settled status can remain in the UK with this status for five years from the date when it is granted, to go to the question asked by the noble Lord, Lord Greaves. As the decision letter they receive makes clear, as soon as they have completed five years’ continuous residence, they can apply for settled status. They do not need to wait until the end of their pre-settled status before they do so. Indeed, in most cases a person will be eligible for settled status well before the expiry of their pre-settled status, on the basis of their residence in the UK before they obtained pre-settled status.

The Home Office has already committed, in the statement of intent for the scheme published in June 2018, to sending a reminder to people to apply for settled status before their pre-settled status expires. I think that was first mooted in this House by the noble Baroness, Lady Ludford. We will set out further details in due course as to how this will work, but the first grants of pre-settled status, issued under the initial test phase of the scheme in 2018, will not expire until 2023—that is, five years from 2018. Reminders will be sent out well in advance of the expiry of their pre-settled status.

By being granted status under the EU settlement scheme, EEA citizens are able to continue to work, study and access benefits and services in the UK on the same basis as they did before we left the EU. This includes access to social support and housing, as sought by Amendment 45. EEA citizens granted pre-settled status are eligible to claim income-related benefits, such as universal credit, if they are exercising a qualifying EU treaty right—for example, as a worker or self-employed person. This is a long-standing requirement and in line with the free movement directive and withdrawal agreement.

Amendment 46 concerns the naturalisation process for EEA citizens who hold settled status under the EU settlement scheme. Under the British Nationality Act 1981, a person wishing to naturalise as a British citizen must show that they have resided here lawfully for at least five years and that they are no longer subject to any immigration time restrictions. I do not consider having resided in the UK lawfully to be an unreasonable requirement. An EEA citizen granted settled status will be able to live, study and work in the UK as they can do now. Choosing to make the additional commitment of becoming a British citizen must remain a personal decision, based on the individual’s circumstances and ability to meet the requirements. In the case of students or the self-sufficient, but not those who were working here, holding comprehensive sickness insurance has always been a requirement of lawful residence in the UK under free movement rules.

However, I can reassure the noble Baroness, Lady Hamwee, that, where CSI has not been held by people who were previously here as a student or self-sufficient person, that does not mean that an application for citizenship will necessarily be refused. I also clarify for the noble Baroness, Lady Ludford, that there is no CSI requirement for the EU settlement scheme. The grace period SI does not affect the criteria for the EU settlement scheme. The SI protects the EEA rights of those who have arrived here at the end of the transition period; I cannot read my own writing but I think that is what it says. I hope that answers the point raised by the noble Lord, Lord Rosser.

The British Nationality Act allows for discretion to be applied around this requirement in the special circumstances of a particular case. The Home Office will examine each application to understand why any such requirement has not been complied with, together with any grounds which can allow us nevertheless to grant the application. Our guidance reflects this, and we encourage people to provide as much information as possible to allow us to reach a decision. I therefore consider this proposed new clause unnecessary.

I turn finally to Amendment 52 tabled by the noble Lord, Lord Rosser. This would require the Government to lay before Parliament a report on the status of EEA citizens during the grace period; that is, from 1 January to 30 June 2021. It would prevent the measures in this Bill relating to the ending of free movement from coming into force until such a report had been laid. We agree as to the importance of clarity and effective communication but not that such a report is necessary to ensure EEA citizens understand their rights during the grace period. We have already published an impact assessment of the provisions contained in the Bill. We have also been consistent in our messaging that free movement will end at the end of the transition period, subject to the successful passage of the Bill.

The Government have been clear about what this means for EEA citizens. Those resident in the UK by the end of the transition period, and their family members, are protected by the withdrawal agreement and have access to the EU settlement scheme. Those newly arriving here from 1 January 2021 will require status under the new points-based system.

The rights of EEA citizens resident in the UK by the end of the transition period are set out in the withdrawal agreement. Resident EEA citizens who have not yet applied to the EU settlement scheme must be able to continue to enjoy their current rights until the end of the grace period. Where they apply to the scheme during the grace period, their existing rights will be preserved until that application is concluded. This will be implemented via regulations to be made under Section 7 of the EU withdrawal agreement Act 2020. We have shared a draft version with noble Lords so that they can see the provision we intend to make. EEA citizens resident by the end of 2020, and their eligible family members, will continue to be treated the same until 30 June 2021. We plan to lay the regulations very shortly so that they can be debated and made in good time before they come into force at the end of the transition period.

Following that lengthy explanation, I hope that noble Lords will be happy to withdraw their amendments.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, I will have to read what the Minister has said when I pore over Hansard, but I do not think that I am reassured in relation to the grace period SI. This SI refers to how the provisions of the EEA regulations 2016 continue to have effect despite the revocation of those regulations by this Bill—but it is the EEA regulations, unlike Appendix EU for the settlement scheme, which require CSI.

In accordance with the promise made by the then Home Secretary Theresa May in 2017, CSI would not be required as part of a settlement scheme application, but the grace period SI, by referring to the EEA regulations, as opposed to the rules under Appendix EU, that is EU settlement scheme rules, appears to be reintroducing the requirement for CSI. This is complicated and perhaps I have not properly understood it, and I will have to pore over what the Minister says.

Representatives of the 3 million were told by an official at the end of last week that there appeared to be a mistake, although this is only hearsay—perhaps this official did not understand any more than I did—but immigration lawyers who are trying to advise EU citizens on this think there is a problem. Referring to the EEA regulations incorporates a requirement for CSI—that is to say private health insurance—which has not been required during the settlement scheme application to date, but suddenly, in the grace period, it will be. Citizenship will also be required, but there is a discretion for that. Unlike for citizenship, there does not even appear to be a discretion to exempt it for settled status.

Clearly, the Minister, who is shaking her head at me, thinks I have continued to misunderstand this, but I remain less than reassured, and I hope I will manage to get it clearer in my own head. Perhaps more importantly, people whose profession it is to understand the EEA regulations and the settlement scheme, as opposed to a mere legislator, might be reassured by the Minister’s words, and I will defer to her.

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

I hope the noble Baroness takes a look at Hansard. These are not the easiest things that we are discussing, but I understand the grace period SI does not affect the criteria for the EUSS status. The SI is protecting the EEA rights of those who have them at the end of the transition period. I know we will speak further, and I know that she will read Hansard, but I hope in reiterating that point again, she will feel happy that the amendment is withdrawn.

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

I thank noble Lords. I, too, will supply myself with some hot towels and read through all that. We have another opportunity to discuss the grace period on Amendment 80, but I, like my noble friend, feel less than reassured. The issue is whether, without having sickness insurance, one has the relevant rights. The arguments seem to have moved over the past few months as to whether having CSI is necessary to exercise the rights or, in other words, whether you have been the exercising right to free movement or the treaty rights.

Some very pertinent points and questions have been posed during this debate. I wish my noble friend Lady Smith had not reminded me about tax returns and the amount of filing I have to do, but she was right and explained my reasoning on Amendment 45 better than I did. There has been a focus on individuals throughout this. I agree with my noble friend Lord Greaves that it is not about the numbers of people. What matters matters to 100% of each individual.

My noble friend has prompted me to realise that I have not got my head around what happens when the five years expires, or rather when you should apply if your five years are going to be relevant. If you do it the day after the five years has expired, what position are you in? I can see on screen that he is nodding, so at least we have identified the same questions.

The Minister talked about being pragmatic in terms of the reasons for not applying during the period. However, what the Government regard as pragmatic might not coincide with an individual’s view. I am still not really clear on what will be different in terms of the campaign in the remaining nine months. I am not suggesting that what is proposed will not have a use, but if it has not succeeded so far, will more of the same be successful in alerting the people who need to know?

I am not wedded to the drafting of any of these amendments. However, it seems to me that on this issue, the Government, in accepting the principles, would have no egg on their face at all. As I have said, I will of course think about it after today. For the moment, I beg leave to withdraw Amendment 44.

Amendment 44 withdrawn.

Amendments 45 to 47 not moved.

Photo of Baroness Henig Baroness Henig Deputy Chairman of Committees, Deputy Speaker (Lords) 6:45 pm, 14th September 2020

We now come to the group consisting of Amendment 48. I remind noble Lords 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.