Amendment 44

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (3rd Day) – in the House of Lords at 5:45 pm on 14th September 2020.

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Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 5:45 pm, 14th September 2020

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.