Amendment 44

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (3rd Day) – in the House of Lords at 6:15 pm on 14th September 2020.

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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.