Amendment 11

Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Report (1st Day) – in the House of Lords at 8:33 pm on 30 September 2020.

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Baroness Hamwee:

Moved by Baroness Hamwee

11: 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 Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, at the previous stage of the Bill and very late in the debate on this amendment, which was then in the name of the noble Lord, Lord Flight—I am glad that he is able to be here this evening—having listened to the Minister I asked what she would advise a couple living in the EU, one British and one an EU national, if they both have elderly parents, on one side of the family in the UK and on the other in that EU country. They would be—they are—faced with not just the end of free movement but an impossible choice: not just where they should live after March 2022 but which parents they should decide to care for personally. They will have to make that decision within the next 18 months—15 months after the end of the transition. The Minister had an impossible task in responding to my question as to whether picking between parents was a humane response. She argued that people will have had plenty of time, but does that really address the point?

Since Committee, I have had so many emails, as no doubt have other noble Lords, making it clear how many different family situations there are, but all presenting families with similarly impossible choices. I thank everyone who has written to me and to other noble Lords. They have taken such care to contact us, not with standard formulaic emails but with powerful descriptions of their situations, their concern and their distress. Noble Lords will understand that I want to read some of them into the record, and that I cannot read them all. As examples, however, there is a lady of 75 living in the Netherlands supporting a Dutch companion, and vice versa, whose mother is 96 and in a care home there. There is a lady of 79 in the UK who expected to receive support and part-time care from her daughter, who would be prepared to give it provided that her French husband is able to move to Britain. A couple in France with a 12 year-old son are faced with whether to uproot him from school. There is a family in Italy, one parent British and one Italian, with two teenagers of dual nationality—one of whom has just started at university in the UK, while the other may want to make her life here; the parents may want one day to follow their daughters. And so it went on.

We are a global society. Families come in all shapes and sizes, and in all places. Many people make the point that their residence outside the UK makes them feel no less British and that they are surprised to find themselves writing as they do. Many say that the prospect of separation from family is unbearable. All say that when they moved abroad, they had no idea that there could be restrictions or conditions on returning as a family.

The amendment provides that the regulations

“must make provision to enable UK citizens falling within the personal scope of” the agreements referred to

“to return to the United Kingdom accompanied by, or to be joined in the United Kingdom by, close family members” without

“conditions on the entry or residence of close family members … which could not have been imposed under EU law relating to free movement … on the day on which this Act comes into force.”

I have been asked about a detail of the amendment: the reference to “close family members”. As it happens, in a Select Committee yesterday the Immigration Minister used exactly that phrase in discussing family reunion. I suppose the technical answer is that these provisions would be implemented by regulations which would be precise, but by anyone’s definition partners and parents “where that relation subsisted”, which in the case of parents it obviously would, at the end of the year and continues to do so would fall within it, as well as children.

The Minister explained in the context of various amendments in Committee that the Government were seeking to be not discriminatory but to end discrimination between, on the one hand, EEA/Swiss citizens and, on the other hand, other citizens. But the Government’s proposals for ending the current arrangements in March 2022 would discriminate between those families of mixed nationality who happened to have settled in the UK and those who settled elsewhere in the EU. They would require Britons who wish to return to meet conditions for sponsoring a spouse and children.

The financial requirements—the minimum income requirements—are not easy nor by any means available to everyone. Some 40% of UK workers could not reach the minimum income requirement, and the non-British partner’s income can be taken into account only after six months, assuming he or she can get here in the first place. If you want to bring elderly parents, they have to be so much in need of care that, according to evidence given to a working party that I chaired some years ago, they would probably be unfit to travel. If you yourself are older and no longer earning, can you reach the income threshold? This would be discrimination against our own citizens, imposed retrospectively on citizens who had no expectation that this choice might lie ahead.

Lifting the end date would not mean unlimited numbers of people coming here with their families. As I have explained, we are talking about people who fall within the agreement, their families and children, and others with whom the relationship subsisted before January 2020. I asked rhetorically in Committee if this was really humane. I ask now whether it is the right approach—to ask that, I think, would also be rhetorical. Since Committee, I have begun to realise just how inhumane it is, so I give notice now—I suppose it is notice for Monday—that, barring assurances which I cannot say I anticipate, though they would be very welcome, I will press the matter to a vote in accordance with current procedure. For the purposes of the debate this evening, I beg to move.

Photo of The Earl of Clancarty The Earl of Clancarty Crossbench

My Lords, I have added my name to Amendment 11 in the name of the noble Baroness, Lady Hamwee. When I spoke to it in Committee, I genuinely thought that this was something the Government had overlooked. I discover that this is not the case and that there is some history behind the Government’s position. The reason perhaps for my naivety is that the argument as I saw it, and as I still see it, is very simple: it would be wrong to put a deadline on British citizens returning to the UK with their families. It would be deeply unfair to do so, and I am glad that the noble Baroness intends to press this to a vote if the Government do not accept the amendment.

The Minister cited in Committee the case that the Conservative Government of the day brought against Surinder Singh in 1992, and said at the beginning of her reply that the amendment

“refers to a specific cohort of people relating to what is known as the Surinder Singh route for family immigration.”—[Official Report, 9/9/20; col. 827.]

I fear that this statement betrays an element of cynicism in government thinking about this issue—for which I of course do not blame the noble Baroness. However, this is an inappropriate analogy, in the sense that the Government have clearly not accepted the decision made in Surinder Singh’s favour. It is an inappropriate analogy for a couple of other reasons. One is that there is a universal cut-off point that applies both to British and European families, which is of course the end of this year. We will not then be part of the EU and there will be a limit on the number of families, European and British, who might then come to this country from Europe.

The second thing to say is that we are talking about many British citizens who have been married for many years, often to other European partners—though it should not matter where in the world their partners have come from—and often they are building families with strong and complex roots in the UK and the rest of Europe. They have done so believing at the time that they had a settled life in Europe, wherever that may be in Europe; that was their bone fide position. Yes, people get divorced—and indeed married—for all kinds of reasons; that is life. But this Government are applying the Government of 1992’s perception of that case to generalise about all British families living in Europe. British citizens and their families in Europe are not that cohort, as this Government perceive it, and it is insulting to all British families currently living in Europe that they should draw that analogy.

As the Minister might imagine, it is clear that, among British citizens and their families abroad, the concerns are widespread. I will quote one example to add to the number that the noble Baroness, Lady Hamwee, has given. A British woman I have spoken to, in a relationship with an Italian citizen since before the referendum and now married with a two year-old boy, has a father in the UK. Her husband is tied to his job in Italy, and it is simply impractical for them as a family—and will be, perhaps, for another 10 years—to make the move that she thinks she may have to make at some stage to look after her father in the UK in years to come. Leaving it beyond March 2022 would become a bureaucratic nightmare that risks splitting up the family for several years, even if income criteria are eventually met. As we have already heard, this is by no means a lone case.

It is worth saying that over 50 veterans from across the armed forces who live abroad have signed a letter in support of this amendment, one that was co-ordinated by British in Europe. Some Peers may have received this already. Of course, from having been in the armed forces abroad, they will know precisely what these concerns will entail and, indeed, may have younger family members in this position too. As they say in their letter: “Why should service personnel or anyone who is British be discriminated against in this way?”

The Government’s position on this seems so unnecessary and unfair, especially in consideration of the fact that EU citizens who have settled status will—correctly—have lifetime rights to have existing spouses join them in the UK. This is a question of fairness and humanity, and I hope that the Government will relent.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 8:45, 30 September 2020

My Lords, I was pleased to attach my name to this amendment in the name of the noble Baroness, Lady Hamwee, but, after the powerful debate we had in Committee, I am very sorry that it was still necessary to put this down again.

In our debate on Amendment 6, the noble Baroness, Lady Smith of Newnham, referred to the long and continuing discussion the Minister, the noble Baroness, Lady Lister of Burtersett, and many others—including myself—had in Committee about the many amendments that we sought to have applied to all affected by immigration law, the ruling out of the scope of those amendments and the claims from the Minister that what we were tabling was subsequently discriminatory. However, that is an argument that cannot—or, certainly, should not—be applied to this amendment; the situation of Britons married or partnered with Europeans is particular, but it can only be said that it is particularly awful.

No one with a non-EU spouse or partner could have predicted the “onerous” and “unjustified” minimum income requirement applied in 2012. Those are not my adjectives but those of a High Court judge. What I would call an unreasonably harsh assessment might be to say “Well, they should have known that the rules could change when they made their family arrangements”. Yet the many Britons who have been writing to me—and, as the noble Baroness, Lady Hamwee, said, no doubt to many other Members of your Lordship’s House—who established families in Europe decades ago, in many cases, could not conceivably have imagined the dreadful state of British politics over the past five years that has brought us to the current pass. I join the noble Baroness, Lady Hamwee, in thanking all of them for taking the time and having the courage to share their circumstances with us in the hope that we can get the Government to listen.

Rather than making my own arguments, I want as closely as possible to let Jane, a Briton who gave me permission to share her story, speak for herself in your Lordships’ House. She says:

“I am a British citizen, resident in Italy since 1993 with my Italian husband and children; I have my widowed mother, aged 76, living alone in the UK. She is fortunately in good health at the present time. However, one must be realistic. In time, she may need extra care. As her only child, I, with my husband, have always reassured my mother that we would be there to care for her in her later years, but due to the possible outcome of this Bill, we are increasingly worried.

Like many other Britons who moved to the EU while Britain was a member, I had—and expected to keep—an almost unfettered right to return to the UK with my family. My mother and I were safe in the knowledge that I could always come back should the need arise. I do not want my mother to have this worry. I would like her to grow old knowing that we can come back to the UK should that need arise. Unless this Bill is amended, this right will be removed on 29 March 2022, creating impossible choices for me and thousands of families like mine.

The Government’s answer is that we are given 15 months from the end of transition to return with our families to the UK. This is ignoring the massive practical difficulties of uprooting ourselves from family life and work in our country of residence. I have my own business here in Italy, not to mention my husband’s work and our children’s education, and there may be no need for that uprooting.”

Will the Minister personally respond to Jane and tell her what the Government’s justification is for putting her and her family in this situation?

The Green Party group wholeheartedly offers the noble Baroness, Lady Hamwee, its support if she chooses to put her amendment to a vote.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I was prompted to speak in support of the amendment by an email that I received this week from a British citizen born of British parents in Britain. During voluntary service overseas, she met and married an Italian. She lived in Italy, working for a UN agency for 30 years. They adopted a boy whose nationality is Italian. After her husband died, she hoped to return to the UK, where her brother and sister live. However, this would now mean her leaving her son behind, which, she writes,

“I could never do. We are very close. I could never leave him behind, with me in one country and him in another.”

Both she and others in a similar situation cannot believe that their families will be split up in this way in future.

I refer to what the Minister said in Committee at the end of the debate on another amendment relating to family reunion. She appeared to agree with the argument of the noble Lord, Lord Green of Deddington, for raising the minimum income threshold—referred to earlier by the noble Baroness, Lady Hamwee—from £18,600 to £25,700, or even £38,000, to cover the cost of public services or make a net contribution to public finances. I know that these figures came from the Migration Advisory Committee but they are premised on a narrow understanding of what constitutes a contribution to our society. It is the same kind of thinking that will exclude care workers and other key workers from immigration, as we heard during the debate on a previous amendment. The argument discounts the importance of the right to family life. I hope that the Minister will say now that I misread what she was saying and that she was not supporting the suggestion to raise the threshold.

The damaging impact of the minimum income threshold has been documented in a number of studies, most recently from the University of Bristol. It wrote of

“not just emotional impacts of separation, but financial, mental and physical hardship.”

The family reunion rules divide far too many families already. They need reviewing. For now, we can at least prevent even more families—like those of the mother who emailed me and the many other people who have emailed other Members of your Lordships’ House—being split up in this cruel and heartless way. We can prevent that happening by supporting this amendment.

Photo of Lord Oates Lord Oates Liberal Democrat Lords Spokesperson (Energy and Climate Change)

My Lords, my noble friend Lady Hamwee has already eloquently set out the powerful arguments for this amendment, as have the noble Earl, Lord Clancarty, and the noble Baronesses, Lady Bennett of Manor Castle and Lady Lister of Burtersett.

As my noble friend Lady Hamwee told us, in Committee she asked the Minister how she would advise a couple, one British and one an EU national, who both have elderly parents, in which country they should choose to live. Which set of elderly parents should they pick? In response, as my noble friend reminded us, the Minister said that the Government had given people “plenty of time”, but that is not an answer. It does not matter how much time they have had; they could have had all the time in the world. It does not change the fact that the Government are forcing them to make an invidious choice, to make it by 2022 and to live with it ever after. If they need to stay in the EU member state of the EU national to look after his or her parents, after 2022 they will no longer be eligible to return to the UK together. I ask the Minister once again: how should that family make their choice? I would like her to provide an answer to that essential question—which she failed to give to my noble friend—because it goes to the heart of the issues and the terrible choices that will be inflicted on our citizens and their families as a result of the Government’s policy.

The Government have made much of taking back control. This is a test for Ministers of what that control will mean in practice. Will they act with compassion or with cold-hearted indifference and in doing so inflict intolerable injustice on thousands of families of our citizens? I am sure I am not alone—and we have heard testimony from previous speakers—in having been contacted by numerous British citizens with heartrending stories of the misery that the Government’s present policy will cause to them and their loved ones. People who settled as British citizens in the EU and who made their lives there with their partners, who now, through no fault of their own, face their future plans being torn up by ministerial obduracy and callousness.

One such example is Fiona, who lives in Luxembourg with Miguel, her German-Chilean husband. He studied his O and A-levels in the UK, where his father was a professor. He later took a job as a translator in Luxembourg, where Fiona joined him. They have now been married 25 years and have lived in Luxembourg all that time. They always assumed they would be able to return together to the UK, as Miguel was an EU citizen, and they made their life plans on that reasonable assumption. Now—through no fault of their own—unless they return before 2022, Fiona would only be able to do so alone. In theory, her two children could come with her, as they are dual nationals, but if this is the way the UK intends to treat their German father they have no wish to do so, and I cannot say I blame them. Fiona says: “As a British citizen, I feel exiled from my country of birth and the rest of my UK family.” That is the reality of the Government’s position: to de facto exile British citizens from the land of their birth.

The only argument I have heard Ministers advance to justify the injustice they are about to inflict is that somehow maintaining the existing position would not be fair on British citizens living outside the EU who are married to non-UK nationals. This is the hollowest of empty arguments. British citizens moving to live in an EU member state had the reasonable expectation that they would be able to return to the UK with their partner at any point. The gross injustice lies in the fact that existing rights are being stripped away. If the Government do not move on this policy, British citizens will face a very stark choice come 2022: they will either have to return alone, without their wife, husband or other family members, or not at all. That is the reality.

I hope that all Members of the House will be clear, when they eventually get to vote on this amendment, that they will not be voting on some abstract piece of policy; they will be deciding the future of thousands of British citizens and their families. They will be deciding whether those families have to pick which elderly parent they will stay to care for, or which life plans they have to tear up. Above all, they will be deciding whether to lift a massive burden of anxiety from the shoulders of our citizens in the EU or to impose a further weight of misery upon them. Even at this late stage, it remains in the Government’s hands to show, by accepting this amendment, that they have a human face. However, if they do not, I hope that they will be resoundingly defeated when the virtual Lobbies function once again.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench 9:00, 30 September 2020

My Lords, I congratulate the Minister on her stamina and courtesy in enduring a lot of Second Reading speeches earlier. I wonder whether, like me, she misses Lady Mar, who was very good at intervening on Report to criticise those making Second Reading speeches. This debate is rather different and I sympathise with the Minister for a different reason: she has a very difficult task in answering the question from the noble Baroness, Lady Hamwee, repeated again tonight.

The oddity of this debate is that we are seeking to avoid discrimination against UK citizens. The EU citizen who is here now or will be coming here by the end of this year has, quite rightly, the right to keep here or bring in family members, but from 2022 the UK citizen living abroad, where he or she went exercising legitimate expectations, will have that right withdrawn. I agree with everything that the noble Lord, Lord Oates, has just said.

I find it hard to understand the response that the Minister gave to the question from the noble Baroness, Lady Hamwee, last time. I am particularly puzzled by the Catch-22 situation: from 2022, the accompanying partner will have to satisfy the minimum income requirement, but how will the returning partner be able to demonstrate the six-month history of earning in order to satisfy the requirement? It seems to be a really rather vicious Catch-22.

However, the core of the matter is the extraordinary callousness of requiring our citizens living abroad to make the difficult choices that are spelled out in our email inboxes these days: whether to break up the family, to favour looking after a dependent relative in the country of residence somewhere in the EU 27, or to come back to look after a dependent relative in this country. Those are the only three options available. It really is extraordinary that we should put our citizens in that position. They exercised their legitimate expectations and expected to lose none of their rights—and were told that they would lose none of their rights—when they chose to marry and live somewhere in the EU 27, or 15 or 12, or whatever it was at the time.

We need a proper answer to the question from the noble Baroness, Lady Hamwee. If we do not get one—and I feel sorry for the Minister, because I do not think that she will be able to answer satisfactorily—then I will certainly vote for this amendment.

Photo of Lord Judd Lord Judd Labour

My Lords, the noble Lord, Lord Oates, was absolutely right. Do we want to be a society based on compassion and concern, or to become a nation without a beating heart on humanitarian issues of this kind? As far as the European Union is concerned, there is of course a special challenge because citizenship means citizenship, going right back to classical times, but we took away what people in good faith had come to understand as their citizenship and the rights that followed from it when they went to make lives, futures and careers overseas. They never dreamed that they were breaking links with their home base. Many of them wanted to return at some point and of course, as we have heard from one speaker after another, many have families rooted here for which they feel responsible; they want to be able freely at a time of crisis to return and succour the needs of such people.

It is altogether good news that the noble Baroness, Lady Hamwee, has moved this amendment; it represents the kind of Britain in which I want to live, given the values behind it. Do we believe that families are fundamentally important psychologically, for mental health more generally, for physical health and to the well-being of citizens, or not? Do families provide a unit of stability in the midst of an increasingly complex, demanding and unpredictable world, or do they not?

What are we doing with this Bill? It is almost impossible to understand how the Government have got themselves into this position. I hope we stand very firmly behind the noble Baroness this evening, or whenever it is we are allowed to vote on this matter.

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

I support the amendment in the name of my noble friend Lady Hamwee. That probably comes as no surprise to noble Lords.

I am going to do something that I normally try not to, and that is to rehearse one of the arguments that has been going on for years. For five of the six years that I have been a Member of your Lordships’ House we have been talking about having a referendum on leaving the European Union, having that referendum, and then trying to deal with the fallout from it. The debates that we were having in October 2015 have been rehearsed again and again. I have tried not to rehearse them; I recognise that the UK voted to leave, that we have left and that at the end of the transition period things will be different.

However, one of the points made during the debates on the European Union Referendum Act 2015 was the importance of enfranchising EU nationals resident in the UK but also UK nationals resident elsewhere in the EU. That was suggested precisely because those groups of people were disfranchised yet were potentially going to—I will not use “suffer”, as I realise that that could be seen by some as inflammatory—be more clearly affected than many of the rest of us who are not actively using our rights as EU citizens. British citizens who have opted to use their rights under EU law to marry, reside and exercise the right to family life as EU and UK citizens should not have those rights torn away from them.

We have heard many individual cases this evening, but I will take a slightly more general approach. When an EU national is working abroad in another EU country, family members also have the right to reside and work in that country, regardless of their nationality. That has applied to UK citizens. The Minister puts forward the idea that somehow people have 15 months to make a make-or-break decision: “You can come back now or stay away. You can’t come back with your spouse, your children, your in-laws, your close family members.” Is that really what people thought that they were voting for? Taking back control surely is about us making the right decisions. They do not have to be xenophobic or exclusionary, or choices that say no to people. Why should we make it harder for those British citizens who have chosen to live in other countries—because they were exercising their rights and living with people they loved—to be back in the United Kingdom after March 2022 than it will be for EU citizens with settled status? We should at least be as generous to our fellow British citizens who have used their EU rights as we are to EU citizens who will benefit from settled status. Can the Minister please talk to her colleagues in the Home Office and make the Government think again?

Photo of Lord Flight Lord Flight Conservative

My Lords, I hope that the Government have already seen what course of action they should take. I can see absolutely no sensible reason for the proposals being as they are and, apart from the issue of acting in a civilised way towards individuals, I cannot believe that so many people or such high costs are involved, so I cannot understand why so far the Government have been stuck on this issue.

As we know, the purpose of the amendment is to preserve the rights of UK nationals living in the EEA and Switzerland who return to live in the UK in future to bring with them or to be joined by non-British family members on the same terms as at present. Unless this Bill is amended, British citizens who moved to the EU or EEA while the UK was a member of the EU 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 an elderly parent, thousands will now have to choose between returning alone and leaving their families behind or abandoning their parents to stay with their non-British families in the EEA. Nobody should have to face such a choice.

The problem is that the Government are using the end of free movement to make these British citizens for the first time meet the minimum income requirement for family reunion. The MIR has been roundly criticised, because it is so high that 40% of UK workers would not be able to reach 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 can they get into the UK if they cannot satisfy the MIR? The MIR is harsh but what makes it doubly unfair to apply 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 the EU or EEA, those people were safe in the knowledge that if they established a family while they were abroad they could bring them back to Britain, and the British parents they left behind had the same expectations.

It also leads to the perverse result that the British Government’s approach involves discrimination against its own citizens: while British citizens who have moved or will move to the EEA before the end of 2020 will face these restrictions, EU citizens who have moved or will 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 rights to return to their country of birth with families they have made in the UK.

The Government’s answer is that they have given us 15 months from the end of transition to return with families to the UK. This ignores the massive practical difficulties of uprooting adults from work and children from school at a time when there may be no need to do so. As the noble Baroness, Lady Hamwee, put it so well in Committee:

“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?”—[Official Report, 9/9/20; col. 829.]

I just add that I believe we should welcome warmly refugees fleeing vicious regimes who want to come to the UK and often put their lives at risk to be here. Many are highly skilled and they and their families will, in time, make huge contributions to this country. I would like to see us be helpful and welcome them. I detect quite often nowadays that the approach is rather more aggressive. Let us be civilised.

Photo of Lord Dubs Lord Dubs Labour 9:15, 30 September 2020

My Lords, I am grateful to the Minister, who, as always, makes herself available and is happy to give us briefings and have chats about impending legislation. I had quite a long chat with the Minister the other day about this Bill and this amendment.

I cannot help feeling that the Government are making an enormous mistake. This is not the way to treat people; this is not the way to behave. We were told that people will have 15 months to sort themselves out, but this proposal takes away a basic right—whether you have 15 months or longer to accept it, it is still taking away a basic right. That is surely unacceptable.

As the noble Lord, Lord Flight, just said, this is retrospective legislation. Nobody knew at the time; this has been invented subsequently. Not a single person in this position—and I have had masses of emails, as we all have, with terribly sad stories of people who are bewildered and agonised over what to do—had any idea that this was going to happen to them. None of us did until recently. For a year or two after the referendum, we had no idea that this would be the case.

When I had a chat with the Minister and her officials, one of the arguments put—I do not think I am out of order in putting the argument, as she is bound to put it herself later—was that we would have two sorts of British people. Say we had a British person married to an American, compared with a British person married to a French person: the British person married to an American would not have the right that we are arguing for on behalf of the British person living with an EU partner. But, of course, no British person married to an American ever thought that they would have that right, but we are taking away the right from people who expected to have it all along.

As the noble Lord, Lord Flight, also said, this discriminates against British people. How does it do so? An EU citizen living in Britain with a British partner has the right to go backwards and forwards to EU countries with no constraints of the sort that we are seeking to impose on British people. We have retrospective legislation that will discriminate against British people, which is surely outrageous, and the arguments do not stand up. I honestly believe that the Government should back off. This is a very big mistake.

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

My Lords, I will not go through and repeat all the arguments in favour of this amendment, so eloquently put by many noble Lords. I agree wholeheartedly with what has been said. I want to read from one of the emails that I have received. It says: “I am a British citizen, born and bred in England, who currently lives in France with my Dutch partner and our 12 year-old son. My ageing parents still live in the UK and it is not beyond the bounds of possibility that at some point in the future, I would like to return to live in the UK, principally to be closer to my parents and to help look after them in the autumn of their years. I was horrified to learn that, as things currently stand, from 2022, I would face a means test in order to return to the UK with my family—a means test to return to the country of my birth and of which I am a fully fledged citizen. I am sure you can appreciate what an absurd situation this is. Like all other British citizens who moved to the EU while Britain was a member, I had and expected to keep a right to return to the UK with my family. At the time I left the UK, my parents were safe in the knowledge that I could always come back, should the need arise. Many of us met a non-UK partner while living in the EU and made a family with them, believing that our family would remain united wherever we lived. Unless this Bill is amended, our right to return home with our families will be removed from 29 March 2022, leading to impossible choices for me and thousands of families like mine. This would be a completely inhumane situation.”

I shall read just the last sentence of another email I have received. It says simply: “Unless this Bill is amended, the right of UK citizens to live in their own country with the partners of their choice will be negated for no obvious benefit to anyone. Is this a humane or necessary approach?” No doubt that is a question that the Government will answer in their reply, but I say now that if this amendment is put to a vote, we will be supporting it.

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

My Lords, I thank all noble Lords who have spoken in the debate, in particular the noble Baroness, Lady Hamwee, for speaking to Amendment 11, which seeks to continue the current family reunion arrangements provided under EU law, as the noble Earl, Lord Clancarty, pointed out, by the so-called Surinder Singh route. This amendment was tabled by my noble friend Lord Flight in Committee. It would require the regulations made under Clause 4 to provide a lifetime right 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 under current EU free movement law terms. The amendment seeks to provide this cohort with preferential family reunion rights under EU free movement law indefinitely. The result would be that the family members of such UK nationals would forever bypass the Immigration Rules that otherwise apply to the family members of UK nationals.

Family members of UK nationals who are resident in EEA states and Switzerland at the end of the transition period are not protected by the withdrawal agreements. However, the Government made the decision to provide arrangements for them. They 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. 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. Those family members will then be eligible to apply for status to remain here under the EU settlement scheme. Family members will, of course, be able to come to the UK after 29 March 2022 but will then need to meet the requirements of the Immigration Rules applying to family members of UK nationals, irrespective of where they come from.

A number of noble Lords asked me to advise them on what choices they would make. For a number of reasons, I cannot do that, not least because I am not an immigration lawyer. But it is not the case that UK nationals who wish to return to the UK from living in the EEA after 29 March 2022 will be required to abandon family members overseas. Those families will have to meet the requirements of the UK family rules, as I have just said, the same as family members of other UK nationals who already have to do this. This is a matter of simple fairness.

In Committee, my noble friend Lord Flight, was concerned that we were affording lesser rights to UK nationals than to EU citizens in this regard. Under the withdrawal agreements, EEA and Swiss citizens have lifetime rights to be joined here by existing close family members, but only if they are resident in the UK by the end of the transition period. UK nationals in EEA states and Switzerland have the same rights of family reunion in their host countries. By contrast, the amendment does not specify a date by which the UK national must return to the UK, meaning they could return at any point in the future and continue to benefit from EU family reunion rules. Such preferential treatment is unfair and cannot be justified in relation to the family reunion rights of UK nationals outside of EU law. The rights for those affected by the end of free movement should, after a reasonable period to plan accordingly, which our policy 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 perpetuate a manifestly unfair situation for all other UK nationals wishing to live in the UK with family members from other countries.

The noble Baronesses, Lady Hamwee and Lady Bennett, the noble Lord, Lord Kerr, and my noble friend Lord Flight touched on the minimum income requirement. I appreciate the concerns that noble Lords raised in Committee. We think that the threshold is set at a suitable and consistent level and promotes financial independence, thereby avoiding burdens on the taxpayer. The MIR, as it is called, has been based on in-depth analysis and advice from the independent Migration Advisory Committee. The Supreme Court has also endorsed our approach in setting an income requirement for family migration which prevents burdens on the taxpayer and ensures that migrant families can integrate into our communities.

The noble Baroness, Lady Lister of Burtersett, referred to something that I mentioned in Committee. I am not sure that I am going to get this right. If I do not, I shall write to her or we can come back to it again. She was talking about £25,700. I understand that the minimum income requirement for a partner or spouse is £18,600, rising to £22,400 for sponsoring one child and the same again for sponsoring another. Can we speak after Report, or I will write to her after looking at Hansard?

My noble friend Lord Flight and the noble Lord, Lord Kerr, talked about Catch-22 in meeting the minimum income requirement. It does not exist as noble Lords described, as the minimum income requirement is generally to be met from the UK national partner rather than from the foreign national partner.

I know that I shall not have reassured noble Lords, because many of them tell me that they are going to vote on this, but that is my explanation of the logic of what the Government are doing. I hope—but I doubt—that the noble Baroness will withdraw her amendment.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 9:30, 30 September 2020

My Lords, I agree with the noble Baroness on one thing: I am not going to withdraw my amendment. I thank all the speakers, all those who have written to us and the organisation British in Europe, which has helped us understand the position and made sure that so many British people in Europe understand it.

It was notable to me that the speakers all used different examples. I think all of us have had the experience of being briefed and finding that one’s briefing is anticipated by several previous speakers—not so today. Our correspondents have written a variety of speeches for us. What I had not known until this evening was the position of veterans who served in the Armed Forces abroad, and who—this is very powerful—are making their views known. I am grateful to the noble Earl for raising that.

The Minister said we were asking to for ever bypass immigration laws. That is a very loaded way of putting it. She talked about simple fairness; well, simple fairness demands not changing the rules affecting our fellow citizens, who could never have anticipated the situation, nor anticipated that their own spouse would be regarded as an unacceptable burden on the state.

We should not be callous, to adopt one term that is being used, about the legitimate expectations of our fellow citizens. Let us not be callous, and, as the noble Lord, Lord Flight, said, let us be civilised. So, I do not beg leave to withdraw the amendment, and I will put it to the House when we are able to have a Division on the matter.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees

I will now put the question on Amendment 11. Notice has been given of the intention to press this amendment to a Division. I will need to collect the voices, but if there is a dissenting voice, the Division will have to be deferred.

Remote Division on Amendment 11 deferred.

We now come to the group consisting of Amendment 12. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in the debate.