Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 - Motion to Approve

– in the House of Lords at 4:16 pm on 22nd October 2020.

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Baroness Williams of Trafford:

Moved by Baroness Williams of Trafford

That the draft Regulations laid before the House on 21 September be approved.

Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, in moving this Motion, I will speak also to the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020 and the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.

Since the referendum, the Government have prioritised the protection of EU, other EEA and Swiss citizens who have made their home in the UK. We have repeatedly said that they are our friends and neighbours and we want them to stay. Parliament passed the European Union (Withdrawal Agreement) Act 2020 to protect their rights.

The Government have established the EU settlement scheme to provide a simple means by which they and their family members can obtain the status they deserve to remain living and working in the UK. More than 4 million applications to the scheme have now been received and nearly 3.8 million grants of status have been made. This is a remarkable achievement and the biggest immigration scheme in UK history.

The Government have now brought forward three statutory instruments that further protect citizens’ rights. They give effect to the UK’s obligations to EU, other EEA and Swiss citizens—who I will refer to as EEA citizens for simplicity—under the EU withdrawal agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement. The instruments are made under powers in the European Union (Withdrawal Agreement) Act. I will explain briefly the purpose of each.

The first SI is the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020—or the grace period SI. The Government were pleased to share an illustrative text of the statutory instrument with the House in early September. Noble Lords also discussed this instrument in Committee on the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.

The grace period SI has two purposes. First, it establishes the deadline of 30 June 2021 for applications to the EU settlement scheme by those EEA citizens and their family members who are resident in the UK by 31 December this year—the end of the transition period. Secondly, it saves existing relevant EU law rights for those EEA citizens and their family members who are lawfully resident in the UK at the end of the transition period but who have yet to obtain status under the EU settlement scheme. This is because, at the end of this year, the Immigration (European Economic Area) Regulations 2016 will be revoked, subject to Parliament’s agreement to the Immigration and Social Security (EU Withdrawal) Bill. The grace period refers to the period between the ending of free movement and the deadline for applications to the scheme.

The SI saves existing relevant EU law rights for those who make their EU settlement scheme application before the end of the grace period, until the application is finally determined. It makes some modifications to the EEA regulations to reflect the end of free movement, as well as to reflect recent case law, which remains binding on the UK. It does not alter the eligibility criteria for the EU settlement scheme; nor does it affect the Government’s commitment, in line with the agreements, to accept late applications where there are reasonable grounds for missing the deadline.

Broadly, the instrument maintains the status quo during the grace period, meaning there is no change to the way in which EEA citizens live and work in the UK. Those who have yet to apply to the scheme, whether they are here lawfully or not at the end of the transition period, will be in no lesser position in respect of their rights of residence in the UK on 1 January 2021 than they were on 31 December 2020, pending an application to the scheme.

The second statutory instrument is the Citizens’ Rights (Frontier Worker) (EU Exit) Regulations 2020, or the “frontier workers SI”, as I will refer to it. This instrument protects the rights of EEA citizens who work in the UK but live elsewhere, who are referred to as “frontier workers”, by 31 December 2020. Protected frontier workers have the right to continue to come here to work once free movement has ended for as long as they continue to be a frontier worker.

In accordance with the withdrawal agreements, the instrument will establish a frontier worker permit scheme so that protected frontier workers can apply for a permit certifying their rights under the agreements. The permit does not grant frontier workers a new immigration status. The frontier worker permit scheme will open in December this year. Applications for frontier worker permits will be made online, and the process will be simple, streamlined and free of charge.

From the end of the grace period, which is 1 July 2021, frontier workers will be required to hold a valid frontier worker permit in order to evidence their right to enter the UK on this basis. The instrument also sets out the circumstances in which a protected frontier worker’s rights can be restricted and a permit can be refused or revoked, in accordance with the withdrawal agreements. Finally, the frontier worker SI provides protected frontier workers with statutory rights of appeal against decisions that restrict their rights as well as a right of administrative review against certain decisions concerning eligibility.

The third instrument is the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020, or the “restrictions saving SI”. This instrument gives effect to the UK’s obligations under the withdrawal agreements. When restricting the rights to enter or reside of a person protected by those agreements, the agreements require the UK to consider conduct committed before the end of the transition period in accordance with the current EU public policy, public security and public health test. We are also extending this approach to people protected by the UK’s domestic implementation of the agreements. Therefore, the EU law threshold will apply to those who are protected by the agreements or by the UK’s domestic implementation of them. This includes those who have status under the EU settlement scheme, have an EU settlement scheme family permit, have a right to enter the UK for the purpose of a continuing course of healthcare, have entered the UK as a Swiss service provider or are a frontier worker.

However, now that we have left the EU, it is right and important that we create parity for all foreign nationals in the UK. Currently, there is a stricter and more specific test for non-EEA nationals liable to deportation than that for EEA citizens. This means that it is easier to deport non-EEA nationals who have committed criminal offences. A similar distinction exists for other types of restriction decisions—for example, a person’s exclusion from the UK. Conduct committed after the end of the transition period will be assessed according to the same UK criminality thresholds that apply to non-EEA nationals. Again, this is consistent with the agreements and creates a fair immigration system for all.

This instrument will come into force once the Bill revokes the EEA regulations at the end of the transition period, subject to the agreement of Parliament. We need to save and modify relevant provisions in the EEA regulations in so far as they apply to deportation decisions in order to comply with our obligations under the withdrawal agreements. This will allow us to apply the current EU law thresholds to conduct committed before the end of the transition period. The instrument also provides that deportation decisions made in accordance with these protections continue to be appealable in accordance with the UK’s obligations.

These three draft instruments implement the Government’s citizens’ rights commitments under the withdrawal agreements, and I commend them to the House.