Amendment 79

Nationality and Borders Bill - Report (3rd Day) – in the House of Lords at 11:06 pm on 8th March 2022.

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Lord Oates:

Moved by Lord Oates

79: After Clause 78, insert the following new Clause—“UK immigration status: certification (1) The Secretary of State must issue physical proof confirming immigration status to anyone who has been granted such status under the immigration laws of the United Kingdom and who requests such proof.(2) No fee may be charged for issuing physical proof under this section.(3) The certificate mentioned in subsection (1) must confirm that the relevant person has the relevant status.(4) The certificate mentioned in subsection (1) is valid for right to work checks, right to rent checks and all other checks that may be undertaken by agents within and without the United Kingdom to confirm the relevant person’s UK immigration status including permission to travel to and enter the United Kingdom.”Member’s explanatory statementThis new Clause would require the Government to issue a physical certificate to all people with a UK immigration status, allowing all those with such status to provide documentary proof.

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

My Lords, Amendment 79 would require the Secretary of State to provide physical proof of immigration status to anyone who has been granted such status and requests such proof. The arguments for providing physical proof alongside digital status have been aired extensively in this House, most recently in the debates on the then Immigration and Social Security Co-ordination (EU Withdrawal) Bill, when your Lordships overwhelmingly supported a cross-party amendment to this effect for EEA citizens with settled or pre-settled status. I am heartened that this amendment has also received support from across the House, and I am grateful to all the signatories of it.

This amendment differs a little from my 2020 amendment in that it covers not just EEA citizens with settled and pre-settled status but also non-EEA citizens who have immigration status. That is because, despite the huge difficulties and anxieties caused by digital-only status, the Government have decided to extend it to non-EEA citizens who previously were able to use biometric residence permits, biometric residence cards or frontier worker permits.

Whatever the merits or otherwise of a digital-only system, one would imagine that before introducing such a radical change the Government would have undertaken extensive trials to check that the system worked and could be easily operated by those who had to use it. In fact, the Government conducted only one such trial in 2018, which concluded:

“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”

The Government ignored that finding and ploughed on.

A comprehensive document setting out many of the difficulties users have encountered was submitted to the independent monitoring authority by the3million in November last year, and I raised a number of specific concerns when we debated this amendment in Committee. These included problems with updating status when a person received a new passport, multiple errors in the view and prove system, and even immigration officials demanding physical proof of settled status.

The Government set up a settled status resolution centre, which, confusingly to everyone, works alongside the UKVI resolution centre. At the outset, those who received a letter telling them they had received settled or pre-settled status were not provided with any contact number at all if something went wrong. Subsequently, the letters included the number of the EU settlement resolution centre for people to contact—but many cannot even get through. Despite the Home Office asserting in meetings with stakeholders that callers who did get through to the resolution centre had to wait an average of 14 minutes, it could not or would not say how many did not get through, although it acknowledged that demand was managed. That seems to mean that callers were simply disconnected to keep waiting times down. For example, the transcript of a call made on 12 November 2021 and included in the submission to the independent monitoring authority showed that the call had been automatically disconnected regardless of the options chosen.

The full scale of the problem has come to light only recently, because until then the Home Office resolutely refused to provide detailed information on the performance of the resolution centre. In 2019, an FoI request to obtain this information was refused, on the grounds that the data was already planned for publication. However, as no such publication subsequently took place, a new FoI request was submitted in July 2021. After repeated follow-up requests, an internal review and a referral to the Information Commissioner’s Office, the information was finally published on 1 December last year. It immediately became clear why the Government had been so reluctant to publish the data, because it showed that, over the 12 months to October 2021, just 44% of the calls to the EU settlement resolution centre were successfully connected.

In response to all these difficulties and to the Government’s rejection of biometric residence cards for EU and EEA citizens with settled and pre-settled status, the3million made the constructive alternative proposal of a barcode system similar to the one we had for Covid vaccination status. The Minister responded to this suggestion in Committee by saying:

“He mentioned the QR code, and I totally agree; the QR code has worked brilliantly throughout the pandemic for certain things such as updating your Covid vaccination status. I will take that back to the Home Office and report back on any progress … but I support the whole principle of being able to use a QR code”.—[Official Report, 10/2/22; cols. 1981-82.]

At last, after so many years debating this issue, there seemed to be a glimmer of hope and some common ground.

How naive I was. Last Friday, the3million received a letter from the Home Office rejecting the idea of a barcode. It is four pages of bureaucratic obstructionism without any acknowledgement of the problem that needs to be addressed, the anxieties of those whom the policy affects, or any positive proposals about a way forward. It makes a whole series of inaccurate assertions that could easily have been corrected if those involved in determining the policy had engaged effectively with those affected by it, but they did not.

Having finally agreed to a meeting for the 3million to present the proposal, the Home Office then took eight months to respond to it and refused to hold an interim meeting with the group during that time to discuss progress with its assessment of the proposal. It then produced a wholly negative response that rejects the proposal out of hand on grounds that are simply wrong and could have been corrected had the interim meeting taken place.

The truth is that the Home Office had made up its mind before it had even begun. Unfortunately, this sort of response is not a one-off but part of a pattern of behaviour at the Home Office that was identified in the independent Windrush Lessons Learned Review—commissioned by the Home Office—which states on page 141:

“It is not clear that the department has learned the wider lesson that it should be engaging meaningfully with the communities it serves. The true test will be whether stakeholders, including those considered to represent critical voices, are firstly invited to participate in developing the department’s policies, and also in designing, implementing and evaluating them.”

The Home Office’s response to the barcode proposal makes it abundantly clear that this test has been comprehensively failed. At the heart of this issue is whether the Home Office is willing to listen to the users of its services and take on board their concerns, or whether Ministers and officials are impervious to them and simply determined to pursue their policy regardless of the consequences.

As I have said in all our previous debates, this is ultimately about people’s lives, the unnecessary difficulties and anxieties being imposed on them, and the Home Office’s seeming inability to recognise or empathise with those concerns. I hope that the Minister and her department will reflect on how their response fits into the wider cultural problems in the Home Office and come back with a proposal that will fix this problem, rather than continuing to pretend that it does not exist. I beg to move.

Photo of Lord Kerr of Kinlochard Lord Kerr of Kinlochard Crossbench 11:15 pm, 8th March 2022

My Lords, I supported the noble Lord, Lord Oates, last time, as did the House, as he said, by an enormous majority. I did this because I was impressed by the postbag I got from people who argued that they would feel more confident, and that it would be easier to rent accommodation, open a bank account and so on, if they had some physical proof. I am sure that is the case.

The Minister then argued against me that there was a cost involved in doing as I asked and providing physical proof. I confess that she was probably right. There is no cost involved now if one follows the example of the QR code on the NHS vaccination app. That works brilliantly well, as she acknowledged in Committee, and I see no reason why it should not be applied here. There is no reason why one should not be able to download a document off the Home Office website, and present it—with the QR code on it—as the necessary authentication, thus avoiding the need for any biometric card. It seems to me that it is now genuinely cost-free.

Since it would provide considerable reassurance to a large number of people, I hope that this time the Minister will feel able to accept the amendment in the name of noble Lord, Lord Oates.

Photo of Baroness Shackleton of Belgravia Baroness Shackleton of Belgravia Conservative

My Lords, I speak not only on my own behalf but on behalf of my noble friend Lady Altmann, who has had to leave the Chamber due to the illness of one of her children.

I sat on the Select Committee which investigated settled status. We interviewed, at length, as I have said before, the ambassadors for the other European countries. Each and every one of them identified as the most egregious problem the lack of giving their nationals with settled status physical proof. What was more abhorrent is that every English person living in their states was offered such physical proof.

As I am known to be speaking out on this, my inbox has been inundated with examples of people being stuck at airports, at hospitals and when renting. It is iniquitous, because the Government have failed to give any comprehensive, sensible, rational reason why they will not simply change their mind and look at this from the perspective of the people being disadvantaged by it. If I could be persuaded that it was just about money, I am sure that given the choice of having to buy physical proof for a small fee, most applicants would be more than happy to pay to give them peace of mind.

It is simply not good enough to rely on machinery. Machinery lets us down. Why do we have a centre outside the Chamber for when our voting system does not work? Why do we have back-up systems? What happens when the power goes down? What happens when people interfere with systems, which is probably going to happen in any war? What happens if you are dispossessed?

The Government should reflect seriously on how we welcome the many people who live in this country and who give their lives for this country. They are considered to be citizens equal to the people born here but they are disadvantaged by not having the simple provision of a piece of paper—a card, a passport, a driving licence or any other of the pieces of paper we carry around—with no viable explanation as to why it is refused. Please, can they change their mind?

Photo of The Earl of Clancarty The Earl of Clancarty Crossbench

My Lords, I have added my name to Amendment 79. I did not speak on this in Committee, but I did raise this concern in a question on 1 July last year. The Minister told me then that the Home Office had recently met with the3million—that was on 21 June—to discuss this in relation to European citizens. As the noble Lord, Lord Oates, has said, that was over eight months ago, so there has been a lot of dragging of feet.

The recent letter from the Home Office to the3million, with its rejection of the use of a QR code, is hugely disappointing. Perhaps even more disappointing is the fact that the response does not start from the premise that physical proof is a necessity—indeed, quite the opposite. It perversely insists on disputing what is a clear necessity for a significant number of citizens, as the3million would have explained carefully to the Home Office in that aforementioned meeting. In Committee too, the noble Lord, Lord Oates, gave many examples of where physical proof is necessary. We have just heard how noble Peers have had their inboxes inundated.

Whatever happens to this amendment, it is important that the dialogue between the Home Office and the3million continues. I know it has written to the Home Office today addressing every single one of the objections that the Home Office has raised concerning the proposal for the use of a QR code. If it would be helpful, is the Minister willing to meet a number of interested Peers, alongside a representative of the3million, to discuss a way forward?

A purely digital approach is not a panacea in this regard, even if the Government wish to believe it is. There needs to be the option of physical proof of status. I will certainly vote for Amendment 79 if it is taken to a Division.

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

My Lords, the noble Lord, Lord Oates, ran off an extremely impressive list of people and groups supporting this amendment for physical proof. I add the European Affairs Committee of your Lordships’ House, of which I am a member, along with the noble Earl sitting on the Woolsack. Last year, when we examined the implementation of the settled status system, we unanimously recommended that physical proof be made available. That committee contains members of all parties in your Lordships’ House and none, and we had no hesitation whatever about the recommendation we made. This was after the evidence had come from the Covid barcode system that it could be done at nil cost and would give tremendous relief to people like me who sometimes struggle a little with the digital world in which we now live.

I really hope that the Minister will now go back and accept that providing this physical proof will greatly increase the respect in which this country is held by member states of the European Union, which have unanimously asked for this. It will do nothing but good for the individuals who get the physical proof and for this country, which will have shown that it listens to the views of others. I hope the amendment can be accepted.

Photo of Lord Sandhurst Lord Sandhurst Conservative

My Lords, I am pleased to follow my noble friend Lady Shackleton’s speech.

We had the Windrush disaster because people got nothing in writing. That was a shameful episode; many people suffered badly and we are now paying large sums of compensation. That does not assist the taxpayer, but no doubt the civil servants 30 years ago did not think about that. It costs us all money now, so if nothing else think about the money for future taxpayers. I see no reason why we should risk a repeat of the Windrush disaster.

If a modest charge is necessary, so be it. People will pay £10 for a piece of paper or for registration costs, but what is that? They will have comfort and security. The Home Office’s reluctance to issue proof in documentary form for European citizens living here, minding their own business, is difficult to understand.

There will be personal disasters in future. They will be disasters in 10, 15 or 20 years for the individuals who, for one reason or another, are unable to prove that they are settled in this country when they come back from time abroad. I ask the Minister to think of herself and her children and grandchildren in that position. Decent people living in this country deserve to be treated decently.

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

My Lords, I rise very briefly to say that the Green group would certainly have attached a signature to this motion had there been space. Like everyone else, my inbox has been utterly swollen with emails and letters about this.

I will make an additional point which no one else has. Travelling has now become much more stressful. There are extra stresses and worries. Not having a piece of paper just multiplies that. I draw here on my own example of helping an older gentleman to make some travels across the channel recently. He carries a whole wodge of printed-out Covid vaccine passports. Every time we travel, we must have a passenger locator form; there is huge stress until it is printed out. He is lucky enough to be a British citizen, so he then puts his passport with those printed-out pieces of paper, and there is a sigh of relief. However, there are additional difficulties if you do not have that piece of paper. In the case of this gentleman, several times recently the travel has gone wrong, his phone has run out of charge and he has been left relying on the kindness of strangers to pull through. However, if you need your phone to prove your settled status, that is not going to help. We cannot assume that people are always going to have charged, working devices with them. Just printing out a piece of paper would offer a level of assurance for travel in these difficult times.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee

My Lords, I will not delay the House as we are all keen to complete Report stage. Having read Hansard for 3 am on 9 February, I felt that I must return to the charge on Amendment 82, which is eccentrically grouped with the high-profile Amendment 79.

The purpose of my amendment is to ensure that visa provisions can be included in future trade agreements only if they are specifically and separately approved by both Houses of Parliament. The need for this arises because of recent reports of plans to grant visas in trade agreements currently under discussion with India. I know that this has been a long-term aspiration for them. I believe that visas should be the subject of nationality law, such as this Bill. It should be separately agreed, and not bundled up into the CRaG process. Discussion in the CraG process will always look at an agreement in the round in the light of the interests usually concerned with such agreements. It certainly will not want to hold up an agreement for immigration reasons. Yet, as we know from WTO agreements, once provisions are in them, they are legally enforceable whatever happens. Given the population of some countries with which we are negotiating, I am very concerned.

The Minister was reassuring and suggested in Committee that any visa provisions would be confined to mobility issues affecting UK service suppliers seeking to go to India, and that this was precedented in the Japan and Australia agreements. In these circumstances, I cannot see why he cannot agree to my amendment—perhaps with a government tweak to make this explicit and/or to give a categoric assurance that visa provisions in any trade agreement will be confined to this area.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, obviously, these Benches wholeheartedly support Amendment 79 for the reasons explained.

I have some sympathy for the noble Baroness, Lady Neville-Rolfe, as far as Amendment 82 is concerned. One would hope that there would be cross-departmental working on trade agreements so that there would be no agreement to any visa deal without Home Office agreement. However, bearing in mind the apparent disagreement between the Home Office and the Ministry of Defence over the role of the MoD in the channel in relation to migrant crossings, I am not reassured. Perhaps the Minister can reassure the House on this issue.

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

I too will be brief. I was anticipating a more favourable response to Amendment 79 and the issue of the QR code. I was certainly taken aback to hear from the noble Lord, Lord Oates, that the Home Office has now rejected the bar code. I accept that the Government did not give any specific commitment in relation to the QR code when we discussed the matter in Committee, other than to say that they would take the matter back to the Home Office.

We have heard some fairly powerful submissions this evening on why that documentary proof is required, why people feel it is necessary, and why people feel that they could be left in an awkward situation if they do not have it. One only hopes that the Government will take some cognisance of what has been said in the debate this evening, reflect further and take this back, and perhaps have another rethink in the hope of coming forward with something more positive when we get to Third Reading.

On Amendment 82, the noble Baroness, Lady Neville-Rolfe, pursued this in Committee. She said in response to the Government:

“I found what he said”— that would be the Minister

“about trade reassuring on sovereignty. I am less happy on the application of CRaG, because of course that gives us a vote only on a whole trade agreement. It is the provisions on visas or immigration that worry me. If a favourable trade agreement were presented to Parliament, obviously Parliament would not want to vote against that, so we have a little problem.”—[Official Report, 8/2/22; col. 1574.]

I understand what the noble Baroness is saying. In a way it is a bit like a statutory instrument: you either accept it or you reject it, and you cannot take out bits that you are not happy with. It will be interesting to read the Government’s response.

Having said that, I crave the indulgence of the House because, frankly, I have reached the stage where I will have to depart in order to get home. I apologise because I know that is not what I should be doing, but I hope the House will accept my apologies on that particular score. I have sought to set out where we stand as an Opposition on these issues.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 11:30 pm, 8th March 2022

I am always worried that the noble Lord, Lord Rosser, will not get home, so if he wants to exit stage left, I will not be in the least bit offended. I am very keen that he gets his train.

On Windrush, that tragedy did not arise because people did not have a piece of paper. That problem arose because, through successive changes in immigration law over the years, Windrush was simply forgotten. Of course, it was at the time a declaratory system, but the problem did not arise because people did not have a piece of paper.

To return to Amendment 79, I know that the noble Lord, Lord Oates, will not be happy with what I will say. I hope that I can provide a comprehensive and sensible reason why, to quote my noble friend Lady Shackleton.

We provide all individuals who are granted UK immigration status with a formal written notice of their grant. It is in the form of a letter sent by post or email which sets out their immigration status. They can retain the letter for their own personal records and use it, if they wish, when contacting the Home Office about their status.

We took full account of the recommendation from the beta assessment of the Home Office’s “prove your right to work” service and have introduced a wide range of support to help vulnerable users as we roll out the e-visas, which are the secure, online services which can be used to view and prove immigration status. We are and have been implementing the change in an incremental way since 2018, to ensure that no one is left behind.

Those who struggle to use them can also contact the UKVI resolution centre, including by phone, for help using the service or sharing status on the individual’s behalf. We have also developed mechanisms which reduce the need for individuals to prove their status themselves when accessing public services: for example, benefits and healthcare. Status information is already shared automatically with HMRC and DWP and the NHS in England and Wales.

We published a policy equality statement in relation to the EU settlement scheme on 18 November 2020. The statement considered the impact of e-visas and set out the support available to users who need help. There are reports of incidents where the system may not have worked as it should have, but feedback on the e-visas and online service has been generally positive. Most users find it easy to use and it is aligned with other digital government services, such as DVLA services for renewing driving licences and paying vehicle excise duty. E-visa holders can check their status at any time by logging into the view and prove service; they can even contact the Home Office if they experience any issues with their e-visa.

The noble Lord, Lord Oates, previously referred to the Government’s intention to remove biometric residence permits, biometric residence cards and frontier worker permits from the lists of documents acceptable as part of a right-to-work check. We can do this because the online system works. The cards will remain valid for other purposes, including as an identification document and to board travel services when returning to the UK. As the noble Lord is aware and has mentioned previously, we have been considering the merits of introducing a QR code. As he said, I committed to take the matter back and discuss it with the Home Office. He is absolutely right: we have written to the3million, setting out why we do not think it is a viable option. We have had to consider a wide range of factors, not least that using this method in the context of demonstrating vaccination status is not equivalent to using it to show immigration status, since a person’s immigration status can change in a way that their vaccination status cannot.

The information on an insecure printed document, even one validated by a QR code, would not be a secure method of sharing and proving immigration status in a way that gives confidence to the user and the checker. We consider that it would open the system up to potential fraud and abuse because the QR code would not be sufficient to verify the identity of the document holder. We have looked into whether we could incorporate a facial image on to the QR code but found that the technology would not support inclusion of high-resolution facial images. It would not adhere to the principles of data minimisation, whereby only as much personal data as is needed for the checking purpose should be shared and accessible only for as long as required. The checker would require an app on an internet-enabled device capable of reading the code, whereas any internet-enabled device with a web browser can be used to check a share code. Our reply to the3million, which I will share with the noble Lord, has been published on its website and provides a full explanation.

Physical documents obviously expire—my parents insist on printing their Covid passes out, and sometimes they are near or at expiration—they can become invalid or be lost, stolen or tampered with, and they take time to replace, leaving our immigration system open to fraud and abuse. They do not provide that real-time information. Last year, UK Visas and Immigration received over 44,000 reports of lost or stolen biometric residence documents and issued over 22,000 replacement cards for those reported lost or stolen. Implementing this amendment would involve significant costs; they could well be over £270 million if we had to issue a physical document to everyone with an immigration status.

Our provision of a letter sent by email or post meets the need for a physical document showing a person what their immigration status is, and it can be kept for personal records. The ability to view and prove immigration status online in the form of an e-visa provides foreign nationals with the certainty that they need to demonstrate their rights in the UK now and in the years to come. I hope—although I doubt it—that I have reassured the noble Lord on his concerns. On the other point, I am very happy to meet any interested parties that wish to discuss this further.

I turn to Amendment 82 from my noble friend Lady Neville-Rolfe and the noble Lord, Lord Green, on trade agreements containing provisions on visas. We should recognise that the Immigration Rules and decisions about visa requirements are sovereign national powers which rest with the Home Secretary. I sympathise with my noble friend’s desire to retain national control over visa policy. We took back control of our borders when we left the EU and now have the freedom to set our own rules in the interests of the UK.

However, trade and immigration are separate policy areas and the UK does not routinely discuss immigration in trade negotiations. What comprehensive free trade agreements typically include is provisions on so-called mode 4 trade in services. These set the terms for the temporary movement of service providers between parties to the agreement. Immigration policy, as opposed to mode 4, is our overarching approach to long-term immigration and border controls.

I know my noble friend has expressed concerns about the Government’s negotiations with India on a free trade agreement. As is standard in UK free trade agreements, I expect we will explore mode 4 provisions, which could support British and Indian businesses and consumers, in our negotiations with India. This is not a one-way conversation. UK business stakeholders have identified mobility issues affecting UK service suppliers seeking to go to India, which we might seek to address in these negotiations. This is just as we have done in our free trade agreements with other partners such as Japan, Australia and the EU and would expect to do in any future comprehensive free trade agreements. But any agreement will be consistent with the points-based immigration system and we will not compromise the principles or functioning of that system.

I also want to note that Parliament already has appropriate involvement in the scrutiny of free trade agreements and their provisions through the CRaG process. The legislative framework set by CRaG provides Parliament with the opportunity to undertake scrutiny of an FTA prior to its ratification. I understand the point my noble friend raised previously that CRaG is a rather binary tool, but it would not be appropriate to have additional processes to consider individual issues within the agreement. Immigration is clearly an important issue but comprehensive trade agreements, by definition, cover more areas. It would not be practical or desirable to have carve-outs for individual issues; taken together, these could make the process of negotiating and scrutinising trade agreements lengthy and impractical.

While I agree with the thrust of my noble friend’s argument that robust scrutiny is critical, I cannot agree with the amendment. I instead point to the comprehensive processes we already have in place to ensure that Parliament has its say on trade agreements and, critically, that any changes to domestic law would need to be passed by this House in the normal way. I hope I have set out clearly for my noble friend why this amendment should not be pressed.

Photo of Lord Green of Deddington Lord Green of Deddington Crossbench

Before the Minister sits down, is she confirming that any immigration negotiations with India will be confined to mode 4?

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

My Lords, I thank all noble Lords who have taken part in this debate. Given the lateness of the hour, I will not go into detail but just say two things. First, I have read the entirety of the Home Office letter to the3million group, most of which is wrong and could have been corrected if the Home Office had the decency to meet on an interim basis as requested. The Minister will have seen, or will see shortly, the comprehensive refutation of every point that she has made.

Secondly, it is all very well to say that the system works well for some people. For digital-savvy people, I am sure it is fine; but for people who are not digital-savvy, it is not. That is specifically what the pilot undertaken by the Government warned about. It said that the system should not be changed, as unless effective mitigation was put in place it would have a significant impact on vulnerable users. It is having a significant impact. I very much regret and am dismayed that the Home Office does not understand that and will not listen to the people who have to use it. On that basis, I would like to test the opinion of the House.

Ayes 61, Noes 83.

Division number 9 Nationality and Borders Bill - Report (3rd Day) — Amendment 79

Aye: 61 Members of the House of Lords

No: 83 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment 79 disagreed.