I am grateful to the hon. Member for Manchester, Gorton for tabling the new clause, and I welcome the opportunity to explain how statutory eligibility controls operate for EEA nationals. The Government have made clear our commitment to protect the right of EEA nationals living in the UK before the new skills-based immigration system is introduced. While I recognise the intention behind the new clause, it is unnecessary. In some important respects, it is also technically deficient.
EEA nationals are already subject to the universal eligibility checks carried out by employers, landlords and the NHS. Those checks apply to everyone, regardless of nationality. EEA nationals currently evidence their eligibility to employers and landlords simply by producing their national passport or identity card. When accessing benefits and health services, they also need to demonstrate that they are habitually or ordinarily resident in the UK. We made it clear in our White Paper that EEA nationals will not be subject to additional requirements to demonstrate their status in the UK until the future skills-based immigration system is introduced. We recognise the importance of having an implementation or transition period to allow EEA nationals living here to secure their status in UK law by applying to the EU settlement scheme.
Importantly, the White Paper on the UK’s future skills-based immigration system also makes it clear that we will not require employers to undertake retrospective checks on existing employees when the new system is introduced in 2021. That is entirely consistent with the approach adopted by previous Governments when introducing changes to the checking arrangements. The new clause does not provide further meaningful safeguards to the commitments we have already given.
It is also important to highlight the fact that further secondary legislation would be required before EEA nationals could be compelled to produce evidence of UK immigration status in the same way that non-EEA migrants are currently required to do, to demonstrate their right to work or rent in the UK. Such legislation would be subject to parliamentary scrutiny in the usual way. I also reassure hon. Members that, in line with the draft withdrawal agreement, we will take a proportionate approach to those who for good reason miss the deadline to apply to the EU settlement scheme.
The new clause would also prevent NHS charges from applying to EEA nationals before
Charges have applied for NHS secondary care to people not ordinarily resident in the UK since 1982, except where an exemption from charge category applies. Entitlement to NHS-funded secondary care is based on ordinary residence in the UK, not nationality or payment of taxes. That means living in the UK on a lawful, properly settled basis, for the time being. EEA and Swiss nationals and their family members who are or become ordinarily resident in the UK are therefore fully entitled to free NHS care in the same way as a British citizen who is ordinarily resident.
In the event that the UK leaves the EU without a deal, the Government have made a unilateral offer on citizens’ rights. It is not dependent on EEA member states making similar assurances for UK citizens resident in those countries. Should EEA member states make less generous provision for UK nationals living or moving there, the new clause would result in a less favourable offer to EEA nationals in the UK.
The immigration exemption in paragraph 4 of schedule 2 to the Data Protection Act 2018 is entirely separate from measures designed to deal with eligibility checks on immigrants. It is a necessary and proportionate measure that we believe is compliant with the General Data Protection Regulation. It can be applied only on a case-by-case basis, in limited circumstances, where complying with a certain data protection right would be likely to prejudice the maintenance of effective immigration control. It is misleading and unhelpful to frame the matter in such a way that it appears to be aimed at EU citizens. The exemption is a necessary measure, designed to protect our immigration system from those who seek to undermine and take advantage of it. New clause 11 does not provide any additional safeguards or assurances beyond those already planned or in place.
Finally, I want to respond to points made by hon. Members about the recent High Court judgment on the right to rent scheme. The scheme was introduced to defend an important principle. Those who have no right to be here should not be renting a property, and landlords should not be making profit renting to people without legal status here, which often happens in poor conditions. The Government consulted carefully on measures to require landlords to undertake right to rent checks. We developed the scheme in close collaboration with a consultative panel, which drew together experts from the sector. The scheme was trialled in the west midlands and rolled out to the rest of England only after a thorough evaluation, which was published in full in October 2015.