Settled status

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 2:00 pm on 5th March 2019.

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‘(1) Any person who has their right of free movement removed by the provisions contained in this Act has the right of settled status in the United Kingdom if that person —

(a) is an EEA or Swiss national;

(b) is a family member of an EEA or Swiss national or person with derived rights;

(c) is resident in the United Kingdom on or prior to 31 December 2020.

(2) Any person who is entitled to settle status under subsection 1 has the same protection against expulsion as defined in Article 28 of Directive 2004/38/EC of the European Parliament and Council.

(3) The Secretary of State must ensure that any person entitled to settle status under subsection 1 receives proof of that status via a system of registration.

(4) The Secretary of State must issue a paper certificate confirming settled status to any person registered for settled status under this section.

(5) No fee may be charged for applications to register for settled status under this section.

(6) Any person who has acquired settled status under the provisions of subsection 1 is entitled to—

(a) remain in the United Kingdom indefinitely;

(b) apply for British citizenship;

(c) work in the United Kingdom;

(d) use the National Health Service;

(e) enrol in all educational courses in the United Kingdom;

(f) access all benefits and pensions, if they meet the eligibility requirements.

(7) A person’s right to use the National Health Service (d), enrol in educational courses (e) and access all benefits and pensions (f) under subsection (6), is the same as those for a British national.

(8) Any person who is entitled to settled status under subsection (1) loses their settled status only

(a) if they are absent from the United Kingdom for a period exceeding five continuous years after 31 December 2021 or

(b) if the criteria for expulsion as set out in Article 28 of Directive 2004/38/EC of the European Parliament and Council applies to them.

(9) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(10) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’—

Brought up, and read the First time.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

I beg to move, That the clause be read a Second time.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

With this it will be convenient to discuss the following:

New clause 16—Rights of family members—

‘(1) Family members of any person (“P”) granted settled status under the provisions of clause [Settled status] are entitled to settled status in the United Kingdom after 31 December 2020 if —

(a) the family member’s relationship with “P” began before 31 December 2020; and

(b) the family member is still in a relationship with “P” when the family member applies for settled status.

(2) Any family member of any person (“P”) granted settled status under the provisions of clause [Settled status] are eligible for a family visa to come and live in the United Kingdom if that relationship began after 31 December 2020

(3) Any children born in the United Kingdom to a person granted settled status under the provisions of clause [Settled status] is a British citizen, whether the child was born before or after that person being granted settled status.

(4) Any family member who is entitled to settled status under subsection (1) loses their eligibility for settled status if they are absent from the United Kingdom for a period exceeding five continuous years after the date on which their settled status was granted.

(5) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(6) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’

This new clause is consequential on NC15.

New clause 17—Settled status: further provisions—

‘(1) The Secretary of State must ensure that no EEA or Swiss national, or family member of an EEA or Swiss national or a person with derived rights, is denied settled status in the United Kingdom on account of their non-exercise of European Union treaty rights or a removal decision made as a result of their non-exercise of European Union treaty rights.

(2) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.’

New clause 18—Right to family life—

‘(1) Article 8 of Schedule 1 of the Human Rights Act 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted settled status in the United Kingdom.

(2) Article 8 of Schedule 1 of the Human Rights Act 1998 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted a work visa under the provisions of clause [Work visas for EEA and Swiss nationals].’

This amendment is consequential on NC21

New clause 33—No time limit for applicants for settled or pre-settled status—

‘(1) No time limit shall be placed on the right of EEA and Swiss nationals to apply for settled or pre-settled status in the United Kingdom.

(2) No EEA or Swiss national can be removed from the United Kingdom under the provisions of the Immigration Act 1971 after exit day if that person meets the requirements for settled or pre-settled status under appendix EU to the Immigration Rules.

(3) In this section, “exit day” has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018.’

This new clause would ensure that there is no time limit on applicants to apply for settled or pre-settled status and prevent EEA nationals who had not yet been granted this status from being removed.

New clause 35—Documented proof of settled or pre-settled status—

‘Any person granted settled or pre-settled status under appendix EU of the Immigration Rules must be provided with a physical document confirming and evidencing that status within 28 days of that status being granted.’

This new clause would ensure that all EEA and Swiss nationals granted settled or pre-settled status must be provided with physical proof confirming their status.

New clause 47—Settled status—

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to EEA and Swiss nationals, family members of EEA and Swiss nationals, and family members who have retained the right of residence by virtue of a relationship with an EEA or Swiss national and meet any one of the following conditions—

(a) they have a documented right of permanent residence;

(b) they can evidence indefinite leave to enter or remain;

(c) they have completed a continuous qualifying period of five years in any (or any combination) of those categories.

(3) This section also applies to—

(a) EEA and Swiss nationals who have ceased activity, and

(b) family members of EEA and Swiss nationals who have ceased activity and who have indefinite leave to remain under subsection (3)(a), providing the relationship existed at the point the EEA and Swiss national became a person who has ceased activity.

(4) This section also applies to family members of an EEA or Swiss national who has died where—

(a) the EEA or Swiss national was a resident in the UK as a worker or self-employed person at the time of their death;

(b) the EEA or Swiss national was resident in the UK for a continuous qualifying period of at least two years before dying, or the death was the result of an accident at work or an occupational disease; and

(c) the family member was resident in the UK with the relevant EEA or Swiss national immediately before their death.

(5) This section also applies to (a) a child under the age of 21 years of an EEA or Swiss national or (b) a child under 21 of the spouse or civil partner of an EEA or Swiss national where the spouse or civil partner was the durable partner of the EEA or Swiss national before the specified date, the partnership remained durable at the specified date, and the EEA or Swiss national has settled status under this section.

(6) The Secretary of State must, by way of regulations, make provision for EEA or Swiss nationals to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain EEA and Swiss nationals, and family members, have settled status by operation of law, and make clear what settled status entails.

New clause 48—Settled status: relationships with British citizens—

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to a family member of a qualifying British citizen and a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and the person has a documented right of permanent residence.

(3) This section also applies to a family member of a qualifying British citizen and to a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen and there is valid evidence of their indefinite leave to enter or remain.

(4) This section also applies to a person who meets the following criteria—

(a) they are a family member of a qualifying British citizen or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen;

(b) the applicant has completed a continuous qualifying period of five years either (or any combination) of those categories; and

(c) the applicant was, for any period of residence as a family member of a qualifying British citizen relied upon under subsection4(b), in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6).

(5) This section also applies to a person who meets the following criteria—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); and

(b) the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has settled status.

(6) The Secretary of State must, by way of regulations, make provision for persons who qualify for settled status by virtue of this section to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen (subject to subsection (9)); and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain family members of UK citizens have settled status by operation of law, and make clear what settled status entails.

New clause 49—Limited leave to remain—

‘(1) A person to whom this section applies, has leave to enter and remain until 30 March 2024, or until such time as the person has settled status.

(2) This section applies when—

(a) a person is an EEA or Swiss national, a family member of an EEA or Swiss national or a family member who has retained the right of residence by virtue of a relationship with an EEA or Swiss national; and

(b) the applicant is not eligible for settled status because they have completed a continuous qualifying period of less than five years.

(3) This section applies when—

(a) a person is a family member of a qualifying British citizen and is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6) or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and

(b) the applicant is not eligible for settled status solely because they have completed a continuous qualifying period of less than five years.

(4) This section applies when—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date);

(b) is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has been or is being granted limited leave to remain under this section.

(5) The Secretary of State must, by way of regulations, make provision for persons who qualify for leave to remain by virtue of this section to secure documentary evidence of their leave, without charge.

(6) A person with limited leave to enter or remain in the United Kingdom has the same rights and entitlements as a UK citizen

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

My hon. Friend the Member for Sheffield Central will speak to new clause 15.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

I am pleased to speak in support of new clauses 15 to 18, and to offer our support to new clauses 33, 35 and 47 to 49.

Mr Stringer, you will no doubt recall, as other hon. Members will, our first Opposition day debate after the referendum in 2016. In that debate, we called on the Government to offer a unilateral guarantee concerning the rights of EU nationals. I am confident that doing so would have led to reciprocal guarantees for UK citizens by the EU27. It would have prevented two and a half years of uncertainty and anxiety for EU nationals and their families, and it would have set off the negotiations on the right tone. In contrast, the Government promised the EU the “row of the summer” over the scheduling of the talks.

We must remember that we are talking about not only the concerns of EU citizens in the UK but, given the principle of reciprocity, the concerns of the 1.2 million Brits in the rest of Europe. It is disappointing that during the entire process, none of the three Secretaries of State for Exiting the European Union has agreed to meet the British in Europe group. The fact that the Government did not secure their onward freedom of movement as part of the withdrawal agreement says an awful lot about their commitment to that important group of UK citizens.

Our discussion of the new clauses is timely, given that last Wednesday the House decided, with the reluctant and belated agreement of the Government, to seek an agreement with the EU to ring-fence part 2—the citizens’ rights section—of the withdrawal agreement. However, the shambles that led to that, in which the Home Secretary was apparently unaware that the Prime Minister opposed the amendment in the name of Alberto Costa until the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East pointed it out in Committee that morning—if anyone has not seen the clip of that, I recommend it—sums up perfectly why we need to get the rights into primary legislation.

I was pleased to be among those who signed that amendment, and pleased that the Government finally accepted the proposal made by the hon. Member for South Leicestershire. I am sure we can all agree that it was unfortunate that he had to resign from the Government over an amendment that they subsequently supported, but I hope that that will be remedied. I hope that we can bring the same spirit of cross-party consensus to the new clauses that we are considering.

The registration of more than 3 million—approaching 4 million—EEA nationals and their family members will be the biggest immigration documentation undertaking in the country’s history. New clauses 15, 16, 17 and 18 set out the rights of EU citizens, their family members and non-EEA nationals whose rights derive from their relationships with EEA citizens—namely Zambrano carers, Chen carers, and Ibrahim and Teixeira carers.

First and foremost, new clause 15 would make settled status a declaratory system, to ensure that all EEA nationals, their family members and those with derived rights who are resident in the UK by 31 December 2020 have a legal right to stay, and that the only ground for denying an individual settled status is serious criminality. If, as they repeatedly say, the Government are serious about wanting EEA nationals and their family members to stay in the UK, they should not require them to jump through hoops.

We have heard from Professor Smismans that

“the practical consequences can be dire under a constitutive system”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 132, Q334.]

We can easily envisage that certain groups are at risk of not applying, for an array of reasons: children whose parents do not apply; long-term residents, including those who have already been granted permanent residency; and people who mistakenly believe that they are not eligible. This system would mean that people would have to apply only for proof of status, which they would practically require.

We have seen a number of problems. Representatives from the3million have highlighted to me today their concern that the application process for settled status is not as simple as was promised. Too many—16%, I understand—of those who have engaged with it so far have faced demands for extra evidence, beyond the initial application, if no Revenue and Customs or Department for Work and Pensions data was available. Too many—30%, I understand—have been given not settled status but pre-settled status, although some of them have lived in the UK for more than five years.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General, Shadow Minister (Home Office) (Security) 2:15 pm, 5th March 2019

My hon. Friend mentions that further evidence is being demanded. Is that not precisely what started to happen with the Windrush scandal, causing so many problems? Is that not why we need as many safeguards as possible in the scheme?

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

My hon. Friend makes a really important point. With the history of the Windrush experience being so close, one would imagine that we would not yet have forgotten its lessons and would seek to apply them in this situation. We tabled the new clauses precisely because of that concern.

It is well known that other problems with the process include its inaccessibility to iPhone users. The Government talked about how easy this process would be—people would be able to do it on their phones—but that is not the case for half of the UK’s adults, who happen to use an iPhone. The inability to develop an app for use on an iPhone does not create a great deal of confidence in the rest of the process or the Home Office’s ability to handle it. People who already have proof of permanent residence are being asked to provide evidence of it, even though they were promised a simple swap to settled status. We need to have local support centres where people can apply offline, but they are not available.

The new clauses would remove the category of pre-settled status. This distinction, whereby an individual must be resident for five years to qualify for settled status, seems to be the result of a copy-and-paste exercise from the rules for permanent residence. A number of the stakeholders from whom the Committee took evidence do not see the rationale for it and believe that it serves no clear purpose. In fact, it creates more bureaucracy for individuals and the Home Office—this morning we discussed how difficult the Home Office sometimes finds it to deal with complicated or even simple procedures.

The Government have already admitted that it will be difficult, if not impossible, to distinguish easily between EU citizens who arrive before and after 29 March, which adds another layer of uncertainty. We can easily foresee the confusion for employers and landlords, who will wonder what different rights apply to the different categories, with detrimental effects for the holders of pre-settled status. I would welcome clarification from the Minister. If it is not simply to mirror the rules on permanent residence, can she explain the rationale for pre-settled status?

New clause 15 sets out other requirements, such as ensuring that applicants are issued with physical documentation of their proof of status. I acknowledge that this replicates new clause 35, which was tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. It is another area where the Home Office will inevitably have to move. The Joint Council for the Welfare of Immigrants and Professor Smismans vividly illustrated not only the administrative hassle of a digital system, but the potential implications for the treatment by what they describe as “private actors” and for

“equal access to work and housing.”

No other immigration status in this country operates exclusively digitally. The Government have said that they want this system to be more user-friendly than the current application process, but members of the3million group have made it absolutely clear that physical proof of their status would improve their experience of the system and provide some much-needed reassurance. I really do not understand why the Government are so resistant to that, and I urge the Minister to take the opportunity on this issue to work with, rather than against, EEA nationals and the people who speak for them. I imagine that this is an area that the Government will have to move on, as they did on the fee—many of us argued for it for a long time before the change was made.

New clause 15 would put on the face of the Bill the Government’s commitment not to levy a fee. For a long time, the Government were insistent on the need to charge £65 for an application. I am sure the Minister will embarrassingly recall that—in a written answer to me—she was not prepared to rule out the £65 fee for victims of modern slavery and trafficking at that stage. I am delighted that the Government moved on the issue. It might have been because of the embarrassment that, at one stage, the European Parliament was even considering covering the cost of the fees on behalf of EU nationals in this country. After campaigning by Opposition Members and other parties, along with the3million and trade unions, it was a good step that the Prime Minister conceded that the application should be free; therefore, the Government should have no issue putting that into the legislation.

New clause 16 details the rights of family members of EEA nationals who are eligible for settled status. New clause 18 would make it explicit that article 8 of schedule 1 of the Human Rights Act 1998—the right to respect for private and family life—applied to holders of settled status and of the work visa for EEA and Swiss nationals dealt with in new clause 21.

On new clause 17, the Government have repeatedly stated that there would be only three criteria for settled status: nationality of a relevant country or a family member, residence in the UK and a criminality check. The rules in the appendix of the Immigration Rules go beyond that; they leave a loophole where someone who is not a serious criminal and otherwise eligible could be denied settled status on the basis of non-exercise of treaty rights. New clause 17 seeks to address this issue. Following legal action from the JCWI, from whom we took evidence, the Government narrowed the rules, but the power still remains. In written answers to me, the Minister has stated:

“the UK has decided, as a matter of domestic policy, to be more generous than the draft Withdrawal Agreement in certain respects. In particular, those applying under the scheme will not be required to show that they meet all the requirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance or generally to detail the exercise of specific rights under EU law, such as the right to work.”

The new clause would enshrine that policy in law.

If the Government do not accept new clause 17, could the Minister explain why they are so intent on wishing to retain a power that they never intend to use?

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I give my support to the new clauses tabled by the hon. Members for Manchester, Gorton and for Sheffield Central, who made a lot of excellent points, including about the need or otherwise for pre-settled status.

This is probably one of the most important debates that we will have in this Committee. We all know that the settled status scheme is a huge undertaking. There is no doubt in my mind that the Home Office is doing its best to implement it to the best of its abilities. I do not question the commitment and effort made to attempt to have that scheme reach as many people as possible. The amendments are not about that, but whether EEA nationals and family members should be required to apply for their rights in the first place.

We are clear that EEA nationals’ rights should be declared in law. They should be able to retain their rights without any need to apply. Instead of applying for the right to remain in what is their home country, instead people would apply for documents simply to evidence that right. After all, that is pretty much the position they are in now: EEA nationals can make the UK their home simply by meeting the qualifying criteria by exercising their EU treaty rights. However, even though they do not need to, many find it very handy to apply for a document that proves they are exercising treaty rights and are allowed to remain here, so they apply for residence documents. Those documents do not give them any extra rights, but are simply convenient. It is far easier to hand a residence document to a landlord than a few months or years of bills, bank statements and wage slips to prove their right to be in the country.

All we are saying is that the same should happen in future. The Bill will strip people of hugely important rights; it should therefore also replace those lost rights with other rights that are granted automatically. All those who meet the Home Office criteria for settled status should be granted it as a matter of law. Applications for settled status documents would then be the means to simply evidence those rights, just in the same way as happens now. All that will become hugely important the day after the deadline for settled status applications passes.

If we do not make these changes, the evidence tells us that hundreds of thousands of people will be here without any status at all. They could, in theory, be removed. The Home Office talks of proportionate responses in allowing those with a reasonable excuse to apply late. However, that is tinkering around the edges. The fact remains that there will still be hundreds of thousands of people here without permission—people who were lawfully resident one day, and unlawfully the next.

However, if we accepted the amendments to make the system declaratory, no one would lose rights overnight. Those who have not applied would still find it much more difficult to go about their lives as they would find it impossible to prove their status in some circumstances, but at least they would be able to remedy that and there would be every incentive for them to apply for proof of settled status.

In the last couple of weeks, the Home Office has started trying to say that the problem with the Windrush scandal was that the system was declaratory. That is simply an outrageous rewriting of history: no report or inquiry into that scandal has reached that conclusion. The point about Windrush was that people were left with no means to prove their rights. In fact, back when that declaratory law was passed, no one for a moment would have envisaged that 40 years down the line it would be impossible to work, rent, drive or access services without such proof.

Let me also point out, as I did last week when the Home Secretary appeared before the Home Affairs Committee, that British citizenship, for example, is a largely declaratory system, too. None of us in this room applied for British citizenship, as far as I am aware. The law simply declares that we are British citizens because of the circumstances in which we were born. We can apply for a British passport to prove our citizenship, but it does not constitute it or give us any extra rights. Declaratory systems can work perfectly well, and we can make a declaratory system work perfectly well for EEA nationals already in the UK.

Unlike in the case of the Windrush generation, a system is already set up to provide evidential documents such as the one that the Minister has established and we should use it in that way. To my mind, this is a no-brainer. It also means that rights protected by primary legislation cannot be tampered with through changes to immigration rules.

Lifting the time limit for applications for settled status, as suggested in new clause 33, is very much a second-best option; amendments that would declare the rights in law are by far the better option. Both the3million and British in Europe were clear in their evidence that the priority was a ring-fenced agreement on citizens’ rights, as has already been mentioned. After that, comes a clear statement of rights and a description of settled status in the Bill. That would help the 3 million who are here. It would also help the British in Europe as they sought reciprocal provisions in other EU member states.

New clause 35 requires a document to be provided so that EEA citizens can prove their settled status. I am not a luddite—I am open to better use of technology—but there are good reasons, as the hon. Member for Sheffield Central has already said, why the 3 million are not happy with being told that they will not get any sort of physical document.

The JCWI points out that under the right to rent scheme, landlords are already overwhelmingly in favour of physical documents, rather than carrying out online checks. During one mystery shopping exercise, out of 150 emails from migrants requesting that landlords check their identity online, 85% received no response. Only 12% of inquiries received a response that might invite a follow-up such as a phone call or viewing. Only three responses explicitly stated that the landlord was willing to conduct an online check. A migrant with documentation received a response rate of roughly 50%—still totally unacceptable, but better than for those without. Forcing EEA nationals to rely purely on an electronic system will place them at a massive disadvantage in comparison with British passport holders.

Further concerns include problems of proving status for the most vulnerable with limited ability to use computers, dangers of mistakes in the system, hacking and loss of data. There are also concerns that holders will be asked to inform the Home Office of any changes to mobile phones or email addresses at any moment because they are required for the system to work.

What we are arguing is not that we want to scrap the use of technology: we simply suggest that at least we can offer a physical document in parallel. That would make life much easier for those caught up in this system.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration 2:30 pm, 5th March 2019

I thank the hon. Members for Manchester, Gorton and for Sheffield Central for tabling new clauses 15 to 18. I am also grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for new clauses 33, 35, 47 to 49.

Before turning to the new clauses, I will say a few words about the proposal put forward by my hon. Friend Alberto Costa, to which the hon. Member for Sheffield Central referred and to which the House agreed unanimously last week. We and the EU have been clear that providing certainty for citizens is a priority. That is why we have written to the EU about ring-fencing the citizens’ rights part of the withdrawal agreement. As my right hon. Friend the Home Secretary said to the Home Affairs Committee last week, we should not underestimate the challenges involved in reaching such a joint UK-EU commitment. But we share a common goal in seeking to protect citizens’ rights. In the meantime, we will continue to seek commitments from the EU and its member states to protect the rights of UK nationals in the EU in the event of no deal.

The hon. Member for Sheffield Central raised a number of points specifically on the settled status scheme and the ease of applications. I must, once and for all, put to bed the allegation that people will not be able to use their iPhones to apply. Individuals will be able to use any desktop, laptop or mobile device to make an application. It is only during this current phase of testing that people need to use the EU Exit: ID Document Check app to verify their identity, which is currently—I use that word advisedly—available only on Android devices. When the scheme is fully live at the end of March, the use of the app will be entirely optional.

The app is just one of several ways in which people will be able to verify their identity, including by post or face to face at an application centre. Additional routes that will be available to have identity documents checked include 50 locations where applicants will be able to have their passports scanned and verified. We are also rolling out additional digital support, which I saw in operation at the Barbican library some months ago, and a dedicated telephone advice and support service is also available. It is important to the Government that we make it as easy as possible for people to apply, and the Home Secretary continues to work very closely with Apple on the upgrades to its systems—not ours—required in order to have a chip-check device available on iOS.

There was a question about pre-settled status, which we grant to people with fewer than five years’ residence. This is a well-established rule that derives from the EU’s free movement directive: after five years, a person gets permanent residence. The draft withdrawal agreement specifically refers to these rules. The Opposition’s proposal would mean that a person here for a day, and with no intention to make their life in the UK, would immediately get indefinite leave to remain.

I turn to the new clauses tabled by hon. Members. The new clauses would give automatic immigration status to EEA and Swiss nationals—to whom I will continue to refer as “EEA nationals” for brevity—and their family members resident in the UK. As I have explained before to the Committee, this is called a declaratory system: individuals would automatically acquire status without needing to apply, but could subsequently register for a document if they chose to, in a similar way to how current free movement rights operate.

I welcome the fact that hon. Members share my aim to secure the rights of EEA nationals who are resident in the UK, which we all agree is of the utmost importance. The Government devoted a great deal of thought to how best to manage the end of free movement residence rights as we leave the EU. As I have explained before, a declaratory system is not the answer. As I explained to the Committee last week, in a deal scenario the EEA regulations that implement the free movement directive will remain in force until the end of the implementation period on 31 December 2020 and will be saved for the six-month grace period thereafter.

In a no-deal scenario, clause 4 of the Bill will save the EEA regulations from the date when they are repealed by schedule 1, and these will apply for people who are resident before exit day. This will maintain their current position until the deadline for applying under the settlement scheme expires in December 2020, and will ensure there is no change in their status as a result of Brexit until then. EEA nationals and their family members will be able to secure their immigration status in UK law after EU exit through the settlement scheme, which provides a quick and easy way for EEA nationals and their family members to apply for and be granted status. As the hon. Member for Sheffield Central pointed out, this will now be free of charge.

The overwhelming majority of EEA nationals will need only to prove their identity, demonstrate residence in the UK and declare any criminal convictions. We will work with applicants to ensure that they are granted the status to which they are entitled. The scheme has, of course, been designed to comply with the Government’s obligations under the European convention on human rights. I take such obligations incredibly seriously, and they are applied by default to everything the Government do. Although new clause 18 is well-intentioned, it is unnecessary.

Some hon. Members might think that a so-called declaratory system would be better for EEA nationals, as it would provide them with an immigration status without their needing to apply. Although I understand why hon. Members wish to make the new system as streamlined as possible, I disagree with the proposals for a declaratory system. As I have said previously, requiring EEA nationals to apply for and receive a formal grant of status via the settlement scheme is key to ensuring that life continues smoothly for them in the future. Resident EEA nationals will be able to use their settled or pre-settled status to distinguish themselves from EEA nationals arriving in the UK in the future. In addition, a declaratory system for the resident population would provide much less incentive to apply for status and thereby receive the documentation that will enable them to prove that status.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

The incentive is there because, in order to be able to work, rent and access services, people will need to have a document that proves they have settled status. Can the Minister address what exactly is going to happen and what the status will be of the hundreds of thousands of people—we heard about them in evidence—who will miss the deadline if this system is not declaratory?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

We covered this point previously in the evidence sessions and also last week. The Government are absolutely determined to have a proportionate approach to those who miss the deadline and to assist those who have challenges through vulnerability, to make sure that they do indeed go through the settled status scheme.

It is important to us to reflect that people will want to be able to evidence their status here. However, at some point in the future we have to be able to draw a distinction between those who arrived before we left the EU and within the implementation period and those who arrived afterwards. Having a large proportion of this cohort legally entitled to a status but with no formal evidence to prove it would lead to confusion among employers and service providers and make it difficult for individuals to prove their right to benefits and services to which they are entitled.

In the longer term, it could also make it more difficult for them to prove that they have a legal right to reside in the UK. I am sure that Committee members will agree that that is not the outcome we want.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

It does not make it one iota more difficult for people to prove their status, because they will be using the same scheme. The only difference a declaratory system makes is that on the day after the application deadline there will not be hundreds of thousands of people without status. It will be just as easy for people to prove their status because they are using exactly the same scheme.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

The hon. Gentleman will be aware that it is the Government’s intention for there not to be hundreds of thousands of people without status and to ensure that people are assisted through the scheme where necessary. I was alarmed earlier today to hear information about a councillor from the hon. Gentleman’s own party who was encouraging others not to apply. I am sure we would all agree that that is the worst piece of advice that any elected representative could give.

I have taken incredibly seriously the lessons learned from Windrush, where individuals became entangled in measures intended to tackle illegal migration precisely because they did not hold the documentation that they needed. It is absolutely crucial that people understand their immigration status and the basis on which they have a right to remain in the UK. We have been developing plans for the EU settlement scheme. As we have been developing those plans, we have received queries about various groups of EU citizens who believe that they were here lawfully, but who are not meeting the requirements of the free movement directive.

Last week, I used the oft-quoted example of the househusband who did not have comprehensive sickness insurance, or carers who could not demonstrate the role that they were undertaking. We are catering for cases such as those through the scheme, but it illustrates the peril of declaratory systems, which lull people into a false sense of security. The EU agreed that a constitutive system was a sensible option for the UK to take and other member states are following this option for UK nationals. The Government’s approach already achieves the purpose of the amendments. I ask hon. Members to withdraw new clause 15 and not to move the others, for the reasons outlined.

I turn to the other new clauses, which relate to the EU settlement scheme. I thank hon. Members for new clause 33, which seeks to remove any deadline for applications under that scheme. However, removing the deadline is not appropriate for a number of reasons. EEA nationals will benefit from applying to the scheme before the deadline, so that they can prove their rights in the UK. After the deadline, the future immigration system will be in place; future arrivals will have different rights from those of the resident population. Without a deadline, there would be little incentive for the resident population to apply. Reducing the incentive to apply might lead to an increased number of EEA nationals failing to apply for and receive a grant of status. Those individuals would consequently face difficulty in proving their right to benefits and services to which they are entitled.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

The Minister is not addressing the point I am making; in fact, she is almost making contradictory arguments—that this will reduce the incentive to apply and create difficulties in accessing benefits, services and so on. That is exactly the point, though. The difficulty in applying for benefits, accessing services, accommodation and everything else is exactly the incentive that means that people will apply for status. Yet the Minister is seeking to argue both ways.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I do not think I am seeking to argue both ways. I fear that with no deadline people will not see the need to apply, yet then might—in a moment of crisis or emergency—come up against the need to be able to immediately prove their status without having the ability to do so.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 2:45 pm, 5th March 2019

That is the critical difference between the two proposals. Under the Government’s current proposals, at that critical moment these people will have no status, and—despite vague assurances about proportionate responses, whatever that means—many of these people will find themselves without any status at all. If our proposals are correct, at the very least they will have the right to be in this country at that moment of crisis. It will simply be a matter of getting a document to prove it, if they still have that ability.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

The hon. Gentleman says that it is “simply” a matter of getting the evidence to prove status, but as we saw—I am loth to go there—with the Windrush crisis, there were people who had absolutely every right to be in this country but could not evidence it. We are determined not to repeat that with this scheme: the incentive is to encourage people to apply, to provide them with a deadline, and to make sure that as many as possible can evidence their status so that they are not doing so in an emergency situation. As I have said several times, we will take a pragmatic approach to those who have a good reason for missing the deadline by allowing them to apply late. That is a requirement of the withdrawal agreement, and we will follow the same approach in a no-deal scenario.

New clause 35 would require the Home Office to provide EEA nationals with a physical document evidencing their status under the EU settlement scheme. The digital status given to EEA nationals will be a secure and permanent record held by the Home Office that is accessible to the holder at any time, but which cannot be lost or stolen. Users will be able to choose to allow third parties, such as employers, to have time-limited access to relevant information to demonstrate their status. By giving individuals direct access to their own data and the ability to share this at their discretion with service providers, we are giving them greater transparency and control over which data is shared. People will be able to better understand their rights and keep information updated.

We have already trialled this service with non-EU-national migrants to view and share their right-to-work information with employers, and the service has been well received by those involved. With an online service, we can also ensure that employers and others required to check a person’s status see only the information relevant to their need. Using a physical document as evidence of status—as has been the practice to date—does none of this. It can also cause significant problems when documents are lost, stolen, damaged, expired or in the process of being renewed. Physical documents are also more open to forgery and fraud: something we must seek to avoid.

Additionally, there are individuals whose documents are controlled by others, such as in cases of domestic violence, modern slavery and human trafficking. Moving to an online status is a step forward in tackling those who seek to control others. A digital status is also much easier to use for the visually impaired and dyslexic users who may have difficulty reading a physical document.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

There are some valid points in what the Minister says, but surely there is a compromise here. Could there not be the online system but some sort of physical document parallel to that, so that we had the best of both worlds?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

As the hon. Gentleman will be aware, the Government are moving to a position of everything being digital by default. We think that the correct way forward. I have enjoyed my exchanges with the3million. The hon. Member for Sheffield Central suggested that I had not adequately engaged with them. I have met them on several occasions and listened to their views, but we do differ on the determination that we have to use the digital status. We believe that any 21st-century Government would want to do that.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

With my respect for the Minister I would not want it to be suggested that I was misrepresenting her engagement with the3million, and I am aware that she had productive discussions with them. However, there have been critical issues on which she has not been prepared to listen, and the issue of physical status documentation is one of them. It still eludes them, as it eludes us, why the Minister cannot agree to have a physical document available as an option for those who want it.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I thank the hon. Gentleman for that suggestion. Just because I disagree, that does not mean that I have not listened. We have made a commitment to digital by default, which I think is the right way forward. I made a point earlier about the challenge of different types of document, and the difficulties that might be presented if some people could produce one sort of document and others were reliant on digital only. I happen to think—perhaps I spent a long six months as the Minister responsible for the Government Digital Service—that this is the right way forward. The Government have always been very clear that this is our direction of travel.

I understand that it represents a cultural change for many, and I am very conscious that many EU member states not only require an identity document to be held at all times, but enforce compulsory identification on request, for instance from police officers. That is very different from the way in which the UK behaves. We do not have those requirements, nor are they part of our culture. Our methods of proving identity and rights do not have to mirror what other countries do.

Photo of Paul Blomfield Paul Blomfield Shadow Minister (Exiting the European Union)

I find it difficult to accept the Minister’s general statement that those are not part of our culture. It has been pretty clear from evidence from employers and landlords that they would find physical documents much easier to deal with. If she is wrong on this, and if we fail in our endeavours to make the amendment, will she agree to the Home Office reviewing the practice within a reasonable period of introducing it?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

From the demonstrations that I have had of the digital right-to-work check, and the work that I have done with the Landlords Consultative Panel surrounding the digital right to rent checks, we have seen a very simple and straightforward procedure where the individual can send a time-limited link to a prospective employer that does not require them to do a great deal of research to find digital status; it is there at the click of a mouse button. However, I am listening to the views put to me by the Committee, and will reflect on them over the next few weeks.

As I said, the new digital capability forms part of moving the UK’s immigration system to digital by default, and is a simpler, safer and more convenient system. The proposed new clause would be a step backwards in simplifying the current system. I therefore request that the hon. Member for Manchester, Gorton withdraw the new clause.

Question put, That the clause be read a Second time.

The Committee divided:

Ayes 8, Noes 10.

Division number 14 Immigration and Social Security Co-ordination (EU Withdrawal) Bill — Settled status

Aye: 8 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.