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.