Report on the impact to EEA and Swiss nationals

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee am ar 16 Mehefin 2020.

Danfonwch hysbysiad imi am ddadleuon fel hyn

‘(1) This Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of the Act on EEA and Swiss nationals in the UK.

(2) A report under subsection (1) must consider—

(a) the impact on EEA and Swiss nationals of having no recourse to public funds under Immigration Rules;

(b) the impact of NHS charging for EEA and Swiss nationals;

(c) the impact of granting citizenship to all EEA and Swiss health and social care workers working in the UK during the Covid-19 pandemic;

(d) the impact of amending the Immigration and Nationality (Fees) Regulations 2018 to remove all fees for applications, processes and services for EEA and Swiss nationals; and

(e) the merits of the devolution of powers over immigration from the EEA area and Switzerland to (i) Senedd Cymru; (ii) the Scottish Parliament; and (iii) the Northern Ireland Assembly.

(3) A Minister of the Crown must, not later than six months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.

(4) In this section, “health and social care workers” includes doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff required to maintain the UK’s health and social care sector.’—

This new clause would ensure that before this Act coming into force, Parliament would have a chance to discuss how EEA and Swiss nationals will be affected by its provisions, including no recourse to public funds conditions, NHS charging, the possibility of granting British citizenship to non-British health and social care workers, removing citizenship application fees and the potential devolution of immigration policy of EEA and Swiss nationals to Wales, Scotland and Northern Ireland.

Brought up, read the First time, and Question proposed this day, That the clause be read a Second time.

Question again proposed.

Photo of Graham Stringer Graham Stringer Llafur, Blackley and Broughton

Just before we begin, I should say that if members of the Committee wish to take their jackets off, they have my permission to do so. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the Opposition Front-Bench spokesperson have spoken. If no Back Benchers indicate that they wish to speak, I will call the Minister. I remind the Committee that with this we are also discussing the following:

New clause 10—Extension of registration for EU Settlement Scheme—

‘(1) The EU Settlement Scheme deadline shall be extended by a period of six months unless a motion not to extend the deadline is debated and approved by both Houses of Parliament.

(2) Any motion not to extend, referred to in subsection (1), must be debated and approved no later than three months before the deadline.

(3) In this section, “the EU Settlement Scheme Deadline” means the deadline for applying for settled or pre-settled status under the Immigration Rules.’

This new clause would ensure the EU settlement scheme was not closed to new applications until Parliament has approved its closure.

New clause 11—Application after the EU Settlement Scheme deadline—

‘(1) An application to the EU Settlement Scheme after the EU settlement scheme deadline must still be decided in accordance with appendix EU of the Immigration Rules, unless reasons of public policy, public security, or public health apply in accordance with Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (as they have effect at the date of application or as they had effect immediately before they were revoked).

(2) In this section—

“an application to the EU Settlement Scheme” means an application for pre-settled or settled status under appendix EU of the Immigration Rules;

“the EU Settlement Scheme Deadline” means the deadline for applying for settled or pre-settled status under appendix EU of the Immigration Rules.’

This new clause would ensure that late applications to the EU settlement scheme will still be considered, unless reasons of public policy, public security or public health apply.

New clause 25—Report on status of EEA and Swiss nationals after the transition—

‘(1) This Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of the Act on EEA and Swiss nationals in the UK.

(2) A report under subsection (1) must clarify the position of EEA and Swiss nationals in the UK during the period between the end of the transition period and the deadline for applying to the EU Settlement Scheme.

(3) A report under subsection (1) must include, but not be limited to, what rights EEA and Swiss nationals resident in the UK on 31 December 2020 have to—

(a) work in the UK;

(b) use the NHS for free;

(c) enrol in education or continue studying;

(d) access public funds such as benefits and pensions; and

(e) travel in and out of the UK.’

This new clause would require Government to provide clarity on the rights of EU nationals in the EU in the grace period between the end of the transition period, and the closure of the EU Settlement Scheme.

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

It is a pleasure to serve under your chairmanship this afternoon, Mr Stringer. These new clauses give us an important opportunity to consider the position of EEA citizens—those who are already here and are covered by the EU settlement scheme, and those who will come to the UK under our future points-based immigration system.

Before the break, I was asked a couple of questions. I can assure my right hon. Friend the Member for Scarborough and Whitby that we are looking at a range of communications materials, and have already done so, in a number of common European languages. We have engaged with diaspora media, and are looking particularly at how we can work with them over the coming year, as we approach the deadline next year, to ensure that as many people as possible hear the message—not just those who need to apply, but their friends and families, so that people feel familiar with the system and realise that it is actually a relatively simple process. The vast majority of people do it via an app on their phone.

I was grateful for the question from the hon. Member for Halifax. She asked what the position would be if someone applied on 20 June 2021 and their application was still outstanding on 1 July 2021. That is a perfectly reasonable issue to raise. As set out in the withdrawal agreement, the rights of someone who has made a valid in-time application to the EU settlement scheme will be protected while that application is pending. The regulations under the European Union (Withdrawal Agreement) Act 2020 will save relevant rights in relation to residency and access to benefits and services for those who make an application before 30 June 2021 until it is finally determined.

The Home Office will clearly not take immigration enforcement action against an individual whose application is pending. That reflects some of the other principles in the migration system. Committee members may be familiar with 3C leave—the concept that if someone has extant leave and applies, their leave is extended until their application is determined.

I assure Members that the statutory instrument making the regulations will be subject to debate and approval by Parliament, and will need to come into force at the end of the transition period. The Government are currently developing those regulations, which will be debated and made in good time prior to their entry into force at the end of the transition period.

On the linked question of what happens in relation to status checks and other things, let me be clear that an individual undergoing an eligibility check while their EUSS application is pending will have the same entitlement to accommodation, work, benefits or services that they had before the grace period ended. The Home Office will confirm whether an application is pending when an eligibility check is carried out—for example, if someone has to prove their status to their employer. Given that it is a digital-only system, it will be very similar to the process that people would use if they had been given pre-settled or settled status. I hope that is of use. Given the nature of the issue, I will set that out in writing for members of the Committee. They may wish to refer to it later.

New clause 9, moved on behalf of our friends in Plaid Cymru by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, seeks to delay the ending of free movement and the introduction of the new points-based immigration system for as long as possible. That is no surprise, given the views of the hon. Gentleman and Plaid Cymru.

My response on behalf of the Government is simple: we must accept the wishes of the people of our United Kingdom. Free movement is ending now that we have left the European Union. It is just six months since the general election, during which my party said that we would introduce a points-based immigration system that will enable us to bring in the best talent from around the world—based on the skills that a person has, not where their passport is from. The Government will therefore reject any attempt to perpetuate free movement or delay the implementation of the new points-based immigration system. The Government have a mandate, and we will fulfil our pledges to the people. We will introduce our new firmer and fairer points-based immigration system from 1 January 2021, when the transition period ends.

Having said that, I appreciate the importance of proper data and information. It is precisely for that reason that the Government have published a detailed impact assessment to accompany the Bill. It was published on 18 May and can be found on gov.uk and the Parliament website. Copies were also placed in the Library, and I know it has been referred to at times during the debates we have had so far.

The impact assessment is slightly unusual because it is not confined simply to the scope of the Bill, which, as Sir Edward and you, Mr Stringer, have reminded us on a number of occasions, is relatively narrow. Instead, it seeks to map out the consequences that will flow from the introduction of the points-based immigration system that was set out in the policy statement, which my right hon. Friend the Home Secretary published on 19 February.

The impact assessment sets out the likely implications for both EEA and non-EEA citizens of the changes that we will make, and it deals with many of the issues raised by the new clause. In particular, it makes it clear that we will develop plans to evaluate policies under the future skills-based immigration system. I remind the Committee that we have expanded the role of the independent Migration Advisory Committee. Not only will the MAC respond to specific commissions from the Government; it will also be able to consider any aspect of immigration policy that it chooses.

We have also asked the MAC to produce an annual report, which will give it the opportunity to comment on what it believes is working well and anything it thinks is working less well in our system. Although it is for the MAC—as I have said, it is independent of Government—to decide how to exercise its new responsibilities, I would be surprised if it did not want to comment on the operation of the new points-based system once it is fully up and running, so that there is further assurance for the public and for the movers of the new clause. For those reasons, the Government cannot accept the new clause.

I will now speak to new clauses 10, 11 and 25, which concern the EU settlement scheme and the grace period that will run from the end of the transition period to 30 June 2021. New clause 10 is designed to extend the deadline for applications to the EUSS by six months, which would happen unless and until Parliament debated and approved a motion not to extend the deadline.

I share the aim of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to ensure that eligible EEA citizens are able to obtain the UK immigration status they need to continue to live and work here. As we constantly say, they are our neighbours and friends—we want them to stay. However, I do not think that is best achieved by the new clause, which has the effect of shifting the deadline for applications to the scheme potentially indefinitely. That would cause confusion. Instead, a clear deadline of 30 June 2021 will encourage applications to the scheme and ensure the greatest number of resident EEA citizens secure their status in a timely manner.

Furthermore, new clause 10 is ambiguous. It is not clear whether it is intended to be a one-off extension of six months or a rolling extension of a six-month period until such a time as Parliament votes to close the scheme with just three months’ notice. Having a clear and well-publicised deadline by which eligible citizens need to apply ensures that the maximum number do so rather than putting it off due to the impact of new clause 10, which could mean that a deadline is set with three months’ notice. The new clause could also mean that applicants face difficulties and delays in demonstrating their rights and entitlements in the future, as they would not be able to distinguish themselves from EEA citizens who arrived after the end of the transition period.

The Government have made it clear that we will continue to support eligible citizens in applying to the EU settlement scheme. In addition, as we have shown with all aspects of the scheme, we will take a flexible and pragmatic approach and allow people with reasonable grounds for missing the deadline a further opportunity to apply. We will set out further guidance on this issue in due course, but with over a year to go until the deadline, our focus is on getting as many applications before it as possible.

On new clause 25, we will bring forward a statutory instrument under powers in the European Union (Withdrawal Agreement) Act 2020 to set the deadline and save the residency rights of people who are eligible to apply to the scheme and who do so before the deadline. I am not sure whether this is the intention of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, but the effect of new clause 10 would be to breach our obligations under the withdrawal agreements. The deadline of 30 June 2023 applies only to EEA citizens and their family members who reside in the UK by the end of the transition period. Their close family members outside the UK at the end of the transition period—where the relationship existed before then and continues to exist when they seek to come here—and their future children have a lifelong right of family reunion with the resident EEA citizen. A universal deadline makes no provision for this group, whether it is 31 December 2021 or any other date, and it would be inconsistent with the provision to enable them to apply within three months of their arrival, as set out in article 18(1)(b) of the withdrawal agreement.

New clause 11 is intended to require the consideration of all applications to the EU settlement scheme made after the application deadline, unless reasons of public policy, public security or public health apply. As the hon. Gentleman will be aware, the withdrawal agreement requires late applications to be considered

“if there are reasonable grounds for the failure to respect the deadline.”

As I said earlier, the Government will adopt a flexible and pragmatic approach to the consideration of late applications. Where an eligible EEA citizen or their family member has reasonable grounds for missing the application deadline of 30 June 2021, they will be given a further opportunity to apply. This approach gives people a clear deadline and incentive to apply while also protecting those who are unable to do so through no fault of their own.

Our collective focus must be on encouraging applications to the EU settlement scheme before the deadline.

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

In terms of intention, I think everybody in this room is at one. The Minister provides assurance in relation to people who miss the deadline through no fault of their own. Would that include people who, because of their complicated immigration nationality situations, had not appreciated that they needed to apply for the scheme?

Photo of Kevin Foster Kevin Foster The Parliamentary Under-Secretary of State for the Home Department

I think it is safe to say that the list will not be an exhaustive one. There will need to be an element of discretion as we cannot list every single possible situation that might reasonably cause someone to be late in their application, but if, for example, they have had a difficult court case or something that meant they had not been able to apply, and a status had then been granted, it is likely that that would be seen as a reasonable excuse. It will be set out in guidance.

Our intention is to set out a list of situations that are not exhaustive but indicative. We can all think of circumstances that would be perfectly reasonable. For example, in the case of a child in the care of a local authority, we would expect the local authority to have made efforts to get them registered. We could make a very long list and still not get to an exhaustive level. The list will demonstrate grounds, but it will not be an exhaustive list of the only situations that we would accept as reasonable grounds for failing to apply on time.

As I say, we will take a flexible and pragmatic approach with those who miss the deadline. We have more than a year to go before the deadline. If people feel that they might need to make an application, the best thing to do is to find the information and make the application. That is our absolute focus at the moment. We are working closely with support groups to ensure that we can reach out to vulnerable communities who might need assistance. We have kept a range of support services running throughout the recent period and have now reinstated all routes for application, including paper applications that are made available to those with the most complex needs.

We want to encourage applications before the deadline. That will ensure that EEA citizens can continue to live their lives here, as they do now, without interruption. To make a commitment now that we would also consider all late applications would undermine that effort.

Where there are reasonable grounds for submitting a late application, we will consider the application in exactly the same way as we do now, in line with the immigration rules for the EU settlement scheme. That includes the consideration of conduct committed before the end of the transition period on the grounds of public policy, public security and public health, and of conduct committed thereafter under the UK conduct and criminality thresholds. As I have mentioned, we will publish guidance for caseworkers on what constitutes reasonable grounds, to ensure consistency of approach. Again, however, with more than a year until the deadline, it is premature to do so now, for the reasons I have given.

Finally, it is not clear how new clause 11, which is about considering all late applications, fits with new clause 10, which is about continuing to extend the deadline until Parliament agrees to impose it. Both have the undesirable effect, however, of encouraging individuals to put off their applications to the EU settlement scheme and, with that, the certainty that status granted under it will provide them.

New clause 25 requires that before the provisions in the Bill may come into effect, the Secretary of State must lay before both Houses of Parliament a report on the status of EEA citizens during the grace period—that is, from 1 January to 30 June 2021. I agree that we must be clear as to the rights of EEA citizens, in particular those resident here by the end of the transition period who have yet to apply for UK immigration status under the EU settlement scheme. However, the shadow Minister, the hon. Member for Halifax, may be unsurprised to hear that the Government believe the new clause to be unnecessary.

The rights of resident EEA citizens are set out in the withdrawal agreement, and the Government have made clear how they will deliver the grace period protections guaranteed by those agreements. Let me remind hon. Members of our approach. New clause 25 (1) states that the Government must produce a report setting out the impact of the Act on EEA and Swiss citizens. The Government have already published an impact assessment of provisions contained in the Bill, including the impact of ending free movement in preparation for the new points-based immigration system.

Subsection (2) provides that the report must clarify the position of EEA and Swiss citizens during the grace period. The Government have been clear that free movement will end at the end of the transition period, subject to the enactment of the Bill. EEA and Swiss citizens newly arriving here from 1 January 2021 will need a UK immigration status under the new points-based system.

However, those who are resident in the UK by the end of the transition period on 31 December 2020 are protected by the European Union (Withdrawal Agreement) Act 2020 and will be able to apply to the EU settlement scheme to secure their immigration status in UK law. They will have until 30 June 2021 to do so, unless there are reasonable grounds for them to miss that deadline, as we have already touched on.

The Government have been clear that status granted under the scheme will allow individuals to continue with their lives here as they do now, with the right to work, study and access benefits and services, including healthcare, as now, as well as the other entitlements listed in the new clause. We have also been clear that the rights of those eligible to apply under the EU settlement scheme are protected during the grace period, pending the outcome of an application to the scheme by 30 June 2021.

As we touched on, section 7 of the European Union (Withdrawal Agreement) Act provides powers to make regulations to provide temporary protection for this cohort during the grace period. That means that if someone has not applied under the EU settlement scheme by the end of the transition period, they will be able to continue to work and live their lives in the UK as they do now, provided that they apply by 30 June 2021 and are then granted status. The Government are currently developing those regulations, which will be debated and made in good time prior to the entry into force at the end of the transition period.

I hope I have provided some assurances regarding the hon. Members’ concerns and set out why the Government will not accept these new clauses.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control), Shadow SNP Spokesperson (Attorney General) 2:15, 16 Mehefin 2020

It is a pleasure to serve under your chairmanship, Mr Stringer. I am grateful to all hon. Members for taking part in this debate and to the Minister for his response. There have been some useful comments, including on the transition period, in response to points made by the shadow Minister, the hon. Member for Halifax. We will take that back to discuss with concerned groups and may revisit the matter.

For those who fail to apply in time, we understand that there will be guidance in due course. Again, we are grateful for that little bit of further information on how that will function through a non-exhaustive list of types of case where caseworkers will look sympathetically on a late application. I am grateful for that. The Minister will understand that we will revisit that repeatedly between now and next June, due to our concern about what will happen to those people who have the right to be here but risk losing it.

As I said in my intervention, we have a similar purpose across the House; we just have different views on how to go about doing it. Having adopted this course of action, we will continue to press and push the Government at every possible opportunity, so that we get the maximum reach possible and as few people as possible lose their rights and end up being cast adrift in a hostile environment or lose their right to be in this country altogether.

The two new clauses were possible solutions to that. I will go away and think again about their detailed drafting. The Minister provided some interesting comments in that regard. At this juncture, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.