‘(1) Any child who has their right of free movement removed by the provisions contained in this Act, and who are in the care of a local authority, or entitled to care leaving support, shall, by virtue of this provision, be deemed to have and be granted automatic Indefinite Leave to Remain within the United Kingdom under the EU Settlement Scheme.

(2) The Secretary of State must, for purposes of subsection (1), issue guidance to local authorities in England, Scotland, Wales and Norther Ireland setting out their duty to identify the children of EEA and Swiss nationals in their care or entitled to care leaving support.

(3) Before issuing guidance under this section the Secretary of State must consult—

(a) the relevant Scottish Minister;

(b) the relevant Welsh Minister; and

(c) the relevant Northern Ireland Minister

(4) The Secretary of State must make arrangements to ensure that personal data relating to nationality processed by local authorities for purposes of identification under subsection (1) is used solely for this purpose and no further immigration control purpose.

(5) Any child subject to subsection (1) who is identified and granted status after the deadline of EU Settlement Scheme (“the Scheme”) will be deemed to have had such status and all rights associated with the status from the time of the Scheme deadline.

(6) This section comes into force upon the commencement of this Act and remains in effect for 5 years after the deadline of the EU Settlement Scheme.

(7) For purposes of this section, “children in the care of the local authority” are defined as children receiving care under any of the following—

(a) section 20 of the Children Act 1989 (Provision of accommodation for children: general);

(b) section 31 of the Children Act 1989 (Care and Supervision);

(c) section 75 Social Services and Well-being (Wales) Act 2014 (General duty of local authority to secure sufficient accommodation for looked after children);

(d) section 25 of the Children (Scotland) Act 1995 (Provision of accommodation for children);

(e) Article 25 of the Children (Northern Ireland) Order 1995 (Interpretation); and

(f) Article 50 Children of the (Northern Ireland) Order 1995 (Care orders and supervision orders).

(8) For the purposes of this section, “children entitled to care leaving support” means a child receiving support under any of the following—

(a) paragraph 19B of Schedule 2 Children Act 1989 (Preparation for ceasing to be looked after);

(b) s.23A(2) Children Act 1989 (The responsible authority and relevant children);

(c) s.23C(1) Children Act 1989 (Continuing functions in respect of former relevant children);

(d) section 104 of the Social Services and Well-being (Wales) Act 2014 (Young people entitled to support under sections 105 to 115);

(e) sections 29-30 Children (Scotland) Act 1995 (Advice and assistance for young persons formerly looked after by local authorities) as amended by s.66 Children and Young People (Scotland) Act 2014 (Provision of aftercare to young people); and

(f) Article 35(2) Children (Northern Ireland) Order 1995 (Persons qualifying for advice and assistance.).’—

This new clause aims to ensure that the children of EEA and Swiss nationals who are in care, and those who are entitled to care leaving support, are granted automatic Indefinite Leave to Remain under the EU Settlement Scheme to ensure they do not become undocumented.

Brought up, and read the First time.

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

With this it will be convenient to discuss new clause 58—Settled status: children in care—

‘(1) Any child 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 child is in care, is subject to the public law outline process via a declaratory system, undertaken on the child’s behalf by the Local Authority whose care they are under, or is entitled to care leaving support.

(2) For the purposes of this section, “a child in care” means a child who is under 18 and is—

(a) living with foster parents;

(b) living in a residential children’s home; or

(c) living in a residential setting like a school or secure unit.”

(3) For the purposes of this section, “public law outline process” is as set out under Family Court practice direction 12A of 2004.

(4) For the purposes of this section, “children entitled to care leaving support” means a child receiving support under any of the following—

(a) paragraph 19B of Schedule 2 Children Act 1989 (Preparation for ceasing to be looked after);

(b) s.23A(2) Children Act 1989 (The responsible authority and relevant children);

(c) s.23C(1) Children Act 1989 (Continuing functions in respect of former relevant children);

(d) section 104 of the Social Services and Well-being (Wales) Act 2014 (Young people entitled to support under sections 105 to 115);

(e) sections 29-30 Children (Scotland) Act 1995 (Advice and assistance for young persons formerly looked after by local authorities) as amended by s.66 Children and Young People (Scotland) Act 2014 (Provision of aftercare to young people); and

(f) Article 35(2) Children (Northern Ireland) Order 1995 (Persons qualifying for advice and assistance).’

This new clause would seek to provide automatic settled status for all looked after children in the care of local authorities and for children entitled to care leaving support, removing the requirement on the local authority to make an application to the EU Settlement Scheme on that child’s behalf.

It is a pleasure to serve under your chairmanship, Sir Edward. New clause 41 is a cross-party amendment tabled by Tim Loughton, who is respected particularly for his knowledge and expertise on children in care, having formerly been the Minister for Children. The Chair of the Home Affairs Committee has also added her name to the new clause, so I am sure the Minister will want to give it his usual careful consideration. I also support new clause 58, tabled by my hon. Friends on the Opposition Front Bench.

This Bill focuses on bringing an end to freedom of movement, but the system for dealing with those who arrive before 31 December 2020 is far from problem-free. New clause 41 deals with looked-after children and care leavers. The Minister is well aware of the concerns about that group. I want to stress at the outset that every Member of this House, as an elected representative, has a role as corporate parent to those children, and it is our duty to ensure that every single one is able to secure permanent immigration status.

The Home Office has estimated that there are 5,000 looked-after children and 4,000 care leavers in the United Kingdom who would need to apply to regularise their immigration status before the end of the transition period. That figure is likely to have increased, as more children entered care this year, and it is just an estimate, because local authorities do not ordinarily collect the nationality data of children in their care. A recent analysis by the Children’s Society found that, as of January 2020, 153 out of 211 local authorities across the United Kingdom had identified just 3,612 EU, EEA or Swiss looked-after children and care leavers. Only 404—11%—of those young people have settled their status. It is unlikely that many more applications have been made in the past few months; owing to coronavirus, it is not a priority for busy local authorities. We also know that helplines to assist with applications have been closed or are operating a reduced service.

I know the Government are concerned about that issue and have conducted their own survey to get a better understanding of the number of looked-after children who need to apply to the scheme, but that information has never been published. It would be interesting if the Minister agreed to publish the Home Office’s data. We have yet to receive reassurance from the Minister that sufficient work is under way to regularise the immigration status of those children before the EU settlement scheme deadline. Why is the application rate so much lower for those vulnerable children? Like any children, looked-after children and care leavers need the help of their parents, and it is the local authority that is responsible for their care and for making the application to the EU settlement scheme.

Local authorities first need to identify which children in their care have an EU nationality. That can be problematic, as many children who have entered care at a young age do not know their or their parents’ nationalities. They may have no passport or birth certificate, and the local authority’s engagement can be difficult or non-existent. The children see themselves as British, as they have often not known any other home. The responsibility of identification and application has fallen on social workers, many of whom have stretched caseloads and do not have the expertise or legal knowledge to deal with these issues, particularly if they begin to encounter problems in the process.

It is worth reflecting on the fact that, outside this scheme, it is prohibited for social workers to give immigration advice. During the pilot phase of the EUSS, every application that the Coram Children’s Legal Centre made on behalf of a child in care or care leaver included detailed nationality advice, which requires expert legal knowledge and understanding. Social workers had to be supported at every stage of the process.

I am aware that the Government produced non-statutory guidance to local authorities on the EUSS, regarding their roles and responsibilities. As recently as April, they reminded local authorities of that responsibility. However, many local authorities still seem to be unaware of the existence of that guidance or their responsibilities under it. Even before we come to the issue of rates of application and status received, there is an issue of oversight. How many children are we talking about, and who is making the applications for them?

I have already briefly referred to the problems with applying. There is difficulty acquiring nationality documents and evidencing the length of residence in the UK. Social workers have to spend their time chasing various European embassies to acquire the appropriate paperwork. Right now, when so many embassies and services are shut, that is proving difficult. The previous Immigration Minister stated that the group could apply with alternative documentation, but operating a system of discretion can be very dangerous, and often has the opposite effect. It requires children to receive a significant amount of additional extra support.

Of course, local authorities are very stretched. They have limited resources and do not have the legal immigration expertise to handle complex cases that arise for children in their care and care leavers. The risk is compounded by the covid-19 pandemic. The Home Office has stated that children who do not apply because their parent or guardian did not submit an application on their behalf can submit a late application. That includes children in care and care leavers. However, there has not been a formal policy statement to that effect. In any case, I am sure the Government would rather act to prevent a child in their care becoming undocumented than rectify mistakes after they were made.

The Minister has raised concerns about the automatic element of the new clause, so I want to outline briefly what I envisage to be the process of providing settled status to these young people. First, the local authority must identify any child whose right to freedom of movement is removed by the Bill, and who is in their care, or entitled to care-leaving support. Secondly, the local authority should communicate with the child, letting them know that they have been identified as falling into this category, and that they will be identified to the Home Office, so that it can secure their indefinite leave to remain status under the EU settlement scheme. The local authority should ensure that the child’s views and best interests are taken into account.

Thirdly, the local authority should provide a list of the identified children to the Home Office, setting out each child’s name, age, email address, and social worker or legal representative, and the fact that the child is in the care of the local authority or entitled to care-leaving support. A copy of that letter should be provided to the child for their records. The Home Office would enter that information into a database and issue an electronic status for each child. As with all applications to the EUSS, a letter confirming the child’s status, with the requisite code, should be emailed to the address provided. In addition, as is already provided for under the settlement scheme, where a child is not from the EU, the EEA or Switzerland, a physical document setting out the child’s rights in the UK should be issued. Under the new clause, any personal data relating to nationality that is processed by local authorities for purposes of identification is to be used solely for this purpose, and for no further immigration control purpose.

The advantage of this process is that all children are identified and given status, which ensures that they do not become undocumented. Sorting out the issue of settled status now prevents another cliff edge in the future, when these young people would have to reapply for settled status, potentially without the help of the local authority. Under the process that I propose, the evidential burden is lowered for the local authorities applying, and for Home Office caseworkers, saving time in a complex application process. The new clause and the processes for identification and granting status would be time-limited. As is set out, they would be effective for five years after the deadline—until 30 June 2026.

In conclusion, the Home Office has expressed concerns about giving automatic settled status to this group, but what is the alternative? The worst possible situation would be letting potentially thousands of children become undocumented, and discovering in five, 10 or 20 years that they have no proof of residency and are here illegally. As corporate parents, we have been entrusted with the care of these children. Allowing them to become undocumented is not providing care or promoting their welfare, as the Secretary of State is required to do. This is another Windrush waiting to happen, with one glaring distinction: the Government have been warned that they should take action now. They are about to make the same mistake, but they can do something about it now. The new clause would ensure that these children were given legal status. We are not suggesting that they bypass the settlement scheme processes; we suggest, rather, that they be given the helping hand that they so desperately need to make it through the scheme in good time, so that they can get the status to which they are entitled. I commend new clause 41 to the Committee.

I beg to move, That the debate be now adjourned.

I thank the Whip for that. Mr Stringer is chairing the Committee this afternoon, and I understand that the Committee intends to report then, so I will not see Committee members again. I thank you all for your courtesy. Even the Government Whip has been well behaved.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.