Immigration and Social Security Co-ordination (EU Withdrawal) Bill — House of Lords, 2020-10-06
Topic: Immigration
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, the amendment was written with the aid of anti-migraine tablets after some perhaps slightly unfocused exchanges in the previous stage and on the first day of Report about the grace period for the EU settlement scheme and comprehensive sickness insurance. I will not be seeking the opinion of the House I have tried to note situations that are giving cause for concern. I am aware that we now have a statutory instrument, and I hope that today’s debate can contribute to our consideration of that. As I said last week, those who know the subject were still poring over the SI, and I do not know whether they have yet come up for air I am seeking assurances, through this debate, that the propositions set out in the amendment accurately reflect, and are reflected by, the statutory instrument—I suppose it should be the latter. If what I am asking for cannot be put on the record today, a letter would be very welcome The first assurance I seek is that once someone has settled status he can be confident that he will be treated as not having been in breach of immigration provisions during the qualifying period; in other words, that nothing will come back to bite him—not the sort of language one uses in legislation. The second is that a person resident in the UK before the end of the grace period, and eligible for leave to remain, will be treated as not being in breach of those provisions. The third is that an application for status, whether settled or pre-settled status, may not be refused because the applicant does not, or has not had, comprehensive sickness insurance. I acknowledge that there could be another basis for refusal. Fourthly, I would like an assurance that the lack of CSI may not be a reason for refusing settled status after the same date to someone who holds pre-settled status I do not for a moment believe that the amendment is perfectly drafted but I hope that my objective is clear. It would be helpful if the Minister’s response is as jargon-free as possible and in the sorts of terms I have used On 16 September, the Minister said: "The grace period statutory instrument does not change the eligibility criteria for the EU settlement scheme and those criteria do not include CSI."—[Official Report, 16/9/20; col. 1340.] Later, however, she said that the grace period maintains CSI as a requirement for lawful residence during the grace period, for students and people who are self-sufficient, and that "EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme."—[Official Report, 30/9/20; col. 244.] My amendment is directed at what that means in practice because, with regard to the scope of the regulations, the Minister went on to say: "People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says."—[Official Report, 30/9/20; col. 244.] What the withdrawal agreement does say in Article 18(3) is this: "Pending a final decision", and I stress that phrase, "by the competent authorities on any application referred to in paragraph 1"— in the case of the UK this relates to applications to the EUSS— "and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities", and I stress the next bit as well, "all rights provided for in this Part", which are residents’ rights and all related equal treatment rights in the agreement, "shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4)." On the first day of Report, the noble Lord, Lord Rosser, explained the concern raised with both of us by the3million that: "In their current form, the regulations appear to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and whilst their application is pending. The regulations limit a legal basis to live in the UK to those who were ‘exercising treaty rights’ in accordance with existing EEA regulations by the end of the transition period."—[Official Report, 30/9/20; cols. 240-41.] The organisation amplified this by saying: "Crucially, there will be people who are eligible for status via the EUSS who will not have a legal basis to live in the UK during the grace period. Furthermore, anyone who has … submitted an application to the EUSS before the end of the transition period … is pending a decision after the transition period ends … Will have to demonstrate they fall within the scope of the regulations to have the benefit of its protection." Generally, those protected by the regulations will be economically active at the end of the transition period, and they will have the benefit of legal protections during the grace period and while their application is pending. However, that is not the case for those who are not economically active by the end of the transition period, such as an EU citizen dependent on a British spouse and without private health insurance. As my noble friend Lady Ludford said, the technical term is comprehensive sickness insurance, but really in this country we know it as private health insurance, which fulfils what is meant by comprehensive sickness insurance.