Examination of witnesses
Caroline Nokes MP and Simon Bond.
Q36 The Chairman: Minister, before I invite you to make a short statement to the Committee, I have one or two formal announcements. First, a transcript will be taken and made public, and the witnesses will have the chance to review it before it is published. Secondly, the session is webcast live and subsequently made available to view via the parliamentary website. Thirdly, Committee members should declare any relevant interests when they first speak.
Minister, you are aware that the Committee has a long-standing interest in the question of citizens’ rights and the operation of the EU Settlement Scheme. Over the period, we have met the Home Secretary on two occasions, we have met representatives of embassies and high commissions, and we have tried as best we can to work with the Home Office in scrutinising and getting the best result for EU citizens who are here.
I understand that you have one hour with us, so I hope that we can be brisk in both questions and answers. Can we have your statement, if you would?
Caroline Nokes MP: I shall certainly do my best to be brisk in answers. I welcome the interest that the Committee has shown in the EU Settlement Scheme and the opportunity to come along today. Obviously, like you, I have met on a significant number of occasions embassies and high commissions. I have had the opportunity to meet groups such as the3million, and have listened to a wide range of views on the settlement scheme.
The latest official statistics—I am always keen to stress official—were published on 20 June and give the figures up to 31 May. I am conscious that I am seeing you in mid-July and that therefore the official published statistics are somewhat out of date. There were nearly 800,000 applications to the scheme up to the end of May, with nearly 700,000 concluded statuses. We are publishing the next set of formal statistics later this week, on Thursday, but I am delighted to be able to tell the Committee that we have now received over 950,000 applications to the EU Settlement Scheme and granted status to more than 850,000.
The processing time for cases that do not require further evidence is between one and four working days. When applicants choose to submit their passport or identity document by post, those are typically returned within three days of receipt. Obviously, like the Committee, I have significant concern for vulnerable people and how they should participate with the scheme, which is why the Home Office has awarded up to £9 million of grant funding to 57 voluntary and community sector organisations across the whole United Kingdom, which will help us to reach vulnerable or at-risk citizens.
There are 300 assisted digital centres across the UK and more than 80 locations in which you can have your passport checked using the app. There is also a dedicated settlement resolution centre that can resolve queries by both phone and email. I am conscious that there has been quite a lot of coverage of the automated checks of HMRC and DWP data. Those checks are designed to be convenient and enable thousands of applicants to get their status very quickly; 90% of applicants choose to provide a national insurance number as part of their application, and around 75% do not need to provide further evidence of residence.
If we have to ask people for additional information, that does not mean that it is a rejection, a refusal or in some way a failure; it simply means that the automated checks have not been able to confirm the residence that the applicant says they have. That can be for perfectly legitimate reasons: for example, they may be students who are resident here but are not interacting with either the tax or the benefits system.
The Committee will understand the importance of ensuring that public discussion of the scheme avoids misconceptions or misunderstandings that might create uncertainty for EEA citizens and their families. In the Home Office, more than anything else we want accurate information to reach EEA citizens, through media, social media and, of course, through Parliament itself, in relation both to individuals’ cases and the way the scheme operates as a whole. We seek to have stories that inaccurately reflect the operation of the scheme corrected as quickly as possible, because they undermine the efforts that we are making to reach out to all EEA citizens, particularly the vulnerable, to make sure that they are informed and indeed encouraged to apply for status.
I am very proud of the progress we are making on the scheme but in no way complacent. I hope the Committee will agree that we have made significant progress in delivering on the commitment we made to secure the rights of EEA and Swiss citizens and their family members, and to help them to get the status they need to remain here permanently after we leave the European Union.
The Chairman: Minister, that is helpful, but it would have been more helpful had we received those figures in advance, because it covers some of the same ground that we hoped to cover during this session. For example, on 18 June, the Committee wrote to the Home Office asking for some of that material, and as yet there has been no reply. When should we expect a reply?
Caroline Nokes MP: Was that the correspondence with the Home Secretary?
The Chairman: Yes.
Caroline Nokes MP: I think the response to that will be available very shortly.
The Chairman: What does very shortly mean? It is a phrase often used by Ministers.
Caroline Nokes MP: I would say within days, by the end of the week.
The Chairman: Within days. Sadly, it was not sent earlier. It is from 18 June. We have had most of the figures from you now.
When an individual wishes to appeal against a decision not to grant settled status, will the Home Office undertake to provide him or her with the relevant reasons for the decision, if that individual wishes to make a request under the Data Protection Act? If not, in what circumstances will information be withheld from those individuals?
Caroline Nokes MP: If an applicant is refused status, the decision letter sent to them will explain the reasons. Of course, they are free to make an access request under the Data Protection Act, which would be dealt with by the Home Office in the usual way.
There are two main reasons why an applicant might be refused status under the scheme. First, there is the issue of serious or persistent criminality, which meets quite a high threshold set by the EU law public policy test and applies to conduct to the end of the implementation period in the event of a deal and to pre-exit conduct in the event of a no-deal Brexit. After that, UK deportation thresholds will apply. The second is in the instance of a non-EEA family member of an EEA citizen, if there were no genuine family relationship. For example, we might identify the relationship as based on a sham marriage.
The Chairman: How many people have been granted only pre-settled status and have sought to challenge that decision?
Caroline Nokes MP: Roughly two-thirds are granted settled status and one-third is granted pre-settled status. They are certainly able to challenge that decision. Up to 31 May, there were 253 cases of administrative review, where the applicant was challenging a grant of pre-settled rather than settled status; 22 grants of pre-settled status were upheld following the administrative review, and 231 grants of pre-settled status were overturned and the applicant was instead granted settled status, following the administrative review. In those cases, the applicant had generally accepted a grant of pre-settled status when making their application and then given additional evidence of their eligibility for settled status alongside their application for administrative review.
As I have always said, the scheme was launched in testing phases, with the private beta testing phase first, and we have learned as we have gone along. We have made changes so that the application process makes clear to applicants the scope for them to declare their period of continuous residence and provide additional evidence of their eligibility for settled or pre-settled status, as required.
Lord Anderson of Ipswich: In view of what has been said about appeals and administrative review, today’s Public Law Project report says that, in 2015-16, around 49% of appeals to the immigration tribunal were successful, whereas, over the same period, the success rate for administrative reviews conducted in the UK was just 8%, falling to 3.4% in the following year. In view of those figures, is it correct that, if we have no deal with the EU, there will be no mechanism for appeal to the tribunal—no deal, no appeal—and, if so, are you concerned by that?
Caroline Nokes MP: I preface every answer that I give on the issue of no deal by saying that of course we are working very hard still to secure a deal, and that is very much what I want. In the event of no deal, there will be no implementation period, and EU citizens will be able to challenge a refusal to grant status under the scheme by way of administrative review or, of course, judicial review.
Q37 Baroness Hamwee: As a supplement to the figures you have shared with us, will the Home Office publish details of the reasons for refusal or the headings for categories for refusal? I ask this particularly following the meeting to which Lord Anderson referred, when it was made very clear to us that in an automated system, using algorithms, it is difficult to know whether decisions might be based on protected characteristics, for instance. The need to extract the fine detail is something that the group was concerned about.
Caroline Nokes MP: There are a number of issues. First, there have been no refusals to date, but that does not mean that we are ruling out refusals. It is self-evident that there will be refusals, which, as I said, might be about criminality or because, with an EEA national whose family member is non-EEA, it could be considered a sham marriage. I give that only as an example.
It is important to reflect that these are not automated decisions; every decision goes in front of a caseworker. Although the automated checks that can be done with the DWP and HMRC can obviously stream people’s responses very quickly, they still have to be put in front of a decision-maker to verify the criminality and identity checks. It will be possible to have reasons for refusal. We are testing somebody’s identity, whether they have been resident in the UK for the required period of five years and whether they have any serious criminality. As I said, that has to meet the EU public policy threshold test. I regard it as impossible for somebody to be refused on the grounds of a protected characteristic.
Baroness Hamwee: Thank you for that. The first part of my question was on the publication of the reasons.
Caroline Nokes MP: I shall refer to Simon. I do not think that we have yet taken a decision on whether we will publish reasons for refusal. The emphasis all along has been about finding reasons to grant somebody’s status, rather than to refuse it. We have said that we will provide regular updates to the Home Affairs Select Committee, and I see no reason why we should not, as part of that, provide reasons for refusal, but we anticipate very small numbers.
Lord Cromwell: Can I go right back to the beginning? You said that there were 950,000 applications, and then you gave the figure of 850,000. Are those people who have been granted settled status, or is it just that their application has been processed?
Caroline Nokes MP: No. There have been 850,000 grants of either settled or pre-settled status, roughly two-thirds settled and one-third pre-settled.
Lord Cromwell: Thank you. There are 100,000 in flight. Is that what they are?
Caroline Nokes MP: Yes, but it must not be regarded as 100,000 stuck in the system.
Lord Cromwell: I did not say that.
Caroline Nokes MP: We are currently at a point where we are processing at a rate faster than intake. As a ballpark figure, there are 100,000 or so in flight.
Lord Cromwell: I prefer in flight to stuck in the system, but that is me being optimistic.
You mentioned a moment ago that there have been no refusals as yet, and you are considering whether or not to present reasons for refusal in due course. You have just covered that, so I shall not go over old ground. Given that there have been no refusals to date, do we have statistics on people who have started but have been unable to finish, or who have been rejected as ineligible or, indeed, as fraudulent?
Caroline Nokes MP: Yes, we do. I am happy to share those figures, which are internal live management figures, so they always come with a health check. That must accompany them, as one becomes nervous of using numbers in the Home Office. The number of applications that have been started and not finished is 23,251. They could have been not concluded for many reasons. It is perfectly possible that somebody started an application and then restarted and it has gone on to be granted, and we simply have not yet been in a position to cross-reference them.
I am not sure that I am going to be able to provide you with a precise number, but a number of applications have been voided or withdrawn. I think 0.2% were because they were applications from British citizens, who are obviously ineligible. There are applications from people who are simply ineligible for the scheme, such as non-EEA nationals with no existing family relationship. They will be rejected on the grounds of lack of eligibility, as opposed to being refused.
Lord Cromwell: That is 0.2%.
Caroline Nokes MP: No, that is British citizens. That was the number that I could remember off the top of my head, because I was struck that there had been that many.
Simon Bond: The 0.2% is all other outcomes, including rejections. A British citizen applying would be one example, as would someone of a nationality that is not part of the citizens’ rights cohort. That would be another example.
Lord Cromwell: Without wanting to beat this to death, we do not have a number for how many people have been knocked out of the process as ineligible, in flight.
Simon Bond: It would broadly be that number. We have said, “You’re not eligible to be part of the scheme”, for whatever reason, normally nationality.
Caroline Nokes MP: It equates to about 1,000 applications since the beginning of the scheme last August.
Lord Cromwell: That is helpful; thank you. The last part was about people who have been knocked out early as evidently fraudulent. Do we have any feel for how many of those there are?
Simon Bond: It is inside that number, the 0.2%, whether you define it as fraudulent or as people are mistakenly applying, thinking that they are part of the cohort, when they are not.
Q38 Baroness Ludford: Minister, as you know, this Committee has consistently and persistently tried to persuade your department that applicants should be provided with physical proof of status. We have heard and understood the Government’s preference for so-called digital first, but one of the many things that has been learned from the Windrush affair is that documentation matters. It seems that EU nationals are being used as guinea pigs for the digital-only policy.
Could we try to pin down exactly what the Home Office’s objection is to supplying a physical document for those who wish to have a form of identification? After all, I believe that Windrush applicants are going to get a biometric document, and third country nationals get a biometric ID document. Would you consider offering such a physical card if applicants paid for it? We understand that some EU nationals might even be applying under the Windrush scheme, precisely so that they get some kind of documentation. We are concerned that people might be refused services if they do not have something they can show an employer or a landlord, or whatever. Can we have another go at persuading you and your department?
Caroline Nokes MP: We are in no way using EEA citizens as guinea pigs. Over the course of the last 18 months or so, the digital right to work status has been successfully used for about 40,000 employer eligibility checks, and we have shown that digital status works.
It is important that we do not try to conflate status with identity. The biometric residence permit that we provide non-EEA nationals as part of their immigration status is to enable them to access services and benefits. With the EEA cohort, there are automatic checks. For example, when somebody presents for healthcare provision for primary care, the check would be automatic. Obviously, in accident and emergency, care is given to everybody anyway. There would be no reason for them to have to present any sort of digital status or share that with their doctor. In the same way, with the DWP for access to benefits, there is no need to use the digital status at all. What we have found through the digital right to work check is that being able to share your status digitally—for example, with an employer—has proven to be a quick and efficient way to do it.
EEA nationals already get a letter confirming their status, but that is not a secure document. We believe that the digital route provides the most secure means for somebody to evidence their rights to access services in the UK.
The Chairman: Are they in danger of being refused services, if they do not produce evidence?
Caroline Nokes MP: From January 2021, when free movement will have ended and the future border and immigration system will have been introduced, the reality is that everybody coming to the UK, whether they are an EEA national or from the wider world, will come under a single system of immigration, whereby they will be required to evidence their right to be in the UK. The reality is that, if you and I wished to rent a flat now, we would have to prove our eligibility to do that by providing our passport or other form of identification, in the same way as an EEA national will between now and January 2021. There are no additional changes until the future border and immigration system is brought in. With healthcare and benefits, no; the system will be set up so that that status will be recorded, and they will have to provide no evidence whatever.
Baroness Ludford: With respect, Minister, I am not sure that you really answered the question of why you are refusing. I understand your arguments. You believe that digital is best, but I do not think that you have really answered why people should not have the option of physical proof. It seems quite a stubborn attitude by the Home Office.
Caroline Nokes MP: I do not think it is stubborn. There are lots of examples both here and globally of digital status and services being the way forward. For example, Australia now has a digital immigration status. This may seem a little trite, but in the UK we now have digital television licences, and your car tax is done digitally; there is no physical representation. It is more secure.
Baroness Ludford: Can I interrupt you? I had a letter this morning reminding me that my TV licence is being paid on direct debit, so I have a piece of paper that attests to the fact that my TV licence is being paid.
Caroline Nokes MP: And mine is all done by email. There is a process to go through, but it is definitely the direction of travel. Globally, there is the ESTA, for example—the electronic authority to travel to the States—and e-visas are commonplace around the globe. That is certainly the direction we are headed in, and we believe that it is more secure. It is something that cannot be lost; it will be there for ever. As I frequently say, we will grant status to a child born in the last few weeks who may live to 120. If we ask them to keep hold of a piece of plastic for all that time, it will be challenging.
Baroness Ludford: I shall have one more go. We are not asking you to delete your digital system; we are asking you that, alongside it, people who wish can have a physical document. Your analogy of British citizens who want to rent a flat is not good, because we will have our passport, whereas an EEA national has to tell the landlord to go online. I feel I am still not achieving my ambition.
Caroline Nokes MP: What I do not want to do is to create a two-tier system, which I believe having an optional card for some may do. We do not want there to be confusion for landlords or for employers; we want them to accept that there is one route by which people can evidence their status, which I reiterate is their immigration status and not their identity.
Lord Dholakia: May I take up the case? We are talking about the service element, employers and so on. What about cases when there are fishing raids, such as at a car wash or a restaurant, and people are asked to justify their stay in this country? If they do not have particular documentation, they are bound to lose their liberty, even if it is for the shortest possible time. Do you not think that is unacceptable?
Caroline Nokes MP: They simply will not, because the Home Office will have a record of everybody’s digital immigration status. If there is an immigration enforcement raid on a car wash or a restaurant, it will be very simple and easy to check, and people will not be sculling around looking for the equivalent of a biometric card.
Lord Dholakia: They will have the machinery at that particular place to determine the status of an individual.
Caroline Nokes MP: The Home Office, as the controller of the data, will be able to verify that. As I said, it is all done online.
Baroness Deech: How confident are you that the system will never be hacked into and will never go down? That has been all of our experience, I am sure. I print off my ESTA for safekeeping, and I imagine that if I got settled status I would probably at least print off something that came up on screen confirming it. Given the history of failing systems in this country, systems that are hacked into and systems that in 50 years’ time will be so different, how can it possibly be secure?
Caroline Nokes MP: We have invested a great deal of time, money and energy in developing a system that is secure. We have used the very best standards. You are right to flag up the ever-changing digital world. Indeed, technologies will exist in five years’ time that we simply do not dream of today. Equally, the Home Office’s challenge going forward is to make sure that we have a record that we can keep. I feel somewhat reluctant to raise this myself, but I might as well. The dreadful things that happened to the Windrush generation were because they could not evidence their stay here; an Act of Parliament was passed that did not give them the sort of status we are talking about today.
Simon Bond: The National Cyber Security Centre has audited carefully how we implemented the system, so it is not just our assertion. We sought proper expert advice and help from across government to make sure that we built it to the correct standards.
Lord Wasserman: I spent most of my professional life in the Home Office and I am very well disposed to the Home Office. For much of my time in the Home Office, I was responsible for computerisation of the police national system.
When I first heard about this, I thought that it was very sensible that you did not need a piece of paper, because we have it digitally. But every time we meet people and representatives of other countries, they really go on about it, and I do not think that it is a fight worth having. If I was in the Home Office now, I would say that, of course, this is the direction we should be heading in, and of course we want a digital world, and all the rest of it, but it is stirring up a lot of resentment and unhappiness among those who are affected by it and who want a piece of paper.
It seems that a scheme allowing them to have a piece of paper, if they want it, will stop them having a view of the Home Office as being hard-nosed and fighting it on principle: “We want to move into the digital world, so too bad”. I do not think the battle is worth having. You are aggravating too many people who already feel unhappy about having to apply for something they thought they had a right to.
Caroline Nokes MP: There are some significant cultural differences, are there not? I am conscious that many of our EU friends and neighbours are already obliged to carry ID cards in their own countries. We are not here; it is not the British way of doing things. There is that first cultural difference.
I go back to the numbers. We have had 950,000 people apply so far, and we are ahead of track of where we expected to be. If there was massive resistance to just having a digital status, I think we would have seen a far lower uptake. Of course, I am conscious of the needs of the vulnerable and the elderly, but they are in a cohort of people who are extremely unlikely to need to evidence their status to access employment.
Lord Judd: Would you agree that we have moved a long way from the position, when this whole business started, when there were categorical assurances from the Government at the most senior level that nothing would change and that people had every right to be confident? Surely, when we were all European citizens together, they had no doubts: they knew that they had rights to citizenship, just like us.
The situation has fundamentally changed, because now they have to apply for status, which is not at all the situation as it was before. They feel that the authority and information all lies in the high-tech information systems of the Home Office. To put that right psychologically, it is crucially important that somebody can produce a card and say, whatever the whys and wherefores, “Here is the evidence that I have the status”. Surely, you would agree with that.
Caroline Nokes MP: I think it is crucially important that they can evidence the status, which they will be able to do to an employer or a landlord by sending a link. That is a lot more straightforward; it is less likely to be open to fraud and forgery, and it is more secure and enduring.
Q39 The Chairman: We understand that there are circumstances in which applicants have been charged for assistance. Does the Home Office have any evidence about that?
Caroline Nokes MP: We have engaged with a range of partners to provide locations for chip-checking, so that people can go and use the app to get the identity from their passport or biometric ID card. The majority of local authorities that provide that service are doing so for free. Some are doing it for free to residents of their own borough, but charging residents of neighbouring boroughs. I understand that the fee is usually about £14, but it ranges between £10 and £20. That is a decision for the individual local authority. There are, I think, 80 chip-checking services nationwide; some charge, and some choose not to.
The Chairman: As it is so desirable, is there any pressure by central government on local authorities to provide that assistance?
Caroline Nokes MP: We have worked very closely with the Local Government Association and individual councils, through various of our networks and groups set up to support EU citizens through this process. The LGA has been a very useful and constructive partner; it has been very good at pointing out to us the challenges, particularly around vulnerable people, children in care and the elderly, who may be in care homes. We have worked well with the LGA, but the decision for individual local authorities as to whether they charge for an ID scanning service is entirely up to them.
It is worth noting that, if an individual chooses to go along and avail themselves of a chip-checking service, they do not have to send their document to the Home Office to be verified. It means that they are then able to travel, although, as I said, we are returning documents within three or so days, on average. It takes away the risk and the cost of having to send a document by post.
The Chairman: Practice varies between local authorities.
Caroline Nokes MP: The practice does indeed vary.
The Chairman: Are you concerned that there are gaps, and that perhaps the more prosperous local authorities are providing assistance and others are not?
Caroline Nokes MP: There are 83 locations in total offering ID document scanning, which range from Aylesbury to York, to do it alphabetically. Do I think that there is any difference between more affluent areas and those that are not? It seems invidious to pick places off the list, but I shall aim for Southampton, an affluent authority in the south-east, where I represent part of the city. We also have the London boroughs of Brent, Ealing and Hackney, and we have Newcastle, and Bridgend in Wales. It is a wide variety.
Q40 Lord Wasserman: At the last meeting we had with EU representatives, one or two made what I thought was a very good suggestion to bring the police into this and get them up to speed about the scheme, because people ask their local cop about it. Have you had any talks with police and crime commissioners or with the College of Policing about the scheme, making sure that police officers understand the scheme, and where people can do it?
Caroline Nokes MP: No, they have not been involved in any of our working groups. As I said, and I often repeat to local government audiences, I am very conscious that when people feel uncertain they often turn to their local authority for assistance, which is why we have engaged so heavily with them, but not specifically with police and crime commissioners.
Baroness Hamwee: Exactly on that point, Minister, local authorities are often the first port of call. I have two questions following from that. I understand that some authorities are not clear whether they have a statutory duty to help people who do not have the capacity to apply themselves; it has been described as a grey area. Could we have clarification of that? Secondly, if there is another bidding round for further funding, on top of the £9 million to which you referred, can local authorities apply for some of that?
Caroline Nokes MP: To take the second question first, we anticipate that the £9 million will provide support to approximately 200,000 vulnerable individuals. I have seen the scheme and the efforts put in place at first hand in the East European Resource Centre in Hammersmith. Last week, I was at the Local Government Association conference, and I used that opportunity to visit Citizens Advice in—I am going to get the name wrong, or get them in the wrong order—Bournemouth, Poole and Christchurch, to talk about the provision they are making to reach out to vulnerable EEA citizens. I very much hope that the £9 million in grant funding will be adequate, but that is something we will keep under very close observation. Should there be a requirement for further assistance, obviously we will have to do that.
I am not sure that I can answer the question as to whether I view local authorities as having a statutory requirement to help. That might have to be something on which we come back to you in writing.
Baroness Hamwee: Given that there seems to be some confusion, that would be very helpful.
The Chairman: Do you want to move on to the next question on the use of data?
Q41 Baroness Hamwee: Yes, it is another transparency question. I have heard quite a bit of concern, and there has been correspondence, which has not led to a conclusion, that information provided to the Home Office through the scheme might be used for immigration enforcement. There is a particular exemption in the Data Protection Act regarding immigration control. Apart from when an applicant discloses fraud or another reason for deportation, parking that on one side, can we be assured and, although I do not like to use the word “guaranteed” in a political situation, can we have a guarantee that individuals will not be removed for other reasons?
Caroline Nokes MP: First things first, it is important to reflect that anybody currently engaging with the scheme is an EEA citizen, and they have the right to free movement until such time as the immigration Bill completes its Commons stages, and before it goes on to the Lords and gets Royal Assent. It is important to reflect that, if you are an EEA citizen, free movement currently still prevails. Of course, that will be turned off in due course.
As you know, we are required by the GDPR to provide information on how a person’s data is processed. We have published a privacy information notice for all borders, immigration and citizenship activity, which is accessible via the app and via the application process for the scheme. It informs people how the data is processed and about any future processing that may be applicable.
We share data for a wide range of reasons, not least safeguarding and to promote the welfare of children and adults, to make sure that the relevant authorities and services are able to provide support to vulnerable individuals. We share information with local authorities and charity organisations to assist them in delivering their statutory duties, in particular protecting children. That might answer an earlier question: when a local authority has a young person in care, it has a statutory duty to that child. We have been working very closely through our working group for vulnerable people to make sure that information is exchanged closely with local authorities about the duty they have to young people who may be EEA citizens but are in the care system. We share data with HMRC, the DWP and the NHS in relation to rights to access public funds and services.
I am very conscious that information may come to light about serious criminality, which we would share with immigration enforcement—for example, if someone was here in contravention of a deportation order. But we are using the scheme very much as a method to grant people status, not to refuse it. It is set up with positivity in mind, to help people to achieve their status; it is not at all for the Home Office to use to remove people from the country.
Baroness Hamwee: If I am asked by somebody who fears that information might be misused—I shall use that word, although it might be a bit controversial—is it going to be reassuring for them to be told that the Home Office is looking for reasons to approve and not to refuse, and that they should not feel vulnerable to deportation? I am asking for real clarity on this.
Caroline Nokes MP: I always say this in the House, and of course that is the best place to keep a secret, is it not? We absolutely are looking for reasons to grant. We want people to be confident about the scheme. We can point to the numbers that have been through it: 950,000 have applied and 850,000 have been granted status. Most people have found it a simple and straightforward process, and they are granted their status within one to four working days.
This is the Home Office trying to be helpful. We set up a scheme absolutely from scratch, which I very much hope will provide a model for our future borders and immigration system. It is streamlined and digital, although I hesitate to use that word. It is efficient, and it absolutely should be seen as the gold standard and as the Home Office getting something right.
Baroness Ludford: To press you on that, you settled a case from the JCWI at the end of last year, which was about the question of using data, perhaps not specifically, to include removing people on grounds of non-exercise or misuse of their rights under the citizenship directive. As I understand it, the claim was settled by the Home Office agreeing to incorporate the principle of proportionality in that specific element of the suitability criteria.
I think the answer to our question is that you have not given a guarantee that you will not use data gathered during an application for settled status for other immigration purposes and, specifically, to remove people on the grounds of non-exercise of their treaty rights under the citizenship directive. I understand that there was some tightening up of the principle of proportionality, with its becoming a discretionary ground of refusal. You will have the details better than me. As I understand it, the Home Office has left itself the option to use data from the settlement scheme unit and share it with other units of the Home Office for immigration enforcement purposes, including under the citizenship directive on non-fulfilment.
Caroline Nokes MP: But the scheme does not require you to be exercising treaty rights. You do not have to be economically active; you just have to evidence that you are here, and of your identity and the lack of criminality. We have been more generous than we needed to be, and more generous than under the withdrawal agreement, and have simply said that you do not have to be exercising free movement rights; you just have to be here.
Baroness Ludford: I understand that, but is my portrayal of the settlement from the JCWI accurate? You have not ruled out using the data collected under the settlement scheme application process for other immigration enforcement purposes. That has come out in exchanges we have had with the Home Office over the last half year or so. You have still allowed yourself to use that data. The answer to the question, “Is there a guarantee that it won’t be used to remove people for reasons outside the scope of the settlement scheme?” appears to be no. Can you confirm that you cannot give a guarantee?
Caroline Nokes MP: What we have given people under the settlement scheme is the equivalent of indefinite leave to remain, so they have the right to be here, to work and to live, et cetera. The settlement scheme is quite separate from the exercise of treaty rights; you do not have to exercise treaty rights. It is my view that, once somebody has indefinite leave to remain, they would have to pass the threshold of quite serious criminality for us to consider removing that.
The Chairman: Can I reformulate the question? Saving matters of fraud or serious criminality, are you prepared to give a commitment that data provided will not be used for other purposes, to the detriment of the applicant?
Caroline Nokes MP: We would have to review that, particularly in the light of the settlement with the JCWI, which I regret I do not have in front of me and perhaps should have reviewed before I came here.
The Chairman: It is a fairly simple question. It will reassure, or not, individual applicants, if you can give that commitment.
Simon Bond: Surely, the core reassurance is that, as the Minister said, we have not refused anyone, and we have decided 850,000 cases. That is how the scheme is going, and it shows our intent, as we said. Our drive is to say yes and be able to grant people, so the proof is in the pudding: we are granting, and we have not said no to anyone in 850,000 decisions. That is what matters.
Caroline Nokes MP: I do not think we can give an undertaking not to share data, particularly where it might involve an issue regarding safeguarding of children. It is important that we enable ourselves to be in a position where we do not make a commitment today not to share data at all. Yes, we are going to share data with the NHS to enable people to access services. We are going to share data with the DWP so that they can get their pension. We are going to share data with landlords and employers when people have asked for that via the link. It is important that we retain the right to share information when it comes to safeguarding children.
Baroness Ludford: I acknowledge that you cannot be the mistress of everything, Minister, but, as I understand it, from the way the Public Law Project report today has described the settlement with the JCWI, you have left yourselves the possibility. The criteria were tightened up on proportionality and discretionary grounds of refusal, but the Home Office has left itself the power to use that data. I accept that there have been no refusals yet, but quite a lot of applications have been put on a pile, and we do not know what is going to happen to them. You do not seem able to confirm that there is a possibility that you will use that data to remove people for non-exercise of treaty rights.
Caroline Nokes MP: No, we simply are not removing people for non-exercise of treaty rights.
Baroness Ludford: You are not now.
Caroline Nokes MP: We are granting people status and giving them indefinite leave to remain, which is the equivalent of permanent residency, which will no longer exist because we are leaving the EU. We are giving them a permanent status in the UK, to reside here. I reject any assertion that this is a Home Office tool to remove people; it is a Home Office tool to grant people the status that they will continue to use in the United Kingdom indefinitely.
Baroness Ludford: I understand that, but, if people fail settled status, could the data be used in the way I have described?
Caroline Nokes MP: I reject the term “fail settled status”. If they have been rejected for settled status, it is because they are not an EEA national who is living here or because they have failed the criminality test.
The Chairman: We will examine that answer and possibly formulate further questions to clarify matters.
Baroness Deech: My question is about prisoners, but I cannot refrain from a footnote on the issue of paper documentation. I am concerned about family members, especially when the person with settled status has died. This happened to me, actually. How on earth would children and the rest of the family know, when they needed it, what the status of a deceased parent or spouse was? I think that issue is not yet settled.
Caroline Nokes MP: Could I answer that first? It is a really important point and one of the reasons why we have an incredibly well-staffed settlement resolution centre to deal with people’s queries and issues by phone and email. It is a crucially important point, not just when family members are deceased but in cases of victims of domestic violence who may have a partner who has controlled their documentation, or in the case of people living here who are street homeless and do not have their documentation.
The resolution centre is set up in a very similar vein to the way the Windrush taskforce worked, to enable people to build a story of their life in the UK, even where, for whatever reason, they cannot access the documentation they would normally require. We are very conscious that there may be children in care who cannot evidence their birth certificate, a passport or an ID card. It is an important and valid point. That is why we have put in place the settlement resolution centre, for the really difficult cases.
Q42 Baroness Deech: In the event of a no-deal Brexit, how would the Government get criminal record information about applicants from other European member states, against a scenario that there is a suspension of data exchange between the EU and the UK? I know just from reading the papers that already, with data exchange, we occasionally get stories about criminals who are convicted here who have arrived from Europe, and there is an outcry, with people asking why nobody spotted that the person was a convicted murderer in some other state. There are clearly already vulnerabilities. How would you get the data in the case of no deal?
Caroline Nokes MP: You are right to flag up that a no-deal scenario makes life significantly more difficult for us. Of course, we will make more use of Interpol, Council of Europe conventions and bilateral channels. We already use some bilateral channels to exchange information. You are right to point out that those are not like-for-like replacements, but they are tried and tested and have been used for many years, and they are already the mechanisms that we use when we co-operate with non-EU countries.
Baroness Deech: But, as I hinted, to an ordinary newspaper reader it is not working terribly well even at the moment.
Caroline Nokes MP: It is important to reflect that, under free movement, an EEA national can come through the border unchecked by passport control. They use the e-gates and can come in through the common travel area. It is not perfect at the moment. You are right to point it out, and it is why I do not want to leave without a deal. A deal is important so that we can continue to work as closely as we possibly can with our European neighbours and counterparts. We want to share the very best information, and I emphasise that some of the information we have is among the best in the world, and they would benefit from being able to have access to that.
The Chairman: Part of the reason for the EU scheme was that other schemes were found inadequate.
Caroline Nokes MP: I think it is worth pointing out.
Baroness Deech: There is another side to that coin. What about EU prisoners, who are in prison here right now? Can they apply? Do they have settlement rights? How are they going to be sorted? They are not going to be looking at their computers and getting help. What is going to happen to them?
Caroline Nokes MP: Simon will remind me of the public policy threshold, but, if they have not exceeded it for whatever their crime is, of course they will be entitled to apply. You are right to point out that they will not be applying from a smartphone from their prison cell. However, on release, they would most definitely have good grounds to be able to apply after the end of the scheme. That is a very obvious reason why they would not have been able to apply previously. Of course, the postal route applies, so they could apply by post if they have access to their ID document while in prison. No. Simon is going to correct me.
Simon Bond: They can apply once they are released. Their time in prison does not count towards building up their residency.
Baroness Deech: It does count?
Caroline Nokes MP: It does not.
Baroness Deech: It does not count. Not that I have any particular sympathy for them, but if someone is in prison for five or 10 years, and then they are released, what is going to happen to them?
Simon Bond: As the Minister indicated, we would apply the public policy test. If they were to pass that, because they had family life in the UK, for example, they would be able to get pre-settled status and build up towards their settled status.
Q43 Lord Dholakia: Can I probe into the cases of EU nationals who do not apply for settled status in this country? Would they be classified as illegally resident? If so, would they be able to prove afterwards that they were legally in this country? What procedure would apply in rectifying their status?
Caroline Nokes MP: We have always said that we would take a proportionate approach to those who do not apply in time. I am very much of the view that we want to encourage people to apply. They have a significant period, until December 2020 in the event of no deal, and June 2021 if there is a deal, as I very much hope there will be.
It is important that we respond in a pragmatic way to people who have good reason not to have applied, such as those who may have been through a prolonged period of illness. As I said, we have in place a resolution centre that is determined to work with people in whatever circumstances. It is absolutely right that we uphold our commitment to EU citizens who have been living here absolutely legally and exercising free movement, as is their right, and that we work with them going forward to make sure that their rights are secured.
Lord Dholakia: Minister, have you had an opportunity to look at the article in the Guardian two days ago? Do you have any comments about the app not working in relation to the status of the individual mentioned?
Caroline Nokes MP: As you can imagine, we check both the app and the online application scheme regularly. We know that it works with over 1,000 different types of devices, which have been used successfully. I have seen the story covering the issues in that individual case. While I cannot comment on individual cases, I urge anybody who is experiencing any issue with the app not working to contact the resolution centre. As I said, 950,000 have applied and they managed to make it work, but anyone who cannot should contact the resolution centre.
The Chairman: It appears from the Guardian article that the officials concerned were unaware of the problem.
Caroline Nokes MP: It is fair to say that we work very hard at all times to make sure not only that the online process is working well but that data checks and the transfer of data between us and HMRC are seamless. We were not aware of that particular problem, and we are not aware of the back button not working. It has worked for 950,000 people, but we continue to check and monitor it.
The Chairman: When will the flaw be remedied?
Caroline Nokes MP: I do not believe that there is a flaw. I believe that the individual found a circumstance where it did not work for them. I cannot comment, because I do not know what type of device they were using, but it is important that, when people encounter issues, they contact the settlement resolution centre. It is done on a local rate call, and we have found it to work very efficiently.
Lord Anderson of Ipswich: It is a little more than a flaw that affected one person, is it not? It seemed that it was not possible for the person to convert pre-settled status into settled status, using the app, which is a pretty major thing. When the Home Office was asked about it, it is quoted as saying that it has “not rolled out the functionality yet”.
Caroline Nokes MP: I was not conscious that he was trying to convert pre-settled to settled, which cannot be done on the app yet. It can be done via the settlement resolution centre. You will be able to reapply, and go through the whole process again, from the end of this month, and very shortly we will put in place the functionality to be able to convert pre-settled to settled status.
It is important to emphasise that anybody who has pre-settled status has five years in which to change their status to settled. There is no immediate rush to do so, but I understand people’s enthusiasm to do it. We will work closely with organisations such as the Cabinet Office behavioural insights team to work out how we can best nudge people who have pre-settled status to convert it to settled status when the time is right. There is some work to be done to understand whether people’s appetite to do that will be the minute when they are eligible or later in the process. As I said, they have lots of time.
Lord Anderson of Ipswich: I appreciate that a lot has had to be done to get all of this up and running, but we have heard about functionality that has not been rolled out in this respect. You have a lot of advisers here with you. Are you aware of any other intended functionality, or functionalities, that have not yet been rolled out? If so, can you tell us about them so that we do not have to read about them next time in the newspaper?
Simon Bond: The ability to move from pre-settled to settled and to make the second application is the core bit of additional functionality. Like all services the Government introduce, we continue to monitor it and to make improvements as we take feedback from our users. We do not see it as something that will finish; we see it as something that will continue to improve as we understand the behaviours of people who use it. The Minister made the point that 950,000 people have applied. For us, that is the biggest indication that it is working very well.
Q44 Lord Anderson of Ipswich: Minister, on the subject of tax credits, which I know you are familiar with through previous Answers you have given, I understand that automated residency checks do not check applicants’ records on working tax credit, despite the fact that residency needs to be established as a condition for working tax credit. Liz Truss said on 25 June that, “tax credit records have not been included as they would only be relevant to a small number of applicants”. You then gave an Answer on 3 July, saying that, after analysing 10,000 applications, “the Home Office estimated that the potential pool of resident EEA citizens who might benefit from tax credits data being included in the automated checks was around two per cent”.
On my calculations, 2% of 3 million is about 60,000 people, so, on the face of it, tax credit records could be usefully integrated into the scheme. Is there anything more you would like to tell us? First, do you really think that 60,000 is a small number, and, secondly, can you help us with the real reason why it was not possible to integrate tax credits? I am open to any number of reasons why it might have been.
Caroline Nokes MP: I do not regard 60,000 as a small number at all, but, of those 60,000, many will also have HMRC records, and they might have DWP records as well. It was simply not one of the functionalities included. There is no hidden reason.
Lord Anderson of Ipswich: But these are people who, according to your Answer, might benefit from the residence data. If you are going to tell me that there is some appalling technical obstacle to incorporating those data or that the data are not very reliable, I will understand. What I do not understand is, if it can easily be done, why for the sake of those 60,000 people it is not being done.
Caroline Nokes MP: I am not going to say that I do not trust the data. It would be entirely inaccurate to portray it as that. It has not been included, and it is always something that I am prepared to consider including, but we have built the scheme now and it is working.
Lord Anderson of Ipswich: Are you saying that it could not be retrofitted?
Caroline Nokes MP: I do not know whether it can be retrofitted. That is something I can take away and look at, but I do not know if we can or not.
The Chairman: Perhaps you could respond to us on that important question.
Lord Cromwell: Quite a number of the answers you have given today, Minister, suggest that the resolution centre is going to resolve all these problems. How many people are in the resolution centre, and how many lines does it have?
Caroline Nokes MP: I cannot give you that number off the top of my head. I can tell you that I have been to the resolution centre and sat with senior caseworkers who were talking through people’s cases in Liverpool. There are 250 people—Simon has just helped me with that number—so we have 1,500 people working on the settlement scheme in total and 250 in the resolution centre.
To date, it is working well. Calls are answered very quickly. I am most conscious that at the beginning of a scheme you would expect there to be a surge in applications. We certainly saw that in the opening weekend; there were 50,000, and the system still worked. I expect there to be a level number of applications going through the scheme, so after an initial surge it will plateau. I assume that will happen during events such as the further advertising drives we are planning, and, of course, towards the end of the scheme we will see a peak again. Currently, I have no reservations about the resolution centre being able to cope with demand.
The Chairman: Minister, you have been extremely helpful. We will look carefully at the answers you have given, which may provoke yet further questions. I thank you and Mr Bond.
