Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Written evidence submitted by the Russell Group (ISSB18)

Proposed amendment

Our proposed amendment to the Bill addresses our concerns regarding the following themes:

· The urgent need to secure the rights of those EU nationals covered by the Settlement Scheme in UK law

· The need for the UK to have a credible alternative to the proposed migration arrangements (European Temporary Leave to Remain) in the event of No Deal

Background

EU nationals make a significant and valuable contribution to UK research and higher education. It is important these individuals feel valued and supported to stay in the UK. Their rights, as set out in the Government’s Settlement Scheme, should not be contingent on the UK reaching a deal with the EU.

Although Government has said that they will guarantee the rights of those arriving before the 29 March, there is currently no legal certainty of this, which is urgently needed.

We therefore recommend that Settlement Scheme rights be enshrined in UK law through the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, and not through the planned Withdrawal Agreement Bill.

Such rights should also apply to any EU national arriving before the UK implements its future immigration system (currently planned for January 2021) – as was Government’s intention (set out in the Settlement Scheme Statement of Intent published in June 2018) and as stated in the Immigration Rules Appendix EU.

This would avoid the need to create a new immigration category (European Temporary Leave to Remain) in the event of No Deal, as proposed by Government on 28 January 2019. We have several concerns around the implications of this proposed arrangement which we set out in detail below.

Amendment

This amendment relates to Part 1 (Measures relating to ending free movement) of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.

After Clause 1, insert:

2 Rights of EEA and Swiss nationals resident in the United Kingdom before 1 January 2021

(1) In this Clause, "eligible persons" means EEA and Swiss nationals, and their respective family members, who exercised their right to reside in the United Kingdom in accordance with European Union law before 1 January 2021, or the date at which the UK implements a new immigration system, whichever is later.

(2) Eligible persons who have resided legally in the United Kingdom for a continuous period of 5 years, shall have the right to reside permanently in the United Kingdom under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC.

(3) Eligible persons, who have resided legally in the United Kingdom for a period of less than 5 years, shall have the right to acquire the right to reside permanently under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC.

(4) Periods of legal residence or work before and after January 2021, or the date at which the UK implements a new immigration system, whichever is later, shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.

(5) Once acquired, the right of permanent residence shall be lost only through absence from the United Kingdom for a period exceeding 5 consecutive years.

Explanatory notes

We have welcomed the Government’s Settlement Scheme as an approach that will allow EU nationals in the UK to register easily for pre-settled or settled status. However, although many EU nationals have already started to register, their rights under the scheme have yet to be guaranteed through UK legislation. [1]

Although the Government intends to enshrine these rights in UK legislation through a Withdrawal Agreement Bill, such a Bill will not be brought to the House in the event of No Deal. This scenario would leave EU nationals in the UK who are eligible for the Settlement Scheme in legal limbo, especially if the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, as drafted, is passed and Government uses its new power to end free movement of EU citizens to the UK.

To give legal certainty of their status and future rights to those EU nationals covered by the UK Government’s Settlement Scheme, as set out in June 2018, the text relating to citizens’ rights in the draft UK-EU Withdrawal Agreement (Part 2) should be included in Part 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.

This proposed amendment would also confirm that those EU nationals arriving after the date of Brexit and before the UK’s future immigration system is implemented in January 2021 will be eligible to register under the Settlement Scheme – as was Government’s intention when it published the scheme [2] and set out in the eligibility criteria in secondary legislation: Immigration Rules Appendix EU. [3]

This would avoid the need for the UK to establish a separate immigration category (the proposed European Temporary Leave to Remain (ETLR)) for those EU nationals arriving after 29 March and before January 2021 in the event of No Deal.

We have significant concerns relating to the proposed ETLR, which is a visa permitting a 36-month stay in the UK from the date of application, intended to apply to all those EU nationals arriving in the UK after the date of Brexit and staying for more than 3 months. Our concerns centre around the uncertainty individuals will face on this visa and the implications of this on universities’ ability to recruit talented students and staff from the EU, because:

· The ETLR is a non-extendable visa. Anyone on this visa would need to transfer to a new visa category when the UK’s future immigration system comes into effect. Those granted ETLR will therefore face a great deal of uncertainty as to whether they will be able to stay for longer than 36 months as there would be no guarantee they could switch onto a new visa.

· ETLR would not provide the leave necessary for EU students starting courses in 2019/20 or 2020/21 that are longer than 3 years in length. Such courses include:

o all undergraduate degrees in Scotland

o medicine and dentistry courses

o nearly all engineering courses

o any course with an integrated masters or placement period

o most PhD programmes - we are especially concerned about this because at Russell Group universities we have already seen a 9% drop in the number of EU students starting postgraduate research courses in 2018/19 compared to the previous year, following a 9% drop in 2017/18 as well.

· It is not clear whether time spent on the ETLR would count towards indefinite leave to remain. If not, individuals working on this visa would have fewer rights that non-EU nationals on Tier 2.

· Students on the ETLR would not be entitled to a period of post-study work leave on this visa and would therefore have fewer rights than non-EU nationals on a Tier 4 visa: undergraduates on a Tier 4 visa for a 3-year course are granted 4 additional months leave after their course end date.

February 2019

   

[1] It should be noted that eligibility criteria for the scheme have been set out in secondary legislation through the Immigration Rules Appendix EU

[2] The Settlement Scheme, as set out by Government in June 2018, stated that "EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for ‘settled status’, enabling them to stay indefinitely." and that those "EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for ‘presettled status’, enabling them to stay until they have reached the five-year threshold."

[3] This text confirms that EU nationals resident in the UK before the "specified date" are eligible for the scheme and defined the "specified date" as "2300 Greenwich Mean Time on 31 December 2020".

 

Prepared 18th February 2019