Nationality and Borders Bill

Committee (2nd Day)

Amendment 34

34: After Clause 10, insert the following new Clause— “Acquisition of British citizenship by birth or adoption: comprehensive sickness insurance (1) The European Union (Withdrawal Agreement) Act 2020 is amended as follows.(2) After section 15, insert—15A Comprehensive sickness insurance(1) For the purposes of any decision taken by a public authority under this Part after commencement of this section, a person is to be treated as having met a requirement to have held comprehensive sickness insurance, whenever they—(a) had access to the NHS in practice, or(b) held a comprehensive sickness insurance policy.(2) This section applies in particular to any decisions taken under residence scheme immigration rules.”(3) The British Nationality Act 1981 is amended as follows.(4) After section 1(3A) insert—“(3B) A person born in the United Kingdom after commencement who is not a British citizen is entitled, on application, to register as a British citizen if the person’s father or mother would have been settled in the United Kingdom at the time of the person’s birth, if Assumption A had applied.(3C) Assumption A is that, in assessing whether the person’s father or mother met a requirement to have held comprehensive sickness insurance, this is to be regarded as having been satisfied whenever they—(a) had access to the NHS in practice, or(b) held a comprehensive sickness insurance policy.(3D) Registration under subsection (3B) is free of charge.”(5) After section 50A insert—50B ExceptionsNotwithstanding any provision of section 50A, for the purposes of an application for naturalisation or registration made under this Act, a person—(a) is not to be treated as having been in the United Kingdom in breach of the immigration laws during a period of time that has been counted as part of a continuous qualifying period in a grant of leave to that person under Appendix EU of the Immigration Rules, and(b) is not to be treated as not being of good character on account of a failure to hold comprehensive sickness insurance during some period of residence in the UK.””Member’s explanatory statement This new Clause provides that a person seeking to naturalise as a British citizen, seeking to exercise family reunion rights as a naturalised British citizen, or seeking to have their UK-born children recognised as British at birth, need not have had comprehensive sickness insurance prior to naturalising or prior to the birth of their child.

My Lords, I hope not to have to detain the Committee for too long on this admittedly complicated subject of the anomalous historical legacy of comprehensive sickness insurance—hereafter CSI—because I am hoping that the Minister will spring up, interrupt me and pledge that the Home Office will resolve all the left-over problems faced by some EU citizens today. She was kind enough to meet me virtually last week, and I detected a degree of thoughtfulness in her department on the subject. I cannot yet put it higher than that, but I am hopeful.

Attentive listeners might recall that some of us— especially, perhaps, I—banged on about the obscure issue of CSI at various points in the debates on EU withdrawal and, in particular, on the UK’s EU settlement scheme. It is a long and, in my view, sorry history. I will recap as briefly as I can: in the EU citizens’ rights directive of nearly 20 years ago—which I worked on as a Member of the European Parliament, hence my long-standing interest—so-called free movers were required to have comprehensive sickness insurance; that was the term used. On the continent, health systems are often covered by state insurance systems. In the UK, we have the NHS or private health insurance. Although of course we have national insurance, people do not think of the NHS as an insured scheme. So there has been a long-running problem of EU citizens in Britain who are not employed, such as students, the self-employed and homemakers, being expected—although, crucially, not usually told—to have private insurance. This was a matter of legal dispute in Brussels, which rumbled on, and I do not think it ever got resolved.

Fast forward to Brexit and the acute issue of whether those lacking private health insurance were legally resident in the UK and could seek settled status under the withdrawal agreement. Fortunately, the UK Government wisely cut through that residual red tape and said, in an admirably pragmatic decision, that they would let everyone get settled status. However, often unbeknownst to individuals, they fell into one of two groups: the true cohort and the extra cohort. The significance of this distinction arises only—indeed only becomes known —when a settled person seeks to register a child’s birth, to naturalise themselves as British or to bring a family member to join them in this country. Then they face a veritable series of snakes and ladders, because any historical gap in CSI—private insurance—may make them slide down into a pit of reptilian problems. Only when they seek to register a child, bring in a spouse or become a British citizen might they be told: “Aha! Your historic lack of CSI is a bar.” Noble Lords will recall that it was not a bar to them getting settled status, but it raises its ugly head at this later stage. At the risk of mixing my metaphors, it is Kafkaesque.

My Lords, I hesitate to follow my noble friend, who is an expert on this issue. I declare an interest as a British citizen seeking a residence permit in Norway, where I have lived with my husband for the last 14 years. I have always had access to the Norwegian national health system. My application for a residence permit—the equivalent of settled status—has been outstanding for over 12 months because of issues with comprehensive health insurance.

I start by thanking the Government for their generous approach to EU and EEA citizens seeking settled status in the UK. The Government have taken the general approach that, if someone has been living here for years and was legally accessing the NHS when the UK was part of the EU, they do not need to have, to have had or acquire comprehensive health insurance, even if—as with me in Norway—they are not working or studying. This goes beyond the Brexit agreement, but is entirely consistent with the principle that EU and EEA citizens living in the UK prior to Brexit should be able to continue to live here on the same terms after Brexit. It is the right thing to do. I am grateful to the Government for taking such an approach. I wish Norway would do the same.

My understanding of this amendment is that it goes a step beyond settled status—where EU and EEA citizens who have qualified for settled status seek to be naturalised as British citizens, to exercise family reunion rights as a naturalised British citizen, or to have their UK-born children recognised as British at birth. Even though they do not have to have comprehensive sickness insurance for settled status, it currently appears that they may have to have it for citizenship purposes. This amendment seeks to rectify that anomaly between settled status and citizenship. I am getting a nod, so that is okay.

What this amendment seeks to achieve follows on logically from the generous and welcome stance of the British Government on settled status in relation to comprehensive sickness insurance. We support the amendment.

My Lords, we support Amendment 34, tabled by the noble Baroness, Lady Ludford. We raised this issue in the Commons and pushed it to a Division in Committee. I will not repeat all the points that the noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, have made.

I want to make a few observations. This is an opportunity for the Government to clear up an obscure, largely technical anomaly which is having real-world consequences for a number of people. CSI was not required for any EEA or Swiss citizen to live in the UK and to be able to access the NHS. However, it was not generally communicated that this was an additional requirement. Most people now being impacted by this relatively obscure provision had no idea about it.

I do not believe that this should be controversial; it is a sensible change. There are two reasons for that. First, when the Government designed the EU settlement scheme, they chose not to include CSI as a requirement, so they have already decided that this requirement was not necessary and to waive it entirely. Secondly, the Government openly acknowledge that this is causing problems because they have introduced guidance, as we have heard, for caseworkers that some degree of discretion might be exercised where there are compelling grounds for granting citizenship. The amendment simply but constructively builds on that, rather than leaving it up to a vague discretionary power, the flaws of which have been discussed.

This is a simple, clear change to the law to reflect the reality of the situation that prevails in the UK. It is very much in the spirit of rectifying obscure anomalies and barriers in our nationality law, which the early clauses of the Bill, notwithstanding those that are controversial, attempt to do.

I thank both noble Lords for their comments and, in particular, the noble Baroness, Lady Ludford, for tabling this new clause about comprehensive sickness insurance, or CSI, which, under EU free movement law, was needed by EEA nationals in certain circumstances in order to reside lawfully in the UK. I was most grateful to have the chance to discuss this with the noble Baroness last week, as she said.

The EEA regulations set out the requirements that EEA nationals had to meet if they wished to reside here lawfully as a qualified person exercising free movement rights. Those who were working in the UK, or indeed who were self-employed, did not need CSI to be here lawfully, but students, the self-sufficient and their family members did. That requirement was set out in published guidance.

I note the noble Baroness’s comments about EEA nationals being able to access the NHS. Under UK legislation, all EEA nationals here under free movement had the ability to access state-provided healthcare on the basis of their ordinary residence, but the requirement to hold CSI ensured that the financial burden of providing free state-funded healthcare did not fall on the host member state, as is the clear objective of free movement law. Therefore, having access to the NHS did not equate with the requirement for CSI, although it could include the European health insurance card, otherwise known as the EHIC, issued by the EEA national’s home state.

The first part of this amendment would amend the European Union (Withdrawal Agreement) Act 2020 so that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any requirement for CSI in the residence scheme immigration rules—the rules for the EU settlement scheme in Appendix EU—for an EEA national to obtain status under the scheme.

Hear, hear.

I think that is one of the only times I will get a “hear, hear” over the course of this Bill, so I will milk it for one small second.

This will mean that such family members will in practice be treated in the same way as an EEA national or their family member in applying to the EUSS or for an EUSS family permit. Their eligibility will not be affected by any past lack of CSI on the part of their sponsor.

The second part of this new clause would create a new registration route for children of EEA nationals. A child born in the UK will be a British citizen automatically if their parent is a British citizen or settled in the UK at the time of the birth. The suggested clause would allow a child who did not become British automatically—because their parent did not have CSI and so could not be settled in the UK—to be registered as a British citizen. The noble Baroness has also proposed that such an application should be free of charge. I note her concerns about doing the right thing for this group, but it would not be right to single out EEA nationals in this way. All those coming to the UK are expected to ensure that they meet the requirements for the route or rights on which they rely to enter and remain, including by paying the immigration health surcharge where applicable.

Nationality legislation provides routes to citizenship for children born in the UK who do not become British automatically. Like other nationals, once an EEA parent becomes settled in the UK, they can of course apply for their child to be registered as a British citizen. The EU settlement scheme allows them to be given “settled status” on the basis of five years’ continuous, but not necessarily lawful, residence in the UK.

The third part of this new clause would change the requirements for naturalisation so that a person who needed but did not have CSI could still meet the lawful residence and good character requirements. In the other place, concerns were raised that some EEA nationals did not know that they needed CSI. We introduced guidance for naturalisation caseworkers, which set out when discretion can be exercised over the lawful residence requirement. The legislation allows for discretion to be exercised

“in the special circumstances of any particular case”,

which means that each application needs to be considered on a case-by-case basis.

The current guidance states that it will normally be appropriate to exercise discretion where a person did not meet an additional or implicit condition of stay under EEA regulations—rather than illegal entry or overstaying—and where they can provide sufficient evidence to justify discretion being exercised in their favour. We have been monitoring this and are confident that caseworkers are using the guidance proactively and fairly. I am pleased to say that, to date, I am not aware of anyone having been refused naturalisation solely because they did not have CSI, as the noble Baroness said earlier.