I thank noble Lords for their contributions to this debate. My noble friend Lord Marlesford is correct; this is an opportunity to get it right.
It would probably be helpful to start by stating the purpose of this statutory instrument, and that, I hope, will go to some extent to my noble friend Lord Deben’s point. This statutory instrument is essentially a temporary arrangement in a no-deal situation, until free movement ends under the immigration Bill. In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. In a no-deal scenario, once free movement has ended, there would be a transitional period until the new skills-based immigration system is introduced in January 2021. This order ensures that during this period, we would minimise disruption at the border and provide initial continuity for EEA and Swiss citizens, and for businesses. The Government announced these transitional arrangements on 28 January. Regarding the points made by the noble Lord, Lord Paddick, about seeming to favour EU nationals, the whole point of this is to provide that transitional certainty.
The noble Lord, Lord Kennedy, talked about how the three-month period would be enforced. Obviously these are transitional arrangements, to be put in place only in the event of no deal. We cannot switch things off and on overnight, so we need to ensure that the correct legislation and operational plans are in place. It will take some time to prepare for our new skills-based immigration system, but the Government have been clear that our intention is for it to be in place by 2021.
These arrangements lay the foundations for the future. We cannot control European immigration until all EEA and Swiss citizens here have a UK immigration status, which will take some time. In a no-deal scenario, those resident here by 29 March 2019 will have until the end of 2020 to apply to the EU settlements scheme. These arrangements enable us to move from a rights-based system of free movement to a UK system where everyone requires permission to be here. Accordingly, until the new system is introduced, a proportionate, light-touch enforcement approach will be taken in respect of EEA and Swiss citizens. The noble Lord asked me to define “light touch”—I assume that it
means without too much bureaucratic involvement in form filling and other matters that make life very difficult.
If an EEA or Swiss citizen is found not to have appropriate status, we will encourage them to make the relevant application. I am absolutely clear on the importance of clear communications so that individuals understand their status. This is imperative for those resident in the UK before we leave the UK on 29 March, and those who arrive here afterwards. Our focus is on encouraging and supporting EEA and Swiss citizens to acquire an appropriate status and ensure that they have sufficient time to do so. We are committed to a fair immigration system which operates with integrity and which welcomes those who are here legally. But we are clear that compliance with UK immigration laws and rules is essential in supporting this.
For those who arrive after free movement ends, we will make it clear that they need to apply for European temporary leave to remain before their three months’ automatic leave expires. Where they have good reason for not doing so, we will encourage them to make this application, or to leave the UK voluntarily, but where there is abuse of the system, we will consider enforcement action.
The noble Lord, Lord Kennedy, asked how long the application will take. Applications for 36-month temporary leave to remain will use the EU settlement scheme infrastructure, which allows them to be determined within a period of days. He also asked what will happen at the end of the three months to those who will have applied for 36 months’ leave. If a person applies for 36 months leave within three months, they can still stay lawfully in the UK until their application is decided.
The noble Lord, Lord Paddick, asked why the exemption from the immigration health surcharge is needed. The exemption in this order applies to those applying for leave under the EU settlements scheme, not those who obtained three months’ leave to enter under part 2 of the order. The noble Lord also asked if people could leave the UK, then return and obtain a further three months. The answer is yes.
The noble Lord, Lord Kennedy, asked about the three months’ automatic leave to enter. The order provides that in a no-deal scenario, three months’ leave to enter would be granted to EEA and Swiss citizens who required such leave once free movement has ended. It would be granted automatically upon arrival at the border, allowing them to work, study or visit for short periods as we transition towards the new skills-based immigration system, to be introduced from 2021.
The noble Lord, Lord Paddick, asked about consultation on the order. These are transitional arrangements to ensure that the border remains fluid after the end of free movement, and until we move to the order arrangements, from 2021 onwards. These plans were set out in the Government’s White Paper, The UK’s Future Skills-Based Immigration System, and the Government intend a 12-month period of engagement on such plans. The noble Lord also asked about the exit checks on EU nationals now. They will be introduced when we leave.