Immigration and Social Security Coordination (EU Withdrawal) Bill (Seventh sitting)
(5 years, 5 months ago)
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The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 10 - Question accordingly negatived.
The Chair
Good morning. Just a reminder of housekeeping rules: no tea or coffee, and Members should switch their electronic devices off or to silent.
We left off after considering amendments 3, 5, 6, 12 and 7, which have been debated. I understand that the only amendment that hon. Members wish to press to a Division is amendment 12.
Clause 4
Consequential etc provision
Amendment proposed: 12, in clause 4, page 3, line 18, leave out—
“that amend or repeal any provision of primary legislation (whether alone or with any other provision)”.—(Afzal Khan.)
This amendment would mean that all regulations made under Clause 4 would be subject to the affirmative procedure.
Question put, That the amendment be made.
The Chair
We have had a full debate on clause 4 through the various amendments on Tuesday, so I am not minded to allow a separate stand part debate.
Clause 4 ordered to stand part of the Bill.
Clause 5
Power to modify retained direct EU legislation relating to social security co-ordination
Kate Green (Stretford and Urmston) (Lab)
I beg to move amendment 26, in clause 5, page 4, line 21, at end insert—
“(11) The power to make regulations under subsection (1) may not be used to make regulations removing Title I, Title II or Chapter 1 of Title III of Regulation (EC) No 883/2004.”
This amendment would prevent the Secretary of State from making regulations which might remove the ability of British citizens and EEA nationals to aggregate pension rights and social security benefits.
Good morning, Mr Stringer. It is a pleasure to see you in the Chair again.
The amendment is intended to limit the extent to which the Government can make changes to social security provision by delegated legislation after Brexit. I place on the record my thanks to the Immigration Law Practitioners’ Association, to British in Europe and to Justice, whose evidence I drew on heavily for this amendment.
By virtue of the European Union (Withdrawal) Act 2018, EU regulations relating to social security co-ordination —the so-called co-ordination regulations—will be converted into domestic law on exit day. The co-ordination regulations provide a reciprocal framework to protect the social security rights of people moving between European economic area states.
The co-ordination regulations do not create a single, harmonised system of social security benefits, nor do they guarantee a general right to such benefits. Instead, they ensure that individuals who move to another EEA state are covered by the social security legislation of only one country at a time and are therefore liable to make contributions only in one country; that a person will have the same rights and obligations of the member state in which they are covered, under the equality principle in social security co-ordination; that periods of insurance, employment or residence in other member states can be taken into account when determining a person’s eligibility for benefits, under the concept of aggregation; and that a person can receive benefits to which they are entitled from one member state even if they are resident in another. Those features are important for labour mobility and as a simple matter of equity, because people who have worked and contributed have a reasonable expectation of entitlement to the social security benefits that they have paid in for. I am concerned that clause 5 could be used to undermine those legitimate expectations.
The co-ordination regulations cover only social security benefits that provide cover against certain categories of social risk, such as sickness, maternity, paternity, unemployment and old age. Some non-contributory benefits fall within the regulations, but cannot be exported. Benefits that are categorised as social and medical assistance are not covered at all; my understanding is that they include universal credit, even though universal credit contains some contributory elements, so I ask the Minister in passing whether he might like to use clause 5 to address that apparent injustice.
The co-ordination regulations also confer on those who have a European health insurance card a right to access medically necessary state-provided healthcare during a temporary stay in any other EEA state. The home member state is normally required to reimburse the host country for the cost of the treatment. Will the Minister place on the record the Government’s intentions in relation to the European health insurance card, both in the event of no deal and in the post-transition period if a Brexit deal is negotiated?
Nick Thomas-Symonds (Torfaen) (Lab)
The issue of European health insurance is one that many people have raised concerns about. Does my hon. Friend agree that it would be good to hear something very definitive from the Minister today to put those concerns about uncertainty at rest?
Kate Green
It absolutely would. People will be planning their summer holidays now, and there is every possibility that they will be making those trips without the security of the European health insurance card that they have enjoyed for many decades. I ask the Minister to be crystal clear, if he can, about the coverage that will or will not be available to those families after Brexit day. I also ask him to say a little about how the Government intend to communicate any changes to the public. This is one of the mainstream consumer consequences of Brexit, not simply an esoteric technical point that affects only a minority of expert specialists.
Clause 5(1) provides for an “appropriate authority” to modify the co-ordination regulations by secondary legislation. I have to say that I find that power incredibly broad, because it provides absolutely no limit to the modifications that appropriate authorities can make. In addition, subsection (3) explicitly states that that power
“includes power…to make different provision for different categories of person to whom they apply”.
We took oral evidence on the point a couple of weeks ago, but I wonder whether the Minister will say a little more about what the Government have in mind. Subsection (3) also provides for the Government
“otherwise to make different provision for different purposes…to make supplementary, incidental, consequential, transitional, transitory or saving provision…to provide for a person to exercise a discretion in dealing with any matter.”
The power is further extended by subsection (4), which provides for the ability to amend or repeal primary legislation and
“retained direct EU legislation which is not mentioned in subsection (2).”
I understand that the Government need to be able to amend the co-ordination regulations to remedy deficiencies resulting from the UK’s exit from the European Union. I also appreciate that difficulties arise as a result of the reciprocal nature of the retained co-ordination regulations and the fact that after exit day, in a no-deal scenario, the UK cannot unilaterally impose reciprocal obligations on the European Union.
However, the power to make such amendments is already provided for under section 8 of the European Union (Withdrawal) Act 2018. Indeed, the Government have already laid four draft statutory instruments that relate to social security co-ordination pursuant to that section. The explanatory memorandum for those regulations states that they aim to
“address deficiencies in retained law caused by the UK withdrawing from the EU, which would impact the operation of the retained Coordination Regulations in a no-deal scenario”
and
“ensure that citizens’ rights are protected as far as possible in a no-deal scenario. As per the intent of the EU (Withdrawal) Act 2018, these instruments aim to maintain the status quo.”
Concerns have already been expressed about the regulations, however, which have a fairly drastic effect on individuals when the evidence of their contribution in another member state cannot be obtained in the United Kingdom. Could the powers in clause 5 be used to extend the provisions set out in those statutory instruments or, for that matter, constrain them? Are there any circumstances in which those regulations could apply in the event that a deal is agreed, or are they limited to covering a no-deal scenario? Since the regulations suggest that the Government are taking a hard-line view of evidence of entitlement, should people continue to obtain A1 forms post Brexit, if they will have a future connection with more than one EU country through their employment or self-employment?
To turn to the provisions of clause 5 in more detail, the Government are explicit in their desire to use the power in clause 5 to implement policy changes to the social security co-ordination rules that will have been retained in domestic law, which I accept that they could not do with delegated legislation under the 2018 Act. In the delegated powers memorandum to the Bill, the Government state:
“This power will provide the appropriate authorities with the ability to deliver a range of policy options from exit day in any or all of these areas”,
which include,
“what access EU nationals will have in the future to certain UK benefits and pensions; the extent to which UK nationals can export certain benefits and pensions if they move to an EU Member State; and the administration and rules which govern entitlement and obligations when people live and work in more than one country”.
Social security co-ordination is vital to protect the rights of EEA nationals who come to live in the UK, and UK nationals who go to live in EEA member states. Policy in the area could have a great impact on the lives of millions of people and affect their ability to receive the benefits that they are entitled to through national insurance contributions or periods of residency.
Do the Government’s stated policy objectives for clause 5 fundamentally seek to achieve the same effect stated for the draft statutory instruments tabled under the 2018 Act? Alternatively, is the Government’s intention to use the provisions in clause 5 to mirror the EU’s draft contingency regulations, COM(2019) 53, which limit the ability of individuals to aggregate contribution periods and contributions made in multiple jurisdictions after Brexit?
As we heard in the oral evidence sessions from British in Europe, if people can no longer aggregate their contributions, they may have no choice but to return to the UK. Has the Minister made any assessment of the potential impact, scale and cost to the public purse of that happening, as a result of possible demands on UK public services, such as the NHS and social care services? Can he say whether people coming back to the UK in such circumstances, who might struggle to demonstrate that they are ordinarily resident in the UK, will have access to means-tested benefits?
My understanding is that the Government have committed to continuing to uprate pensions until 2020 for UK nationals living in other EU countries, but can the Minister confirm that that will be the case whether or not a deal is agreed, and will he now commit to maintaining pensions uprating for UK nationals living in the EU post 2020? Finally, can he reassure the Committee that he does not intend to use clause 5 to curtail protection for posted and frontier workers, or those who regularly transit across borders, especially as UK nationals will lose their right to intra-EU freedom of movement in the event of no deal or post the end of the transition period.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
That is an important point: this is too important an area to rely on secondary legislation. Incidentally, the hon. Lady is making a fantastic speech; the detail she is giving makes any speech that I might make thereafter totally redundant, but I reassure the Committee that the Scottish National party stands in support of this amendment. More power to her elbow.
Kate Green
I am grateful for the hon. Gentleman’s support, and I agree with him about the huge significance for individuals and families of the way in which social security co-ordination regulations are adopted and adapted in future. It is about how much money people have to live on, to support their families or in their retirement. They have every expectation of a right to the support, because they have paid in and contributed to social insurance systems, and it would be frankly unethical of any Government to damage those legitimate expectations.
In conclusion, through my amendment I seek to curtail Ministers’ delegated powers in relation to social security co-ordination. The Government have stated that the anticipated policy changes, both in a no-deal scenario and in certain deal scenarios, could not otherwise be delivered by existing powers such as the European Union withdrawal agreement powers. However, in my view, such policy changes, or at least the principles of the policy, should be set out in primary legislation. That will be the case in a deal scenario, as the withdrawal agreement and its implementing primary legislation will address future policy on social security co-ordination. In a no-deal scenario, the European Union (Withdrawal) Act 2018 provides sufficient powers to make regulations—indeed, the Government have already drafted them—to maintain the status quo as far as possible until an agreement on social security co-ordination is reached with the EU for the future, at which point further primary legislation will be needed.
It is for those reasons that I commend my amendment to the Committee. It is important that we have parliamentary oversight and parliamentary scrutiny of Ministers’ powers in the area of any future decisions that will have an impact on social security entitlements.
Afzal Khan (Manchester, Gorton) (Lab)
Once again, it is a pleasure to serve under your chairmanship, Mr Stringer. I start by thanking my hon. Friend the Member for Stretford and Urmston for laying out this amendment.
The Henry VIII powers would allow the Government to remove rights to aggregate pensions and disability entitlements that EU citizens in the UK and UK citizens in the EU have built their lives around. It is vital that the Government do not make regulations that might remove the ability of British citizens and European economic area nationals to aggregate pension rights and social security benefits without proper scrutiny by Parliament, so we support this amendment. These social security rights are vital for EU citizens in the UK as well as UK citizens in the EU.
People will have moved back and forth between the UK and the EU on the assumption that they will be able to bring their pension entitlements with them. For example, a German national might move to the UK midway through their career, work here for 10 years, and then go back to Germany to retire. The current EU regulations allow them to receive a pension based on their contributions both in Germany and in the UK. The same is true for a UK national who moves to work in Germany.
If we have a withdrawal agreement, those rights will be guaranteed, but if we do not have a withdrawal agreement we do not know what will happen. Perhaps the Minister can help us with that.
In an evidence session, it was pointed out by British in Europe witnesses that 80% of the British people living in Europe are of working age or below, and more than 1 million people are affected by social security implications. Removing the ability to aggregate social security benefits will deter EU citizens from coming to work in the UK, because they will not be able to export social security from the UK, despite having paid into the system. The same would apply for UK citizens moving into the EU.
There is a particular concern among UK citizens living in the EU about the uprating of pensions. The percentage increases can accumulate to be very significant for pensioners living in the EU, particularly in the context of the declining value of the pound.
The UK state pension is already the lowest in all the OECD countries, and a refusal to uprate would cause significant hardship for many UK citizens. At the moment, the Government have committed to continue the uprating of pensions until April 2020, but not beyond. Can the Minister provide some much-needed clarity for the UK citizens living in the EU about the position of pensions beyond 2020?
If the UK introduces restrictions on social security, it is to be expected that the EU will respond in kind. We heard during our evidence session from the TUC that it is
“very worried about the increasing social insecurity and the welfare repercussions for British people abroad.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c.38, Q109.]
We heard from the British in Europe witnesses during our evidence session that the Bill has had a negative effect on discussions with EU Governments. Kalba Meadows was clear that
“national Governments across the EU27 are reticent in coming forward with their own legislation, because they are concerned that the rights of their nationals living in the UK will not be equally protected.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 146, Q364.]
The Minister for Employment (Alok Sharma)
It is an absolute pleasure to serve under your chairmanship today, Mr Stringer. I start by thanking the hon. Member for Stretford and Urmston for her amendment to clause 5. She made a wide-ranging speech, which covered many of the points that might be raised when we consider clause 5 stand part, and I will try to address some of the points that she made. I put it on record that whatever our political differences, I have always thought of the hon. Lady as one of the most courteous and considered Members in the House, and for that we should all be grateful.
The hon. Member for Manchester, Gorton made some interesting remarks. Before I discuss amendment 26, I say generally that if colleagues want to give citizens certainty, the best way of doing so is to support the withdrawal agreement and the deal that will be returning to the House. Many sincere views are expressed, and people are concerned for citizens—I completely get that—but the best way of providing certainty is to support the deal.
Kate Green
I am grateful to the Minister for giving way, and I particularly thank him for his remarks a few moments ago. There would be certainty during the transition period, but that would not really give certainty beyond 2020, would it? As I have already pointed out, for example, we do not know the Government’s intentions in relation to pensions uprating, whether or not there is a deal after 2020.
Alok Sharma
Let me come on to those points. I am sure that we will have a chance to discuss them further.
On amendment 26, I note the hon. Lady’s assertion that the provisions in clause 5 could be used to remove the ability of UK and EU nationals to aggregate periods of work, insurance or residence in other member states, in order to meet domestic entitlements for contributory benefits and pensions. I reassure her that although future policy on social security co-ordination is subject to further consideration, the Government are committed to exploring options to protect past social security contributions made in the EU and the UK as part of our ongoing discussions with the EU and member states.
The Government have always been clear that protecting the rights of citizens is a priority. It is important that UK and EEA nationals in the EU who are currently receiving aggregated pensions and benefits have those payments protected. I therefore make it clear that the Government will not retrospectively remove the entitlements of UK and EU nationals living in the UK to UK contributory benefits.
I further reassure the hon. Lady that, in a deal scenario, the power in clause 5 will not be exercised to remove or reduce commitments made in relation to the individuals within the scope of the withdrawal agreement. The withdrawal agreement protects rights and entitlements, including aggregation and uprating, in accordance with EU legislation for those EU and UK nationals covered by the withdrawal agreement. The exercise of the power will be subject to further discussion with the EU—for example, in relation to a future agreement. However, it is important that the Government have the provisions in the clause to reflect the UK’s new relationship with the European Union, either if we are in a no-deal scenario or if we do not have a future agreement.
As the hon. Lady acknowledged in her remarks, the nature of the current social security co-ordination framework means that a multilateral partnership must be in place in order for it to function effectively. Aspects of the current system, including aggregation, rely on reciprocity from the EU27 and are underpinned by data sharing between the member states. I fully understand her position, which is that it would be preferable for a system of aggregation of contributions to continue. Indeed, in the UK Government’s publication on our proposal for the future relationship between the UK and the European Union, we set out exactly that ambition. We explained that we will seek reciprocal arrangements around some defined elements of social security co-ordination. That could cover aggregation rules.
However, without reciprocity, there are limits to what the UK Government can do by ourselves. Although the UK has powers in domestic legislation to pay state pensions and benefits, if the UK leaves the European Union without a deal, we could not bind other member states to recognise contributions made in the UK. Accepting this amendment could prevent the UK Government from responding effectively to certain scenarios following our exit from the European Union.
Kate Green
I accept what the Minister says about the nature of reciprocity, but it is within the Government’s power to make a unilateral commitment to the ongoing uprating of pensions beyond 2020. That has been clear since at least 1996, in relation to a memorandum issued by the then Department of Social Security.
Alok Sharma
I thank the hon. Lady for her comments, and I will come on to the point about pensions shortly.
The titles of regulation 883 cited in amendment 26 cover a broader range of issues than just aggregation rights. They cover a wide range of social security co-ordination provisions, ranging from definitions of key concepts, the scope of the regime, prohibition of residence requirements for certain benefits and the export of cash sickness benefits. Accepting an amendment that prevented the Government from removing those provisions would go much further than the hon. Lady’s stated intention of preventing the Government from making changes to aggregation policy. Doing so could remove the Government’s ability to reflect our future relationship with the EU on a wide range of policy issues. Furthermore, the amendment would prevent the removal of the listed titles, but it would not prevent their modification or amendment. With respect, therefore, it does not achieve its purported objective.
Let me address some of the issues that the hon. Lady raised, which were all perfectly valid. She made a point about the inclusion of universal credit in the social security co-ordination system, and she said that it was not currently part of that system. She will know that that is because universal credit is treated as social assistance, and therefore will not be affected by the clause.
The hon. Lady made a point about healthcare. It is not our intention to use this clause to make changes to healthcare policy. Any such changes are a matter for the Department of Health and Social Care, and they will be dealt with in the Healthcare (International Arrangements) Bill.
Kate Green
I appreciate the Minister’s careful response and the positive words that he offered. However, I am still not clear why my amendment, which would curtail powers that Ministers do not need—because they can make use of the EU withdrawal Act, as they are doing already, or because they will bring forward primary legislation relating to a withdrawal agreement—is a problem. I do not think that we can simply rely on the good will of the Minister, although it is greatly appreciated; changes of this magnitude should be made in primary legislation.
Question put, That the amendment be made.
The Chair
With this it will be convenient to discuss the following:
That schedule 2 be the Second schedule to the Bill.
That schedule 3 be the Third schedule to the Bill.
Alok Sharma
Clause 5 provides an essential legislative framework to ensure that the Government can reflect their preferred social security co-ordination policy outcomes after the UK has left the European Union, responding to the outcome of negotiations. It will enable the Government to deliver policy changes post exit both in the event of no agreement being reached on future social security co-ordination matters and to support deal scenarios in which a UK-EU agreement differs from current social security co-ordination measures.
The clause provides a power for the Secretary of State or Her Majesty’s Treasury to modify the current social security co-ordination regulations. The regulations provide for social security co-ordination across the EEA and will be incorporated into domestic law by the European Union (Withdrawal) Act when the UK leaves the EU. Clause 5(3) sets out some examples of the manner in which the power may be used. One such example is that regulations may make different provision for different cohorts, and some reference points for differentiation are suggested. This is particularly relevant in a no-deal scenario, as the regulations could, for example, provide protection to those who would otherwise have been in the scope of the withdrawal agreement in line with a unilateral offer. Very importantly, regulations made using powers in this clause will be subject to the affirmative procedure, so they will be scrutinised and must obtain the approval of both Houses.
In subsection (4), the clause also gives the Government the ability to make consequential changes to other primary legislation and other retained EU law to ensure that the changes to which the main power gives effect can be appropriately reflected. It may, for example, be used to address technical matters, inoperabilities and inconsistencies.
In subsections (5) and (6), the clause makes it clear that any directly affected rights that will have been saved by the European Union (Withdrawal) Act shall cease to be recognised to the extent that they are inconsistent or capable of affecting the changes made using the powers in the clause. This is necessary to address inoperabilities and conflicts of law that might arise as a result of regulations made under this clause. It will ensure that any policy changes are able to be delivered effectively.
It is vital that, across all EU exit legislation, the UK Government continue to honour any commitments that they have made in the devolution settlements. Therefore, subsections (1) and (7) of the clause confer powers on the devolved Administrations to legislate in areas for which they have competence. Officials in the UK Government and devolved Administrations have worked together on the correct approach for this clause, and legislative consent motions will be sought from the devolved legislatures in relation to this approach. Subsection (7) defines an appropriate authority, clarifying that the power is exercisable by the Secretary of State or the Treasury, a devolved authority, or jointly.
It is reasonable to assume that, in a deal scenario, if a withdrawal agreement is reached, the implementing vehicle for the withdrawal agreement will provide the necessary protections for those who fall within its scope, and Parliament has the power to ensure that that is the case. I want to reassure colleagues that the power in this clause will not be exercised to remove or reduce commitments made in relation to those individuals within the scope of the withdrawal agreement. The exercise of any powers within this clause will also be subject to the outcome of further negotiations with the EU on a future agreement. In a deal scenario, the clause will be necessary to deliver policy changes to the retained regime that will cover individuals who fall outside the scope of the deal, to reflect the reality of our new relationship with the EU.
In addition, this clause is essential to ensure that the UK Government are able to provide appropriate protections and make appropriate policy changes in a no-deal scenario. Without the clause, the Government have only the power contained in the European Union (Withdrawal) Act to fix deficiencies within the retained system of social security co-ordination. The current social security co-ordination regime operates on the basis of reciprocity. The European Union (Withdrawal) Act power allows us to ensure that the regime will operate on day one of exit, but does not enable us to deliver policy changes, including those that would help us to deliver effective support for UK nationals in the EU. This clause allows us to amend the rules in an appropriate and manageable way if the Government need to operate the system unilaterally, and to deliver changes to the retained regime.
As a responsible Government, we are preparing for all eventualities, and the power in this clause is necessary to provide the Government with the flexibility required to respond to a range of scenarios.
The aim of schedule 2 is straightforward. It sets out the power of the devolved authorities under the social security co-ordination clause—clause 5. The clause confers new powers on Scottish Ministers and, indeed, the Northern Ireland department, to amend the limited elements of the social security co-ordination regulations that fall within devolved competence. We are thus providing the devolved Administrations with the powers that they need to amend aspects of the regulations in areas of social security that are devolved—in the same way as, rightly, the UK Government have powers with respect to laws affecting the UK as a whole.
It is important that the powers in the Bill should not be so narrow as to hamper the devolved Administrations’ ability to amend the elements of the regulations that are within their competence. It is also important to set out, as the schedule does, the parameters for the powers. They should not be wider than is necessary to achieve their purpose. For example, the schedule ensures that the same rules on consent and consultation that the devolved authorities must follow when making provisions in their own legislation apply for regulations made under clause 5. We sought that balance by focusing on the specific aims and applying safeguards to ensure, for instance, that the powers will not be used in ways that might be outside devolved competence.
Schedule 3 simply gives further detail about the making of regulations under the social security co-ordination clause. It provides further detail about the form that regulations will take under the clause, whether they are statutory instruments, Northern Ireland statutory rules or Scottish statutory instruments. The schedule also provides that the use of the power is subject to full parliamentary scrutiny. Its exercise will be subject to the affirmative procedure, which means that regulations made using the power must obtain the approval of each House. It also gives clarity to the procedures that the devolved authorities will need to follow.
Paragraph 4 provides that where the UK Government and a devolved authority exercise the powers under clause 5 jointly, the affirmative procedure applies in both the UK Parliament and the devolved Parliaments or Assemblies. Paragraph 5 permits other regulations, subject to the negative procedure, to be included in an instrument made under clause 5. That means that even where a regulation would be subject to a lower level of scrutiny, if it is combined with regulations under clause 5 a higher level of scrutiny—the affirmative procedure—will apply.
Afzal Khan
Labour believes that if the Government want to make far-reaching changes to social security, they should be subject to scrutiny, in primary legislation. As we discussed in the clause 4 debate, secondary legislation does not provide Parliament with an opportunity for adequate scrutiny and oversight of major policy changes. The rights in question were brought in by primary legislation, and it is only right that their removal should be possible only with the same level of scrutiny.
The powers in the clause are not necessary. If the Government really want to tidy up the statute book or make other, minor, changes to legislation, section 8 of the European Union (Withdrawal) Act 2018 already gives them the power to remove the co-ordination regulations and replace them. In fact, they have already laid four regulations under the Act. We feel that the power in the clause would enable the Government to set out global changes to social security, which should rightly be done through primary, not secondary, legislation.
That position was set out by Justice during our evidence sittings. It was concerned about
“the extraordinary breadth of power that it creates”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 59, Q157.]
The witness set out clearly:
“It is simply not appropriate to leave that to a policy change by way of delegated power, but it seems to us, from their memorandum, that Government are expressly intending to do that to get around the limitations in section 8.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q158.]
Similarly, Professor Steve Peers was clear that
“the Government should not have unlimited powers and some constraints should be set by primary legislation.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 123, Q308.]
Urgent, widespread changes to social security co-ordination are not needed in a rush. Thanks to the 2018 Act, there is law in place. The statutory instrument amendments are in place and there is no urgent need for an overhaul of social security co-ordination that would justify such a lack of scrutiny.
The House of Lords Delegated Powers and Regulatory Reform Committee is clear that the Government have provided an inadequate justification for the transfer of power from Parliament to the Government in the clause. It recommended the removal of clause 5 in its entirety. It refers to a requirement to provide an “exceptional justification” for a skeleton Bill, which has not happened in this case. As the Committee puts it,
“Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton.”
Gavin Newlands
It is a pleasure to serve under your chairmanship, Mr Stringer, and to rise to speak for the first time in the Committee—potentially the last time, as the Leader of the House has announced that the Northern Ireland Budget (Anticipation and Adjustment) (No. 2) Bill will be debated on Tuesday. I apologise in advance for my absence on Tuesday.
I cannot match the almost giddy levels of excitement displayed my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East in approaching matters of immigration law in the previous session—only an immigration lawyer could generate that kind of excitement—especially because I detest the Bill. It brings into effect one of the worst repercussions of the Government’s approach to Brexit, namely the ending of free movement. It is an act of sheer folly and economic vandalism, combined with the fact that the Government, as in almost all Brexit-related legislation, have granted themselves huge discretionary powers.
With that off my chest, I will move on to clause 5, which is no different. It gives broad and powerful Henry VIII powers to Ministers to make changes to social security co-ordination post Brexit—a move that the3million and British in Europe would describe as moving the goalposts. I feel deeply uncomfortable about approving the clause and giving the Government that agency for many reasons, not least because of the history of “Go home” vans and the creation of the hostile environment, although I happily concede that they predate the current ministerial team.
As was referenced a moment ago, in response to the question that the hon. Member for Stretford and Urmston asked about existing social security rights, Jodie Blackstock, the legal director of Justice, said:
“The Bill does not protect those rights, because it does not set out the principles by which it will do so. It simply provides the structure for the removal of all current reciprocal arrangements. As with the discussion we had on clause 4, it creates the power for not only a Minister but an appropriate authority to replace those current rights with an alternative arrangement.
For us, clause 5 is the most concerning clause in the Bill, as if clause 4 was not concerning enough. Our view is that the clause ought to be entirely deleted, and we say that for a few reasons—not just the extraordinary breadth of power that it creates, but the fact that the provision to remove the co-ordination regulations and replace them is already provided for by way of section 8 of the European Union (Withdrawal) Act 2018. Indeed, there are four regulations that have already been laid, pursuant to that Act, before Parliament and that comply with what are perhaps broad powers, but at least are curtailed far more than the power here; and, because they have been laid, it is possible for them to be scrutinised by Parliament.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 59, Q157.]
As Jodie said, it appears to many—outside the Home Office, at least—that the powers are entirely unnecessary. Section 8 of the European Union (Withdrawal) Act 2018 does provide the scope to replace the current arrangements on co-ordination and the EU has not agreed or announced changes to those arrangements. In the modern world, more people, certainly in the EU, are living lives between different states and cherish the right to chase the opportunity to work where they please. That is an opportunity that many in the next generation will not be afforded in the manner to which we have been accustomed.
Despite being vastly inferior to freedom of movement, there will still be various routes open to EU citizens post Brexit, including the tier 2 and the 11-month low-skilled worker visa options. That makes social security co-ordination a hugely important issue for many more people in the future, in addition to the 3.5 million EU citizens in the UK and the 800,000 UK nationals in the EU. It is not justifiable, therefore, for future policy changes in the area to be made through delegated powers.
I am sure that the Minister will insist that the Government do not plan to remove benefits or further co-ordination—in fact, he addressed that in response to the previous amendment and in his opening remarks in support of the clause—but even if we take him at his word, that is not good enough, because the EU and UK citizens affected by the issue want to be assured and to have certainty. If they cannot have certainty, they want to ensure that any changes in the area have the rigorous scrutiny of primary legislation.
As it stands, clause 5 also risks politicising social security co-ordination and leaves us with the real prospect of losing reciprocation from the European Union’s 27 member states in addition to EFTA’s four member states. Without that co-ordination, there is no guarantee that rights such as pensions and others that hon. Members have spoken about at length will continue to accrue for British citizens in the EU. That risks deterring people from moving abroad.
The Government have already awarded themselves too many broad Henry VIII powers. All too often, the Government’s answers to the question of why they need those broad powers are wholly insufficient. We firmly believe that the Bill should not be legislation at all. In the context of this debate, we firmly believe that clause 5 should not stand part of this regrettable Bill.
Alok Sharma
Perhaps I can respond to some of the points raised by the hon. Member for Manchester, Gorton and the hon. Member for Paisley and Renfrewshire North.
The hon. Member for Manchester, Gorton asked whether the powers would be too broad. I want to be absolutely clear that the power can be used only to make changes to specified retained EU social security co-ordination regulations that are listed in the clause, and to make consequential changes to primary legislation or other retained direct EU legislation that is not listed in the clause. The power is broad, because it provides the Government with the flexibility to respond to a range of scenarios. I repeat for the third time that regulations made using this power will be subject to the affirmative procedure, so they will be scrutinised and voted on by both Houses.
Both hon. Gentlemen called for the clause to be removed from the Bill. We believe that it is very important that the clause remains part of the Bill, so that the Government can respond at pace to the outcomes of negotiations and the scenarios that we find ourselves in. Without the clause, the Government would not be able to deliver policy changes to the retained social security co-ordination system, including those that could help us to deliver effective support for UK nationals abroad.
The current rules around aggregating and paying benefits pro rata and paying pensions based on contributions across member states depend on reciprocity. I have made that point a number of times. The power allows us to amend the rules in an appropriate and manageable way if the Government need to operate the system unilaterally and deliver changes beyond the scope of the deficiency fixes. Taking this enabling power is the most appropriate option, because it provides us with the flexibility that is required.
The hon. Member for Manchester, Gorton spoke about the fixing SIs. I think I responded to that point earlier, in the debate on amendment 26.
I know that Members on both sides of the Committee have raised these points with a great deal of interest in making sure that we get the matter right for citizens. The hon. Member for Paisley and Renfrewshire North has just said that he wants to give citizens certainty. That is what I and Conservative colleagues want, and the best way of doing that is for all of us to support the deal and the withdrawal agreement that are on the table.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Schedules 2 and 3 agreed to.
Clause 6
Interpretation
Question proposed, That the clause stand part of the Bill.
The Minister for Immigration (Caroline Nokes)
The clause is minor and technical in nature. It simply clarifies how certain terms within the Bill should be interpreted—for example, “devolved authority” and “domestic law”. In doing so, the clause helps us to ensure the clarity and coherence of the legislation.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Extent, commencement and short title.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 34, in clause 7, page 5, line 15, leave out “Scotland”.
The Chair
With this it will be convenient to discuss the following:
Amendment 35, in clause 7, page 5, line 15, at end insert—
“(1A) Section 1 and Schedule 1 of this Act do not extend to Scotland.”.
New clause 55—Scottish visas: review—
(1) The Secretary of State must carry out a review of how to implement a system of Scottish visas for people whose right of free movement is ended by section 1 and schedule 1 of this Act, and lay a report of that review before the House of Commons within six months of the passing of this Act.
(2) The review in subsection (1) must consider the following—
(a) whether Scottish Ministers should be able to nominate a specified number of EEA and Swiss nationals for leave to enter or remain each year;
(b) the requirements that could be taken into account when exercising any such power including that the person lives and, where appropriate, works in Scotland and such other conditions as the Secretary of State believes necessary;
(c) the means by which the Secretary of State could retain the power to refuse to grant leave to enter or remain on the grounds that such a grant would—
(i) not be in the public interest, or
(ii) not be in the interests of national security;
(d) how the number of eligible individuals allowed to enter or remain each year under such a scheme could be agreed annually by Scottish Ministers and the Secretary of State;
(e) whether Scottish Ministers should be able to issue Scottish Immigration Rules setting out the criteria by which they will select eligible individuals for nomination, including salary thresholds and financial eligibility.
(3) As part of the review in subsection (1), the Secretary of State must consult the Scottish Government.
This new clause would require the Secretary of State to carry out a review of how a system of Scottish visas could be implemented for EEA and Swiss nationals.
Stuart C. McDonald
We now come to the debate that I think everyone in the Committee has been waiting for—a debate about Scotland and immigration policy. Half the room has left, including my hon. Friend the Member for Paisley and Renfrewshire North—I am not taking it personally.
I am not aiming to persuade the whole Committee about the merits of full devolution of immigration powers, because I am not a miracle worker. I want simply to see if we can have a sensible, civilised discussion about the huge challenge on population and migration that Scotland already faces, and how we can best address it—something that will hopefully go beyond a commitment to an immigration system that works for the whole of the United Kingdom. I want such a system as well, but the question is whether that involves applying exactly the same rules to every part of the UK, which has not always been the approach that Governments have taken. We have had a sector shortage occupation list for Scotland. We had a Fresh Talent visa for a period. Even Tech Nation visas gave some preferential treatment to different parts of the United Kingdom.
Scotland’s migration challenge is that we risk seeing too little of it. Scotland needs migration, and probably more of it. To start with some similarities with the UK as a whole, migration helps fuel our economy by creating jobs, bringing expertise, filling roles that cannot otherwise be filled, and generating wealth for all. New arrivals not only make a hugely positive contribution to our public finances but fill many vital public sector roles in the health service and in social care, education and elsewhere. They also enrich our communities and culture, bringing new ideas and ways of doing things.
Scotland’s particular challenge is that, without migration, our population will stagnate and age very rapidly, creating huge difficulties for future generations. Projections from the National Records of Scotland suggest that our population will increase only by a measly 7% over 25 years, with net inward migration accounting for 90% of this growth. The working-age population will grow only slightly—a pitiful 1%—while the proportion of the population above state pension age will increase by 25% in the coming years, as the baby boomer generation reaches retirement. That is before we even take account of the end of free movement.
We need a migration system that sustains or even increases migration in order to support Scotland’s population growth, which is the opposite of the goal that the UK Government are pursuing. We must remember and remind ourselves that Scotland has institutions that can help play a part in operating a different system. We have a Scottish Government and our own Parliament, and there is Skills Development Scotland. There is now an expert advisory group on migration and population, which hon. Members will be aware has published its first report this morning—everyone can rush home at lunchtime to read the results of the group’s analysis of the Government’s White Paper.
Free movement of people has been economically and socially beneficial to Scotland. The benefits include access to labour. On average, an EU citizen working in Scotland contributes over £34,400 in GDP and more than £10,400 in Government revenue. EU migrants take up jobs that are difficult to fill—for example, in social care and food processing—and start businesses of their own. Small and medium-sized enterprises, which dominate in Scotland, are largely locked out of recruiting from beyond the EU via the tier 2 system, so an end to free movement will hit them particularly hard.
The benefits of free movement also include benefits to our demographics and tax base. Office for National Statistics forward projections predict that if there is no net migration from the EU, population growth will be around only 3% over 25 years, and the number of people aged 16 to 64 in Scotland will fall by 9%, compared with a rise of 53% in the number of people over 65.
The amendments that I have tabled offer two broad alternatives. The first is essentially to keep free movement operating in Scotland as it does now, even if it comes to an end in the rest of the United Kingdom. Perhaps there could be some sort of variation on that, if the Home Office prefers. I am doing the Home Office a favour by offering that suggestion, because it will obviously lead to fewer applications to consider. There would be very few enforcement issues, because the Government are proposing that—even after Brexit—EU nationals will be able to come to the United Kingdom without a visa. There is no notion of Scotland operating some sort of back door for people to sneak into England, Wales or elsewhere. In terms of people, it would be no more difficult to enforce than the open border between Northern Ireland and the Republic of Ireland.
I have offered an alternative to that, which is simply to ask the Government to consult stakeholders, the Scottish Government and so forth on specific Scottish visas. We could perhaps make it a specific condition of the visa that migrants have to live and/or work in Scotland. Again, there does not even need to be a loss of control for the Home Office; it can engage with the Scottish Government to agree rules and to agree the number of these visas that would be allowed, and can have ultimate oversight of who is allowed in. It could be limited to non-visa nationals, so there will be very limited enforcement issues. I also want to see it done in a way that avoids complexity and is additional to the systems available in the UK as a whole, rather than being an alternative.
Afzal Khan
As demonstrated by our voting on both Second Reading and the clauses that have been voted on so far, we do not agree with what the Government are doing in this Bill. However, we do not support the view that there should be a different immigration system for different parts of the country. We need a flexible immigration system that will allow businesses and public services to access the workers they need, but one that applies to the whole of the UK, not just Scotland.
I understand that there are issues with regional variation in salary levels, and that different areas of the UK have different needs in terms of migration. However, that is not an issue that affects only Scotland. My own region, and yours too, Chairman, the north-west, has very different salary levels and economic needs from London and the south-east, so it will have different migration needs.
Without a border between Scotland and the rest of the UK, we do not see how a different immigration system could work. How could we ensure that someone with the right to work in Scotland was not working in England or Wales? We fear that that might lead to a further reliance on the hostile environment, as we would be relying on employers and landlords to enforce the border between Scotland and the rest of the UK. In view of that, we do not support the amendment.
Caroline Nokes
I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said when he started to speak that he looked forward to a sensible and civilised conversation on this matter; across the whole of this Bill Committee, I think we are not doing badly on that front and I certainly hope we can continue in that vein.
These amendments cover topics that I have discussed with the hon. Members and their colleagues on a number of occasions. I fear they might find my response to be fairly predictable, but I make no apology for that. I remain to be convinced that introducing geographical variation into the immigration system is either practical or desirable.
Amendments 34 and 35 seek to change the extent of the Bill so that it does not apply to Scotland. However, the whole of the United Kingdom is leaving the European Union: England, Wales, Scotland and Northern Ireland are leaving the EU. I believe it is our duty as a responsible Government to fully deliver on the result of the EU referendum and to end free movement. It is also important to remind the Committee that this Bill legislates for the end of free movement from the EU. It provides the legislative framework to simplify the UK immigration system by bringing EEA nationals and non-EEA nationals under one system.
Meanwhile, proposed new clause 55 would commit the Secretary of State to reviewing whether or not Scotland should have its own immigration system and its own Scottish visas, but only for EEA nationals. I am not sure how such a proposal, limited to EEA nationals, would be justified on equality grounds. Such a review would not be the first time that the question of whether or not Scotland should have more independence from the UK has been considered, including decisively in a referendum in 2014. With particular reference to immigration, we are not reopening the work of the Smith commission. Immigration needs to be a reserved matter.
I remind the Committee that, in designing the new system, we commissioned the Migration Advisory Committee to consider the best immigration policies for the UK. MAC undertook a comprehensive engagement and evidence-gathering exercise across the whole of the country over a 12-month period and produced an authoritative report that gives the Government a clear direction of travel for the UK’s future skills-based immigration system.
As part of that exercise, MAC considered whether there was an economic need for regional differentiation in the immigration system, and not for the first time concluded that there was no case for it. To quote from its final report:
“Overall, we were not of the view that Scotland's economic situation is sufficiently different from that of the rest of the UK to justify a very different migration policy.”
MAC went on to note that Scotland already has a separate shortage occupation list. The Committee will note that the composition of that list, as well as the UK-wide one—
Stuart C. McDonald
I am always perplexed by the facing-two-ways approach that the Government sometimes take on this. On the one hand, they say that they are totally against any sort of differentiation, and then on the other they flag up the shortage occupation list. If there is no economic justification for the shortage occupation list, is it the Conservative position that it should be abolished?
Caroline Nokes
I do not accept for one moment that we look both ways. Evidence from MAC suggests that there should not be a separate system, but that our policies should be able to reflect the different shortages in different parts of the United Kingdom. The hon. Gentleman will know that we have asked MAC to consider whether there should also be a different needs list for Northern Ireland, and we are consulting on that for Wales as well. There would be formidable problems with trying to implement a system that could in effect tie a worker to a specific geographical area. Business no longer happens in a single postcode.
Stuart C. McDonald
The key visa for workers in this country is the tier 2 visa, which requires someone to work for a particular employer in a particular place. A Scottish visa would not need to be any different. Why would it be incredibly difficult to do that in Scotland when it happens day in, day out all across the United Kingdom?
Caroline Nokes
I thank the hon. Gentleman for that contribution. I do not accept that that is what happens at the moment. The tier 2 visa ties somebody to a specific employer. It does not determine that they can work only in a single location. I am conscious that he said that a separate system operating in Scotland would be no different from the current situation that we have with the soft border between Northern Ireland and the Republic of Ireland. I am sure that he, like me, wishes to see that situation continue, with a border that is straightforward and simple. However, he knows, from our current discussions regarding our withdrawal from the European Union, that it is proving to be far from simple to come to a solution to the matter that works for us all.
We have already undertaken engagement in all parts of the UK and will continue to do so; all sectors, nations and regions will be part of our planned 12-month engagement. However, our arguments against a regional immigration policy remain strong, for reasons of both principle and practicality. I therefore ask the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North to withdraw their amendments.
Stuart C. McDonald
I am hugely disappointed by the response from both Front-Bench spokespeople, and their degree of engagement on this will be a disappointment to their party colleagues in the Scottish Parliament. There has been no recognition or engagement with the challenges that Scotland faces. This issue is absolutely pivotal to our economy, tax base and public finances, and their not even recognising that as a problem, never mind offering a single solution, is hugely frustrating.
I recognise that the MAC report was not exactly wonderful for my argument, but it did not say that there should not be a differentiated policy for Scotland; it said that that would be a political decision. I acknowledge that other parts of the United Kingdom also have economic challenges, but my answer to that is to explore options to help them. I pointed to the Tech Nation visa, which has slightly different rules for one or two cities in England, so it is not as if the UK Government do not differentiate for certain parts of England.
The difference is that Scotland already has institutions that could help to operate such a policy, such as a Government and a Parliament, none of which exist in England. I will be happy to table amendments on Report that include Northern Ireland and Wales, if Members wish.
As the Minister said, the Smith commission looked at the issue, but that was long before there were any proposals to end free movement and implement the drastic new system, which has pretty much united Scotland’s businesses, trade unions and third sector organisations in opposition. She must be aware that if she does not think again about the proposals, the already increasing demand for some sort of differentiation will only grow. We have not even started to look at how things work in Canada, Australia or other places, but this does not need to be difficult; it could be simply a small additional means for Scotland to support its population and its economy.
I repeat that I am hugely frustrated by the response that we have been given this morning. I hope that we can get something better on Report, but in the meantime, there is no point in my dividing the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Afzal Khan
I beg to move amendment 14, in clause 7, page 5, line 32, at end insert—
“(5A) This Act cannot come into force until the House of Commons has passed a motion in the form set out in subsection (5B).
(5B) The form of the motion for the purposes of subsection (5A) is—
‘That the Immigration and Social Security Co-Ordination (EU Withdrawal Act) come into force’.”
The Chair
With this it will be convenient to discuss the following:
Amendment 36, in clause 7, page 5, line 32, at end insert—
“(5A) Section 1 must not be brought into force before 30 June 2021.”
This amendment would prevent the repeal of free movement until after the 30 June 2021.
Amendment 15, in clause 7, page 5, line 33, leave out from “which” to end of line 34, and insert
“the House of Commons has passed a motion in the form set out in subsection (5B) above.”
This amendment is consequential on Amendment 14.
Afzal Khan
The Bill is not explicit about when clause 1, on the repeal of free movement, will come into force. Under Clause 7(8), it may
“come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint.”
For reasons outlined in our debates on clause 1, ending free movement prematurely will have the effect of plunging millions of EU citizens in this country into legal limbo and may mean that they are here illegally. If we end free movement too soon, it will be impossible to distinguish those EU citizens who have just arrived in the UK from those who have lived here for decades but not yet registered for settled status. There is therefore a risk that people will be denied their rights to work, rent, use the NHS and so on because they are unable to prove that they have those rights.
If there is a withdrawal agreement, free movement will be repealed at the end of the transition period. Our amendments would ensure that if there is no deal, and therefore no transition period, the Secretary of State will not be able to repeal free movement until EU citizens have been given sufficient time to register for settled status. They would offer safeguards, protect citizens’ rights and secure their status.
Stuart C. McDonald
I am pleased to be back on the same side as the hon. Member for Manchester, Gorton; I need not say much more than he did. The amendments would address the problems that will arise in a no-deal situation if the Government introduce their proposals. For example, how will employers and landlords go about distinguishing those who arrive before and after Brexit day? The Minister reassures us that employers need make no checks on prospective employees except whether they are EEA nationals, but the problem is that they will want to know how long those people can work for them; will they be entitled to stay in the UK for three years, or will they end up being entitled to settled status? Likewise, landlords will want to know how long tenancies can last.
Some EU nationals may have the right to be in the UK indefinitely through the settled status scheme, while others may be restricted to three years. This is not the Minister’s fault, but there is no indication how the three-year visa will feed into the future immigration system. There is a huge danger that there will be discrimination, and that the system just will not work. The very simple answer in amendment 36, proposed by the3million, is not to end free movement, either in a deal or no-deal situation, until after the settled status scheme has run its course. Only then can we be absolutely sure that different categories of EEA nationals can be distinguished.
Caroline Nokes
I thank the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling amendments to clause 7, which sets out how and when the provisions of the Bill will commence. Let me briefly outline how the clause operates.
Like clause 6, which deals with interpretation, clause 7 will come into force on the day that the Bill receives Royal Assent. That is common for such provisions.
Stuart C. McDonald
That is acceptable if there is a deal, so I do not understand why it is completely unacceptable if there is no deal.
Caroline Nokes
As the hon. Gentleman will be aware, the Government are working hard to secure a deal, but there will need to be a reasonable transition period in the event of deal or no deal. Indeed, in no deal we will have to have an element of control and transition, and there will be no case where we shall be able to implement a new system and switch off the old system overnight. Transition is important, and it is important that we retain the tools that enable us to do that.
We have been clear that we aim for the future skills-based immigration system to be in place from January 2021. This amendment would prevent us from doing that, as it would effectively extend the implementation period for a further six months. That would leave us unable to deliver on our commitments to end free movement and to introduce the new system on time. We received a clear message in the referendum that free movement should end. Delaying it further beyond the agreed implementation period would clearly be ignoring that message.
Even in a no-deal scenario, there will need to be a transition period before the future skills-based immigration system begins. That period should reassure Members that there will be no cliff-edge. The Government announced their proposals for ending free movement in a no-deal scenario in the policy paper published on 28 January 2019. This Bill, not least the measures in part 1, is needed now to enable us to deliver the result of the referendum.
We have also been clear that we will ensure the immigration status of the resident population is protected before the deadline for the EU settlement scheme, through appropriate savings made under clause 4. That will ensure that their rights remain unchanged immediately after exit, avoiding any cliff-edge. That means it is not necessary to delay the repeal of the free movement law in the way proposed to protect the resident population.
By delaying the end of free movement in a no-deal scenario, the amendment creates a group of EU nationals who arrive under free movement, after EU exit but before the end of the implementation period, who will face uncertainty in June 2021, when those free-movement rights end. They are not eligible to apply under the EU settlement scheme and would be in the UK unlawfully, unless they obtain leave under the immigration rules. The Government’s planned transition of a dedicated EU leave to remain route, to bridge the transition from the end of free movement to the introduction of the future system, is both pragmatic and fair, and avoids the cliff-edge I have described. I believe it is preferable to amendment 36, which seeks to prolong free movement unilaterally.
Amendments 14 and 15 seek to prevent the Bill, once enacted, from coming into force until after a motion in a specific form is passed by the House of Commons. While I recognise the importance of facilitating extensive debate on this Bill, I am of the view that legislating for a further motion after enactment is neither an effective nor appropriate use of parliamentary time. There is ample opportunity for Members on both sides of the House to have their views heard and to subject the Bill to scrutiny as it progresses through Parliament. We have already heard valuable and thought-provoking views from both sides of the Committee, and Members will continue to debate and vote on the Bill on Report and Third Reading, before it passes to the other place for further scrutiny.
Furthermore, when the Bill receives Royal Assent, Parliament will clearly have made the decision that it should become law and that free movement should end. The Government have been clear, both publicly and in the House, when they plan to commence the provisions in the Bill. There is no good reason to continue free movement unilaterally in a no-deal scenario, and these amendments, which seek to do so, seek to deny the result of the referendum. That is not acceptable. I therefore ask the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw their amendments.
Afzal Khan
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 36, in clause 7, page 5, line 32, at end insert—
“(5A) Section 1 must not be brought into force before 30 June 2021.”—(Stuart C. McDonald.)
This amendment would prevent the repeal of free movement until after the 30 June 2021.
Question put, That the amendment be made.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Eighth sitting)
(5 years, 5 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 10 - Question accordingly negatived.
The Chair
Welcome, everyone. Let me start with a few housekeeping rules. I am afraid the ban on coffee and tea remains—it is water only. The room is warm because it is marvellously close for this time of year, so gentlemen may certainly remove their jackets—but we will stop there—and ladies, if they have scarves, may remove those.
Clause 7
Extent, commencement and short title
Amendment proposed: 21, in clause 7, page 5, line 37, at end insert—
“(7A) Section 1 of this Act cannot come into force until the Secretary of State has ensured that legal aid is available to all EEA and Swiss nationals, and their family members, who are domiciled or habitually resident in the UK for Early Legal Help on immigration matters.”—(Afzal Khan.)
The Chair
With this it will be convenient to discuss new clause 36—Legal Aid—
“(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended in accordance with subsection 2.
(2) In Schedule 1, paragraph 30, after sub-paragraph (d), insert—
‘(e) The Immigration and Social Security (EU Withdrawal) Act 2019.’”
This new clause would allow individuals to seek legal aid in order to obtain advice on right to enter and remain under this Act.
Nick Thomas-Symonds (Torfaen) (Lab)
It is a pleasure, as always, to serve under your chairmanship, Sir David. I rise to speak to amendment 21 and to support new clause 36—after a brief difference of opinion this morning, it is nice to be back on the same side as the SNP.
Rights mean very little without the means to enforce them. The amendment would put in place a provision regarding legal aid, without which we say the repeal of the retained EU law relating to free movement should not happen. In other words, clause 1 would come into force only in the circumstances set out in the amendment.
Let me say briefly about the EU settlement scheme that the provision of a right to appeal and the legal aid necessary to enforce it would remove any uncertainty about whether there was scrutiny of those decisions. The complexity of the scheme means that errors may well be made, and a right of appeal is the optimum way to secure legal entitlements.
Returning specifically to the amendment, cuts to legal aid are a huge issue for enforcement, but they are also a potential problem with respect to the lawyer who eventually has a case. That is not to suggest that junior lawyers and fee earners in some lower categories do not do an excellent job. They do, but it obviously cannot be fair for a more junior lawyer, or a lawyer without the requisite expertise, to end up taking a case simply on the basis of the money available, without regard to the necessary experience and expertise.
Cost is a huge problem. The withdrawal of legal aid means that, to get before a tribunal with a robust bundle of evidence that gives them some chance of being granted an appeal, people often have to find thousands of pounds—£1,000, £2,000 or perhaps even £3,000. That is the cost simply for getting a bundle of evidence together to go before a tribunal, before even considering whether there is a remote chance of success. All too often, people just cannot afford that.
The amendment, which relates to new clause 36, specifically seeks the provision of legal aid to assist European economic area and Swiss nationals with immigration matters. The context for the amendment is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which, on the commencement of its civil legal aid provisions on 1 April 2013, largely removed non-asylum immigration advice and representation from the scope of legal aid in England and Wales. Clearly, the ending of rights by clause 1 and schedule 1 will significantly extend the impact of the legal aid cuts made by the 2012 Act by fully subjecting EEA and Swiss nationals and their family members to the immigration system and requiring them to have leave to enter or remain in the UK.
Complexity is not the only reason why the general removal of legal aid for immigration advice and representation is of profound concern. I am grateful to Amnesty International for its thorough briefing, which sets out its concerns. The reality is that substantial evidential hurdles exist for anyone who is seeking to establish rights to private and family life in the UK and measures for the best interests of children. Even if someone who is representing themselves—a litigant in person—understands relevant legal requirements and procedures, they will still have to assess, collect and present the evidence that is required to demonstrate that the rules and other requirements are met. The issue is not only that it is a daunting task and prohibitively expensive, but that the tribunal system is simply not set up to help someone in that situation. Worse still, it is a false economy, because there is no doubt whatever that the provision of a lawyer who is expert in the field will speed up the proceedings, as opposed to the proceedings being slowed down because a number of people have to represent themselves before the tribunal.
The Government have said that they wish to avoid another Windrush scandal. In that case, they would do well to accept this amendment. I should just draw attention to the fact that I was a practising barrister before I entered Parliament and I remain a non-practising barrister. For completeness, I refer to my entry in the Register of Members’ Financial Interests in that regard. I urge the Minister to accept the amendment.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I will speak to new clause 36, but I also fully support everything that the hon. Member for Torfaen has said about amendment 21. I can be very brief, given what he has said. As was revealed earlier, I used to practise as an immigration lawyer; this was a decade ago. Back then, the immigration rules were horrendously complex, but since then there have been hundreds of changes to the immigration rules and they have multiplied in size. I cannot remember what the figure is, but the appendices have just about every letter of the alphabet in their title. The system is ludicrously complex. The issue is not just that the rules are complicated; as we have heard, the evidential requirements are also incredibly complicated.
It is easy enough to say that we hope the settled status scheme is not too complicated, but that is not an end to the matter. It will be complicated for many people to access. People also have to make decisions and understand whether they actually need to apply, and that could be hugely complicated for some people. Some people will not be sure whether they have British nationality. Some people will not understand whether their right to permanent residence under existing EU law means that they do or do not need to apply. There is the situation of Irish citizens, for example, in Northern Ireland. All sorts of people are already asking questions about how this system applies to them. It is not a straightforward matter.
David Duguid (Banff and Buchan) (Con)
A number of constituents or residents in my constituency have come to me with the kinds of questions that the hon. Gentleman illustrates, and I, with my limited experience—certainly in comparison with his—have been able to clarify a lot of those cases as their Member of Parliament. Is that not something that we should all be doing as Members of Parliament?
Stuart C. McDonald
It is fair to say that MPs can provide some basic help, but they are not immigration lawyers. All hon. Members have to be cautious to ensure that they do not hand out legal advice. A Member might be approached, for example, by someone who is entitled to British citizenship or to register as a British citizen. To set them off down the route of applying for settled status would be to do them a disservice. We have to be very careful. Although the settled status scheme in itself might appear to be reasonably straightforward, that is not the end of the matter.
Nick Thomas-Symonds
I would make two points in response to the suggestion that has been made. First, no one should be giving uninsured legal opinions—obviously, that is what a lawyer would have—and, secondly, we are surely not saying that as a consequence of all the legal aid cuts that have been made, Members of Parliament should be picking up the slack when they are not trained to do so.
Stuart C. McDonald
Absolutely. Another thing that I will say to the hon. Member for Banff and Buchan is that, thankfully, one benefit of devolution—all those who were opposing devolution earlier should take note—is that people can choose a different path, and in Scotland we have not implemented LASPO. I think that LASPO is one of the most outrageous Acts of Parliament to have gone through this place. Thankfully, in Scotland, people will still be able to obtain immigration advice through legal aid. I strongly urge the hon. Gentleman to use that, rather than potentially getting himself into trouble if he makes mistakes with his immigration advice.
David Duguid
To clarify, I was advocating not that Members of Parliament should provide legal advice, but that they should signpost constituents to the relevant guidance on the Government website, for example.
Stuart C. McDonald
That is all fair enough but, ultimately, the point remains that all of this is incredibly difficult. Nationality and immigration law are complicated, and the settled status scheme, although it is straightforward in principle, has a number of complexities. Legal aid is essential.
We are talking about fundamental issues to do with human rights and citizenship—the hon. Member for Torfaen talked about Windrush earlier—and all the factors together make legal aid imperative. I am glad that we still have good legal aid coverage for immigration matters in Scotland, and I very much think that that should be the case throughout the United Kingdom.
Afzal Khan (Manchester, Gorton) (Lab)
Briefly, in the light of the two earlier speakers declaring their interests, I declare that I am a solicitor and that I practised immigration law, although I do not do so currently.
The Minister for Immigration (Caroline Nokes)
It is a pleasure to serve under your chairmanship, Sir David. I thank the Opposition Members for their contribution to this debate. I put the name of the hon. Member for Torfaen at the top of this sheet of paper, but then I had to add all the other hon. Members because of their detailed and learned comments on legal aid.
Amendment 21 and new clause 36 are grouped together because, in essence, they cover the same ground. I recognise the issues that have been raised by hon. Members. The EU settlement scheme has been designed to be streamlined and user-friendly, and the majority of applicants will be able to apply without the need for general advice from a lawyer or advice on rights to enter or remain required as a result of the Bill. Indeed, feedback from the testing phases of the EU settlement scheme showed that most applicants found the application easy to complete.
For the most part, feedback from applicants in the vulnerable cohort has been positive, noting the speed of decisions in many cases and that it was easy to provide evidence of residence. Supporting vulnerable individuals to obtain UK immigration status is a core element of the delivery of the scheme, and we recognise that we need to reach out and support a wide range of vulnerable groups whose needs will vary, including the elderly, those who cannot access or are not confident with technology, and of course non-English speakers.
We are therefore putting in place safeguards to ensure that the EU settlement scheme is accessible and capable of handling vulnerable individuals with flexibility and care. That will include a range of direct support offered by the Home Office, such as assisted digital support and indirect support through third parties. As a practical example, we are providing grant funding of up to £9 million for voluntary and community organisations throughout the UK to support EU citizens who might need additional help when applying for their immigration status through the EU settlement scheme. The grant funding will help those organisations to inform vulnerable individuals about the need to apply for status and to support them in completing their applications under the scheme.
As the Committee heard at the oral evidence sessions, voluntary and community organisations such as the Children’s Society have been well engaged in the development of the settlement scheme. We are also working to ensure that local authorities have all the support that they need to ensure that looked-after children in their care will receive leave to remain under the EU settlement scheme. Caseworkers will provide support to ensure that applications are not turned down because of simple errors or omissions, and a principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate. In short, the process has been designed with users in mind.
As an additional safeguard, legal aid will be available to some particularly vulnerable individuals. The Government have always been clear that publicly funded immigration legal advice is available for individuals identified as potential victims of human trafficking, modern slavery or domestic violence. We will also introduce legislation shortly to bring immigration matters for unaccompanied and separated migrant children into the scope of legal aid, meaning that that group will get support in securing their immigration rights.
In addition to that, legal aid may be available through the exceptional case funding scheme where the relevant criteria are met. As my right hon. Friend the Secretary of State for Justice announced in the House on 7 February, the Government will bring forward proposals to simplify the exceptional case funding application process and to improve the timeliness of funding determinations to ensure that those who need legal aid funding can access it when they need it.
The EU settlement scheme has been specifically designed to ensure that individuals can apply for settled status without the need for a lawyer. The Government have also committed to providing a range of safeguards to ensure that vulnerable individuals receive the assistance they need in securing their immigration rights. These safeguards will of course apply to vulnerable EEA and Swiss nationals. For those reasons, I hope that the hon. Member for Manchester, Gorton will withdraw amendment 21.
Afzal Khan
I thank the Minister for her statement, but we are not satisfied. We will put the amendment to a vote.
Question put, That the amendment be made.
Afzal Khan
I beg to move amendment 32, in clause 7, page 5, line 37, at end insert—
“(7A) Section 1 of this Act cannot come into force until the Secretary of State has commissioned an independent review to examine whether the UK’s existing immigration legislation, and any provisions or rules issued under existing legislation, require amending to deal with the ending of freedom of movement under the provisions of this Act.
(7B) The review under subsection 1 must consider, but is not limited to —
(a) an equality impact assessment evaluating whether any individuals subject to the Immigration Act 1971 are discriminated against on the basis of any of the protected characteristics defined in the Equality Act 2010;
(b) an assessment of whether the Immigration Act 1971 needs amending to ensure the human rights of persons who have their freedom of movement removed under the provisions of this Act are protected;
(c) whether sections 20 to 47 of the Immigration Act 2014, sections 34 to 45 of the Immigration Act 2016, and sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 require amending;
(d) whether schedule 2 of the Data Protection Act 2018 requires amending.
(7C) The review under subsection 1 must be laid before both Houses of Parliament.”.
The Chair
With this it will be convenient to discuss the following:
Amendment 17, in clause 7, page 5, line 39, at end insert—
“(8A) The Secretary of State must not issue any regulations under subsection 8 above until the Secretary of State has implemented any recommendations contained in the Law Commission’s review of the UK’s Immigration Rules which relate to or will relate to persons who, under the provisions of the Act, will lose their right of free movement.”.
Amendment 38, in clause 7, page 5, line 39, at end insert—
“(8A) Regulations under subsection (8) may not be made until the Secretary of State has published a review of section 3 of the Immigration Act 1971, examining its impact on the human rights of people whose right of free movement is ended by section 1 and schedule 1 of this Act.”.
Amendment 39, in clause 7, page 5, line 39, at end insert—
“(8A) Regulations under subsection (8) may not be made until the Government has repealed paragraph 4 of schedule 2 of the Data Protection Act 2018 in so far as it affects people whose right of free movement is ended by section 1 and schedule 1 of this Act.”.
Afzal Khan
I will speak to amendments 17 and 32, which are in my name. I support amendments 38 and 39, which have been tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.
On amendment 32, the Bill and the White Paper do not address the many deep-seated problems in our broken immigration system, but instead subject a further 3 million people to it. The Windrush crisis laid bare the extent to which the hostile environment policy impacts on human rights; British citizens were detained and deported, and the Government have acknowledged that that was utterly wrong. I will return to the need for a full review of all Windrush cases, before the Bill is enacted, when we debate amendment 16.
We have heard the opinions of several experts on the danger of a repeat of Windrush for EU citizens, and we need a two-pronged approach to avoid that. First, we must ensure that the rights of EU citizens are enshrined in primary legislation, and that there is no unnecessary cut-off for applications for settled status—an argument I will elaborate on when we discuss the new clauses. Secondly, we must address the root cause of the Windrush crisis: the hostile environment policy.
As the spokesperson for Liberty set out in our evidence session, the impact of the hostile environment goes beyond even the Windrush scandal; it reverberates throughout people’s lives. Children are afraid to go to school, sick people are afraid to go to hospital and victims of serious crime are afraid to report them to the police. Our public services have been co-opted, with doctors, teachers and landlords turned into border guards.
The hostile environment does not only affect migrants. A report by the Joint Council for the Welfare of Immigrants shows that inquiries from British black and minority ethnic tenants without a passport were ignored or turned down by 58% of landlords in a mystery shopping exercise. I need not remind the Committee that a large number of BME British citizens will be caught in this policy. A number of independent bodies have recommended that the Government review the hostile environment. The Independent Chief Inspector of Borders and Immigration found:
“Concerns about right to rent’s impact on racial and other forms of discrimination by landlords, exploitation of migrants and associated criminality, and homelessness, have been raised, repeatedly, by the Joint Council for the Welfare of Immigrants (JCWI), Crisis, Migrants’ Rights Network and others”,
but the Government did not complete an evaluation of the pilot before rolling it out, nor did they attempt to measure its impact once it was fully rolled out. The independent chief inspector found that overall,
“the RtR scheme had yet to demonstrate its worth as a tool to encourage immigration compliance.”
Internally, the Home Office has failed to co-ordinate, maximise or even effectively measure the use of the scheme. Externally, meanwhile, the Home Office is doing little to address stakeholders’ concerns. The National Audit Office found that the Government failed to fulfil their duty of care when introducing the hostile environment. Its report said:
“In its implementation of the policy with few checks and balances and targets for enforcement action, we do not consider, once again, that the Department adequately prioritised the protection of those who suffered distress and damage through being wrongly penalised, and to whom they owed a duty of care. Instead it operated a target-driven environment for its enforcement teams.”
The Government have recognised the need for an extensive review. After one of my parliamentary questions exposed the scandal of the Home Office’s requiring people who applied for visas to supply DNA evidence, the Home Secretary committed to a wide-ranging review of those “structures and processes” in the Home Office,
“to ensure they can deliver a system in a way which is fair and humane.”
That was back in October 2018, and we have heard nothing more about it since then. The Labour party is clear that we cannot have a “fair and humane” immigration system that respects human rights until we have repealed the hostile environment in its entirety. The Windrush crisis was caused by systematic problems within the Home Office, and it will take root and branch reform to return us to an immigration system that respects human rights.
I turn briefly to the question of data protection, which is related but warrants special consideration. The Data Protection Act 2018 allows an entity that processes data for immigration control purposes to set aside a person’s data protection rights in a broad range of circumstances. As I believe was said during the debate on that Bill, data protection rights help us to hold the Home Office to account. The White Paper indicates that the Government will be using data sharing more and more to enforce the hostile environment.
As Liberty set out, it is concerned that
“the Home Office is really quite a poor data controller, and yet automated data processing is increasingly going to be the linchpin of implementing the hostile environment.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q159.]
In that context, it is essential that people have some form of redress for data errors, and data protection rights are crucial. We believe that the hostile environment should be repealed, but if it is to be continued, we must at least have effective redress for errors.
The purpose of amendment 17 is to require the Secretary of State to implement the recommendations of the Law Commission’s review of UK immigration rules. In her opening remarks on this Bill, the Minister mentioned the Law Commission, and I welcome that; I hope she will commit to adopting the measures it recommends before the Government make extensive changes to immigration rules as a consequence of this Bill. In that case, we would not press this amendment to a vote.
Many changes to immigration rules have been made in a piecemeal way, resulting in immigration laws being practically incomprehensible. The JCWI pointed out that Supreme Court judges, Court of Appeal judges, immigration experts and immigration lawyers have all said in public that it is almost impossible for anyone to navigate, let alone people who are expected to do so without necessarily having perfect English or legal aid. The Law Commission points out that, on 31 December 2018, the rules totalled 1,133 and are poorly drafted, which the Government recognised by commissioning the Law Commission review. It makes sense to implement the Law Commission’s recommendations and clean up the statute book before making a whole raft of changes for EEA citizens.
The Law Commission’s project of simplifying the immigration rules officially started on 13 December 2017. It held pre-consultation meetings with key stakeholders and other experts, and with the Home Office. The consultation paper was published on 21 January 2019 and the consultation period is open until 26 April 2019. Recommendations will be delivered in a final report “later in 2019”.
Changes that the Law Commission is considering as part of its review include: a less prescriptive approach to the rules; reforming the organisation and restructuring the immigration rules; removing overlapping provisions and resolving inconsistencies; improving the drafting style; and improving the way that immigration rules are updated. We support those changes, and we believe that it makes most sense for them to be incorporated before our immigration rules are overhauled as a consequence of enacting the Bill.
Stuart C. McDonald
I will speak to amendments 38 and 39, tabled in my name and that of my hon. Friend the Member for Paisley and Renfrewshire North, which are essentially subsections of the broader amendments that the shadow Minister spoke to. I absolutely endorse his comments, so I will be very brief indeed.
Essentially, the development of immigration policy has not been evidence-based or rights-based. My amendments pose a couple of questions. First, before we set out to apply the immigration rules to many thousands more people, why do we not review them and assess their impact on human rights? Secondly, my amendments ask us to revisit a pretty scandalous immigration exemption inserted into the recent Data Protection Act 2018.
On the first point, the Government tend to argue in their defence that the statutory duties that are in place are sufficient. However, we unfortunately all too often see statutory duties not properly discharged by the Home Office. For example, we heard in an earlier debate about the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. Justice McCloskey said in 2016:
“As in so many cases involving children, there is no evidence that the statutory duty imposed by section 55(2) to have regard to the Secretary of State’s statutory guidance was discharged. I readily infer that it was not. This, sadly, seems to be the rule rather than the exception in cases of this kind.”
Rather than leaving it to statutory duties and guidelines, we want a proper assessment, to make sure that those duties are complied with, and to see how they are complied with.
On the second point, that immigration exemption gives the Home Office sweeping powers to excuse itself or others from fundamental data protections, which are vital to ensuring that people are not subjected to wrong immigration decisions, and wrongly exercised functions and powers, as befell so many members of the Windrush generation. That exemption absolutely ought to be removed.
In particular, the sharing of migrants’ data between public services and the Home Office, and the erosion of migrants’ data protection rights, are some of the most controversial aspects of the hostile environment, turning traditionally safe spaces, such as hospitals and schools, into immigration surveillance services. The policy of sharing NHS patient data with the Home Office eroded the patient confidentiality rights of migrant patients, causing outrage among doctors, royal medical colleges and the British Medical Association. In the light of evidence that data sharing caused migrants to avoid healthcare services and presented a public health risk, the policy was suspended. We need to go further than that and row back on the immigration exemption altogether, which is why I ask hon. Members to support amendment 39.
Caroline Nokes
I thank the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling amendments to clause 7. Amendments 32, 17, 38 and 39 focus on the commencement of the Bill. Amendment 32 is designed to make commencement of section 1 dependent on the Secretary of State’s commissioning an independent review of immigration legislation, with specific reference to the immigration rules, the public sector equality duty, certain provisions relating to the rights to work and rent, and data processing in the immigration arena.
When we voted to leave the European Union, the Government began a comprehensive review of legislation to identify issues that need addressing as a result of EU exit. I have worked with hon. Friends across the Government, including at the Ministry of Housing, Communities and Local Government and at the Department for Work and Pensions, to ensure that we are adequately prepared for the end of free movement.
The review required by amendment 32 is unnecessary, for several reasons. The Government take seriously their obligations under the public sector equality duty and the European convention on human rights and ensure that all elements of the immigration system comply with them. We will vigilantly monitor such requirements as we manage the transition of EEA nationals from free movement rights to having leave to remain under UK immigration law. In a deal scenario, the withdrawal agreement Bill will also deliver that.
In the unlikely event of no deal, the power in clause 4 of the Bill before us will be used to ensure that any issues arising from the ending of free movement can be adequately addressed, principally by making transitional and saving arrangements for existing EEA residents and those who arrive before the new system commences. For example, the process for EEA nationals to prove their right to work, and for employers to check that right, will not change until January 2021. The design of the future system will similarly comply with human rights and equalities duties.
The immigration exemption at paragraph 4 of schedule 2 to the Data Protection Act 2018 was subject to significant scrutiny in both Houses before it came into force in May 2018. It is a necessary and proportionate measure, which we believe is compliant with the general data protection regulation. It can be applied only on a case-by-case basis in limited circumstances in which complying with a certain data protection right would be likely to prejudice the maintenance of effective immigration control. It is also subject to oversight by the Information Commissioner.
I hope that hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that the amendment is therefore unnecessary.
Amendment 17 would make commencement of part 1 of the Bill dependent on the Secretary of State’s implementing all recommendations in the Law Commission’s review of the immigration rules that relate to persons losing their free movement rights—namely, EEA and Swiss nationals and their family members. As you may recall, Sir David, from the evidence sessions, when this cropped up, the Home Office worked closely with the Law Commission to discuss the remit of the project back in 2017. We all agreed that that was to be the simplification of the immigration rules. We agreed with the Law Commission that it would use the project to seek to identify the underlying causes of complexity in the rules, and that it would conclude with a report setting out recommendations to improve them for the future. My right hon. Friend the Home Secretary and I are pleased with that approach and look forward to reading the final report.
The Law Commission published on 21 January 2019 an initial consultation paper that seeks the views of consultees on preliminary proposals and asks consultees a number of open questions. The consultation is still open; it will not close until 26 April 2019. After the period of consultation, the Law Commission will analyse the results, and it will not deliver its recommendations until its final report later this year.
I hugely appreciate the research that the Law Commission is doing. I agree, and I believe that I have said in this Committee previously, that the immigration rules, totalling more than 1,000 pages, are too long and can be difficult and complex to use. However, I cannot support an amendment that would commit both Parliament and the Home Office to implementing fully proposals that have not even been written yet. The Home Secretary and I want to simplify the immigration rules and we will consider the Law Commission’s recommendations as part of that process. Also, we will not only consider recommendations that relate to those who, under the provisions of the Bill, will lose their right to free movement. We want to simplify the system for all who come into contact with the immigration rules, not just a specific cohort of people.
Furthermore, it is important for the Secretary of State to be able to determine when certain clauses commence, so that we can cater for specific scenarios linked to our departure from the European Union. For example, we may need to bring these provisions into force at the end of an agreed implementation period in a deal scenario, or sooner in the event of no deal. That may require us to bring clauses in part 1 into force before the Law Commission has had a chance to deliver its final report. I ask the hon. Member for Manchester, Gorton not to press either of his amendments, for the reasons outlined.
Turning to amendments 38 and 39, I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for giving me the opportunity to discuss these issues. While the Government’s priority is to leave the EU with a deal, we must continue to prepare for all scenarios, including the possibility that we leave without any deal in March 2019. Amendment 38 would hinder our ability to prepare adequately for that. Conducting the review proposed in that amendment would be likely to take some time, and thus would very likely delay the end of free movement. We received a clear message in the referendum of 2016 that free movement should end, and this amendment would leave us unable to deliver promptly on that in a no-deal scenario.
Furthermore, the Government do not think that such a review is necessary. Under section 6 of the Human Rights Act 1998, the Secretary of State is under an obligation to comply with the European convention on human rights in exercising all his functions, including when making immigration policy, when making specific immigration decisions, and when making immigration rules under section 3 of the Immigration Act 1971. The convention rights are already taken into account each and every time we make or amend the immigration rules. I reassure hon. Members that ensuring the welfare of migrants is at the forefront of our thinking for the design of the new immigration system. As such, I hope hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that amendment 38 is not necessary.
Amendment 39 gives me the opportunity to restate the importance of the immigration exemption within the Data Protection Act 2018. The immigration exemption came into force in May 2018. It was widely debated in both Houses and reassurances were repeatedly given on the scope and potential use of the exemption. The UK generally processes immigration matters under the EU general data protection regulation, commonly known as the GDPR, because the UK generally treats immigration as a civil administrative function, not a policing matter. We have made a deliberate choice to deal with many immigration offences under administrative rather than criminal sanctions.
If the exemption were repealed for EEA nationals who were exercising free movement rights on the date when part 1 of the Bill came into force, the consequence of this amendment, as drafted, would be to place us in a position where in theory EEA nationals, even though by then subject to domestic immigration law, would be treated more favourably than migrants coming from the rest of the world. I find that situation divisive and discriminatory.
Immigration is naturally a sensitive subject area and a topic of huge importance to the public, to the economic wellbeing of the country and to social cohesion. Being able to effectively control immigration is therefore, in the words of the GDPR,
“an important objective of general public interest”.
The new data protection regime gives broader rights to data subjects, which this Government welcome, but it is also important that we make use of the limited exemptions available to us, so that we can continue to maintain effective control of the immigration system in the wider public interest. We have done that within the parameters set down in the GDPR.
Tracey Crouch (Chatham and Aylesford) (Con)
My right hon. Friend is making an excellent speech. That is one of the challenges that we parliamentarians face. It is important to recognise that there are sensitivities around the issue of immigration, but in many respects we have reneged on some of our responsibilities by not having a sensible debate about having a country that is open and welcoming to those who wish to come and live and work here, while at the same time having an immigration system that works for everyone, including those who are here and those who want to come here in the future.
Caroline Nokes
My hon. Friend makes an important point. As with so much in immigration, it is important that we get the balance right. I have been concerned that there has been much scaremongering in recent months that the immigration exemption would be used by the Home Office to deny individuals rights in a sweeping way, or as an excuse for not providing reasons for the refusal of cases. That is simply not true.
The exemption as set out in the legislation is not a blanket exemption that can be used to deny rights in a sweeping way; it does not target any particular group or individual. There are very clear tests to be met. The immigration exemption is only applied on a case-by-case basis, and only where complying with certain rights would be likely to prejudice the maintenance of effective immigration control. We must be able to satisfy the prejudice test set out in the Data Protection Act before it can be used. The data subject may assert their rights through the Information Commissioner’s office and the courts, if that individual believes that an exemption has been wrongly applied.
The immigration exemption is entirely separate from measures designed to deal with ending the free movement of EEA nationals. It is a necessary and proportionate measure, which we believe is compliant with GDPR—a regulation introduced by the European Union that applies to all member states. I can categorically assure hon. Members that it is not aimed at EEA nationals and, in compliance with our public sector equality duty, it must be applied in a lawful and non-discriminatory manner. I hope that in the light of these points, the hon. Member for Manchester, Gorton will withdraw the amendment.
Afzal Khan
I thank the Minister for her assessment, but I am not totally satisfied, so I wish to press the amendment to a Division.
Question put, That the amendment be made.
Kate Green (Stretford and Urmston) (Lab)
I beg to move amendment 9, in clause 7, page 5, line 39, at end insert—
“(8A) The Secretary of State must carry out a gender impact assessment of the Act and lay a report of that assessment before the House of Commons within six months of the passing of the Act.”
It is a pleasure to see you in the Chair, Sir David. I am concerned that a number of provisions in the Bill and the immigration White Paper published just before Christmas, in which the Government gave a sense of the future immigration regime after the ending of freedom of movement, will discriminate against women, and that these concerns have not been adequately considered by the Government in their published policy equality statements.
I shall start with the proposed £30,000 minimum salary threshold, which in future will potentially apply to EU migrants. It is widely known that women are significantly more likely to work part time than men. Some 39% of women in employment in the UK work part time, compared with just 12% of men. The pay for part-time work is obviously prorated, so that employees are paid for only the amount of hours or days that they work. However, the minimum salary threshold of £30,000 proposed in the White Paper is not apparently prorated, meaning that a part-time worker will need to secure a job with a significantly higher rate of pay than a full-time worker in order to meet the visa criteria. An employee working three days a week, for example, would need a full-time equivalent salary of £50,000 in order to meet the threshold. That is significantly more than the average full-time salary of a woman in the UK, which stands at £26,103.
Even when prorating is accounted for, part-time workers are still paid less than full-time workers. The average hourly rate of a part-time worker is £9.36, compared with £14.31 for a full-time worker. For a part-time worker in the UK, male or female, the gross average annual salary is just over £10,000. Women who work part time often do so in order to provide care for young children or elderly relatives. Women from EEA countries seeking to come to the UK are therefore likely to be forced to work full time regardless of their caring responsibilities, unless they are earning a high salary.
Even when women are working full time they are still likely to earn less than men, thanks to the gender pay gap, which currently stands at 18%. Women account for 70% of all earners, calculated on the basis of jobs paid below the minimum wage. They also make up the majority of those in temporary employment, zero-hours contracts and part-time self-employment. That means that women will on average find it much more difficult to meet the £30,000 minimum salary threshold, and therefore to come to the UK.
Afzal Khan
I thank my hon. Friend for tabling the amendment and I heartily support all that she has said about it. Last Tuesday, I also gave reasons why I feel that the Bill disproportionately affects women. Therefore, we will support the amendment.
Caroline Nokes
I, too, thank the hon. Member for Stretford and Urmston for tabling the amendment, because it gives me the opportunity to confirm that gender impact and gender equality are important issues that must be taken into account across Government policy. Of course, that applies to all protected characteristics under the Equality Act 2010.
The UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations. The Government are committed to complying with their public sector equality duty under section 149 of the 2010 Act. Furthermore, the Government have been clear that all protections in and under the Equality Acts 2010 and 2006, and the equivalent legislation in Northern Ireland, will continue to apply after we leave the EU. We will not renege on our strong equalities and workers’ rights commitments.
As such, we published two policy equality statements alongside the introduction of the Bill, one on immigration and one on the social security aspects of the Bill. Both of those considered the potential gender impacts of the Bill. However, as the Committee is aware, the Bill is a framework Bill, and its core focus is to end free movement. As set out in the policy equality statement on the immigration measures in the Bill, the resident population of EU nationals is estimated to be roughly half male and half female, as the hon. Lady said. As a consequence, we do not think that ending free movement will discriminate on the grounds of sex, and there is nothing further to suggest that it will have a particular impact based on gender. However, we cannot predict the volume and pattern of migration post EU exit, because the future arrangements that will replace free movement have not yet been finalised.
Alison McGovern (Wirral South) (Lab)
The Minister is repeating the Government’s position that either the impact of the Bill will be split 50/50, just like the population, or we simply do not know because we have no idea what immigration will be like in the future. Is it not the case that on the whole, women are paid less by men—I meant to say paid less than men—and that we are moving into a situation in which the amount that a person gets paid has an important impact on their rights as a citizen?
Caroline Nokes
I thank the hon. Lady for her intervention. I fear she made a somewhat Freudian slip when she said that women are paid less by men, but I am inclined to agree with her on that point; it is what the gender pay gap tells us.
The hon. Lady makes an important point. When we are considering the future immigration system as part of our conversations about the White Paper and as the immigration rules come forward, we have to consider these issues. However, as I have repeatedly said, this is a framework Bill; its only purpose is to end free movement. As part of our engagement on the proposals in the White Paper, we will have to look seriously at the impact on all protected characteristics, not simply gender. As the hon. Lady has pointed out, it is difficult at this stage to assess the impacts of ending free movement. For that reason, as set out in our published policy equality statement on the immigration measures in this Bill, we have committed to consider all equalities issues carefully as the policies are being developed. The policies will receive equalities impact assessments, and those assessments will be published.
The Government are committed to implementing a fair and transparent immigration system that complies with the equality duty. The social security co-ordination clause is an enabling power, allowing changes to be made to the retained social security regime via secondary legislation. Details of policy changes will be set out in the regulations that will follow, and those regulations will also be scrutinised by Parliament via the affirmative procedure. The policy equality statement on that clause was also published when the Bill was introduced. It looked at the demographics and protected characteristics of those who currently export benefits in the EEA, including their gender. In the policy equality statement, we have committed to consider the impacts throughout the policy development process. The Government will consider the impacts of any future change on the retained social security co-ordination regime in line with the public sector equality duty.
I hope that I have addressed the concerns of the hon. Member for Stretford and Urmston. I ask her to withdraw her amendment, for the reasons I have outlined.
Kate Green
I am grateful to the Minister for her response, and I take some reassurance from her words. She has made it clear that over the rest of this year, as part of the engagement on the White Paper, particular attention will be paid to engaging on the equalities effect of its proposals, and that equality impact assessments will be produced, published and fully available as individual policies are developed. I also take some comfort from the Minister’s words about her awareness of the need to consider the equality impact assessments, including the gender impact of the provisions of clause 5 if the delegated powers in that clause are used to make changes to the social security regulations. In those circumstances, knowing that the Minister takes these matters extremely seriously, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Afzal Khan
I beg to move amendment 16, in clause 7, page 5, line 39, at end insert—
“(8A) Regulations under subsection (8) above may not be made until—
(a) the Secretary of State has completed a review of all cases of deportation, detention, or refusal of status to individuals who entered the United Kingdom before 1973, and the children and descendants of those individuals; and
(b) the Secretary of State has considered the findings of that review and implemented any safeguards deemed necessary, following a public consultation, to ensure that those who lose their right of freedom of movement under the provisions of this Act are protected from any wrongful detention, deportation or denial of legal rights.”
The Chair
With this it will be convenient to discuss amendment 23, in clause 7, page 5, line 39, at end insert—
“(8A) Regulations under subsections (7) and (8) relating to the coming into force of section 1 or section 5 may not be made until the number of people registered for settled status in the United Kingdom reaches 3 million.”
This amendment would prevent the Bill from coming into force until the number of people registered for settled status reaches 3 million.
Afzal Khan
Amendment 16 will prevent schedule 1 from coming into force until the Home Office has completed a full review of how enforcement has been applied following the Windrush scandal.
The Windrush scandal exposed systematic issues in the Government. A year on, we still do not know how many people have been detained or deported, or have even died as a result of the hostile environment. The measures that the Government have taken so far to fix the Windrush scandal have been unsatisfactory.
The National Audit Office has criticised the narrow scope of the Government’s review thus far, saying that the Home Office has shown a surprising
“lack of curiosity about individuals who may have been affected, and who are not of Caribbean heritage, on the basis that this would be a ‘disproportionate effort’.”
When the question is whether someone’s fundamental rights have been grossly violated, no effort is disproportionate in identifying and compensating victims.
This situation comes about after the Government showed a lack of concern about the potential impact of the hostile environment when it was introduced, despite repeated warnings from organisations and Opposition Members.
The compensation scheme has yet to be set up. The Government only introduced an emergency hardship fund after months of lobbying by Labour, and shockingly, it only helped one person in 2018. Just this month, there was widespread outrage at the Government’s decision to restart deportation flights to Jamaica, after they were suspended at the height of the Windrush scandal. The Government have not yet shown that they have learned the lessons of Windrush. The lessons learned review has not even reported yet, so those flights were entirely premature.
Amendment 16 would redress the Government’s failure to fulfil their duty of care to members of the Windrush generation, and would ensure that 3 million more EU citizens were not subjected to an already broken immigration system. As it is, the Bill will subject millions more people to a detention and deportation system that we know is broken, as outlined by Liberty in our evidence session. It said that
“up to 26,000 people per year could be liable to detention as EU nationals come under domestic immigration law. At the same time, a parliamentary question revealed that there has been no assessment of the impact of the Bill on the detention estate.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 55, Q147.]
I entirely support the point that Amnesty made when it said:
“The dysfunction of the system can only be expected to get worse...given that it will be dealing with a much larger body of people—people already living here, and the European nationals who make future applications that the system will have to deal with.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 88, Q221.]
Another issue that we heard a lot about during our evidence sessions was the threat of a repeat of Windrush for EU citizens. Once we have fixed problems with our current detention and deportation systems, we must ensure that we are not creating new systematic issues that will cause a repeat of the Windrush tragedy. As long as the hostile environment exists, it is imperative that people have documentation to prove their right to be in the UK.
The Government have set up the settled status scheme, and I am glad that they have started registering people, but we heard during the evidence sessions that there are already some problems with it, and that is before we get to the difficult cases of people who do not know that they need to register, do not have access to a phone or computer, or do not speak English well enough to complete the application and understand their rights and obligations under the scheme. Those EEA nationals who are unable to obtain status are likely to be the most vulnerable and marginalised, such as victims of trafficking or domestic violence, and children in care.
The Government have no clear plans at the moment to demonstrate that they have successfully registered all eligible EEA nationals for settled status by the end of the implementation period, nor have they put any plans in place to attempt to measure the extent of their success in doing so, nor have they set any targets for numbers to be registered. If the Minister disagrees on this point, I would be happy for her to tell the Committee what her target is for registering EEA nationals for settled status.
Caroline Nokes
I thank the hon. Member for Manchester, Gorton for his explanation of the amendments. I will take each one in turn.
Amendment 16 seeks a further debate on the issue of Windrush. It is absolutely right that we deliver on our promise to the people of the UK and legislate to end free movement. It is, further, right that in implementing a future system we must learn the lessons of Windrush. I agree with the hon. Gentleman that that is a crucial point, and that is why, as highlighted on Second Reading, the Government have put in place a number of measures to address it. However, as I have said, we have made a commitment to end free movement and the core purpose of the Bill is to deliver on that purpose. The amendment would put conditions on its implementation, and that is unacceptable. It would have the effect of hindering the Government in that objective, which stems from the EU referendum outcome.
It is essential that the Government can implement change as soon as is practically possible following the UK’s exit from the EU. Part of that change is already in train through the EU settlement scheme. We have been clear that securing the rights of EEA citizens has always been our priority, and we have delivered on that commitment through the implementation of the scheme.
We know that some members of the Windrush generation became caught up in measures intended to tackle illegal migration, because they did not hold the documentation necessary to demonstrate that they could access the benefits and services to which they were entitled. To remedy that, a taskforce was established last April to provide support to members of the Windrush generation who needed documentation to prove their status. The taskforce has issued documentation to more than 2,400 people, who can now demonstrate their right to live in the UK. A further 610 people have subsequently been supported through the Windrush scheme application process. More than 3,400 people have successfully applied for British citizenship under the Windrush scheme.
The Home Office has taken a number of other significant steps to right the wrongs experienced by some members of the Windrush generation. Those steps include the compensation scheme, the details of which have been consulted upon; the result will be announced shortly. In addition, we have commissioned an independent lessons learned review, which has contacted a wide variety of religious and community groups for their input. The review will consider what were the key policy and operational decisions that led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants; what other factors played a part; why the issues were not identified sooner; what lessons the organisation can learn to ensure that it does things differently in future; whether adequate corrective measures are now in place; and an assessment of the initial impact of those measures.
We are committed to taking into account the outcome of the review in designing the future borders and immigration system. The Department is also conducting a review of historical cases, and has therefore already committed significant resources to this work.
Stuart C. McDonald
The Minister will be aware that the National Audit Office has been critical of the scope of the review of historical cases and has, in particular, urged the Department to widen the scope of the review to include all individuals who could be in a similar situation to those from the Caribbean—so, people of other nationalities as well. Is the Home Office willing to consider that?
Caroline Nokes
Obviously, the Home Office is obliged to consider the comments of the National Audit Office, and it is doing so very carefully.
In addition to the resources committed to this work, the Government are also obliged to look to end free movement as soon as is practically possible. That is the first step in establishing a future border and immigration system that works for the whole United Kingdom. Amendment 23 would amend the commencement provisions in the Bill. The amendment would make the commencement of clause 1, which ends free movement, and clause 5—the social security provision—dependent on 3 million people having applied for, and been granted, status under the EU settlement scheme.
We are committed to securing the rights of resident EU citizens, and we have delivered that through the EU settlement scheme, which will enable us to grant settled or pre-settled status to European economic area nationals and their family members in the UK before EU exit, regardless of whether or not the UK leaves the EU with a deal.
I am pleased that the hon. Member for Manchester, Gorton supports the settlement scheme, and I hope that he and all other Members are encouraging EU nationals resident in their constituencies to apply. However, setting a target for the number of applications that must be reached before the Bill comes into force is not appropriate, for a number of reasons. First, we already have a generous deadline for applications to the scheme, which acts as an incentive for the resident population to apply. Using the power in clause 4, we will ensure that their status is protected before that deadline, so that their rights remain unchanged immediately after exit, avoiding any cliff edge.
Clearly, the EU and the UK commonly agreed that a deadline was the right approach when they provided for it in article 18 of the draft withdrawal agreement. We have been clear about what the deadline will be in both a deal and a no-deal scenario. According to the annual population survey, it is currently estimated that around 3 million EEA nationals are resident in the UK, but even that might well be an underestimate. It would be irresponsible to repeal free movement just because 3 million applications had been granted, which could easily happen before the proposed deadline. A date deadline is public and clearly understood. People can plan their affairs around it in a way that they cannot with an arbitrary figure such as the one proposed in the amendment.
Stuart C. McDonald
That is a slightly unfair characterisation of the amendment, which does not say that we would have to end free movement when the 3 million threshold had been met. We could still wait until the deadline that the Government have imposed. The amendment simply says that the Government should not implement the end of free movement until that number of people have been registered.
Caroline Nokes
It is still the Home Office’s position that we regard that as an arbitrary figure. We believe that a deadline that is set as a date is much more easily understood by individuals.
We are running an extensive communications campaign to ensure that people are aware of the need to apply. We are using all available channels to reach our audience, and last year targeted online advertising alone reached more than 2 million people. Our communications activity will be even more visible in the coming months, and we will shortly launch a wide-ranging marketing campaign that will encourage EU citizens to apply when the scheme is fully open. Nobody will be left behind, however, and we are working in partnership with vulnerable group representatives to ensure that we reach everyone. We expect the large majority of EEA nationals to have been granted status by the deadline, but if a person has good reasons for missing the deadline, we will be able to protect their status and enable them to apply afterwards.
Secondly, by requiring 3 million EU citizens to be granted settled status before the Bill can come into force and lay the ground for the future immigration system, we are presupposing that all resident EU citizens will receive indefinite leave to remain, which is what settled status refers to. That does not take into account the fact that some resident EU citizens may not need to apply for settled status. Some may want to leave the UK before the deadline; some will have arrived pre-1973 and already have indefinite leave to remain; and some may want to apply for British citizenship instead.
A significant proportion of EEA nationals who are eligible to apply under the settlement scheme will not have been continuously resident in the UK for five years, so they will not be entitled to settled status. They will be issued with pre-settled status, which gives them limited leave to remain, rather than indefinite leave. Some may then leave the UK without staying to complete the five years continuous residence required for a grant of settled status.
The date on which free movement could be repealed, or retained social security co-ordination legislation amended, would therefore be highly uncertain and operationally unworkable as a result of the amendment. The decision about whether free movement ended would be left solely in the hands of those EEA nationals. To prevent free movement from coming to an end through the Bill, they could simply refuse to apply under the EU settlement scheme, knowing that, as a consequence, free movement would not end.
That would be the antithesis of taking back control. It would put the future immigration system in the hands not of the Government or the British people, but of EU nationals who had already exercised their free movement rights and whose rights were protected, but who could prevent us from ending free movement and delivering on the outcome of the referendum.
Finally, it makes no sense to restrict the commencement of the social security co-ordination provisions in clause 5 based on the number of people who are granted settled status. Rights under the social security co-ordination regulations—for example, the right to aggregate to meet domestic entitlement for specific benefits—are not connected to the grant of leave under the EU settlement scheme. I therefore ask the hon. Member for Manchester, Gorton to withdraw his amendment.
Afzal Khan
I thank the Minister for her statement. I am minded to press amendment 16 to a vote, but not amendment 23.
Question put, That the amendment be made.
Stuart C. McDonald
I beg to move amendment 37, in clause 7, page 5, line 39, at end insert—
‘(8A) Regulations under subsection (8) may not be made until the Government has amended regulation 12 of the National Health Service (Charges to Overseas Visitors) Regulations 2015 to exempt EEA and Swiss nationals with immigration permission from being charged for NHS services.’
This amendment would prevent the Government from bringing into force those parts of the Bill that subject EEA nationals to the domestic immigration system until EEA and Swiss nationals with immigration permission are exempted from NHS overseas visitor charges.
The Chair
With this it will be convenient to discuss the following:
New clause 12—NHS Charges for EEA and Swiss nationals—
‘(1) Any EEA or Swiss national, or family member of an EEA or Swiss national, resident in the United Kingdom shall be deemed ordinarily resident for the purposes of section 175 of the National Health Service Act 2006.
(2) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.’
This new clause would prevent EEA or Swiss nationals, and their family members, who do not have settled status in the UK from being charged for NHS services.
New clause 42—Immigration health charge—
‘No immigration health charge introduced under section 38 of the Immigration Act 2014 may be imposed on an individual who is an EEA or Swiss national.’
This new clause would prevent EEA or Swiss nationals paying the immigration health charge.
New clause 46—Payment for NHS services—
‘Regulation 4 of the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 does not apply to EEA and Swiss nationals and their family members.’
This new clause would ensure NHS Trusts do not require payment from EEA and Swiss nationals and their family members before providing NHS services.
Stuart C. McDonald
With amendment 37 and new clauses 42 and 46, I seek to provoke a debate about a particularly important and challenging aspect of the trend towards the outsourcing of immigration control and enforcement, namely the role of our national health service. I am trying to push the Government to address certain challenges and problems that have been highlighted by several organisations. I am particularly grateful to Doctors of the World and the National AIDS Trust for supporting the amendment and new clauses.
Maria Caulfield (Lewes) (Con)
The hon. Gentleman makes a valid point. Having worked in the NHS, I know that such checks cause additional pressures. But how does he suggest that the NHS pays for treatment for non-UK citizens? It is a national health service, not an international health service.
Stuart C. McDonald
We could do what we did previously, which was to recover the costs after the event. However, as I say, I have tabled these amendments to spark debate. At the end of the day, if it is a choice between risking people’s lives or even causing death, and risking losing out on certain funds after the event, the second of those is the lesser evil. However, it is a difficult issue; I do not have all the answers as to how we should approach it. As I say, that is why the new clauses and the amendment have been tabled.
Afzal Khan
What would be said if there was a contagious disease and people were not coming to get the help that they needed?
Stuart C. McDonald
The hon. Gentleman makes an absolutely valid point.
I turn to amendment 37, which would prevent the Government from bringing into force those parts of the Bill that subject EEA nationals to the domestic immigration system until EEA and Swiss nationals with immigration permission are exempted from the NHS’s overseas visitors charges. This amendment would mean that all EU migrants with a visa, including temporary workers on short-term visas, are able to receive NHS services free at the point of care. That reflects the current situation of EU nationals living and working in the UK.
The White Paper indicates that EU migrants on short-term visas of 12 months will have no right to healthcare beyond emergency care, and skilled workers and their dependants will be required to pay the immigration health surcharge when making an immigration application to enter or remain in the UK. Good preventive healthcare plays a central role in maintaining a fit and healthy workforce, and the policy to exclude people on short-term visas from all healthcare beyond emergency care establishes a worrying precedent in excluding from NHS services migrants who are legally living and working in the UK.
Those on short-term visas are likely to be in lower-paid jobs and unable to pay for healthcare out of their own pockets. Requiring EU migrants on skilled worker visas and their dependants to pay the immigration health surcharge is unfair and will be cost-prohibitive for some. Payment of the surcharge, which is currently set at £400 per person per year with a discounted rate for students of £300 per year, must be made at the same time as an immigration application, and it has to cover the total cost for the duration of the visa and for all the people named on the application. A person applying for a two-and-a-half-year visa will incur a surcharge of £1,000, on top of any other immigration fees, and a family of four would be required to pay £8,100 for a visa for the same period.
For those on low incomes, the health surcharge will be cost-prohibitive. We are particularly concerned about the impact that the surcharge will have on EU migrants living in the UK when they come to renew their visa, and about the fact that large health surcharge payments will prevent those on low incomes from being able to renew their visa, causing them to lose their lawful stay in the UK. It is also of note that EU migrants who are employed—for example, those on short-term or skilled visas—will be contributing to the NHS through tax and national insurance payments and that, by being required to pay the health surcharge, they will in effect be being charged twice for healthcare.
For those reasons, I have also tabled new clause 42, which would remove the applicability of the health surcharge. The surcharge has doubled this year to what I regard as an unacceptably high level.
Eleanor Smith (Wolverhampton South West) (Lab)
I wish to speak to new clause 12, which states:
“Any EEA or Swiss national, or family member of an EEA or Swiss national, resident in the United Kingdom shall be deemed ordinarily resident for the purposes of section 175 of the National Health Service Act 2006.”
When charging for non-residents was first introduced under section 175, it was not meant to add excess costs for that group of people accessing our healthcare. In 2015, costs were introduced that started at £200 for most applicants and £150 for certain groups—for example, students. The fee has now doubled. That means that a family of four would have to pay about £1,000 each in IHS costs in addition to their visa costs.
I am pleased that the Minister confirmed in November that EU citizens who are resident in the UK before it leaves the European Union in March 2019 will not pay the charge, and that the Government have come to an agreement with Switzerland, Norway, Iceland and Liechtenstein that during the transition period their citizens’ rights will be protected. However, it is still unclear what will happen after the transition period has come to an end in 2021 or in the case of a no-deal scenario, After December 2020, a new visa system will be in place that could mean that EEA citizens and Swiss nationals have to pay the immigration health charge.
It seems to be forgotten that most of the EEA citizens and Swiss nationals in the UK are currently employed and are already paying for the NHS through their taxes. Extending the immigration health surcharge to them would mean that they were being charged double for NHS care, which would seem to me an unfair contribution.
That leads me to the issue of the NHS. More than 60,000 NHS workers are EU nationals and, without settled status, they could face the possibility of paying the increased surcharge as well as for their tier 2 work visa. The new system could add further pressures for the NHS, which is currently struggling to recruit the number of healthcare professionals needed to meet the country’s demand.
Labour’s intention is to level rights up, not down. We hope that, after a new immigration system applying to nationals from across the world is introduced, none will be required to pay these charges.
Kate Green
I wish to speak to amendment 37, which has my support, as do the new clauses in this group. I would like to say a few words about one particular aspect of NHS charging, which is in relation to maternity care. Under the current charging rules, non-urgent care must be paid for in advance, but “urgent” or “immediately necessary” care must be provided whether or not a person can pay in advance. The guidance from the Department of Health and Social Care and the statutory regulations make it clear that maternity care is to be regarded as immediately necessary, so it must not be refused or delayed if a woman is unable to pay in advance, although she will still be charged for it. However, because of confusion about the charging regime and misapplication of the rules, pregnant women who are not UK nationals have already been denied maternity care, told that they must pay in advance of receiving treatment or told that their appointments may be cancelled if they fail to pay. Extending the charging regime to EU nationals, including pregnant women, would multiply such injustices in a system that is already making serious mistakes.
Charges for NHS maternity care start at approximately £4,000 and can rise into the tens of thousands for more complex care for women or additional care for new babies. Those charges are significantly higher than what NHS trusts would normally be paid for providing such care, because the regulations require them to charge 150% of the relevant NHS tariff. In practice, the rules mean that some hospitals have sent bills demanding immediate payment of thousands of pounds from vulnerable post-partum women. Women have received letters threatening referral to debt collectors, local counter-fraud specialists or the Home Office; in one appalling case, a woman was issued a bill of almost £5,000 for treatment following a miscarriage.
Research by the charity Maternity Action has found that the charging regime has resulted in women avoiding essential antenatal care and missing appointments because they fear incurring a debt that they cannot pay or being reported to the Home Office. That includes women with health conditions that require effective management to protect the health of both mother and baby. Antenatal care is intended to pick up and treat problems as early as possible, increasing the chances of a safe and healthy birth. Missing midwifery appointments means that high blood pressure and gestational diabetes are left untreated, the window for HIV prophylaxis is missed and minor infections are allowed to develop into serious health conditions.
Migrant women who are entitled to free NHS care are also affected by charging policies. Maternity Action regularly encounters women, including EEA citizens, who have been wrongly assessed as chargeable and have received bills for their care. In some cases, the women affected by the rules have children and spouses who are British citizens. Surely that was not the intention of the policy.
In December, the royal colleges issued a joint statement calling on the Department to suspend the charging regulations pending a full independent review of their impact on individual and public health. The Royal College of Midwives has expressed
“enormous concern…that vulnerable women are missing out on essential…care.”
Given the harm that charging for NHS maternity care is already causing to women’s physical and mental health, the fact that many women are simply unable to repay bills, the clear lack of regard being given to children’s best interests, the risks to public health and the potential for the charging regime to be extended to all EEA nationals, is it not time to consider the arguments for immediately suspending all NHS charging for maternity care?
Maria Caulfield
Having had experience of looking after migrants in the health service, I have some sympathy with the hon. Lady’s argument, but who will pay for their care? Will it be the UK taxpayer, or will migrants have to make some contribution to their own healthcare needs?
Kate Green
I very much respect the hon. Lady’s expertise in these matters; I also appreciated her important comments during the Committee’s oral evidence sessions. I echo the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Clearly, there is a balance to be struck between the costs to the UK taxpayer and what is right for the health and wellbeing of anyone living in this country, in whatever circumstances. Like him, I would strike the balance on the side of health, wellbeing and the protection of life when we have to make those difficult choices.
As the hon. Gentleman said, there are things that we could do. One possibility, although personally I do not favour it, would be to apply the health surcharge in some circumstances in which it might not otherwise apply. However, the evidence is that because these women are unable to pay the debts anyway, most of the money will in fact go uncollected. The NHS is not really gaining financially. All the charges seem to do is deter women from seeking the care they need for themselves and their babies, and that is a false economy down the line. If the women are legitimately in this country, as they are, the need for further emergency care and primary care will pile up if they have not had the proper antenatal and maternity care that they should have had to meet their best interests and that of their children.
I know that the Minister takes these matters seriously. Will she use her good offices to ask her colleagues in the Department of Health and Social Care to publish the Department’s 2017 review of the impact of amendments to the NHS charging regulations? I am told that it engaged with those involved in the maternity care of women, including the Royal College of Midwives, but the outcome of that review has not been published and placed in front of us. If the Minister can do anything to persuade her colleagues to make that information publicly available, it would be much appreciated.
Afzal Khan
We support the proposals. Overall, the sweeping provisions in clause 4(5) provide limitless scope for the Government to change fees and charges. The immigration health surcharge was already doubled from £200 to £400 a year by the Immigration (Health Charge) (Amendment) Order 2018, which Labour voted against. There is nothing to stop the Government doubling it again. The whole idea of an immigration health surcharge is pretty dubious, because the migrants who are forced to pay the charges are already paying large sums of money in tax and national insurance contributions. Some of them may even be working in the NHS, so they are paying a double tax for a service that they are helping to deliver.
Caroline Nokes
I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments on migrants’ access to healthcare in the United Kingdom. I am also grateful to the hon. Member for Wolverhampton South West for tabling her new clause. Given their similar effects, I will consider them together.
The Government have been very clear in everything we have said since the referendum that, although the United Kingdom will be leaving the European Union, we are certainly not leaving Europe. Our relations with the European Union and the whole of the EEA will continue to be close and cordial. As part of that, immigration from the EEA will certainly continue. We want EEA citizens, who have contributed so much to our society, to continue living and working in the United Kingdom. While they are here, they will of course need access to healthcare. We are fortunate in this country to have a world-class health system, thanks to the NHS. The proposals, in different ways, would exempt EEA and Swiss citizens from the requirement to pay for healthcare in the UK. However, they are unnecessary.
Amendment 37 and new clause 12 are also technically deficient, because they do not reflect the nature of devolved health legislation. Entitlement to free-of-charge NHS care is not, and should not be, based on nationality. It is based on a concept of ordinary residence in the United Kingdom. For EEA nationals, that means living in the UK on a
“lawful…properly settled basis for the time being.”
I thank hon. Members for their comments on specific proposals, and I will make a number of points. Operating fair and proportionate controls on access to the NHS is not about outsourcing immigration control; it is about protecting a vital taxpayer-funded service from potential misuse. The Department of Health and Social Care’s policy of up-front NHS charging for non-urgent treatment for overseas visitors was upheld by the courts in a judicial review last year. Treatment for specified public health conditions, such as the infectious diseases mentioned earlier, is not subject to overseas visitor charges.
The hon. Member for Wolverhampton South West asked whether it was fair that EEA nationals should pay the health charge, given that they would pay for the NHS via taxes and national insurance contributions. Whether EEA nationals pay the health charge following the introduction of the new skills-based immigration may depend on the outcome of our negotiations with the EU about our future relationship. The health charge currently applies only to non-EEA temporary migrants. Although some non-EEA nationals will pay tax and national insurance contributions, they will not have made the same financial contribution to the NHS that most UK nationals and permanent residents have made or will continue to make over the course of their working lives. It is therefore fair to require them to make an up-front and proportionate contribution to the NHS.
When we debated this in Committee some months ago, the issue of the level of contribution was raised, and it has been again this afternoon. The Department of Health and Social Care undertook a careful study with NHS England of the NHS resources that temporary migrants to this country generally used over the course of a year. It came out in the region of £470 per individual. I hope that hon. Members will note that the immigration health charge is set below that level at £400 per person, or the reduced rate of £300 per year for students and those on youth mobility schemes.
The hon. Member for Stretford and Urmston raised maternity care. The Department of Health and Social Care is responsible for guidance on overseas visitor charges in England. Maternity care is always urgent and must never be withheld pending payment. That is clear in the Department of Health and Social Care’s guidance. However, charges are applied to protect maternity services for those entitled to live in this country.
The hon. Lady asked whether I would speak to DHSC Ministers about the review of charges, which I understand has not yet been published. I am happy to make that representation to my fellow Ministers.
Maria Caulfield
I thank the Minister for giving way; I know I have made a number of interventions now. Does it sound fair that Opposition Members are asking low-paid UK taxpayers to underpin the NHS services for EEA migrants, given that they often struggle to pay their tax and national insurance? Does she agree that, given that the health service is struggling to pay for drugs such as Orkambi for cystic fibrosis patients, it cannot afford to take on free healthcare for EEA nationals too?
Caroline Nokes
My hon. Friend makes an important point, which underpins the immigration health surcharge. The Government took the view, and in successive general elections made it very clear, that we would continue to implement and, indeed, increase the immigration health surcharge. As I said, this is a matter for EEA nationals and is still for negotiation as part of our future relationship.
Afzal Khan
Does the Minister agree that it is also true that EU citizens are more likely to provide health services than receive them, and are more likely to be young and therefore need fewer NHS services?
Caroline Nokes
I thank the hon. Gentleman for his comments. I cannot comment on the demographics of EU citizens. We know that those who are the most mobile in the labour force tend to be the youngest. He is right to comment on the valuable contribution that many EEA citizens make to our national health service. It was argued with me in the Chamber some months ago that there was a Brexodus of EU nationals from our health service, and I was assured by the then Minister in the Department of Health and Social Care that there are now 4,000 more EU nationals working in our NHS than there were at the time of the referendum in 2016.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Just a small point on the statistics that the Minister cited. In the last year, there has been a 90% drop in the number of nurses coming from the EU to work in the UK.
Caroline Nokes
That gives me a marvellous opportunity—I might have to look at my hand to check the statistics—to say that the net migration statistics came out this morning; very hot off the press. Net migration of EU citizens to this country is still positive. The hon. Gentleman makes the point that there has been a drop-off, but we have seen—this gave me significant reassurance—that among the EU citizens who have been living and working here and exercising their right to free movement over the past year or so, the level of emigration is absolutely static. That gave me at least one statistic to cite, which is that 57,000 more EU citizens have come here over the past 12 months than have left.
Paul Blomfield (Sheffield Central) (Lab)
The Minister is, of course, right about the number that she has read from her hand—I have it on my phone as well—but she will know that that number is a 10-year low, and that there has also been a 14-year high in non-EU net migration. Overall, net migration has changed very little, and I wonder where that fits into the Government’s narrative of taking back control of our borders.
Caroline Nokes
I emphasise the points that I made following the publication of the net migration statistic. A significant proportion of the increase that we have seen is made up of students coming from outside the EU, including significant increases in the numbers of Indian and Chinese students coming to our world-class universities. The hon. Gentleman will know that there is no limit to the number of tier 4 visas that we are happy to issue to genuine students and, in the case of universities, there has been a 10% increase in the past year. That puts the figure in the region of 26% higher than in 2010-11.
In addition—this is very topical in the context of this amendment, since we are discussing health; I am sure this gets me back in order, Sir David—the hon. Gentleman will remember that in July of last year, we lifted the cap on doctors and nurses being able to come in under the tier 2 regulations. There has been a significant increase in the number of doctors and nurses—those working in the health sector—making applications under that system. While I acknowledge the importance of working hard to make sure that we have adequate numbers of UK-trained doctors and nurses, that was a very popular move. It was impressed on us, not only by many political parties but by those in the professions, that it was important that we lift the cap on tier 2 visas for those who work in the NHS.
EEA and Swiss nationals and their family members who are, or become, ordinarily resident in the UK are currently fully entitled to free NHS care, in the same way as a British citizen who is ordinarily resident. That position will not change, regardless of whether the UK leaves the EU with or without a deal. The Government are also currently working to reach agreement at EU level, or through agreements with relevant member states, to continue the reciprocal healthcare arrangements that are already in place and are so beneficial to UK and EU nationals alike while we negotiate our future relationship. We are making progress: we have already agreed reciprocal arrangements with Switzerland, Iceland, Liechtenstein and Norway. Those arrangements safeguard healthcare for the hundreds of thousands of UK nationals who live and work in EU countries, or who require emergency medical treatment each year while on holiday in Europe. They also ensure that EU citizens who are not ordinarily resident in the UK—primarily those on holiday—can receive reciprocal healthcare here.
It is also worth reflecting on the fact that both health and charging for health services are devolved matters. With the exception of new clause 42, these amendments seek to amend devolved health policy. However, the health Ministries in Scotland, Wales and Northern Ireland and the Department of Health and Social Care in England are responsible for setting their own charging policy and making their own regulations.
Nick Thomas-Symonds
I am glad that the Minister has come to the topic of devolution of the health service in Wales. It was, of course, somebody Welsh who founded the national health service—Aneurin Bevan—and on the subject of health tourism, which has been raised by the hon. Member for Lewes, Aneurin Bevan said:
“One of the consequences of the universality of the British Health Service is the free treatment of foreign visitors. This has given rise to a great deal of criticism, most of it ill-informed and some of it deliberately mischievous…The fact is, of course, that visitors to Britain subscribe to the national revenues as soon as they start consuming”.
This was, he said, an area in which
“generosity and convenience march together.”
Is that not true?
Caroline Nokes
I am not going to criticise the founder of the national health service, who made a huge contribution to our national life in so doing, but it is important to reflect on the fact that in successive general elections people have supported the principle that those who are here on temporary visas should contribute. As I was saying, the devolved authorities do of course have the ability to set their own charging policies and make their own regulations.
Stuart C. McDonald
This has been a very helpful debate on whether and how we go about charging for NHS services. I am grateful to other hon. Members for their contributions. It is incumbent on all of us to take very seriously the concerns that have been raised by outside organisations that are experienced in the field of healthcare. It is incumbent on all of us as MPs, but also on the Minister and the Home Office, to make sure that the concerns are not just ignored and forgotten. I hope that we all treat them seriously going forward.
I am grateful to the Minister for undertaking to speak to the Department of Health and Social Care about the report that has been flagged up. I will take on board all the drafting tips that she helpfully provided. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Paul Maynard.)