Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Tuesday 6th October 2020
(4 years ago)
Lords ChamberImmigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-R-II Second marshalled list for Report - (30 Sep 2020)
17:25 - Division conducted remotely on Amendment 27 - Ayes: 312 / Noes: 211 - Amendment 27 agreed.
The Deputy Speaker (Lord Haskel) (Lab)
I will call Members to speak in the order listed in the annexe to today’s list. Interventions during speeches, or before the noble Lord sits down, are not permitted, and uncalled speakers will not be heard. As this is Report, other than the mover of the amendment or the Minister, Members may speak only once in each group. Short questions of elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk.
The groupings are binding, and it will not be possible to degroup any amendment for a separate debate. A Member intending to press an amendment already debated to a Division should already have given notice in the debate. Leave should be given to withdraw an amendment. When putting the question, I will collect the voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make this clear when speaking on the group.
During the debate on Amendment 20, the noble Lord, Lord Ramsbotham, indicated that he intended to press Amendment 23, which was grouped with it, to a Division. I will therefore begin by inviting the noble Lord, Lord Ramsbotham, to move this amendment formally. No further speeches will be heard on this amendment. I will now put the question. Does the noble Lord, Lord Ramsbotham, wish to move Amendment 23 formally?
The Deputy Speaker (Lord Haskel) (Lab)
We now come to the group consisting of Amendment 24. Once again, I remind noble Lords that Members other than the mover or the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make this clear in the debate.
Amendment 24
“Recourse to public funds
(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052);(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments repealed by Schedule 1; or(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the European Union (Withdrawal) Act 2018, to be recognised and available in domestic law after exit day.(2) Regulations under section 4(1) may not be made until the Government has brought forward legislative measures to ensure that P can access social security benefits, where P is habitually resident, including repealing or amending the following provisions insofar as they relate to P—(a) section 3(1)(c)(ii) of the Immigration Act 1971;(b) section 115 of the Immigration and Asylum Act 1999;(c) any provision in subordinate legislation, which imposes a “no recourse to public funds” condition on grants of limited leave to enter or remain; and(d) any other enactment or power exercised under any other enactment, which makes immigration status a condition to access social security benefits.”Member’s explanatory statement
This new Clause seeks to restrict measures prohibiting access to public funds.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, Amendment 24, which appears under my name, is one of a suite of amendments that I moved in Committee. I continue to stand by all of them, but in achieving a disappointing response from the Minister then, I have restricted myself to just one. I record now, as I did then, the role of Liberty in working on all of them. When I saw that no one else had brought forward a similar amendment, I felt that this issue had to be raised in any immigration Bill.
This amendment is about “no recourse to public funds”. It is something I find myself talking about so often that the phrase rolls off my tongue like poetry, but of course this is the stuff of nightmare, of personal desperation and great suffering. It is the situation of the victim of domestic violence facing the choice between homelessness and penury for herself and her children and the very real danger of being maimed or killed if she stays. It is the situation of the child going hungry, suffering the miserable, desperate pangs that prevent concentration or hope, when his peers get free school meals.
I assume there is no Member of your Lordships’ House who would deny the human right to life, but “no recourse to public funds” denies access to the most basic essentials. People are forced to rely on the fragile, overstretched resources of specialist charities, and people fall through the cracks of that hopelessly underresourced, fragile net of support.
I fear that in this Bill, the Minister and I are trapped on a merry-go-round. I believe I can foresee the response I am likely to receive: that this is discriminatory if applied only to people newly covered by immigration law, EU and EEA citizens, and not to everybody. At the risk of sounding like a recording, I want this to apply to everybody. The Government could and should end any application of the “no recourse to public funds” rule. In this amendment, I have tried to save as many as the rules of the Table Office will allow me. Saving some people from being penniless and homeless, from hunger and abuse, and perhaps from death, is better than saving none. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I thank the noble Baroness, Lady Bennett, for tabling Amendment 24. In supporting it, I will not repeat the evidence I rehearsed in Committee showing the damaging impact of the “no recourse to public funds” condition on children denied free school meals, in particular—she mentioned that particular group. But I will draw attention to a national survey published since then by the Children’s Food Campaign and Food Active, which found that nine out of 10 parents agreed that eligibility for free school meals should apply regardless of immigration status.
I also want to return to some specific points I raised in Committee. First, I would like to thank the noble Baroness the Minister for responding to my question about data in her letter. I hope the department will follow this up with the Children’s Society, to see how it might improve the data so as to provide a better indicator of the levels of hardship created and the demographics of the groups worst affected.
In Committee, the noble Baroness the Minister referred to what I said about the temporary extension of eligibility for free school meals to support families with NRPF. But she did not acknowledge the point I made that this was a partial concession covering only some NRPF families, nor that the concession has now been withdrawn. I asked what possible justification there could be for this, and I quoted from a letter from 60 organisations to the Education Secretary, which among other things noted that these children will face having to make up half a year of lost learning on empty stomachs. Could the noble Lord the Minister who is speaking today respond to that point now and, at the very least, commit to taking it up with colleagues in the Department for Education?
According to a briefing from the Children’s Society and others, the Government have indicated that there will be a full review of the free school meals system and that that is needed before the extension to NRPF families can be made permanent. But why? Why does it need a full review? Hunger cannot wait for a review. What is the scope and timetable of this review? If the Minister cannot answer that now, please could it be covered in a subsequent letter?
The Minister did not respond either in Committee or in her letter to a specific question that I posed, echoing the Work and Pensions Select Committee. I asked for a definitive clarification as to whether local welfare assistance funds counted as public funds for these purposes. They act as a kind of safety net below the safety net—a rather ragged safety net below the safety net—but if even those are not available, it makes life that much harder for this group. Again, if the Minister does not have the answer, could it please be covered in a subsequent letter?
The comprehensive improvement plan, published last week in response to the Windrush Lessons Learned Review, identified the NRPF as one of six primary streams in the compliant—aka hostile—environment. It is interesting that the Home Secretary, as far as I can see, did not refer to this rather important plan of the Home Office in her speech on Sunday at the Conservative Party conference. But in contrast to the plan’s emollient tone, while talking about compassion and so forth, we have learned in the media—and I know that the Minister will say that he cannot respond to leaks, but it did not seem like a leak; it seemed like it had been deliberately placed—that there is a push by Downing Street to
“radically beef up the hostile environment in 2021.”
If this is true, it makes a mockery of the review of the hostile/compliant environment detailed in the Home Office’s plan. Can the Minister provide a categorical denial that the intention is not to radically beef up the compliant/hostile environment, because that certainly was not what Wendy Williams was calling for?
I refer back to the exchange that I had in Committee with the Minister on the Windrush Lessons Learned Review—and I thank her for the offer of the meeting. It seems to me from the comprehensive improvement plan that the review of the hostile/compliant environment will not include questioning its legislative underpinnings. For instance, it will not question the right-to-rent legislation itself, but simply how it is being implemented. What if the review concludes that the legislation itself is not proportionate in meeting the Government’s stated aims, which is part of what Wendy Williams’s recommendations said it should be looking at? I would be very happy if the Minister responds to say that I have misinterpreted what the plan says, and that the terms of reference are that it is open to those reviewing the hostile/compliant environment to question the legislation, if that is where the evidence takes them. Surely—going back to my first point—the denial of free school meals to hungry children is not proportionate.
Baroness Smith of Newnham (LD) [V]
My Lords, I support the amendment in the name of the noble Baroness, Lady Bennett. The concept of no recourse to public funds is one that causes significant difficulties to a small number of people, but for those individuals it can be very significant. Quite how many people fall under this provision is perhaps a little bit unclear. I cite a paper on no recourse to public funds written by Professor Catherine Barnard, a colleague at Cambridge University—and I declare it as an interest that she is a colleague. She quotes Stephen Timms at the Liaison Committee in May raising with the Prime Minister the issue of destitution as a result of no recourse to public funds. The Prime Minister is reported to have said:
“You have raised a very, very important point if a condition of their leave to remain is that they should have no recourse to public funds. I will find out how many there are in that position and we will see what we can do to help.”
Does the Minister know whether the Prime Minister has yet been able to answer that question of how many people fall into this category? Will he tell us what plans the Prime Minister has to help individuals who have no recourse to public funds? I suspect that his briefing does not include answers to those questions, so I confine myself to reiterating the concerns raised by the noble Baronesses, Lady Bennett and Lady Lister of Burtersett. That is really to say that, while ideally the provision for no recourse to public funds should be looked at in its entirety, in the confines of this Bill we understand that it can only be the case for EU nationals. However, in the context of the Covid crisis, it has become clear that individuals can face very significant difficulties that are not covered by the normal provisions for seeking benefits precisely because they fall under this condition of no recourse to public funds. Will the Government think again on this issue? It relates not to people who are coming to seek benefits, who simply say that the United Kingdom is a country where they think they are going to be able to benefit from the system. It rather relates to individuals who are already here, exercising their rights as EU nationals. It is a finite number of people, and surely they deserve our help and a degree of generosity.
Baroness Neville-Rolfe (Con)
My Lords, I rise to express concern about Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle. She has highlighted some hard cases in the cause of her apparently wide-ranging proposed new law. That is an approach that I always discourage. I think legislation of this kind has to be carefully thought about, assessed for cost and consulted on.
In Committee, the main focus of amendments on this issue was to seek greater support from public funds during coronavirus. The Minister explained that some of the Government’s coronavirus measures—quite generously, one might say—applied to those with no recourse to public funds, who are the subject of the amendment of the noble Baroness, Lady Bennett.
I believe that migrants coming into the UK should be able to maintain and support themselves and their families without posing a burden on our hard-pressed benefit system. I do not know much about the detail of the arrangements for prohibiting access to public funds, but I know that taxpayers already foot large bills for lawyers to prioritise immigrants’ needs and to block the deportation of those who do not have the right to remain.
We cannot introduce an immigration system, as posited here, that has the effect of attracting migrants—whether from the EU, which is today’s subject, or elsewhere—for welfare benefits and not for work. This will not win the support of UK citizens who are struggling to make ends meet and are facing job losses and fiscal deficits as a result of the coronavirus crisis. In short, those who are, in reality, economic migrants should be contributors to the public purse, as I think many are. I hope that the House will reject this amendment.
Baroness Hamwee (LD)
My Lords, in replying to this and the other amendment on no recourse to public funds in Committee, the Minister, the noble Baroness, Lady Williams, said, according to Hansard, that Home Office analysts were looking at the data to determine what figures could be “reduced”. I would like to think that that might have been about reducing the numbers of people with no recourse, but I suspect that it was a misprint for “produced”. The noble Baroness is nodding.
Almost all the speakers have lit on the issue of lack of data. It occurs to me that a lack of data indicates something of a shortfall in interest among the policy makers on the impact of the policy that they are making. Like much that relates to the immigration system, this amendment is about humanity and common sense: common sense because of the important public health argument about ensuring that people are not prone to disease that can be prevented and that children are fed well enough to be educated and to grow into good citizens, and humanity for obvious reasons.
Hard cases are not to be excluded when we think about policy; they have to be considered to bring attention to bad law. I do not think that the taxpayer is a single cohesive figure. Taxpayers have a wide range of views and there are quite a lot among us who would like to see our taxes spent differently and better. If that means more tax being raised, that is a price that we understand we have to pay.
Lord Rosser (Lab) [V]
My Lords, Amendment 24 in the name of the noble Baroness, Lady Bennett of Manor Castle, would prevent regulations being made under Clause 4 until the Secretary of State had provided legislative measures to ensure that EEA and Swiss nationals in the UK are not subject to no recourse to public funds. This includes repealing or amending relevant no recourse to public funds provisions in the Immigration Act 1971 and the Immigration and Asylum Act 1999. I assume this means any regulations under Clause 4 and not just regulations relating to no recourse to public funds.
We had an amendment in Committee that would have had the effect of not applying the no recourse to public funds rules during the current Covid-19 pandemic, and then until such time as Parliament decides. To keep the amendment within the scope of the Bill it applied only to EEA and Swiss nationals. We have been calling since April for no recourse to public funds to be suspended for the duration of the coronavirus crisis. We asked the Government to lift no recourse to public funds as a condition on a person’s migration status to ensure that nobody was left behind in the public health effort undertaken in the fight against the coronavirus. In June, the Home Affairs and Work and Pensions Select Committees recommended that the Government should “immediately suspend NRPF” for the duration of the pandemic on public health grounds. The Work and Pensions Committee said:
“As a result of the no recourse to public funds condition, many hardworking and law-abiding people are being left without a social safety net and at risk of destitution and homelessness.”
Our amendment found no favour with the Government —as, indeed, may prove to be the case with every amendment on this Bill, with the exception of perhaps just one. As set out in Hansard, I asked—as did my noble friend Lady Lister—for some numbers in relation to no recourse to public funds. The Minister said they were not part of published statistics, but that Home Office analysts were looking at the data to determine what figures could be produced. As has been pointed out by the noble Baroness, Lady Hamwee, it said “reduced” in Hansard, but it has now been confirmed that it should have said “produced”. Whatever the situation, it would be very helpful if the Minister could say exactly when the Home Office analysts expect to complete the exercise that they are undertaking in relation to figures, information and data available.
This amendment goes further than our amendment in Committee on no longer applying NRPF, in that it does not relate only to the period of the pandemic and does not leave it for Parliament to decide if and when its terms are no longer to apply. Like the noble Baroness, I await the Government’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank the noble Baroness, Lady Bennett of Manor Castle, and all other noble Lords for their contribution to this debate. I completely understand the concern that they have expressed for the welfare of people with no recourse to public funds, especially during the current pandemic. As the noble Baroness, Lady Hamwee, says, it is a matter, first and foremost, of humanity, but the Government cannot accept this amendment.
As noble Lords will be aware, the Government’s general expectation is that people immigrating to the United Kingdom should be able to maintain and accommodate themselves without recourse to public funds. That reflects the importance of maintaining the confidence of the public in general that immigration overall brings benefits to our country, as it certainly does, rather than costs to the public purse. Those restrictions, which have been in place under Governments of all political hues for many years, are an important plank of immigration policy designed to assure people that public funds are being protected for those who are normally or habitually resident in the UK, reflecting the strength of their connection to the United Kingdom. This includes those with indefinite leave to remain, refugees, protected persons and people granted discretionary leave.
I acknowledge the level of concern that has been expressed today, and, indeed, in Committee, particularly regarding the deprivation of children. The noble Baroness, Lady Lister of Burtersett, asked a number of questions about children. She generously suggested that I could write to her on the timetable for the review and other points, and I am very happy to commit to do that so she can have the fullest possible answer. I will certainly ensure that the point she raises about free school meals has been heard by the Department for Education. I am sure it has been but I will take that forward and make sure it is reinforced. On free school meals generally, they are not listed as public funds under immigration legislation; they are available to the most disadvantaged pupils, including asylum-seeking children whose parents or guardians receive support under Part 6 of the Immigration and Asylum Act. I hope that that gives her some reassurance in the meantime, but I will certainly take the point forward, as she asks.
The noble Baroness will not be surprised that I cannot comment on leaks, so I shall not, whatever their suspected provenance. I can point her to the words of my right honourable friend the Home Secretary, both in her speech to the Conservative Party conference over this weekend—which I am glad the noble Baroness noted was marked by its compassion—and also in a number of Statements she has made in another place about the Wendy Williams review, committing herself and the Home Office to taking on board all the recommendations that Wendy Williams had made and shifting the culture of the Home Office. I would direct the noble Baroness to those words for the view of the Home Office.
Regarding children more generally, where a child is in need, local authorities are already required to provide support through Section 17 of the Children Act 1989. Recognising the potential financial impact on local authorities at the moment, the Government have allocated more than £4.3 billion to those in England, and additional funding under the Barnett formula to the devolved Administrations, to help them respond to the pressures of Covid-19 across all the services they deliver, including services helping the most vulnerable people. The funding will mean that councils can continue to provide vital services, including adult social care and children’s services. To ensure that children who have been affected by the no recourse to public funds condition are protected from destitution, as we pointed out in Committee, people with leave under the family and human rights routes can apply to have this condition lifted through a change of conditions application. Change of condition decisions are being prioritised, at this difficult time, and dealt with compassionately. The change of conditions team in UK Visas and Immigration is working through applications as quickly as possible and is exercising flexibility when seeking additional evidence, which is often needed, to help reduce unnecessary delays. Additional staff have also been trained to work on these cases in response to the increased demand and urgency during the pandemic.
The noble Lord, Lord Rosser, and the noble Baroness, Lady Hamwee, asked about the statistics that would be produced—not “reduced”—on this. The Home Office chief statistician recently replied to a letter from the UK Statistics Authority on the subject. He made clear in that letter why it is not practical for the Home Office to produce an estimate of the total population subject to no recourse to public funds at any one time. However, the Home Office has acknowledged that there is a clear public interest in publishing the number of applications to have the restriction lifted by making a change of conditions application. I am pleased to say that these data have now been published, and will be released as part of the regular migration transparency data henceforth.
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, I have had no requests to speak after the Minister, so I call the noble Baroness, Lady Bennett of Manor Castle.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I thank the noble Lord for his response, although I am disappointed, but not surprised, by the direction of his comments. I apologise for the misidentification of the respondent. I think other noble Lords will join me in being pleased that the Home Office will produce these figures, as raised by multiple noble Lords. We will all look forward to seeing and scrutinising those.
I must thank the noble Baroness, Lady Lister, for her powerful and detailed analysis of the Government’s current position and their review plans, and I note her overview, “Hunger cannot wait for a review”. As the noble Baroness, Lady Smith, referred to, we are talking about destitution. Everything is in the context of Covid-19 now, and it seems that at the Tory party conference today the Prime Minister suggested that is going to be the case for the next year.
The noble Baroness, Lady Neville-Rolfe, asked about the cost of this amendment. I would say, some things are priceless: ensuring that we do not see Victorian conditions of destitution in the UK in 2020 is something we should seek to deliver with every sinew, as human beings. She referred to the bills for immigration matters—for people exercising their legal rights, that means getting what the law entitles them to. I note that the noble Baroness, Lady Lister, cited figures showing that the British public overwhelmingly do not want children to go hungry. That is what we are talking about here; as the noble Baroness, Lady Hamwee, said, this is about humanity.
I note the amendment in Committee that the noble Lord, Lord Rosser, referred to, which is something we could go back to in the context of Covid-19. Noble Lords will have had heard me refer in other cases to universal basic income as the best solution of all—we could then ensure that nobody was left stranded or left with nothing.
I understand that the restrictions on scope have not allowed me today to make this the amendment I would like it to be on no recourse to public funds. On this occasion I will not be pushing it to a Division, but I fully expect to take a different approach in future.
The Deputy Speaker (Lord Haskel) (Lab)
We now come to the group consisting of Amendment 27. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in the debate.
Amendment 27
Lord McColl of Dulwich
“Grant of leave to remain for confirmed victims of modern slavery who are EEA nationals
(1) Immigration rules must make provision for leave to remain in the United Kingdom to be granted to a person aged 18 years or over when—(a) the person is either a Swiss national or an EEA national who is not also an Irish citizen; and(b) there has been a conclusive determination that the person is a victim of slavery or human trafficking; and(c) subsection (2) applies and subsection (8) does not.(2) This subsection applies if the person meets one or more of the following criteria—(a) leave is necessary due to the person’s circumstances, including but not restricted to—(i) the needs of that person for safety and protection from harm including protection from re-trafficking;(ii) the needs of that person for medical and psychological treatment;(b) the person is participating as a witness in criminal proceedings; (c) the person is bringing any civil proceedings including pursuing compensation.(3) Where the person is receiving assistance from a support worker, the recommendations of the support worker must be considered in assessing that person’s circumstances under subsection (2)(a).(4) Immigration rules must provide for persons granted leave to remain in accordance with this section to have recourse to public funds for the duration of the period of leave.(5) Immigration rules must provide for leave to remain to be granted from the day on which the conclusive determination is communicated to a person for at least 12 months.(6) Immigration rules must allow a grant of leave to remain under subsection (5) to be extended subject to the requirements of subsection (7).(7) In determining whether to extend a grant of leave to remain under subsection (6), and the period of time for which such extended leave should be provided, the person’s individual circumstances must be considered, and whether that person meets one or more of the criteria in subsection (2).(8) A person may be refused leave to remain if—(a) the person is a sexual or violent offender; and(b) the Secretary of State considers that the person poses a genuine, present and serious risk to members of the public.(9) If subsection (8) applies, the Secretary State must ensure the person affected is given reasons for the refusal in writing.(10) In this section—“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Council of Europe Convention on Action against Trafficking in Human Beings;“conclusive determination” means a determination that a person is, or is not, a victim of slavery or human trafficking when the identification process conducted by a competent authority concludes that the person is, or is not, such a victim;“EEA national” means a national of a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 (as it has effect from time to time);“immigration rules” in this section has the meaning given by section 33 of the Immigration Act 1971;“sexual or violent offender” means a person falling within the definition of a “sexual or violent offender” in section 327 of the Criminal Justice Act 2003 (section 325: interpretation) or who has been convicted of an offence under the law of another country which would have constituted an offence falling within those subsections if it had been done in England and Wales;“victim of slavery” and “victim of human trafficking” mean a person falling within the definition of a “victim of slavery” or “victim of human trafficking” in section 56 of the Modern Slavery Act 2015 (section 56: interpretation).”
Lord McColl of Dulwich (Con) [V]
My Lords, I am very pleased to speak to Amendment 27 in my name and that of the noble Lords, Lord Kennedy and Lord Alton, and the noble Baroness, Lady Hamwee. I would like to thank my co-signatories for their support, and that of the noble Lord, Lord Randall, who would have been here to speak in support of my amendment had it been reached yesterday, but is unable to join us today. I would also like to thank the former Conservative Party leader, the right honourable Sir Iain Duncan Smith, for his support for my amendment, expressed in our joint PoliticsHome article yesterday. I should say at the outset that I very much hope that the Government will accept it, but if they do not it is my intention to test the opinion of the House.
I make no apology for raising once again the difficult situation that confirmed victims of modern slavery will face as a consequence of the current drafting of the Bill before us. By “confirmed victims”, of course, I mean those who have been through the national referral mechanism and received a positive conclusive grounds decision that they are indeed victims of modern slavery.
I am grateful to my noble friend Lord Parkinson, who responded to my Amendment 7, and to my noble friend Lady Williams, who responded to Amendment 81. The Government have made all the right noises about protecting trafficking victims, but it is clear, as I shall explain, that in future victims of modern slavery who come from EU countries will be significantly worse off than they are currently.
As a firm supporter of Brexit and advocate for victims of modern slavery, I know that, while free movement must end, the restoration of our sovereignty does not require us to create a situation in which the effective rights of some confirmed victims of modern slavery are diminished. Parliamentary sovereignty actually gives us the opportunity to improve provisions for all victims of modern slavery if we want to. It does not necessitate that we should acquiesce to the effective erosion of the rights of any confirmed victims. That we should inaugurate the Brexit era by doing so for EEA national victims is, in my judgment, unthinkable.
One of the main ways in which a confirmed victim of modern slavery who is an EEA national can seek help for their recovery today is through their treaty rights to remain in the UK and access public funds: in other words, to get benefits and access to local authority housing. In the event that an EU citizen is unable to exercise their treaty rights, perhaps because their ID documents were taken from them by the traffickers, or they have no paperwork to evidence the work they were doing while being exploited—for those exploitations, by their very nature, do not meet the requirements—they have the second fallback option of applying for what is known as discretionary leave to remain.
At the end of the transition period, and once any opportunity to apply for settled or pre-settled status has passed, victims of human trafficking who are EEA nationals will be worse off because they will lose one of the key avenues to support that is available today—exercising their treaty rights—and that will be replaced by nothing.
The confirmed victim will simply be left with the option of applying for discretionary leave to remain. This may not matter if there were a statutory basis for granting discretionary leave, with statutory criteria to make up for the loss of the opportunity for confirmed victims to access support through their treaty rights.
Discretionary leave is only given on a discretionary basis to confirmed victims in very special circumstances set out in the guidance, when they are not eligible for any other form of leave such as asylum or humanitarian protection. The criteria are that a victim is assisting police with investigations into trafficking or modern slavery, that there are compelling personal circumstances which mean the victim needs to stay in the UK, or that the victim is making a claim for compensation against their traffickers and needs to remain in the UK to pursue that claim.
As a Minister said in 2017, discretion to grant leave to remain has been considered as “exceptional”. That might have been acceptable when EU citizens had an opportunity to access treaty rights, but they will no longer be able to do so and it is unlikely that EU victims will be considered for asylum in the future.
In order to really understand this effective erosion of the rights of confirmed victims of modern slavery who are EEA nationals, it is also important to consider their lot in the wider context of that of victims who are non-EEA nationals. Many non-EEA nationals will have the option of applying for asylum, which, as I said, will not be open to EEA nationals; some will be granted humanitarian protection and the remainder will be automatically considered for discretionary leave. Given these other routes, it may not be surprising that discretionary leave has been considered “exceptional” for non-EEA victims as well.
Internal Home Office data, reported to the House of Commons Work and Pensions Committee in 2017, showed that just 12% of all victims of modern slavery were given discretionary leave in 2015. Of these, 52 cases were EEA nationals and 71 non-EEA nationals. On 24 September, the Government confirmed that they do not have current data in a reportable form for the different immigration outcomes for victims of modern slavery. This lack of data begs the question as to how the Government will measure the impact of changes in immigration policy on victims of modern slavery if there is no baseline from which to measure.
In July, the Centre for Social Justice, published a report on modern slavery, It Still Happens Here: Fighting UK Slavery in the 2020s. It states:
“For many, having no recourse to public funds poses further barriers to moving people on safely, putting victims at risk of homelessness and destitution, and making it more likely that they will fall back into exploitation and trafficking.”
Lord Alton of Liverpool (CB)
My Lords, I am very happy to be a co-signatory to Amendment 27, tabled by the noble Lord, Lord McColl, along with the noble Lord, Lord Kennedy of Southwark, and the noble Baroness, Lady Hamwee. I remind the House of my non-pecuniary interest as a trustee of the anti-trafficking charity, Arise Foundation.
Characteristically, at midnight last night, the noble Lord, Lord McColl, who is in his 88th year, was waiting to move this amendment. If he had been required to, he would have stayed all night, such is his commitment to this cause. I admire him greatly for that. Over several decades, I have been truly fortunate to get to know the noble Lord. I have often found myself on the same side of arguments and deeply admire him on many fronts, not least in the use of his skills as a surgeon in life-saving and life-changing work on the Mercy Ships and his indefatigable efforts to raise in the House the plight of victims of modern slavery. It was also good to see the article on PoliticsHome yesterday by the noble Lord and the right honourable Sir Iain Duncan Smith MP setting out the case for this amendment.
In 2015, I participated along with many other noble Lords throughout the debates on the Modern Slavery Act and warmly congratulated the then Home Secretary, Theresa May, on pioneering with great skill and determination world-class legislation, a rarity in enjoying bipartisan and bicameral support. Following our debate in Committee on 16 September, I sent our debate on the noble Lord’s earlier amendment to Lady May, as she now is, and received a warm response encouraging us all to continue to champion and speak up for victims of modern slavery.
It has been deeply shocking for us all to see the way in which human traffickers have been fuelling the migrant crisis in Calais, Dunkirk and Zeebrugge. We have heard in our debates on amendments to this Bill about how young children have been exploited, used as pawns in a lucrative and sometimes deadly trade. The House will recall that it is less than 12 months since the deaths of 39 Vietnamese people trafficked into Tilbury. I was particularly pleased to hear what the noble Baroness, Lady Williams of Trafford, said yesterday in your Lordships’ House about what she and the Home Secretary, Priti Patel, are determined to do to end this murderous trade in human misery.
No one can doubt the vulnerability of victims of trafficking and modern slavery by those who manipulate and exploit them. The Government are right to accept that other vulnerable groups such as refugees have conferred upon them an immigration status that recognises their vulnerability. When someone is recognised as a refugee in the UK, they are offered an initial period of five years’ leave to remain. That is not the case for victims of trafficking. Confirmed non-EU victims of modern slavery are able to apply for asylum, but for completely understandable reasons this option has not been open to EU nationals. That is what this amendment addresses.
After 1 January, EU victims who are trafficked into the UK will not have any free movement rights and, unless the rules change, will not be able to apply for asylum. Their immigration options are therefore slim. I am sure that the Minister will respond by confirming that victims of modern slavery are able to apply for discretionary leave to remain. Currently, non-EU nationals are automatically considered for this discretionary option if no other immigration path is available; EU nationals are not.
Looking into the background for discretionary leave to remain, I realised that the facts of who the individuals are who get such leave, and why, are opaque—to put it mildly. The Home Office has published guidance on when a victim of trafficking can be granted leave to remain. The guidance is totally discretionary and sets out three criteria on which leave to remain can be given. A person may get leave to remain, first, if they are seeking compensation for their exploitation or, secondly, if they are assisting police with criminal investigations. The third criterion is defined as “personal circumstances”. The data on how many individuals receive such discretionary leave and under which of those criteria is far from clear.
In 2017, the then Home Office Minister wrote to the noble Lord, Lord Field, when he was Member of Parliament for Birkenhead. What a pleasure it was to be here today when the noble Lord took his seat; I know that he will bring great commitment to the fight against human trafficking during his time in your Lordships’ House. In that letter, the Minister made some clear statements that DLR was the last resort and given only when there are “exceptional or compelling reasons”. Since then, no DLR data has been published in response to multiple Parliamentary Questions. This point is raised in the report of the organisation, After Exploitation, entitled Hidden Futures, published on 27 September. The report demonstrates that the Government have multiple opportunities to provide the data on the immigration outcomes of victims of trafficking. Only last week, on 29 September, the Government responded to a Parliamentary Question in another place by the Member of Parliament for Nottingham North, saying:
“Numbers and reasons for grants of discretionary leave to remain to victims of modern slavery do not currently form part of modern slavery published statistics.”
Less than a week earlier, on 24 September, the Government said that the data was not held in a reportable format. It begs the question: why not? There is considerable confusion about the immigration outcomes for victims of modern slavery and even about whether there is any data that would give such clarity.
Notwithstanding the Government’s failure to be forthcoming and transparent on this issue, in 2019 the British Red Cross was able to get information through freedom of information requests about the grants of discretionary leave to remain and it published in its report, Hope for the Future, some of its findings. These suggest that between just 8% and 9% of all victims of modern slavery were granted leave to remain between 2015 and 2017. Given the small numbers granted DLR, which the noble Lord, Lord McColl, referred to, and the fact that the individuals who are vulnerable enough to be subject to trafficking are unlikely to be those who meet the requirements of the new points-based immigration system, it is clear to me that Parliament should now act.
Without Amendment 27, European Union nationals who are victims of trafficking will find themselves significantly disadvantaged compared to the status quo. Ending free movement must not be associated with an increase in exploitation. Given that, unlike non-EEA nationals, who are considered automatically, EU nationals will have to apply for discretionary leave to remain and given that so few grants are made, EU nationals who are unable to claim residency and the benefits associated with that immigration status are more likely to find themselves destitute and subject to potential retrafficking.
Lord Morrow (DUP) [V]
My Lords, I am pleased to add my support to Amendment 27 in the name of the noble Lords, Lord McColl, Lord Alton and Lord Kennedy, and the noble Baroness, Lady Hamwee. In Committee, when introducing my Amendment 81, I made plain my grave concerns about the possible negative impact that ending free movement will have on victims of modern slavery. I said then, and I reiterate today:
“I am not opposed to the end of free movement.”
However, as I said then,
“it absolutely does not follow that we have to create a situation in which a significant proportion of trafficking victims have uncertain immigration status and will lose recourse to public funds.”—[Official Report, 16/9/20; col. 1343.]
This, however, is precisely what will happen, courtesy of the Bill before us, if the Government do not accept Amendment 27.
With the ending of free movement, victims of modern slavery who are EEA nationals and who arrive in the UK from 1 January onwards will no longer be entitled to stay in the UK or to access benefits, beyond the period of support granted under the national referral mechanism. This means that the effective rights of these confirmed victims of modern slavery will be subject to significant erosion, and there is currently nothing in the Bill to put in their place.
As the noble Lord, Lord McColl, said, from next year EEA victims, who have never enjoyed the option of asylum that many non-EEA victims can access, will lose the immigration status and recourse to public funds that they currently enjoy through treaty rights. The only remaining option for victims from EU countries to gain a credible immigration solution will be through an application for discretionary leave to remain. All victims can seek discretionary leave at present but, as with accessing the option of asylum, EU nationals are again at a disadvantage. Unlike victims of other countries, victims of EEA countries are not, at present, automatically considered for a grant of discretionary leave.
Amendment 27 would remedy this difference and ensure that all EEA nationals who are confirmed by the NRM as victims of trafficking are given a grant of leave if they meet the criteria set out in the amendment, which are similar to criteria by which applications are currently assessed under guidance. I urge the Government to support this amendment to ensure that there is a clear route for EEA nationals to have the option of immigration security and recourse to public funds to enable them to recover.
In reflecting on this, we must not forget that care for confirmed victims of modern slavery is not just about fulfilling our moral obligations to the victims, who, let us not forget, have been exploited in the UK; it is also in our self-interest. There is no point spending taxpayers’ money finding victims, then taking them through the national referral mechanism, only to release them without the requisite immigration security to enable them to access the kind of help they need to recover. Failure to provide them with security and tailored support will leave them vulnerable to being re-trafficked and make it impossible for them to have the space needed to consider giving evidence against their traffickers in court. This is unsustainable. Securing increased testimony from victims in court is crucial if we are to see an increase in the stubbornly low conviction rate of traffickers.
In reflecting on these imperatives, the truth is that, while we badly need Amendment 27 to pass today, we also need a more far-reaching solution that provides immigration certainty and support for all confirmed victims, including UK nationals. This is a position which all 27 organisations that make up the Free For Good campaign agree with. That is why the Modern Slavery (Victim Support) Bill, introduced to the House by the noble Lord, Lord McColl, and sponsored in the other place by Sir Iain Duncan Smith, is so important.
It is odd that if someone is recognised as a refugee they automatically get five years’ leave to remain, but if they are recognised as a confirmed victim of human trafficking they get no statutory leave to remain on that basis. I am not entirely sure why we consider that we have a lesser obligation to people whose lives have been exploited and traumatised in the UK than we have to refugees. I am not saying for a moment that the way we treat refugees should become less generous. I am not saying that at all. My point is simply that we should treat confirmed victims of modern slavery more generously.
The Modern Slavery (Victim Support) Bill states that, once someone has been through the national referral mechanism and is a confirmed victim of modern slavery, they should be offered specialist tailored support to help them recover and a minimum of 12 months’ leave to remain to access that support. In that context, they will be protected from re-trafficking and be much more likely to have space to consider giving evidence against their traffickers in court.
Moreover, it will benefit not only England and Wales but Scotland and Northern Ireland by providing immigration security to those who are given support after they have been in the NRM. I note that, in the commemoration of UK Anti-Slavery Day later this month, a Motion is to be debated at Stormont on 13 October that calls on the UK Parliament to pass the Modern Slavery (Victim Support) Bill.
In conclusion, I hope the Minister will agree to act to ensure that there is a clear immigration path for confirmed victims of modern slavery who are EEA nationals, and to accept Amendment 27. To lead the way on modern slavery and to take immigration policy back into the hands of the UK Parliament, I call on the Government to make time for the Modern Slavery (Victim Support) Bill to become law by the end of the year. In the 2017-19 session, it cleared the House, unamended, in less than four hours. If the Government want it, this very Conservative Bill—sponsored, as it is, by a former leader of the Conservative Party and the noble Lord—could easily become law by Christmas. Rather than inaugurating the Brexit era on 1 January by eroding the effective rights of some confirmed victims of modern slavery, we could strengthen the rights of all victims, on a basis that, as the University of Nottingham’s Rights Lab has demonstrated, will save the Government money.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
My Lords, the noble Lord, Lord Randall, has withdrawn and I understand that the noble Baroness, Lady Bennett, is no longer with us. The noble Lord, Lord Naseby, has also withdrawn, so I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, discretionary leave is a precarious response, as we have heard, and it is not frequently granted. We support the amendment and the Private Member’s Bill of the noble Lord, Lord McColl, as I have said on many occasions.
Some victims—though one would prefer to say “survivors”—want to get back home as quickly as possible. Others want to stay in order to recover—as far as recovery is possible—and for other reasons, as set out in proposed new subsection (2) of the amendment. One of the frequently expressed concerns about our response to slavery is the limited period provided for recovery after rescue, and 12 months is hardly a big ask.
One of the findings of the independent review of the Modern Slavery Act, published last year, was that few victims pursued or were granted civil compensation where that was possible. I therefore particularly support paragraph (c) of proposed new subsection (2).
Participating as a witness seems to be a factor that leads to the granting of discretionary leave. That can be a very big ask—I have used that word before—of the victim. Evidence is obviously important in prosecuting traffickers and exploiters, but granting leave to remain—the immigration response—should not be a transaction balanced by the person being prepared to give evidence. The issues that have been raised of course go far beyond the Bill. In Committee, we were reminded of the Government’s commitment to a world-leading system—and we have led the world.
Regarding the programme to transform the identification of and support for victims, and the legal framework, this is the second debate this afternoon in which data has been mentioned. Data is important. It indicates, among other things, a real interest in the impact of policy. That framework could, if we get it into the Bill, repeal the current provisions and be extended to all victims, which is what the noble Lord, Lord McColl, seeks—as do all noble Lords who have spoken. Having that framework in prospect should not preclude agreement to the amendment.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 27, proposed by the noble Lord, Lord McColl of Dulwich, has been signed by the noble Lord, Lord Alton of Liverpool, the noble Baroness, Lady Hamwee, and myself. The noble Lord, Lord McColl, has been tenacious and resolute in his efforts to speak up for victims of modern slavery, and it is very much to his credit that he has continued to be a voice for the victims of these appalling crimes. It is a matter of much regret that, so far, the Government have not been minded to listen to him. I join the noble Lord, Lord Alton of Liverpool, in his warm tribute to the noble Lord, Lord McColl. I have respected and admired the noble Lord since my earliest days in this House. He is a thoroughly good and decent man, and an example for all of us to follow. He set out a powerful case for the amendment. If it is not accepted, I have no doubt that it will be carried by a large majority when the House is divided. It was good to note his confirmation that he had the support of the honourable Member for Chingford and Woodford Green in the other place—not somebody who would normally be described as a lefty do-gooder.
The amendment provides for the circumstances whereby a person over the age of 18 is to be granted leave to remain in the United Kingdom, and proposed new subsections (2) and (8) set the necessary parameters for granting this status. The amendment is of course confined to EEA and Swiss nationals, but that is to get it within the scope of the Bill. Many victims of modern slavery are vulnerable people who are British and so do not need this additional protection, but that does negate the importance of helping those victims from abroad.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank my noble friend Lord McColl of Dulwich for instigating this important debate and I join other noble Lords in paying tribute to him for his dedicated and unswerving commitment to supporting the victims of modern slavery. As the noble Lord, Lord Alton of Liverpool, said, it is a commitment that is strong at any hour of the day and one that applies to all noble Lords who have spoken—and would have done to my noble friend Lord Randall of Uxbridge, who, as my noble friend said, would have spoken today had we reached this group sooner.
The Government are equally committed to tackling this heinous crime, which has absolutely no place in our society. We are now identifying more victims of modern slavery and doing more to bring the perpetrators to justice than ever before, and we are committed to supporting victims and survivors and helping them rebuild their lives. However, we do not accept that the victims of modern slavery who are EEA citizens should automatically be granted leave to remain in the UK, which is what my noble friend’s amendment seeks to do.
Granting leave to remain is appropriate in some cases, but the individual circumstances of a case are what must be central to the decision. I hope that all noble Lords will agree that a decision on whether leave is granted should not be determined by someone’s nationality. That is certainly an approach which complies with our international obligations under the trafficking convention. Where leave to remain is granted, it is normally where the victim is supporting the police either in an investigation, through being a witness in court or because of a requirement for medical treatment that needs to be provided in the UK—or, as the noble Baroness, Lady Hamwee, noted, because they are pursuing compensation for the exploitation that they have suffered. It is perhaps worth reiterating, as we touched on in Committee, that the most common nationality among all referrals in 2019 to the national referral mechanism was British, with UK nationals accounting for 27% of all those being referred, so tackling this abhorrent crime is separate from immigration policy.
For those who are not UK nationals, some victims of modern slavery already have leave to remain in another capacity or may qualify for a more advantageous status, such as refugee status. Victims from the EEA, who, as my noble friend noted in his opening remarks, may find that not possible, may also qualify for leave to remain under the EU settlement scheme. There is a further option that my noble friend did not touch on in his remarks, which is that victims can apply for support from the Home Office modern slavery victim care contract, which includes accommodation and support. We want to ensure that all victims and survivors, who are often very vulnerable people, as has been made apparent so powerfully today, have the support that they need.
For those who do not qualify for leave to remain, the Government are committed to supporting them to return to their home country and to rebuild their life. As the noble Baroness, Lady Hamwee, said, they often want to do that as soon as possible. We have links with NGOs around the world, including a memorandum of understanding with La Strada Poland, which supports the victims of modern slavery when they return home and helps them reintegrate into their communities. The Government are proud of the work we are doing to stamp out this abhorrent crime and I was pleased to hear the noble Lord, Lord Alton of Liverpool, pay tribute again to the world-leading legislation which has been passed in this area.
A blanket policy of granting discretionary leave risks creating the incentive for some—a minority of individuals—to make false trafficking claims in an attempt fraudulently to obtain leave to remain. We have to ensure that the system we have put in place is focused on those who truly need our help and is not abused by the sort of organised and callous criminality which, as has been said, profits from human misery. It is for these reasons that we believe that my noble friend’s amendment is unnecessary, and I hope that he will withdraw it.
Lord McColl of Dulwich (Con) [V]
My Lords, I thank all noble Lords who have taken part in this debate. I thank the noble Lord, Lord Alton, for his kind remarks and for all the support and hard work that he does on this and many other subjects. I also thank the noble Lord, Lord Morrow, who has done such wonderful work in Northern Ireland, and the noble Baroness, Lady Hamwee, for her support and her amazing stamina. She never seems to get tired.
To respond to the debate, it is clear that my Amendment 27 does not—I emphasise this—automatically grant leave to remain to all EEA nationals who are confirmed victims of modern slavery. It guarantees leave only where the criteria in the amendment are met, which will require an assessment of the circumstances in each case. The amendment does ensure that all confirmed victims who are EEA nationals are automatically considered for leave to remain. Without this change, confirmed victims who are EEA nationals will not only lose one of the avenues for recovery currently accessible to them—immigration status and recourse to public funds through treaty rights—they will find themselves at a disadvantage when compared with victims who are not EEA nationals and who are already automatically considered for discretionary leave to remain.
Without Amendment 27, EEA confirmed victims of modern slavery will be significantly worse off as a result of the Bill. It is unthinkable that this House should acquiesce to allowing the rights of some victims of human slavery to be moved backwards, and so I wish to test the opinion of the House.
The Deputy Speaker (Baroness Pitkeathley) (Lab)
My Lords, we come to the group consisting of Amendment 27A. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in debate.
Amendment 27A
Baroness Hamwee
“Rights and applications after the commencement of this Act
(1) In the event that a person with settled status granted pursuant to the Scheme applies for British citizenship, the period of residence in the United Kingdom which was the qualification for settled status must be treated as not being in breach of any provisions referred to in subsection (6).(2) A person resident in the United Kingdom on or before 30 June 2021 shall be treated as not being in breach of any provisions referred to in subsection (6) if he or she is in scope of eligibility for leave to remain under the Scheme.(3) The Secretary of State may not refuse an application by a person for settled status or pre-settled status under the Scheme made during the period ending on 30 June 2021 on the basis that he or she does not hold or has not held comprehensive sickness insurance.(4) The Secretary of State may not refuse an application for settled status under the Scheme made after 30 June 2021 by a person with pre-settled status on the basis that he or she does not hold or has not held comprehensive sickness insurance.(5) “The Scheme” means the scheme known as the EU Settlement Scheme for settled status or pre-settled status under Appendix EU of the Immigration Rules and the terms “settled status” and “pre-settled status” are interpreted accordingly.(6) The provisions referred to in this subsection are all provisions applicable to the person’s residence including the Immigration Acts and the Immigration Rules.”
Baroness Hamwee (LD)
My Lords, the amendment was written with the aid of anti-migraine tablets after some perhaps slightly unfocused exchanges in the previous stage and on the first day of Report about the grace period for the EU settlement scheme and comprehensive sickness insurance. I will not be seeking the opinion of the House.
I have tried to note situations that are giving cause for concern. I am aware that we now have a statutory instrument, and I hope that today’s debate can contribute to our consideration of that. As I said last week, those who know the subject were still poring over the SI, and I do not know whether they have yet come up for air.
I am seeking assurances, through this debate, that the propositions set out in the amendment accurately reflect, and are reflected by, the statutory instrument—I suppose it should be the latter. If what I am asking for cannot be put on the record today, a letter would be very welcome.
The first assurance I seek is that once someone has settled status he can be confident that he will be treated as not having been in breach of immigration provisions during the qualifying period; in other words, that nothing will come back to bite him—not the sort of language one uses in legislation. The second is that a person resident in the UK before the end of the grace period, and eligible for leave to remain, will be treated as not being in breach of those provisions. The third is that an application for status, whether settled or pre-settled status, may not be refused because the applicant does not, or has not had, comprehensive sickness insurance. I acknowledge that there could be another basis for refusal. Fourthly, I would like an assurance that the lack of CSI may not be a reason for refusing settled status after the same date to someone who holds pre-settled status.
I do not for a moment believe that the amendment is perfectly drafted but I hope that my objective is clear. It would be helpful if the Minister’s response is as jargon-free as possible and in the sorts of terms I have used.
On 16 September, the Minister said:
“The grace period statutory instrument does not change the eligibility criteria for the EU settlement scheme and those criteria do not include CSI.”—[Official Report, 16/9/20; col. 1340.]
Later, however, she said that the grace period maintains CSI as a requirement for lawful residence during the grace period, for students and people who are self-sufficient, and that
“EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”—[Official Report, 30/9/20; col. 244.]
My amendment is directed at what that means in practice because, with regard to the scope of the regulations, the Minister went on to say:
“People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says.”—[Official Report, 30/9/20; col. 244.]
What the withdrawal agreement does say in Article 18(3) is this:
“Pending a final decision”,
and I stress that phrase,
“by the competent authorities on any application referred to in paragraph 1”—
in the case of the UK this relates to applications to the EUSS—
“and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities”,
and I stress the next bit as well,
“all rights provided for in this Part”,
which are residents’ rights and all related equal treatment rights in the agreement,
“shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).”
On the first day of Report, the noble Lord, Lord Rosser, explained the concern raised with both of us by the3million that:
“In their current form, the regulations appear to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and whilst their application is pending. The regulations limit a legal basis to live in the UK to those who were ‘exercising treaty rights’ in accordance with existing EEA regulations by the end of the transition period.”—[Official Report, 30/9/20; cols. 240-41.]
The organisation amplified this by saying:
“Crucially, there will be people who are eligible for status via the EUSS who will not have a legal basis to live in the UK during the grace period. Furthermore, anyone who has … submitted an application to the EUSS before the end of the transition period … is pending a decision after the transition period ends … Will have to demonstrate they fall within the scope of the regulations to have the benefit of its protection.”
Generally, those protected by the regulations will be economically active at the end of the transition period, and they will have the benefit of legal protections during the grace period and while their application is pending. However, that is not the case for those who are not economically active by the end of the transition period, such as an EU citizen dependent on a British spouse and without private health insurance. As my noble friend Lady Ludford said, the technical term is comprehensive sickness insurance, but really in this country we know it as private health insurance, which fulfils what is meant by comprehensive sickness insurance.
Baroness Whitaker (Lab)
My Lords, I have little to add to the magisterial introduction made by the noble Baroness, Lady Hamwee, to Amendment 27A, but I will emphasise the deficit of the Bill as it stands especially with regard to Roma women with settled status who look after their children full-time and who apply for British citizenship. The underlying problem—in real life rather than in Home Office rules—is that while their children are little, the mothers have a weak connection to the labour market, like other full-time mothers. I am surprised that this Government should prejudice mothers in this way.
So, because they cannot prove they were exercising treaty rights—according to the Home Office, which does not accord with the European Commission’s interpretation—by showing that they have comprehensive sickness insurance, their application fails. I remind your Lordships that Theresa May, as Home Secretary, recognised this injustice and promised to do away with the requirement for CSI in these cases. So it is very odd that updated Home Office guidance in 2020 changed the application process to direct caseworkers to check whether such applicants had CSI. An undefined power of discretion has not proved much use in rectifying the injustices to full-time mothers. It is shocking that the Government have not honoured the earlier commitment.
In her letter to us of 29 September, the Minister said that the Government’s policy is that CSI is not required to obtain status under the EUSS. Nevertheless, the grace period SI maintains CSI as a requirement for lawful residence during the grace period as a student or self-sufficient person, such as a full-time mother, under the saved EEA regulations because, according to the Home Office, this is consistent with EU law. This is not the European Commission’s view, and it is not right or just that applications are turned down because there is no CSI.
Baroness Ludford (LD)
My Lords, I will go over very similar ground to that raised by my noble friend Lady Hamwee.
The background is that, under the withdrawal agreement, the UK is obliged to create a grace period following the end of the transition period. During this grace period, EEA citizens have the opportunity to apply by a deadline for a new immigration status through the EU settlement scheme, as it is called in the UK.
As EU rights will end on 31 December, the Government need to create an interim status for those who have yet to acquire their new status via the EU settlement scheme—hence the grace period SI. As we know, it sets the deadline for applications to the settlement scheme as 30 June next year, but the Minister said last Wednesday, on the first day of Report, that it would also
“protect the existing rights of resident EEA citizens and their family members during the grace period.”
What does “existing” mean? A fact sheet published in July also used that adjective when it said that the power in Section 7 of the European Union (Withdrawal Agreement) Act 2020 would be used—as has now happened with this grace period SI—to make regulations
“to protect the existing rights of those individuals who are eligible to apply to the EU settlement scheme”.
As the noble Lord, Lord Parkinson, did in Committee on 16 September, the Minister said last Wednesday that she could reassure us—here, I repeat a quotation given by my noble friend—that
“EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy”,
which, as we have learned, was set by Theresa May,
“that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.”
Therefore, so far we have established two government statements: first, that the existing rights of those eligible to apply to the EU settlement scheme will be protected; and, secondly, that acquiring settled status will not involve a requirement for CSI. So far, so good. Ministerial assurances seemed to accord with Article 18(3) of the withdrawal agreement, which provides that, pending a final decision, all rights provided for in the citizens’ rights section of that agreement shall be deemed to apply to the applicant. That means residence rights and all related equal treatment rights.
However, things then get somewhat murkier. Last Wednesday, the Minister added a caveat—again, quoted by my noble friend—when she said:
“People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says.”—[Official Report, 30/9/20; cols. 243-4.]
When I checked back, I saw that the noble Lord, Lord Parkinson, had explicitly said on 16 September in Committee:
“The grace period SI maintains”
comprehensive sickness insurance
“as a requirement for lawful residence during the grace period for a student or self-sufficient person under the saved EEA regulations, as is consistent with EU law.”—[Official Report, 16/9/20; col. 1340.]
I will not go round all the houses again, but I beg to differ with that last comment, as I believe that the Commission is pursuing infringement proceedings—it is taking a while; it launched them in 2012—over the Government’s wrong interpretation of CSI as meaning private health insurance. In this country, it should mean accessing the National Health Service. However, for current purposes, I will just concentrate on the first part of the noble Lord’s statement: namely, the proposal that during the grace period students and self-sufficient persons will have to show that they have CSI—that is, private insurance—in order to qualify as lawfully resident.
The remarks confirm that in their current form, limiting a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period, the regulations appear, as my noble friend said, to exclude a large cohort of people from having a legal basis to live in the UK during the grace period and while their application is pending. In general, a worker and someone who is self-employed will benefit from legal protections, but those not economically active by the end of the transition period will likely be unable to do so, with the consequences that my noble friend enumerated—possible removal, the denial of NHS treatment, being put out of a job, or whatever.
Even where someone successfully lodges an application with the EU settlement scheme, if they are awaiting a decision beyond the end of the grace period and are not in scope of the regulations, they will not have the legal protections it offers. Therefore, someone with a complex EUSS case could be without a legal basis to remain in the UK for many months beyond the grace period.
As a taste of things to come, a case has been brought to my attention where parents seeking to renew their five year-old son’s British passport were told that the EU citizen father had to supply evidence of having had CSI—I repeat: private health insurance—when he was a student many years ago.
To recap where I think we are, we have three government statements: first, that the existing rights of those eligible to apply to the settlement scheme will be protected in the grace period; secondly, that CSI is not a requirement for acquiring settled status; and, thirdly, that CSI is a requirement for some people to have lawful residence in the grace period. We can add in a fourth, given in the course of this Bill: that discretion will be exercised—we have not heard how—in regard to the absence of CSI in assessing eligibility for citizenship.
I am struggling to make sense of how those four statements fit together and to understand how the Government really intend to treat people. So far as I can see, it leaves matters as clear as mud and full of contradictions and obstacles. It seems that the Government are set on making a person cross a crocodile-infested river of legal uncertainty over residence before they can reach the safe shore of settled status.
Therefore, I back up the questions that my noble friend asked the Minister about the practical implications for people who do not fall within the scope of the regulations. Will there be further regulations to cover those eligible for settled status but not in scope of the regulations? When they apply for settled status, will they be told, “Oh no, we don’t need to ask you for CSI, but in the meantime, under the grace period SI, you need CSI”. It is like being on a chessboard, although I can think of some other analogy.
I have one last question. Are the Government willing to consider changing the draft regulation from stating a requirement to have been “lawfully resident”—which, as we know, according to the Government’s interpretation is an extremely loaded term—to a requirement simply to have been “resident”? Given that this definition operates for only six months, save in cases where a settled status application has been made, this might be a simple, workable solution that could save a lot of people a lot of anxiety. This sounds like an awfully complicated and arcane situation. It is, and in the real world a lot of people are affected by it. They are represented by the the3million group, which, again, is doing sterling work, although, as far as I know, even it has not got its head round it, so I do not know what hope there is for someone like me.
I hope the Minister can bring some coherence to this situation, or display a willingness to look again at the regulations under the grace period SI to see if the Government are creating unnecessary hurdles for people who were told they would not need CSI or settled status when perhaps applying later for citizenship. It seems to be creating an awful lot of unnecessary hassle.
Lord Rosser (Lab) [V]
The grace period regulations limit a legal basis to live in the UK to those who were “exercising treaty rights” in accordance with existing EEA regulations by the end of the transition period. This must mean that such citizens who are not exercising their treaty rights fall outside the protection of having a legal basis to live in the UK. This appears to cover a potentially significant number of people, including those who have not held comprehensive sickness insurance.
Amendment 27A ensures EU nationals cannot have an application denied for citizenship, settled status, or pre-settled status on the basis they have not held comprehensive sickness insurance. It is clear from the debate there is considerable confusion—which I share—about the actual position. Surely, any doubts, confusion or uncertainty would be removed by the Government accepting this amendment or returning with their own amendment at Third Reading. That would help clarify the situation.
I conclude by simply saying this, as I do not want to repeat all the valid points that have been made. If Government will not do that, could the Minister spell out the circumstances in which an EU national would have an application denied for citizenship, settled status or pre-settled status on the basis they have not held comprehensive sickness insurance?
Baroness Williams of Trafford (Con)
I thank all noble Lords who have spoken in this debate, particularly the noble Baroness, Lady Hamwee, who has tabled Amendment 27A. I hope I can provide clarification.
The new clause has three main purposes. First, it seeks reassurance that comprehensive sickness insurance is not, nor will be in future, an eligibility criterion for applications to the EU settlement scheme. Secondly, it seeks to provide that if someone is eligible to apply to the scheme, their previous residence should be deemed lawful, whether or not that was the case under the EEA regulations. Thirdly, the new clause seeks to remove the lawful residence requirement from British citizenship applications by those who hold settled status under the EU settlement scheme.
Let me address the noble Baroness’s concern about comprehensive sickness insurance, which has been raised several times during consideration of the Bill. Subsections (3) and (4) of her proposed new clause concern eligibility to apply to the EU settlement scheme. I can assure the noble Baroness that currently, there is no requirement for comprehensive sickness insurance or previous lawful residence under the EEA regulations in order to be eligible to apply under the scheme. This will not change for applications made after the transition period, nor after the grace period. I can reassure the House that an application made before or after the deadline of 30 June 2021 will not be refused for failure to hold comprehensive sickness insurance. Accordingly, the amendment is not necessary.
I turn to proposed new subsection (2), which seeks to provide that the previous residence of anyone who is eligible to apply to the EU settlement scheme by the deadline of next June will be deemed to have been lawful whether or not it in fact was. In doing so, the intention is to support applications for citizenship, which I will come to shortly. However, the effect of this amendment is wider. It would create new residence rights for those who do not have them at the end of the transition period, as they are not complying with free movement law and have yet to apply to the EU settlement scheme. Those who are currently here without residence rights will continue to have no residence rights until they apply to the EU settlement scheme; that is why we are encouraging them to apply to the scheme.
In line with the withdrawal agreement, the Government are using secondary legislation under the European Union (Withdrawal Agreement) Act 2020—the so-called “grace period SI”—to save the existing rights of those EEA citizens and their family members who are lawfully resident in the UK at the end of the transition period under 2016 EEA regulations. The noble Baroness, Lady Ludford, asked me to set out the existing rights; they are pre-settled or, indeed, settled status. This means that an EEA citizen, or their family member, who is resident in the UK at the end of the transition period but is not exercising free movement rights will still be able to apply to the EU settlement scheme by the deadline of 30 June next year. However, they will not have any residence rights under free movement law protected during the grace period. This is for the simple reason that they do not possess these rights at the end of the transition period. This reflects the current situation, as set out in the free movement directive and the EEA regulations.
The noble Baroness’s amendment seeks to create new EU rights of residence beyond those saved by the grace period SI once free movement has ended. That cannot be right, nor accepted by the Government. Having an EU “right to reside” provides other rights beyond the right to stay in the UK, as it can confer access to social security benefits. I am sure noble Lords would agree that, at this juncture, after we have left the EU, it would not be appropriate to widen EEA citizens’ benefit eligibility any further than those groups who are already entitled to it.
This brings me to the final limb of the new clause, which I think is probably its main objective, concerning how EEA and Swiss citizens who hold settled status might then proceed to naturalise and become British citizens. The noble Baroness will be aware that the power to determine naturalisation applications from all migrants—not just EEA and Swiss citizens—is set out in the British Nationality Act 1981. Under Section 6(1) of the Act, an applicant is required to show that they have sufficient residential ties here. For example, they must have resided here lawfully for at least five years and they must no longer be subject to any immigration time restrictions. Proposed new subsection (1) would require any residence before the granting of settled status to be treated as lawful, regardless of whether it actually was or the circumstances under which it occurred. That cannot be right, and I do not consider it unreasonable to ask anyone wishing to become British to have resided here lawfully.
Amendment 27A seeks to treat those with settled status under the EU settlement scheme differently from other EEA and Swiss citizens, and also non-EEA citizens. I believe the noble Baroness is most concerned about those who—as the noble Baroness, Lady Ludford, outlined—are here as students or are self-sufficient. This is because free movement rules require them to hold comprehensive sickness insurance after their initial three months of residence in order to be lawfully resident. This is not a new issue. Had a student or self-sufficient person previously made an application for permanent residence documentation without holding CSI, they would have been refused.
The noble Baroness may be aware that, even where CSI has not been held by a student or self-sufficient person, it does not mean that a naturalisation application must be refused. The British Nationality Act permits the application of discretion to this requirement in the special circumstances of a particular case. Caseworkers will therefore continue to examine each application to understand why the individual did not comply with the EEA regulations, as well as any reasons which can nevertheless allow an application to be granted. This is already set out in published guidance for decision-makers. However, it is right that we assess on an individual basis, rather than having a general rule to overlook any non-compliance.
The noble Baroness, Lady Whitaker, made a point which we went over in detail yesterday, about people who are applying either to the EU settlement scheme or for citizenship, which are two different things. There are a lot of voluntary organisations to help people who might need assistance through this process, but naturalisation as a British citizen is not part of the EU settlement scheme; nor is it covered by the withdrawal agreement. We welcome people who make the personal choice to become British citizens, but there is no need for any new arrangements because of our leaving the EU. The existing system already applies equally and fairly to all applicants. I hope that I have given the noble Baroness the assurance that she sought and that she is happy to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, I am grateful to those who have taken part in this debate. My noble friend Lady Ludford asked whether this was a chessboard, but I think it is more like snakes and ladders: up you go, you think you are settled and then you slither downwards into what she called the “crocodile-infested” waters of CSI.
When the Minister referred to “lawful residence” under the British Nationality Act I wrote a question to myself about whether this meant treaty rights—which you would need to have had CSI to exercise—to which I think the answer is yes. She then mentioned discretion. One always has a concern about discretion because the law should provide, not leave things to caseworkers, but the situation that we have posed is not unusual.
I do not intend a pun here, but the issue is not settled. I am glad that we have had this exchange. I do not pretend to know whether I am comforted. I think I am not, as noble Lords will understand from my last remarks, but much better that I leave the experts to use what the Minister has shared with us when they are considering the regulations. I thank her and beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group consisting of Amendment 28. I remind noble Lords that Members others than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in debate.
Clause 5: Power to modify retained direct EU legislation relating to social security co-ordination
Amendment 28
Lord Flight
“(2A) The power to make regulations under subsection (1) does not include power to make provision inconsistent with the withdrawal agreement as defined by section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This amendment would ensure that the power to make regulations under subsection (1) can only be used in ways consistent with the UK’s obligations under the EU Withdrawal Agreement.
Lord Flight (Con) [V]
My Lords, I am sorry that I must participate by telephone, but Zoom did not work for me today. Amendment 28 would ensure that the power created by the Bill could be used only in ways which are consistent with the UK’s obligations under the UK-EU withdrawal agreement.
The retained direct EU legislation set out in Clause 5(2) is the full gamut of EU legislation on social security co-ordination. Under the withdrawal agreement, the UK is committed to apply this legislation to all those within the scope of Part 2 of the agreement —“Citizens’ Rights”— and to some others. It seems strange that essentially financial matters to do with pensions are mixed with other social matters here.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
Is the noble Lord moving his amendment?
The Deputy Speaker (Baroness Morris of Bolton) (Con)
Well, the noble Lord has actually spoken, so he needs to move it for everybody else to respond.
Lord Flight (Con) [V]
Right. I will withdraw the amendment when I sum up at the end.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
The noble Lord, Lord Naseby, has withdrawn, so I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, on the first day of Report, on an equivalent amendment to Clause 4, the Minister gave an assurance that the Government have absolutely no intention of acting incompatibly with the citizens’ rights provisions in the withdrawal agreement. However, as the noble Lord, Lord Flight, has said, that is not the point. He set out very carefully the social security provisions which are the issue here. The concern is that the use of regulations, or secondary legislation, to modify the primary legislation that is the basis of the various benefits could wittingly or unwittingly modify them—“modify” is a polite legislative word for “cause a lot of people a lot of problems”. If this amendment were part of the Bill, it would protect against this.
Last week, the noble Lord referred to the establishment under the 2020 Act of the Independent Monitoring Authority, and I was grateful for that. I share a rather wry smile with noble Lords because provided for in the authority’s powers is that it may make applications for judicial review—we all know the Government’s expressed position on activists and lawyers using applications for judicial review and generally not liking frequent resort being made to them. There is of course a review of the use of judicial review going on at the moment. So I thank the noble Lord for that moment of amusement in this complicated area. I support the amendment.
Baroness Sherlock (Lab) [V]
My Lords, as we heard from the noble Lord, Lord Flight, this amendment would prevent regulations made under Clause 5 including any provisions that could be inconsistent with the withdrawal agreement. I presume that the aim is to avoid any action that might serve to undermine the rights of UK citizens in the EU and EU citizens here that were guaranteed under the withdrawal agreement.
As the noble Baroness, Lady Hamwee, said, we have had this debate at earlier stages and on Clause 4. On the basis of those past debates, I think there is a decent chance that the Minister will say that this amendment is unnecessary. But as the noble Lord, Lord Flight, pointed out: what is the downside? Given the uncertainty caused by statements elsewhere about the nature of the withdrawal agreement and the extent to which the UK is committed to it, the Minister will understand why some noble Lords are nervous and want the kind of assurances that one would hope she should be able to give without difficulty.
The noble Lord, Lord Flight, explained the terribly important issues that are covered by Clause 5. This will be our only engagement on Report with the subtle joys of this clause. I raised many of the issues about social security co-ordination at Second Reading and in Committee, and felt that I did not get satisfactory answers in Committee. However, I have now received a letter from the Minister, the noble Baroness, Lady Stedman- Scott, which has provided more information. In the light of that, I do not intend to move Amendment 29 in my name in the next group.
I remain very concerned about the implications for too many people of the loss of reciprocal arrangements for social security co-ordination, but I recognise that we will not get anything more at this stage of the Bill. I hope that the letter I mentioned will be placed in both Libraries. Because it contains information about new developments which were not reflected in the draft regulations shared with us in Committee, it would be helpful if the letter were displayed as soon as possible in the relevant place under the “will write” section of Bills before Parliament, so that its contents are readily accessible to those who are interested.
These are very important issues. I look forward to hearing what the Minister has to say.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)
My Lords, I am grateful to the noble Lord, Lord Flight, and the noble Baroness, Lady Hamwee, for speaking to this amendment. The Government have given written assurances in every Bill document throughout the passage of the Bill on this point; I have reiterated those assurances in Committee, and I will do so again here.
I can assure the House that Clause 5 does not enable the Government to alter the rights guaranteed to those in scope of the withdrawal agreement. The entitlements of this cohort are guaranteed by Sections 7A and 7B of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020. The power at Clause 5 will not and cannot affect those provisions. Rather, it allows for EU law retained by Section 3 of the European Union (Withdrawal) Act 2018 to be modified. The rights under the withdrawal agreement are therefore provided by a distinct and separate legal mechanism in relation to that of retained EU law, and this power will not affect the rights of those within the scope of the agreement. This includes those examples given by the noble Lord, Lord Flight, such as state pension uprating, the S1 scheme and the aggregation of contributions. It is therefore the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out.
I note the request of the noble Baroness, Lady Sherlock, for my letter to her to be placed under the “will write” section—I am so pleased that that makes sense—of Bills before Parliament.
I reiterate that it is the Government’s view that Amendment 28 is unnecessary, on the grounds I have set out. I hope that with this explanation, the noble Lord, Lord Flight, will withdraw his amendment.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, I have received no requests to ask a question of the Minister, so I now call the noble Lord, Lord Flight.
Lord Flight (Con) [V]
My Lords, this amendment addresses the aggregation of social security contributions across the EU, mutual healthcare and, in particular, the payment of pensions and pension increases to pensioners living in different EU countries. It is important that citizens’ positions are protected. The noble Baroness, Lady Stedman-Scott, has given a satisfactory undertaking that these areas cannot be affected by the clause in question and that this amendment is therefore not necessary. I beg leave to withdraw the amendment.
Baroness Hamwee
(a) (Time limit on immigration detention for EEA and Swiss nationals),(b) (Initial detention: criteria and duration), and(c) (Bail hearings)which come into force six months after the day on which this Act is passed.”Member’s explanatory statement
This amendment provides that new Clauses "Time limit on immigration detention for EEA and Swiss Nationals", "Initial detention: criteria and duration" and "Bail hearings" come into force six months after the Act is passed.
The Deputy Speaker (Baroness Morris of Bolton) (Con)
My Lords, we now come to the group beginning with Amendment 32. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this, or anything else in this group, to a Division should make that clear in the debate. I should inform the House that if Amendment 32 is agreed to, I cannot call Amendment 32A.
Schedule 1: Repeal of the main retained EU law relating to free movement etc.
Amendment 32
Lord Pannick
Lord Pannick (CB) [V]
My Lords, last but I hope not least, Amendment 32 is in my name and in the names of the noble Lords, Lord Rosser and Lord Beith, and the noble Baroness, Lady Hamwee.
Amendment 32 addresses a very odd provision in paragraph 4(2) of Schedule 1. As currently worded, it states that provisions of the EU regulation on free movement for workers cease to apply if
“they are inconsistent with … the Immigration Acts”
or
“capable of affecting the interpretation, application or operation of any such provision.”
I suggested in Committee, with widespread support from all sides of the Committee, that the parliamentary draftsmen could and should do better than that. Paragraph 4(2) as currently drafted defies the need for legal certainty. The Bill should set out which provisions of the workers regulation will cease to apply.
The Minister promised to look at this matter, and she indicated that she would discuss it with me. Faithful to her word, as she always is, she has discussed the matter with me—for which I am very grateful—and has now tabled Amendment 32A, which satisfactorily addresses the point. I am very grateful to her. Amendment 33 addresses a similar problem, but sadly it has not received a favourable response from the Minister.
Paragraph 6(1) of Schedule 1 tells us that
“EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law”
in two circumstances—that is if
“they are inconsistent with, or … capable of affecting the interpretation, application or operation of,”
a provision of the Immigration Acts, or if
“they are otherwise capable of affecting the exercise of functions in connection with immigration.”
I simply do not understand how advisers on immigration law, far less those individuals who are the subject of immigration law, are supposed to work out what their legal rights and obligations are. Legal certainty requires, in my view, that the schedule should set out those EU-derived rights et cetera which are disapplied, or those which are retained. Your Lordships’ Constitution Committee, of which I am a member, criticised the legal uncertainty in our 11th report of this Session published on 2 September.
I think the only answer the Minister could possibly give to the concern I have identified about legal certainty is that Ministers and parliamentary draftsmen do not now know which provisions of EU law survive and which do not. That rather makes my point, I think. However, I do not intend to divide the House on this matter, troubling though it is. I beg to move.
Lord Beith (LD)
My Lords, my name is attached to the noble Lord’s Amendments 32 and 33 because they address two long-standing concerns of the Constitution Committee. The first is the broad and unjustified use of Henry VIII powers. The second is the confusing and counterproductive complexity of immigration law, which we believe needs to be clear and consolidated. That is why I support these amendments. I welcome the fact that the Government have addressed the first of these issues by tabling Amendment 32A, which makes more specific the scope of the power, confining it, as the noble Lord, Lord Pannick, has said, to Articles 2 to 10 of the workers regulations.
I would have welcomed a similar willingness to move on the issues that the Constitution Committee has raised in relation to paragraph 6 of Schedule 1, which nullifies EU-derived rights and remedies. The noble Lord, Lord Pannick, has quoted some parts of paragraph 6 and they are really extraordinary: rights should disappear because
“they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts”
and, even stranger, because they are
“otherwise capable of affecting the exercise of functions in connection with immigration.”
I can think of all sorts of functions that people might consider were “in connection” with immigration, but we really need laws that are clearer than that.
Adrian Berry, chair of the Immigration Law Practitioners’ Association, said when he gave evidence to us:
“How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that?”
I know that parliamentary draftsmen have had a pretty heavy diet of work lately, not least with Covid-19 orders, but it is possible to do better than that, unless the instructions given to them were so unspecific as to leave things so wide open that they had to draft the legislation in that extraordinary way.
Paragraph 69 of the Explanatory Notes tries to explain why this is necessary, but fails to do so—at least I find it completely unpersuasive. I did learn a little more about Chen carers than I knew previously, which was almost nothing. I am sure that my noble friend Lady Hamwee thinks of little else at some stages of the Bill than the quite obscure provision that resulted from the Chen case before the European Court of Justice. However, I certainly found the argument unpersuasive.
The committee says:
“The statute book requires clarity rather than obscurity and provisions such as these threaten to frustrate essential ingredients of the rule of law.”
An essential ingredient of the rule of law is that it is on record and visible and capable of being understood, particularly by those who practice it professionally, but preferably by a wider range of people as well, including those who may face either a penalty or, in this case, the inability to have a right to which they believe they are entitled as a consequence of wording as vague as this.
There is still time to improve this: the Minister could come back at Third Reading with an amendment that makes clear the purpose of this paragraph, and I am only sorry that she has not done so thus far.
Baroness Hamwee (LD)
My Lords, the explanation of the noble Lord, Lord Pannick, of how unsatisfactory the Bill is, particularly Schedule 1, was a model of clarity, unlike the schedule. He has also left us, from the earlier stage, with a vision of straining to read the Emperor Caligula’s laws, and that will stay with me, possibly longer than Schedule 1.
The comments of the Constitution Committee on the complexity of immigration law being a serious threat to the ability of lawyers and judges to apply it consistently were, in a way, reassuring to those of us who struggle with it, but otherwise not reassuring at all, as the noble Lord and my noble friend made clear in their speeches. I am very sorry to disappoint my noble friend by not wandering off into comments on case law. I support the amendment.
Lord Rosser (Lab) [V]
I congratulate the noble Lord, Lord Pannick, on having persuaded the Government to introduce their Amendment 32A, in the light of his comments on this in Committee, and on tabling Amendment 32, to which I have added my name.
The similar concern over wording that resulted in Amendment 33 has not been addressed by the Government. Amendment 33 would remove paragraph 6 of Schedule 1. As noble Lords know, paragraph 6, like paragraph 4(2), is broadly drafted. It provides that any EU-derived rights, powers, et cetera, that are inconsistent with or “capable of affecting” the Immigration Acts or functions cease to be recognised.
The Delegated Powers and Regulatory Reform Committee and the Constitution Committee have both expressed their strong concerns about the sweeping powers that the Government are seeking to take under the Bill—powers that will not be subject to any effective parliamentary scrutiny. In Committee, in response to the noble Lord, Lord Pannick, the Minister said:
“I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.”—[Official Report, 7/9/20; col. 580.]
Why then are the Government not also prepared to lay out the law and provide that certainty over the EU-derived rights, powers, et cetera, that are being referred to in paragraph 6 of Schedule 1? I hope the Minister will answer that point in her response.
One has already been mentioned as a possibility. Bearing in mind that, in Committee, the Minister also said
“I note that the drafting of paragraph 6(1) of Schedule 1 ensures that nothing is missed that might mean free movement was only partially repealed”,—[Official Report, 7/9/20; col. 576.]
that could mean that the Government are not prepared to move on paragraph 6(1) because they do not rate their ability to ensure that the Bill says all it needs to say to ensure that free movement is fully repealed. To cover up for their anticipated deficiencies, the Government take these powers to act without full parliamentary scrutiny and leave people in a situation where the legislation, in paragraph 6(1) of Schedule 1, does not enable them to identify the exact nature of their obligations and rights. If that is the motive for not moving on paragraph 6(1) of Schedule 1, in the way that the Government have on paragraph 4(2), one can say only that that is not the purpose for which use of these powers was originally intended. No doubt we will hear from the Minister why the Government have not moved on paragraph 6(1) of Schedule 1 or at least produced their own amendment in response to Amendment 33 of the noble Lord, Lord Pannick.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lord, Lord Pannick, and other noble Lords who have spoken to Amendments 32 and 33. I was grateful for the opportunity to meet the noble Lord and draft Amendment 32A as a result.
I understand why noble Lords find these provisions difficult to follow. They are, however, essential in repealing EU free movement. Paragraphs 4 and 6 of Schedule 1 disapply elements of retained EU law, where they are inconsistent with or affect the interpretation, application or operation of the Immigration Acts. “The Immigration Acts” is a commonly used legislative shorthand for the UK’s domestic immigration legislation. Most importantly, it includes the Immigration Act 1971, which sets out the requirement for non-British and non-Irish citizens to have leave to enter or remain. “The Immigration Acts” is defined in Section 61 of the UK Borders Act 2007, and the Bill, once enacted, will be added to that definition by Clause 3.
These phrases therefore clarify that the retained EU law in question does not provide a back-door route to enter or reside in the UK outside of the system of leave to enter and remain, once the main free movement legislation is repealed. That system is made up partly of Immigration Rules made under the 1971 Act. That is why the words
“by or under the Immigration Acts”
feature in these paragraphs.
Lord Pannick (CB) [V]
I thank the Minister, certainly for government Amendment 32A, which deals with the concern that we have expressed in Amendment 32. However, the Minister’s attempt to defend paragraph 6(1) of the schedule is, I am afraid, wholly unconvincing. Her observations do not provide me with any useful clarification as to how the paragraph is going to apply. As the Minister has said, there are too many provisions and the position is too uncertain, and therefore the legislation cannot list the provisions. What she is suggesting, as I said in my opening remarks, is that the position is too uncertain for clarification, but the inevitable consequence is that the position is too uncertain for those who are advising immigrants and for immigrants themselves. They cannot possibly know with certainty how this provision will apply. I should respectfully warn the Minister that, if and when paragraph 6(1) is the subject of litigation in individual cases, the Government may well find that the courts will adopt a very unsympathetic approach to it and will give it the narrowest possible interpretation because it is so lacking in certainty. That is the real risk that the Government are running.
I have never seen a provision like paragraph 6(1) before in legislation—that is, a provision that depends on whether something is capable of affecting the exercise of functions—and I hope never to see such a provision in legislation again. I shall regard it as one of the increasing number of undesirable consequences of the decision to leave the EU and as setting no precedent for any other legislative content. I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment ensures that paragraph 4(2) of Schedule 1 applies only to Articles 2 to 10 of the Workers Regulation.