Nationality and Borders Bill (Fifteenth sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateThursday 4th November 2021
(3 years, 1 month ago)
Public Bill CommitteesNationality and Borders Act 2022 View all Nationality and Borders Act 2022 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 4 November 2021 - (4 Nov 2021)
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 6 - Question accordingly agreed to.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Chair
Good morning, ladies and gentlemen. We enter the final lap. I have the usual announcements: electronic devices off, please, and no food or drink. Mr Speaker requests that Members wear face coverings as a courtesy to others; they are for the protection of others, not for the protection of yourself. I am not a terribly good example, but I cannot breathe with a mask on. Hon. Members are also asked to take covid lateral flow tests twice a week if coming on to the estate. I do not know whether hon. Members have done that; it might be a good thing to do before we depart for a week. Finally, Hansard would appreciate speaking notes.
New Clause 6
Expedited appeals: joining of related appeals
“(1) For the purposes of this section, an ‘expedited section 82 appeal’ is an expedited appeal within the meaning of section 82A of the Nationality, Immigration and Asylum Act 2002 (expedited appeals for claims brought on or after PRN cut-off date).
(2) For the purposes of this section, a ‘related appeal’ is an appeal under any of the following—
(a) section 82(1) of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims), other than one which is an expedited section 82 appeal;
(b) section 40A of the British Nationality Act 1981 (appeal against deprivation of citizenship);
(c) the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (appeal rights in respect of EU citizens’ rights immigration decisions etc);
(d) regulation 36 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it continues to have effect following its revocation.
(3) If a person brings an expedited section 82 appeal at a time when a related appeal brought by that person is pending, the related appeal is, from that time, to be continued as an appeal to the Upper Tribunal and accordingly is to be transferred to the Upper Tribunal.
(4) If an expedited section 82 appeal brought by a person is pending, any right that the person would otherwise have to bring a related appeal to the First-tier Tribunal is instead a right to bring it to the Upper Tribunal.
(5) A related appeal within subsection (3) or brought to the Upper Tribunal as mentioned in (4) is referred to in this section as an ‘expedited related appeal’.
(6) Tribunal Procedure Rules must make provision with a view to securing that the Upper Tribunal consolidates an expedited related appeal and the expedited section 82 appeal concerned or hears them together (and see section 82A(4) of the Nationality, Immigration and Asylum Act 2002).
(7) Tribunal Procedure Rules must secure that the Upper Tribunal may, if it is satisfied that it is in the interests of justice in the case of a particular expedited related appeal to do so, order that the appeal is to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal.
(8) For the purposes of this section, an appeal is ‘pending’—
(a) in the case of an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (including an expedited section 82 appeal), if it is pending within the meaning of section 104 of that Act;
(b) in the case of an appeal under section 40A of the British Nationality Act 1981, during the period—
(i) beginning when it is instituted, and
(ii) ending when it is finally determined or withdrawn;
(c) in the case of an appeal under the Immigration Citizens’ Rights Appeals (EU Exit) Regulations 2020, if it is pending within the meaning of regulation 13 of those Regulations;
(d) in the case of an appeal under the regulation 36 of the Immigration (European Economic Area) Regulations 2016, if it is pending within the meaning of Part 6 of those Regulations (see regulation 35).
(9) In section 13(8) of the Tribunals, Courts and Enforcement Act 2007 (decisions excluded from right to appeal to the Court of Appeal), after paragraph (bza) (inserted by section 21) insert—
‘(bzb) any decision of the Upper Tribunal on an expedited related appeal within the meaning given by section (Expedited appeals: joining of related appeals) of the Nationality and Borders Act 2021 (expedited appeals against refusal of protection claim or human rights claim: joining of related appeals),’.”—(Tom Pursglove.)
This new clause (to be inserted after clause 21) provides that where a person brings an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 that is subject to the expedited procedure under the new section 82A of that Act, certain other appeals brought by that person are also to be subject to the expedited procedure.
Brought up, and read the First time.
The Parliamentary Under-Secretary of State for the Home Department (Tom Pursglove)
I beg to move, That the clause be read a Second time.
The new clause would be inserted after clause 21. It forms part of a package of measures that will enable the swift removal of those who have no right to be in the UK. It complements clause 21 by ensuring that individuals cannot utilise the appeals system as a tool to delay their removal from the UK.
Frequently, those facing removal or deportation from the UK utilise delay tactics, such as late claims and repeated appeals, to thwart removal action. That leads to unnecessary costs to the taxpayer and an increased burden on the court and tribunals system. Clause 21 addresses that issue by creating a new expedited appeal for late human rights or protection claims brought by recipients of a priority removal notice, as provided by clause 18. Expedited appeals will be determined quickly, and the decisions of the upper tribunal will be final. Therefore, clause 21 removes the incentive for bringing claims late and protects the appeal system from abuse.
However, there may be additional appeal rights generated by other claims that individuals may seek to exercise in parallel with an expedited appeal. Such additional appeals would usually be heard in the first tier tribunal. Consequently, an expedited appeal may conclude while an individual has an outstanding appeal in the first tier tribunal, which would prevent their removal from the UK.
New clause 6 enables other appeals in the first tier tribunal brought by a person with an expedited appeal to be heard and determined by the upper tribunal alongside the expedited appeal. That will ensure that, following the conclusion of the expedited process, final determination will have been made on the appellant’s right to remain in the UK and, where the upper tribunal decides that they have no right to remain, removal action can take place.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I welcome the Minister back to his place. I do not follow the logic of the new clause at all. If somebody is trying to play the system—and I do not like talking in those terms—surely all they need to do is not make a late claim in terms of the PRN notice; then, their existing appeal would proceed normally, with onward rights of appeal and so on. This proposal just does not make sense, even if we accept the Government’s logic, which I do not.
Tom Pursglove
The point is exactly as I have set out: in the immigration system, we see repeated appeals deliberately designed to frustrate the system, and the new clause is an appropriate way, with appropriate safeguards, to ensure that the tribunal process can handle those appeals appropriately. It makes sense for appeals to be considered together so that attempts to frustrate the removal process cannot happen and cases are determined as quickly as possible. As I say, there are appropriate judicial safeguards in place in the tribunal process to ensure that appeals are heard appropriately and are directed through the appropriate tribunal. I commend the new clause to the Committee.
Stuart C. McDonald
Briefly, there are two reasons why I do not think this new clause makes any sense at all. First, there is the point that I just alluded to. The danger is that if someone who has a PRN served on them is contemplating disclosing further information or making a claim and the deadline passes, and they are acting in the way that the Minister wants to get at here and trying to “play the system”, they will simply not make that disclosure. Their existing claims will proceed to appeal through the normal channels, to a first tier tribunal with onward appeal rights. So the proposals do not make sense, even by the Government’s own logic. Can the Minister address that?
Secondly, we object to the new clause from a point of principle. The rare occasions when I would accept that an expedited appeals process can be justified are where the justifications relate solely to manifestly unfounded or repeat claims, but that is not what this is about; this is about expediting appeals and rights to appeal, but not because of the substance of the appeal—it has absolutely nothing to do with the merits of the claim or the related appeal at all. So the proposals make no sense from the point of view of principle, as well as being rather illogical.
Bambos Charalambous (Enfield, Southgate) (Lab)
Again, briefly, I agree with everything the Scottish National party spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, has just said. We do not know at what stage the other appeal will be; it may not be ready to be heard. One problem we have in this country is the delay in the appeals processes because of severe underfunding in our court and tribunal systems, so it seems that the new clause will not work.
The new clause will also cause more problems than it solves. I am not sure that there is a huge problem with multiple outstanding appeals in any event, but the new clause could actually make things worse. If the intention in the Bill is to provide fairness, the new clause will not achieve that, because speeding up an appeal could cause unfairness. So for the reasons outlined by the SNP spokesperson we will not support the new clause.
Tom Pursglove
The bottom line is that we simply disagree on this matter. Clause 21 ensures that appeals relating to late human rights or protection claims are dealt with expeditiously, with decisions by the upper tribunal being final. This provides appellants with a swift determination of their claim. It also disincentives late claims and seeks to prevent sequential or multiple appeals from being utilised as a tactic to thwart removal.
However, the Government recognise that in certain circumstances an individual may exercise other appeal rights, in parallel with their expedited appeal. This could give rise to a situation whereby a person has an appeal in a first tier tribunal and an expedited appeal in the upper tribunal. Consequently, the expedited appeal may conclude while an individual has an outstanding appeal in a first tier tribunal. If the appellant was unsuccessful in their expedited appeal, the ongoing appeal in the first tier tribunal would prevent their removal from the UK. This outcome is undesirable and undermines the Government’s intention to disincentivise late claims by ensuring that appeals relating to such claims are determined quickly and conclusively.
The new clause ensures that where a person has an expedited appeal, any related appeal will also be subject to the same expedited process. Therefore, following the conclusion of the expedited process, the appellant’s right to remain in the UK will be determined with finality and, where an individual has no right to remain in the UK, removal action can take place. That is the logical and sensible approach that we propose to take.
Question put and agreed to.
New clause 6 accordingly read a Second time, and added to the Bill.
The Chair
Let me explain the process from now on for about the next 10 minutes. We now come to a sequence of Government new clauses, all of which have been debated already with other clauses or amendments. I shall say to the Minister, “Will the Minister move formally?” The Minister, being obedient, will say, “Moved formally.” The Clerk will then read the title of the clause and I will put the questions that it be read a second time and that it be added to the Bill. I gently suggest to the Opposition that there is not much point in calling a Division on both those questions—you can, but it will take a lot longer. Let us see how we get on.
New Clause 7
Accelerated detained appeals
“(1) In this section ‘accelerated detained appeal’ means a relevant appeal (see subsection (6)) brought—
(a) by a person who—
(i) was detained under a relevant detention provision (see subsection (7)) at the time at which they were given notice of the decision which is the subject of the appeal, and
(ii) remains in detention under a relevant detention provision, and
(b) against a decision that—
(i) is of a description prescribed by regulations made by the Secretary of State, and
(ii) when made, was certified by the Secretary of State under this section.
(2) The Secretary of State may only certify a decision under this section if the Secretary of State considers that any relevant appeal brought in relation to the decision would likely be disposed of expeditiously.
(3) Tribunal Procedure Rules must secure that the following time limits apply in relation to an accelerated detained appeal—
(a) any notice of appeal must be given to the First-tier Tribunal not later than 5 working days after the date on which the appellant was given notice of the decision against which the appeal is brought;
(b) the First-tier Tribunal must make a decision on the appeal, and give notice of that decision to the parties, not later than 25 working days after the date on which the appellant gave notice of appeal to the tribunal;
(c) any application (whether to the First-tier Tribunal or the Upper Tribunal) for permission to appeal to the Upper Tribunal must be determined by the tribunal concerned not later than 20 working days after the date on which the applicant was given notice of the First-tier Tribunal’s decision.
(4) A relevant appeal ceases to be an accelerated detained appeal on the appellant being released from detention under any relevant detention provision.
(5) Tribunal Procedure Rules must secure that the First-tier Tribunal or (as the case may be) the Upper Tribunal may, if it is satisfied that it is in the interests of justice in a particular case to do so, order that a relevant appeal is to cease to be an accelerated detained appeal.
(6) For the purposes of this section, a ‘relevant appeal’ is an appeal to the First-tier Tribunal under any of the following—
(a) section 82(1) of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims);
(b) section 40A of the British Nationality Act 1981 (appeal against deprivation of citizenship);
(c) the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (appeal rights in respect of EU citizens’ rights immigration decisions etc);
(d) regulation 36 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it continues to have effect following its revocation.
(7) For the purposes of this section, a ‘relevant detention provision’ is any of the following—
(a) paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);
(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);
(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal);
(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).
(8) In this section ‘working day’ means any day except—
(a) a Saturday or Sunday, Christmas Day, Good Friday or 26 to 31 December, and
(b) any day that is a bank holiday under section 1 of the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where the appellant concerned is detained.
(9) Regulations under this section are subject to negative resolution procedure.”—(Tom Pursglove.)
This new clause expands the categories of immigration appeals that can be subject to the accelerated detained appeals process that was introduced by clause 24.
Brought up, and read the First and Second time.
Question put, That the clause be added to the Bill.
Tom Pursglove
I thank the hon. Members for Enfield, Southgate and for Halifax for tabling new clause 1 and providing the Committee with this opportunity to consider placing the Afghan citizens resettlement scheme on a statutory footing and lifting the 5,000 person limit for the first year.
The UK has a proud history of supporting those in need of protection, and I understand the concerns that Members of the House have about the plight of people from Afghanistan. During Operation Pitting, the Government and military worked around the clock to airlift about 15,000 people out of Afghanistan—the biggest airlift from a single country for a generation. The Government have relocated thousands of people who loyally served our military in Afghanistan, and we continue to help more.
In addition, the Afghan citizens resettlement scheme is one of the most ambitious resettlement schemes in our country’s history. It will give up to 20,000 people at risk a new life in the UK. Our current schemes are non-legislative, operating outside the immigration rules and on a discretionary basis. Operating in this way has seen us resettle over 25,000 vulnerable people since 2015. Placing the Afghan citizens resettlement scheme on a statutory footing would make it less flexible and less able to respond to changing circumstances internationally.
A huge programme of work, called Operation Warm Welcome, is under way across the whole of Government to ensure that Afghans evacuated to the UK receive the vital support they need. This work, overseen by the Minister for Afghan Resettlement, my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), spans different Government Departments, charities, non-governmental organisations, local authorities and communities. The aim is to ensure that Afghans can be properly supported as they rebuild their lives in the UK, while also ensuring that local services are not put under undue strain. The support being provided is similar to that of the vulnerable persons resettlement scheme in response to the conflict in Syria, to ensure that people get the vital healthcare, education, support into employment and accommodation they need to fully integrate into society.
There are many who need our protection, and the UK plays a leading role as one of the world’s largest refugee resettlement states. However, regrettably the UK is not able to provide protection to everyone, and it is essential that any decisions regarding the number of people we resettle take into consideration our capacity to support people to rebuild their lives in the UK. We are clear that the number of people we can resettle depends on a variety of factors, including local authorities’ capacity.
Paul Blomfield (Sheffield Central) (Lab)
I just want to pick up on the Minister’ point, which he has made time and again, about the UK leading on resettlement. Does he accept the figures that show that since the start of 2020, the UK has resettled 1,991 refugees, according to the United Nations High Commissioner for Refugees? That is less than France, less than half the number for Germany, and about a quarter of the number for Sweden. In what way is that a leading role?
Tom Pursglove
I think it is fair to say that this country historically has had a leading role in resettling refugees, and the hon. Gentleman will recognise that we have debated this many times during the course of this Committee’s proceedings, and I have referred to the figure of 25,000 people on several occasions. I am confident that that proud tradition will continue. I am not privy to the figures that he has just cited, but I make the point that we have also been in a pandemic, which clearly has had knock-on effects across life and society in our country and in the international environment.
Jonathan Gullis (Stoke-on-Trent North) (Con)
It sounded as though the hon. Member for Sheffield Central was asking for unfettered, uncontrolled, open-border access to this country. We have already had 20,000 illegal economic migrants crossing the English channel. I was down in Dover yesterday with Baroness Hoey, the former Labour Member of Parliament, and saw with utter shock the situation regarding the illegal attempts at crossing. Does the Minister agree that the hon. Gentleman’s words show that the Labour party is out of touch with what people want?
Tom Pursglove
I am grateful to my hon. Friend for that intervention, and no doubt we will have a conversation about his visit to Dover.
Bambos Charalambous
As I mentioned in my speech, the Government chose who came into the UK through the voluntary resettlement scheme and they will do so under this scheme as well. Remarks about giving unfettered or unlimited access to everyone are therefore ludicrous, because the Government will be in control of who can enter the UK from Afghanistan through this scheme. To make such aspersions is clearly wrong and misleading.
Tom Pursglove
The shadow Minister interrupted me while I was responding to the point made by my hon. Friend the Member for Stoke-on-Trent North, and, of course, I was happy to take his intervention. The scheme we intend to bring forward is structured and it should not be seen in isolation in relation to Afghanistan. It is important to consider it in the context of the Afghan relocations and assistance policy, which has been invaluable and plays an important role in our efforts to provide sanctuary to those fleeing Afghanistan. That is very important to consider.
To continue with my point about the participation of civil society in community sponsorship, we have been working around the clock to stand up support with local authorities and to secure accommodation for the scheme. There is a huge effort under way to get families who have already been evacuated to the UK into permanent homes so that they can resettle and rebuild their lives. Clearly, we do not want families to remain in bridging accommodation for long periods, so it is sensible to have a limit on the number of places we offer on the scheme.
The new clause seeks to bring the Afghan citizens resettlement scheme into force within 30 days from the date of Royal Assent. We are working at pace to open the scheme, and the new clause would likely result in significant delays in resettling individuals under the scheme.
During the passage of the Bill, we have had many debates relating to Afghanistan. I said previously that I would ensure that the Minister for Afghan Resettlement was made aware of the Committee’s comments, and I will endeavour to do that again. It is important that all views are heard as we work at pace to shape this scheme and to make sure that we get it right, so that we are able to provide sanctuary to those to whom Members across the Committee and across the House want to provide it.
Previous schemes have not been delivered through legislation. I would argue that it is best to be responsive and flexible, and that not putting the scheme on a statutory basis has that effect. The shadow Minister used the word “rigid”. I would argue that not going down the statutory route ensures we can be flexible as to the evolving situation, and provide proper care and support to people who come here.
We want coming to the UK to be a positive and life-changing experience, and we want to provide sanctuary and care for those individuals. I am confident that that is precisely what we will do in delivering this scheme and that our country will be able to be incredibly proud of it. We owe it to those individuals to provide them with sanctuary, and that is precisely what we will do. With that, I ask the hon. Members to withdraw the new clause.
Bambos Charalambous
I am not convinced by the Minister’s arguments, which clearly amount to a new cap on immigration. I will repeat the number for the benefit of the hon. Member for Stoke-on-Trent North: there are 5 million people potentially eligible to come to the country via the British national overseas visa scheme; we are just asking that more than 5,000 people are able to come from Afghanistan. If that limit is rigidly applied, people’s lives could be in danger.
Question put, That the clause be read a Second time.
Stuart C. McDonald
I have said a lot about asylum accommodation in previous years and months. I agree that there are huge problems with the asylum accommodation system, such as over-concentration, too often poor-quality accommodation, a lack of funding for the local authorities that actually step up to the plate and volunteer to undertake the task, and a lack of control and power for those local authorities. Too often they play second fiddle to the companies and organisations contracted to the Government.
I support broadening dispersal, but I am not on board at this stage with mandating it. Repeatedly, local authorities, whether in the west midlands, Glasgow or elsewhere, and other organisations such as the Home Affairs Committee, on which I sit—we have had a couple of reports on this issue—have listed all the things that the Home Office could engage with and undertake to improve the system. I know from speaking to authorities that if the Home Office did those things and increased the powers and financing of local authorities, more would come on board. If the Home Office did that, I do not think that mandation would be required.
If the Home Office fixes its end of the bargain and local authorities are still not getting on board, at that stage I would have no choice but to support mandation, but I do not think that we are at that stage yet. I, too, will quote Abi Brown, who was very measured in her comments when local authorities from the west midlands were writing to the Home Office. She said:
“This is about trying to open up a discussion about how the asylum dispersal system works. So far it’s been very frustrating trying to get the Home Office to engage with us on this issue. We want them to talk to us about how the system can be improved, and we’ve made a number of suggestions in the letter.”
She went on to say:
“This isn’t about party politics, it’s about parity.”
I absolutely agree with that. There is a growing consensus that the Home Office has to up its game on how the dispersal system works. That is what we have to look at, rather than mandating local authorities.
Tom Pursglove
I agree with some of the intention behind new clause 2. It is right that all parts of the UK make a reasonable contribution to ensuring that adequate accommodation is available for asylum seekers who would otherwise be destitute, but it is important to recognise that not every area of the UK has appropriate services or affordable accommodation to appropriately support them. Additionally, some local authorities have very few asylum seekers accommodated by the Home Office in their areas but support large numbers of other migrants. For example, the Home Office does not accommodate many adult asylum seekers and their children in Kent or Croydon, but both local authorities support large numbers of unaccompanied asylum-seeking children.
It is also important to note that not all asylum seekers are accommodated by the Home Office. The proportion varies over time, but historically around 50% find accommodation with friends or family. That group often live in areas where there are few supported asylum seekers, but they still require access to the same health and education services. It is not therefore sensible to have a rigid set of rules that require destitute asylum seekers to be accommodated in areas in direct proportion to the population of those places. The other factors that I have described must be taken into consideration.
Since the introduction of part 6 of the Immigration and Asylum Act 1999, successive Governments have employed a policy of seeking the agreement of local authorities prior to placing asylum seekers within an area. However, the legislation does not provide local authorities with a veto on the placement of asylum seekers in their areas. If a local authority objects to proposals by our providers to use accommodation not previously used to house asylum seekers, the Home Office can consider and adjudicate on the matter.
A lot of work has none the less been done on increasing local authority participation in asylum dispersal since 2015. Prior to 2015, there were around only 100 local authorities participating. There are now around 140. We have established the local government chief executive group to bring together senior representatives from local authorities, with the aim of expanding the dispersal system and improving the process for the people who use it. We are planning a wider review of the dispersal process and will be consulting local authorities and others.
The local government chief executive group is working collaboratively to evidence any additional costs to local authorities by the dispersal proposal and to identify the appropriate funding mechanism. In light of what I have said, I hope that the hon. Member for Enfield, Southgate will withdraw the motion.
Bambos Charalambous
I am sorry, but I suggest that we vote on the new clause.
Question put, That the clause be read a Second time.
Bambos Charalambous
I beg to move, That the clause be read a Second time.
We believe that new clause 3 is necessary because of an issue relating to comprehensive sickness insurance, which has been affecting EU citizens and babies born in the UK to EU parents. The issue is preventing naturalisation or automatic access to the right to be registered as British born. We believe that that is unfair and incorrect. Historically, access to the NHS for European economic area and Swiss citizens was free at the point of use, on the same terms as residents who are British citizens, without the need for any further insurance.
The Immigration (European Economic Area) Regulations 2016 included a requirement for comprehensive sickness insurance, but this requirement was not routinely communicated to EEA and Swiss citizens, and was only required at the point of applying to the Home Office. This has led to a situation where individuals have been refused permanent residence documents, naturalisation applications and citizenship at birth, and have lost family reunion rights under the separation agreements following a discretionary grant of naturalisation. Not only was the requirement for comprehensive sickness insurance not made clear prior to applying to the Home Office, but CSI might not have been relevant to EEA or Swiss citizens, such as during periods of study or self-sufficiency.
I will set the issue in a wider context. The UK has set up the EU settlement scheme, which allows EU citizens to acquire settled status, but many want to become British. They want the right to vote and the security of the nationality of their adopted home, the United Kingdom. However, the requirement to have an obscure health insurance policy is putting applications at risk of refusal and is discouraging many from applying. The British Nationality Act 1981 requires applicants to have not been in breach of immigration laws for any period relied on in the application. While a lot of EU citizens need only to have been living in the UK, students and those who are self-sufficient must also be in possession of comprehensive sickness insurance. However, the possession of CSI has never been a requirement for EU citizens to live in the UK or use the NHS, so most people do not and never have had it.
More concerning is the fact that the Home Office never communicated clearly to EU students and self-sufficient people that they would need to have CSI to become British. The Home Office, which is in charge of decisions relating to applications for citizenship, has maintained the policy despite questions from various organisations, including the3million. In May 2020, updated guidance to caseworkers confirmed the policy, changing the application process to ask for CSI and directing caseworkers to check for it. The guidance introduced a vague power of discretion, but no details were provided as to how that discretion should be applied.
In the Opposition’s view, it is clearly unfair that this anomaly relating to CSI has led to historical and ongoing injustices. It is not fair that what appears to be an additional random requirement for one group of citizens—not communicated prior to application—has, in effect, defined people’s ability to naturalise or claim citizenship.
We therefore believe that the new clause is needed to make the law fair. The historical requirement demanding that individuals hold CSI should also be satisfied by them having had free access to the NHS at the point of use without further insurance. The addition of historical access to the NHS as a satisfying condition would be much fairer. I will give some examples to further illustrate the need for this.
Roberto is Portuguese and arrived in the UK in 2006. He did an undergraduate degree in the UK, where he met his wife. During their university years, they studied full time and did not have CSI as they were never made aware of that requirement for full-time EU students in the UK. They had a son in the UK in 2011 and applied for his British passport, believing that he would automatically be born British.
However, when Roberto and his wife contacted the Home Office for information about the passport application, they were told that as they had not had CSI in the five years preceding the birth, he was not considered to be British. This new clause would address this problem, as the parents’ CSI requirement would have been met by their having had access to the NHS. Consequently, the fact that the child should have been born British can now be addressed by registering for British citizenship at no charge.
I would like the Committee to consider another example illustrating the need for this new clause. Lara is a Brazilian-Italian citizen who has been living in the UK since 2014. Between 2014 and 2017, Lara was in work, but she started a full-time degree at the University of Cambridge in September 2017. In July 2019, Lara was granted settled status under the EU settlement scheme and was looking forward to applying for naturalisation as a British citizen in 2020 after holding settled status for a year. Lara has since started working again, and has been made aware that she should have held CSI while she was at university—a requirement she was never made aware of by either her university or her GP.
If Lara applies for naturalisation, she may fail the lawful residence requirements due to the absence of CSI and may have her application refused. Since late 2020, caseworkers have had the discretion to grant citizenship when there are compelling grounds, although those are not clearly defined in any Home Office guidance. Therefore, like many other EU citizens, Lara is afraid of taking the risk of paying the £1,330 naturalisation fee and not obtaining a positive outcome.
Our new clause would mean that the period of residence that led to the grant of settled status would be considered to be lawful residence, and that the good character requirement could not be failed for a lack of CSI. That would give EU citizens like Lara the confidence to apply for naturalisation, knowing that they would meet all the criteria.
It is important to note that if Lara applies for citizenship and is granted it through caseworker discretion, the CSI issue is likely to still affect her in the future. If she then wished to be joined by a family member in the UK, the complex appendix EU immigration rules, which define the EU settlement scheme, mean that she would fall outside the definition of “qualifying British citizen” due to her historical lack of CSI, and therefore lose the scheme’s right to family reunion. If Lara does not become a British citizen, she would have that right through having settled status.
The new clause would mean that for future decisions taken under the immigration rules, the CSI requirement would be met by access to the NHS, meaning that EU citizens like Lara would not unexpectedly lose the rights they had before naturalising. We believe that this new clause is needed to address this unfair anomaly around CSI.
Tom Pursglove
I thank the hon. Members for tabling the new clause, which relates to the requirement, in certain circumstances, for EEA nationals to have had comprehensive sickness insurance to have been residing lawfully in the UK. Regulations set out the requirements that EEA nationals needed to follow if they wished to reside here lawfully on the basis of free movement. In the case of students or the self-sufficient, but not those who were working here, the possession of CSI has always been a requirement.
Stuart C. McDonald
It is useful that guidance exists, but does the Minister appreciate that if somebody is considering spending more than £1,000 to make an application and there is no clarity—nothing stronger—they almost certainly will not take the risk? Is it not possible to put something firmer into the guidance for caseworkers to say that, in the overwhelming majority of cases, the lack of CSI should be ignored?
Tom Pursglove
The hon. Gentleman will appreciate that this matter falls within the portfolio of the Minister for Future Borders and Immigration, so if the hon. Gentleman does not mind, I shall take away that suggestion and ask the Minister to consider it. If the hon. Gentleman wants to follow up in writing with the Minister, I am sure my hon. Friend would consider that and come back to him. I will certainly make sure that he is aware of the suggestion the hon. Gentleman raises.
The new clause would amend the naturalisation requirements for EEA nationals who did not have CSI and so had not been in the UK lawfully before they acquired settled status. We cannot accept that, as all applicants are required to meet the same requirements for naturalisation in terms of lawful residence and it would not be right to treat certain nationalities differently.
The third part of the new clause would amend the European Union (Withdrawal Agreement) Act 2020 such that a person is treated as having had CSI if they had access to the NHS in practice or held a CSI policy. However, there is no mention of CSI in the rest of that Act, nor is there any mention of CSI in residence scheme immigration rules. The EU settlement scheme does not test for CSI and there is no need to have held it in the past, or to hold it now, in order for EEA nationals to obtain settled or pre-settled status. As such, that part of the new clause would have no practical effect. I therefore ask the hon. Members to withdraw their new clause.
Bambos Charalambous
I will press the new clause to a Division.
Question put, That the clause be read a Second time.
Tom Pursglove
I appreciate the positive intent behind new clause 4, which seeks to create a means whereby, in the future, British citizens who were born on, or descended from a person born on, the British Indian Ocean Territory will be able to bring their foreign national spouse or partner to the UK, without their being subject to the current financial and English language requirements for family migration.
I remind hon. Members that the minimum income requirement is based on in-depth analysis and advice from the independent Migration Advisory Committee. The purpose of the requirement, implemented in July 2012 along with other reforms of the family immigration rules, is to ensure family migrants are supported at a reasonable level so they do not become a burden on the taxpayer and can participate sufficiently in everyday life to facilitate their integration into British society. Family life must not be established here at the taxpayer’s expense and family migrants must be able to integrate if they are to play a full part in British life.
The minimum income requirement was set following advice from the independent Migration Advisory Committee, at £18,600 for sponsoring a partner, rising to £22,400 for also sponsoring a non-qualifying child and an additional £2,400 for each further such child. There is no flexibility in the level of the minimum income requirement, which must be met in all cases subject to the requirement; it is right and fair it should be consistently applied in all cases. Expecting family migrants and their sponsors to be financially independent is reasonable, both to them and the taxpayer.
In February 2017, the Supreme Court upheld the lawfulness of the minimum income requirement under the family immigration rules. The Court found the minimum income requirement is not a breach of the right to respect for a private and family life under article 8 of the European convention on human rights and is not discriminatory. The Supreme Court endorsed our approach in setting an income requirement for family migration that prevents burdens on the taxpayer and ensures migrant families can integrate into our communities. The Supreme Court agreed that it strikes a fair balance between the interests of those wishing to sponsor a partner to settle in the UK and of the community in general.
Being able to speak English is also fundamental to successful integration into British society.
Stuart C. McDonald
I would just gently say that the response is slightly tone deaf. First, the Migration Advisory Committee has asked the Government to revisit the financial thresholds the Minister mentions. Secondly, we are talking about Chagossians who were forcibly removed from their islands. Consistency is fine, but these are truly exceptional circumstances. Surely most taxpayers would perfectly understand that different rules have to apply in these outrageous circumstances.
Tom Pursglove
In fairness, the hon. Gentleman has intervened early in my remarks on the new clauses. Let me continue, but I hear the point he raises, and I of course take it on board, in the way I take all comments from hon. Members on the Committee on board.
We expect those coming to the UK on a family visa with only basic English to become more fluent over time, as a means of encouraging better integration into our society, to make it easier for families to access vital public services and to enable parents to support their children’s education.
New clause 4 would undermine the sound basis on which family migration to this country has been placed in recent years. It would circumvent the need for family migration to be on a basis whereby families are financially independent and able to contribute to the UK. It would also remove the English language requirement, which is fundamental to a migrant’s successful integration into British society. There is no justifiable reason to give preferential treatment to family members based solely on their sponsor’s nationality. Without a clear justification for doing so, that would also likely constitute unlawful discrimination.
The immigration rules on family migration, which new clause 4 would undermine, are designed to prevent burdens on the taxpayer, promote integration and tackle abuse, and thereby ensure that family migration to the UK is on a properly sustainable basis that is fair to migrants and the wider community. The rules are helping to ensure public confidence in the immigration system and, well intended as the new clause may be, it has the potential to reverse that.
In the same way, the introduction of a dual family migration system as required by the new clause would not be seen in a uniformly positive way by British citizens and persons settled here. It would lead to an undesirable two-tier system of family migration in which a group of family members whose sponsor is a British citizen with a connection to the British Indian Ocean Territory would be given preferential treatment over other sponsors. Furthermore, the Government have the power under the Immigration Act 1971 to set out the requirements for entry into and stay in the UK in immigration rules, which are laid before Parliament. The rules allow flexibility to amend policy as appropriate, and the Government continue to review them regularly to ensure that they are fair and effective. Work is ongoing on simplification of the rules following the Law Commission’s recommendations. The new clause would have the effect of undermining that process and prescribing the rules in primary legislation for one particular cohort.
I turn to new clause 15. We are already making changes through the Bill to address historic unfairness so that all those born on the British Indian Ocean Territory and their children are either automatically British citizens or have the right to acquire British nationality. The new clause, tabled by the hon. Members for Enfield, Southgate and for Halifax, seeks to go much further and would address what is seen as the consequences of historic unfairness. Although I am sympathetic with the aim, I am concerned that that is not the correct approach. The new clause would offer British citizenship in perpetuity to those born outside the UK and overseas territories regardless of their connection to the UK as long as they are descendants of someone born on the islands making up the British Indian Ocean Territory.
Stuart C. McDonald
I am not entirely surprised that the Minister’s first point is about the lack of any limit. Would the new clause be more amenable to him if there was a limit on the degree of relationship there had to be with a Chagossian?
Tom Pursglove
If the hon. Gentleman lets me conclude my remarks, I hope that that will give him a little comfort on that point. The approach proposed by the new clause cannot be right and would undermine the long-standing principle of British nationality law that nationality or entitlements to nationality are not passed on to the second and subsequent generations born and settled outside the UK and territories.
I recognise, however, that the Chagossians present a unique case. My hon. Friend the Member for Crawley, who has long campaigned on behalf of the Chagossian communities both in his constituency and throughout the UK as vice chair of the Chagos islands (British Indian Ocean Territory) all-party parliamentary group, has indicated his intention to table an amendment on this issue on Report. I would like to reflect further on the complex issues faced by Chagossian communities in the UK and those in Mauritius and the Seychelles that have been raised by hon. Members on both sides of the Committee—I am mindful of the cross-party view—before making any significant changes to nationality law.
Hon. Members from different parties have expressed views, and I have taken on board the points raised. I say to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that there is a willingness to look closely at the Chagossian issue. With that, I hope that hon. Members will be willing not to move their new clauses.
Stuart C. McDonald
As the Minister said, we will consider what has been said before we revisit this issue on Report. In the meantime, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 5
Former British-Hong Kong service personnel: right of abode
‘(1) The Immigration Act 1971 is amended as follows.
(2) At the end of section 2(1) insert—
“(c) that person is a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service, or
(d) that person is the spouse or dependent of a former member of the Hong Kong Military Service Corps or the Hong Kong Royal Naval service.’—(Stuart C. McDonald.)
This new clause would mean that all former British-Hong Kong service personnel, plus their spouses and dependents, would have right of abode in the UK.
Brought up, and read the First time.