Crime and Antisocial Behaviour: Small Towns

Afzal Khan Excerpts

Wednesday 5th June 2019 Westminster Hall

[Afzal Khan (Manchester, Gorton) (Lab)]

I congratulate my hon. Friend the Member for Batley and Spen (Tracy Brabin) on securing this vital debate.

Since records began, violent crime has never been as high as it is today. Knife crime has never been as high—homicides involving knives increased by 22%—while arrests, the currency of deterrence, have halved in a decade. Unsolved crimes stand at an almost unthinkable 2 million cases. Each of those numbers represents victims, families and friends who have been scarred by violence, and together they represent a national crisis.

Two key things cause rising crime: cutting police numbers and slashing funding for youth services. What have this Government done? They have cut police numbers and slashed funding for youth services. To begin with the police cuts, it is important to remind the House that the Conservative party promised the public that its cuts would not hit the policing frontline. One week before the 2010 election, the previous Tory leader, David Cameron, said:

“Any cabinet minister…who comes to me and says ‘here are my plans’ and they involve front-line reductions, they’ll be sent straight back to their department”.

Five years later, the current Prime Minister claimed that the frontline service had been protected, but we now know that that was not true.

Police numbers are at their lowest for 30 years. We have lost 21,000 officers, more than 6,000 PCSOs and more than 15,000 police staff, including crime investigators. My own police force in Greater Manchester has lost 2,000 officers since 2010. No Government in post-war history—none—have cut police numbers in every year that they have been in office.

The public instinctively understand that cutting police numbers causes rising crime. After all, as the Home Secretary said recently, it is “not exactly rocket science”. Under-resourced police are forced to focus purely on reactive policing. Hotspot policing is known to reduce crime in areas where there has been a surge. Far from simply pushing it away into other areas, evidence suggests that the benefits are felt in areas outside where the hotspot policing is focused. It should therefore concern hon. Members that Chief Constable Thornton, the chair of the National Police Chiefs’ Council says:

“I am utterly convinced that intelligence-led policing with a focus on prolific offenders and hot-spot locations makes a real difference. But few officers and staff are able to do less policing.”

Local policing has been shown to increase the legitimacy of the police, which encourages the local community to provide intelligence and report crimes and suspicious behaviour.

Last year, as part of the national initiative to spend a day with the police, I spent a day with my old force, Greater Manchester police. The officers told me that they no longer had the resources to go into schools and talk to students about what the police do and how to stay safe—a vital part of building community links. There is no doubt that the Tories have cut frontline policing, which is driving rising crime.

The second driver of rising crime is cuts to youth services. Our social safety net has been steadily unpicked by this Government. The most vulnerable are struggling to get support, starting at the very first stage of life. Sure Start was a lifeline for many vulnerable families, but it has been cut back and the support it can provide has been reduced. Schools have been crushed under the weight of punitive funding pressure. Cost cutting has hit teaching assistants and special educational needs—just the kind of targeted support that is needed by young people who are falling behind.

Chronic underfunding of the NHS means that young people are routinely denied the mental health support we know can reduce aggression. For those who set out on the wrong path, the Government have ensured an almost total lack of provision for those involved in gangs. Even at this late stage, education, training, employment and health services can reduce violence, including homicides. The sad truth is that, despite the research showing that specialist services for vulnerable youngsters and families can fundamentally alter outcomes, there is not the political will to create a system that will support them. Those decisions taken together have precipitated the crisis we face today.

The Government have cut police numbers to a historic low and cut youth services at every stage of development, and they are now surprised by record crime levels. The most despicable criminals are exploiting the space where well-run and effective early intervention, prevention and diversion strategies once existed.

Overseas Students: English Language Tests

Afzal Khan Excerpts

Tuesday 30th April 2019 Commons Chamber

[Caroline Nokes]

My hon. Friend will be reassured to learn that 400 colleges that had sponsored students linked to ETS already had their licences revoked before the BBC “Panorama” programme. I am conscious that the student route was linked to widescale abuse, and my right hon. Friend the Prime Minister acted swiftly when she was Home Secretary to remove the licences of a number of bogus colleges. As I said, it is important that we work with the NAO, reflect on its findings and find a way to move forward and assist those who might have been wrongly affected.

[Afzal Khan (Manchester, Gorton) (Lab)]

The Government’s treatment of innocent students has been unacceptable. Driven by the hostile environment and the net migration target, about 34,000 students’ visas have been cancelled. Can the Minister tell us how many of those cases are ongoing? Are any of these students currently in immigration detention? What steps is she taking to identify and compensate students who were wrongfully removed?

The TOEIC visa scandal has been rumbling for years. The Government have lost case after case in the courts. My right hon. Friend the Member for East Ham (Stephen Timms) has been raising the issue in Parliament for over a year, and students have been protesting outside Parliament. The Home Secretary told Parliament a year ago that he would look carefully at the issue, but no concrete action has been taken. Does the Minister appreciate the urgency of this issue? Thousands of students are living in limbo, unable to work or study while they attempt to clear their names.

The Windrush scandal exposed a culture of disbelief in the Home Office, motivated by removal targets rather than careful consideration of cases. We were promised a culture change, yet the Home Office is again being investigated by the National Audit Office for its cruel and ineffective handling of immigration cases. Does the Minister accept that the years of suffering these students have endured is a result of the coalition Government’s decision to remove legal aid and appeal rights?

We need a swift resolution to all outstanding TOEIC visa cases. The students have asked to be allowed to re-sit the English language tests, and that is a sensible suggestion. The UK’s reputation as a welcoming place for international students is suffering tremendously. International students are vital to our universities. They enhance the experience of UK students and further our soft power abroad, not to mention subsidising the fees of home students, but reports over the weekend suggested that EU students will be required to pay international fees, which the Minister could not confirm or deny yesterday. We now have the TOEIC visa scandal. What will be next?

[Caroline Nokes]

The hon. Gentleman has chosen to focus on a very small number of students who may have had incorrect results. What we know, and what the evidence shows, is that our response back in 2014 was driven by systematic fraud that was perpetrated in colleges and has seen significant criminal convictions and sentences of 70 years. We are working with the NAO and through the courts. As I said, the Home Office has taken a pragmatic approach to the judicial reviews and appeals coming through the courts, recognising that many of these individuals have been in the country for a significant period. Of course, the ability to speak English in 2019 does not necessarily mean that an individual did not cheat in 2014 or could speak English to the required level then.

I would like to comment more on what we are doing for international students. The UK has a proud track record of attracting an increasing number of students to this country. I am sure that the hon. Gentleman will welcome the commitment in the White Paper to continue to have no cap on the number of foreign students coming here and to make a more generous offer for post-study work arrangements for students who choose to come here. It is important that we support our world-class institutions and celebrate the fact that we have five British universities in the top 20 universities globally, and that we saw over the course of the past year a 10% increase in the number of tier 4 visas being applied for.

Oral Answers to Questions

Afzal Khan Excerpts

Monday 1st April 2019 Commons Chamber

[Caroline Nokes]

I thought my response was quite clear. I reiterate to the hon. and learned Lady that the best way to ring-fence citizens’ rights is to vote for the deal.

[Afzal Khan (Manchester, Gorton) (Lab)]

As of 30 March, the EU settlement scheme is fully open. Efforts to promote the EU settled status scheme are too little, too late. No matter how well the Government advertise, there will be people who fail to apply before the deadline. Even if that is just a small percentage, hundreds of thousands of people will be stripped of their rights and subjected to the hostile environment. Will the Government accept proposals for a declaratory scheme—the only way to avoid a repeat of Windrush for EU citizens?

[Caroline Nokes]

I thank the hon. Gentleman for his question. He will of course know that the first three phases of the scheme were in testing mode, and it opened publicly for the first time on Saturday. That was designed to coincide with a widespread communications campaign, on which the Government are spending £3.75 million. He well knows that we debated the issues about a declaratory scheme in the Committee stage of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. We are very conscious of the fact that we want people to have status that they can evidence. That is why we put the scheme in place. They will have digital status, which will provide them with the ability to share just the information that is required for landlords and employers. I encourage all hon. Members to ensure that EU citizens living in their constituencies take part in the scheme.

Royal Commission on Police Funding

Afzal Khan Excerpts

Tuesday 26th March 2019 Westminster Hall

[Afzal Khan (Manchester, Gorton) (Lab)]

I thank the hon. Gentleman for securing the debate. About 25 years ago, I served as a policeman in Greater Manchester police, which last summer ran a scheme that enabled MPs to go and experience what it is like. I agree with the hon. Gentleman that things have changed; things have changed since I was a police officer, and we can see that even more clearly if we look further back. How can we engage more Members so that we can go ahead with his good idea?

[Stephen Lloyd]

I thank the hon. Gentleman for his intervention, particularly as he used to be a police officer. His intervention is really useful, because he has hit the nail on the head. To make the idea work and to put enough pressure on the Government—they have one or two other things on their mind at the minute—we need to grow the number of Members who back it in Parliament, and grow it in the media. We have a good support base of 51 Members. I was talking to some peers last night, and we are looking to push this in the Lords as well. To me, it is self-evident that policing has transformed, and that policing needs have completely changed in almost 60 years.

As I said, the changes in police forces have been piecemeal. It is difficult for politicians today to understand what the real issues are, because so many different groups give us different ideas and solutions. Only a week or so ago, we had the Prime Minister saying that the cuts in police numbers bore no relation to the increase in knife crime, and the following day the Metropolitan Police Commissioner saying that they did.

I am not making a political point. I believe we need this royal commission because the public yearn to have a group of independent experts—not politicians or the media, but people from policing around the world—taking evidence from a whole range of groups. On a royal commission, such people would be recognisably independent and expert. Using the evidence that was given, they could assess what was fact and what was fiction. I use those words advisedly, because when I and other politicians try to understand policing issues, be they about resourcing or about what we ask the police to do, one problem is that we are told so many different things.

I am not an expert. Unlike the hon. Member for Manchester, Gorton (Afzal Khan), I have not been a policeman.

[Stephen Lloyd]

That is a moot point, but the hon. Gentleman’s intervention reflects precisely my point: we can no longer have piecemeal changes, with one force doing one thing and another force doing another. A lack of consistency is at the heart of the problem of poor morale within police forces and a lack of engagement, support and trust among many of the public.

Let us take the numbers. Our ratio of policemen and women to members of the public is the third lowest in Europe. I do not know whether that is acceptable; perhaps it is, or perhaps we should have more, or less. The point is that it is incredibly difficult for politicians and the Government to understand accurately the needs of modern-day policing and what the resources should be. That is because when it comes to policing and resources, there is so much noise, and so many noises off, from the different interest and lobby groups, and we must draw a line.

No one in the Chamber can fail to recognise that policing and crime have changed so much in 57 years; we know they have. With a royal commission, we want to get the politics out of it. Policing is too important—I will not even get on to police and crime commissioners; that is for another day—for politics. Politics goes straight through policing, from top to bottom, be it about resourcing—too much, or not enough—or what the police should and should not be doing.

I think I am offering the Government an opportunity, because I believe that if a Government, of whichever kind, set up a royal commission properly and robustly, the public will be grateful to them. The findings and conclusions of such a commission will set policing for the next 40 or 50 years. Because of the respect in which a royal commission is held, the public will listen to it and believe what it says in its report. That is crucial, because all the spin, disingenuousness and vested interests around policing mean that the public do not know who to believe. They do not believe us any more, and I do not blame them. What the hell do I know about policing?

As it happens, I have family members in the police and I work closely with the force in Eastbourne, which is brilliant. I was out with Sergeant Scott Franklin-Lester only a few months ago. After four hours, in which he arrested two people, I said, “I hope your mum doesn’t know how dangerous your job is.” I asked that excellent police sergeant for guidance and advice, and his feedback was really helpful and productive. I am not going to drop him in it, but his feedback reminded me how huge the issue is, and that there is a lack of consistency and public trust, as well as low morale in the police. It seems to me that a police royal commission, which I am convinced would get wide cross-party support, is one answer.

[Afzal Khan]

At its heart, the matter is complex, and things have moved on. The Home Affairs Committee has said that the

“current model for police funding is not fit for purpose”.

Does the hon. Gentleman agree that relying on council tax is a particularly unfair way of raising that funding, because areas that have been hardest hit by cuts will raise the least funding? There are clearly complex areas that need to be considered, and a royal commission would be the right way forward.

[Stephen Lloyd]

I thank the hon. Gentleman for his excellent intervention on that specific point. I have a lot of respect for the Select Committee. However, he identifies, as did the hon. Member for Henley (John Howell), that there are many different issues around funding, resources and what we want our police to look like over the next 40 or 50 years. That is why, in my campaign to get the police royal commission off the ground, I am deliberately trying not to pinpoint specific problems. I know them and I see them, and the hon. Member for Manchester, Gorton is absolutely right. But I do not simply want the Government to fix one issue, and then next year—or in six months’ time, after Brexit, if we are not in “Groundhog Day”—fix another little problem. As the hon. Member for Henley has quite rightly pointed out, for example, his own force recognises that rural crime is an issue, so it has fixed it. I am saying, “Stop.” We need to draw a line in the sand.

We need to get the right people on the commission. We need them to take evidence for, say, a year, from all the vested interests and from people with opinions, be they representatives of police forces, academics or possibly even politicians. Following that, we need to come up with a report that, depending on what we want for 21st-century policing and what areas we want to focus on, shows us the resources and the number of police officers required to keep the public safe. That would allow the public—and the politicians, but in this instance the public are key—to give real buy-in to what the commission propose, and also to our police force. I am not going to use clichés: our police force is highly respected as one of the best in the world, and the public have a lot of time for it, but I am concerned that that is fraying. That is wrong for the men and women who are in uniform out there, trying to keep us safe, and it is also wrong for our country.

It is absolutely crucial for the Government to make this decision while we are still slightly ahead of the game. A royal commission would not cost a ton of money—it is not a Chilcot report, or anything—or take an awful lot of time, but it would make a huge difference to the value that the public will put back into our police force. Most importantly, it would improve the police’s delivery and their capacity to fight crime. I urge the Government to recognise that a royal commission is going to happen; I am sure of it. With respect to the Minister, I know why the Government will push back: the line will be, “It will not be for a few years. We need to do something fast.” I do not know about the Minister, but frankly, I am pretty fed up with every Government bringing in new changes to the police here and there, and continuing with that piecemeal process. Let us get this done properly.

A royal commission would mean that other things, such as the excellent rural initiatives, stop. I think, however, that it would be worth the 18 months or so that it would take to put a commission together and compile a report, and the two or three years it would then take to roll out its conclusions. Let us prove to the public—particularly at the minute, with Brexit—that we are not just focused on short-term fix and mend; let us get this one right. If the Minister puts his name to a royal commission, I am sure that he will be much loved and appreciated across the length and breadth of the country, and that such a commission will have an enormously positive impact on our police forces, our public, and, most importantly, fighting crime in all its different forms. Let us not wait another 20 years; the time has come, and I urge the Minister to push the forward button now.

--- Later in debate ---

[Mr Hurd]

That is a valid and important point. I understand the temptation to say, “There are lots of difficult things going on and there is a need to take a long-term view, so let us ask some sensible people to take some time, go away and talk to people, and think about this.” My concern is not just that which my hon. Friend the Member for Henley expressed, but that a royal commission feels like a rather outdated and static process, given the dynamic situation that we are in.

The practical point is that we are approaching an extremely important point in defining the future of policing in this country, which is the next spending review. We cannot be certain, because we live in uncertain times, but the Chancellor has indicated that all being well with Brexit—I know that is a big “if”—that will be a summer for autumn event. For me, that spending review is the next critical point for shaping the immediate future of policing in England and Wales, and there are some things that we just do not need royal commission advice on.

Quite rightly, the hon. Member for Eastbourne talked about resources and officer numbers. If we cut through all the smoke, fire and political heat, there is cross-party recognition of the need to increase the capacity of our police system. We can argue about how fast and how far, but the Government and Labour Front Benchers recognise the need to do that, and we are moving in that direction. Next year, as a country we will be investing £2 billion more in our police system than three years ago. Police forces up and down the country are recruiting more than 3,000 new officers, in addition to staff. It is not only about increasing investment and officer numbers, but about looking hard at how police time is managed, the power of technology to free up time and internal demand and external demand, not least of which are the demands of looking after people on the mental health spectrum. A huge amount of work is going into looking at how we can increase capacity through increased investment and looking again at how the valuable time of frontline officers is used. We do not need a commission to help us in that critical work.

[Afzal Khan]

The commission being proposed has a lot of weight. In a sense, two fundamental issues make the difference: the ability of people to move around and the ability to communicate. That has opened up a world of things on the crime side in terms of how criminals operate across counties and internationally, on the internet and through fraud. It would be helpful to have a commission to look at the totality and to help us have a police force that is fit for the 21st century.

[Mr Hurd]

I understand the point, and I will address it, but my point is that I am not sure that a royal commission is the right solution at the moment for addressing some of the challenges that we know about. We have the capacity among the Government, the political process in this place and police leadership to work through them ourselves. I mentioned the spending review, and that is the major opportunity in the short term. We must not lose sight of getting it right or be distracted by the idea of royal commissions.

We are working closely with the police to look at demand and cost pressures and to ensure that the bid into the spending review is properly informed. With the police we are working through the question of how much further we can go in making the police more efficient and productive on behalf of the taxpayer. We are looking at the balance between crime prevention and the reaction to crime. We are looking at how we can give better support to frontline officers, because it is clear that we can and should do that. We are looking at system issues—issues that have rolled down through the ages, but that continue to be relevant, such as the balance between the centre and the local, the question of how we build and deliver national capabilities and the fundamental question of how we learn from the past for the next stage of upgrading police technology across this fragmented system.

How do we develop more consistent standards across the fragmented system? How do we do a better job of spreading innovation and best practice? Some of that best practice is frankly brilliant, but it exists in pockets. How do we ensure that it is spread across the system? How do we ensure that the fragmented system takes a more systemic approach to tackling some of the perennial problems that it faces? How do we ensure that we allocate resources in the fairest possible way? Those are challenges that we know we have to address, and we are working together with the police to do so. I simply am not persuaded that a royal commission will help those things in the immediate specific context, but I will come back to the point. First, I will give way to the hon. Member for Halifax (Holly Lynch), who is a great supporter of the police.

Emergency Summit on Knife Crime

Afzal Khan Excerpts

Friday 22nd March 2019 Commons Chamber

[Victoria Atkins]

I was delighted to visit Morecambe, which is next door to the hon. Lady’s constituency, and to speak with its wonderful local MP, my hon. Friend the Member for Morecambe and Lunesdale (David Morris), about issues pertaining to crime and the causes of crime in his constituency. I was also delighted to meet the Chief Constable for Lancashire Constabulary, and to hold a conversation about the range of challenges faced by Lancashire—I should perhaps declare an interest, as that is the county in which I grew up and that I adore.

When I visited Blackpool I saw some of the real issues that are affecting our coastal towns, such as transient communities and the impact of the drugs market. We must be clear that those behind this criminality are the gang leaders and criminals who exploit children for profit. That is why, as well as the serious violence strategy, we also have the serious organised crime strategy. We must help young people to build resilience and intervene on them, but we must also get the criminals at the very top of those gangs.

[Afzal Khan (Manchester, Gorton) (Lab)]

Recently in Manchester, 17-year-old Yousef Makki was stabbed to death by another teenager. Last week, the response time of Greater Manchester police rose from six minutes to 12 minutes, and GMP has seen cuts involving more than 2,000 police officers. The solutions to combating knife crime are complex, but the fact remains that the police are struggling and need more resources than those the Government have provided. Will the Government provide the resources they need?

[Victoria Atkins]

We are providing up to £970 million next year in the policing settlement. We provided a further £500 million last year, and we are providing an extra £100 million through the spring statement to give the police the extra resources they need. I ask Opposition Members to do the right thing next week and support the Government’s efforts to introduce knife crime prevention orders. Those have been asked for by the police—the police want them. We have considered them carefully and introduced the legislation as quickly as we can. We just need the House to pass it.

--- Later in debate ---

[Afzal Khan (Manchester, Gorton) (Lab)]

On a point of order, Mr Speaker. On 12 March, I asked the Home Office a written question seeking the time it takes for emergency travel document applications to be secured for a person in immigration detention. I was told that the information could be obtained only at disproportionate cost. However, during a sitting of the Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, the Minister for Immigration told us that the average time it takes to get travel documents for people in immigration detention is 30 days. As I am sure you are aware, Mr Speaker, my amendment proposing no more than 28 days’ detention has signatories from across the House, including Tory and Democratic Unionist party MPs, so there is great interest in the Government’s arguments on this issue. Can you advise me on how to ensure that the background data that the Minister relied on to make that claim in Committee is available to MPs seeking to evaluate her claim?

[Mr Speaker]

Strictly speaking, Government make a judgment about whether they can provide an answer. It is not a matter of order on which the Chair can adjudicate. That said, if I understood the hon. Gentleman’s point of order and he has previously been given an indication in a Committee sitting of average waiting times, it seems not unreasonable that he should then put down a question seeking to ascertain the facts on that matter. Therefore, my advice to him is really twofold. First, at the risk of irritating the House, I would repeat my general advice in matters of this kind: persist, man. Persist. Persist. Keep asking the question. The hon. Gentleman might wish to put it in a different way—or possibly even to a different Department, although I doubt it—and to try to persuade the Minister, perhaps privately, of the reasonableness of the inquiry. Beyond that, it is open to the hon. Gentleman to seek to use freedom of information legislation to secure the response that hitherto has been denied to him. I hope that he will profit from my counsels and that it will not be necessary for him to raise the matter again, but if it is, I am sure that he will.

Draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019

Afzal Khan Excerpts

Monday 18th March 2019 General Committees

[Afzal Khan (Manchester, Gorton) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hanson.

Labour opposes the draft regulations on four grounds. First, they will make changes to 21 separate pieces of primary legislation—something that should rightly be done through primary legislation. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which has just come out of Committee, was surely the perfect vehicle for any necessary changes to primary legislation before exit day. Putting those changes into a Bill would have allowed more time for hon. Members to scrutinise exactly what they will mean for each of the Acts affected, and to table amendments if necessary. We accept that many of the changes are technical, but they could easily have been spelled out in the Bill and nodded through in Committee.

Our second reason for opposing the draft regulations is that on the Bill Committee we spent a lot of time talking about how chaotic and disorganised the current immigration rules are. They are almost impossible for immigration lawyers, judges and Home Office officials to understand, let alone the average person applying for a visa without the help of legal aid. The point of supplementary scrutiny is not just to criticise the Government, but to consider and improve what they are doing. More chances for scrutiny would avoid contradictory rules and bad laws.

Thirdly, the draft instrument puts the cart before the horse. We do not yet know whether the immigration Bill will become law, as it faces significant hurdles before Report in the Commons and has not yet been through the Lords. This statutory instrument makes changes for a post-Brexit immigration landscape that is not yet assured.

Finally, the statutory instrument revokes the Dublin III regulation, which determines which EU member state is responsible for returning an asylum claim.

[Stephen Timms (East Ham) (Lab)]

I am pleased that my hon. Friend raises the question of the Dublin agreement. Is it his understanding, as it is mine, that a significant number of families who can currently be reunited thanks to that regulation could no longer be if there were no deal and we were to exit on the basis of the SI before the Committee?

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[Afzal Khan]

I wholeheartedly agree with my right hon. Friend. We accept that leaving the EU will mean leaving Dublin III, but we would have liked continued co-operation on family reunion even in a no-deal scenario.

Dublin III has been a crucial mechanism for reuniting refugee families. In 2018, over 1,000 people were reunited with family members in the UK under that regulation, including over 150 children. If the UK leaves the EU with a deal, Dublin III will remain in place until the end of the transition period, during which time the Government are committed to negotiating reciprocal arrangements on separated children. That should be expanded to include all the family reunion cases allowed under Dublin III.

If we leave without a deal, we will immediately cease to be part of Dublin III, and many refugees will be unable to be reunited with their families from 29 March. UK immigration rules contain provisions for the reunion of refugee families, but evidential requirements are higher than under the Dublin III regulation, in which the definition of “family member” is broader. We support calls for the UK’s immigration rules to be more generous in family reunion cases, so that children can sponsor family members and the definition of “family” is broader.

We welcome the Government’s inclusion of a saving provision in the draft regulations to allow for take-charge requests made before exit day to continue to be considered. In the light of delays between an application for asylum and the submission of a take-charge request, however, what consideration was given to making the asylum application the cut-off for the process, rather than the take-charge request?

Draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019

Afzal Khan Excerpts

Monday 11th March 2019 General Committees

[Afzal Khan (Manchester, Gorton) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Austin.

This statutory instrument covers broadly two groups of people: EEA citizens who are already living in the UK, who will need to apply for settled status, and EEA nationals who wish to come to the UK after free movement has ended, who require leave to enter. Although it contains some measures that we welcome—for example, the extension of the settled status scheme to other EEA countries and Switzerland—we will vote against it because the Government should be doing those things in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which is currently before Parliament.

On the same day that Members received an invitation to this Committee, the Secretary of State published a statement of changes to the immigration rules, totalling 296 pages. It covers topics ranging from the EU settlement scheme to the new investor visas. Compare that with the immigration Bill that we have just finished discussing in Committee, which was just 16 pages long. That absurdity is a perfect illustration of the need for greater scrutiny of immigration law. The Government give themselves broader powers in Bills and use immigration rule changes and unamendable statutory instruments to build our immigration system.

I turn now to the SI. I will first discuss the settled status provision. The explanatory memorandum states:

“Free movement will be brought to an end, subject to Parliamentary approval of the Immigration and Social Security Co-operation (EU Withdrawal) Bill currently before Parliament.”

Directly afterwards, it says:

“However, appropriate provision needs to be made to ensure that that EEA nationals who are resident here before the UK’s exit will have their rights protected and will continue to be able to reside in the UK.”

As the Minister knows, Labour has called for the rights of EEA nationals already resident in the UK to be on the face of the immigration Bill. Otherwise, they will go from relying on supranational EU laws on free movement to relying on a scheme to be set out entirely in secondary legislation. Their rights will be significantly more fragile and open to amendment, and even revocation, by the Government.

The House recently passed the Costa amendment, which called on the Government to seek an agreement with the EU to ring-fence part two of the withdrawal agreement. Can the Minister tell us whether that is consistent with the explanatory memorandum, which says:

“In a ‘no deal’ scenario, the Government intends to protect these rights by making regulations under clause 4 of the Immigration and Social Security Co-operation (EU Withdrawal) Bill, once enacted.”

Why is it that if there is a deal, EU citizens’ rights will have the protection of an international treaty, but if there is not a deal, they will be protected only by an easily amendable piece of secondary legislation? EU citizens need certainty about their rights to live, work and study here after free movement has ended. If we know that, deal or no deal, EU citizens will have the same rights to settled status, why does the Minister not put those rights on the face of the immigration Bill?

[Michael Fabricant]

The hon. Gentleman is absolutely right to go on about the rights of European citizens here, but he has not mentioned the rights of British citizens in Europe. I am wondering what his view is. Does he not think it would be proper for Europe to give the same rights to British citizens?

[Afzal Khan]

I absolutely agree with the hon. Gentleman. It is right that there should be a reciprocal understanding that we should be given whatever rights they are given. We want EU citizens, and British citizens in the EU, to be able to carry on with their life.

It is good that this SI makes clear that EEA citizens can spend five years outside the UK, and that time spent with the British Council or the armed services will not count. However, why are Swiss nationals allowed only four years and why, again, is that provision not included in the primary legislation? The SI allows EEA nationals and their family members to apply for settled status from outside the UK. Can the Minister confirm that they will be able to do so under exactly the same conditions as if they were applying from the UK?

I move on to the topic of EEA citizens who arrive in the UK after free movement has ended. The Government have proposed that, in a no-deal scenario, EEA nationals will be granted three months’ leave. Again, the Opposition’s overriding objection to that proposed scheme is that it was not included in the immigration Bill. These measures are due to come into effect when the Immigration (European Economic Area) Regulations 2016 are revoked, which is exactly what the immigration Bill does. The timelines are identical, so the Government have no grounds for saying that this SI is more urgent than the Bill. If that scheme were part of the Bill, Committee members would have been able to table amendments to it, whereas a statutory instrument is only subject to a straight yes or no vote, which the Government are bound to win. Does the Minister have any reasons for setting that proposed scheme out in secondary legislation, apart from a desire to avoid scrutiny?

I have many questions and concerns about the proposed three-month leave scheme. Some are taken from the “Free Movement” blog, to which I am grateful for its thorough analysis of the scheme. First, the explanatory memorandum says that the proposal is to provide leave

“in a ‘no deal’ scenario”.

Is it the Government’s intention that this scheme, or a similar one, will operate if the UK leaves the EU with a deal at the end of the transition period?

Secondly, I am concerned about the potential for discrimination against EU citizens. What proof will people have of their three-month limited leave? Will that proof be in a physical form, as we have called for with settled status? How will employers, landlords and banks be able to tell the difference between someone who has been in the UK for years and not yet applied for settled status, and someone who has come in under the three-month limited leave scheme? If we are not careful, this scheme will lead to confusion and to discrimination against all EEA nationals, no matter when they came to the UK.

The Home Office has said:

“we will not ask employers or other third parties, such as landlords, to start distinguishing between EU citizens who were resident before exit and post-exit arrivals”

until 2021. However, the requirement to check the immigration status of employees and tenants is in primary legislation; the Government cannot exempt such third parties from that requirement through a policy document. The explanatory memorandum sets out that people granted leave will be able to work in, study in or visit the UK, but it is very unlikely that employers would hire someone when they do not know if that person will be able to stay in the country for more than three months.

Thirdly, I am concerned about how workable limited leave will be. There will be many EU citizens who stay longer than three months and who will be unaware of the need to apply for leave. How will the Government raise awareness so that we do not have hundreds of thousands of people unknowingly in the country illegally? What is to stop someone coming to the UK for three months, leaving and then re-entering to start another three-month period, rather than applying for leave?

Fourthly, I am concerned about the long-term future of EEA citizens who come to the country after March. The Home Office has said outright that there might be some who do not qualify under the new arrangements and who will need to leave the UK. What type of leave will people be required to apply for after three months, and how will that work? There have been media reports that applying for a visa to extend the three-month limited leave will cost £100. Can the Minister confirm that that is the case?

As I said before, it is good that the SI makes it clear that EEA citizens can spend five years out of the UK and that time spent with the British Council or armed forces will not count. Why is it four years for Swiss nationals? The SI would allow for EEA nationals and their family members to apply for settled status from outside the UK. Can the Minister confirm that this will be under the exact same conditions as if they were applying within the UK?

--- Later in debate ---

[Afzal Khan]

Does the hon. Gentleman accept that when citizens came from the Commonwealth, it was also light touch? There were no restrictions and they were allowed to come, but we ended up with Windrush.

[Sir Robert Syms]

We set off as an imperial power letting people in with a limited amount of documentation. The same thing happened with British kids who were sent out to Australia because they were in homes in this country. They have the same problem. Immigration policy has generally strengthened over the years and that is why that issue occurred. These days we all have credit cards and phones. We have an audit trail when we move in. It is not beyond the wit of man or woman to find out when someone arrived and when they left. The point is to keep the wheels of commerce, travel, education and everything else turning until the Home Office gets a better system in due course. If you are going to eat an elephant, do you do it one bite at a time?

Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Ninth sitting)

Afzal Khan Excerpts

Tuesday 5th March 2019 Public Bill Committees

[The Chair]

I have some housekeeping announcements. Hon. Members should ensure that electronic devices are switched to silent or off. I remind them that tea and coffee are not allowed in the room during sittings.

We now resume line-by-line consideration of the Bill, starting with new clauses. Some new clauses have already been debated as part of earlier groups. There will be no debate on them, but Members will be able to move them formally at the appropriate point if they so wish. Members will need to indicate to me if they intend to move any of the new clauses.

New Clause 1

Time limit on detention for EEA and Swiss nationals

“(1) The Secretary of State may not detain any person (“P”) who has had their right of free movement removed by the provisions of this Act under a relevant detention power for a period of more than 28 days from the relevant time.

(2) If “P” remains detained under a relevant detention power at the expiry of the period of 28 days then—

(a) the Secretary of State shall release P forthwith; and

(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since “P’s” release and that the criteria in section [Initial detention for EEA and Swiss nationals: criteria and duration] are met.

(3) In this Act, “relevant detention power” means a power to detain under—

(a) paragraph 16(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); or

(d) section 36(1) of UK Borders Act 2007 (detention pending deportation).

(4) In this Act, “relevant time” means the time at which “P” is first detained under a relevant detention power.”—(Afzal Khan.)

Brought up, and read the First time.

[Afzal Khan (Manchester, Gorton) (Lab)]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 2—Initial detention for EEA and Swiss nationals: criteria and duration—

“(1) Any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to may not be detained under a relevant detention power other than for the purposes of examination, unless the Secretary of State is satisfied that—

(a) the person can be shortly removed from the United Kingdom;

(b) detention is strictly necessary to affect the person’s deportation or removal from the United Kingdom; and

(c) the detention of “P” is in all circumstances proportionate.

(2) The Secretary of State may not detain any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to under a relevant detention power for a period of more than 96 hours from the relevant time, unless—

(a) “P” has been refused bail at an initial bail hearing in accordance with subsection (4)(b) of section [Bail hearings]; or

(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to “P” in accordance with subsection (1)(c) of section [Bail hearings] and that hearing has not yet taken place.

(3) Nothing in subsection (2) shall authorise the Secretary of State to detain “P” under a relevant detention power if such detention would, apart from this section, be unlawful.

(4) In this section, “Tribunal” means the First-Tier Tribunal.

(5) In this section, “relevant detention power” has the meaning given in section [Time limit on detention for EEA and Swiss nationals].”

This new clause is consequential on NC1.

New clause 3—Bail hearings for EEA and Swiss nationals—

“(1) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—

(a) release any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to;

(b) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(c) arrange a reference to the Tribunal for consideration of whether to grant immigration bail to “P”.

(2) Subject to subsection (3), when the Secretary of State arranges a reference to the Tribunal under subsection (1)(c), the Tribunal must hold an oral hearing (“an initial bail hearing”) which must commence within 24 hours of the time at which the reference is made.

(3) If the period of 24 hours in subsection (2) ends on a Saturday, Sunday or Bank holiday, the Tribunal must hold an initial bail hearing on the next working day.

(4) At the initial bail hearing, the Tribunal must—

(a) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(b) refuse to grant immigration bail to “P”.

(5) Subject to subsection (6), the Tribunal must grant immigration bail to “P” at a bail hearing unless it is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention for EEA and Swiss nationals: criteria and duration] are met and that, in addition—

(a) directions have been given for “P’s” removal from the United Kingdom and such removal is to take place within 96 hours;

(b) a travel document is available for the purposes of “P’s” removal or deportation; and

(c) there are no outstanding legal barriers to removal.

(6) Subsection (5) does not apply if the Tribunal is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention for EEA and Swiss nationals: criteria and duration] are met and that there are very exceptional circumstances which justify maintaining detention.

(7) In subsection (5) above, “a bail hearing” includes—

(a) an initial bail hearing under subsection (2) above; and

(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 of the Immigration Act 2016.

(8) In this section, “Tribunal” means the First-Tier Tribunal.

(9) The Secretary of State shall provide to “P” or “P’s” legal representative, not more than 24 hours after the relevant time, copies of all documents in the Secretary of State’s possession which are relevant to the decision to detain.

(10) At the initial bail hearing, the Tribunal shall not consider any documents relied upon by the Secretary of State which were not provided to “P” or “P’s” legal representative in accordance with subsection (8), unless—

(a) “P” consents to the documents being considered; or

(b) in the opinion of the Tribunal there is a good reason why the documents were not provided to “P” or to “P’s” legal representative in accordance with subsection (8).

(11) The Immigration Act 2016 is amended as follows—

(a) After paragraph 12(4) of schedule 10 insert—

“(4A) Sub-paragraph (2) above does not apply if the refusal of bail by the First tier Tribunal took place at an initial bail hearing within the meaning of section [Bail hearings for EEA and Swiss nationals] of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2019.”.”

This new clause is consequential on NC1.

New clause 4—Commencement of provisions on detention of EEA nationals—

“(1) Sections [Time limit on detention for EEA and Swiss nationals], [Initial detention for EEA and Swiss nationals: criteria and duration] and [Bail hearings for EEA and Swiss nationals] come into force three months after the day on which this Act is passed.”

This new clause is consequential on NC1.

[Afzal Khan]

Good morning, Mr Stringer. The Bill has the far-reaching potential to make many more people liable to immigration detention. Despite estimating that 26,000 more people could be liable, the Government have carried out no assessment of the Bill’s impact on the detention estate. Our detention system is broken. Its most glaring failure is the lack of a time limit on detention. We are the only country in Europe that detains people indefinitely.

The Minister has previously shown some openness on the issue. She will be well aware of the breadth of support for a time limit, including from members of her own party. Labour’s new clauses have been signed by the SNP, the Green party, the Liberal Democrats and Conservative MPs. I am keen to work constructively with the Government. The new clauses set out the position that we want, whereby independent checks and balances ensure that immigration detainees do not have fewer rights than people in the criminal justice system.

As is clear from the new clauses that I have tabled, our preference is for a time limit on detention for everyone, no matter what country they are from, but to get the provision within the scope of the Bill, we have narrowed it to just those who lose their right to free movement as a result of the Bill. I will confine my remarks today to that group.

I am grateful to all the organisations that have been making the case for a time limit on immigration detention and, in particular, to Detention Action, Liberty and Refugee Tales for their help with the drafting of the provision.

Before getting into the detail of the new clauses, I will give some background to the arguments for a time limit on immigration detention. Labour has been making the case for a time limit for some time. We called for one in our 2017 manifesto. The argument can be made from multiple angles. This is a rule-of-law issue. The Immigration Law Practitioners’ Association, the Bar Council and the Law Society all support a time limit. Wherever the state deprives someone of their liberty, as happens with immigration detention, there should in principle be independent judicial oversight and time limits at every stage. Detention is currently an administrative process whereby the Government are allowed to mark their own homework. The detention of Windrush people showed that current oversight is severely lacking.

This is a health issue. The British Medical Association supports Labour’s proposal. Its report entitled “Locked up, locked out: health and human rights in immigration detention” states:

“Depression, anxiety, and post-traumatic stress disorder…are the most common mental health problems, and women, asylum seekers, and victims of torture are particularly vulnerable. Even if it does not reach a clinical threshold, all immigration detainees will face challenges to their wellbeing during their time in detention.”

Those issues are worsened when detention is indefinite. There is a widespread crisis of self-harm in immigration detention. Stephen Shaw’s report on the issue found that the current safeguards for vulnerable people were not working effectively enough.

This is an equalities and human rights issue. The Joint Committee on Human Rights has called for a 28-day time limit and recommends using the Bill to implement it. The Equality and Human Rights Commission and Liberty support our new clause. The EHRC’s briefing for the debate points to various human rights articles violated by indefinite detention, including the European convention on human rights, the international covenant on civil and political rights and the United Nations convention against torture.

This is also a cost issue, as immigration detention simply does not work; the majority of people in immigration detention will later be released back into the community. That point was made by Her Majesty’s inspectorate of prisons and the independent chief inspector of borders and immigration in their joint report, as well as by the all-party parliamentary groups on refugees and on migration. The detention estate costs £30,000 per person detained per year, and a 2015 estimate put the total annual cost at £164.4 million. In addition, the Home Office last year announced that it had paid out £21 million in just five years for wrongfully detaining 850 people in immigration removal centres.

So there is a wealth of evidence from a number of different angles on the need for a time limit on immigration detention. The next question is why Labour has tabled these new clauses in particular. There is a lot in this group of new clauses, so if the Committee will allow me, I will briefly go through what each one would do and why it is needed.

New clause 1 prescribes an overall time limit of 28 days for all immigration detention, after which a person must be released and cannot be re-detained unless there is a material change of circumstances. We need this provision to avoid a cat-and-mouse situation in which the Government can detain someone for 28 days, release them and then immediately detain them for another 28 days.

The reason for 28 days, as opposed to some other time limit, came up in evidence sessions and has been questioned elsewhere. Home Office guidance says that detention should be used only when removal is imminent—defined as three to four weeks—which is a maximum of 28 days, so 28 days is really the Home Office’s definition. Although, since 2015, the detention population and average length of detention have decreased, the number of people detained for longer than six months has increased. The new clause would put the commitment to detain only if removal is imminent on a statutory footing for the first time.

New clause 2 sets out the general criteria for detention, preventing detention unless a person can shortly be removed from the United Kingdom and their detention is strictly necessary to effect their deportation or removal from the United Kingdom, and stating that their detention must in all circumstances be proportionate. This is intended to ensure that detention will be used only when really necessary.

New clause 3 provides for a system of automatic bail hearings. There is currently an immigration bail provision at four months, and the Government are piloting a two-month timeframe. However, we believe that that should come in much sooner—after 96 hours—to bring immigration in line with the criminal justice system. Bail hearings after two or four months are often too little, too late. We also believe that bail hearings should allow for release; at the moment, a detainee may only be bailed or detained following a hearing. The president of the first-tier immigration appeal tribunal said in evidence to the JCHR that the tribunal would need few additional resources to review all immigration detention cases. He favoured such a review to limit the use of detention and ensure that it is used for the shortest time necessary.

Before I conclude, I will touch briefly on foreign national offenders, who also came up during our evidence sessions. Labour’s view is that we should not have an immigration detention system that treats foreign national offenders differently from everybody else. First, many people detained as foreign national offenders will in fact be victims of trafficking and modern-day slavery who were coerced into criminality. The Government have made a lot of noise about their commitment to tackling modern-day slavery, but the fact is that victims are still routinely detained for extended periods, despite showing extreme signs of distress and vulnerability.

Secondly, to go back to the rule of law argument, people who have been convicted of a criminal offence will have served their sentence. Continued detention, and therefore punishment, cannot be justified by their initial trial and sentencing, unless otherwise specified by a judge or similar. Thirdly, in practical terms, the Government will have had ample time, while someone is serving their custodial sentence, to prepare for deportation upon their release.

There is a separate issue about people who are deemed to be a risk to national security. There currently exists a separate system for immigration detention cases that relate to national security. Bail applications are heard through the Special Immigration Appeals Commission, rather than the normal First-tier Tribunal, and separate law, regulations and case law govern the commission’s operation. Although the SIAC system is in need of reform—we believe that indefinite detention is not justified in any circumstances—there is a case for this to be addressed and reformed separately. We would be happy to make that clear in our new clause on Report.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair again, Mr Stringer. I have spoken many times about immigration detention. I will essentially echo all the shadow Minister’s points, so I will be brief. As he said, there is cross-party support for these new clauses, and the Scottish National party is four square behind them.

Immigration detention for too long has become an accepted part of life, at least among politicians, but, for the reasons that the shadow Minister gave, I detect that that is changing, and not before time. Politicians have probably been out of step with the public in that regard. Every time I have a discussion with members of the public and explain to them the existing system of detention, they are actually quite horrified to hear what goes on out of sight and out of mind. Ultimately, we are talking about the indefinite deprivation of liberty in what are basically private prisons. There is little in the way of independent oversight, and all of this is done for administrative reasons. That is a huge invasion of fundamental rights.

We detain far too many people. The Minister will often say that the vast majority are not detained but are managed in the community. However, that is not the point. We are still talking about significant numbers of people—25,000 or so every year. That is a welcome improvement on previous years—let me put that on record—but there is a long way to go before we are anywhere near an acceptable position. We have a bloated immigration estate compared to many of our European neighbours, and we are still detaining far too many vulnerable people. The changes made in light of the first Shaw report have not made the difference that we would have expected or wanted so far.

As the shadow Minister said, half of all these people are released. Detention should be a matter of absolute last resort, but instead we are detaining so many people that we just release half of them again. That is completely unacceptable. The UK is an outlier in terms of international practice. This country has a long history of being very precious about the right to liberty, with severe and strict safeguards on the Government’s power to interfere with that.

We all know—I think it is inarguable—that detention is harmful. One key harm inflicted on detainees is the uncertainty—as has been evidenced in all sort of reports—of not knowing when their detention will come to an end. For all the reasons that the shadow Minister has given, there are no excuses for applying different rules to different people, and foreign national offenders should be included in the regime that we are proposing. We also need greater scrutiny of who goes into detention. Safeguards in relation to vulnerable people are still not working. Gatekeeping is not working.

These new clauses achieve two goals. They put in place a time limit and significantly improve oversight of who is being detained. I want to put on record my gratitude to all the organisations involved in drafting the new clauses, and to all sorts of organisations who, for many years, have documented the harm that is done by immigration detention and have kept it on the agenda, even when it was at severe risk of falling off.

There is a breadth of support for this new clause. The time limit is overdue. I think it will happen this time—I hope that is the case. Like the shadow Minister, I am keen to work with all parties, including the Government, to ensure that we put in place a system that is robust and fair but respects people’s right to liberty rather than detaining them for administrative reasons.

--- Later in debate ---

[Caroline Nokes]

I will come to time limits. We have seen from the amendments that have been tabled and from the commentary that there is no widespread agreement on what the time limit should be. If we look at countries around the European Union, there are differing time limits. One example that springs instantly to mind currently has a limit of 45 days, which is about to be doubled to 90 days.

Stephen Shaw looked at time limits in his re-review and made some comments about that, as Members will have seen. There is certainly scope, as I am sure my right hon. Friend the Home Secretary agrees, for us to look closely not only at different time limits around the world, useful though they are, but at some of the challenges we face in the UK with the documentation of individuals, so that we can best understand, were a time limit to be introduced, what the range might be.

[Afzal Khan]

The Minister referred to European countries. Is it not important to acknowledge the difference between two legal systems? The European system is more civil law-based, whereas others are more common law-based. They are not the same thing.

[Caroline Nokes]

The hon. Gentleman is absolutely right to point out that they are not the same thing. While we might draw on the experience and evidence from other countries, it is important that we have a system that works within our own legal system.

--- Later in debate ---

[Caroline Nokes]

The debate is ongoing. Members have made some forceful arguments in favour of a limit and, in the Home Office, we have considered reflecting on those very carefully indeed.

[Afzal Khan]

Is the Minister aware that Parliament has considered this idea for the limitation? Recently, there was a discussion on 90 days, and then 42 days, and this was for terror suspects. Both were rejected by the House. Does she not think that if 42 days for terrorists was rejected, we should not have it for immigrants?

[Caroline Nokes]

Perhaps the hon. Gentleman has made the point that there is not yet any agreement on reasonable time limits, given that, with both 90 days and 42 days—in this new clause we are discussing 28 days—there is a wide range of opinion on what a reasonable time limit might look like.

I wish to address—as I am sure the Chairman wants me to—the individual elements of the new clauses. First, and this has already been referenced, they would apply only to EEA and Swiss nationals. The effect of these new clauses would be to introduce a system that imposed time limits on the detention of individuals of certain nationalities but not on others. As I have said in relation to other amendments and clauses limited to EEA nationals, this would clearly be discriminatory on nationality grounds, going against Parliament’s proud history of promoting laws that protect human rights and protect individuals from discrimination. I cannot see any justification for Parliament to depart from those principles in the way proposed.

While new clause 1 would introduce a 28-day longstop time limit for exceptional cases, new clause 3 would provide for a 96-hour time limit. Both would have a major impact on our ability to remove and on the processes on which removal action is dependent. For example, in 2018, there were more than 8,500 removals directly from detention. More than 2,700 individuals were removed from the UK, having been detained for 29 days or more. We believe that introducing a 28-day longstop time limit would encourage people to change behaviours, so as to run down the clock to secure release. As it stands, a presumption of release after 96 hours, other than in the most restrictive of circumstances, would make it extremely difficult to remove any individuals from the UK.

--- Later in debate ---

[Caroline Nokes]

I thank the hon. Gentleman for that intervention. Of course it is not just unacceptable but not lawful, in the case of foreign national offenders, to detain people for very long periods with no realistic prospect of removal. The Home Office works incredibly hard, sometimes in difficult circumstances, to seek documentation from different Governments in order to be able to effect the removal of foreign national offenders.

I do not pretend that any of this is easy. However, an amendment to the Bill—tightly drawn as it is to end free movement—is perhaps the wrong place to seek to implement such a significant change. That does not mean that my mind is closed; far from it. From the views that have been expressed to me over the past 12 months and this morning, I appreciate that we certainly need to do more. That is why I welcome the proposals that Stephen Shaw put forward in his re-report last year. Indeed, the Home Secretary grasped those changes with enthusiasm. There will always be more to do on the issue of detention, and I am absolutely committed to doing it. As Stephen Shaw said in his recent report, the call for the 28-day time limit,

“has been articulated more as a slogan than as a fully developed policy proposal”,

and I am inclined to agree with him. I therefore respectfully ask the hon. Member for Manchester, Gorton to withdraw his amendment.

[Afzal Khan]

I thank the Minister for putting forward the Government’s position. We have had a good debate on the new clauses, but at this stage I am not minded to push for a vote. We will review the matter on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

“Super-affirmative procedures for immigration rules

‘(1) The Immigration Act 1971 is amended in accordance with subsection (2).

(2) After section 3(2) insert—

“(2A) Any statement of the rules, or of any changes to the rules, which affect the rights and obligations of persons who will lose their right of freedom of movement under the provisions of the Immigration and Social Security Co-Ordination (EU Withdrawal) Act may not be made or have effect unless the Secretary of State has complied with subsections (2B) to (2F) below.

(2B) If the Secretary of State proposes to make changes to the rules under section (2A) above, the Secretary of State must lay before parliament a document that—

(a) explains the proposal; and

(b) sets it out in the form of a draft order.

(2C) During the period of 60 days beginning with the day on which the document was laid under subsection (2B) (the “60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modification).

(2D) In preparing a draft order under section (2A) above, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations; and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(2E) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document under subsection (2B).

(2F) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is not adjourned for more than 4 days.” —(Afzal Khan.)

This new clause would amend the Immigration Act 1971 to ensure that any changes to the UK’s Immigration Rules which affect EEA or Swiss nationals must be made under the super affirmative procedure.

Brought up, and read the First time.

[Afzal Khan]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 40—Procedures before making and amending Immigration Rules—

“(1) Prior to making any amendments to Immigration Rules or making new Immigration Rules that impact upon persons whose right of free movement is ended by section 1 and schedule 1, the Secretary of State must lay before the House—

(a) an assessment of the impact of the proposed amendments or Rules on modern slavery, and

(b) an assessment of the impact of the proposed amendments or Rules on children.

(2) Prior to any amendments to Immigration Rules or new Rules coming into force that impact upon persons whose right of free movement is ended by section 1 and schedule 1, the Secretary of State must—

(a) lay a draft of the amendments or Rules before the House of Commons

(b) table an amendable motion for debate in respect of the draft amendments or Rules.

(3) Amendments to the motion tabled under subsection (2)(b) may instruct the Secretary of State to change the proposed amendments to the Immigration Rules or new Rules.”

This new clause would mean that changes to the Immigration Rules affecting people whose right of free movement is removed by the Bill were debated in Parliament, and that the Government could be instructed to amend the rules.

New clause 54—Immigration Rules Advisory Committee for relevant Immigration Rules—

“(1) Within 6 months of this Act coming into force, the Secretary of State must establish an Immigration Rules Advisory Committee to consider relevant Immigration Rules.

(2) In this section ‘relevant Immigration Rules’ mean Immigration Rules that apply to persons whose right of free movement is ended by section 1 and schedule 1 of this Act.

(3) The function of the Immigration Rules Advisory Committee shall be to give advice and assistance to the Secretary of State in connection with the discharge of his functions under this Act and in particular in relation to the making of relevant Immigration Rules.

(4) The constitution of the Immigration Rules Advisory Committee shall be set out in regulations.

(5) The Secretary of State shall furnish the Immigration Rules Advisory Committee with such information as the Committee may reasonably require for the proper discharge of its functions.”

--- Later in debate ---

[Afzal Khan]

This new clause requires that any changes to the UK’s immigration rules which affect EEA or Swiss nationals must be made under the super-affirmative procedure. As with many of our amendments, we would prefer the measure to be applied to rules affecting all migrants, but the scope of the Bill requires us to narrow it to EEA and Swiss nationals. The new clauses tabled by the SNP would similarly require a higher level of scrutiny for immigration rule changes, and, as such, we support them.

If the Secretary of State proposes to make changes to the rules, the super-affirmative procedure requires him or her to lay before Parliament a document that explains the proposal and sets it out in draft form. Over the years, immigration rules have become so long, complex and internally inconsistent that they are almost impossible for lawyers to understand, let alone for normal people who try to navigate them without legal aid or appeal rights. The new clause complements our efforts in amendments to clause 4, as well as in amendments 17 and 21 to clause 7 and in new clause 10, to make the immigration system intelligible and hold the Home Office sufficiently accountable for its decisions.

Not everything can be done through primary legislation, but since the Immigration Act 1971 almost everything has been done through secondary legislation. The negative procedure, whereby there is no discussion of the legislation unless parliamentarians kick up a fuss, has become the standard. Immigration rules are made very frequently, often in response to political scandals, without an eye on the long-term effects. Requiring rule changes to be subject to the super-affirmative procedure will give more time for scrutiny and encourage a more measured approach.

[Stuart C. McDonald]

I will speak to new clauses 40 and 54. I know that Members across the Committee will be enthralled by the prospect of an immigration rules advisory committee. Indeed, if new clause 54 is agreed to, I am sure that straight away, the Minister will be open to considering CVs from people who might serve on that committee.

As the shadow Minister said, the new clauses are all about increasing the level of scrutiny. New clause 40 would require an assessment of the impact of any changes to the immigration rules on modern slavery and on children to be laid before Parliament before the changes could be made. Just as significantly, it would give rise to the possibility of MPs actually being able to debate and amend proposed changes to the immigration rules. New clause 54 would put in place an immigration rules advisory committee.

The kernel of these ideas came from a recent report by British Future, which simply points out, as the shadow Minister has done, that changes to immigration rules have been rapid and incredibly complicated. The Home Office has made more than 5,700 changes since 2010, with the rules doubling in length over the same period. Little by way of explanation is provided to MPs when changes are proposed, and even less of scrutiny or debate. In such situations it is near impossible for most MPs to keep track of changes and to fulfil their role of scrutinising the Government’s work.

Social security offers a comparison with our proposal for an immigration rules advisory committee. Like social security laws, immigration rules are constantly changed by secondary legislation. However, there has been a social security advisory committee since as long ago as 1980. It has an independent remit to scrutinise draft secondary legislation on social security, making advice available to both the Government and Parliament. It has 14 members, who come from a wide range of professional backgrounds, and Ministers are usually required to submit regulations in draft to that committee, which may decide to scrutinise them formally. New clause 54 essentially copies the language of the enabling legislation for that committee and applies it to immigration rules.

While I welcome what the Minister and the previous Home Secretary have said about the need to simplify the immigration rules, we need to improve our procedures for scrutinising changes. Our new clauses offer two reasonable and practical proposals for exactly how that could be done.

--- Later in debate ---

[Caroline Nokes]

I am just coming on to the hon. Gentleman’s proposals for a sparkly new committee. New clause 54 would require the Secretary of State to establish an immigration rules advisory committee. I appreciate the concerns behind the new clause. Establishing a new set of immigration rules that will apply to all EEA and Swiss nationals is a big deal, and we need to get it right.

We have made a clear commitment that a wide range of stakeholders, including Parliament, will have an opportunity to contribute their views on the future system before the final policy decisions are made. That will help to ensure that the relevant immigration rules work for the whole United Kingdom. Clearly, Parliament will have the opportunity to scrutinise the rules throughout that process, using the well-established procedures that I have described. I note that we have never before had such an advisory committee for immigration rules. If the new clause were to be added to the Bill, we would not have a similar committee to scrutinise immigration rules that apply to persons who are not covered by the Bill.

As we have said, from 2021, the immigration rules will apply to EU and non-EU migrants alike in a single system that selects people on the basis of skill and talent, as opposed to nationality, so I regard such a committee as unnecessary. I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the hon. Member for Paisley and Renfrewshire North see that their new clauses are unnecessary, and I invite the hon. Member for Manchester, Gorton to withdraw new clause 9.

[Afzal Khan]

We will not press new clause 9 to a vote, so I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 10

Settled status: right to appeal

“(1) When a person whose right of free movement is removed by the provisions of this Act makes an application for settled or pre-settled status, that person may make an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) if—

(a) the application is turned down, or

(b) the person is granted pre-settled status but there is evidence to show that the person should have been granted settled status.

(2) Subsection (1) applies if the United Kingdom leaves the European Union—

(a) following a negotiated withdrawal agreement, or

(b) without a negotiated withdrawal agreement.”—(Afzal Khan.)

Brought up, and read the First time.

[Afzal Khan]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 14—Right of appeal against refusal of settled status—

“(1) Any person who—

(a) loses the right of free movement under the provisions of this Act; and

(b) is refused settled status; or

(c) is refused settled status but granted pre-settled status;

has the right of appeal to the Tribunal.

(2) In this section, ‘Tribunal’ means the First-Tier Tribunal.”

New clause 34—Right of appeal—

“(1) The Nationality, Immigration and Asylum Act 2002 is amended in accordance with subsections (2) and (3).

(2) After section 82, insert—

‘82B Right of appeal for EEA and Swiss nationals

(1) This section applies where an EEA or Swiss national has applied for settled or pre-settled status under appendix EU of the Immigration Rules and a decision has been made to refuse the application.

(2) Any person who has had their application for settled or pre-settled status refused may appeal to the Tribunal against that decision.

(3) In subsection (1) above, a refusal of the application includes where an application for settled status is refused but pre-settled status is granted instead.

(4) The lodging of an appeal under subsection (2) against a refusal to grant settled status has no impact on the grant of pre-settled status.’

(3) After section 84(5) insert—

‘(6) An appeal under section 82B may be brought on the grounds that the decision was not in accordance with the Immigration Rules.’”

This new clause would ensure a right of appeal for EEA and Swiss nationals refused status under appendix EU of the Immigration Rules.

[Afzal Khan]

My hon. Friend the Member for Sheffield Central, the shadow Minister, will speak to the new clause.

[Paul Blomfield]

New clause 10 is important because, as the Committee should be aware, the Bill removes the current right, under EU law, to appeal against decisions relating to settled status. The new clause seeks to fill that gap by giving the right to appeal to the immigration and asylum chamber of first-tier tribunal to those whose application is rejected and those who have been granted pre-settled status but there is evidence to show that they should have been granted settled status.

As discussed during the oral evidence sessions, as it stands the only right to appeal consists of an administrative review at a cost of £80 or a judicial review at a significantly greater cost and with a drawn-out, time-consuming process. Ms Blackstock from Justice told us that it

“seems to be the most bureaucratic and inappropriate method for what is…potentially a simple grey area that requires a simple review.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 62, Q162.]

This is a problematic issue.

We also heard from Professor Smismans, who represents the3million, that there had been “considerable problems” with past administrative reviews by the Home Office. I am sure the Minister is aware of that. An administrative review may be fine as a first access point, but it is not sufficient on its own.

The Government clearly recognise the need to make the right of appeal available, as they have agreed that with the EU as part of the draft withdrawal agreement. That right exists under the withdrawal agreement that the Government have signed up to; UK courts and tribunals are authorised to refer cases on citizens’ rights to the European Court of Justice within eight years of the end of the transition period.

The withdrawal agreement also provides for an independent monitoring body to conduct inquiries into alleged breaches of part 2 of the withdrawal agreement. That body would also be able to receive complaints from EU nationals and bring legal action on their behalf.

So far so good, but both those mechanisms fall away in a no-deal situation. Following the delayed publication in December of the Government’s paper on citizens’ rights in the event of no deal, my hon. Friend the Member for Manchester, Gorton and I wrote to the Minister and the Under-Secretary of State for Exiting the European Union, the hon. Member for Worcester (Mr Walker) with our concerns. In reply, they stated their view that it is fair in a no-deal scenario to provide the remedies generally available to non-EU citizens refused leave to remain in the UK in other parts of the immigration system.

I ask the Minister: how is that fair? In the event of no deal, the Government are proposing to reduce the time that people have to apply for settled status. The process of registering 3 million people is already a challenge, and some people believe it might be beyond the Home Office. With less time comes greater risk of mistakes, so why are the Government reducing the means of appeal?

We are talking about a finite number of people who have already been subject to two and a half years of uncertainty. It is worth remembering that about 100 EEA citizens were erroneously threatened with deportation by the Home Office in 2017. Is it really fair to anybody that we are expected to trust the Home Office to mark its own homework? An accessible right of appeal under any terms on which we exit the European Union would provide much-needed reassurance to EU nationals.

--- Later in debate ---

[Caroline Nokes]

I was going to come on to talk about administrative review, which is available in the event of deal or no deal to those who are refused leave under the scheme on eligibility grounds. Under the settlement scheme, eligibility is focused primarily on how long an individual has been in the UK; it is not about demonstrating that individuals have been exercising free movement rights but simply about proving identity and that they are here. Administrative review will be able to correct any errors that might be made in calculating the time period, if necessary by considering new evidence. The hon. Gentleman will also be aware that application under the EU settlement scheme is free—I welcome the change that the Prime Minister made by removing the fee. It would be open to any individual simply to reapply, rather than go through an appeal or administrative review process, because there is no charge.

When an applicant is refused on suitability grounds, they will not have a right to administrative review. Refusals on suitability grounds will be made, in particular, if there is evidence of serious criminality. However, where people are refused on criminality grounds and subject to deportation, they can make a human rights or protection claim against their removal; they will have a right of appeal under existing legislation if that claim is refused. In addition, applicants who are refused leave under the settlement scheme have the right to apply for judicial review of the refusal, as we have heard. Such remedies exist now for those refused under the EU settlement scheme.

We are committed to protecting EU citizens, and I hope that what I have said provides reassurance to hon. Members that adequate remedies are already available to those refused leave under the settlement scheme.

[Afzal Khan]

Does the Minister not accept that judicial review or an internal review is no match for the right of appeal? Judicial review is narrow in how it is done, and internal review is marking one’s own homework.

[Caroline Nokes]

The hon. Gentleman has referred again to judicial review. I absolutely accept that it can be time consuming, and I recognise Members’ concerns about appeal rights in the event of no deal, but I sincerely hope that we will not be in that position and that we will be able to introduce appeal rights under the withdrawal Bill. However, it would be confusing to have different provisions on appeal rights in different legislation, which is why I think that the amendments are premature. Nevertheless, hon. Members in Committee and those outside this place, including at the evidence sessions, have made a number of points about further reassurance being required, so I will certainly reflect on that to see what more we can do.

--- Later in debate ---

[Afzal Khan]

The question was not just about judicial review being time consuming, which it is, but about the cost and how narrow it is in law.

[Caroline Nokes]

The point that I have to reflect back every single time is that the Government are working incredibly hard to ensure that we secure a deal with the EU. That is obviously the best way to avoid that scenario.

[Paul Blomfield]

I acknowledge that the Minister’s wish to reflect on some of the issues raised is helpful, but there are still fundamental matters on which we have had insufficient reassurance.

[Afzal Khan]

I will press the new clause to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Afzal Khan]

I beg to move, That the clause be read a Second time.

The amendment would ensure that the hostile environment was not applied to EU citizens until 3 million people had been registered, or until the end of the grace period—30 June 2021—whichever was later. The Government have made it clear that their intention is for EEA nationals to stay in the UK after we leave the EU, and we have serious concerns about their ability to register 3 million EU citizens in time for the end of the transition period, and even more so if there is no deal and the deadline is sooner.

Even where we have a declarative settled status scheme—Labour’s preference, as set out in new clause 15—it is vital that enough EU citizens have proof of their status in the UK before it is tested at every turn through the hostile environment. Under the hostile environment, a person’s ability to prove their right to be here is almost as important as having the right itself.

As discussed under amendment 23, the Government have set no targets for the numbers of people they intend to register for settled status before the deadline. The 3 million would seem to be the bare minimum, and I would welcome the Minister setting a more ambitious target, to which we can hold her Department when the time comes.

The issue of data gaps was raised by Madeleine Sumption at the Home Affairs Committee, and it is reflected in the Migration Observatory’s report, “Measuring Success”. Based on current statistics, it will be difficult to work out how many people miss out on settled status unless the numbers are very big. We do not have the precise figures of EU citizens living in the UK who plan to stay, so it is possible that tens of thousands will miss out on settled status without our knowing. Those most likely to miss out and fall through the cracks will probably be the most vulnerable.

The Migration Observatory’s report sets out steps that the Government could take to better evaluate the success of the settled status scheme and to estimate how many people have not registered, but, to my knowledge, they have not taken any of them. Windrush demonstrated the catastrophic and truly life-threatening consequences of the hostile environment.

This debate is all the more urgent in the light of Friday’s High Court ruling that the Government’s right to rent scheme causes racial discrimination, in breach of human rights. In a damning verdict, the judge found that the scheme causes landlords to discriminate where they otherwise would not. This is not the landlord’s fault. This proven discrimination is a direct result of Government policy, which goes straight to the Prime Minister, who introduced and championed the hostile environment.

--- Later in debate ---

[Caroline Nokes]

I am minded, given the High Court judgment of last week, to be careful what I say about the issue, and I hope that the hon. Gentleman will forgive me if I just go on to speak a little about the evaluation of October 2015, which included 550 responses to online surveys, 12 focus groups, 36 one-on-one interviews and a mystery shopping exercise involving 332 encounters. That evaluation found that there was no systemic discrimination on the basis of race. The law was, and remains, absolutely clear that discriminatory treatment on the part of anyone carrying out the checks is unlawful.

Despite that, as hon. Members have mentioned, on Friday last week the checks were declared incompatible with the European convention on human rights. We disagree with the finding and are appealing the judgment. We remain committed to the principle that if someone has no right to be in this country they should not be renting property. This country has a proud tradition of upholding and promoting human rights, and we have set the standard internationally for the strength of our legal protections against discrimination. The High Court decision is not something we should take lightly.

[Afzal Khan]

We hear what the Minister is saying about people who have no right to be here, but the fact is that people who have a right to be here can become a victim of the hostile environment. That is what happened with Windrush.

[Caroline Nokes]

As I was saying, the High Court decision is not something we take lightly, but we have been granted permission to appeal all aspects of the judgment. In the meantime, the provisions passed by this House in 2014 remain in force. Landlords and letting agents are still expected to conduct right-to-rent checks, as required in legislation, and they are still expected not to discriminate against anyone on the basis of their colour or where they come from.

As my right hon. Friend the Home Secretary has previously made clear, we are looking at options for evaluating the operation of the scheme, adding significantly to the evaluation that has previously been done. The Home Secretary has written to Wendy Williams to draw her attention to the High Court’s findings. The lessons learned review is identifying the key legislative, policy and operational failures that resulted in members of the Windrush generation becoming entangled in measures designed for illegal immigrants.

I will continue to chair meetings of the right-to-rent consultative panel with Lord Best, to discuss this and other matters relating to the operation of the scheme. I reiterate my steadfast commitment to tackling discrimination in all its forms, and I am committed to building an immigration system that provides control, but is also fair, humane and fully compliant with the law. I hope that in the light of these points the hon. Gentleman will withdraw his new clause.

[Afzal Khan]

I thank the Minister for what has been said this morning. However, we take the position that the hostile environment must be dismantled and we do not wish to see EU citizens going through what the Windrush generation has gone through.

Question put, That the clause be read a Second time.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Tenth sitting)

Afzal Khan Excerpts

Committee Debate: 10th sitting: House of Commons
Tuesday 5th March 2019 Public Bill Committees

[Alison McGovern]

I accept what the Minister says, and I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 15

Settled status

‘(1) Any person who has their right of free movement removed by the provisions contained in this Act has the right of settled status in the United Kingdom if that person —

(a) is an EEA or Swiss national;

(b) is a family member of an EEA or Swiss national or person with derived rights;

(c) is resident in the United Kingdom on or prior to 31 December 2020.

(2) Any person who is entitled to settle status under subsection 1 has the same protection against expulsion as defined in Article 28 of Directive 2004/38/EC of the European Parliament and Council.

(3) The Secretary of State must ensure that any person entitled to settle status under subsection 1 receives proof of that status via a system of registration.

(4) The Secretary of State must issue a paper certificate confirming settled status to any person registered for settled status under this section.

(5) No fee may be charged for applications to register for settled status under this section.

(6) Any person who has acquired settled status under the provisions of subsection 1 is entitled to—

(a) remain in the United Kingdom indefinitely;

(b) apply for British citizenship;

(c) work in the United Kingdom;

(d) use the National Health Service;

(e) enrol in all educational courses in the United Kingdom;

(f) access all benefits and pensions, if they meet the eligibility requirements.

(7) A person’s right to use the National Health Service (d), enrol in educational courses (e) and access all benefits and pensions (f) under subsection (6), is the same as those for a British national.

(8) Any person who is entitled to settled status under subsection (1) loses their settled status only

(a) if they are absent from the United Kingdom for a period exceeding five continuous years after 31 December 2021 or

(b) if the criteria for expulsion as set out in Article 28 of Directive 2004/38/EC of the European Parliament and Council applies to them.

(9) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(10) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’—(Afzal Khan.)

Brought up, and read the First time.

[Afzal Khan (Manchester, Gorton) (Lab)]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 16—Rights of family members—

‘(1) Family members of any person (“P”) granted settled status under the provisions of clause [Settled status] are entitled to settled status in the United Kingdom after 31 December 2020 if —

(a) the family member’s relationship with “P” began before 31 December 2020; and

(b) the family member is still in a relationship with “P” when the family member applies for settled status.

(2) Any family member of any person (“P”) granted settled status under the provisions of clause [Settled status] are eligible for a family visa to come and live in the United Kingdom if that relationship began after 31 December 2020

(3) Any children born in the United Kingdom to a person granted settled status under the provisions of clause [Settled status] is a British citizen, whether the child was born before or after that person being granted settled status.

(4) Any family member who is entitled to settled status under subsection (1) loses their eligibility for settled status if they are absent from the United Kingdom for a period exceeding five continuous years after the date on which their settled status was granted.

(5) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(6) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’

This new clause is consequential on NC15.

New clause 17—Settled status: further provisions—

‘(1) The Secretary of State must ensure that no EEA or Swiss national, or family member of an EEA or Swiss national or a person with derived rights, is denied settled status in the United Kingdom on account of their non-exercise of European Union treaty rights or a removal decision made as a result of their non-exercise of European Union treaty rights.

(2) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.’

New clause 18—Right to family life—

‘(1) Article 8 of Schedule 1 of the Human Rights Act 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted settled status in the United Kingdom.

(2) Article 8 of Schedule 1 of the Human Rights Act 1998 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted a work visa under the provisions of clause [Work visas for EEA and Swiss nationals].’

This amendment is consequential on NC21

New clause 33—No time limit for applicants for settled or pre-settled status—

‘(1) No time limit shall be placed on the right of EEA and Swiss nationals to apply for settled or pre-settled status in the United Kingdom.

(2) No EEA or Swiss national can be removed from the United Kingdom under the provisions of the Immigration Act 1971 after exit day if that person meets the requirements for settled or pre-settled status under appendix EU to the Immigration Rules.

(3) In this section, “exit day” has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018.’

This new clause would ensure that there is no time limit on applicants to apply for settled or pre-settled status and prevent EEA nationals who had not yet been granted this status from being removed.

New clause 35—Documented proof of settled or pre-settled status—

‘Any person granted settled or pre-settled status under appendix EU of the Immigration Rules must be provided with a physical document confirming and evidencing that status within 28 days of that status being granted.’

This new clause would ensure that all EEA and Swiss nationals granted settled or pre-settled status must be provided with physical proof confirming their status.

New clause 47—Settled status—

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to EEA and Swiss nationals, family members of EEA and Swiss nationals, and family members who have retained the right of residence by virtue of a relationship with an EEA or Swiss national and meet any one of the following conditions—

(a) they have a documented right of permanent residence;

(b) they can evidence indefinite leave to enter or remain;

(c) they have completed a continuous qualifying period of five years in any (or any combination) of those categories.

(3) This section also applies to—

(a) EEA and Swiss nationals who have ceased activity, and

(b) family members of EEA and Swiss nationals who have ceased activity and who have indefinite leave to remain under subsection (3)(a), providing the relationship existed at the point the EEA and Swiss national became a person who has ceased activity.

(4) This section also applies to family members of an EEA or Swiss national who has died where—

(a) the EEA or Swiss national was a resident in the UK as a worker or self-employed person at the time of their death;

(b) the EEA or Swiss national was resident in the UK for a continuous qualifying period of at least two years before dying, or the death was the result of an accident at work or an occupational disease; and

(c) the family member was resident in the UK with the relevant EEA or Swiss national immediately before their death.

(5) This section also applies to (a) a child under the age of 21 years of an EEA or Swiss national or (b) a child under 21 of the spouse or civil partner of an EEA or Swiss national where the spouse or civil partner was the durable partner of the EEA or Swiss national before the specified date, the partnership remained durable at the specified date, and the EEA or Swiss national has settled status under this section.

(6) The Secretary of State must, by way of regulations, make provision for EEA or Swiss nationals to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain EEA and Swiss nationals, and family members, have settled status by operation of law, and make clear what settled status entails.

New clause 48—Settled status: relationships with British citizens—

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to a family member of a qualifying British citizen and a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and the person has a documented right of permanent residence.

(3) This section also applies to a family member of a qualifying British citizen and to a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen and there is valid evidence of their indefinite leave to enter or remain.

(4) This section also applies to a person who meets the following criteria—

(a) they are a family member of a qualifying British citizen or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen;

(b) the applicant has completed a continuous qualifying period of five years either (or any combination) of those categories; and

(c) the applicant was, for any period of residence as a family member of a qualifying British citizen relied upon under subsection4(b), in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6).

(5) This section also applies to a person who meets the following criteria—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); and

(b) the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has settled status.

(6) The Secretary of State must, by way of regulations, make provision for persons who qualify for settled status by virtue of this section to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen (subject to subsection (9)); and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain family members of UK citizens have settled status by operation of law, and make clear what settled status entails.

New clause 49—Limited leave to remain—

‘(1) A person to whom this section applies, has leave to enter and remain until 30 March 2024, or until such time as the person has settled status.

(2) This section applies when—

(a) a person is an EEA or Swiss national, a family member of an EEA or Swiss national or a family member who has retained the right of residence by virtue of a relationship with an EEA or Swiss national; and

(b) the applicant is not eligible for settled status because they have completed a continuous qualifying period of less than five years.

(3) This section applies when—

(a) a person is a family member of a qualifying British citizen and is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6) or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and

(b) the applicant is not eligible for settled status solely because they have completed a continuous qualifying period of less than five years.

(4) This section applies when—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date);

(b) is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has been or is being granted limited leave to remain under this section.

(5) The Secretary of State must, by way of regulations, make provision for persons who qualify for leave to remain by virtue of this section to secure documentary evidence of their leave, without charge.

(6) A person with limited leave to enter or remain in the United Kingdom has the same rights and entitlements as a UK citizen.’

[Afzal Khan]

My hon. Friend the Member for Sheffield Central will speak to new clause 15.

--- Later in debate ---

[Caroline Nokes]

From the demonstrations that I have had of the digital right-to-work check, and the work that I have done with the Landlords Consultative Panel surrounding the digital right to rent checks, we have seen a very simple and straightforward procedure where the individual can send a time-limited link to a prospective employer that does not require them to do a great deal of research to find digital status; it is there at the click of a mouse button. However, I am listening to the views put to me by the Committee, and will reflect on them over the next few weeks.

As I said, the new digital capability forms part of moving the UK’s immigration system to digital by default, and is a simpler, safer and more convenient system. The proposed new clause would be a step backwards in simplifying the current system. I therefore request that the hon. Member for Manchester, Gorton withdraw the new clause.

[Afzal Khan]

We wish to press new clause 15 to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

I very much hope that the Immigration Minister will be able to give firmer assurances to people who have suffered such injustice at the hands of that American company. That might have happened some years ago, but the issue remains very live for those individuals. Members of the Committee might be aware that the issue was covered again on “News at Ten” this week. It is an extremely painful story that does not reflect well on the education provided in this country. I am sure that the Minister will agree that at a time when it is important for us to be an attractive destination to international students, this is an injustice that the Government will want to do everything they can to put right, and as quickly as possible. I look forward to her response.

[Afzal Khan]

I strongly agree with the new clause. I have been involved in campaigning on the TOEIC test issue. It is a burning injustice that is long overdue for resolution by the Home Office. Thousands of innocent students have spent years trying to clear their names. In Committee, we have discussed the terrible consequences of the “hostile environment”, and those all rained down on the students. I hoped that the issue would be resolved long before now, given that the scandal first broke five years ago. Given that the legal limbo continues, we support the new clause as a vehicle to compel Ministers to resolve it.

[Caroline Nokes]

I thank the hon. Member for Stretford and Urmston for tabling the new clause on behalf of the right hon. Member for East Ham. The new clause relates to the use of certificates to evidence knowledge of English. It raises an important issue, and I would like to explain the Government’s response to widespread abuse of English language testing facilities, which came to light in 2014.

The scale of the fraud—there is no doubt it was a fraud—is illustrated by the fact that so far more than 20 people have received criminal convictions for their role in facilitating the deception, and sentences totalling more than 60 years have been handed down. Further criminal trials are ongoing. There was also a strong link to wider abuse of the student visa route. The majority of individuals linked to the fraud were sponsored by private colleges rather than universities, many of whom the Home Office had significant concerns about well before “Panorama” uncovered the specific fraud. Indeed, 400 colleges who had sponsored students linked to the fraud had already had their licences revoked prior to 2014.

The Educational Testing Service had its licence to provide tests within the UK suspended in early February 2014 and was removed from the immigration rules on 1 July 2014. Approximately 20% of the tests taken in the UK were provided via ETS prior to its suspension.

During 2014, ETS systematically analysed all the TOEIC tests administered in the UK dating back to 2011 and classified them as either questionable or invalid. ETS categorised results as questionable where it had significant concerns about the test centres and sessions where they had been obtained.

We have always recognised that it was possible that a small number of students who took legitimate tests could have received a questionable result. That is why we ensured that those people were given the chance to resit a test or attend an interview before any action was taken against them. ETS categorised results as invalid only where the same voice was matched to two or more tests taken in different names, indicating that deception was likely to have been used.

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[Stuart C. McDonald]

Let me say at the outset that I am stepping somewhat outside my comfort zone in discussing automated data checks, so I am grateful for the assistance provided by the Immigration Law Practitioners Association and the Open Rights Group.

The settled status scheme relies heavily on automatic data checks. Input of a national insurance number triggers the automatic transfer of certain data from HMRC and the DWP to the Home Office. That data is subjected to algorithmic machine analysis according to a Home Office business logic, details of which have not been made public. Result outputs of pass, partial pass and fail are issued to a Home Office caseworker. Once the output is received, the raw data apparently disappears. Applicants who pass the data check are deemed to have fulfilled the residence requirement for the purposes of settled status. Applicants who do not pass are invited by caseworkers to upload documents for manual checking. Applicants who cannot evidence five years’ continuous residence generally receive pre-settled status.

Campaign organisations, including ILPA and the Open Rights Group, rightly believe that the Home Office has three specific legal duties—to give reasons for data check outcomes, to ensure that its caseworkers have meaningful oversight of the checks, and to provide public information about the scheme. The new clauses identify actions that the Home Office should take to comply with those three duties. They seek more information about the data checks and they would increase transparency.

Let me briefly take each of the three duties in turn. The first is the duty to give reasons for the outcome of a data check. The Home Office is under a common law duty to give reasons for its decisions to grant or refuse settled status. The data checks are a mandatory step in the scheme and they are integral to decision making. The duty to give reasons therefore includes a duty to explain why the data checks gave the result they did. Reasons should detail what data was analysed and how the business logic was applied. That information would enable applicants to appreciate whether decisions were open to challenge for irrationality or were made on the basis of inaccurate information.

If the Home Office accepts that it has a duty to give reasons, at least in some cases, how will it approach the need to retain records to supply such reasons? What data about applicants is retained by the Home Office as a result of the data checks? For what reason, and for how long, is that data retained? Which persons does the Home Office envisage will have a genuine business need to see that data?

The second duty is the duty to inform the public about the logic of the data checks. The EU General Data Protection Regulation of 2018 requires the Home Office to process data in a transparent manner. It would be consistent with such duties of transparency and openness if the Home Office provided meaningful public information about its business logic that enabled applicants to understand how it will apply in their case. Will the Home Office provide full details of, or sufficient information about, its business logic to allow its application to all types of individuals to be understood and to allow for independent review? What steps is the Home Office taking to limit and rectify business logic operational errors?

The third duty is the duty to exercise supervisory control over data checks. Making decisions by relying on output from automated data checks without scrutinising these is likely to constitute unlawful delegation of powers. To prevent this, a manual check for system errors should be conducted when applicants challenge refusal of settled status.

Proper oversight, safeguards and transparency are essential when dealing with complex decisions and people in vulnerable situations. It is important for EU nationals to know whether they are eligible for settled status, and if they are not eligible, the future date on which they are likely to become eligible. At the outcome of the data check, the Home Office should inform non-passing applicants which years the checks accepted covered, and which not. This would also improve system efficiency by reducing unnecessary challenges.

Some final questions: on the basis that residence is not contingent on income or contribution, why does it appear that different weighting is applied to data from the Department for Work and Pensions and from HMRC? Why is HMRC requested to provide data first, and not DWP? Will the Home Office add functionality in the scheme to enable applicants to easily request and obtain the information that HMRC and/or DWP have supplied about them? What steps is the Home Office taking to address the particular challenges faced by vulnerable groups such as children in care, persons in abusive or coercive relationships, victims of labour exploitation and trafficking and people who cannot provide documentary evidence, notably children, pensioners, non-working dependants, homeless persons, casual workers and victims of domestic abuse?

[Afzal Khan]

We support these amendments. I make two brief comments. First, the EU settlement scheme will entail an enormous amount of data sharing between the Home Office and other Departments. It is right that the terms of this data sharing should be transparent. Secondly, the possibility of EU citizens’ data being passed on by the Home Office has understandably caused concern among those citizens. We do not want to create any barriers to EU citizens applying for settled status. Getting a high take-up rate is already going to be extremely difficult. Providing for explicit consent for data to be shared or reused would be a sensible limit on Government powers.

[Caroline Nokes]

I am grateful to the hon. Members for their new clauses 24 to 29 and 31. Given the similar effects of some of these new clauses, I will consider new clauses 24 to 28 and 31 together before speaking to new clause 29 separately.

These clauses cover a broad range of issues, including the gathering and using of data and matters relating to the automated residency checks under the EU settlement scheme. As I have said previously, securing the rights of citizens has always been our priority and we have delivered on this commitment. The draft withdrawal agreement published on 14 November 2018 guarantees the rights of EU citizens and their family members living in the UK, and those of UK nationals living in the EU.

The basis of the withdrawal agreement aligns closely to that of existing free movement rules with respect to when a person becomes a permanent resident and, in the case of the EU settlement scheme, acquires settled status. Significantly, the withdrawal agreement states that this assessment should be based not only on length of residence but on the fact that a person is exercising EU treaty rights for the whole qualifying period. We have, however, gone further than this and are being more generous to all EU citizens in the UK and to those who arrived during the implementation period. We do not test whether a person is exercising treaty rights—for example whether they are in work, studying or have comprehensive sickness insurance. Eligibility is based on residence alone, subject to criminality and security checks.

As part of the application process we will, where an applicant provides a national insurance number, conduct an automated check of residence based on tax and certain benefit records from HMRC and the DWP. We know that most EU citizens will have had some interaction with these departments and that this could demonstrate an applicant’s residence, either for the whole five-year period to qualify for settlement, or in part. While it is optional for an applicant to use the automated checks to prove their period of residency, in the test phases most have done so.

To date, 80% of the decisions made have been on the basis of this data alone. Where data exists, the automated checks replace the need for the applicant to submit any other form of evidence. The automated checks happen in real time as the application is completed, and the applicant is informed whether there is enough data to qualify for either settled or pre-settled status. Feedback from the three trial phases to date shows that people overwhelmingly like the simplicity of having their residence proved for them by these checks. The applicant is immediately informed if they need to provide additional documents and prompted to provide such documentation before completing their application.

In such instances, we will accept a range of documents as evidence, and they can be submitted digitally as part of the online application process. Where the applicant accepts the result of the automated check, no further evidence is required, and they will, subject to identity, security and criminality checks, be granted either settled or pre-settled status. The rules for assessing continuous residence are already set out in the immigration rules. The automated checks simply apply those principles to the data provided by HMRC and the DWP. New clauses 26 and 28, although well intentioned, are therefore unnecessary.

I understand the sentiment behind new clauses 24, 25 and 27, on publishing details of the automated residency checks in the scheme, as well as our memorandum of understanding with HMRC and the DWP. We will of course be completely transparent on how those checks work, as it is to everyone’s benefit for us to do so. I confirm that we will publish the MOU before the scheme is fully launched. We will also publish further materials, including more guidance on why automated checks may not return the expected data. The EU settlement scheme is still in the test phase, and it is important that we continue to amend our processes and design as we progress through the phased roll-out. I hope that offers reassurance to hon. Members.

On new clause 31, it may be helpful if I explain the different stages of the application process. When an applicant receives a wholly or partially unsuccessful result from the automated residency check, they are still in the middle of the application process and they have completed only some of the online form. They have therefore not yet submitted an application. Informing an applicant of why data has not matched is likely to increase the risk of fraud and identity abuse. The new clause would change the focus of the scheme from granting status to investigating the data quality of employers or of the DWP and HMRC. We consider that a distraction that would cause unnecessary delays for applicants.

I am sure all hon. Members on this Committee share my desire to keep the application process simple and quick in providing results. For the reasons I have given, the new clause is not consistent with those aims. In most cases, it would be far simpler and more straightforward for applicants to submit other evidence to prove residence, rather than seeking to resolve why data has not matched. Of course, the applicant can take up that issue with HMRC or the DWP if they wish. It is already the case that applicants, like anyone else, can ask Government Departments what data is held about them and get incorrect information rectified, as per article 16 of the general data protection regulation.

Our guidance includes a suggested list of documents that could be provided as additional evidence. Examples include bank statements, a letter from a general practitioner, and certificates from school, college, university or an accredited educational or training organisation. I assure hon. Members that we will continue to work to improve the match rates of the automated checks. The test phase gives us the opportunity to test the EU settlement scheme and to make improvements to the process.

New clause 29 seeks to prevent information from those who apply to the EU settlement scheme from being passed to immigration enforcement. Let me confirm that we fully comply with all statutory responsibilities when processing data. The ways in which this information may be processed are set out in the Home Office’s “Borders, immigration and citizenship: privacy information notice”, which is available on gov.uk. Decisions on whether information should be shared with immigration enforcement are made on a case-by-case basis. It is important that the Home Office uses data in ways that are compatible with the purpose for which it is collected—for example, to assist future citizenship and passport applications and, if needs be, to combat immigration offences.

To conclude, I thank hon. Members for raising these important issues, but I hope the assurances I have provided will lead them not to press their new clauses.

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[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

I will be very short, because this new clause is essentially tied up with the group we have just debated. Because the automated checks involve information passing to DWP and HMRC, the role of the independent chief inspector of borders and immigration should be extended so that they have the power to look under the bonnet, as it were, of both to see what is happening and to ensure that the process is running smoothly and appropriately. That is the new clause in a nutshell. I look forward to the Minister’s response.

[Afzal Khan]

This is a sensible amendment. The independent chief inspector of borders and immigration plays a vital role in inspecting and reporting on Home Office activities. Where the EU settlement scheme overlaps with other Departments, it is important that the inspector has the remit to inspect those. There is some ambiguity about the oversight of the EU settlement scheme if there is no deal. The withdrawal agreement makes it clear that if there is a deal, there will be an independent monitoring authority established to oversee the scheme.

The Minister, in her letter to me on 31 January, set out that if there is no deal, the independent chief inspector of borders and immigration will fulfil that function. Will they get any additional funding to carry it out? Will the Minister expand their remit to cover other Departments, to make sure the inspections are not limited in scope?

[Caroline Nokes]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for new clause 30. However, it is unnecessary. The UK Borders Act 2007 allows the independent chief inspector to inspect the efficiency and effectiveness of services provided by any person acting in relation to the discharge of immigration, nationality, asylum and customs functions. The EU settlement scheme is primarily an immigration function. Therefore, the independent chief inspector of borders and immigration already has the powers to inspect Government Departments involved in the EU settlement scheme application process, and that includes activities undertaken by the Department for Work and Pensions and Her Majesty’s Revenue and Customs in support of the EU settlement scheme application process. I therefore request the hon. Gentleman to withdraw the new clause.

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[Stuart C. McDonald]

The new clauses highlight in different ways the concern over significant increases in costs relating to the use of the migration system. Scrapping the settled status application fee was very welcome. New clause 32 would simply enshrine that in law and ensure that any replacement scheme did not attract a fee. That territory has largely been covered by the hon. Member for Sheffield Central earlier, and I will not repeat what he said.

Will the Minister confirm that there will be no fee for seeking an administrative review of any refusal of settled status? What assessments have been made of the costs of future centres that people are required to attend if they need help to scan documents, for example?

New clause 39 allows for a debate on the skills charge of £1,000 for an employee for 12 months and £500 for every subsequent six months. This is a significant tax on employing a worker from overseas. It is not a subtle tax and seems to be based on the false premise that firms that recruit from overseas are the ones that fail to invest in training at home. That is not the case. Comparatively few businesses recruit from outside the EEA currently. Are we really going to impose a significant levy on many thousands of additional businesses, simply because it is proving impossible for them to recruit locally?

Finally, new clause 45 concerns an issue that I have raised with the Minister on a number of occasions and that I feel strongly about: the system of charging people who are entitled to British citizenship by registration, but who are struggling to meet the exorbitant fees, which have escalated to over £1,000. If they are entitled to register as British, that would give many EEA nationals a more secure status than settled status. It is important to emphasise that when Parliament changed the rules on nationality so that birth in the UK was no longer enough to secure British citizenship, it was careful to seek to protect those who would not qualify automatically, but for whom the UK was genuinely home. The debates from the British Nationality Act 1981 show that Parliament envisaged a straightforward automatic grant if certain criteria were met. The fee at that time was just £35. We are not asking for a return to that level, but simply for a level that reflects the financial cost to the Home Office, which is in the region of £300,000, although I do not have the exact figure to hand.

An early-day motion on this topic achieved extensive cross-party support, as did a Backbench Business debate, which I believe happened last year. Again, I ask the Minister to simply listen to colleagues from both sides of the House. We are talking about people who are entitled in law to British citizenship, and they should not be prevented from obtaining that citizenship merely by an exorbitant fee. The Home Secretary himself recognised that it was a heck of a lot of money to be charging children, so I hope the Home Office will stop charging that sort of sum.

[Afzal Khan]

We support all these new clauses. I will speak briefly on new clause 38, which is in my name.

New clause 38 has three distinct provisions. The first would ensure that EEA and Swiss nationals applying for a visa are not charged above the cost price for that visa. As with many of our amendments, we would prefer that this apply to all migrants, but the scope of the Bill required us to narrow the new clause. The Home Office makes a profit of up to 800% on immigration applications from families, many of whom will not be well off. These applications will often be turned down on technicalities, forcing families to apply and pay again. As EEA nationals join migrants from the rest of the world coming into the UK under work visas, the risk of debt bondage increases. If workers are required to pay high fees for work visas, they will be vulnerable to exploitation and may be left working to pay off debts to recruiters.

The independent chief inspector of borders and immigration has completed an inspection of policies and practices relating to charging and fees. According to his website, he sent the report to the Home Office on 24 January. It would have been helpful to have it in preparation for this discussion. Can the Minister tell us when her Department will publish the report?

The second part of the new clause stipulates that no child with entitlement to register for British citizenship should be required to pay a fee. The principle is that those children, given their entitlement to British citizenship, will not be required to pay fees to realise that entitlement. This was the intention of the British Nationality Act 1981, which ended the principle that being born in the UK in itself makes someone British, when it gave no discretion to the Secretary of State, other than the formal role of registering the citizenship of any person with the entitlement.

The third part of the new clause would require that anyone naturalising as a British citizen should not pay above cost price. It is important to keep the questions of immigration and nationality separate, and to keep entitlement and naturalisation separate as well, despite the Government’s attempt to blur that distinction.

The fees are now £1,012 for children and £1,206 for adults. That is an enormous amount, and it disproportionately affects BME people and children under local authority care. The effect of being unable to pay these fees is that British people are subject to the hostile environment, including detention and temporary deportation, which is wholly unjust.

[Caroline Nokes]

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, for Paisley and Renfrewshire North and for Manchester, Gorton for having tabled new clauses 32, 38, 39 and 45.

It may be helpful to provide some background on this issue. Fees for border, immigration and citizenship products and services have been charged for a number of years, and they play a vital role in our country’s ability to run a sustainable system that minimises the burden on taxpayers. Each year, income from fees charged contributes enormously towards the running of our border, immigration and citizenship system. The charging framework for visa and immigration services delivered £1.35 billion in income in the last financial year. It is therefore true to say that fees paid by users play an absolutely critical role in this country’s ability to run an effective and sustainable system, and as I am sure members of the public rightly expect, to minimise the burden on UK taxpayers.

I also want to explain from the outset that we already have a legislative framework in place that governs fees. Fees are set and approved by Parliament through fees statutory instruments made under powers in the Immigration Act 2014. As hon. Members will be aware, the Prime Minister publicly confirmed that

“when we roll out the scheme in full on 30 March, the Government will waive the application fee so that there is no financial barrier for any EU nationals who wish to stay”—[Official Report, 21 January 2019; Vol. 653, c. 27.]

We will be amending existing fees legislation to implement that decision.

Outside of applications made under the EU settlement scheme, immigration and nationality fees legislation has always provided for some limited exceptions for paying application fees for limited and indefinite leave to remain. However, those exceptions are limited to specific circumstances, such as for those seeking asylum or fleeing domestic abuse, or where the requirement to pay the fee would lead to a breach of the European convention on human rights. Fee exceptions do not extend to applications made by individuals who are seeking to register or naturalise as a British citizen. That is because becoming a citizen is discretionary and not necessary to enable individuals to live, study and work in the UK, or to be eligible to benefit from appropriate services. Other exemptions are provided by separate regulations governing the immigration health surcharge.

To make provisions that are specific to certain nationalities as part of this Bill would be unfair to all users of the border, immigration and citizenship system.

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[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

New clause 51 relates to refugee family reunions. Again, I have encountered a problem with the scope of the Bill, as my new clause would extend the scope of refugee family reunion rules to EEA and Swiss nationals. That would obviously be a fairly rare occurrence; nevertheless, I think some of these amendments and new clauses would establish a principle. As I said to the Immigration Minister not long ago, if it gives rise to inequalities and problems, the answer is for the Government to equalise the situation by raising the standards in relation to non-EEA nationals who are also refugees.

Due to the restrictive rules about who is eligible, many people are not allowed to reunite under family reunion rules. Currently, the UK immigration rules state that

“adult refugees in the UK can be joined via family reunion by their spouse/partner and their dependent children who are under the age of 18.”

Those restrictions mean, for example, that parents are not automatically able to bring their children who have turned 18 to the UK, even if the child is still dependent on them and has not yet married or formed their own family. While the family reunion guidance allows some cases outside the rules to be granted in exceptional circumstances, in reality that rarely happens.

Furthermore, unlike adult refugees, children who are in the UK alone and have refugee status have no right to be reunited with even their closest family members. Again, in this regard the UK is an outlier. These are children who have often endured hardship and trauma and have been recognised by the Government as having the right to stay in the UK. They now find themselves alone in an unfamiliar country and having to navigate the immigration system themselves.

The Government argue that granting refugee children the right to sponsor family members to come to the UK would be a pull factor and incentivise or force more children to make dangerous journeys to the UK. However, there is no evidence to support that claim, and in every other EU member state refugee children can sponsor close relatives to join them.

In the 12 months before September 2018, for instance, 811 separated children were granted asylum in the UK, more than a quarter of whom had fled Eritrea. These children have been recognised by the Government as being in need of international protection, where it is not safe for them to be returned to their home country. Where possible, and where it is in their best interest, children should be able to be with their parents. Granting separated children family reunion rights would allow that to happen. That, in short, is what the new clause seeks to put us on the road to achieving.

The other point I want to make is that Parliament of course debated all this and heard all the Government’s arguments during the Second Reading debate on the Refugees (Family Reunion) (No. 2) Bill, promoted by my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil). Considerable effort was made to ensure that sufficient Members would be present at a Friday sitting to debate that private Member’s Bill. There was a vote and there was overwhelming support for its Second Reading. There is growing frustration about the delay in bringing forward the money resolution to enable that Bill to go to the next stage—Committee. I would therefore like the Minister to explain what is happening and when we will see the Bill get to Committee, because we are running out of time and it would be outrageous if all that good work was stymied by Government use of procedures.

[Afzal Khan]

We support this new clause. I spoke in the Second Reading debate on the private Member’s Bill that would have implemented these changes. I commend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for once again bringing this issue to our attention through this Bill.

[Caroline Nokes]

I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, along with the hon. Member for Paisley and Renfrewshire North, for raising, through new clause 51, the important issue of refugees’ rights to family reunion.

The new clause is designed to allow EEA and Swiss national refugees, including those who are nationals of EEA countries that are not part of the EU, to sponsor certain family members to join them in the UK. I spoke last week about the inadmissibility of asylum claims from the EU and about the Spanish protocol and do not intend to repeat today what I said then. It is the Government’s view, which I hope all members of the Committee share, that all Swiss and EEA nationals are from safe countries and are highly unlikely to suffer a well-founded fear of persecution or serious harm there, save in very exceptional circumstances. For those reasons and because we do not foresee a change in these circumstances, we intend to continue our policy on the inadmissibility of asylum claims from EU nationals, as well as treating claims from Swiss and EEA nationals as clearly unfounded, post EU exit.

I hope that hon. Members can see that treating asylum seekers from Switzerland and the EEA differently from those from the rest of the world on the grounds of their nationality would be illogical and discriminatory. It would be unlikely to comply with our equalities obligations and would offer a clear avenue of challenge on human rights grounds. I appreciate that that may not have been the intention behind the new clause, but it would be its effect. In any event, in a deal scenario, which remains the Government’s priority, we will already be providing family reunification rights. New clause 51 is therefore unnecessary to secure the rights of EEA and Swiss nationals to sponsor their family members.

I know that hon. Members are keen to address refugee family reunion more broadly, and I am conscious that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked a question about the private Member’s Bill promoted by the hon. Member for Na h-Eileanan an Iar. Of course, it is the usual channels that decide money resolutions. That is entirely outside my hands, but I can comment on the Government’s family reunion policy. That provides a safe and legal route to bring families together. It allows adult refugees who are granted protection in the UK to sponsor a partner and children under 18 to join them, if they formed part of the family unit before the sponsor fled their country. Under that policy, we have granted visas to more than 26,000 partners and children of those granted protection in the UK in the past five years; that is more than 5,000 people a year.

Furthermore, our family reunion policy offers clear discretion to grant leave outside the immigration rules. That caters for children over 18 where there are exceptional circumstances or compassionate factors—for example, where they would be left in a conflict zone or a dangerous situation.

The types of family member that the new clause is aimed at can apply under alternative routes. Under the immigration rules, adult refugees can sponsor adult dependent relatives. That includes parents, grandparents, children over 18 and siblings over 18 living overseas where, because of age, illness or disability, the person requires long-term personal care that can be provided only by their sponsor in the UK, and that will be without recourse to public funds.

Moreover, there are separate provisions in the rules to allow extended family who are adult refugees in the UK to sponsor children to come here where there are serious and compelling family or other considerations. That is an important measure, as it enables children to join family members in the UK through safe and legal means.

It is imperative that we think carefully about this issue. Adopting new clause 51 could significantly increase the number of people who could qualify to come here, not just from conflict regions, and irrespective of whether they needed international protection. That would risk reducing our capacity to assist the most vulnerable refugees.

We must also consider community and local authority capacity. I understand that this is a complex and emotive issue, which is why we are listening carefully to calls to extend family reunion and closely following the passage of the private Members’ Bills on this subject, and will continue our productive discussions with key partners. It is particularly important to me that hon. Members are reassured that we are taking this matter seriously, and I hope that I have gone some way in ensuring that. For those reasons, I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw new clause 51.

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[Stuart C. McDonald]

These new clauses relate to the offence of illegal working, which we heard about in the evidence to the Committee. The substance of that evidence was essentially that the offence of illegal working is driving people into exploitative employment relationships. Obviously, that is complete anathema to the Government’s stated anti-slavery objectives.

We heard from Focus on Labour Exploitation, whose research has clearly shown that undocumented people are unlikely to come forward to labour inspectorates about abuse if they fear immigration repercussions, which has a triple effect. First, they are not identified as victims or supported. Secondly, abusive employers can operate with relative impunity because the immigration regime effectively hands them exploitable workers. Thirdly, that serves to undercut other workers, who have legal rights, thereby dragging the whole labour market down.

I am loth to see the offence extended to EEA and Swiss nationals. This offence is a year or two old now; has the Home Office done any research on the impact of its creation? What have been the implications on the Government’s efforts to tackle modern slavery? At the very least, we need to be reassured that the Home Office is alive to these concerns and will take them seriously. In the absence of such reassurance, we cannot just head off and extend the scope of those offences further.

[Afzal Khan]

We support the new clauses. As has been set out by the TUC and Focus on Labour Exploitation, it is essential that migrants are able to claim their rights at work. That means not being arrested for criminal offences when attempting to report abusive employers. Our labour market enforcement capacity is one of the weakest in Europe. We need to set high standards for wages and workers’ conditions, significantly improve our inspection capacity, and remove the offence of illegal working. This offence makes it less likely that people will come forward to the UK national referral for trafficking and modern slavery.

We know that many trafficking victims are already in immigration detention. In her evidence to us, Bella Sankey from Detention Action provided a powerful example of a Chinese woman who was a victim of trafficking. She was picked up at a brothel after a tip-off, but instead of being treated as a victim of modern-day slavery and trafficking, she was taken to a detention centre and held for six months. Clearly, many things went wrong at many stages of that woman’s journey through the immigration system, but removing the offence of illegal working would at least help to remove one barrier to her getting the help she needs.

[Caroline Nokes]

I am grateful to hon. Members for tabling these amendments. I also welcome the opportunity to explain how the offence of illegal working will be applied to EEA and Swiss nationals after we have left the EU, and how our approach to the EU settlement scheme will minimise any risk of those nationals being subject to the offence of illegal working post-EU exit. The Government have made clear our commitment to protecting the rights of EEA and Swiss nationals who are resident in the UK before exit. I recognise the concerns and the intention behind both new clauses, but they are unnecessary and discriminatory. They are also incompatible with our commitment in the White Paper to establishing a single, skills-based immigration system for all migrants coming to live and work in the UK.

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Today, the GLAA has to license four sectors and oversee the whole labour market with a staff of just 123 people. If we want a labour market that provides decent work and conditions to all in the future, the resources must be in place to enable that to happen. Although the new clause calls for effective licensing to protect migrant workers in sectors where short-term visas may be particularly prevalent, and where there is an increased risk of exploitation, it will also be important for Ministers to provide the resources needed to make such protection a reality.

[Afzal Khan]

We support the new clause to expand the remit of the GLAA. The GLAA performs a vital role in safeguarding the rights of workers and it is right that that should extend to the widest categories of vulnerable workers. My final point, which my hon. Friend has already made, is that the GLAA is chronically under- funded. We need to have more respect for the job it does.

[Caroline Nokes]

I thank the hon. Member for Stretford and Urmston for introducing the new clause and giving us further opportunity to consider the critical matter of protecting the rights of migrant workers.

New clause 57 raises an important issue and I appreciate the intention behind it. As I indicated, I share the hon. Member’s concern that overseas workers—indeed, all workers—should be safe from abusive employment practices. Although I sympathise with the sentiment behind the new clause, I do not think it would be appropriate to change the Bill in the way proposed, for reasons I will explain.

First, it presumes that the employment practices for the sectors mentioned in the new clause are the same as the sectors currently licensed by the GLAA. They are not. The Gangmasters (Licensing) Act 2004 applies only to the agricultural, shellfish gathering, and food packaging and processing sectors, as that employment method is particular to those sectors. While gangmasters may be used in some cases, the practice is not prevalent in the supply of labour in the sectors covered by this new clause. In some sectors, such as construction, many workers are self-employed and in others workers are recruited directly, such as with people employed to do cleaning work.

If this new clause were to be passed, the consequence would be that many thousands of extra businesses—potentially every café or care home—would have to register as a gangmaster, with considerable expense but potentially little benefit. The new clause would in effect extend the scope of the Gangmasters (Licensing) Act 2004 to construction, cleaning, care or hospitality work, but only where that work is undertaken by EEA or Swiss nationals, and only where those individuals have come by that work through a particular route. That restriction does not sit comfortably in the existing regime, which defines scope through work sector and not through the characteristics of the individuals undertaking the work. The effect of the new clause would be to create a two-tier system, resulting in EEA and Swiss nationals receiving a greater degree of labour market protection.

The Government are fully committed to protecting the rights of migrant workers and I reassure the hon. Lady that the Government are giving active and serious consideration to these matters. I hope to be able to say more on that in the coming weeks. As I set out at length in earlier sittings, it is of the highest importance that everyone working within our economy is safe and is treated fairly and with respect. I am proud of the Government’s track record on this issue, with the introduction of the landmark Modern Slavery Act 2015 and the further powers we have given to the GLAA. We will not be complacent.

Let me be clear: migrants working lawfully in the UK are entitled to all the protections of UK law while they are here, whether it is entitlement to the minimum wage, health and safety legislation, working conditions, working time rules, maternity and paternity arrangements, the right to join a trade union, the right to strike, statutory rights, holiday and sick pay, and any of the other myriad protections that exist in UK law for workers. They apply to those who are in the UK on work visas every bit as much as they do for the resident workforce. That applies to both migrant workers who are here under the current immigration system and to those who may come in the future, under the new immigration system.

The Immigration Act 2016 created a new power to extend statutory licensing of gangmasters to new commercial sectors by secondary legislation, so the proposed new clause is not necessary. Although I am loth to say it, this demonstrates yet again that we could make the changes through the immigration rules, which might provide a convenient route to do so. In deciding whether to extend gangmaster licensing, the Government would need clear evidence that that is the right course and would draw advice from the Director of Labour Market Enforcement. I hope that having further considered the wider impacts of this new clause and heard my assurance that the protection of migrant workers is at the forefront of the Government’s thinking, the hon. Lady will feel able to withdraw the proposed new clause.

[Caroline Nokes]

As we have now concluded the Bill’s Committee stage, I thank both you, Mr Stringer, and your co-Chair, Sir David Amess, for your effective chairmanship and for keeping us all in order. It might be only me who tried your patience—I am sure other Members have a view on that. I know you have been advised throughout by the Clerks to the Committee, who have acted with a great deal of professionalism. I extend my gratitude to them.

I thank all the Committee members for their thoughtful consideration of the issues we have debated over the past few weeks. Although we by no means agreed on everything, we debated important points in a constructive spirit and considered a wide range of matters very carefully. I am particularly grateful to the Opposition spokespeople, the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East—I have said that constituency name an awful lot over the past fortnight; I hope I have pronounced it correctly—for their valuable contributions on a range of important issues. I suspect those will not be their last words on the Bill.

I thank the policemen and the Doorkeepers, who kept us safe and ensured that everyone received the support they needed, and the staff of the Official Report, who ensured that all our pearls of wisdom were faithfully recorded. Finally, I thank my Bill team, who have been unfailingly good humoured in keeping me in line and helping me through my first Bill Committee in this role. I am very much indebted to them. I look forward to considering the Bill during its next stage.

[Afzal Khan]

May I add my thanks to you, Mr Stringer, and your colleague, Sir David Amess, for the excellent job you have done of steering us through the Bill? I thank the Clerks for all the help they have provided, not only here but outside this room. I also thank all the Committee members; like the Minister, this is my first attempt at a Bill Committee, so I am particularly grateful to my Front-Bench colleagues for all their help. Let us not forget all the other staff who helped us, too. I look forward to the next stage of the Bill.

[The Chair]

I thank the Minister and the shadow Minister for their kind words, and I thank Committee members for their good humour and for getting through the business so quickly and effectively.

Question put and agreed to.

Bill accordingly to be reported, without amendment.

Immigration and Social Security Coordination (EU Withdrawal) Bill (Seventh sitting)

Afzal Khan Excerpts

Thursday 28th February 2019 Public Bill Committees

[Kate Green]

I am grateful for the hon. Gentleman’s support, and I agree with him about the huge significance for individuals and families of the way in which social security co-ordination regulations are adopted and adapted in future. It is about how much money people have to live on, to support their families or in their retirement. They have every expectation of a right to the support, because they have paid in and contributed to social insurance systems, and it would be frankly unethical of any Government to damage those legitimate expectations.

In conclusion, through my amendment I seek to curtail Ministers’ delegated powers in relation to social security co-ordination. The Government have stated that the anticipated policy changes, both in a no-deal scenario and in certain deal scenarios, could not otherwise be delivered by existing powers such as the European Union withdrawal agreement powers. However, in my view, such policy changes, or at least the principles of the policy, should be set out in primary legislation. That will be the case in a deal scenario, as the withdrawal agreement and its implementing primary legislation will address future policy on social security co-ordination. In a no-deal scenario, the European Union (Withdrawal) Act 2018 provides sufficient powers to make regulations—indeed, the Government have already drafted them—to maintain the status quo as far as possible until an agreement on social security co-ordination is reached with the EU for the future, at which point further primary legislation will be needed.

It is for those reasons that I commend my amendment to the Committee. It is important that we have parliamentary oversight and parliamentary scrutiny of Ministers’ powers in the area of any future decisions that will have an impact on social security entitlements.

[Afzal Khan (Manchester, Gorton) (Lab)]

Once again, it is a pleasure to serve under your chairmanship, Mr Stringer. I start by thanking my hon. Friend the Member for Stretford and Urmston for laying out this amendment.

The Henry VIII powers would allow the Government to remove rights to aggregate pensions and disability entitlements that EU citizens in the UK and UK citizens in the EU have built their lives around. It is vital that the Government do not make regulations that might remove the ability of British citizens and European economic area nationals to aggregate pension rights and social security benefits without proper scrutiny by Parliament, so we support this amendment. These social security rights are vital for EU citizens in the UK as well as UK citizens in the EU.

People will have moved back and forth between the UK and the EU on the assumption that they will be able to bring their pension entitlements with them. For example, a German national might move to the UK midway through their career, work here for 10 years, and then go back to Germany to retire. The current EU regulations allow them to receive a pension based on their contributions both in Germany and in the UK. The same is true for a UK national who moves to work in Germany.

If we have a withdrawal agreement, those rights will be guaranteed, but if we do not have a withdrawal agreement we do not know what will happen. Perhaps the Minister can help us with that.

In an evidence session, it was pointed out by British in Europe witnesses that 80% of the British people living in Europe are of working age or below, and more than 1 million people are affected by social security implications. Removing the ability to aggregate social security benefits will deter EU citizens from coming to work in the UK, because they will not be able to export social security from the UK, despite having paid into the system. The same would apply for UK citizens moving into the EU.

There is a particular concern among UK citizens living in the EU about the uprating of pensions. The percentage increases can accumulate to be very significant for pensioners living in the EU, particularly in the context of the declining value of the pound.

The UK state pension is already the lowest in all the OECD countries, and a refusal to uprate would cause significant hardship for many UK citizens. At the moment, the Government have committed to continue the uprating of pensions until April 2020, but not beyond. Can the Minister provide some much-needed clarity for the UK citizens living in the EU about the position of pensions beyond 2020?

If the UK introduces restrictions on social security, it is to be expected that the EU will respond in kind. We heard during our evidence session from the TUC that it is

“very worried about the increasing social insecurity and the welfare repercussions for British people abroad.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c.38, Q109.]

We heard from the British in Europe witnesses during our evidence session that the Bill has had a negative effect on discussions with EU Governments. Kalba Meadows was clear that

“national Governments across the EU27 are reticent in coming forward with their own legislation, because they are concerned that the rights of their nationals living in the UK will not be equally protected.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 146, Q364.]

[The Minister for Employment (Alok Sharma)]

It is an absolute pleasure to serve under your chairmanship today, Mr Stringer. I start by thanking the hon. Member for Stretford and Urmston for her amendment to clause 5. She made a wide-ranging speech, which covered many of the points that might be raised when we consider clause 5 stand part, and I will try to address some of the points that she made. I put it on record that whatever our political differences, I have always thought of the hon. Lady as one of the most courteous and considered Members in the House, and for that we should all be grateful.

The hon. Member for Manchester, Gorton made some interesting remarks. Before I discuss amendment 26, I say generally that if colleagues want to give citizens certainty, the best way of doing so is to support the withdrawal agreement and the deal that will be returning to the House. Many sincere views are expressed, and people are concerned for citizens—I completely get that—but the best way of providing certainty is to support the deal.

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[Alok Sharma]

Clause 5 provides an essential legislative framework to ensure that the Government can reflect their preferred social security co-ordination policy outcomes after the UK has left the European Union, responding to the outcome of negotiations. It will enable the Government to deliver policy changes post exit both in the event of no agreement being reached on future social security co-ordination matters and to support deal scenarios in which a UK-EU agreement differs from current social security co-ordination measures.

The clause provides a power for the Secretary of State or Her Majesty’s Treasury to modify the current social security co-ordination regulations. The regulations provide for social security co-ordination across the EEA and will be incorporated into domestic law by the European Union (Withdrawal) Act when the UK leaves the EU. Clause 5(3) sets out some examples of the manner in which the power may be used. One such example is that regulations may make different provision for different cohorts, and some reference points for differentiation are suggested. This is particularly relevant in a no-deal scenario, as the regulations could, for example, provide protection to those who would otherwise have been in the scope of the withdrawal agreement in line with a unilateral offer. Very importantly, regulations made using powers in this clause will be subject to the affirmative procedure, so they will be scrutinised and must obtain the approval of both Houses.

In subsection (4), the clause also gives the Government the ability to make consequential changes to other primary legislation and other retained EU law to ensure that the changes to which the main power gives effect can be appropriately reflected. It may, for example, be used to address technical matters, inoperabilities and inconsistencies.

In subsections (5) and (6), the clause makes it clear that any directly affected rights that will have been saved by the European Union (Withdrawal) Act shall cease to be recognised to the extent that they are inconsistent or capable of affecting the changes made using the powers in the clause. This is necessary to address inoperabilities and conflicts of law that might arise as a result of regulations made under this clause. It will ensure that any policy changes are able to be delivered effectively.

It is vital that, across all EU exit legislation, the UK Government continue to honour any commitments that they have made in the devolution settlements. Therefore, subsections (1) and (7) of the clause confer powers on the devolved Administrations to legislate in areas for which they have competence. Officials in the UK Government and devolved Administrations have worked together on the correct approach for this clause, and legislative consent motions will be sought from the devolved legislatures in relation to this approach. Subsection (7) defines an appropriate authority, clarifying that the power is exercisable by the Secretary of State or the Treasury, a devolved authority, or jointly.

It is reasonable to assume that, in a deal scenario, if a withdrawal agreement is reached, the implementing vehicle for the withdrawal agreement will provide the necessary protections for those who fall within its scope, and Parliament has the power to ensure that that is the case. I want to reassure colleagues that the power in this clause will not be exercised to remove or reduce commitments made in relation to those individuals within the scope of the withdrawal agreement. The exercise of any powers within this clause will also be subject to the outcome of further negotiations with the EU on a future agreement. In a deal scenario, the clause will be necessary to deliver policy changes to the retained regime that will cover individuals who fall outside the scope of the deal, to reflect the reality of our new relationship with the EU.

In addition, this clause is essential to ensure that the UK Government are able to provide appropriate protections and make appropriate policy changes in a no-deal scenario. Without the clause, the Government have only the power contained in the European Union (Withdrawal) Act to fix deficiencies within the retained system of social security co-ordination. The current social security co-ordination regime operates on the basis of reciprocity. The European Union (Withdrawal) Act power allows us to ensure that the regime will operate on day one of exit, but does not enable us to deliver policy changes, including those that would help us to deliver effective support for UK nationals in the EU. This clause allows us to amend the rules in an appropriate and manageable way if the Government need to operate the system unilaterally, and to deliver changes to the retained regime.

As a responsible Government, we are preparing for all eventualities, and the power in this clause is necessary to provide the Government with the flexibility required to respond to a range of scenarios.

The aim of schedule 2 is straightforward. It sets out the power of the devolved authorities under the social security co-ordination clause—clause 5. The clause confers new powers on Scottish Ministers and, indeed, the Northern Ireland department, to amend the limited elements of the social security co-ordination regulations that fall within devolved competence. We are thus providing the devolved Administrations with the powers that they need to amend aspects of the regulations in areas of social security that are devolved—in the same way as, rightly, the UK Government have powers with respect to laws affecting the UK as a whole.

It is important that the powers in the Bill should not be so narrow as to hamper the devolved Administrations’ ability to amend the elements of the regulations that are within their competence. It is also important to set out, as the schedule does, the parameters for the powers. They should not be wider than is necessary to achieve their purpose. For example, the schedule ensures that the same rules on consent and consultation that the devolved authorities must follow when making provisions in their own legislation apply for regulations made under clause 5. We sought that balance by focusing on the specific aims and applying safeguards to ensure, for instance, that the powers will not be used in ways that might be outside devolved competence.

Schedule 3 simply gives further detail about the making of regulations under the social security co-ordination clause. It provides further detail about the form that regulations will take under the clause, whether they are statutory instruments, Northern Ireland statutory rules or Scottish statutory instruments. The schedule also provides that the use of the power is subject to full parliamentary scrutiny. Its exercise will be subject to the affirmative procedure, which means that regulations made using the power must obtain the approval of each House. It also gives clarity to the procedures that the devolved authorities will need to follow.

Paragraph 4 provides that where the UK Government and a devolved authority exercise the powers under clause 5 jointly, the affirmative procedure applies in both the UK Parliament and the devolved Parliaments or Assemblies. Paragraph 5 permits other regulations, subject to the negative procedure, to be included in an instrument made under clause 5. That means that even where a regulation would be subject to a lower level of scrutiny, if it is combined with regulations under clause 5 a higher level of scrutiny—the affirmative procedure—will apply.

[Afzal Khan]

Labour believes that if the Government want to make far-reaching changes to social security, they should be subject to scrutiny, in primary legislation. As we discussed in the clause 4 debate, secondary legislation does not provide Parliament with an opportunity for adequate scrutiny and oversight of major policy changes. The rights in question were brought in by primary legislation, and it is only right that their removal should be possible only with the same level of scrutiny.

The powers in the clause are not necessary. If the Government really want to tidy up the statute book or make other, minor, changes to legislation, section 8 of the European Union (Withdrawal) Act 2018 already gives them the power to remove the co-ordination regulations and replace them. In fact, they have already laid four regulations under the Act. We feel that the power in the clause would enable the Government to set out global changes to social security, which should rightly be done through primary, not secondary, legislation.

That position was set out by Justice during our evidence sittings. It was concerned about

“the extraordinary breadth of power that it creates”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 59, Q157.]

The witness set out clearly:

“It is simply not appropriate to leave that to a policy change by way of delegated power, but it seems to us, from their memorandum, that Government are expressly intending to do that to get around the limitations in section 8.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q158.]

Similarly, Professor Steve Peers was clear that

“the Government should not have unlimited powers and some constraints should be set by primary legislation.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 123, Q308.]

Urgent, widespread changes to social security co-ordination are not needed in a rush. Thanks to the 2018 Act, there is law in place. The statutory instrument amendments are in place and there is no urgent need for an overhaul of social security co-ordination that would justify such a lack of scrutiny.

The House of Lords Delegated Powers and Regulatory Reform Committee is clear that the Government have provided an inadequate justification for the transfer of power from Parliament to the Government in the clause. It recommended the removal of clause 5 in its entirety. It refers to a requirement to provide an “exceptional justification” for a skeleton Bill, which has not happened in this case. As the Committee puts it,

“Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton.”

--- Later in debate ---

Those are the two options I put before the Committee for debate today, and I look forward to hearing the Minister’s response.

[Afzal Khan]

As demonstrated by our voting on both Second Reading and the clauses that have been voted on so far, we do not agree with what the Government are doing in this Bill. However, we do not support the view that there should be a different immigration system for different parts of the country. We need a flexible immigration system that will allow businesses and public services to access the workers they need, but one that applies to the whole of the UK, not just Scotland.

I understand that there are issues with regional variation in salary levels, and that different areas of the UK have different needs in terms of migration. However, that is not an issue that affects only Scotland. My own region, and yours too, Chairman, the north-west, has very different salary levels and economic needs from London and the south-east, so it will have different migration needs.

Without a border between Scotland and the rest of the UK, we do not see how a different immigration system could work. How could we ensure that someone with the right to work in Scotland was not working in England or Wales? We fear that that might lead to a further reliance on the hostile environment, as we would be relying on employers and landlords to enforce the border between Scotland and the rest of the UK. In view of that, we do not support the amendment.

[Caroline Nokes]

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said when he started to speak that he looked forward to a sensible and civilised conversation on this matter; across the whole of this Bill Committee, I think we are not doing badly on that front and I certainly hope we can continue in that vein.

These amendments cover topics that I have discussed with the hon. Members and their colleagues on a number of occasions. I fear they might find my response to be fairly predictable, but I make no apology for that. I remain to be convinced that introducing geographical variation into the immigration system is either practical or desirable.

Amendments 34 and 35 seek to change the extent of the Bill so that it does not apply to Scotland. However, the whole of the United Kingdom is leaving the European Union: England, Wales, Scotland and Northern Ireland are leaving the EU. I believe it is our duty as a responsible Government to fully deliver on the result of the EU referendum and to end free movement. It is also important to remind the Committee that this Bill legislates for the end of free movement from the EU. It provides the legislative framework to simplify the UK immigration system by bringing EEA nationals and non-EEA nationals under one system.

Meanwhile, proposed new clause 55 would commit the Secretary of State to reviewing whether or not Scotland should have its own immigration system and its own Scottish visas, but only for EEA nationals. I am not sure how such a proposal, limited to EEA nationals, would be justified on equality grounds. Such a review would not be the first time that the question of whether or not Scotland should have more independence from the UK has been considered, including decisively in a referendum in 2014. With particular reference to immigration, we are not reopening the work of the Smith commission. Immigration needs to be a reserved matter.

I remind the Committee that, in designing the new system, we commissioned the Migration Advisory Committee to consider the best immigration policies for the UK. MAC undertook a comprehensive engagement and evidence-gathering exercise across the whole of the country over a 12-month period and produced an authoritative report that gives the Government a clear direction of travel for the UK’s future skills-based immigration system.

As part of that exercise, MAC considered whether there was an economic need for regional differentiation in the immigration system, and not for the first time concluded that there was no case for it. To quote from its final report:

“Overall, we were not of the view that Scotland's economic situation is sufficiently different from that of the rest of the UK to justify a very different migration policy.”

MAC went on to note that Scotland already has a separate shortage occupation list. The Committee will note that the composition of that list, as well as the UK-wide one—

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[Stuart C. McDonald]

I am hugely disappointed by the response from both Front-Bench spokespeople, and their degree of engagement on this will be a disappointment to their party colleagues in the Scottish Parliament. There has been no recognition or engagement with the challenges that Scotland faces. This issue is absolutely pivotal to our economy, tax base and public finances, and their not even recognising that as a problem, never mind offering a single solution, is hugely frustrating.

I recognise that the MAC report was not exactly wonderful for my argument, but it did not say that there should not be a differentiated policy for Scotland; it said that that would be a political decision. I acknowledge that other parts of the United Kingdom also have economic challenges, but my answer to that is to explore options to help them. I pointed to the Tech Nation visa, which has slightly different rules for one or two cities in England, so it is not as if the UK Government do not differentiate for certain parts of England.

The difference is that Scotland already has institutions that could help to operate such a policy, such as a Government and a Parliament, none of which exist in England. I will be happy to table amendments on Report that include Northern Ireland and Wales, if Members wish.

As the Minister said, the Smith commission looked at the issue, but that was long before there were any proposals to end free movement and implement the drastic new system, which has pretty much united Scotland’s businesses, trade unions and third sector organisations in opposition. She must be aware that if she does not think again about the proposals, the already increasing demand for some sort of differentiation will only grow. We have not even started to look at how things work in Canada, Australia or other places, but this does not need to be difficult; it could be simply a small additional means for Scotland to support its population and its economy.

I repeat that I am hugely frustrated by the response that we have been given this morning. I hope that we can get something better on Report, but in the meantime, there is no point in my dividing the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Afzal Khan]

I beg to move amendment 14, in clause 7, page 5, line 32, at end insert—

“(5A) This Act cannot come into force until the House of Commons has passed a motion in the form set out in subsection (5B).

(5B) The form of the motion for the purposes of subsection (5A) is—

‘That the Immigration and Social Security Co-Ordination (EU Withdrawal Act) come into force’.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 36, in clause 7, page 5, line 32, at end insert—

“(5A) Section 1 must not be brought into force before 30 June 2021.”

This amendment would prevent the repeal of free movement until after the 30 June 2021.

Amendment 15, in clause 7, page 5, line 33, leave out from “which” to end of line 34, and insert

“the House of Commons has passed a motion in the form set out in subsection (5B) above.”

This amendment is consequential on Amendment 14.

[Afzal Khan]

The Bill is not explicit about when clause 1, on the repeal of free movement, will come into force. Under Clause 7(8), it may

“come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint.”

For reasons outlined in our debates on clause 1, ending free movement prematurely will have the effect of plunging millions of EU citizens in this country into legal limbo and may mean that they are here illegally. If we end free movement too soon, it will be impossible to distinguish those EU citizens who have just arrived in the UK from those who have lived here for decades but not yet registered for settled status. There is therefore a risk that people will be denied their rights to work, rent, use the NHS and so on because they are unable to prove that they have those rights.

If there is a withdrawal agreement, free movement will be repealed at the end of the transition period. Our amendments would ensure that if there is no deal, and therefore no transition period, the Secretary of State will not be able to repeal free movement until EU citizens have been given sufficient time to register for settled status. They would offer safeguards, protect citizens’ rights and secure their status.

[Stuart C. McDonald]

I am pleased to be back on the same side as the hon. Member for Manchester, Gorton; I need not say much more than he did. The amendments would address the problems that will arise in a no-deal situation if the Government introduce their proposals. For example, how will employers and landlords go about distinguishing those who arrive before and after Brexit day? The Minister reassures us that employers need make no checks on prospective employees except whether they are EEA nationals, but the problem is that they will want to know how long those people can work for them; will they be entitled to stay in the UK for three years, or will they end up being entitled to settled status? Likewise, landlords will want to know how long tenancies can last.

Some EU nationals may have the right to be in the UK indefinitely through the settled status scheme, while others may be restricted to three years. This is not the Minister’s fault, but there is no indication how the three-year visa will feed into the future immigration system. There is a huge danger that there will be discrimination, and that the system just will not work. The very simple answer in amendment 36, proposed by the3million, is not to end free movement, either in a deal or no-deal situation, until after the settled status scheme has run its course. Only then can we be absolutely sure that different categories of EEA nationals can be distinguished.

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[Caroline Nokes]

As the hon. Gentleman will be aware, the Government are working hard to secure a deal, but there will need to be a reasonable transition period in the event of deal or no deal. Indeed, in no deal we will have to have an element of control and transition, and there will be no case where we shall be able to implement a new system and switch off the old system overnight. Transition is important, and it is important that we retain the tools that enable us to do that.

We have been clear that we aim for the future skills-based immigration system to be in place from January 2021. This amendment would prevent us from doing that, as it would effectively extend the implementation period for a further six months. That would leave us unable to deliver on our commitments to end free movement and to introduce the new system on time. We received a clear message in the referendum that free movement should end. Delaying it further beyond the agreed implementation period would clearly be ignoring that message.

Even in a no-deal scenario, there will need to be a transition period before the future skills-based immigration system begins. That period should reassure Members that there will be no cliff-edge. The Government announced their proposals for ending free movement in a no-deal scenario in the policy paper published on 28 January 2019. This Bill, not least the measures in part 1, is needed now to enable us to deliver the result of the referendum.

We have also been clear that we will ensure the immigration status of the resident population is protected before the deadline for the EU settlement scheme, through appropriate savings made under clause 4. That will ensure that their rights remain unchanged immediately after exit, avoiding any cliff-edge. That means it is not necessary to delay the repeal of the free movement law in the way proposed to protect the resident population.

By delaying the end of free movement in a no-deal scenario, the amendment creates a group of EU nationals who arrive under free movement, after EU exit but before the end of the implementation period, who will face uncertainty in June 2021, when those free-movement rights end. They are not eligible to apply under the EU settlement scheme and would be in the UK unlawfully, unless they obtain leave under the immigration rules. The Government’s planned transition of a dedicated EU leave to remain route, to bridge the transition from the end of free movement to the introduction of the future system, is both pragmatic and fair, and avoids the cliff-edge I have described. I believe it is preferable to amendment 36, which seeks to prolong free movement unilaterally.

Amendments 14 and 15 seek to prevent the Bill, once enacted, from coming into force until after a motion in a specific form is passed by the House of Commons. While I recognise the importance of facilitating extensive debate on this Bill, I am of the view that legislating for a further motion after enactment is neither an effective nor appropriate use of parliamentary time. There is ample opportunity for Members on both sides of the House to have their views heard and to subject the Bill to scrutiny as it progresses through Parliament. We have already heard valuable and thought-provoking views from both sides of the Committee, and Members will continue to debate and vote on the Bill on Report and Third Reading, before it passes to the other place for further scrutiny.

Furthermore, when the Bill receives Royal Assent, Parliament will clearly have made the decision that it should become law and that free movement should end. The Government have been clear, both publicly and in the House, when they plan to commence the provisions in the Bill. There is no good reason to continue free movement unilaterally in a no-deal scenario, and these amendments, which seek to do so, seek to deny the result of the referendum. That is not acceptable. I therefore ask the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw their amendments.

[Afzal Khan]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 36, in clause 7, page 5, line 32, at end insert—

“(5A) Section 1 must not be brought into force before 30 June 2021.”—(Stuart C. McDonald.)

This amendment would prevent the repeal of free movement until after the 30 June 2021.

Question put, That the amendment be made.