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

Baroness Williams of Trafford Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 9th September 2020 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendments 14, 15 and 16 in the names of the noble Baronesses, Lady Hamwee and Lady Ludford, seek to bring more clarity to the powers that the Government are taking to make regulations, and that, for me, is a very good thing. As we have heard, words such as “supplementary” and “transition” and the phrase

“to make different provisions for different purposes”

are very unclear, wide-ranging and open to interpretation. These probing amendments today will give the noble Baroness, Lady Williams of Trafford, the opportunity to add some clarity to the situation and set out for the record the intention and the scope of the powers that the Government are seeking from Parliament. As for Amendment 17, which would remove Clause 4(4), again an explanation from the Minister as to why the Government need the new power would be very welcome.

The noble Baroness, Lady Hamwee, made some very good points and made them very clearly. As she asked when referring to the noble Lord, Lord Beith, what instructions were given to the parliamentary draftspersons? We need to understand that because clarity is important when you are deciding on legislation. Without it you get yourself into all sorts of problems: courts can get involved and there can be all sorts of other difficulties. What we have been hearing from the other end of the Corridor—certainly the comments from the Secretary of State for Northern Ireland—about where we are going to be on certain things gives us particular worry. That is why clarity is so important. I look forward to the Minister putting the matter right for us.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank noble Lords for speaking to the amendments in this short debate. I agree that clarity is absolutely necessary when scrutinising the scope and extent of any Bill, as your Lordships do. Amendments 14, 15 and 16 would restrict the scope of the power by removing what are standard provisions in regulating powers concerning transitory and supplementary provisions. Because both the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, asked what they mean, I shall go through them.

The current illustrative draft instrument does not contain a transitory provision, but it is standard legal drafting to include scope for such a provision should it be identified as necessary. Examples of supplementary provisions can be found where we are retaining some of the references to regulations transposing EU law in benefits legislation. Supplementary provisions update the references to reflect amendments to those regulations, so references to the Immigration (European Economic Area) Regulations 2006 become references to the Immigration (European Economic Area) Regulations 2016, et cetera. I hope that clarifies the provision on “transitory” and “supplementary”.

I come to Amendment 17. As I explained in response to Amendment 18 and 19, Clause 4(4) allows the regulation-making power to make provision for those who are not exercising free movement rights at the end of the transition period but who are eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement. The regulation-making power in Clause 4 is restricted to matters that are as a consequence of or in connection with the ending of free movement. Subsection (4) needs to be read in conjunction with subsection (1). It does not allow changes to the statute book for migrants from the rest of the world, who are not affected by the repeal of free movement. Amendment 17 would hinder our ability to make appropriate provision for all those affected by that appeal.

I hope that with those incredibly clear clarifications, noble Lords will feel happy not to press their amendments.

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[Lord Kennedy of Southwark (Lab Co-op)]

I did email; I do not know where it has gone. Oh sorry, I did not email Question Diary.

I thank the Minister for explaining how certain words have been used in previous legislation, but it would be helpful if she could write to me and place a copy in the Library of the House with some examples, just so that we are absolutely clear. I know she was able to give an example now, but that would be very helpful.

[Baroness Williams of Trafford (Con)]

I gave an example of “supplementary”; I did not give any examples of “transitory”. I will write a list and send it to noble Lords.

[Baroness Hamwee (LD) [V]]

My Lords, I should be particularly interested to see examples of what “transitory” is. The noble Lord, Lord McColl of Dulwich, was also concerned about this. The noble Lord, Lord Kennedy, used the phrase “open to interpretation” and that is exactly the problem, because it allows activist lawyers to come and question. We are really on the side of the Government here, because the clearer the legislation, the easier it will be for them to enforce it, but there we go: that is not my business really, is it?

The Minister said that these are standard provisions. I had a very quick look at the internal market Bill shortly before this session started, because I had picked up that there are some issues in this territory—sorry, no pun intended. I could not find them, but it seems to me that the standard provisions get longer and longer. People get worried about whether a word is absolutely precisely on the point, and more words—adjectives, mostly—get added.

If the House agrees—we may come back to this at the next stage—that “appropriate” and “in connection with” are not appropriate for legislation because they are not clear enough and are too wide, as the rest of the clause comes under those overarching words, we will have got rid of the rest of the problem. But that is not for now and, for the moment, I beg leave to withdraw the amendment.

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, the email problem has not been resolved entirely, but we do have a short- term solution. Members, whether in the Chamber or participating remotely, who wish to speak after the Minister on this amendment or indeed subsequent ones, can use the alternative email address, relating to the Grand Committee, that is in the guidance notes that govern today’s session. If they send their request to the Grand Committee email address, that will find its way to the Table here and they should be included in the requests to speak after the Minister. Let us hope that works. We were about to hear from the Minister, so I call the noble Baroness, Lady Williams of Trafford.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken on these amendments. If the new email system does not work—although I am not presuming that it will not work— I am very happy, retrospectively, to write to noble Lords who were going to speak, did not manage to, and therefore did not have their supplementary questions or requests for clarification answered.

These amendments obviously concern the use of Clause 4 powers to make changes in relation to fees and charges. Regulations made under this power may modify legislation relating to the imposition of immigration fees and charges only where they relate to a person’s immigration status and where that is as a consequence of, or connected with, the provision in Part 1 of the Bill. That confirms the point made by the noble Baroness, Lady Hamwee. It enables the application of fees and charges to EEA citizens, who are currently exempt from them by virtue of free movement law, such as the immigration skills charge paid by employers.

The effect of Amendments 20 and 21 would be to prevent the Government aligning the treatment of EEA citizens with non-EEA citizens from January of next year. It is not our intention to use the power to increase fees. Fee levels will continue to be subject to parliamentary scrutiny via the existing fees orders and regulations.

To briefly touch on the point made by the noble Baroness, Lady Ludford, we do not make an overall profit on fees. While they may be different in different countries, they go towards the operation of the border.

It is the will of the British people that we bring free movement to an end. This means ending the bias in our immigration system that favours EEA citizens over the citizens of any other country, which is the primary purpose of this Bill. Limiting the Government’s ability to apply a skills charge to EEA citizens as they apply to non-EEA citizens will mean that certain elements of free movement will not have been fully repealed by this Bill and that EEA citizens will still have an advantage in our immigration system. This is not an outcome that the Government can accept. I hope that the noble Lord will withdraw the amendment.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, we have not received any requests to speak after the Minister. Therefore, I call the noble Lord, Lord Kennedy of Southwark, to reply.

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[Lord Rosser (Lab)]

My Lords, I declare a family interest in the issue raised by the amendment. As the noble Lord, Lord Flight, said, the wording in the Bill means that British citizens who moved to the EU or EEA while we were a member will lose their right to return to this country—their country of birth—with a non-British partner or children unless they can satisfy financial conditions that many may well find difficult or impossible to meet. Amendment 23, to which I am a signatory, seeks to address this situation.

I do not wish to repeat the points made by the noble Lord, Lord Flight, in moving this amendment. I agree with everything that he said. I hope that as well as responding to the arguments that he made, the Minister will also comment on his point that the change is, in effect, retrospective, since it is our country and our Government who are changing the rules that apply to our citizens on this issue. When they made their personal decisions to move to the EU or EEA, the rules, as they currently apply, may well have been a factor in making that decision; it is our Government who are now apparently seeking to change those rules.

No doubt the Minister, on behalf of the Government, will also comment on a further point made by the noble Lord, Lord Flight. He said that it appears that the new UK rules that will apply to British citizens in the situation that we are talking about will be much tougher in their terms than those that apply to EU citizens with settled status in respect of their ability to bring their dependants to join them in the UK. No doubt the Minister will confirm, in the Government’s reply, whether that is the case.

[Baroness Williams of Trafford (Con)]

My Lords, I thank my noble friend, Lord Flight, for his Amendment 23, which refers to a specific cohort of people relating to what is known as the Surinder Singh route for family immigration. It would require the Government to make provision in regulations made under Clause 4 for lifetime rights for UK nationals resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied, or to be joined, by their close family members. These family members would thereby continue indefinitely to bypass the Immigration Rules that would otherwise apply to family members of UK nationals.

The Surinder Singh route, so-called after the relevant judgment of the Court of Justice of the European Union, refers to arrangements whereby family members of UK nationals who have resided in the EEA or Switzerland with those UK nationals while they exercised their treaty rights are able to return with them to the UK under EU free-movement law. Surinder Singh family members are not protected by the withdrawal agreement but, as a matter of domestic policy, the Government have decided that UK nationals resident in the EEA or Switzerland under EU free-movement law by the end of the transition period will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, durable partner, child or dependent parent—to the UK on EU law terms. That is three years after the date when the UK was originally supposed to have left the EU. That says to me that it is not retrospective, but if my noble friend wishes to intervene after I sit down, I would be grateful if he would let me know whether I have satisfied that point.

The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after this date, and must continue to exist when the family member seeks to come to the UK. Other family members, such as a spouse, where the relationship was formed after the UK left the EU, or other dependent relatives, have until the end of the transition period on 31 December 2020 to return to the UK with a qualifying UK national on EU free-movement terms. If they return to the UK with the qualifying UK national by the relevant date, all these family members will then be eligible to apply for status to remain here under the EU settlement scheme. If they do not return to the UK with the qualifying UK national by the relevant date, they will need to meet the requirements of the Immigration Rules then applicable to family members of UK nationals if they wish to come to the UK.

We hope this is a fair and balanced policy. It was developed after we listened to the concerns of UK nationals living in the EEA and Switzerland. The policy was announced on 4 April 2019, as I said, giving UK nationals almost three years to decide whether they wished to return to the UK by 29 March 2022 with their existing close family members and, if so, to make plans to do so.

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[Baroness Hamwee (LD) [V]]

My Lords, I simply ask the Minister what she would advise a couple, one British and one an EU national, who both have elderly parents. She is suggesting that they should pick between them for future care by the end of 2022. Is this really a humane approach?

[Baroness Williams of Trafford (Con)]

My Lords, I apologise for the slight discontinuity of speakers to the disbenefit of the noble Baroness, Lady Hamwee. Three years after we were supposed to leave the EU, and indeed some six years after this country voted to do so, we are giving people time. There are immigration rules in every country of the world, and we are trying to be as fair as possible. We have listened to the concerns of UK nationals living in both the EEA and Switzerland.

[Lord Flight (Con)]

I simply repeat my request that the Government might look at this territory in a little more detail and should arrange things such that British citizens have a slightly better deal to come and live here than non-British citizens. I beg leave to withdraw the amendment.

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[Lord Rosser (Lab)]

My Lords, I hope the Government’s response to this amendment, and indeed to the next two, might reveal something about their intentions and objectives as far as the new points-based immigration system is concerned.

I feel there is a lack of consistency on behalf of the Government about how crowded or otherwise they believe this country actually is. When it comes to the planning White Paper, and the opposition there appears to be to it from within the ranks of the Government party, one of the responses you get is that it is only a very small percentage of this country that is being built on. Yet when it comes to an immigration system, one senses that the Government base it on the fact that this country is too crowded. There appears to be a contrast, depending on whether they are talking about the planning White Paper or the immigration system, in what their view is on how crowded or otherwise this country actually is at present.

I hope that when the Government reply we shall find out a bit more about their statement that their points-based immigration system will reduce migration. An answer on that might address some of the concerns raised by the noble Lord, Lord Green of Deddington. The Government have never told us the basis on which they reached that conclusion—in spite of the comments of my noble friend Lord Adonis, and the noble Lord, Lord Green of Deddington, at Second Reading, which suggested that the contrary would be the case.

Over the past decade we have heard policy statements about reducing migration to below 100,000, but those statements—I will not go into whether they were sensible or otherwise—were followed by a rise in net migration, including, and not least, from outside the EU, where freedom of movement does not apply.

I hope that when the Minister responds to this amendment we will get a very clear statement from the Government as to exactly why and how they happen to believe that their new points-based immigration system will lead to a reduction in migration—if that, rightly or wrongly, is their policy objective. Such a clear statement is badly needed, and could be given right now.

[Baroness Williams of Trafford (Con)]

I thank the noble Lord, Lord Green of Deddington, and pay my respect to the deep expertise that he brings to this subject. The House benefits from it every time he speaks. As he said, his amendment would reintroduce an annual limit on the number of people that might be granted permission to enter the UK to take up skilled employment. The existing cap, which the Government are committed to suspending, is set at 20,700 and is administered monthly to those seeking entry clearance as skilled workers.

Currently, applications are held till the end of each allocation month. If applications exceed available places in any month, priority is given to occupations on the shortage occupation list and PhD level occupations. Thereafter, priority is broadly determined by salary, with higher-paying jobs getting first preference. On the face of it, this sounds like a sensible measure to control and limit migration to the UK, and is consistent with the aim of prioritising the brightest and best to come to the UK. However, it adds to the burden on business, as the noble Lord, Lord Kerr, pointed out, slows the process of recruiting a skilled migrant and creates uncertainty among employers. It also creates a situation in which a migrant might be perceived as of value one day and not the next, which is what inevitably happens when a cap binds.

We want the UK to be a great place to do business, and we want to reduce uncertainty for UK employers and businesses—which imposes costs and prevents forward planning—while ensuring that we do not put unnecessary obstacles in the path of those who want to operate and contribute, so that the UK’s economy continues to prosper. As noble Lords know, we also want to create a simple global immigration system that focuses on skills and talent and the contribution migrants can make to the UK, rather than on where they come from.

We should be imposing a cap only if we think it would genuinely offer extra protection to resident workers and can be implemented in a way that mitigates uncertainty for businesses and employers across the whole of the UK. The Government do not think that that is so. That view is based on the clear economic advice of the independent MAC, supported by evidence from a wide range of stakeholders.

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[Lord Rosser (Lab)]

I think reference was made earlier to the position of trade unions vis-à-vis this amendment. I certainly cannot speak on behalf of trade unions, but I say as an individual that I get the impression that trade unions will probably push more than anyone else to have a better trained workforce and for spending more money on training by employers. They have not always received the response they should have to those representations and that pressure.

As for the specific terms of this amendment, it has been said there has been a demise as far as the resident labour market test is concerned. I await with interest to hear whether Government agree with that, because that is what is being said, and if the Government accept that that is true, to ask why they think that has been the case and what they think the impact of that, if it is true, has been on the employment of British citizens. I will also be interested to hear from the Government’s reply whether the use or non-use of the resident labour market test will be used to reduce or increase migrations, since I think I understood from the noble Baroness’s reply to the previous amendment that it would be the Government’s intention to use the salary threshold and the immigration skills charge—presumably by increasing or raising the threshold or by increasing or lowering the immigration skills charge—to have an impact on the level of net migrations. I will be interested to find out, when we hear the Government’s response to this amendment, whether the use or otherwise of the resident labour market test will also be used by the Government to seek to control levels of migration.

[Baroness Williams of Trafford (Con)]

My Lords, again, I thank the noble Lord, Lord Green of Deddington, for tabling this amendment and all noble Lords who have spoken to it. As noble Lords have said, this amendment would have the effect of reintroducing a resident labour market test for EEA citizens, otherwise known as the RLMT. The RLMT requires a job to be advertised in the UK for 28 days to establish whether there is anyone suitable in the domestic labour market before the job can be offered to an overseas migrant. Again, on the face of it this is a very sensible measure, but it would add to the burden on businesses and would considerably slow the process of recruiting a skilled migrant.

We want the UK to be a great place to do business and to ensure we do not impose unnecessary obstacles in the path of those who want to operate and contribute, ensuring that the UK’s economy continues to prosper. We also want to create a single, global immigration system, focusing on skills and talents and the contribution that migrants can make to the UK, rather than where they have come from. We should be imposing an RLMT only if we think it would genuinely offer protection to resident workers, and the Government do not think at this stage that that would be so. That is not just the Government’s opinion but is based on the clear economic advice of the MAC: of course, the MAC consults very widely with stakeholders before producing its recommendation.

I shall quote from a report published in September 2018 on the impact of EEA migration. The MAC said it was,

“sceptical about how effective the RLMT is”

in giving settled workers the first opportunity to fill jobs. It went on to say:

“We think it likely the bureaucratic costs of the RLMT outweigh any economic benefit”.


Finally, the MAC said:

“We therefore recommend the abolition of the RLMT”.


Equally pertinent is the MAC’s next paragraph:

“We do think it important to have protection against employers using migrants to under-cut UK-born workers. The best protection is a robust approach to salary thresholds and the Immigration Skills Charge and not the RLMT.”


The Government agree, which is why we are maintaining a firm requirement in the new points-based immigration system for migrants who are coming under the skilled worker route to be paid a salary that does not undercut domestic workers.

As outlined in the Government’s February policy statement, we have accepted the MAC’s recommendations on salary thresholds set out in its 28 January report on salary threshold and points-based systems. Building on this, the Government have set out additional detail on likely salary thresholds in the July Further Details document, so noble Lords can see exactly the approach we are taking and how we are ensuring that migrants cannot come in on the cheap. I remind noble Lords that, again on the MAC’s advice, we are retaining the immigration skills charge, which has to be paid by all employers of skilled migrant workers. The requirement to pay that charge, the proceeds of which contribute directly to the UK skills budget, helps ensure that employers are unlikely to employ a migrant when there is someone suitable to undertake the role within the domestic labour workforce. I hope that, on that basis, the noble Lord will be happy to withdraw his amendment.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received no requests to speak after the Minister, so I call the noble Lord, Lord Green of Deddington.

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[Lord Rosser (Lab)]

I think I am in a very similar position to the noble Baroness, Lady Ludford, in wanting to hear the Government’s reply.

I notice that the Government have been told that we are heading for a policy shambles, and I notice that the Minister has been told by those behind her that we are making too many changes. Obviously this is something that inevitably happens when we have a Bill with no proper scrutiny of what the Government can do.

Having made that comment, I will listen with interest to what the Minister has to say and to whether she agrees that we are heading for a policy shambles and with the other concerns that have been raised by the noble Lord, Lord Green of Deddington.

[Baroness Williams of Trafford (Con)]

I again thank the noble Lord, Lord Green, and all noble Lords who spoke on these amendments. For the benefit of the noble Baroness, Lady Ludford, the noble Lord, Lord Rosser, and others, I will circulate the current rules for new entrants—rather than send everyone to sleep with the old rules and the new rules—so that they can compare and contrast.

The amendment seeks to put in place separate parliamentary approval for regulations allowing EEA and Swiss citizen new entrants to the labour market to be paid less than other skilled workers. Minimum salary requirements are a key part of our new skilled worker route. They serve three main purposes: first, as an indicator that a job for which a UK employer wishes to recruit a migrant worker is indeed a skilled job; secondly, to ensure that a migrant worker is paid a fair wage; and thirdly, to prevent employers using migrant workers as a source of cheap labour, undercutting wages for resident workers. The noble Lord is absolutely right that we must have confidence in setting the salary requirements for skilled workers at the right level, balancing the need to control immigration effectively and ensure that the UK’s economy continues to prosper, and not setting them so low that they do not achieve these objectives.

As I said ahead of outlining proposals for the UK’s points-based immigration system, the Government sought independent economic advice from the MAC. In its January 2020 report, A Points-Based System and Salary Thresholds for Immigration—which I am sure everyone has read—the MAC addressed the need for a range of salary thresholds and made recommendations for new entrants. The Government have accepted the recommendations in that report. Our salary requirements for skilled workers are based on national earnings data for UK workers. The MAC identified that new entrants—defined essentially as those at the start of their careers—typically earn around 30% less than experienced workers. Setting lower salary requirements for new entrants reflects this reality and means we avoid setting the requirements at an artificially high level. Reduced rates for new entrants have been part of the immigration system since 2013. While we intend to continue the new entrant salary rate, in future the new rules will set a more consistent 30% reduction across all occupations. As the MAC identified, the differences in the current system are very large for some occupations. New entrant quantity surveyors, for example, may be paid 69% less than more experienced migrant workers in the same profession.

The noble Lord is also right there should be parliamentary scrutiny of these requirements, but there is already a long-established procedure for this. The Government are required to set out their immigration policy in the Immigration Rules. This includes salary requirements, which can determine whether an immigration application succeeds or fails. Changes to the rules must be laid before Parliament under the procedure set out in Section 3(2) of the Immigration Act 1971. Either House may disapprove the changes by negative resolution within 40 days of them being laid and the Secretary of State may make any changes that appear to her required in the circumstances. Any such changes will be laid before Parliament within a further 40 days.

I do not think that it is necessary or proportionate to introduce a separate procedure for salary requirements for new entrants. As I have said, lower salary requirements for new entrants are not new. Skilled workers in the existing immigration system are subject to minimum salary requirements and the current Immigration Rules already provide for lower salaries for new entrants. Furthermore, there seems no particular reason for the procedure for new entrant salaries to be different from the procedure for the general salary requirements, or indeed any other requirements for skilled workers, such as the need for a sponsoring employer, a job at the appropriate skill level and the ability to speak English to an accepted standard. The nature of our points-based system is that all these requirements are closely interlinked.

Additionally, our salary requirements, including those for new entrants, are based on UK earnings data. We intend to update them regularly in line with the latest available data, ensuring that migrant workers’ pay keeps pace with that of resident workers. The procedure set out in Section 3 of the Immigration Act 1971 enables us to do so quickly and responsively, while maintaining an essential element of parliamentary scrutiny. Bringing forward draft regulations under an affirmative procedure would lessen this responsiveness.

We may also wish to amend the criteria used to identify new entrants in future. By way of example, we will be removing the option relating to university milk round recruitment to reflect the removal of the resident labour market test. We have also agreed the MAC’s recommendation to include options relating to those working towards professional qualifications or moving into post-doctoral positions. Similar changes may be needed from time to time, which this amendment would make more difficult by placing the new entrant criteria in the Bill.

As outlined in the February policy statement, the Government are committed to continuing to refine the system in the light of experience and will consider adding further flexibility. Specific parliamentary arrangements that risk splitting up interconnecting policies should not prevent this.

For the reasons I have set out, including that we will continue to lay before Parliament the full details of requirements—including those for new entrants—I hope that the noble Lord will be happy to withdraw his amendment.

[Lord Green of Deddington (CB) [V]]

My Lords, that was a short but interesting debate—interesting because very few people in the Committee had much idea of what is proposed. The Minister loyally read out what she had been advised to say, but there are just one or two little points. One is that this was based firmly on MAC advice. As I have mentioned, the MAC is a very competent bunch of people, but they are all economists. There seems to be no political common sense engaged in examining its recommendations. What is more, they were made in January, before the Covid crisis struck us, and so was the February policy statement to which the Minister referred. All these things were cooked up before we faced the very serious crisis that we now face. I therefore hope that the Government will be light on their feet and not wait for this to run out of control before they take some action to lower what is bound to be a highly attractive route, which will be, without question, to the detriment of our own young people, who will not have the work experience of a 24 year-old from overseas. With that, I beg leave to withdraw the amendment.

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[Lord Rosser (Lab)]

I will be very brief, since I would only be repeating what has already been said, but I congratulate my noble friend Lady Lister of Burtersett on her determination on this and, indeed, other related issues. EEA and Swiss nationals will shortly be joining the queue of those having to pay visa fees or fees when seeking a right to British citizenship. As we know, the Home Office currently makes a very substantial surplus in relation to this kind of applications following the major cuts in the department’s budget over the last decade. We believe that visa fees should not exceed the cost price.

Amendment 30 provides that regulations under Clause 4

“must ensure that no fee is charged that may deter or prevent registration of an EEA or Swiss national as a British citizen.”

Amendment 68 provides that no person who has lost their free movement rights under this Bill may be charged a fee for registering for British citizenship over the cost of processing their application.

Reference has been made to the British Nationality Act 1981, which contained provisions in respect of payment of fees relating to a child with an entitlement to register for British citizenship. For children with a parent who had free movement rights, Amendment 68 seeks to protect this position by providing that, if they are in care, they may not be charged any fee to register—if they are eligible—for British citizenship and that, otherwise, they may not be charged fees that they or their parent, guardian or carer cannot afford.

I simply conclude by expressing support for the amendment moved by my noble friend Lady Lister. I share the concerns that she expressed about the seemingly very casual attitude to citizenship shown by the Government in the debate in the Commons on this issue. I hope we hear a more understanding response from the Government tonight.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken so passionately in this debate, but I pay particular tribute to the noble Baroness, Lady Lister of Burtersett. If nothing else, she is utterly consistent. I was going to describe her focus as laser-like but I think terrier-like is probably a good additional description.

I will address the court judgment first for the noble Lord, Lord Alton, and others. My right honourable friend the Home Secretary has been given leave to appeal on that, and we expect a judgment in the autumn. Therefore, the noble Lord will totally understand that I actually cannot even speak about this.

However, putting that aside, I will address the concept of citizenship fees being profit making. The overall income from citizenship fees is £2.09 billion; the cost of BICS, the borders, immigration and citizenship system, is £3.18 billion, so it does not even meet its cost overall. Far from making a profit, it still subsidises the overall cost of BICS. I might add that the principle of charging above cost has been in place for more than a decade: that clearly includes all three main political parties represented here in your Lordships’ House. A consultation was run at the end of 2013 on charging principles, which are included in the Immigration Act 2014. We have continued to apply these charging principles, agreed by Parliament, in any proposed fee changes. That said, the Government’s intention is that EEA and non-EEA citizens will be treated the same under the future immigration system. This means that under the new system, the intent is that existing fees, waivers and exceptions will be applied equally.

The issue of fees charged to EEA citizens has been discussed here and of course, as noble Lords have said, in the other place during the passage of the Bill. Throughout, the Government have been clear that decisions regarding future fees payable or funding of the system should be taken in the round and outside of the passage of the Bill, but I totally understand—I would probably have done the same had I been the noble Baroness, Lady Lister—that this is a good opportunity to discuss it. A legislative structure for application fees, with long-standing appropriate checks and balances is already in place. Any changes by way of amendments to the Bill would obviously undermine the existing legal framework, with its purpose of providing the ability to set fees and exceptions in secondary legislation. It would also reduce clarity in the fees structure by creating an alternative statutory mechanism for controlling fees.

Amendment 30 would have the effect of creating a two-tier system and would not deliver the required funding to the system, or indeed deliver the policy intent of FBIS, the future borders and immigration system.

Turning to Amendment 68, this is clearly an important matter and one which has been discussed during the passage of the Bill in the other place. The aim of subsection (1) of the proposed new clause is to limit the Secretary of State’s power to charge a fee for British citizenship applications to the cost of processing the application for anybody who has enjoyed free movement rights, alongside the wider context of charging fees to register as a British citizen. As I have already noted, imposing any amendments to fees as part of the Bill would cut across the existing statutory framework for fees and would risk undermining the funding and coherence of the current and future system, but I think the noble Baroness knows that; we are simply having a discussion about her feelings and the feelings of others on the level of the fees.

Subsection (2) seeks to prevent the Secretary of State charging a fee to register as a British citizen to the child of a person who has exercised free movement rights if the child is in receipt of local authority assistance. The noble Baroness and other noble Lords will know that local authority assistance is a broad term that could include those accessing a range of financial and practical support measures offered by local authorities, including citizenship fees. The Government offer fee exemptions that allow access to limited and indefinite leave to remain to be obtained free of charge for those who are looked after by a local authority. The ability to obtain citizenship may therefore be delayed, but not removed entirely.

Subsection (3) seeks to remove fees to register as a British citizen for children of those who have exercised free movement rights, where the child, child’s parent, guardian or carer is unable to afford the associated fees. This raises similar points to those in subsection (1) and Amendment 30, and I refer to my responses on those points with regards to maintaining a sustainable current and future immigration system and there already being suitable legislative structures in place.

Implementing subsection (4) would require the Secretary of State to take steps to make persons who have exercised free movement rights aware of their rights to obtain British citizenship under the British Nationality Act 1981. The Government have made it clear, when explaining the rights afforded by settled status obtained via the EU settlement scheme, that this may include a right to apply for British citizenship, providing that eligibility requirements are met. The information about becoming a British citizen is available on GOV.UK and we are committed to ensuring that information of this nature is fully accessible for all.

I hope that, with those explanations, the noble Baroness will feel able to withdraw her amendment.

--- Later in debate ---

[Baroness Hamwee (LD) [V]]

The Minister talked about the service being far from making a profit, yet we have heard from the Government on previous occasions about the surplus that is achieved from individual payments and fees. Will she write to noble Lords after today’s debate explaining in only as little detail as is required what the finances of this service are in order to square those two statements?

[Baroness Williams of Trafford (Con)]

I could go through them tonight, but I think the Committee is probably getting quite weary, as is the noble Baroness, Lady Hamwee, so I will write and explain.

[Baroness Lister of Burtersett (Lab)]

I am very grateful to all noble Lords who added their names to this amendment or who spoke from across the Committee. The noble Lord, Lord Alton, talked about being a member of the infantry. With infantry like this, who needs generals? We have had such powerful, passionate, well-informed speeches from across the Committee. I think they all came from the heart, and that is what made them so powerful. It is clear that everybody feels very strongly about this, particularly when talking about the implications for children.

The right reverend Prelate used the word “iniquitous”, which is unusually strong, given his measured approach. This is iniquitous and we should take note when someone such as the right reverend Prelate uses that word. It is a tragedy that we are having to come back to argue this again. The Windrush scandal is hanging over it all like a spectre. It is important that we do not repeat that shameful episode in our country’s history.

I thank the Minister. I am relieved that she did not try to argue that citizenship is not important—I think she realised that she was on hiding to nothing if she tried to do that. Apart from that, however, I am disappointed that there is no sign of any give in the Government’s position.

[Baroness Bennett of Manor Castle (GP) [V]]

I thank noble Lords and apologise for my lateness; I am having a very bad day with technology. I tried to send the email about 30 minutes ago.

I join other noble Lords in being very disappointed given the powerful and wide-ranging contributions from all sides of the Committee, both spiritual and temporal. In asking my question, I think I need to declare my position as a vice-president of the Local Government Association. I wonder whether the Minister can offer us one concession tonight or whether she will go away and think about making this concession. I refer to Amendment 68 and to subsection (2) of the proposed new clause which refers to children in the care of a local authority. I do not need to tell noble Lords that local authority funding is extremely stretched and extremely fragile and that there are huge demands on children’s services. As a responsible institutional parent, a local authority would surely want to secure citizenship for a child in its care, but that would be taking money away from other services, so will the Minister consider at least thinking about ensuring that if there is no waiving of fees, local authorities are recompensed for the cost of those fees?

[Baroness Williams of Trafford (Con)]

The noble Baroness has just demonstrated that it is really beneficial to be here throughout the whole of the debate, because I covered that aspect on local authorities in my speech. If she reads Hansard, it will clarify the matter for her, and if she would like to come back to me again, I would be very happy to respond.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was saying that I found the Minister’s response disappointing. Yet again, when she talked about the cost of the immigration and citizenship service, she seemed to be conflating immigration and citizenship. Part of the point that we are making is that they are different and that it is irrelevant what the overall cost of the immigration and borders system is, because these fees should not be paying for that system. They should simply be paying for the cost of registering a right of citizenship that already exists. That was disappointing, and she might want to look again at that.

The Minister said that EEA and non-EEA people would be treated the same in future. That is not very reassuring because we have been going on for years about how badly the non-EEA people are treated in this area. She talked about a two-tier system not delivering the required fund or policy intent, and I was not sure what she meant by “policy intent”. As she is going to be writing a letter to us anyway, perhaps she could clarify that.

I was also very puzzled—this might be partly what the noble Baroness, Lady Bennett, was referring to—that subsection (2) of the amendment does not refer to local authority assistance. That was an original amendment that was put down in the Commons. The Minister in the Commons pointed out that this was a very vague term, so we deliberately put in this amendment the words

“looked after by a local authority.”

I do not quite know whether the Minister was speaking to an amendment that was laid in the Commons rather than the amendment that is before her now. We are talking very specifically about looked-after children, not any child who gets any kind of assistance from a local authority. Perhaps she could clarify that when she writes her letter.

I think it was the noble Baroness, Lady Smith of Newnham, who talked about the importance of doing the right thing. That is why we are all still here, in this echo chamber, and we will continue to be here until the Government do the right thing. The only dispute I have with the notion of an echo chamber is that echoes tend to fade away. This echo is not going to fade away: it is going to get stronger. The more the Government try to resist it, the more we will be coming back. It might not be part of this Bill, because clearly the amendment is not going to pass, but there will be ample opportunities and we will not let this go. We will, of course, wait to see what will happen in the appeal, but I hope the Government will remember the importance of doing the right thing, because the Government are now doing the wrong thing. I beg leave to withdraw the amendment.