Counter-Terrorism and Sentencing Bill

Baroness Williams of Trafford Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

Moved by

[Lord Parkinson of Whitley Bay]

That the Bill be now read a second time.

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

My Lords, I thank all noble Lords who have taken part in this Second Reading debate on what has been widely acknowledged as an incredibly important Bill. I join other noble Lords in welcoming, on “the worst list since the lavender list”, my noble friend Lord Vaizey and the right reverend Prelate the Bishop of Manchester. It struck me that one person’s success is another’s disappointment, because I wanted the Diamond synchrotron to go in the north-west. It obviously ended up near Oxford, but it was very good listening to my noble friend.

The right reverend Prelate recounted the dreadful night of the arena bomb in Manchester. I reflected on his feelings about how Manchester came together after that; it really did. He talked about the bee; I carry the bee around on my lanyard at all times. It certainly defined a moment in Manchester’s history that will never be forgotten.

The noble and learned Lord, Lord Falconer of Thoroton, talked about the rise of the far right, and of course we cannot forget about that; it really is on the rise in this country. Just as we talk about Islamist terrorism, we cannot forget about that. I also say to my noble friend Lord Sheikh that I will respond to his letter as soon as I possibly can; I apologise to him. I also apologise to the noble Baroness, Lady Prashar, because at times, unless I am going deaf, I could not hear her very well. I shall look at Hansard and respond to her in due course if necessary.

Noble Lords including the noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, the noble Baroness, Lady Prashar, the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Garnier, talked about the new serious terrorism sentence with a 14-year minimum. Of course, the sentence will be for the courts to impose on the most serious and dangerous terrorist offenders who would otherwise receive a life sentence—those who have committed an offence involving a high likelihood of causing multiple deaths. It is right that we set a minimum that reflects the seriousness with which we take these offences. By having both a minimum custodial sentence of 14 years and a minimum licence period of seven years, and up to 25 years, we will keep the public safer by ensuring that dangerous terrorists serve longer in prison and are subject to longer periods of supervision and monitoring in the community.

The noble and learned Lord, Lord Judge, talked about the discount sentence. While the maximum reduction for a plea at the first reasonable opportunity is 33%, the position in sentencing law is different for offences that carry a mandatory minimum sentence. By applying a maximum reduction of 20% for an early guilty plea in the case of serious terrorism sentences, we are taking an approach consistent with the provision for other minimum sentences, such as those for firearms offences and third-strike burglary.

The noble Lord, Lord Paddick, questioned the evidence used to determine that longer sentences deter radicalisation. The rationale for this Bill is primarily about public protection, as noble Lords have said. Longer sentences and more onerous licenses are part of a package intended to ensure that offenders who commit serious terrorist acts are incapacitated for longer and better supervised on release. Longer sentences will provide both better protection for the public, by incapacitating terrorist offenders, and more time to support their disengagement and rehabilitation through the range of tailored interventions available while they are in prison.

The noble Lord, Lord Ramsbotham, asked me for an update on the announcement of additional funding for CT probation prison programmes, and the noble Lord, Lord Ponsonby, alluded to this too. We are doubling CT specialist staff and dedicating resources to provide enhanced training to identify and challenge extremist behaviour. The National Probation Service has already developed specialist teams for the management of terrorist offenders, but the additional investment we are making will take this further and recruitment is already under way. These specialist, trained probation officers will be able to deliver enhanced levels of offender management for those high-risk, complex cases.

The noble and learned Lord, Lord Falconer, and the noble Lord, Lord Ponsonby, asked for the estimate of additional probation expenditure. There are three effects on probation case loads that contribute to the additional costs expected. The first is the serious terrorists, and terrorism-related offenders, likely to receive an extended sentence. They would either face a 14-year minimum term, or be required to serve all of their sentence in custody, in steady state, and this may result in fewer than 50 additional probation case loads, at a cost of less than £100,000 annually. The second is expanding the sentence for offenders of particular concern regime to cover more offences. This would increase probation case loads by fewer than 50 offences at a cost of about £100,000 annually. The third, adding polygraph testing to certain offenders’ license conditions, would affect fewer than 150 offenders at a cost of about £400,000 annually in steady state. This totals an estimate of additional £600,000 annual cost for probation in steady state.

The noble Lords, Lord Paddick and Lord Ponsonby, have asked what HMG are doing to ensure that the Parole Board has the resources, training and so on to improve decision-making capability. The board has a cohort of specialist members, trained specifically to deal with terrorist and extremist cases, including retired high court judges, retired police officers and other experts in their field. We continue to work with the board, the police and security services to ensure that the parole system as a whole is fully equipped to deal effectively with these cases.

The noble Lords, Lord Ramsbotham, Lord Anderson and Lord Carlisle, the noble and learned Lord, Lord Garnier, and the noble Baroness, Lady Prashar, lamented the removal of the Parole Board referral for serious terrorists. Dangerous terrorist offenders should serve a sentence that truly reflects the seriousness of their crimes. Removing the prospect of early release for these offenders sends a clear message that this Government will treat this kind of offence seriously. By ensuring that they will spend longer in custody, our Prison Service will have more time to manage and reduce the risk that these offenders present to the public when they are released from prison. Prison governors and HMPPS public protection casework officials have extensive experience in setting licence conditions for terrorist offenders on behalf of the Secretary of State, and will continue to be informed by the recommendations of probation officers and the multi-agency public protection panels in place to ensure their safe and effective risk management on release into the community.

My noble friend Lord Vaizey, the noble Baroness, Lady Bennett, and the right reverend Prelate the Bishop of Manchester all talked about the vulnerability of children. Noble Lords will know that we have a separate youth justice system for children and the courts will always consider their specific needs when sentencing. However, we know that age is not a barrier to becoming involved in terrorist acts. That is why we have taken steps to ensure a degree of consistency between our approach to adult and youth offenders. The changes we are introducing to the EDS will remove the possibility of early release for the most dangerous offenders, allowing for the effective monitoring of risk factors over a longer period to limit the threat posed on release. The special sentence for offenders of particular concern will ensure that children who commit a relevant terrorist or terrorism-related offence cannot be released without a period of supervision in the community, maximising the time available to support their desistance from further offending.

My noble friend Lord Vaizey, the noble Baroness, Lady Hamwee, and, to a certain extent, the right reverend Prelate the Bishop of Manchester talked about the malign influence on children vulnerable to exploitation by adults—particularly, as my noble friend Lord Vaizey said, online. That is why 47% of the projects that the Government funded in 2018-19 worked in partnership with communities to reduce the risk of radicalisation. They were delivered in schools to increase young people’s resilience to terrorists and extremist ideology in all its forms.

My noble friend Lord Vaizey talked about the online harms White Paper. Like him, I am looking forward to it becoming a Bill, and some of the problems that it will tackle, particularly online, for children and young people.

The noble and learned Lord, Lord Morris of Aberavon, talked about Northern Ireland and a possible separate sentencing approach. We think there should be a unified approach to the sentencing and release of terrorist offenders across the UK. We do not discriminate between types of terrorism. Any terrorist offender, regardless of their ideology or proclaimed motivation, and whether their offence was committed in England, Scotland or Northern Ireland, should be subject to the same sentencing and release regime.

There has been much discussion of the standard of proof. We are reducing the standard of proof from “on the balance of probabilities” to “reasonable grounds for suspecting” to support the use of TPIMs as necessary and proportionate to protect the public from terrorism-related activity. Only last year, Parliament took the step of updating the counterterrorism legislative frame- work through the Counter-Terrorism and Border Security Act, because pathways into terrorism have changed and, in some cases, accelerated. Much radicalisation now takes place online, as my noble friend Lord Vaizey said, and the operational pace for the Security Service and police is faster than ever seen before. Lowering the standard of proof will help to ensure that a TPIM can be considered as an option to manage the threat in a wider range of cases, where it is necessary to do so. For example, this change will assist in circumstances where an individual has been to Syria to fight for or assist a terrorist organisation but evidence of their activities there is hard to gather. Should they return, prosecution is the Government’s strongest preference. However, if there are evidential difficulties and the burden of proof required by a criminal court—beyond reasonable doubt—cannot be satisfied but there is a reasonable suspicion that they have been involved in terrorism-related activity, lowering the standard of proof will ensure that a TPIM can be considered as a risk-management tool to protect the public.

Noble Lords will, rightly, want to debate where the balance between civil liberties and public protection best lies. However, the Government are clear: we must ensure that the Security Service and Counter Terrorism Policing can make full use of the tools available to them to manage the risk posed by those involved in terrorism.

The noble and learned Lord, Lord Falconer of Thoroton, asked about the removal of the two-year time limit. The Government have no desire to keep individuals on a TPIM any longer than is necessary and proportionate to protect the public. This change will ensure that, when subjects pose an enduring risk, we will be better placed to restrict and prevent their involvement in terrorism-related activity for as long as necessary. This provision mitigates against the possibility of TPIM subjects “riding out” the current maximum of two years with no change to their extremist mindset, and it removes the prospect of a cliff edge being created whereby a TPIM is removed but the subject of the TPIM represents an enduring risk.

In cases of well-connected extremists, it will also multiply the benefits of the TPIM by reducing individuals’ capability of conducting terrorism-related activity, dismantling their networks so that they are ineffective at inspiring and influencing others to commit acts of terrorism, and reducing the wider long-term threat from others who might have been influenced by the subject were it not for the TPIM measures. This change will also assist with longer-term risk management, providing more time to meaningfully pursue deradicalisation and space for subjects to adopt different lifestyles and move away from their previous extremist contacts.

As is the case now, recommendations as to who should be subject to a TPIM will be provided by operational partners in the first instance and will therefore be underpinned by suitable operational experience and expertise. Where we cannot prosecute, deport or otherwise manage an individual of terrorism concern, a TPIM will be considered, if necessary, as a means to protect the public. I am confident that the changes that the Bill will make will strengthen the toolkit available to our operational partners, while continuing to ensure that robust safeguards remain in place to protect the civil liberties of those subject to the measure.

The noble and learned Lord, Lord Falconer of Thoroton, asked me to cite examples, and the noble Lord, Lord Anderson, asserted that there has not been an occasion where security services which wanted to use TPIMs could not do so. That was cited in the House of Commons and it is true, but the Bill provides, as it should do, for future situations that could well arise, as my noble and learned friend Lord Garnier said. As I am sure noble Lords will know, the tests include not just the “reasonable suspicion” test but the following: that some or all activity is new terrorism-related activity; that the Home Secretary reasonably considers that a TPIM is necessary; and that the Home Secretary reasonably considers each TPIM measure to be necessary. In addition, the court must give the Home Secretary permission to impose a TPIM. Therefore, the decision is not based solely on that one test.

The noble Lord, Lord Hunt of Kings Heath, asked for the Government’s view on the amendment proposed by PCC David Jamieson that would give PCCs and local mayors an oversight role in the operation of TPIMs. The Home Office already works very closely with the police before a TPIM is imposed and during its lifetime. The process ensures that TPIMs are imposed only following engagement with the relevant local police force and that community impact assessments are kept up to date. The Bill already contains a clause that will allow a TPIM subject’s relocation measure to be varied where necessary on operational resource grounds. Therefore, David Jamieson’s proposed amendment for an additional role for PCCs and local mayors in TPIM processes is, respectfully, not necessary.

The noble Lord, Lord Carlile, who of course has great experience in this area, cited radicalisation in prisons and gave the example of Usman Khan, but he will know that I will not go into that individual’s case. My noble friends Lord Vaizey and Lord Risby, the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Paddick—and, by turn, the noble Lord, Lord Carlile—questioned the success of rehabilitation programmes in prisons. HMPPS delivers a formal programme—the Healthy Identity Intervention —in custody and in the community. In addition, the prison strand of the Desistance and Disengagement Programme was rolled out to prisons in 2018. The DDP provides a range of intensive, tailored interventions and practical support designed to help in rehabilitation.

Measuring changes in behaviour is obviously and notoriously hard, especially in such a small cohort relative to the size of the prison and probation population in England and Wales. Our intervention programmes have a robust research and evaluation mechanism built into them. Evaluation and research will be at the heart of the new CT assessment and rehabilitation centre announced by the Government earlier this year.

In terms of scrutinising the effectiveness of disengagement, we have consistently evaluated the effectiveness of our work and have taken action where appropriate. The department regularly reviews its approach to make sure that it is appropriate and proportionate to the risk presented by terrorist prisoners and people on licence. This will be a core mission for the new CT assessment and rehabilitation centre, which will lead the evaluation, development and delivery of our intervention approaches. In addition, the independent reviewer of Prevent—on which more later—will consider the work of the desistance and disengagement programme.

The noble Lord, Lord Mann, talked about the CST and other voluntary organisations that have been very successful in identifying people who wish to do harm to our communities. I absolutely pay tribute to the CST. I have seen its work in action and have seen how it has worked with other organisations, such as Tell MAMA. It is also involved in countering hate crime towards the LGBT community. I hope that its work goes on for many more years to come.

On terrorist offenders leaving prison, as noble Lords have alluded to, throughout a sentence we oversee multiagency end-to-end supervision, which includes regular risk assessments. All terrorist offenders released on probation are closely managed by the National Probation Service, and the highest-risk offenders, including terrorist offenders, are managed through the multiagency public protection arrangements—MAPPA.

I am aware of time; I hope that noble Lords will bear with me for a couple more minutes. The noble Baroness, Lady Bennett, asked about women’s de-radicalisation programmes. She will know that all convicted terrorist prisoners, including at the small number of women’s prisons, can access the rehabilitative interventions. The noble and learned Lord, Lord Falconer, asked me about the Acheson recommendations. In our 2016 response to the Acheson report, the Government accepted eight out of the 11 principal recommendations. Following the Fishmongers’ Hall terrorist attack, the MoJ Permanent Secretary commissioned an urgent review of progress against these recommendations. The review found that the department has delivered against all the recommendations that the Government accepted. This progress includes the establishment of separation centres to hold the most subversive extremist prisoners and to safeguard the vulnerable against their malicious ideology.

Over 29,000 prison staff, including all new recruits since January 2017, have received enhanced extremist awareness training. Arrangements are also in place to systematically remove extremist literature from prisons, and enhanced vetting arrangements for prison chaplains of all faiths are also now in place. Through the CT “step up” programme, the department will continue to build on this track record with increased resource and reform across these important areas.

The noble Lord, Lord Paddick, asked where we are up to with the MAPPA review. He will know that the terms of reference were published in January 2020 and that Jonathan Hall’s report was published on 2 September. He found that it

“is a well-established process and did not conclude that wholesale change is necessary.”

He made a number of recommendations; we will set out more about our response in due course.

The noble Lord, Lord Thomas of Gresford, challenged me about who Prevent is protecting. It is protecting the individual who needs to be safeguarded against being radicalised into terrorism. It is also protecting the people that might be harmed, both the individual and those around him or her. On the review, given both the noble Lord, Lord Carlile, having to stand down and how Covid has come to try us this year in respect of the work we can do, an incomplete or rushed review might well have been produced had we not removed the deadline through this Bill. The interviews are taking place later this month and will be followed by an announcement as soon as possible. The Government want the review to conclude by August 2021, but we do not want to constrain the reviewer’s ability to complete a comprehensive assessment, given the uncertainties associated with the current circumstances. Confirmation of the timescales will be agreed with the new reviewer and set out in the terms of reference.

The noble and learned Lord, Lord Morris of Aberavon, asked whether Parliament will consider revised Prevent terms of reference. The answer is no. There were also a couple of questions on polygraph testing; if noble Lords are amenable, I will respond to those in a letter as I have gone well over my allocated time. With that, I beg to move.

Bill read a second time and committed to a Committee of the Whole House.

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

Baroness Williams of Trafford Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

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

My Lords, I fully support Amendment 56, moved by my noble friend Lord Dubs, which would add a new clause to the Bill. This clause would provide for children who are EEA and Swiss nationals and in care, along with those entitled to care-leaving support, to be granted automatic indefinite leave to remain under the EU settlement scheme.

This amendment has wide cross-party support. The idea behind it had support in the other House, and it has that today. Every speaker so far, from different sides of the House, has spoken in support of the amendment. I am sure the Minister has taken that on board and will want to give us a positive response.

As my noble friend Lord Dubs said, there are vast numbers of these children and the amendment would ensure that none of them become undocumented. Identification is a serious problem, as my noble friend outlined. The different practices adopted by different local authorities is a real problem in itself.

The amendment would speed up the process and enable social workers, who do a fantastic job—we all know that they are under extreme pressure—to apply directly to the Home Office without having to deal with consulates and embassies and all the bureaucracy you have in dealing with another country when trying to get the right documents identified. You would avoid all that work, paperwork and bureaucracy, and go straight to the Home Office.

My noble friend Lord Dubs also asked the Minister about the safeguards in place for children who have pre-settled status, and that question deserves a careful response. As the noble Earl, Lord Dundee, said, this is a sensible amendment that really deserves a positive response from the Government.

I agree with all the remarks of the noble Lord, Lord Kerr of Kinlochard, on this amendment. It is the decent thing to do for these children. We are talking about a relatively small number of children, but it would ensure that nobody falls into the trap of becoming undocumented. As the noble Lord, Lord Bruce of Bennachie, said, children in care face all sorts of additional challenges; they are not with their parents and the local authority in effect is looking after them. All this amendment seeks to do is to ensure that they do not have further issues to deal with; a young person leaving care, or in many years’ time, may have the problem of being undocumented and unable to establish their identity properly. This is a very small measure which the Government should give way on.

Like my noble friend Lady Lister of Burtersett, I commend the work of the Children’s Society to identify and raise the plights of these children. The society has campaigned to ensure that they have protection and that their problems are not added to by becoming undocumented. As I say, it is the decent thing to do. Equally, I am sure that we will get a response from the Minister on the amendment, and on the issue in Lesbos.

I should also draw the attention of the House to the fact that I am a vice-president of the Local Government Association. Local authorities do a fantastic job. Certain authorities, particularly Kent, are under particular pressure regarding children’s issues, but they generally do a fantastic job. This is one small measure which the Government could accept to help authorities and make it a bit easier for them in the work that they do. I hope that the Minister can give a positive response to us today, and maybe we can come back to this on Report.

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

My Lords, I thank the noble Lord, Lord Dubs, for moving his Amendment 56, which calls for children in care and care leavers who have their right of free movement removed by the Bill to be granted indefinite leave to remain.

May I say at the outset that I absolutely agree with the noble Lords, Lord Dubs and Lord Kennedy, and others that no child should be undocumented, and with the noble Lord, Lord Kerr, that we should not create any cracks? So that I do not disappoint the noble Lord, Lord Kerr, yet again, I will immediately address the issues that he raised.

First, he asked if we should do as the Germans do. I think we should do as we do. As far as reputational risk is concerned, I do not think we should help these children because it has an influence on our reputation; I think we should help children because it is the right thing to do, and in fact this country has a very long history of helping children who need our support.

The noble Lord asked me if I agree that it is an emergency. Absolutely, I agree that it is an emergency. Of course, I also agree that it is a humanitarian issue. One could not fail to be moved by the plight that these children and their families sometimes go through.

The noble Lord then asked me the million-dollar question: what the Government are doing about it. On 22 April, the UK and Greece signed a joint historic migration plan that reaffirms our commitment to closer co-operation with Greece on a range of migration issues. On the direct help for some of those people on the Greek islands, we have given £500,000 for urgent humanitarian help for the most vulnerable.

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[Lord Kerr of Kinlochard (CB) [V]]

I am grateful to the Minister for responding to my questions. I guess that I am rightly rebuked for suggesting that a relevant factor in considering what we should do about the victims of Lesbos is our reputation around the world. I suppose it is a case of déformation professionnelle. I used to be a diplomat and I am therefore keen on our trying to recover some of our lost reputation. Perhaps the Government—less the noble and learned Lord, Lord Keen—are less keen today. Perhaps they do not recognise the extent of the reputational damage. Anyway, I agree that that is not strictly relevant.

The Minister agreed that there is an emergency case for helping and an overwhelming humanitarian case for helping. But—I hope the Minister will forgive my saying so—she seems to be saying that we propose to do nothing at all about it. Everything that she cited—the money in April and the flights in July and August—took place before the fire on the island of Lesbos and before these 14,500 people, who are now sleeping rough, were displaced. If she accepts that there is a new urgent humanitarian case then it would be very good if the Government could do something about it.

I note that a number of people spoke on the same lines as me about this problem, so I hope the Minister will take back to Whitehall the idea that there seems to be a feeling in this House that we ought to be doing something to help the victims of Moria.

[Baroness Williams of Trafford (Con)]

My Lords, the noble Lord can probably tell that I have never been a diplomat. However, I take his point in absolutely good faith. It is probably both reputational and our duty to help those in need around the world.

I spoke to the noble Lord about the joint historic migration plan, which confirms our closer co-operation with Greece. I was speaking to the noble Lord, Lord Alton, before we even began this Committee stage, and I think that we all need to get together and work out solutions for upstream work and to help the desperate people in the regions who will never even get to Europe. We need to tackle some of the drivers of the terrible criminality that goes on, which has no intention of helping the most vulnerable people at all.

[Baroness Hamwee (LD) [V]]

I was not sure whether the Minister was talking about money that had been paid to Greece to help, or money that was going to be paid. Clearly, money is needed—I am in no position to think how much that might be—but it is not just about money.

I commend to noble Lords the BBC Radio 4 programme “More or Less” this morning, which objectively dealt with where the UK comes in comparison with other nations in taking refugees and assisting asylum seekers. The tables I have in front of me show that, combining both resettled refugees and asylum seekers, we take less than a quarter of the number taken by Greece and less than 10% of the number taken by Germany. This is not a competition, except a competition to do better. I wanted to put that on the record.

I also want to respond to the points the Minister has just made. The best upstream action is to provide safe and legal routes. She mentioned that in her first response, and I commend her for that. That is where the focus needs to be.

[Baroness Williams of Trafford (Con)]

My Lords, I do not disagree with the noble Baroness, Lady Hamwee: we need to provide safe and legal routes, and through our resettlement schemes we do provide them. We are all in danger of agreeing violently, because we want to help the most vulnerable and we want places like Greece, that need our support, to get it.

The noble Baroness asked whether the money had been paid or would be paid. It has been paid. She will of course remember that, back in the day, we put quite a phenomenal amount of money into helping people in the region who will never get out and who will never make the journey over to Europe.

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[Baroness Williams of Trafford (Con)]

My Lords, I do not think that we, as a country, have been backward in coming forward to other countries that need our help. We are working closely with Greece. As I said, we have given it money to deal with some of the most vulnerable people on its islands, and we will continue to do that.

[Lord Paddick (LD)]

My Lords, I am grateful to the Minister, but what I heard in the first question from the noble Lord, Lord Kerr, was about taking refugees from the camp in Lesbos. She talked exclusively about unaccompanied children. Germany had initially agreed to take 400 unaccompanied children, but has now changed that decision and will take in 1,553 refugees from Lesbos, making up the difference in the numbers with adults. Can the Minister clarify that the Government’s position on not taking adult refugees from anywhere in Europe has not changed despite the disaster in Lesbos?

[Baroness Williams of Trafford (Con)]

What I said was that we did not participate in the EU relocation scheme; I am not sure whether we ever have. I am saying that we will absolutely meet our obligations under Dublin, and if a request comes from the UNHCR for us to take displaced people from Greece who are eligible to come under Dublin, we will of course consider that.

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

My Lords, the Minister will correct me if I am wrong, but I understand her position to be that the amendment we are discussing is not necessary and could make the situation worse. Apparently the Home Office supports the aims of the amendment but it is not going to act, because there are measures already in place to deal with this question, and it does not want any children to end up undocumented. Maybe I am wrong, but I am sure that if I am, the Minister will correct me. If I am correct, is she giving a cast-iron assurance that the Home Office will not let any of those children become undocumented, and that in the period ahead it will not take decisions that undermine what she has said to us today?

[Baroness Williams of Trafford (Con)]

What I am saying is that the Home Office, in conjunction with other departments, will ensure that we can identify every child, or indeed adult, in that vulnerable category and that they are assisted where possible. As I said the other day, the EU settlement scheme will not close and reasonable grounds for late applications will not end, so if any people—either adults or children—are identified in future as coming into the category that noble Lords have spoken about, they will be documented.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for her amendment and my noble friend Lord Dundee, the noble Lord, Lord Dubs, and the noble Baroness, Lady Bennett of Manor Castle. I turn first to Amendment 62 from the noble Baroness, Lady Hamwee. I note that she has raised this amendment to probe the need to expand the UK’s refugee family reunion rules. I will address each part of the amendment in turn.

Paragraph (a) of the proposed new clause seeks to allow refugees to reunite with their dependent children under the age of 25, as long as they were under 18 or unmarried at the time their parents left their country. The refugee family reunion guidance is clear that where a family reunion application does not meet the requirements of the Immigration Rules, caseworkers must consider whether there are any exceptional circumstances or compassionate factors that may justify a grant of leave outside the Immigration Rules. To this end, particular reference is given in the guidance to the example of children over 18 who are not leading an independent life and would otherwise be left alone in a dangerous situation. I can confirm that this discretion is used to allow dependent adult children to reunite with their parents in the UK where appropriate.

Paragraph (b) of the proposed new clause relates to refugees sponsoring parents. The noble Baroness will know that the Government have been very clear on their established position on this issue, as we are very concerned that allowing children to sponsor their parents would lead to more children being encouraged—even forced—to leave their families and risk dangerous journeys to the UK. However, discretion can be applied where a caseworker feels that a refusal of entry clearance would breach Article 8 of the ECHR or result in unjustifiably harsh consequences for the applicant or their family. Furthermore, Appendix FM of the Immigration Rules already allows refugees to sponsor adult dependent relatives living overseas to join them where, due to age, illness or disability, that person requires long-term personal care that can be provided only by relatives in the UK.

Paragraph (c) of the proposed new clause relates to refugees sponsoring dependent siblings under the age of 25, as long as they were under 18 or unmarried at the time their sibling left their country. I draw noble Lords’ attention to paragraph 319X of the Immigration Rules, which allows extended family, including siblings, to sponsor children to come here where there are serious and compelling circumstances. Again, consideration will also be given to any factors that might warrant a grant of leave outside the rules, where the rules are not met.

I hope this reassures the noble Baroness that there are vehicles within the existing policy framework to reunite the family members her amendment seeks to cover. An expansion of the policy could significantly increase the numbers who could qualify to come here from not just conflict regions but any country from which someone is granted protection. This would mean extended family members who themselves do not need protection being able to come here, which risks reducing our capacity to assist the most vulnerable refugees.

On numbers, I highlight that the UK has now issued over 29,000 family reunion visas in only the last five years, with more than half of those issued to children—a substantial number that should not be underestimated.

I agree with the intention of compassion and humanity that motivates Amendment 64, proposed by my noble friend Lord Dundee. However, we do not support this amendment, which seeks to create a humanitarian visa for EEA and Swiss nationals. It is unclear to me and the Government why those citizens have humanitarian needs that cannot be addressed by their own European country.

The Government have an excellent humanitarian record in assisting vulnerable people, including children. The UK is one of the world’s leading refugee resettlement states, resettling more refugees than any other country in Europe, and is in the top five countries worldwide. Since 2015 we have resettled more than 25,000 refugees, around half of whom have been children.

Once we have delivered our current commitments under the vulnerable persons resettlement scheme, we will consolidate our main schemes into a new global UK resettlement scheme. Our priority will be to continue to identify and resettle vulnerable refugees in need of protection, as identified and referred by the UNHCR. The focus of our humanitarian record is on those most in need, and I suggest that today’s amendment does not cover those most in need.

I turn to each proposed condition of the humanitarian visa in detail. Overall, it is unclear why, regarding the condition set out in subsection 3(a) of the proposed new clause, the UK should pick up healthcare provision for EEA and Swiss citizens, whether they are residing in their country of nationality or not, as these countries have excellent healthcare systems. However, our current discretionary leave policy allows us to grant leave to remain to individuals who do not qualify for leave to remain under the Immigration Rules but where there are exceptional or compassionate reasons for allowing them to remain in the UK, including on medical grounds and ill health.

The discretionary leave policy can, for example, address the needs of those who face a real risk of being exposed to a serious, rapid and irreversible decline in their state of health as a result of the absence of appropriate medical treatment in their home country. The policy also allows us to balance this care, and our international obligations under the ECHR, with the need to protect the finite resources of the NHS. The threshold for a person to be considered for discretionary leave on the basis of their medical condition is very clearly set out in our policy on medical claims and is intentionally high for this reason.

Furthermore, we are already dedicated to ensuring that vulnerable groups can access the NHS without charge. There are several groups applying for leave to remain in the UK who are exempt from the requirement to pay the immigration health charge, including asylum claimants and victims of modern slavery who apply for discretionary leave to remain. Those who are exempt from paying the IHC, or for whom the requirement is waived, are entitled to use the NHS generally without charge.

On the condition set out in proposed new subsection 3(b), the Government are committed to supporting vulnerable children. This amendment fails to recognise the safe and legal routes in the current immigration system for reuniting families, including the previously mentioned refugee family reunion rules, as well as Part 8 and Appendix FM of the Immigration Rules, all of which will remain in place at the end of the transition period.

The proposed amendment would also require the Government to create a new visa route for orphaned children who are EEA or Swiss nationals to come to the UK to be placed in local authority foster care where it is in their best interests. It is unclear why an orphaned child who is German, Italian or Greek, for example, should come to the UK on humanitarian grounds and be placed in local authority care here. These are safe European countries, and it is not appropriate for the UK to take children out of care in their own home countries and bring them here. Local authorities in the UK are already facing significant pressures, currently caring for over 5,000 unaccompanied asylum-seeking children, which is an increase of 146% since 2014.

On the condition set out in proposed new subsection 3(c), child dependants of those with leave in the UK are very well catered for in the Immigration Rules, which means that there is no need for primary legislation to create provision that already exists.

Turning to Amendment 79, I appreciate the noble Baroness’s intent behind the amendment, which seeks to create a means whereby, in the future, EEA and Swiss citizens will be able to join a spouse, partner, parent or a child in the UK who is either a British citizen or holds valid leave here, but without being subject to the current and established financial requirements for family migration.

There are a number of additional factors that I would like to turn to, which are also reasons for objecting to this amendment. I remind noble Lords that the minimum income requirement is based on in-depth analysis and advice from the independent Migration Advisory Committee. It did not find any clear case for differentiation in the level of the minimum income requirement between UK countries and regions. A single national threshold provides clarity and simplicity. Data also show that the gross median earnings in 2019 exceeded the minimum income requirement in every country and region of the UK. So it is true to say that the minimum income requirement is set at a suitable and consistent level and promotes financial independence, thereby avoiding burdens on the taxpayer and ensuring that families can participate sufficiently in everyday life to facilitate integration into British society.

In all family cases, the decision-maker will consider whether the Immigration Rules are otherwise met and, if not, will go on to consider whether there are exceptional circumstances that would render refusal a breach of Article 8 of the ECHR because it would result in unjustifiably harsh consequences for the applicant or their family. Each application is considered on its merits and on a case-by-case basis, taking into account the individual circumstances. The rules also give direct effect to the Secretary of State’s statutory duty to have regard, as a primary consideration, to a child’s best interests in making an immigration decision affecting them. In the future, British citizens and settled persons who want to be joined by family members who are EEA or Swiss citizens will benefit from these considerations without the need for Amendment 79.

Amendment 79 undermines the sound basis on which family migration to this country has been placed in recent years. It would circumvent the need for family migration to be on a basis whereby families are financially independent and able to contribute to the UK. It is for this reason that the income requirement was set out in the Immigration Rules. The Supreme Court has upheld this requirement as lawful and judged that it is not discriminatory. The amendment therefore seeks to contradict this ruling. There is no justifiable reason to avoid this requirement in the future by giving preferential treatment to family members based solely on their nationality. It is also unlikely to be lawful to do so.

The noble Baroness, Lady Bennett, asked if I had figures on the numbers who are affected, or who are projected to be affected. I do not have them on me. If we have them, I will provide them for her.

I hope that, on that basis, noble Lords are happy not to press their amendments.

[The Deputy Chairman of Committees (Lord Bates) (Con)]

I have received one request to speak after the Minister from the noble Lord, Lord Green of Deddington.

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

My Lords, I do not always agree with the Home Office, but I do commend the answers that the Minister has just given on these three amendments.

I want to make some brief comments on Amendment 79. As the Minister just pointed out, the present income threshold for a spousal visa is designed to ensure that those coming to the UK for family reunion have enough resources to play a full part in British life and do not become a burden on the taxpayer. That is surely a sensible approach. As she mentioned, this has been to the Supreme Court, which ruled the policy to be lawful. Indeed, far from removing the threshold, there are, in certain cases, strong arguments for raising it.

The Migration Advisory Committee has said that, on average, for the family income to cover the cost of all public services, a higher threshold is required: namely, £25,700, rather than the current level of £18,600—a difference of £7,100. Even that threshold would not be enough, it says, for a non-EU household to make a net contribution to public finances. For them, the figure would be £38,000 a year. We must have in mind the impact of changes to these rules on the taxpayer and the reaction that they may have to that.

Finally, it is perhaps important to note that a reduction in the threshold would run entirely contrary to the Government’s 2017 election manifesto, which promised to raise the level of the threshold. That, of course, has still not been done.

[Baroness Williams of Trafford (Con)]

I thank the noble Lord for his comments. I pretty much agree with him on every point.

On the higher threshold, the MAC will not be passive in commenting on the various aspects of the new immigration system, and I am sure that the threshold will be one of them.

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Windrush has been mentioned. Subsection (2)(c) raises the spectre of the destruction of records—the amendment seeks to quash it before it can be raised properly—which in the case of Windrush happened simply so that the building could be vacated. Duties to encourage, to promote, to facilitate awareness and to exercise the right of citizenship are all things that we support.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have partaken in this debate. I do not disagree that people should have their rights communicated to them and generally should feel part of the communities in which they live, as the noble Lord, Lord Greaves, says.

At this stage, it is worth decoupling two distinct matters: one is the end of the transition period and the other is the consideration of whether someone is British or should become so. However, I do not think the latter is at issue. For the former, which is the subject of this Bill, we have made extensive arrangements to ensure that the rights enjoyed by those who have resided here under free movement can continue until the end of this year.

British citizenship, as noble Lords have said, is determined by the British Nationality Act 1981, which sets out how someone may already be British—for example, through their birth here—and, for those who are not, the means by which a person may seek to become so. This might be through naturalisation or registration, depending on the individual’s circumstances and connections. Any applications submitted will utilise information that we already hold on an individual as far as possible, although there may always be circumstances in which further information may be needed. We treat all applications to become British equally, regardless of the nationality that the applicant may currently hold. The important consideration is whether they meet the requirements set out in statute. Equally, our guidance on the application process is published and available to all.

Last year we received nearly 175,000 nationality applications, which indicates that people generally are aware of the application process, the benefits of becoming British and what it might mean to individuals when they are ready to apply. That does not mean that we cannot consider alternative approaches. Noble Lords will remember, and a noble Lord referred to the fact, that the Home Secretary announced on 21 July in a Statement that alongside the Windrush Lessons Learned Review, she proposed—along with evaluating changes to immigration and nationality laws to ensure that they are fit for purpose for today’s world—to make sure that the changes were now communicated effectively where they had not previously been so. Many of the speeches touched upon that aspect of things.

While there has not been a suggestion by noble Lords that it is a change of law per se that is of concern to them—I absolutely get where noble Lords are coming from—but perhaps more general awareness for a group who may have previously not considered becoming British, I am happy to put on record that I will ask the Home Secretary whether raising awareness of citizenship more generally could form part of that ongoing process and to consider ways how that might be achieved. I will also pass on the request from the noble Lord, Lord Alton, to meet the Home Secretary, but any change should be for all people potentially affected, not only those who would lose freedom of movement rights—I do not think he was suggesting otherwise. He also asked how much the legal cost of court appeals had been. He will not be surprised that I cannot recall that off the top of my head, but I do not disagree with the general principle that an awful lot of money on all sorts of sides is spent on court cases. I hope that with those undertakings, the noble Lord, Lord Rosser, will feel able to withdraw his amendment.

[Lord Rosser (Lab)]

I thank the Minister for her reply. I understand from what she said that she has undertaken to discuss the issue of further raising awareness with the Home Secretary. I also thank all noble Lords who spoke in support of the amendments in this group.

I think I am right in saying that the Minister did not respond to the question as to what the numbers are of those who are still entitled to British citizenship under the British Nationality Act 1981 but have yet to apply. If we are not aware of the number, that in itself is a real case. I know that the Minister has undertaken to look at this matter further, but it makes the real case for making sure that we raise awareness as much as possible to people who might be in that situation to urge them to consider exercising their right to British citizenship. Surely we need to ensure that all those entitled to register for British citizenship either have it confirmed that that is already their status or are advised that they can register for that citizenship to which they are entitled under the 1981 Act.

We are, after all, talking about an entitlement—a right—to British citizenship, as I know the Minister has recognised. Surely, as people who are proud to be British, we should actively want to ensure that all those who have that entitlement are made aware of it and encouraged to exercise it, with the key responsibility for doing so and facilitating that entitlement to citizenship resting clearly with the Secretary of State and the Government. I hope very much that the discussions that I believe the Minister has said that she will have with the Home Secretary will lead to further very strenuous efforts to raise awareness of this right. Indeed, I hope that the Government will go further, as proposed in Amendment 67, to encourage people to exercise their entitlement and to do their utmost to facilitate matters so that the entitlement can be exercised with ease. In the light of that, I beg leave to withdraw the amendment.

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

My Lords, I fully support Amendment 81 in the name of the noble Lord, Lord Morrow. Like others, I pay tribute to him for his work in the Northern Ireland Assembly, and in your Lordships’ House, combating the evil of modern slavery and human trafficking.

The noble Lord made a very compelling case for the Government to agree to his amendment today, and I do hope the Minister will be able to give us some hope that the Government will meet the issue that the noble Lord addressed the House on. I equally agree with the comments of the noble Lord, Lord McCrea of Magherafelt and Cookstown, and again commend the work he has done on combating modern slavery.

The new clause, as we have heard, seeks to ensure that proper consideration is given to the impact of the new regulations on the victims of modern slavery and human trafficking. It is most important that we consider the effect on victims that these changes will make. That is really very important. As the noble Lord, Lord Alton, said, rules, regulations, processes and overdue immigration procedures must work to prevent modern slavery and human trafficking and, obviously, not weaken the position at present.

The noble Lord, Lord McColl of Dulwich, again referred to the anti-trafficking directive, and the risk of what is going to be lost on 1 January. I do hope the Minister will address that. It is a huge concern, for many noble Lords, that at any point next year we will find ourselves with weaker provisions and weaker laws that will benefit only criminals and criminal gangs, and really harm victims.

Finally, I want to pay tribute to the noble Lord, Lord McColl of Dulwich, for all his work. It is high time that the Government stood up and backed the noble Lord. His Private Member’s Bill is absolutely right: all he is asking for is that England and Wales have the same provisions that endure in Northern Ireland and Scotland. The Bill sailed through this House, but then what happened to it? It crashed on the rocks in the other place. The Government did nothing to support it last time, and it is wrong. The Government really should stand up now and back the noble Lord on his Bill.

[Baroness Williams of Trafford (Con)]

My Lords, I will start by assuring the noble Lord, Lord Morrow, that I am not going to trot out the line that he suspects I am. Moreover, I will actually thank him for his contribution to this incredibly important debate, and for his continued commitment to the really important objective of ensuring the impacts on victims of modern slavery are considered in changes to the Immigration Rules following this Bill.

The noble Baroness, Lady Hamwee, said an interesting thing just before she closed, which is that we should consider modern-day slavery across legislation. I think it is absolutely crucial that we consider it across government, because it affects and infects almost every aspect of modern-day life. Noble Lords mentioned William Wilberforce, who is actually one of my heroes. It is over 200 years since we abolished slavery, and yet we have the terrible blight of modern-day slavery in our society. We are committed to tackling this terrible crime. We are now identifying more victims of modern-day slavery and doing more to bring perpetrators to justice than ever before. I will just say to the noble Lords, Lord McColl and Lord Kennedy, that there is going to be no diminution in directly affected rights.

We will replace freedom of movement with a points-based system. We remain committed to protecting individuals from modern slavery and exploitation by criminal traffickers and unscrupulous employers. I will not answer the question put by the noble Lord, Lord Alton, because I cannot. Has there been an increase in trafficking during Covid? I think we can all safely say is that there has been an increase in a lot of behind the scenes-type activity that is unpalatable to us all, including things such as domestic violence. I am sure that will reveal itself as time goes on.

We are definitely committed to considering the impact of our policies on vulnerable people, including by fulfilling our public sector equality duties under Section 149 of the Equality Act 2010. As the noble Lord, Lord McCrea of Magherafelt and Cookstown, said, on 13 July we published an equalities impact assessment on the points-based system, which considers the impact of our policy on protected characteristics. To answer the noble Lord, Lord Morrow, I can send that to him if he wishes. We will continue to iterate this document. Our work ensures that we keep at the forefront of our minds the potential consequences of our policies on those who may be susceptible to exploitation.

Across the board, it is crucial that we understand the groups and communities affected by our policies. As the Home Secretary highlighted in her Statement to the House on Wendy Williams’s Windrush Lessons Learned Review on 21 July, she has set out clear expectations that she expects officials to engage with community organisations, civil society and the public and to provide evidence in all advice to Ministers. To answer the noble Lord, Lord McColl, who asked if I would meet him: of course I will meet him to discuss his Private Member’s Bill.

Through the Home Office’s advisory groups, we have undertaken engagement with organisations on the design and development of the future immigration system, including those representing potentially vulnerable individuals. These groups, which include experts on modern slavery, including the Independent Anti-Slavery Commissioner, have been fundamental in helping us to shape our policies and to design the future system. I understand that the Home Secretary has asked officials to facilitate a dedicated session with members of the Vulnerability Advisory Group and experts from the modern slavery sector, to better understand the possible impacts of the new immigration system on potential victims of modern slavery.

The noble Lords, Lord Morrow and Lord Alton, asked me about the seasonal workers pilot. A key objective of the pilot is to ensure that migrant workers are adequately protected against modern slavery and other labour abuses. It requires operators to ensure that all workers have a safe working environment—I think he alluded to that—that they are treated fairly, paid properly including time off and breaks; that they are housed in safe, hygienic accommodation; that their passport is never withheld from them; and that robust systems are in place for the reporting of concerns and rapid action. The operators of the scheme are and must remain licensed by the Gangmasters and Labour Abuse Authority.

In addition, the Home Office and Defra also monitor the scheme closely to ensure that operators adhere to the stringent requirements set out for ensuring the safety and well-being of seasonal workers. We work with the sector, including the Gangmasters and Labour Abuse Authority, to achieve these aims. Should either of the selected operators fall short in their duties as a sponsor, action will be taken, up to and including the revocation of their sponsor licence. Other criminal sanctions will be considered as well, as appropriate.

The noble Lord, Lord Morrow, asked me what the Government were doing to ensure that EU exit does not adversely affect efforts to tackle modern slavery. We already exceed our international obligations to victims under the Council of Europe Convention on Action Against Trafficking in Human Beings, which will not be affected by EU exit. We will continue our work with European partners to eradicate modern slavery, no matter what shape our relationship with the EU takes. This is an international problem, not just a UK problem, and it is in everyone’s interest that we reach an agreement that equips operational partners on both sides with those capabilities that help protect citizens and bring criminals to justice.

Finally, the noble Lord, Lord McColl, questioned pre-settled status in terms of the right to benefits. Pre-settled status maintains the right to benefits, and a person would not need discretionary leave to remain under the modern slavery provisions because they would have five years’ leave to remain.

I hope that those explanations satisfy noble Lords and that the noble Lord will be happy to withdraw his amendment.

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[Lord Rosser (Lab)]

The mover of the resolution, the noble Baroness, Lady Hamwee, has explained the background to this amendment and what has prompted it. As has been said, Section 117C of the Nationality, Immigration and Asylum Act 2002 provides an exemption against deportation where it would be “unduly harsh” on that person’s partner or child. As the noble Baroness, Lady Hamwee, explained, the amendment seeks to give what I would interpret as more specific and relevant weight to the impact on a child of the deportation of somebody who may be a foreign criminal with a genuine and subsisting parental relationship with that British child, or other qualifying child, when considering an exemption.

I await with interest the Government’s response, during which I hope it may be possible for the Government to provide information on the number of such exemptions against deportation given under Section 117C of the 2002 Act in each of the last three years for which figures are available. Also, what estimate, if any, have the Government made of the increase, if any, in the number of such exemptions per year that would result from the change provided for in this amendment becoming applicable—a change which, frankly, in the light of some of the legal cases to which the noble Baroness, Lady Hamwee, referred, would seem quite reasonable?

[Baroness Williams of Trafford (Con)]

My Lords, next time I stand here, I will bring a series of numbers because the noble Lord, Lord Rosser, and others have foxed me on numbers this afternoon. However, but I will get for him, if I can, the number of exemptions under Article 8. I thank the noble Baronesses for bringing forward Amendment 82A on family life.

The Article 8 ECHR

“right to respect for family and private life”

is a qualified right, which can be circumscribed where lawful, necessary and proportionate in the interest of a number of factors, including national security, public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. Section 117C of the Nationality, Immigration and Asylum Act 2002 provides that when assessing whether deportation breaches Article 8 of the ECHR, the deportation of a foreign national offender is in the public interest, unless certain exceptions apply. These amendments seek to alter these exceptions and diminish the importance placed on the public interest in deporting the most serious offenders.

The proposed new clause amends the exception at Section 117C(5) for foreign national offenders—or FNOs—who have been sentenced to less than four years of imprisonment and have a genuine and subsisting relationship with a qualifying partner or child so that their deportation would not be in the public interest if it would be unreasonable for the child to leave the UK or to remain in the UK without the foreign national offender. That would be in addition to the existing exception which applies where the effect of the deportation on the partner or child would be unduly harsh.

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[Baroness Sherlock (Lab) [V]]

My Lords, I am grateful to noble Lords for raising this important issue. The review highlighted how many of the Windrush generation suffered so much, starting with stress and anxiety and leading too often to loss of livelihood and even separation from home and family. It therefore seems a fitting way to end the Committee stage, because it is a reminder to all of us of the consequences of getting immigration policy wrong.

When the review was first published, the current Home Secretary said she was “shocked” to discover the extent of the insensitive treatment that the Windrush generation and their families suffered. However, it is not good enough to be shocked after the event. We should all have known what was going on, taken responsibility for policy-making and been responsive to the people who were telling us that something was wrong. I think, along with my noble friend Lady Lister, that the decision to spend 10 years prioritising hostility in immigration policy should weigh heavily indeed.

As the noble Lord, Lord Paddick, said, Wendy Williams called the desperate results of the scandal “foreseeable and avoidable”. That is a reminder, as the Government push this Bill through, that people will have to live in the world this legislation will help to frame. We should keep that in mind.

I add my voice to the questions asked by my noble friend Lady Lister and others. The Home Secretary accepted all the recommendations of the review, including changing the culture of the Home Office, and gave an early update before the summer. Has the comprehensive improvement plan promised for September been published? Can the Minister give us an update on how many people have now applied to the compensation scheme, and how many have received and accepted a compensation offer? When will we get another update on progress made so far? We all need to learn the lessons of the Windrush review.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken to this amendment. I concur with the noble Baroness, Lady Sherlock, that this is a fitting end to Committee, although some of our views on how to prevent another Windrush scandal differ—for example, on the declaratory scheme versus the constitutive scheme for settled status.

Noble Lords have acknowledged that the Home Secretary has made it clear that we accept the review’s findings. She updated the other House last month on progress towards implementing its recommendations. In response to the noble Baroness, Lady Sherlock, we will publish a comprehensive improvement plan in September—so, this month. I look forward to updating the House.

As part of our response, we are reviewing every aspect of how the Home Office operates: its leadership, culture, policies and practices, and the way it views and treats all parts of the community it serves. It must be said that while urgent and extensive work is taking place across the Home Office on all the recommendations, fundamental change takes time to deliver. Culture shift is like turning an oil tanker round; I think noble Lords accept that point. To rush for the sake of making a headline would be the wrong approach. If noble Lords could stand in my shoes, they would see how much the Home Office and the Home Secretary talk about Wendy Williams and the lessons learned. The culture is already starting to change but it is not a quick change. Wendy Williams made that very point: we should not rush, first, to respond to the review or, secondly, implement some of the changes suggested in it.

Delaying the end of free movement until the changes are implemented would prevent us moving to a new skills-based immigration system. That new system means people will be treated equally and fairly, and delaying it would undermine the Government’s clear position on ending free movement. Noble Lords will not be surprised to know I cannot accept the amendment.

The noble Baroness, Lady Lister, asked about the evaluation, the terms of reference and whether we had engaged any external experts. The team is actively engaging with internal and external organisations, as well as with staff at all levels. We are engaging with the unions, with support networks and with the department’s race board to determine the best way to implement the findings of the review.

Of course, it is fair to say in conclusion that the findings of Wendy Williams’ Windrush Lessons Learned Review affect all migrants in the UK, not just EEA citizens. The tenet—to use the word used by the noble Baroness, Lady Lister—of her review was a fairness and a humanity within the way that the Home Office operates, and I can totally concur with that.

The noble Baroness, Lady Sherlock, asked me for an update on the compensation scheme. I do not have the facts and figures—another deficiency in facts and figures this afternoon—but I will certainly write to noble Lords on where we are up to. The noble Lord, Lord Roberts of Llandudno, questioned the high number of appeals that are upheld. This is all down to when appeals are lodged, and that can have an impact on appeals granted. With that, I ask the noble Baroness to withdraw the amendment.

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[Baroness Lister of Burtersett (Lab)]

I am sorry to deter the noble Baroness; I think there was a delay in my request getting from here to there. I thank the Minister for answering most of my questions, but could I just push her a bit further? If the review decided that the only way to address the problems created by the hostile/compliant environment would be to reform the legislation, such as right to rent, is it within its power or terms of reference to be able to recommend that kind of legislative reform?

[Baroness Williams of Trafford]

I am not being obtuse, but the noble Baroness is talking about hypotheticals. I do not think that that is the case, but perhaps we could speak further about it after Committee.

Amendment 95 withdrawn.

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

Baroness Williams of Trafford Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

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

My Lords, this debate has focused on several new clauses which are to be inserted after Clause 4. I have signed up to Amendments 39, 40, 41 and 94, along with my noble friend Lord Rosser and the noble Baronesses, Lady Ludford and Lady Hamwee, who opened this debate last Wednesday. I am also supportive of Amendment 70, in the name of the noble Lord, Lord Ramsbotham.

The risk here—it is all about risk—is that many people will not have their status sorted and will not have put a claim in, and are then at risk of detention. Immigration detention is something that should happen only in the most necessary cases and for the shortest period of time possible. My noble friend Lady Lister of Burtersett set out, with examples, the effect of detention and the damage of not knowing when you are going to be released on individuals and their mental health. We need to think about that: we can all accept that being locked up and not knowing when it is going to end is not a good place to be.

Taking that into account, can the noble Baroness, Lady Williams of Trafford, when she responds to the debate, tell us what safeguards will be put in place to ensure that the minimum number of people are detained and for the shortest possible time? The noble Baroness, Lady Hamwee, said she expected to be told that most people are released from detention after a short period of time, but we need to think about those who are not.

There is also the risk of redetention: when a person reports who is required to do so and then finds themself detained by the authorities. How long will it take for an application to remain to be considered? As we have heard, Amendment 39 would impose a strict time limit of 28 days and ensure that detainees could not be redetained unless—I emphasise “unless”—there has been a specific change in circumstances.

Amendment 40 sets out the conditions for a person to be detained in the first place and Amendment 41 provides for bail hearings during the initial detention period of 96 hours. Amendment 94 brings in the provision six months after the Bill comes into force. This gives the Government time to get all the procedures and regulations correct. I agree with the comments made in that respect by the noble Earl, Lord Sandwich.

As I said earlier, I am supportive of Amendment 70, spoken to by the noble Lord, Lord Ramsbotham, and others. This amendment raises the issue of those individuals in immigration detention who are segregated and at risk of being locked in their cells for up to 23 hours a day. I fully accept that there must be rules and that people must be protected from either themselves or from others, or from causing harm to others. However, we also must be mindful of the effects that detention—of being locked in a cell for long periods of time—can itself have on someone’s mental health. Again, my noble friend Lady Lister of Burtersett made reference to this in her contribution. I look forward to the response from the noble Baroness.

The right reverend Prelate the Bishop of Durham said in his contribution that these people have committed no crime. They themselves may be the victims of horrific crimes, and periods of detention can be long and re-detention is a real risk. When considering these amendments, we have to think about the effect of the risk of being re-detained on individuals who may, in the end, be given leave to remain in the United Kingdom. We must remember that these people have committed no crime here in the UK.

I will leave my remarks there; I look forward to the Minister’s response.

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

My Lords, I thank all noble Lords who have spoken in this debate. To address the point made by the noble Lord, Lord Hylton, about regretting the hybrid procedures, I am very glad of them; they protect noble Lords from the numbers, which are clearly going up.

This is another group of amendments that are not relevant to the Bill. I am sure that noble Lords know that, and I know that they are keen to discuss this issue. They feel very strongly about immigration detention, which has been discussed at great length in this Chamber, but that makes it no less important.

We must have an immigration system which encourages compliance and protects the public. Where people no longer have the right to be in the UK, we must be able to carry out their removal if they do not take the opportunities we provide them to leave the UK voluntarily.

The noble Lord, Lord Kennedy, and the noble Baroness, Lady Lister, talked about the concept of unlimited detention. The noble Lord asked me to list the safeguards to ensure that decisions to detain and to maintain detention are not unlimited. When someone is referred for detention, an independent detention gatekeeper assesses that person’s suitability for detention. Since 2016, the gatekeeper has rejected more than 2,300 referrals for detention. After an individual is detained, their continued detention remains under regular review at increasing levels of seniority, especially where there are any significant changes in circumstance.

Anyone detained can apply to either the Home Office or the courts to be released on immigration bail at any point during their detention. In addition, independent panellists and specialists within case progression panels provide really important oversight of the appropriateness of anyone being detained under immigration provisions at three-monthly intervals. Automatic referrals for bail also occur at the four-month detention stage for non-foreign national offenders, providing additional external oversight of detention decision-making. Immigration removal centres also provide those who are detained with access to legal advice should they need it.

The introduction of a detention time limit would severely limit our ability to remove those who refuse to leave voluntarily, as the noble Lord, Lord Green of Deddington, pointed out. It would encourage and reward abuse and, as I have said, there are a number of measures in place to safeguard against any prolonged or unnecessary use of immigration detention.

The decision to detain people who no longer have the right to be in the UK is an integral part of the removal process, but we do not detain indefinitely. There must always be a realistic prospect of removal—I see the noble Baroness, Lady Lister, shaking her head—within a reasonable timescale, and this requires a case-specific assessment to be made for every single person whose detention is considered. It is already used sparingly: 95% of people who are subject to removal from the UK are at liberty in the community, and the detention estate is now almost 40% smaller than it was five years ago, with 8,000 fewer people entering detention in the year ending December 2019 than in 2015.

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

I thank the Minister for her detailed explanation. The problem that I have here is that this Bill will become an Act of Parliament, things will move along very happily and then, many years from now, when we are all no longer doing what we are doing now, all these problems will arise whereby things are not done properly. We could have immigration centres with Italian and French citizens, people who have lived here but have not regularised their situation, being locked up and held for days and things—and that is just an anathema. My worry is that sometimes things are done and then, many years later, different people come along, things are not done so well, and there is a problem.

I am concerned about the innocent people. I am not concerned about people who have committed offences, who need to be dealt with—this is about innocent people who have done absolutely nothing wrong. They potentially could have been our friends and neighbours, living in our country, who have not regularised their situation. Unfortunately, mistakes happen, for all the assurances, and people find themselves taken away, probably quite unfairly, locked up and stuff. I want to hear a bit more about how we are going to deal with those sorts of situations. I am talking about the innocent people. How are we going to look after those people, who have done nothing wrong? We are all agreed on those who are criminals and have done bad things, but what about the innocent people, who are treated unjustly? That is what I want to hear about.

[Baroness Williams of Trafford (Con)]

We will be talking about the EU settlement scheme in future groups. As I will go on to explain, the scheme does not end, in the sense that, if people are here, certainly between now and 2020, and want to regularise their status, they can do. Of course, the reasonable excuses rule will go on indefinitely as to why people have not regularised their status.

Obviously, these amendments have nothing to do with the Bill, but I hope that I have outlined the various degrees of safeguards that will guard against people being detained indefinitely. We will go on to talk about the EU settlement scheme and some of the safeguards that go around that, particularly ongoing, with people who have missed the boat. I hope, with those explanations, the noble Lord is happy.

[Baroness Hamwee (LD) [V]]

My Lords, the noble Lord, Lord Kennedy, is absolutely right about the numbers of people who may find themselves in a situation—and not even be aware of it—which is not regularised. Yes, we will come on to talk about the settlement scheme, and perhaps we will pick up the Minister’s words about the possibilities of applying some way into the future.

The Minister started as I expected, by saying that these amendments are not relevant to the Bill and that if we were to include them, we would be discriminating against people who are not from the EEA or Switzerland. It is entirely open to the Government to apply these provisions to everyone, as I think they should be. They are relevant to the Bill. My noble friends Lady Barker and Lord Paddick made it clear on an amendment last week.

We started debate on this group of amendments late on Wednesday and as a result some noble Lords were unable to take part, or cannot participate today. Two have asked me to make a short comment on their behalf. I hope noble Lords will indulge me if I include them now.

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[Lord Rosser (Lab)]

I do not know what is going to be included in the Government’s response to these amendments, but we have heard today, as we have on previous days in Committee on this Bill, that an amendment or group of amendments is not relevant to the Bill. I am assuming that that is being said purely as the Government’s view, since presumably, through the changes that it does or does not make to a government Bill, it is for Parliament to decide what should or should not be in a Bill and is therefore relevant to it. So I would be grateful if the Government could confirm that when they say an amendment or group of amendments is “not relevant” to the Bill, they are simply expressing a view and accept that that is an issue that Parliament will have to determine.

Amendment 42 in this group would exempt EEA and Swiss nationals and their dependents from the right-to-rent immigration checks by landlords under the Immigration Act 2014. Amendment 50 would exempt EEA and Swiss nationals and their dependents from some provisions under the Immigration Act 2014, including the NHS surcharge and immigration checks on opening bank accounts and holding a driving licence. It would also exempt them from provisions in the Immigration, Asylum and Nationality Act 2006, which disallows a person from being employed if they do not have a valid immigration status. Amendment 71 would exempt EEA and Swiss nationals residing in the UK immediately before the commencement of the Act from a variety of immigration provisions, including checks on renting, bank accounts, driving licences and illegal working.

We understand the concerns that these amendments seek to address. The experiences of the Windrush generation, when lives were ruined and families torn apart, simply highlighted the failures of the hostile environment policy, particularly the culture that it led to in the Home Office that determined how the policy was applied, and as reflected in the terms of the Immigration Acts in 2014 and 2016. Against that background, it is understandable why there is concern among EEA citizens living in this country about the impact that changes to their status following our withdrawal from the EU could have on their position in relation to the application of the terms of the Immigration Acts.

The Government could have used the Bill to signal the end of the hostile environment policy in reality, not just in name, and in so doing convince EEA citizens that their concerns were without foundation. The Government have chosen not to do so, and consequently these amendments seek to do what the Government have failed to do, by giving EEA and Swiss citizens exemption from some of the more contentious parts of the Immigration Acts, including in particular those parts of the now rebranded hostile environment policy that were effectively farmed out to private individuals and private companies to implement, such as the checks in relation to the renting of property or opening of a bank account.

I hope that when we hear from the Government, as we are just about to, we will hear some hopeful response to the thrust of these amendments and that the Government are equally determined to address—and how they intend to do so—the concerns that the amendments have raised.

[Baroness Williams of Trafford (Con)]

My Lords, in thanking noble Lords for speaking on these amendments, I say to the noble Lord, Lord Rosser, that I am going to argue not that they are irrelevant to the Bill but that that they are discriminatory, in their own ways. They would undermine the commitment to the British people to introduce a single global system. They would also weaken the immigration system by reducing the incentive to comply with the UK’s rules and laws.

On right-to-rent checks, I say to the noble Lord, Lord Paddick, and to the noble Baroness, Lady Hamwee, that immigration does not begin and end at our borders; it is more far-reaching than that. Under our new immigration system, everyone will be required to obtain their current correct immigration status, and we will clearly distinguish between those who are here lawfully and those who are not, regardless of their nationality. The measures in question concern migrants’ eligibility to rent accommodation, to work, and to access healthcare, bank accounts and driving licences. These measures have all been approved by Parliament. They contribute to our efforts to tackle illegal migration and those who seek to profit from immigration offences, while protecting taxpayer-funded services. Exempting from these measures EEA citizens and their family members, including those who do not have lawful immigration status, would undermine the integrity of the new immigration system1 which we have promised to deliver.

Amendment 42 specifically relates to the right-to-rent scheme, the legality of which has recently been upheld by the Court of Appeal—to echo the point of the noble Baroness, Lady Bennett. By disapplying these checks to all EEA citizens and their family members, this amendment would significantly compromise the right-to-rent civil penalty scheme. Under the current system, when a landlord is found to be letting to a disqualified person, the Home Office can issue a civil penalty of £3,000. A scheme that does not require evidence to be obtained for every tenant would render unworkable the Government’s ability to impose criminal and civil sanctions against unscrupulous landlords, as this exemption would serve as a blanket defence.

It is not clear how Amendments 42 or 71 would work in practice. Eligibility checks by landlords, employers and the NHS apply to everyone, including EEA and British citizens. Those carrying out the checks would not be able to ascertain who was part of the exempt cohort, as set out in these new clauses, and so would need to check everyone anyway. Alternatively, landlords and employers would have to take, at face value, a self-declaration of anyone who claims to be within this particular cohort. Amendment 42, for example, would make the right-to-rent scheme inoperable, as migrants who are unlawfully present or ineligible could self-declare as an EEA citizen, which could prevent the landlord from requesting further evidence of eligibility.

The noble Lord, Lord Paddick, asked who will check whether someone has UK immigration status. Particularly after the grace period, EEA citizens granted leave under the settlement scheme will use their digital status information to demonstrate to employers their right to work, to landlords their right to rent, and to other government departments and local authorities their right to access benefits and services—if they meet the relevant eligibility criteria. The noble Lord, Lord Paddick, pointed out the various documents that would be required. I am wondering whether he was questioning whether they were up to date, but I am sure he will come back to me on that if I have not made that clear.

For Amendment 50, I will focus on two aspects of the new clause. As noble Lords know, illegal working is a key driver of immigration offending. The ability to work without lawful status encourages people to take risks and to break our immigration laws, and leaves people vulnerable to exploitation—I refer to the point of the noble Baroness, Lady Bennett—including being paid under the legal minimum wage. We are determined to continue to tackle illegal working, but this amendment would hinder our progress.

The proposal to prevent the application of provisions relating to healthcare charges to EEA citizens and their dependants would also have a significant negative impact. The immigration health surcharge is designed to help support the NHS, ensuring that temporary migrants who come to the UK for more than six months make a fair contribution to the wide range of health services available to them. By exempting such a large cohort, including those in the UK unlawfully, from being charged for accessing healthcare, this new clause would increase the financial pressure on the NHS considerably.

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[Lord Paddick (LD)]

My Lords, I thank the noble Baroness for expecting me to speak after her. I have two points. The first is that we seem to be playing a whack-a-mole game about whether the amendments are relevant to the Bill or discriminatory. Let us hit the other one on the head: the only reason these amendments are restricted to EEA and Swiss nationals is that the clerks would not allow broader amendments, because they would not be within the scope of the Bill. They are not discriminatory; they aim to get rid of the hostile environment for everyone. That is the first issue.

Secondly, on the specifics, I apologise to the Minister for not making it absolutely clear which group of people I was talking about when I was saying that the right-to-rent scheme did not work. I was talking about EEA and Swiss nationals, at the end of the transition period, and all those other nationals who can now use the e-passport gates to enter the United Kingdom for six months without a visa.

I demonstrated in my speech that these individuals could rent for up to 12 months without a landlord being in peril of a civil penalty or any other penalty. Indeed, if during that 12 months they produced another ticket, boarding pass or travel booking—or a copy of any of those—they could further extend their rental with the landlord, because they had produced evidence that they had arrived in the UK within the previous six months. Therefore, you can see that they could extend and extend their rental of a property, completely undermining the right-to-rent scheme. Only those nationals who can use the e-passport gates, who get six months’ visa-free travel, can circumvent the system in that way. Those other foreign nationals who require a visa cannot do that because the landlord has to check digitally with the Home Office. The Minister may say that eventually everything will be digital, but this will not be digital. There will not be a digital way to check the rights of people who have six months’ visa-free entry to the UK. It will still be done on the basis of passports, tickets, boarding passes and bookings. That is the point I am trying to make.

[Baroness Williams of Trafford (Con)]

I see the noble Lord’s point. We need a further discussion or, indeed, an exchange of letters on this before Report. The first letter that I sent him clearly did not do the trick, so we will have further discussions on this.

I know exactly why noble Lords have tabled amendments that refer to EEA and Swiss nationals, because it puts them within the scope of the Bill. It does not make it any less discriminatory technically and legally, however, but I get his point.

[Baroness Hamwee (LD) [V]]

My Lords, having a “non-Anglo-Saxon-sounding name”, to use the terminology used by the noble Lord, Lord Judd, I am very conscious of the position. The Minister is, of course, quite right about why we had to confine the amendments to EAA and Swiss citizens, but it is disingenuous to say that we are being discriminatory. I said on the last group of amendments that we take opportunities where we can. We are very happy to invite the Government to apply the amendments to every nationality. Sadly, this is not open to us; as there are no Private Members’ Bills at the moment, our opportunities are pretty limited.

My noble friend Lord Paddick is not into whacking moles—because he is kind to animals, apart from anything else—but he may be very challenging to the Minister. I think it is wise to try to bottom out this issue after this stage.

Reference has been made to the black economy and how people who do not have status are driven into it and are vulnerable to exploitation. There is a big difference between our position and that of the Government. We see that as the outcome of the hostile environment provisions, not as a driver for them. I am intrigued by the points about forgeries that have been made, because it is the Government’s position that physical documents for the EU settled status scheme would open up the possibility of forgery, but we will come to that later.

We have done what we can, for the moment at any rate. I beg leave to withdraw the amendment.

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[Baroness Williams of Trafford (Con)]

I thank noble Lords for the points that they have made on these amendments. Perhaps I may address Amendments 43 and 72 together, as they both concern data protection.

I appreciate the concerns to protect data subjects’ rights and to ensure that data sharing for immigration control or enforcement purposes does not prevent people living in this country accessing public services to which they are perfectly entitled. However, I cannot agree to these new clauses, because they would not be proportionate or constructive amendments to the Bill, or indeed address the concerns behind the amendments, and I shall say why.

They would restrict immigration authorities in performing their lawful duties in respect of immigration control, including being able to confirm a person’s immigration status, and they would be unable to prevent potential prejudice to the immigration system. Essentially, the new clauses would expressly prohibit the Home Office from using a necessary and lawful exemption in the Data Protection Act 2018, should it have cause to do so. The immigration exemption has been debated previously in this House and concerns raised have been addressed on those occasions.

The exemption applies to restrict specified data subjects’ rights where the maintenance of effective immigration control, or the investigation or detection of activities that would undermine the maintenance of effective immigration control, are likely to be prejudiced. Rightly, it should apply to anyone who is subject to immigration control, including EEA and Swiss citizens. The new clause proposed in Amendment 43 would therefore constitute a difference in treatment on the grounds of nationality. We do not believe that that can be justified, as one purpose of the Bill is to ensure that there will be no difference in treatment between EEA citizens and those from the rest of the world when it comes to immigration policy.

Amendment 72 would have a similar effect in creating a difference in treatment based on nationality. The effect of the amendment in the clause would be to maintain the current position, so that one particular aspect of the compliant environment—data sharing—would not apply to those who now benefit from free movement. The amendment would have no effect as far as non-EEA citizens are concerned, and data collected in relation to them could still be used for immigration control or enforcement purposes, thereby treating them unequally under the law.

With regard to the immigration exemption dealt with in Amendment 43, it might help if I expand on the safeguards built into the Data Protection Act. The exemption can be applied only on a case-by-case basis and only where it is necessary and proportionate to do so. It cannot be, and is not, used to target any group of people, be they EEA citizens or otherwise. Nor does the application of the exemption set aside all data subjects’ rights; it sets aside only those listed in paragraph 4 of Schedule 2. A further limitation is that the exemption can be applied only where compliance with the relevant rights will be likely to prejudice the maintenance of effective immigration control. This “prejudice” test must be applied first, and, as a result, the situations in which the exemption can be used are significantly limited. The noble Lord, Lord Oates, asked me to give numbers. I cannot do so at this point, but I will see whether I can access them.

Furthermore, the exemption may be applied only so long as the prejudice can be seen to be evidenced and must be removed thereafter. It is not used to restrict access to personal data that would allow a person to further a claim; it is used only where we need to restrict access to sensitive data—for example, details of ongoing enforcement operations.

The exemption has been found to be lawful by the courts, and the ICO has issued robust guidance on how and when it may be used—guidance that the Home Office adheres to. Furthermore, the Home Office has robust safeguards and controls in place to ensure that data is handled securely, lawfully, ethically and in accordance with all relevant data protection regulations. I say again that the Home Office must at all times comply with the GDPR and the Data Protection Act 2018 when data is shared.

Similar to Amendment 72, Amendment 74 seeks to limit the use of data. To reiterate the points that I made to noble Lords during the recess, I reassure them that the services that we provide to third parties for checking immigration status information about EU settlement status can be accessed and used only to check an individual’s immigration status and the rights associated with that status.

I will explain how users can view and prove their immigration status under the EU settlement scheme. Individuals can authenticate securely on the “view and prove your settled or pre-settled status” online service, where they can view their immigration status information and choose to share it with third parties for a variety of reasons. To take the example of right-to-work checks, the individual selects the option to share their right-to-work information and is given a time-limited code, which can be emailed or given to the employer. The employer uses the share code, along with the individual’s date of birth, to access just the information needed to confirm the individual’s eligibility to work, via the “view a job applicant’s right to work details” service on GOV.UK. The information provided to the employer can be previewed by the individual and contains only information relating to their right-to-work entitlements, along with the individual’s name and facial image for verification purposes and the expiry date of the leave, where appropriate. I hope that the noble Baroness, Lady Ludford, who asked me to reiterate this point, is satisfied with my explanation.

For other services such as health, benefits and banking, users can share basic information about their status under the settlement scheme and the process works in exactly the same way. Checking organisations can access the information on a time-limited basis, via the “check someone’s settled or pre-settled status” service. The information provided in this service represents the minimum amount of data required for those checking organisations to perform their duties, and again includes the individual’s name, facial image, the leave they have been granted and the expiry date where applicable.

Third parties do not have access to the immigration database. An individual must choose to share their immigration status through the “view and prove” service before it can be viewed by third parties such as employers. Picking up on the point made by the noble Lord, Lord Dholakia, the police do not have access to the EU settlement scheme or the immigration database, but we are working with other parts of government to develop system checks to share immigration status for specific purposes such as health and benefits. For example, we will provide information to the National Health Service to support it in establishing whether an individual is entitled to access free healthcare.

I hope that noble Lords are now assured that we are committed to delivering immigration status services for the purposes of checking immigration status information only. These services have been designed to protect the personal information of those with EU settled status and have been built around GDPR principles, including that of data minimisation, ensuring that the information available to third parties is only what is absolutely necessary. I hope that, with those words, the noble Baroness is happy to withdraw her amendment.

[Baroness Ludford (LD)]

My Lords, I thank the Minister for her answers but the first is, again, the disingenuous objection that the amendment focuses only on Swiss nationals and is therefore discriminatory on the grounds of nationality. I repeat something that my noble friend Lady Hamwee has said at least twice: it is up to the Government to extend it to all migrants if they wish.

Can the Minister tell us—she may have to write to me—whether any other EEA countries have exempted immigration data in their implementation of the general data protection regulation? Also, she said that the Data Protection Act was compliant with GDPR, but that remains to be seen. I think it is doubtful because that regulation, which I worked on as an MEP, provides no blanket exclusion of immigration data. The Minister did not respond on the prospect of a data adequacy decision from the European Commission. Winning this decision is of huge significance to our security and our businesses.

The combination of this part of the Data Protection Act, not retaining the charter and constant noises about the European convention is not designed to increase the confidence of the European Commission in granting a data adequacy decision. Not getting that will seriously prejudices the chances of the cross-border police co-operation that is vital to this country. The UK has made a huge contribution in that area in building up the EU justice and security measures, as was shown when Theresa May was Home Secretary about six years ago and we had the mass opt back in to all the vital measures. If we are unable to continue that, we will not be able to access information required to catch serious criminals and it will prejudice the security of British citizens. Also, if we do not get a data adequacy decision, it will be much more difficult for businesses to transfer data across the EEA—tech businesses are particularly reliant on data—using other, clunkier routes.

Already, a shadow has been cast on the ability to get a data adequacy assessment by the surveillance provisions in the Investigatory Powers Act and others; that has been the subject of several court cases in Luxembourg and Strasbourg. It is dangerous to undermine further the chances of a data adequacy decision. There are higher things than the Home Office’s wish to have constant access to this data.

Hope springs eternal. I thank the Minister for what she said on Amendment 74, which I will read carefully in Hansard. Unfortunately, she is not giving me any comfort on the other amendments, including Amendment 43, which I moved. However, at this stage, I beg leave to withdraw the amendment.

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[Lord Rosser (Lab)]

First, we welcome the work that has been done on the EU settlement scheme so far, and the number of people who have been able to access it. We hope that the scheme proves successful, but that remains to be seen.

I will speak to Amendments 52 and 96, which are in my name and that of my noble friend Lord Kennedy of Southwark. Amendment 52 seeks clarity on the rights of EU citizens who have the right to apply for settled status but have not yet done so. What are their rights in the “grace period” between the end of the transition period and the deadline for applications?

The Government have now published a draft of the citizens’ rights (application deadline and temporary protection) (EU exit) regulations 2020—we might call it the grace period SI—during this stage of the Bill, which is helpful. This SI, made under Section 9 of the European Union (Withdrawal Agreement) Act 2020, would specify 30 June 2021 as the application deadline and provide that certain provisions of the Immigration (European Economic Area) Regulations 2016—the regulations that provide for free movement rights—will continue to apply during the grace period for relevant persons, despite the revocation of those regulations under this Bill.

In essence, the government factsheet tells us that the SI will temporarily “protect the existing rights” of EU nationals who are eligible for the settlement scheme during the grace period. Regulations 5 to 12 of the SI specify which provisions will continue to apply. Can the Government confirm to the House that the full existing rights of EU citizens will be carried into the grace period by this SI and there will be no substantive changes or loss of rights? We welcome the clarification that the person’s existing rights continue during the entirety of the processing of their application—even where, for example, they apply late in June and the deadline passes while their application is being considered.

We welcome the Government’s aims in the SI to provide legal protection to these rights. However, questions remain over how they will be protected in practical terms. If an EU national tries to open a bank account, rent a home or enrol their child in school during that period, what are the Government doing to ensure that their continuing rights are widely understood—because people are generally not aware that they have that right and there could be a difficulty?

Regulation 13 of the SI states:

“Where any question arises as to whether a person is or was lawfully resident in the United Kingdom at a particular point in time … it is for the individual in question to prove that they were”.


That is to say that they must prove that they were lawfully resident in the United Kingdom. Can the Government say in which situations they expect that people will have to prove their ongoing status and how they envisage people will do this? What documentation might they need, for example? Crucially—since one can see there might be some difficulty in being able to prove it—what support will there be for a person who runs into this kind of difficulty and who may well, in fact, be perfectly lawfully resident in the United Kingdom?

I am sure there will be many other questions that arise in relation to the draft SI, but I will move on to Amendment 96, which seeks more information on late applications to the settlement scheme. The Government have repeatedly said there will be “reasonable grounds” on which a late application will be accepted, but of course I am sure we would all acknowledge that the word “reasonable” is subjective. Different people will have different interpretations of what is reasonable. When can we expect full guidance on late applications? If a person was completely unaware that they had to apply, will that count as reasonable grounds? Would this also apply to a person who just made a mistake and missed a deadline? At one time or another, most of us have made such a mistake.

However, our main question is on the immigration status of people who miss the deadline. An NHS doctor, for example, misses the deadline but continues to go to work. If they are then granted status in, say, 2022, they will—presumably—have been officially unlawfully resident in the UK for a number of months. Will they be considered to have been working illegally and, if so, will there be consequences for that? What status will they be deemed to have had between the June 2021 deadline and the granting of status in 2022?

Another example might be an elderly person who missed the scheme entirely because they are not digitally literate—something I can empathise with—and who continues to use healthcare services before any application is organised on their behalf. Will they be liable for high NHS fees because they did not know that their right to use those services lawfully had lapsed?

I hope the Government will be able to provide answers to the questions that I and other noble Lords have raised—either in their response or subsequently—and, not least, to the points on CSI made by my noble friend Lady Whitaker and the concerns expressed over the potential implications for the future of the high percentage of those who have been given pre-settled status.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken in this debate and rightly probed me on some of the detail of what the Government are intending to do across all the various issues that are raised in these amendments. I am pleased to say that, on most points, I think I will be able to reassure noble Lords on the issues they raise.

On Amendments 44 and 96, both concern how the Government will deal with late applications to the EU settlement scheme. Both are incredibly well-intentioned, as they concern how we ensure that those eligible for the scheme obtain status under it. There is plenty of time for those EEA citizens and their family members resident here by the end of the transition period to apply for status under the EU settlement scheme by the deadline of 30 June 2021. Furthermore, in line with the citizens’ rights agreement, they will be able to apply after the deadline where they have reasonable grounds for missing it.

I think noble Lords will find that, throughout my response, I will outline how the Government intend to take a very pragmatic approach to all these issues. During the Second Reading debate, I confirmed that, early in 2021, the Government will publish guidance on what constitutes missing the deadline. In answer to the noble Lord, Lord Rosser, I say that the timescale is appropriate because, for the time being, our priority has been to encourage all those who are eligible to apply to the scheme to do so before the deadline. We do not want to risk undermining that effort by inadvertently encouraging people to put off making the application.

Amendment 44 would cause confusion over the deadline for a scheme which has been designed to be simple and straightforward. We must also deliver on our promise to the people to end free movement and, from 2021, introduce the new global points-based immigration system. However, as I said earlier, the EU settlement scheme does not close on 30 June 2021. It will continue to operate thereafter for applications by people with pre-settled status applying for settled status and by those who are joining family members in the UK as well as by those with reasonable grounds for applying after the 30 June 2021 deadline. A report setting out proposals for dealing with late applications—as sought by Amendment 44—is not needed because we have been clear that we will take a pragmatic and flexible approach to late applications and will be publishing that guidance early next year.

Amendment 96, concerning such guidance, is also unnecessary. Our guidance on reasonable grounds for applying after the deadline will be indicative and not exhaustive. I think noble Lords will agree that this is the right approach; we will consider all cases in light of their individual circumstances. A person with reasonable grounds for missing the deadline who subsequently applies for and obtains status under the scheme will enjoy the same rights from the time they are granted status as someone who applied to the scheme before the deadline.

The withdrawal agreement obliges us to accept late applications indefinitely where there are reasonable grounds for missing the deadline. This and other rights under the agreements now have direct effect in law via the European Union (Withdrawal Agreement) Act 2020, so this commitment is already effectively enshrined in primary legislation agreed by Parliament.

The Government are also doing all they can to raise awareness of the scheme and ensure support is available. In March, we announced a further £8 million of funding, in addition to £9 million last year, for organisations across the UK to help vulnerable people to apply. Plans for a further burst of national advertising are under way because we are determined that no one will be left behind. My noble friend Lady Altmann specifically asked about this point, as did the noble Lord, Lord Rosser, in a more indirect way.

I will take a moment to outline what we are going to do between now and next year. With less than a year to go until the deadline, we will continue to update our communications approach. We will have further and future national advertising, which will have adjusted messaging and emphasis to ensure that it speaks to the remaining audiences still to apply.

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[Baroness Ludford (LD)]

My Lords, I will have to read what the Minister has said when I pore over Hansard, but I do not think that I am reassured in relation to the grace period SI. This SI refers to how the provisions of the EEA regulations 2016 continue to have effect despite the revocation of those regulations by this Bill—but it is the EEA regulations, unlike Appendix EU for the settlement scheme, which require CSI.

In accordance with the promise made by the then Home Secretary Theresa May in 2017, CSI would not be required as part of a settlement scheme application, but the grace period SI, by referring to the EEA regulations, as opposed to the rules under Appendix EU, that is EU settlement scheme rules, appears to be reintroducing the requirement for CSI. This is complicated and perhaps I have not properly understood it, and I will have to pore over what the Minister says.

Representatives of the 3 million were told by an official at the end of last week that there appeared to be a mistake, although this is only hearsay—perhaps this official did not understand any more than I did—but immigration lawyers who are trying to advise EU citizens on this think there is a problem. Referring to the EEA regulations incorporates a requirement for CSI—that is to say private health insurance—which has not been required during the settlement scheme application to date, but suddenly, in the grace period, it will be. Citizenship will also be required, but there is a discretion for that. Unlike for citizenship, there does not even appear to be a discretion to exempt it for settled status.

Clearly, the Minister, who is shaking her head at me, thinks I have continued to misunderstand this, but I remain less than reassured, and I hope I will manage to get it clearer in my own head. Perhaps more importantly, people whose profession it is to understand the EEA regulations and the settlement scheme, as opposed to a mere legislator, might be reassured by the Minister’s words, and I will defer to her.

[Baroness Williams of Trafford (Con)]

I hope the noble Baroness takes a look at Hansard. These are not the easiest things that we are discussing, but I understand the grace period SI does not affect the criteria for the EUSS status. The SI is protecting the EEA rights of those who have them at the end of the transition period. I know we will speak further, and I know that she will read Hansard, but I hope in reiterating that point again, she will feel happy that the amendment is withdrawn.

[Baroness Hamwee (LD)]

I thank noble Lords. I, too, will supply myself with some hot towels and read through all that. We have another opportunity to discuss the grace period on Amendment 80, but I, like my noble friend, feel less than reassured. The issue is whether, without having sickness insurance, one has the relevant rights. The arguments seem to have moved over the past few months as to whether having CSI is necessary to exercise the rights or, in other words, whether you have been the exercising right to free movement or the treaty rights.

Some very pertinent points and questions have been posed during this debate. I wish my noble friend Lady Smith had not reminded me about tax returns and the amount of filing I have to do, but she was right and explained my reasoning on Amendment 45 better than I did. There has been a focus on individuals throughout this. I agree with my noble friend Lord Greaves that it is not about the numbers of people. What matters matters to 100% of each individual.

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Ending the Dubs scheme and Dublin III will not stop unaccompanied children fleeing conflict and seeking to reach this country to be with those they know. Surely, the Government accept that this is the reality, and that we ought, accordingly, to ensure safe routes rather than accept the existing dangerous routes which will continue to flourish if we do not make that change. This, surely, is why the terms of Amendment 48, so ably moved by my noble friend Lord Dubs, are sorely needed.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken with such passion on these amendments; I also thank the noble Lord, Lord Dubs, of course, although I am not sure that I agree with his summation of our history of providing refuge for the most vulnerable children across the globe. The Government have an excellent humanitarian record in assisting vulnerable people, including children. We are one of the world’s leading refugee resettlement states. Under national resettlement schemes, we have resettled more refugees than any country in Europe and are in the top five countries worldwide. In contrast to some of the things noble Lords have been saying, we have resettled more than 25,000 refugees since 2015, around half of whom were children. We can be proud as a country of our ambitious commitments and achievements.

The noble Lord, Lord Kerr, stated that France and Germany have more asylum claims than us. That is not the case. We received 3,651 asylum claims from UASC in 2019, more than any other EU state and 20% of all claims made in the EU and UK. I hope that I have set that record straight.

The right reverend Prelate the Bishop of Durham asked what we have done during the pandemic. It is absolutely fair to say that it has been very difficult to resettle children for all the reasons that the pandemic has brought; however, the UK has remained open to receiving Dublin transfers. I remember that, very early on in the pandemic crisis, Minister Philp was in talks with Greece. Three group flights have taken place from Greece in recent months, on 11 May, 28 July and 6 August. We continue to make arrangements with Greek officials to facilitate transfers of people we have accepted under the regulation. I must make it clear that all arrangements to complete the transfer are the responsibility of the sending state.

There are 5,000 unaccompanied children in local authority care. I note that the noble Lord, Lord Dubs, says that he knows that there are councils which would take more. I have pressed him for the last four years to tell me which councils these are and whether they would come forward to offer those places. Of course, Kent is struggling at the moment, but if there are more local authorities who can provide that protection, we would really like to hear from them.

We have given protection to nearly 45,000 children since 2010, including over 7,000 in the past year. We also issued over 7,400 family reunion visas in the year to March 2020. I do not think that is a sign of a mean country but a sign of a very small country that has done everything in its power to help the most vulnerable. In addition, once we have delivered our current commitments under the vulnerable persons resettlement scheme—with almost 20,000 to date, and we will get to 20,000—we will consolidate our main schemes into a new global UK resettlement scheme. Our priority will be to continue to identify and resettle vulnerable refugees in need of protection, as identified and referred by UNHCR.

The proposed new clause does not recognise the existing routes in our immigration system for reuniting families, nor that we are pursuing new reciprocal arrangements with the EU for the family reunion of unaccompanied asylum-seeking children. We have tabled draft legal text for a negotiated agreement for a state-to-state referral and transfer system which would provide clear and consistent processes between the UK and EU member states, ensuring appropriate support for the child and guaranteeing reciprocity. These guarantees cannot be provided for in UK domestic provisions alone. We have acted in good faith and hope that the EU will do the same. The draft has not been rejected but—just to correct another statement made tonight—is still on the negotiating table. We will continue to provide safe and legal routes to Britain to bring together families of refugees through our refugee family reunion policy. Additionally, family members of British citizens or those granted settlement in the UK can apply to join them under Part 8 and Appendix FM of the Immigration Rules. All these routes remain in place at the end of the transition period.

The amendment tabled by the noble Lord is, unsurprisingly, based on recreating the Dublin regulation. This is obviously an EU provision, and we have now left the EU. We are a sovereign state with our own family reunion routes, which are substantial, as I have just set out. We must avoid creating further incentives for people, particularly children, to leave their families and risk those dangerous journeys. This plays into the hands of criminal gangs who exploit vulnerable people, and it goes against our safeguarding responsibilities. Allowing individuals to sponsor family members to join them in the UK before a decision on their asylum claim is made creates great uncertainty for families, who may be unable to remain in the UK. We must also guard against significantly increasing the number of people who could qualify for family reunion while not necessarily needing protection themselves, and who may be seeking to make unfounded claims on our protection systems for economic gain.

Finally, the proposed amendment would require the Government to lay before Parliament a strategy on the relocation of unaccompanied children from EEA states. The Government have no intention to lay such a strategy. It would be incredibly challenging to deliver, not least because of the pressures already faced by local authorities that are currently caring for over 5,000 unaccompanied asylum-seeking children. That is an increase of 146% since 2014. As I said earlier, in 2019 the UK received the highest number of asylum claims from unaccompanied children in Europe, and 20% of all such claims made in the EU and UK. We only have to look at the situation in Kent in recent weeks to realise the pressure that some local authorities face. Alleviating that pressure and ensuring that unaccompanied children already in the UK receive the care they need has got to be our priority. In the longer term, we need to ensure that there is a fairer allocation of caring responsibilities across the entire country.

As the noble Lord, Lord Dubs, said, in July the Government announced they had successfully completed the transfer of 480 unaccompanied asylum-seeking children from Greece, France and Italy under Section 67 of the Immigration Act 2016. Parliament was very clear then that this was a one-off scheme, which is now complete. We are pleased to see other countries now stepping up to support Greece by taking in unaccompanied children, and we stand ready to offer advice and guidance to member states who wish to develop their own schemes.

On that note, I thank all noble Lords for their contributions. I hope that the noble Lord, Lord Dubs, will withdraw his amendment.

[Lord Dubs (Lab) [V]]

My Lords, I am extremely grateful to all noble Lords who have spoken so supportively and passionately in favour of the amendment. I am grateful to the Minister for having laid out the Government’s arguments and responses. I am sure that we will come back to this on Report, but I would like to make some very brief comments. I do not want to bandy figures too much; I think we can probably deal with that between now and Report stage.

The Minister mentioned the Section 67 scheme in the 2016 Act. The Minister said it was a one-off scheme, but it was only one-off because the Government arbitrarily closed it. There was no number given in the amendment; the Government quite arbitrarily said that there were no more local authority places. I think the Government stopped that one.

The Minister mentioned the children who came and how generous we have been but, according to the figures she quoted, the majority of these children came illegally. They crossed the channel, either in dinghies or in the back of lorries. I believe that, had they had legal paths to safety, they would not have come that way. The figures would have been the same, but some of them would have had a safe and legal crossing, instead of the terrible dangers of crossing the channel.

I will certainly get back to the Minister with indications of those local authorities—it was some time ago that we did the check—that I know are able and willing to take child refugees, so we can take the argument to that point.

The Minister mentioned the global UK resettlement scheme. Fine, I am all in support of that, except of course that this will not take a single child from Europe, as I understand it; it will be ones from the region. I welcome that they will be taken from the region, but I do not welcome the fact that the scheme will not cover any from Europe, which is why we need this particular amendment.

With regards to push and pull factors, I remember talking to a Syrian boy who fled from Damascus or Aleppo. He told me very vividly how he had seen his father blown up by a bomb in front of him. That is an experience which will mark a child for life, and that is a real push factor if ever there was one. A lot of the children I have spoken to have had the most terrible journeys in order to try and find safety. They are coming because they want to find safety somewhere in the world. The majority of them have gone to Germany, Sweden and other EU countries. Some have come here, and I hope more will come.

As I say, I believe we can return to this on Report. I repeat my gratitude to all noble Lords who have contributed to this debate.

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[Lord Greaves (LD)]

My Lords, it is a privilege to follow so many very clear and excellent speeches, starting with my noble friend Lord Oates and including my old friends, the noble Lords, Lord Alton of Liverpool and Lord Hain. I listened to both of them and thought, “They got some good training when they were kids, didn’t they?”

It is interesting that, of all the things that people such as the3million group and lots of other European citizens who are concerned about settled status and so on do not like, this is the one thing that they are almost all united in thinking ought to be changed. A lot of them put it at the top of their list of priorities, partly because it is such a simple and obvious thing for the Government to do.

I have been in this place for 20 years—I have to pinch myself but it is true—and I have noticed over the years that sensible Governments do not just lie down and do everything that your Lordships’ House wants them to do, although we have the debate and they listen. Occasionally they say, “Yes. There’s sense in this. We’ll take it away and sort it, and will come back.” I think that this is one of those issues. The great advantage that Governments have of doing that here and not in the House of Commons is that the Opposition do not then start shouting “U-turn” and so on at them; they say, “We thank the Government for their sensible thoughts and actions on this. Good for them.” This is one issue where the Minister, who has a reasonable amount of clout in her department and in the Government—not as much as some people but a reasonable amount—

[Baroness Williams of Trafford (Con)]

Oh!

[Lord Greaves (LD)]

There are shadowy figures who get appointed and seem to run things but never appear in this or any other House, but I am sure that the Minister could do it if she wanted to. I think that this is a single thing that the Government could do.

Various people have talked about it being a two-tier system. My noble friend Lord Paddick said it would mean that people with settled status would be in a position different from that of other people. They would be, and they would sometimes be worse off in some respects compared with some citizens of the European Union. For example, those who come here to work after the end of June next year will need a work visa. As I understand it, they will have a passport and the work visa will be stamped in it. They will be okay. They will say, “Look, I can work”, whereas those with settled status will have to go through the long and complex system that has been described to us by the noble Baroness, Lady Bennett.

My other question concerns transactions, whether relating to employment, housing or other things—odd jobs and so on, with people doing work for others. If the European Union person with settled status, who might be on either side of the transaction, is the provider of the facilities or services, will they have to show that they are entitled to be here and to provide those services to their customers or whoever they are providing them to? That is a question for the Minister.

It seems a bit ridiculous in some cases, such as odd-job men. Somebody comes around—they may be a traveller or just an ordinary odd-job man—and says they will mend your roof by putting the tiles back on or will set up a window-cleaning round. If you employ them to work for you, and pay them to do it, but they are not entitled to work in this country, will you be breaking the law in some way—or is it all on the side of the person providing the service?

I have been trying to get my mind around the worst-case scenarios. If you want to rent a new flat and you are leasing it from a big landlord, who is highly reputable and provides high-quality accommodation, you will be okay. They will have all the computer systems, will know how to do it and be used to it. It will just go through. But you may be renting an attic from an old lady who has lived in the house all her life but does not know what a computer looks like or how to operate that kind of system. She does not work through an agent or anybody like that; she just does it. You may be a lodger or a tenant. Under those circumstances, you need a physical document.

I can think of loads of others. Think of the gig economy. Lots of it is highly organised and computerised, and will easily be able to cope—driving for Uber, running webinars or whatever it is. But a lot of the gig economy is short-term jobs, such as working at a bar, doing delivery rounds, music gigs or all sorts of things, as we all know. We should not expect this system to work under circumstances where people do not have a physical document. It is simply not going to happen; it is not going to work.

Then there is the question of self-employed people—your classic Polish plumber, or whoever it is, whatever they are doing. As I suggested before, they may have come to mend your roof or sort out your heating. This is a self-employed person, a sole trader. They may or may not be operating properly within the tax system, but there are loads of such people. How will they cope with this? Some of them have devices with them, but lots will not want to worry about computers. If you are employing these people, as I said before, is it your responsibility to check that their settled status is bona fide?

The more I think about, the more circumstances there are where it will simply not work. It might work in 90% of cases, but there are lots where it will not. Simply having a physical document means that the system can work. It does not mean it will, but it means that it can, so that people on all sides of the transactions can cope. I return to what I said before: this is simple. I cannot understand why the Government will not do it. They should go away, design a scheme, come back and tell us what they are doing, and we will cheer them to the rooftops.

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[Baroness Williams of Trafford (Con)]

My Lords, I thank you all, including the noble Lord, Lord Kennedy, who made a rousing speech, but I fear we will go over old ground here. However, I thank the noble Lords, Lord Oates and Lord Rosser, for providing the House with the chance to discuss the amendments on physical documents. I do not think they are necessary. I would like to reassure noble Lords that we already provide people who are granted settled or pre-settled status with a formal written notification of their leave. It is sent in the form of a letter, by post, or a PDF, by email, and sets out their immigration status in the UK. They can retain the letter, or print it, or electronically store the PDF and keep it as confirmation of their status for their own records and use it if they wish when contacting the Home Office about their status. I must say, it is not proof; it is confirmation. This should reassure individuals about their status when dealing with the Home Office in the future, but it should not be necessary because they will always have online access to information about their status, stored electronically by the Home Office.

Other countries, including Australia, as the noble Lady, Lady Hamwee, mentioned, issue physical documents in the form of biometric cards as they can otherwise be lost, stolen or tampered with.

On the point raised by the noble Baroness, Lady Bennett, about how the EU settlement application works, I had a session on this with noble Lords and I am happy to share that presentation with her. We are developing an immigration system whereby all migrants can demonstrate their immigration status via an online service, which they can access securely via the view and prove service on GOV.UK. It is accessible to them at any time and it allows them to share relevant information with third parties who need to check their status, such as employers and landlords, as noble Lords have mentioned. If necessary, EEA citizens can show third parties their written confirmation of status, so the person checking is made aware that there is an online service. Where there is a checked status, written confirmation must not be accepted by third parties as evidence of immigration status.

We are also developing services to make the relevant immigration status information available automatically through system-to-system checks at the point at which the person seeks access to public services such as healthcare and benefits. This will reduce the number of occasions when individuals need to prove their rights or need a document to do so.

In moving to a digital system, we recognise there are people who cannot access online services and will need additional support. The noble Lord, Lord Greaves, cited cases and others were cited, such as the Roma community or indeed another category of people altogether. The noble Baroness, Lady Bull, spoke about those in coercive or abusive relationships. We are committed to delivering a service that reflects the diverse needs of all users. Help on how to use the online services and share status information is available through our contact centre, and we provide a free assisted digital service where applicants to the EUSS or others making online applications in the UK are unable to get support. The assistance is tailored to an individual’s circumstances.

We provide a telephone helpline for landlords and employers in order to provide guidance on conducting right-to-work and right-to-rent checks. We are exploring additional support for those using our online services to ensure they can demonstrate their rights in the UK.

We will require EEA citizens to use their online evidence of immigration status only after 30 June 2021. We have designed the service to be easy to use, but guidance will be available should it be required. It will include guidance on those who care for vulnerable users and on use by a range of stakeholders working with local groups, including vulnerable groups.

The full package of measures that I have described will be available before EEA passports and national identity cards cease to be valid for proving rights in the UK after 30 June next year. In answer to the point on two systems that was made by the noble Lords, Lord Oates and Lord Paddick, we will replace physical and paper-based evidence of status with digital products for all migrants, starting with EEA citizens, in the next few years. These changes are being introduced gradually in a way that builds confidence for users and provides opportunities for adaptations and improvements informed by user feedback. At the same time, we are developing an extensive package of communications to ensure that everyone, from individuals to employers, landlords and other third parties, is fully aware of the move to digital and how online immigration status can be accessed and used.

Right-to-rent and right-to-work checks are not new. I have double-checked and right-to-work checks have been law since 2007. That is 13 years since they were introduced—14 by the time that online evidence of immigration is mandatory in June 2021—albeit they will now be in an online format. This move to become digital is not new. The UK public has learned to access many government services online, from applying for a UK passport to paying their vehicle excise duty. In July this year, 87% of vehicle tax renewals were made using the digital service, dispensing with the need for a physical disc on your car. The feedback from users indicates high satisfaction. UK driving licence holders are able to share online with third parties, such as car rental companies, whether they have driving-related convictions.

Employers are able to conduct right-to-work checks on foreign national employees remotely, without the need for physical documents to be handed over. Holders of biometric residence cards or biometric residence permits have already been able to prove their right to work to an employer by using an online service, instead of using their card, since January last year—the first step in our journey to make evidence of immigration status accessible online. The “view and prove” service is popular with users. In the last reporting period, from April to June this year, there have been over 400,000 views on the service by migrants. In the same period, there have been over 100,000 views of EU settlement status by organisations checking status. The average user satisfaction is very high, at a positive 88%.

It is hard to imagine how a country would have coped during Covid without the digital technologies which have enabled so many of us to work from home, shop and obtain government services remotely. We have seen a sharp uptake in digital provision by service providers and digital adaptation by the general public. Most visa applications are made online. Providing immigration status information online has enabled us to simplify and standardise the system of checks for employers, by providing information about an individual’s status in a format that is easy to understand and accessible to all users, removing the need for employers and others to interpret myriad physical documents, complex legal terminology or confusing abbreviations.

The EU settlement scheme has been at the forefront of the transition from biometric residence cards to secure online access to immigration status information. The online system is operating in parallel with existing document checks of passports or identity documents. This approach is helping employers, landlords and EEA citizens to transition from using physical documents to online services. Ultimately, all migrants coming to the UK, whether from other European countries or the rest of the world, will have access to online services which will enable them to show their immigration status without needing a document or biometric card.

On resilience, digital services are designed to be highly resilient, with rigorous testing to build assurance before services are seen by a user. Multiple security controls are in place to protect against cyberattacks and we have employed third-party organisations to conduct vulnerability and penetration testing to provide additional assurance that our online services cannot be compromised.

I shall not detain the House much further, other than to say that we will always send a formal written notification of the individual’s immigration status by email, in the form of a printable PDF document, or by post where a paper application has been made. As set out previously, I can assure noble Lords that we are committed to delivering an online service that reflects the diverse needs of all users. We recognise there are vulnerable people, such as the victim of domestic abuse and coercive control that the noble Baroness, Lady Bull, talked about or others in the Roma community that the noble Lord, Lord Alton, talked about, who may need additional support to use our online service to share their status.

Finally, on the policy equality statement that the noble Lord, Lord Oates, asked about—I think the noble Baroness, Lady Lister, mentioned it as well—I am very sorry to say that I cannot add to other Ministers’ comments. The statement will be published shortly as outlined by them.

I hope that with those comments the noble Lord will feel happy to withdraw the amendment.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, I have received requests to speak after the Minister from the noble Lords, Lord Paddick and Lord Kennedy of Southwark.

[Lord Paddick (LD)]

My Lords, I thank the Minister for her explanation. She started and ended by talking about the letter that is sent to people about their status, which can be saved on their computer as a PDF. The Government have said, time and again, that, as proof of the recipient’s immigration status, these letters are not worth the paper they are printed on. It is disingenuous of the Minister to pray in aid these letters in answer to these amendments.

I know the Minister is going to write to me regarding previous amendments. Perhaps she could add whether or not, at any stage in the future, the Government intend to provide digital proof that an EEA or Swiss national who is on a six-month visa-free visit to the UK is here legally.

Finally, the Minister talked about vehicle excise licences going digital and said that no physical disc is now necessary. Can she tell the House what the increase in evasion of vehicle excise licences has been as a result of going completely digital?

[Baroness Williams of Trafford (Con)]

I think the noble Lord knows very well that I cannot give him that figure. However, I take his point that the letter is a confirmation and not a proof—I think I said that in my remarks. The digital proof is a very good way of sharing specific information with people such as employers or landlords as proof of status, but I conclude that we will not agree on this one.

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

My Lords, I do not think that anyone in this debate spoke out against the digital rollout or suggested that it was somehow new to require people to provide evidence of their right to rent a property or to work. What is new is that European citizens living here will be required to provide that evidence very shortly.

The Minister did not address at all my points about the staggering inconsistency of the Government. They issue certificates to all British citizens at citizenship ceremonies —hard, paper-copy certificates signed by the Home Secretary. Everyone has them handed out; I have handed out many. At the same time, the same Government and department will not issue any paper certificates to people with settled or pre-settled status. Will the Minister please go away and find out why the Government are acting so inconsistently? If she could write to me I would be happy to receive that letter, but it is ludicrous that there are those two things from the same department at the same time.

[Baroness Williams of Trafford (Con)]

Yes, I would be happy to do that.

[Lord Oates (LD)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. They all made important contributions and have provided consistent support on these issues over the extended period we have been discussing them. In view of the time, I will not go through all the contributions but I want to thank my noble colleague, if I may call him that, the noble Lord, Lord Polak, for his support and for the clear and eloquent way in which he spoke in support of the amendment. As he said, this is not a partisan issue; in reality, it is a practical and simple measure.

When I spoke earlier, I asked the Minister to consider putting aside her brief and walking in the shoes of the people who will have to work the system. I am afraid that she absolutely did not do that, and I am deeply disappointed. She said of physical documents, “I do not think they are necessary”. With respect, what matters is not what the Minister thinks but what the people who will have to live under this system think. They think they are necessary, and I do not blame them, because if I were a permanent resident in another country, I would want physical proof of my status. I suspect that many people in the Government would too. On previous groups, the Minister spoke at great length about discrimination between EEA citizens and non-EEA citizens, but that is exactly what the government scheme proposes and would do. She talked about how physical documents could be lost, stolen or tampered with. Then why on earth are the Government issuing such documents under the settled status scheme to non-EEA citizens who gain their rights through family relationships?

I asked the Minister what had changed since her own Government’s assessment of the digital right-to-work scheme found, as I said, that:

“There is a clearly identified user need for the physical card … and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”


She did not enlighten the House. We heard instead much about the Home Office’s apparent plans to digitise the whole system. My noble friend Lord Paddick asked the Minister whether the Government intend, for example, to abolish the physical driving licence. I do not think he got an answer but I wondered about the status of the famous blue passport, which has caused such excitement in some quarters recently. Do the Government really intend to abolish it in favour of a digital status? If so, I would not fancy being the Minister who has to explain that to the Daily Mail.

However, there is a really serious point here. The Minister read out a brief that addresses none of the important questions that were raised. She referred to the important point made by the noble Baroness, Lady Bull, about those who may be fleeing domestic abuse and whose partner may have been the person who controlled the email address and applied for the settled status scheme. I do not know whether the noble Baroness, Lady Bull, got an answer but I did not hear what it was.

When Michael Gove appeared before the European Union Select Committee of this House in May, in answer to a question from the noble and learned Lord, Lord Morris of Aberavon, about documentary proof for EU citizens in the UK, he told us that

“the moral and social case for it remains as strong as ever, and I shall reinforce that argument.”

I hope the Government will think about those comments by the Chancellor of the Duchy of Lancaster. To give them time to do so, I beg leave to withdraw my amendment.

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[Baroness Hamwee (LD) [V]]

My Lords, Covid has proved a desperate situation in so many different ways. One of the telling impacts is on individuals who have no recourse to public funds, not just for them as individuals but, as other noble Lords have said, in the context of public health, if they have to go to work, or to collect food from a food bank or other donors. The position is diametrically opposed to the UBI universal benefit, to which reference has been made. There is a lot to be said for that.

On Amendment 73, it occurred to me to ask what the policy aim is, because it reads as a hostile environment measure. What is the purpose of applying the no recourse rule to people whose future clearly lies in the UK? It is hard not to come to the conclusion that it is about starving them out.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who spoke on this group of amendments concerning exemption from no recourse to public funds. I will reply to Amendments 53 and 73 together because they are quite similar in nature. I recognise the strength of feeling on this issue, particularly in the light of the challenges that many people face as a result of the current pandemic, as noble Lords have talked about. I genuinely welcome noble Lords’ desire to ensure that those most in need, particularly children, are supported at this time but I am afraid that I cannot accept these amendments. I will go through the reasons why.

As noble Lords will know, most migrants visiting, studying, working or joining family in the UK are subject to a no recourse to public funds condition until they have obtained indefinite leave to remain. Individuals here without leave are also subject to the condition. The noble Baroness, Lady Lister, and the noble Lord, Lord Rosser, asked for numbers. I am afraid that these numbers are not part of the published statistics, but I know that Home Office analysts are looking at the data to determine what figures could be reduced.

The noble Baroness also talked about the provision of data. In his letter to the UK Statistics Authority, the Home Office chief statistician committed

“to further investigate the administrative data we hold to assess whether it can provide any meaningful information on the issue of hardship specifically”.

However, given the fluid nature of migration, it is quite difficult to provide an accurate figure of how many people are subject to NRPF, but we will do our best to get some meaningful figures.

The policy is based on the well-established principle that migrants coming to the UK should be able to maintain and support themselves and their families without posing a burden to the welfare system. It is designed to assure the public that controlled immigration brings real benefits to the UK and does not lead to excessive demands on the UK’s finite resources. In exempting a significant cohort from the no recourse to public funds condition, even for a limited time, the new clause proposed by Amendment 53 would undermine this policy and increase the pressure on those resources. Depending on how far into 2021 and beyond this new clause continued to apply, it may also act as an incentive for EEA citizens who are not covered by the withdrawal agreements or other immigration leave to attempt to come to the UK to access benefits and services to which they would not otherwise be entitled.

Nevertheless, the Government absolutely recognise the importance of supporting those in genuine need. Existing exemptions and safeguards are in place to ensure that lawful migrants who are destitute or at imminent risk of destitution can receive support, including the option to apply to have the no recourse to public funds condition lifted. During the pandemic, as noble Lords will know, the Government have gone further by introducing measures such as the Coronavirus Job Retention Scheme—the noble Baroness, Lady Lister, referred to this—and the self-employed income support scheme to support people, including those with no recourse to public funds.

More than £4.3 billion has been allocated to local authorities in England to support them in delivering their services, including helping the most vulnerable, with further funding for the devolved Administrations. As the noble Baroness, Lady Lister, alluded to, the Government have also temporarily extended the eligibility criteria for free school meals to support families with NRPF, in recognition of the difficulties that they may be facing during these unique circumstances.

Those individuals with leave under the family and human rights routes can apply to have the condition lifted through a change of conditions application. The Home Office is prioritising and dealing with these applications compassionately, as shown by the 89% of 5,665 applications accepted in the second quarter of 2020, due to exceptional changes that some individuals faced in their financial circumstances. We cannot say what percentage of these with NRPF the 5,665 represents.

I turn to Amendment 73, which would extend the exemption beyond the current pandemic. Under our new global immigration system, EEA citizens coming to the UK will be subject to the same requirements as non-EEA citizens, including the same conditions restricting access to public funds. The effect of this proposed new clause would be to maintain an immigration system that provides preferential treatment regarding access to benefits and services to EEA citizens over most non-EEA citizens. This is not the Government’s intention, creating a system that is not fair and does not reflect the will of the British people, demonstrated by the EU referendum and, more recently, the general election.

To answer the question of the noble Lord, Lord Rosser, I can say that those EEA citizens who are already resident here, or who are resident by the end of the transition period, can apply to the EU settlement scheme. This allows them to access benefits and services in the UK on at least the same basis as they were before being granted that status, so EEA and Swiss nationals with pre-settled status are not subject to NRPF. That significantly reduces the need for these amendments.

I understand the need to protect the vulnerable, especially during this time, and particularly in cases involving families or children, but there are already measures in place to provide this support. These proposed new clauses would also undermine the intention to create a global unified immigration system which treats EEA and non-EEA citizens equally. For the reasons I have set out, I hope that noble Lords will be happy not to press their amendments.

[Lord Rosser (Lab)]

I am sure that the Minister will not be surprised to hear me withdraw the amendment, but there are one or two comments I would like to make in reply. The first is to thank her for responding to the question I asked at the beginning. That answer confirmed that an EEA or Swiss national with pre-settled status would be able to apply for benefits and would not be restricted in being covered by NRPF—at least that is what I took from her response.

The Minister has confirmed—I am sure she will correct me if I am being unfair—that the Home Office does not really know how many people are affected by NRPF. At least, if it does know, it is still pondering whether to reveal the figures. On behalf of the Government, she said that, of the 5,665 who had asked for assistance for the NRPF conditions to be lifted, 89% had had that agreed. I do not know from that answer how much they were seeking and how much they actually got. If it was not very much or nowhere near what most people would regard as adequate, 89% would frankly not mean a great deal. It would be helpful if the Minister indicated, either now or subsequently in correspondence, what the average payment was and whether, in making the application, people had indicated how much they needed and the extent to which that need had been fully met.

I will not labour the point because in much of what I said I was not producing new arguments; I was quoting what other organisations have said about the effect that the pandemic is having on families with “no recourse to public funds”. The Children’s Society, Citizens Advice and indeed the Home Affairs Select Committee and Work and Pensions Select Committee have referred to the immediate impact on those affected of “no recourse to public funds” during the pandemic. Basically, they say that action needs to be taken now as far as the pandemic is concerned.

Functions of the Investigatory Powers Commissioner (Oversight of the Data Access Agreement between the United Kingdom and the United States of America and of functions exercisable under the Crime (Overseas Production Orders) Act 2019) Regulations 2020

Baroness Williams of Trafford Excerpts

Wednesday 9th September 2020 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 6 July be approved.

Relevant documents: 23rd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 2 September.

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

My Lords, I beg to move the Motions standing in my name en bloc, but I understand that the noble Lord, Lord Paddick, might like to come in.

Motion agreed.

Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020

Baroness Williams of Trafford Excerpts

Wednesday 9th September 2020 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 21 April be approved.

Relevant documents: special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 13th Report. Considered in Grand Committee on 2 September.

[Lord Paddick (LD)]

My Lords, these regulations add more public authorities to the list of those who can access sensitive personal information in the form of communications data, such as itemised telephone bills. So sensitive is the issue that Parliament decided that additions to the list of public authorities had to be approved by the super-affirmative procedure. When these regulations were debated last week in Grand Committee, we were told that the Home Office had agreed to the addition of those public authorities on the basis of detailed business cases submitted to it by the public authorities concerned, which Members of this House have been unable, until 12.30 pm today, to see. The Minister agreed that it was not possible for this House to properly scrutinise the decisions of the Home Office without seeing the business cases, and that the business cases had not been published as they contained sensitive information, but said that she would arrange for Members to scrutinise the business cases in a private meeting.

This morning, when I saw that these regulations were due to be approved by the House, I inquired of the Minister’s office why we had not been offered a private meeting to examine the business cases. As a result of my inquiry I was emailed, at 12.06 pm this afternoon, and invited to view the business cases at 12.30. There are five business cases, and from memory, I think the Minister said that they were “lengthy”. I do not think it reasonable to expect Members of this House to scrutinise five business cases, which apparently justify giving the five additional public authorities access to sensitive personal data, in the 45 minutes between the offer being made to view them and the regulations being approved on the Floor of the House. Call me old-fashioned, but I believe that this House should be given the opportunity to scrutinise regulations properly before it approves them, rather than afterwards.

[Lord Rosser (Lab)]

I understand the point made by the noble Lord, Lord Paddick. A private meeting before this SI is approved would certainly have enabled him and others to form a view on whether they agreed with the SI in the light of the business cases they had seen for adding these further public authorities to the list. I listened with interest to the Minister and, as I understand it, that opportunity has not been made available until the last few minutes, almost literally. I wait with interest to hear what she has to say on the points that he made.

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

I acknowledge the points of both the noble Lords, Lord Rosser and Lord Paddick. I did indeed say that I would set aside some time for a private meeting so that noble Lords could look at the business cases. I have those business cases with me and will arrange that meeting. It probably would have been preferable to have had it before proposing the statutory instrument. I continue to give my word that that meeting will be arranged. Obviously, it would now be preferable to have it sooner rather than later, and I will make that time available.

Motion agreed.

Immigration (Persons Designated under Sanctions Regulations) (EU Exit) Regulations 2020

Baroness Williams of Trafford Excerpts

Wednesday 9th September 2020 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 15 June be approved.

Considered in Grand Committee on 2 September.

Motion agreed.

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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Digital Evidence

Baroness Williams of Trafford Excerpts

Monday 7th September 2020 Lords Chamber

[Lord Hayward]

To ask Her Majesty’s Government what progress has been made towards finalising a digital evidence policy for access to complainants’ and witnesses’ mobile phones, particularly in relation to cases of alleged rape and sexual assault.

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

My Lords, cross-government work continues to ensure that complainants and witnesses are asked only to provide what is necessary and proportionate to investigate crime. Policing and the Attorney-General will publish new and updated guidance and the Home Office will work with policing to ensure that this is enabled by appropriate technology and training.

[Lord Hayward (Con)]

My Lords, there is a sense that, in recent years, police policy in sexual offence cases has swung from favouring one side to favouring the other. Following recent court cases, and the need to review how police deal with digital evidence, can my noble friend and the Home Office officials help ensure that both the alleged victim and the accused have fair and reasonable access to all relevant communications at all times?

[Baroness Williams of Trafford (Con)]

I share my noble friend’s sentiment. While rape and sexual assault are devastating and serious crimes, we expect all investigations to be conducted thoroughly and fairly to ensure equal access to justice for both victims and defendants. We are engaging with partners, including the NPCC, the CPS and the College of Policing, to ensure that the police have the appropriate framework, technology and training to strike the right balance between a victim’s right to privacy and reasonable lines of inquiry.

[Baroness Chakrabarti (Lab) [V]]

My Lords, the important Question from the noble Lord, Lord Hayward, was one of policy, but there is a prior and more fundamental question of legality. Can the Minister tell the House what is the specific legal foundation for taking rape complainants’ phones? She will know that, to comply with the Convention on Human Rights, this kind of intrusion into personal privacy needs not just to be necessary and proportionate; it has to be in accordance with the law, as well. Mere consent will not work, not least when that consent is given in exchange for the right of something as serious as a rape complaint to be taken forward.

[Baroness Williams of Trafford (Con)]

The question of legality is good and pertinent. The ICO found that there is a complex legislative interplay in this area. Officers should be extracting data from victims and witnesses only when it is strictly necessary as part of the investigation. We are working with the police and the CPS to ensure that the proposed framework meets both the requirements of officers to fulfil their lawful duties to pursue all lines of inquiry and to meet their duties of disclosure, as well as providing clarity and transparency about the safeguards and assurances to complainants on their right to privacy.

[Lord Paddick (LD)]

My Lords, the recent Court of Appeal case makes the issue of examination of the contents of mobile phones and other electronic devices of both complainants and accused far more complex. It is not simply a question of the police investigators receiving additional training. Quite often, the Crown Prosecution Service instructs officers to carry out further investigation. What co-ordination is taking place between the Home Office and the Ministry of Justice to make sure that the training is consistent, both for the police and the CPS, and is in line with that Court of Appeal guidance?

[Baroness Williams of Trafford (Con)]

The noble Lord is absolutely right: there has to be consistency and training has to be sufficient across the piece. The CPS, the Home Office and the Ministry of Justice are working through this together. The rape review, led by the Home Office, the Attorney-General’s office and the Ministry of Justice, is considering fully the reasons for a drop in referrals, to which the noble Lord has alluded in the past, and whether the digital disclosure is part of this.

[Baroness Gardner of Parkes (Con) [V]]

My Lords, earlier in my career, from 1982 to 1988, I was the UK representative on the United Nations Commission on the Status of Women. Interestingly, when we had meetings in Brasilia and in adjoining countries in South America, I was very impressed by how much more real help was available for the victims of such bad situations. I support the view that we should do everything we can to stay ahead of these needs. While I have listened to the various technical points raised, will the Minister bear in mind that this would really help women who are in a very desperate situation?

[Baroness Williams of Trafford (Con)]

My noble friend is right that this could indeed help to clinch a case one way or another. At the heart of this is that police and prosecutors have a duty to pursue all reasonable lines of inquiry in every investigation. Increasingly, evidence is coming digitally. In response, the police have to ensure that they are acting in a way that is proportionate, but which also protects privacy, as talked about by the noble Baroness, Lady Chakrabarti.

[Baroness Gale (Lab) [V]]

My Lords, is the Minister aware that Claire Waxman, the London Victims’ Commissioner, has called on the police and the CPS to implement the ICO’s recommendation of introducing a code of practice to prevent excessive and disproportionate requests for data, as real victims could otherwise be deterred from pursuing the justice they deserve? Will she accept recommendation 1 of that report, as she seemed to indicate earlier, that the Government should strengthen the current legislative framework by producing a statutory code, or other equivalent measures, to ensure that the law is sufficiently clear and foreseeable?

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

The public consultations on the Attorney-General’s Office’s updated disclosure guidance and the Criminal Procedure and Investigations Act code of practice ended recently, and the AGO is seeking to implement them later this year. It will implement the recommendations made in the 2018 disclosure review and the Justice Select Committee report on disclosure published in July 2018.

[Baroness Barker (LD)]

Will the review which the Minister mentioned consider whether there is a differential effect on women raising complaints because of the way in which digital data is used by police?

[Baroness Williams of Trafford (Con)]

I am sure that it will take such things into account, perhaps particularly the anxiety that women might feel when handing over something that is so much more about our lives in general now than just being a phone. That is where the balance must be struck. We want women to come forward. Rape is such an underreported crime, and we want people to come forward, not to feel hindered.

[Baroness Jones of Moulsecoomb (GP)]

Rape prosecutions have fallen to a record low. Does the Minister think that this is a result of the Met’s intransigence about data grabbing from victims’ phones, the CPS’s ego-driven attempt to improve its conviction rate, or perhaps the Government’s swingeing cuts?

[Baroness Williams of Trafford (Con)]

The noble Baroness obviously has firm views about all three areas, but the rape review will consider all the reasons behind recent drops in referrals—they are low anyway—and charges, prosecutions and convictions of rape cases, so the impact of digital disclosure is being considered as part of that.

[Lord Rosser (Lab)]

In the light of the recent legal challenge and the change of stance by the National Police Chiefs’ Council through withdrawing the digital data extraction forms, what early evidence is there that the experience of the legal system for victims of rape is now actually improving?

[Baroness Williams of Trafford (Con)]

I cannot stand at the Dispatch Box and say that there is clear evidence. I am saying here that the Government are doing a number of things across a number of areas to make it easier for people to come forward, to be listened to, and for evidence to be gathered in a proportionate and non-intrusive way. Digital extraction is one part of that, but we would not want that to impede a woman’s—or man’s—willingness to come forward.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed, and that brings Question Time to an end.

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

Baroness Williams of Trafford Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

As has been said, our Delegated Powers and Regulatory Reform Committee and our Constitution Committee have expressed themselves in pithy and forthright terms about the sweeping powers that the Government are seeking to grab under this Bill. We await the Government’s response to this group of amendments with interest.

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

My Lords, I thank my noble friend Lady Neville-Rolfe, supported by the noble Lord, Lord Green of Deddington, for her thoughtful amendment. I understand noble Lords’ concern about the repeal of EU law relating to free movement set out in Schedule 1 and how that will be enforced. Before I address that, I want to pick up a question from my noble friend Lady McIntosh of Pickering, who wanted confirmation that the Bill was non-discriminatory. The whole point of this immigration Bill is that the whole world is treated the same, so I can confirm that.

Schedule 1 sets out a list of measures to be repealed in relation to ending free movement for EU, EEA and Swiss citizens, with the intention that both EEA citizens and their family members will fall within the scope of the Immigration Act 1971 and become subject to the UK’s immigration control—for ease of reference, I will refer to this group as “EEA citizens” during the committee debates. This will create a level playing field for EEA and non-EEA citizens. Those EEA citizens and their family members who arrive here after the end of the transition period from January 2021 must have leave to enter or remain. The Government want EEA citizens who are resident in the UK before that date, and who wish to do so, to stay, and our focus has been on helping them to apply for that status. They can apply online for the EU settlement scheme free of charge. As of 31 July, we have received 3.8 million applications, with plenty of time until the deadline of 30 June 2021.

In order to protect those living in the UK before the end of the transition period, we propose to use the power under Section 7 of the European Union (Withdrawal Agreement) Act 2020 to save free movement rights otherwise repealed by Clause 1 of the Bill and Schedule 1 so that those EEA citizens and their eligible family members resident by the end of 2020 but who have not yet applied to the settlement scheme will continue to be treated the same until 30 June next year. This will ensure that they are able to apply to the EU settlement scheme by the deadline and retain their existing rights in the meantime. This includes pending the decision on their application after that deadline and pending the outcome of an appeal against any decision to refuse status under the EU settlement scheme.

During this grace period, immigration officers who encounter EEA citizens who are still able to apply under the EU settlement scheme will not take any enforcement action but may encourage them to apply by the deadline. Furthermore, we have always been clear that where EEA citizens and their family members have reasonable grounds for missing the deadline, they will be given a further opportunity to apply. We will take a flexible and pragmatic approach to this, and those who need it will be supported through the application process.

Ultimately, however, we are aiming to reach the position where EEA citizens who do not qualify for leave are treated in the same way as non-EEA citizens. As such, if they require leave to enter or remain in the UK but do not have that leave, they will be liable to the same sanctions and enforcement measures. These enforcement provisions are set out in the Immigration Acts and my noble friend Lady Neville-Rolfe has mentioned that those cover the rights of access to work, renting property and banking services. It would take a long time for me to list all the relevant provisions here, but I would be happy to write to my noble friend to set those out.

In response to my noble friend’s question on whether this Bill can be used to amend the legislation, I do not think this is the right Bill in which to make any changes to enforcement provisions, which would need to cover both EEA and non-EEA citizens because it is limited to immigration changes as a result of EU exit. However, we are actively exploring legislative options to ensure that key elements of our immigration system, including around enforcement, can be tightened up. This work is at an early stage.

My noble friend also asked me about who the enforcement authorities are. They are primarily those of the Home Office Border Force and immigration enforcement, working in partnership with the police and other government departments, including the DWP, HMRC and the Ministry of Justice.

With regard to my noble friend’s question about available resources for enforcement using technology and the economics of charter flights, which she was right to ask, planning is under way to factor in the requirements of the new points-based system and ensure that all aspects of operational resourcing, recruitment and training are fully delivered. These plans include the redeployment and/or recruitment of new staff where appropriate to deal with applications from EEA citizens. Part of our long-term vision has always been to make better use of digital technology and greater automation to improve the passenger experience while maintaining security at the border.

In terms of staffing, we will always ensure that the Border Force has the resources and the workforce needed to keep the border secure. We will also introduce electronic travel authorisations—or ETAs—for visitors and passengers transiting through the UK who do not currently need a visa for short stays or who do not already have an immigration status prior to travelling. I hope that answers the question of the noble Lord, Lord Adonis. This will allow security checks to be conducted and more informed decisions to be taken on information obtained at an earlier stage as to whether individuals should be allowed to travel to the UK. Therefore, the ETA scheme will add an additional security measure while also providing individuals with more assurance at an earlier point in their time about their ability to travel. The noble Lord also asked about longer-term visit visas for EU citizens, and he is right. Arrangements for longer visas will be set out in the Immigration Rules for people coming to the UK.

On my noble friend’s question about charter flights, the majority of returns take place on commercially scheduled flights. Where a chartered flight is required, the Home Office procures the use of chartered aircraft through a broker to ensure competitive pricing and access to different aircraft and contractors depending on the requirements of the operation. We think that this blended approach provides the best value for money for the taxpayer. However, I will take her point back and ensure that it is made. I also assure noble Lords that the Home Office will be updating its published enforcement policy with regards to EEA citizens at the end of the transition period.

The noble Lord, Lord Green of Deddington, pressed that point about enforcing laws on illegal working, as did my noble friend Lady Neville-Rolfe. The overarching ambition of the illegal working strategy to tackle illegal working is to work with businesses to deny access to the labour market and encourage and ensure compliance. The illegal working strategy is intelligence-led and it focuses on three main areas: deterring illegal migration, safeguarding the vulnerable and protecting the UK economy,

The further report this amendment requires is unnecessary because policy guidance on enforcement is already published on the GOV.UK website. I can hear the noble Baroness, Lady Hamwee, virtually moaning from behind the screen on referring her to the website. However, I am sure noble Lords will join me in encouraging all those who are eligible to apply before the deadline expires next June. On that note, I hope that my noble friend will withdraw her amendment.

I turn now to the opposition of the noble Baroness, Lady Bennett, in total to Clause 1. The clause introduces the first schedule to the Bill, which contains a list of measures to be repealed in relation to the end of free movement and related issues. Noble Lords have asked whether it is needed at all. It fulfils a purely mechanistic function to introduce the schedule. Without Clause 1, we cannot deliver on the will of the people in the 2016 referendum result; we cannot end free movement without repealing Section 7 of the Immigration Act 1988.

In line with long-established practice, the detail of this future system will be set out in the Immigration Rules rather than in this Bill and it will be in place from January 2021. It is of paramount importance that, as an independent sovereign state, the UK must have the ability to forge its own immigration policy and depart from EU law. The people of the UK gave us the mandate to end free movement when they voted to leave the EU and the Government gave a commitment in their manifesto to deliver on that mandate. The people are now expecting us to uphold that commitment; Clause 1 is essential to doing so and this House should not stand in the way of delivering what is a priority for the people of this country. I hope that the noble Baroness, Lady Bennett, withdraws her opposition to Clause 1.

I turn now to Amendments 3 to 6. I thank the noble Lord, Lord Pannick, and the noble Baroness, Lady Hamwee, for speaking to their amendments. Their purpose is to retain rights derived directly from EU law after the end of the transition period. I say to the noble Lord, Lord Pannick, that, unlike Caligula, I am not going to put the law up at a height and in small writing so that people cannot read it.

However, I know that the noble Lord has an issue with paragraph 4(2) of Part 2 of Schedule 1 to the Bill, which disapplies directly effective provisions of the Workers Regulation where they are capable of altering the interpretation, application or operation of any part of the Immigration Acts. His amendment seeks to remove this paragraph, meaning that provisions within the Workers Regulation, which may be inconsistent with those in the Immigration Acts, will continue to apply.

--- Later in debate ---

I am sorry to keep repeating this, but I specifically asked the Minister what the various data sources were to confirm time spent in the UK, to ensure that EEA citizens do not stay for more than six months if they use the e-passport gates or to stop them effectively having a continuous six-month rolling period by going out of the UK for a day and coming back again. She has not referred to that. In particular, I asked her what data sources would enable an EU citizen who had not left the UK after six months to be tracked down and, if necessary, deported.

[Baroness Williams of Trafford (Con)]

The noble Lord asked about the lead-up to 2025 and the ETA. It is a new immigration system—there will be a pragmatic approach to people coming in and out of this country, because it is a whole new system and will take some time to bed in. The ETA will give both security and certainty on people coming in and out of this country.

In terms of data sets, we obviously now use exit checks; if someone has a visa, it will be on their visa how long they are able to stay. The noble Lord talked about the person who literally went in and out of Lille in one day in order to update their boarding card. He makes a very good point.

This system will take some time to bed in. I will write to the noble Lord about some of the very specific supplementary questions he has asked; I am just giving him the answers that I know off the top of my head. As for sanctions for someone who has not complied, obviously it is easier for someone with a visa, and less easy for someone doing a series of short stays.

[Baroness Jones of Moulsecoomb (GP)]

I am very sorry to correct the Minister, but she made a statement earlier that was incorrect. In response to my noble friend Lady Bennett, she said of retaining—or not taking away —freedom of movement that it was the will of the people and what the people voted for with their Brexit vote. That is absolutely not true. We voted—I voted—for Brexit for many different reasons, and freedom of movement did not particularly come up as a reason. Quite honestly, none of us understood that the Government were going to make such a shambles of it. We could not have predicted that it could be so badly handled. So please, it is not the will of the people, and it was not what people voted for with Brexit. They voted for a variety of reasons.

[Baroness Williams of Trafford (Con)]

My Lords, we did vote to leave the EU, and I do not think anyone can be in any doubt about some of the reasons. People voted for a variety of reasons, but the noble Baroness will totally understand that I am not going to get into a debate about why people did or did not want to leave the EU. I will leave it there.

[Lord Pannick (CB) [V]]

My Lords, I am grateful to the Minister for her careful response to Amendment 3. It was very thoughtful—not a response off the top of her head. I am also grateful for the offer of a meeting, which I will happily take up.

The Minister gave an example of a provision in the regulations that she said was inconsistent with the immigration Acts. I accept that there may well be many such provisions. My point is very simple: spell them out in Schedule 1. Do not use this vague language of drafting which means that people cannot identify what their rights and obligations are. My amendment is not designed to keep or remove any particular right; it is simply designed to require the Government to instruct the parliamentary draftsman to produce a provision that implies basic standards of legal certainty. I hope the Minister has noted the substantial concern around the House at this lack of certainty in the drafting of Schedule 1. It is simply not good enough and it needs to be addressed. I look forward to discussing this with the Minister prior to Report.

[Baroness Williams of Trafford (Con)]

I totally understand the point that the noble Lord makes about certainty. In addressing this, I should like to meet him, because I totally get what he is saying. He is not being difficult; he is just asking that we lay out the law and provide certainty.

[Baroness Neville-Rolfe (Con)]

My Lords, I am grateful to all noble Lords who have taken part in the debate on this catch-all group of amendments. There have been some very high-quality contributions. In particular, I thank my noble friend for her careful and full answers; they have got us off to a good start.

I was rather surprised to hear the noble Lord, Lord Pannick, quoting the insights of the sociopath Caligula. However, I think he—and other noble Lords—made some good points about clarity of drafting and the complexity of immigration law, which makes its fair, efficient and firm enforcement more difficult. It also creates a great deal of work for lawyers. That is not an unvarnished advantage.

The noble Lords, Lord Beith and Lord Rosser, rightly referred to the use of secondary rather than primary legislation, and I am sure we will come back to that when we come to scrutinise Amendment 9.

We heard good support for the two practical amendments on minors visiting the UK using identity cards and on e-gates. The response was a bit disappointing on identity cards, but there were some very good points made about e-gates, and the Minister will obviously answer the more detailed questions on that from the noble Lords, Lord Paddick and Lord Adonis.

The most powerful intervention about robust enforcement was from the noble Lord, Lord Green of Deddington, whom I call a friend. He made a number of practical suggestions. I am not sure I have heard quite enough about how the Bill will be enforced or its “integrity”, to quote the noble Lord, Lord Adonis. I will talk to the noble Lord, Lord Green, and we may return to the issue on Report, in the same or in some alternative form, because enforcement of the law is very important. For now, I beg leave to withdraw the amendment.

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I hope that the Government will reflect further not on their apparent aim for a much better-paid social care sector, but on their view that we can achieve that better- paid, resourced and valued and increasingly professional care sector at the drop of a hat in a few months’ time simply by cutting off the supply of staff from overseas. We cannot. We need a period of time, as provided for in Amendment 57, to sort out the increased funding, the finance for the better pay the Government envisage, and to find, recruit and train—from within this country—the hundreds of thousands of increasingly professional staff with an aptitude and a desire to work in the care sector that are going to be needed. I hope the Government can give a positive reply to this group of amendments.

[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken in this debate. The noble Lord, Lord Blunkett, says that we are a contradictory lot and I do not disagree with that, but what we are all consistent on is that this is a matter that, through Covid, we have seen as incredibly important. We need people with these skills; they are valued and their careers can progress in this sector. He raised a very pertinent point around the turnover. I think you can tell the state of a sector or indeed a business by its turnover. Turnover is high; it is estimated to be around 31%. That is a high turnover in anyone’s book. I will confirm that figure because it is one that I have on the top of my head but my officials might disagree with it. If it is any different, I will confirm that in writing.

The amendments cover a range of issues, all of which relate to health and social care. They can be broadly split into three themes: the need to review the effects of the new immigration system on the health and care sectors, dedicated visa routes for health and social care workers, and immigration routes for those who do not meet requirements under the future skilled workers route. I am grateful to the noble Lords who tabled the amendments because they give us an opportunity to discuss a very important issue. It might be worth reflecting that there is nothing more important than how we, as a society, look after the most vulnerable people, be they young or old.

I will say another general thing about the health and social care sector, not as a Home Office Minister or even a Member of your Lordships’ House but as someone who formerly led one of England’s major metropolitan councils—which, as with all local authorities, was a significant user of care services, which consumed a substantial portion of the council’s budget. I became leader in 2004; it was an issue then and it is even more so now. I assure noble Lords that the Government very much appreciate the contribution of the social care sector, and its value to this country has never been better demonstrated than during the Covid crisis, as the noble Baroness, Lady Lister, and the noble Lord, Lord Patel, said. The Government are working alongside the sector to ensure that the workforce has the right number of people to meet increasing demands with the right skills, knowledge and behaviours to deliver quality, compassionate care.

I will respond to the point of the noble Baroness, Lady Lister. The Department of Health and Social Care has recently launched a new national recruitment campaign, called “Every Day is Different”, to run across broadcast, digital and social media. The campaign highlights the vital role that the social care workforce is playing right now during this pandemic along with the longer-term opportunities of working in care.

The Government have commissioned Skills for Care to scale up capacity for digital induction training, provided free of charge under the DHSC’s workforce development fund. This training is available for redeployees, new starters, existing staff and volunteers through 12 of Skills for Care’s endorsed training providers.

Finally, of course, I must mention—and I am sure noble Lords have heard me saying this before—that the Government are also providing councils with access to an additional £1.5 billion for adults and children’s social care in 2021. This is a significant funding uplift.

On the amendments, I will start by addressing Amendment 2 from the noble Lord, Lord Hunt of Kings Heath, and Amendment 93 from the noble Baroness, Lady Jones of Moulsecoomb, which are similar in intent. Both would require an independent review of the effect of our new points-based immigration system on the care sector. I very much agree that it is essential that policies are kept under review, particularly when the Government are introducing a new, points-based immigration system from January. Independent scrutiny and review are a good thing, but I am not sure that we need to legislate to provide a whole new mechanism.

We are very fortunate in already having the Migration Advisory Committee, a body that is widely recognised for its expertise and impartiality. It is testimony to the MAC’s standing that it has operated under a Labour Government, a coalition Government and Conservative Governments. In each instance it has been valued for the quality of its advice, and its recommendations have been accepted. Noble Lords should be in no doubt about the close interest that the MAC takes in the health and social care sectors. To put it into context, social care featured prominently in the MAC’s report from January of this year on salary thresholds and the points-based immigration system, just as it did in its report from last year on the shortage occupation lists, where there was a dedicated section on the sector, and in its 2018 report on EEA migration. I can assure noble Lords that the MAC will continue to look at these issues, particularly as the effects of the new immigration system start to be felt.

I also remind noble Lords that the Government has expanded the MAC’s remit. It is no longer constrained to reacting only in response to specific commissions from the Government; it now has licence to consider, and comment on, any aspect of immigration policy. To that end, we have asked it to start producing annual reports that not only cover issues such as its budget or staffing but provide a commentary on the operation of the immigration system. The MAC has accepted this challenge with customary gusto, and I understand we can look forward to the first such annual report later this year.

Therefore, while I totally understand the sentiment behind Amendments 2 and 93, they are not necessary. We already have a world-class, independent body to review the operation of our immigration system. Accordingly, I hope that the noble Lord will withdraw the amendment.

I turn to Amendment 47 from the noble Baroness, Lady Hamwee, Amendment 57 from the noble Lord, Lord Rosser, and Amendment 66 from the noble Baronesses, Lady Masham, Lady Finlay and Lady Thomas. I join noble Lords in having been profoundly moved by the words of the noble Baroness, Lady Masham. These amendments seek to introduce a dedicated route for health and care workers to come to the UK. I do not think that any of us would disagree about the value of the work that migrants and all staff working in the health and care sector do, and I recognise that these amendments were tabled to highlight and enhance this vital sector. That is obviously of great importance to those individuals with severe disabilities and care needs, who will rely even more on the support of health and care workers.

That is why I am pleased to be able to confirm that the Government launched the health and care visa on 4 August. The visa is available to health and care workers, and their families, from all parts of the world, not just EEA and Swiss nationals. Applicants pay a visa fee of £232 for a visa lasting less than three years, and £464 for a visa lasting more than three years. Applicants, and their families, are also exempt from having to pay the immigration health surcharge. Finally, most applicants for the health and care visa can expect a decision within just three weeks of enrolling their biometrics.

That leaves two further points for discussion. First, if inserted into the Bill, these amendments would require the Government to establish a scheme to admit care workers. I am not sure that that would be a wise way to proceed. The decision not to offer a general immigration route for those who do not meet the skills and salary thresholds is not one the Government have taken lightly. We have done so on the advice of the MAC which, as outlined earlier, are the Government’s independent advisers on migration issues. We also need to respect the wishes of the people of the UK, as expressed in the referendum vote four years ago.

The MAC has been very clear that the solutions to the challenges which the care sector faces do not lie in migration. My noble friend Lord Lilley and the noble Lord, Lord Green, made this point, as, largely, did my noble friend Lord Hodgson of Astley Abbotts. I draw your Lordships’ attention to the evidence which the chair of the MAC, Professor Brian Bell, gave to the committee in the other place. When asked about a visa route for care workers, he said:

“If people say that the response to the social care issue should be, ‘Well, employers should be allowed to bring in as many migrants as they want at the minimum wage’, first, that does not sound like the low-wage problem of the social care sector is being dealt with and, secondly, it suggests that one of the groups that will really suffer from that is the social care workers. You are saying that you are going to keep on allowing their wages to be held down by allowing employers to bring in workers at the minimum wage, whereas we want to see wages rising in that sector.”


That is a telling point. It would be a very odd position for this Government and for noble Lords to take if we were to conclude that the best way to reward those working in the care sector—the vast majority of whom are British—for their selfless and unstinting actions over the past few months was to institute a visa regime which, as the MAC chair has indicated, has the effect of depressing their wages.

Amendment 57 from the Official Opposition suggests putting in place a scheme for three years to tide the sector over and allow for some adjustment. Again, it is worth reflecting on the wise words of the chair of the MAC—this time when he appeared before the Home Affairs Committee in June. On the issue of some sort of temporary or transitional scheme for those working in social care, Professor Bell said:

“The risk is that you say that there needs to be a temporary arrangement for social care to make sure it can still access workers at usually minimum-wage wages from the rest of the world. That often then becomes a permanent solution”.


Indeed, I note that Amendment 57 explicitly contains a provision to allow it to be extended beyond its three years.

In the very next question, the chair of the Home Affairs Committee asked Professor Bell whether there would be a transitional scheme for social care workers, something my noble friends Lady Altmann and Lady McIntosh of Pickering talked about. He explicitly said that he did not advise that course of action. He went on to say:

“If unemployment rises very substantially in the next few months, of which there is certainly a risk when the furlough scheme unwinds, there will be a large supply of workers in the UK looking for work. If social care is ever to succeed in attracting workers, that is a pool of workers that they should be able to attract. If they can’t, I go back to my point that there is something fundamentally wrong here and it is nothing to do with immigration.”


These amendments seek to exempt health and care sector employers from paying the immigration skills charge. However, we consider it is right that the immigration skills charge continues to apply. In its September 2018 report on the impact of EEA migration in the UK, the MAC supported continued application of the immigration skills charge, without exceptions for particular sectors, alongside salary thresholds, as a way to protect against employers using migrants to undercut the domestic workforce, as my noble friend Lord Lilley and the noble Lord, Lord Green, said.

The Government stand by this requirement, given our desire for immigration to be considered alongside investment in, and development of, the UK’s resident workforce. My noble friend Lord Hodgson of Astley Abbotts made the point very strongly about the sector taking responsibility here; my noble friend Lord Lilley and the noble Lord, Lord Green, also made these points. This has only become more important due to the uncertainty that many UK resident workers will face as a result of the current pandemic.

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[Baroness Williams of Trafford (Con)]

I thank all noble Lords who have spoken to these amendments. As the noble Lord, Lord Kennedy, says, I often speak as first-generation Irish and he speaks as second-generation Irish, so I think one could say that we have a personal interest in getting this right and reiterating those rights in the Bill. Both the UK and Irish Governments have committed to maintaining the common travel area, which I will now call the CTA. It is underpinned by deep-rooted, historical ties and, crucially, predates our membership of the European Union.

It has been agreed with the EU that the UK and Ireland can continue to make arrangements between themselves when it comes to the CTA. This means that we will continue to allow British and Irish citizens to travel freely between the UK and Ireland and reside in either jurisdiction, and commit to protecting a number of wider rights and privileges associated with the CTA. These include the ability to work, study and access healthcare and public services. Both Governments confirmed that position on 8 May last year, through signing a CTA memorandum of understanding, referred to by the noble Baroness, Lady Ludford. The Government has included Clause 2 in the Bill to ensure that Irish citizens can enter and remain in the UK, without requiring permission, regardless of where they have travelled from, except in a limited number of circumstances.

Amendment 58 also seeks to require the Government to publish details of the rights and benefits provided by the EU settlement scheme. The European Union (Withdrawal Agreement) Act 2020 protects the residence rights of EEA citizens and their family members for those individuals who are resident in the UK before the end of the transition period and for eligible family members seeking to join a relevant EEA citizen in the UK after that time. By applying for UK immigration status under the EU settlement scheme, they can also continue to work, study and, where eligible, access benefits and services, such as free NHS treatment, as they do now.

While Irish citizens resident in the UK by 31 December 2020 can apply to the EU settlement scheme if they want, they do not need to. Their eligible family members can apply to the scheme, whether or not the Irish citizen has done so. However, Irish citizens resident in the UK by 31 December this year may wish to apply to the scheme to make it easier to prove their status in the UK in the event that they wish to bring eligible family members to the UK in the future.

The Government have therefore already made it clear that both the CTA and the EU settlement scheme provide Irish citizens with a number of rights following the end of free movement, and we will continue to emphasise that commitment. I hope that that gives the noble Lords, Lord Rosser and Lord Kennedy, and the noble Baroness, Lady Ritchie, comfort enough not to move Amendment 58.

Turning to the question of deportation raised by either the noble Baroness, Lady Ludford, or the noble Baroness, Lady Hamwee—it is getting late—Amendment 8 seeks to make additional provision with regards to the deportation of Irish citizens and their family members. First, subsection (6) seeks to ensure that the Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good, unless she concludes that, due to the exceptional circumstances of the case, the public interest requires deportation.

Subsection (7) seeks to ensure that the family member of an Irish citizen can be deported only on the grounds that their family member is or has been deported, where the Secretary of State has concluded that the deportation of the Irish citizen is conducive to the public good and, due to the exceptional circumstances of the case, the public interest requires their deportation.

I use this opportunity to reiterate our approach to deporting Irish citizens. While Clause 2 disapplies the right to enter and remain in the UK, without leave, for those Irish citizens who are subject to a deportation order, in light of the historical, community and political ties between the UK and Ireland, along with the existence of the CTA, Irish citizens are considered for deportation only where a court has recommended deportation or where the Secretary of State concludes that, due to the exceptional circumstances of the case, deportation is in the public interest—much in the way that was pointed out by the noble Baroness.

The Government are firmly committed to maintaining this approach. Irish citizens were exempted from the automatic deportation provisions in the UK Borders Act 2007 by the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid in February 2019, as the noble Baroness, Lady Ludford, pointed out.

Under the Immigration Act 1971, the family member of an Irish citizen would not be considered for deportation on the grounds that their family member is or has been ordered to be deported, unless a deportation order was made in respect of that Irish citizen. The amendment also seeks to prevent the deportation or exclusion from the UK of an Irish citizen if they are among the “people of Northern Ireland” entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish agreement of 1998.

I make it absolutely clear that the Government are fully committed to upholding all parts of the Belfast agreement, including the identity provisions which allow the “people of Northern Ireland” to identify as Irish, British or both, as they may so choose, and the citizenship provisions which allow the “people of Northern Ireland” to hold both British and Irish citizenship. Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully, and not seek to deport a “person of Northern Ireland” who is solely an Irish citizen. Exclusion decisions are taken on a case-by-case basis by Ministers. Exclusion of a person from the UK is normally used in circumstances involving national security, international crimes—including war crimes, crimes against humanity or genocide—serious criminality or corruption and unacceptable behaviour. It is essential to the security of the UK that Ministers retain the power to exclude in such serious circumstances, although of course all cases are considered extremely carefully.

I hope that with these explanations, the noble Baroness can withdraw her Amendment 8.

[Baroness Hamwee (LD) [V]]

My Lords, the Minister was unsure whether points were made by my noble friend Lady Ludford or by me. I cannot speak for my noble friend, whom I am very happy to be confused with, but speaking for myself, I cannot claim any Irish family connections, although I have a lot of friendships. Amendment 58, calling for a report, begs the question of what would happen if the report showed that the current position is inadequate, as I think it would. That is the thrust of Amendment 8, and why it is seeking to use the opportunity of the Bill to set the position in stone rather than sand.

The Minister’s response seemed to confirm the points that I had made. She talked about the common travel area memorandum, but it is only a memorandum. The Bill has the effect of weakening the legal protections. It does not reflect the spirit of the Belfast agreement.

I thought it was telling—and frankly embarrassing and even shaming—to hear the noble Baroness, Lady Ritchie, reminding the House that the protection depends on EU law. She made the point that it is not possible to make an informed choice, which is also extremely telling because, as she said, the common travel area arrangements are written in sand. I had not thought of that when I tabled my amendment, but it is intended to ensure that those sands do not shift.

I do not disbelieve what the Minister has said, but she has talked about the Executive attitude, not the legal position. While of course I do not question her integrity, she will know as well as I do that Executives change, as do their views. I am sorry that we have not been able to make more progress on this. I beg leave to withdraw the amendment.

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

My Lords, this group of amendments is concerned with the purpose, scope and extent of delegated powers conferred on Ministers by Parliament. I am grateful to the Delegated Powers and Regulatory Reform Committee for its report on the Bill and to the members of the committee who have spoken, including their chair, the noble Lord, Lord Blencathra.

The report raises serious concerns about the inappropriateness of the delegation of powers to the Executive and proposes changes which I fully support and endorse. However, it is disappointing that, as the noble Lord, Lord Blencathra, highlighted, the committee has over some considerable time produced such reports but then the next Bill has come along and the same issues have been identified.

During the Brexit campaign, we kept being told about taking back control and the sovereignty of our Parliament, but here lots of things are being passed on to Ministers and that does not quite seem to me to be taking back control. It is a bit like the pledge about the NHS on the side of the leave campaign bus that has quietly been forgotten about.

Amendments 9 and 10 seek to deal with the first two points raised by the committee by removing the word “appropriate” and inserting “necessary”, and removing the words “or in connection with”. They are amendments to which I have put my name and which I fully support.

Amendment 11 seeks to put on the face of the Bill what the power to make regulations is intended to do. I look forward to hearing the Government’s explanation if they are not prepared to accept this.

Amendment 13 again adds “only”, seeking to ensure the powers taken are used only for what they are intended to do. That seems sensible to me. I hope the Government will accept it.

Amendment 32, in the name of the noble Baroness, Lady Neville-Rolfe, also seeks to ensure that the Bill does only what the Government say they want it to do. Like other amendments in this group, that seems a very sensible and proportionate measure, and I hope the Government will support it.

Amendment 35, which I have signed, seeks to implement the recommendations of the Delegated Powers and Regulatory Reform Committee and ensure that SIs under Clause 4(1) are affirmative. Amendments 36, 37 and 38 follow on from that. The clause takes considerable powers for the Executive, as we have heard from a number of noble Lords tonight. These powers are not justified, and I support those noble Lords, including my noble friend Lord Rosser, who have opposed the clause standing part of the Bill.

Your Lordships need only look at some of the points raised by the committee to see why noble Lords have tabled their opposition to the clause standing part. In paragraph 19, the committee is “disturbed” that the Government would use words to grant and confer permanent powers on Ministers to make whatever legislation they considered appropriate. In paragraph 26, the committee argues that

“transitional arrangements to protect existing legal rights … should appear on the face of the Bill”.

In paragraph 28, its expressed view is that

“clause 4(1) contains an inappropriate delegation of power”.

I hope that, in the response to the debate, we will see considerable movement from the Government and that they take on the comments from the committee, which I fully support.

[Baroness Williams of Trafford (Con)]

My Lords, I think I get the committee’s views on the delegated powers in this Bill, and they are not pretty. However, I thank the committee for making them.

I first thank the noble Baroness, Lady Hamwee, for speaking to this group of amendments and my noble friend Lady Neville-Rolfe for speaking to Amendment 32. These amendments seek to limit the scope of the regulation-making power in Clause 4 and address the parliamentary procedure for the regulations. It is right that Parliament pays close attention to the provision of delegated powers. I have noted the recommendations made by the Delegated Powers and Regulatory Reform Committee in its latest report of 25 August.

I am pleased that we have been able to share draft illustrative regulations to be made under this power later this year, subject to Parliament’s approval of the Bill. The draft regulations—which I understand will not be subject to any significant change, to answer the point of the noble Baroness, Lady Hamwee, from tonight and the other day—will, I hope, provide some reassurance as to how the Government intend to use the regulation-making power in Clause 4.

There are clear constraints on the use of the power in Clause 4. It can be used only to make regulations that amend primary or secondary legislation

“in consequence of, or in connection with”

Part 1 of the Bill on ending free movement and protecting the rights of Irish citizens. It cannot be used in relation to the UK’s withdrawal from the EU more generally or to make wider immigration changes.

Amendment 9 seeks to limit the use of the power to making changes that are considered “necessary”, not “appropriate”. Amendment 10 seeks to limit the power to changes that are only a consequence of Part 1 of the Bill and not in connection with it. I invite noble Lords to consider the illustrative draft of the regulations and take comfort that this power is specifically to deliver the end of free movement; it is not to be used for general changes to the immigration system.

The regulations will make the statute book coherent on the repeal of free movement, align the treatment of EEA citizens arriving from next year with that of non-EEA citizens and implement our obligations to afford equal treatment to those within scope of the residence provisions of the withdrawal agreement—nothing more than that.

Furthermore, Amendment 10 prevents the Government making changes required to align the treatment of EEA and non-EEA citizens in the immigration system, which would undermine the new global points-based system. We cannot, therefore, accept these amendments.

The Government have made every effort to specify in the delegated powers memorandum the type of changes to legislation required as a result of ending free movement and protecting the rights of Irish citizens, and to make provision for them in draft regulations. However, Amendment 11 would prevent the Secretary of State from making appropriate provision and would unacceptably narrow the scope of the power. Amendment 13 would have the effect of restricting the scope of the power to the powers listed in Clause 4(3).

Amendment 32, tabled by my noble friend Lady Neville-Rolfe, seeks to confine changes to fees and charges to EEA and Swiss citizens. That is already the principal purpose of Clause 4(5). However, the amendment would then prevent us from applying the skills charge to non-EEA family members of EEA citizens and from exempting from the skills charge a non-EEA family member with rights of residence and equal treatment under the withdrawal agreement. It would amount to a breach of the UK’s commitments under those agreements, and for that reason alone we cannot accept the amendment.

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 the Bill. Limiting the Government’s ability to apply a skills charge to EEA citizens in the same way as they apply to non-EEA citizens would mean that certain elements of free movement had not been fully repealed by the Bill, and that EEA citizens still had an advantage in our immigration system. That is not an outcome that the Government can accept.

On Amendments 35, 36, 37 and 38, to which the noble Baroness, Lady Hamwee, has spoken, the first set of regulations made under this power will be subject to the “made affirmative” procedure, whereby they must be approved by both Houses within 40 days of being made if they are to remain in force. The “made affirmative” procedure is needed in the likely event that there is a short window between Royal Assent to this Bill and the end of the transition period. For that reason, the affirmative procedure proposed by the noble Baroness does not work.

The people of the UK voted to leave the EU and take back control of our laws and our borders. It is therefore imperative that this House helps to deliver on that democratic mandate by ensuring that free movement is brought to an end by 31 December. It is important to ensure that regulations made under this power commence by then. Under the “made affirmative” procedure, both Houses will be asked to approve the regulations within 40 days of them being made for them to continue in force, so Parliament has scrutiny over the use of this power. If Parliament does not approve the regulations then they will cease to have effect, but subsection (10) preserves the effect of anything done under them before that point in order to ensure legal certainty. Using this power does not mean avoiding parliamentary scrutiny—far from it—as the secondary legislation to be made under the power is subject to full parliamentary oversight using established procedures.

I think it is right that Parliament should set the scope of the power in Clause 4 in terms that are appropriate to the purpose of the Bill in ending free movement and protecting the rights of Irish citizens. It is also right that Parliament should retain appropriate oversight over the exercise of this power. However, the Government are committed to ending free movement now that we have left the EU, and this parliamentary procedure is an essential part of delivering that. I hope the noble Baronesses and my noble friend Lady Neville-Rolfe have been assured of the content of the draft regulations and the explanation of how the Government will use the delegated power. I therefore ask the noble Baroness to withdraw her amendment.

Furthermore, some noble Lords have spoken to oppose that Clause 4 stand part of the Bill. I must emphasise the importance of this power for the effective implementation of the Bill. I trust that sight of the draft regulations provides further reassurance that the power does not give Ministers a blank cheque to make wide-ranging changes to immigration policies. The power can be used only to make provision as a consequence of or in connection with Part 1 of the Bill on the ending of free movement and protecting the status of Irish citizens, but without the power we cannot align immigration treatment between EEA and non-EEA citizens, and cannot then build up our global points based system.

The regulations will be subject to full parliamentary scrutiny using well-established procedures. Free movement must end on 31 December and the “made affirmative” procedure is needed to ensure regulations made under this power align the treatment of EEA and non-EEA citizens who arrive in the country from 1 January 2021. It is important to debate the appropriate use of delegated powers, but the Government are committed to ending free movement now that we have left the EU and this clause is an essential part of it.

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[Lord Rosser (Lab)]

My Lords, Amendments 12 and 83 provide that regulations under Clauses 4 and 5 respectively cannot make a provision that is inconsistent with the withdrawal agreement. Amendments 18 and 19 alter the language of Clause 4 to bring it in line with the 2018 and 2020 withdrawal Acts. The wording of the Bill does not appear to preclude the concerns which these amendments seek to address. Indeed, Clause 4(1) states that

“The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part”,


namely Part 1 of the Bill.

Clause 5 deals with the power to modify retained direct EU legislation relating to social security co-ordination, and again appears not to provide for the limitations sought in Amendment 83. Presumably it is not the Government’s intention to nullify or weaken the terms or protections of the withdrawal agreement, or the terms or protections of the withdrawal Acts, by regulations that avoid the full and proper parliamentary scrutiny and challenge that is achieved only in respect of primary legislation. That should become clearer from the Government’s response, which will be interesting in the light of media reports today of their allegedly negative attitude to keeping to the terms of the withdrawal agreement. Whether there is any significance to the wording in Clause 4(4) being different from the terms of the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 will also become clear.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for speaking to this group of amendments, which concern the scope of the delegated regulation-making power under Clause 4 and, in the case of one of the amendments, Clause 5. As I have said, it is right that Parliament pays close attention to the provision of delegated powers, and to assist we have shared draft illustrative regulations to be made under Clauses 4 and 5, subject to Parliament’s approval of the Bill.

Amendments 12 and 83 prevent the Government from using the powers in Clauses 4 and 5 to make regulations which are inconsistent with the EU withdrawal agreement. We already have a legal obligation to comply with that agreement, which also has direct effect in domestic law in accordance with the European Union (Withdrawal Agreement) Act 2020. These amendments are unnecessary and would call into question why they are not included in every other item of legislation across the statue book.

I turn to Amendments 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. This group may nevertheless be eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement. Clause 4 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. The suggested amendments are unnecessary and would add confusion and hinder our ability to make appropriate provision for those affected by that repeal.

It is right that Parliament should set the scope of the power in Clause 4 in terms appropriate to the purposes of this Bill in ending free movement and protecting the rights of Irish citizens. It is also right that Parliament should retain the appropriate oversight over the exercise of that power. The Government’s intention here is simply to ensure absolute clarity of purpose.

The noble Baroness, Lady Ludford, mentioned some issues that I have already addressed, namely comprehensive sickness insurance and the form versus the digital form. Article 18(1) explicitly provides that a document evidencing status may be in digital form. She also talked about children and the EU settlement scheme, specifically children whose parents—or indeed institutions in which they live—may not have signed them up. We will provide for reasonable excuses; I believe that we will come to that later in the Bill.

[Baroness Hamwee (LD) [V]]

My Lords, I am particularly grateful to the noble Baroness, Lady Altmann, with her knowledge of pension provisions, for contributing to this debate. My noble friend said that I must have been prescient in tabling this amendment. I think it was more about a continuing, underlying, and rather generalised sense of anxiety—not about resiling from the withdrawal agreement, which had not struck me as a possibility until a few hours ago.

The Minister has given us some reassurance; I hope that I have heard correctly over the airwaves about the legal obligation to comply with the withdrawal agreement. I suppose that this does not mean there will not be an attempt to change that legal obligation in some way. Anyway, that is not for tonight and certainly not for after 10.15 pm. Probably the best I can do at this moment is to beg leave to withdraw Amendment 12; I do so now.

Channel Crossings in Small Boats

Baroness Williams of Trafford Excerpts

Thursday 3rd September 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

I express our condolences to the family of Abdulfatah Hamdallah, who died in the English Channel. A government Minister went to France on 11 August and announced a joint action plan. The government response to the UQ said:

“We are … urgently discussing with the French Government how our current plans can be strengthened and made truly comprehensive”


and that the clandestine channel threat commander

“will collaborate closely with the French to build on the joint work already under way, urgently exploring tougher action in France, including—”.—[Official Report, Commons, 2/9/20; col. 168.]

The Minister in the Commons was then stopped by the Speaker for overrunning his time. Can the noble Baroness finish her ministerial colleague’s sentence and tell us what “including” covers? So that we can judge whether the Government are seeking compassionate, competent and life-saving solutions to the issue of migration and asylum, can she also tell us what is in the joint action plan announced by her ministerial colleague on 11 August?

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

My Lords, I would never wish to finish someone else’s sentence, but what I can say about the clandestine channel threat commander, Dan O’Mahoney, is that he has been appointed, as the noble Lord says, and has overall operational and policy responsibility for this rather serious problem. Since there is a multiagency responsibility here which requires working with the French authorities and UKVI, we felt that it needed a single person empowered and accountable to seize control of that situation and get it fixed. What I assume will be in the joint action plan is an explanation of how the multiagency response will work. Of course, these things work best in a multiagency way.

[Lord Paddick (LD)]

My Lords, does the Minister not agree that the best way to stop the criminal exploitation of those desperate to seek sanctuary in the UK and to ensure that they do not risk their lives crossing the channel is to enable refugees to claim asylum without being physically in the UK and to provide safe and legal routes into the UK?

[Baroness Williams of Trafford (Con)]

I am glad that the noble Lord recognises the need for legal routes. Of course, we have a number of those. Under Dublin, someone can claim asylum in the first safe country that they arrive in, which is of course all the states of the EU. We have our national resettlement scheme, under which we have resettled more people than any state in the EU, and 46,000 children have received our refuge since 2010. We also have family reunification visas, of which we have issued 29,000 in the past couple of years. That is not to say that what is happening is right; it absolutely has to be tackled. With what has been happening with small boats, the only people who benefit are people traffickers and criminals.

[Lord Balfe (Con)]

Setting aside the attractions of the UK because of language and relatively lax employment rules, I was on the Operation Sophia committee of this House, which looked at the EU’s system for dealing with migration. We concluded that the only way to deal with it was to break the business model. Will the Minister, first, consider, in talks in the Home Office, the need to destroy the boats and all the equipment that people arrive in, and, secondly, look at a system whereby they do not land in the United Kingdom but are put on a boat and taken somewhere else so that the attraction disappears? At the moment, if you land in the UK you have a 95% chance of staying. We have to break that if we are to deal with this problem.

[Baroness Williams of Trafford (Con)]

My noble friend outlines some of the complexities of this. It is not in our purview to go and destroy boats that are not on our soil. They quite often come from France, as my noble friend said. On not landing in the UK, it is an internationally accepted arrangement that the first job of any maritime force, whether Border Force or whoever it is, to save lives at sea. That is a really important thing here. I will repeat what I said in the first instance: on taking someone somewhere else, when people are taken safely on to our soil we are obliged to hear and deal with their asylum claim. This is a problem for every state in the EU: we need to work, together with our partners, to deal with some of the problems of upstream criminality. The reason why people get on to these boats and take perilous journeys is that criminality, unfortunately, is at the heart of it.

[Lord Dubs (Lab) [V]]

My Lords, I think we would all agree that these are desperate people, many of them children. They are often the victims of war and persecution. The best way forward is to reach some sort of agreement with the French authorities. I suggest that the Minister should say to the French, among other things, that we will take all the children in northern France who have family members in this country or other close links with this country. We should say that we will do this quickly and expeditiously, in return for which we expect the French to redouble their efforts to catch the traffickers.

[Baroness Williams of Trafford (Con)]

My Lords, that sounds really lovely in theory. In practice, it would just create another incentive for people traffickers to get people to France. Do not forget that France is a free, democratic and safe country. On arrangements with France, the noble Lord will know, because I spoke to him about it, that we have laid a legal text that talks about our obligations in taking asylum seekers who require our protection and, in turn, returning people who do not. Unfortunately, that has not progressed, but we continue to try to make progress with it because, as I have said all along, through the process of Brexit we want to help people who need our protection.

[The Lord Bishop of Bristol]

My Lords, the Minister referred to the refugee resettlement scheme. However, as far as we can tell, refugee resettlement remains paused since March. Can she tell me what plans the Government have to launch the new global resettlement scheme and why they have continued deportations and not inward refugee resettlement?

[Baroness Williams of Trafford (Con)]

The right reverend Prelate is absolutely right that it has been difficult since March. We took 52 people from Greece back in March but it has been incredibly difficult because of the lack of flights coming here. Of course, that has led, in some sense, to people reverting to trying to get here in small boats, and that is not at all the situation we want because they are simply being exploited. What was the right reverend Prelate’s second point?

[The Lord Bishop of Bristol]

The global resettlement scheme.

[Baroness Williams of Trafford (Con)]

Obviously we will restart it as soon as it is practical and safe to do so.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, I declare my interest as a vice-chairman of the Human Trafficking Foundation. Our law enforcement agencies should be congratulated on some recent successes in apprehending some of the evil people who are smuggling people. What does my noble friend think the impact will be of leaving Europol and Eurojust on our efforts to fight this heinous crime?

[Baroness Williams of Trafford (Con)]

My noble friend points to the real necessity of ensuring that some of those data flows in terms of law enforcement are maintained and are rigorous as we exit the EU and that we do everything we can to ensure the robustness of some of the instruments that will be replaced or indeed lost as we go forward.

[The Deputy Speaker (Lord Bates)]

I am afraid that the time allowed for this Urgent Question has now elapsed, with apologies to the three Members who I was not able to call. We will now have a short break for a few moments to allow the Front-Bench teams to change places safely.