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

Lord Coaker Excerpts

Monday 11th March 2019 General Committees

[Vernon Coaker (Gedling) (Lab)]

If someone is automatically granted entry, there will be no stamp or visa in their passport, so how will we know when the three months are up and they have to apply to stay on?

[Caroline Nokes]

The hon. Gentleman makes a point. I gently remind him that they receive no stamp in their passport now; they travel through e-gates with no stamp, and the order extends that right.

[Vernon Coaker]

Will the hon. Lady give way again?

[Caroline Nokes]

If the hon. Gentleman stops chuntering from a sedentary position, that will allow me to finish responding to his first intervention. Those citizens will come through the e-gates and receive their automatic three months’ leave to enter, but beyond that it is important to reflect that we will have left the European Union and there will indeed be a change.

[Vernon Coaker]

I apologise for chuntering; I do not normally chunter—I normally shout. My question is: how will we know when the three months are up? Currently, they have the right to stay, but they will presumably have to leave after three months unless they apply to stay for longer. How will the enforcement authorities know that the three months are up?

[Caroline Nokes]

The hon. Gentleman is right to point out that we will be transitioning to the new system, so there will be very light-touch enforcement. It is important to reflect, however, that the process is changing until the point at which we introduce the new immigration system in 2021.

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[Vernon Coaker]

It is a pleasure to serve under your chairmanship, Mr Austin, and to follow the hon. Member for Central Ayrshire, who, with my hon. Friend the Member for Manchester, Gorton, has made several important points. I say to the Minister, and the Committee, that this measure is hugely important. Statutory instruments are not regarded as being on the Floor of the House, but they are important pieces of legislation that have a dramatic effect and impact on people’s lives.

As I say in virtually every statutory instrument Committee—I will repeat myself—we all often get people coming to our surgeries who say, “This has happened. Why did you pass it?”, and we then have to trawl back through the statutory instruments to find the regulation that implemented it. One of the processes that I think Parliament has a problem with is that, even if it is a good idea, an SI cannot be amended—it is a case of take it or leave it. That causes all of us, across the House, great problems at times, and is perhaps something that we should address on another occasion in a different forum.

The order is one part of a complex set of arrangements about the status of non-EU nationals, EEA nationals, EU nationals—people leaving, staying or short-term working, and also students. I cannot keep up with those arrangements, but on the particular issue in question, the Minister should give us some clarity about the points made by the hon. Member for Central Ayrshire. All of us want people to be clear about what it is they have to do in order to stay here. To be honest, when I was doing research to prepare for the Committee, I found it difficult to unpick the various websites and understand things myself.

This is not just a matter of the various Opposition parties, whether the SNP or ourselves. The House of Lords Select Committee that looks into SIs has written to the Home Office to raise certain concerns about the practical implementation of the policy. The European Union sub-committee in the Lords has written to the Home Secretary about the matter.

There are very specific concerns that I ask the Minister to address. First, at the end of free movement, for three months somebody can automatically come into the country. The Minister says that the normal processes will apply, but when somebody has come in automatically—they will have come through customs and immigration—how on earth will the Government know when the three months are up? There is no system because such people will automatically come in. It is not right for the Minister to say that the normal process will apply, because there is no process. What is the process? There is no stamping.

I am not saying that the policy is wrong or right. It is good that people can come in, but the law says that after three months they have to either get indefinite leave to remain or go. That implies enforcement action. What is that enforcement action? How will the authorities know when to start enforcement action? There is no form to tell them that the three months are up. The Minister needs to explain that to all of us. Otherwise, whether it be in north Cornwall or other parts of the country, we will have people turning up at our surgeries after seven or eight and a half months—or, as sometimes happens, after a couple of years—saying, “I’ve been here for years and my kids are going to school, and now the Home Office is banging on the door saying I’ve got to go.” That causes huge problems. Irrespective of the rights and wrongs of the policy, if its bureaucratic implementation is not right, how can it work?

[Rosie Duffield (Canterbury) (Lab)]

Does my hon. Friend agree that our backlog of casework and constituency problems will be added to with this huge load of additional legislation and bureaucracy that we have to try to understand, and that our case workers have to understand? Does he share my concern about whether the Home Office itself, as well as us MPs, will be fully educated on how the whole new system will work in the first place?

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[Vernon Coaker]

I agree absolutely. That is the point I am making to the Minister. By the way, I agree with the hon. Member for Lichfield about reciprocal arrangements. The Opposition Front-Bench spokesman made the same point, and the Government will no doubt be arguing the point with other EU countries. Irrespective of the rights and wrongs of the policy, however, the least that the public can expect is that it will be bureaucratically cohesive. My point and that of the House of Lords is this: how can it be when we have no idea about how the three months will be judged? Will it be guessed? Will the employer, the university, the college or somebody in the family have to say? I say honestly to the Minister that nobody has a clue and that she needs to have a better answer about how enforcement will take place.

Let me ask another point about the bureaucracy. How long will the process take if somebody thinks, after a couple of months, that they might need to stay? What happens if they go beyond the three months but they are applying for indefinite leave to remain? Does that stop the enforcement action? I am saying this because sometimes I contact the Home Office and it takes months to get a reply. Again, the issue is the bureaucracy. I am not saying whether the policy is right or wrong, but what will happen? Is the enforcement action automatically put on hold if somebody has applied and they go beyond the three months? Is the enforcement action automatically stopped? I hope that I have made sense.

The Minister has confirmed that the application is free, but how long will it take? It would be helpful if she explained to the Committee what will happen with respect to all that process. Can she explain what “enforcement” means? Is it gentle persuasion, or what? Enforcement sometimes means people going round and forcibly removing individuals. Is that what we expect to happen in the worst circumstances? Is it a possibility?

Let me move on from the three months. If somebody gets indefinite leave to remain, is that forever? Does indefinite leave mean that they can stay? If somebody then leaves the country—

[Caroline Nokes]

I want to make to the hon. Gentleman a really important point of clarification. He has repeatedly used the phrase “indefinite leave to remain”. That is not what we are discussing: we are discussing temporary leave to remain.

[Vernon Coaker]

So after the three months, somebody has temporary leave to remain. Then they go back—outside the country. The Minister, in the measure, extends the period from two years to five years, when that temporary leave presumably stays—the Minister will have to explain that, because there is confusion. The explanatory note talks about this, and the House of Lords Committee has written about it. In relation to the temporary arrangements, if the period for which somebody can be outside the country is extended from two years to five years, how will they prove that they have that entitlement if there is no stamp in their passport, or no document?

[Caroline Nokes]

It is important to make this distinction. The five years for which somebody can be outside the country does not relate to the European temporary leave to remain; it relates to the EU settled status scheme. Those are two quite separate things.

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[Vernon Coaker]

I take the point that the Minister has made, which is perfectly fair, but the point that I am trying to make—and probably have not made very well—is that I accept that this is under the EU settlement scheme, but the period for which somebody can be outside the country is extended from two years to five years. Again, it is the House of Lords asking this; it has written to the Government about it. The Minister needs to explain not only to this Committee, but to the House of Lords. The House of Lords is expressing concerns.

How will somebody who has been outside the country for four or five years, and then decides to come back, prove to the Home Office that, because the period is now five years, they have the right to return? What document is available that will demonstrate to the Home Office authorities that they have the right to come back into the country and remain here? That is the point that the House of Lords Committee makes. Again, it is wondering about the documentation.

This is the point that I am making to the Minister. In every area, whether we look at the EU settlement scheme or the temporary arrangements, the bureaucracy is unclear. It does not matter which part we are talking about—if the bureaucracy and documentation are not clear, we will be in a really difficult situation. Each and every one of us, including the Minister, will have individuals coming to our constituency surgery. We will be writing to the Minister, saying that we have real problems with this temporary leave because there is no way of providing proof; somebody is telling us that they have been here, but there is nothing to prove whether they have or they have not.

It is ludicrous to pass the order when I honestly believe that, bureaucratically, it cannot work. Why are we passing it? I will finish, because I am repeating myself.

This is ludicrous. We have no way of demonstrating whether somebody has been here for three months. The Minister cannot explain it, yet, according to the regulations we are passing, people will be chucked out with enforcement action. However, we will not know whether they have been here for three months, because there is no document in their passport to tell us, unless they put their hand up and say, “By the way, I have been here for three months—I need to go.” I say to the Minister, in all honesty, that we have to have greater clarity.

I have been in this place for a little while, as you know, Mr Austin. Regulations passed when they clearly have faults cause immense problems down the road. This is not about whether the policy is right or wrong; it does not stand up bureaucratically. It is a nonsense for us to pass it.

[The Chair]

Order. Before I call the next speaker, I am afraid that I will have to suspend the sitting for a couple of minutes.

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[Caroline Nokes]

The hon. Lady may be aware that as part of the future immigration system, I am consulting on specific issues, along with Home Office colleagues and officials across the whole United Kingdom. The 36-month temporary leave to remain is uppermost in the minds of organisations such as Universities UK, and representations were made about it in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee’s recent evidence sessions. Home Office officials and Ministers are very much alive to the issue.

The hon. Member for Manchester, Gorton mentioned the fee level for the European temporary leave to remain. He will be aware that we do not comment on leaks, but the announcement on fees will be made shortly. The European temporary leave to remain scheme is being developed, and would be delivered, using infrastructure already in place for the EU settlement scheme. In the event of a deal, we will not need the temporary leave to remain scheme; in the event of no deal, we would not expect the inflow of EEA citizens to be any greater than the number of people arriving during the implementation period between exit and 31 December 2020 in a deal scenario, who would otherwise have been eligible for the EU settlement scheme. We are therefore confident that we will have sufficient capacity to process applications.

Hon. Members asked about the EU settlement scheme, which is in its third public testing phase. I would like to give an update: there have now been more than 160,000 applications under the scheme, of which the vast majority have been settled within three days. We are pleased with the progress made, but of course we continue to keep it under very close observation.

[Vernon Coaker]

For the benefit of the Committee, that is 160,000 out of how many?

[Caroline Nokes]

The hon. Gentleman will be very well aware of the figure used: 3.5 million. I am sure that he cannot be unfamiliar with that figure, because we mention it a lot of the time.

As I said, the scheme is still in a testing phase. It is important to emphasise that it is still not fully open; if the draft order is approved, the scheme will open on 30 March and will then be free. I am sure that hon. Members will be relieved to hear that last week we laid before Parliament the statutory instrument that will enable us to make the scheme free and effect refunds to those who have already been through it. Individuals will not have to apply for refunds; they will be made automatically to the card originally used to pay the fee. In the relatively few instances in which the card has expired in the meantime, we will make provision to contact the relevant individuals and ensure that they are refunded.

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[Caroline Nokes]

I want to cover some more ground, because I am conscious that if I do not complete my comments, there will be a vote at 7.30 pm without my having responded to many of the points that have already been made.

The hon. Member for Central Ayrshire raised the issue of how individuals would know whether they had met the conditions to qualify for automatic leave. The draft order sets out the conditions that need to be met to qualify for automatic leave. They include a person being an EEA or Swiss national; holding an EEA or Swiss passport or national identity card; requiring leave to enter—that is, not having been previously resident in the UK before it leaves the European Union; and being entitled to apply for the EU settlement scheme.

A number of Members raised the issue of enforcement and how we would establish whether people had been here for more than three months. Those EEA and Swiss nationals who arrive after free movement has ended, in a no-deal scenario, should apply for European temporary leave to remain if they wish to stay longer. I am clear on the importance of clear communication, so that individuals understand their status. Upstream communications would seek to ensure that individuals are aware of the requirement to apply for European temporary leave to remain if they wish to stay longer than three months.

The Home Office is working closely with other Departments on communicating the immigration arrangements in a no-deal scenario to key sectors and stakeholders. That includes information on gov.uk to reassure inbound travellers, which went live on the 4th of this month. In addition, preparations are under way for a comprehensive communications campaign in two weeks. As I mentioned, the EU settled status scheme has so far received well over 160,000 applications. I have referred to the SI that will ensure that the scheme fee is lifted and that refunds will be possible.

A number of Members mentioned Windrush; the scheme’s design anticipates many of the Windrush issues. EEA nationals will have plenty of time to make an application. There are dedicated caseworking teams. Support is available for the vulnerable on the phone, in local libraries, in a dedicated call centre, and even in people’s homes. The Home Office has made available £9 million of grants to organisations working with the vulnerable, to enable them to assist those people in the process.

It is important that we provide clear communications on the rights of those in the UK before the UK leaves the EU, and on the requirements for those who arrive after the UK leaves. If EU citizens in the UK prior to exit fail to apply under the settled status scheme, they will not be here actively unlawfully in the same way as clandestine entrants or overstayers. We will give those who have reasonable grounds for missing the deadlines further opportunities to apply.

There was mention of entry via Ireland. We do not operate routine immigration controls on journeys from within the common travel area to the UK. However, EEA and Swiss citizens entering from Ireland will benefit from the leave by order provisions. Those entering from the Crown dependencies will already have leave granted by the islands, recognised by the UK under our integrated legal framework.

The hon. Members for Central Ayrshire and for Glasgow Central raised the subject of women who might be in abusive relationships. We accept a wide range of documents to evidence five years of residence, and dedicated casework teams will help applicants to prove their residence. As I said, we are providing £9 million of funding to help those with vulnerabilities, which is important to ensure they can access the support services we have targeted specifically at them.

I was asked in which circumstances leave would be cancelled at the border. The automatic leave to enter provision will ensure that we can continue to smooth the passage of legitimate travellers through the border, while maintaining the security of the borders. The ability to cancel leave is therefore a key element in making sure we maintain the correct balance.

A question was raised about whether the EU settled status scheme was compliant with the requirements of the general data protection regulation. We take our data protection and security responsibility very seriously. All our data activity must be compliant with the data protection legislation. We want to reassure applicants that we do not allow access to their information by any unauthorised person or body, and can share data only where it is absolutely necessary and where we have a legal basis for doing so.

There are some good examples of where the ability to share data has been of benefit, not least in the settled status scheme’s ability to share information with HMRC and the Department for Work and Pensions; that has enabled a significant majority of those going through the process to have achieved settled status already, without having to provide any additional information. The hon. Member for Gedling spoke about the complexity of the immigration rules, and I have some sympathy with his view. He may not yet be aware of the Law Commission’s consultation on the immigration rules, which is specifically designed to make them simpler and more straightforward, but I urge him and all hon. Members to participate in it.

[Vernon Coaker]

I wish them luck!

[Caroline Nokes]

The hon. Gentleman wishes them luck; on my first day as Immigration Minister, I made the point that the more than 1,000 pages of immigration guidance and rules was excessive, and asked what steps we could take to simplify them. I very much hope that this process with the Law Commission and, indeed, the future borders and immigration system will be simpler and more straightforward than our current system, which of course has evolved over many decades.

Questions were raised about how long the European temporary leave to remain applications would take. As I have said, we intend to use the architecture of the EU settled status scheme and for the applications to be similarly streamlined. Some 75% of applicants in the most recent phase of the EU settled status scheme received their decision within three days.

There were also questions raised about the automatic leave provisions allowing individuals to travel into and out of the UK, and to be granted leave to enter for three months at a time on each arrival. This arrangement is absolutely intended to avoid a cliff edge and to smooth the passage of legitimate travellers across the border after the end of free movement. My hon. Friend the Member for Poole stressed the importance of avoiding cliff edges and allowing ourselves time to transition to the new borders and immigration system, which of course will not be introduced until January 2021.

The arrangements are, as was intended, similar to the status quo under EU law. EU nationals can live here for three months, but their right to stay in the UK for longer than three months is conditional; they must be a worker, a student or self-sufficient. Temporary leave to remain, just like settled status, will have a digital status, so people will be able to provide evidence of their right to be here. Non-EEA dependants will have biometric immigration cards.

The hon. Member for Glasgow Central mentioned allowing EEA nationals to travel into and out of the UK frequently. That is absolutely our intention. We want them to be able to travel smoothly and easily. Some of her other comments related more broadly to the immigration White Paper, which she will be aware we are engaging on over the course of this year, and not necessarily to the statutory instrument before us.