Asylum System

Lord Rosser Excerpts

Monday 28th September 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

I was very pleased to meet my honourable friend Kevin Foster MP and the right reverend Prelate the Bishop of Durham last week to establish how people, whether they are fleeing a country because of persecution or conflict, can apply for jobs. Many of these people do not want to come here to claim benefits; they want to work. We have been discussing that with the right reverend Prelate, and those discussions will be ongoing.

[Lord Rosser (Lab) [V]]

The UK requires asylum seekers who wish to work and contribute to our economy to wait up to 12 months, pending their application being processed. The application process surely needs to be speeded up. The Government have said that over the past approximately 18 months, they have increased the number of decision-makers from about 350 to more than 630. By how much has the average time taken to consider asylum cases been shortened since the beginning of 2019, and what is now the target figure for the average time taken to determine asylum cases?

[Baroness Williams of Trafford (Con)]

The noble Lord will appreciate that the past nine months have been unprecedented in terms of being able efficiently to deliver certain things, including the outcome of asylum cases. I do not have the exact figure to hand—I can get it for him—but I would imagine that that process has slowed, given the Covid-19 restrictions we have all been living under.

Immigration (Health Charge) (Amendment) Order 2020

Lord Rosser Excerpts

Wednesday 23rd September 2020 Lords Chamber

Moved by

[Lord Rosser]

At the end, insert “but this House regrets that the Order increases the immigration health charge; and fails to exempt key workers outside the scope of the Health and Care Visa, and National Health Service and social care staff already working on the frontline in the United Kingdom during the COVID-19 pandemic, from being required to pay the charge upfront.”

[Lord Rosser (Lab) [V]]

My Lords, I thank the Minister for her explanation of the content and purpose of this SI, which, as she says, increases the amount of the immigration health charge to £624 for adults and £470 where the applicant is aged under 18 at the date of application, or is a student or dependant of a student. The order also provides an exemption from the charge for migrants who apply for the new tier 2 general health and care visa.

The Immigration (Health Charge) Order 2015 was made under the Immigration Act 2014, and required a person who applies for entry clearance to the United Kingdom for a limited period of more than six months, or for limited leave to remain in the United Kingdom, to pay an immigration health charge. The amount of the charge was set at £200, apart from for students and dependants of students, for whom it was £150. The charge was doubled by the Immigration (Health Charge) (Amendment) Order 2018 to £400 and £300 respectively, so that for a family of four staying here for two years the cost would be £3,200.

The immigration health charge is currently payable by non-EEA nationals and enables them to access NHS services free of charge apart from those charges that UK residents must pay. It is, though, a matter of regret that the Government find it necessary to increase the immigration health charge at the present time, when we are in a public health crisis and access to healthcare is essential. It is an increase that will apply to those already in the United Kingdom. Yesterday’s announcement of a tightening of restrictions, to try to contain a second wave of Covid-19, simply emphasised how serious the situation remains and how it is likely to continue for many months, well into next year. Surely, this is not the moment to be increasing the immigration health charge on the argument that now, in the middle of a public health pandemic, is the very time for it to reflect the full cost of use.

It is a time when many people affected may well be struggling financially in vulnerable and precarious work and may also be facing the prospect of unemployment. These are people who could also be key workers who have paid into the system and worked hard, working on farms or in shops for example. Increasing the costs substantially for those already here who might be changing jobs or extending their stay, which means paying the fees again whether or not they will be reimbursed, is not what we should be doing now. This is surely not the time to be increasing the immigration healthcare charge by what appears to be over 50%.

We support the intention in the SI to exempt from the fees those who plan to come to the UK on the new health and care visa. However, that simply highlights the fact that this SI does not also offer automatic exemption from the immigration health surcharge to migrants currently working in health and social care. These migrant workers still have to pay the charge, with the promise of a refund at some date and within a timescale at present unspecified. They have put their own lives on the line, and continue to do so, to help us combat coronavirus. They have displayed the truly British qualities of commitment and stepping up to the mark in a time of need and crisis. In the care sector in particular, these key workers are on rates of pay that do not reflect the significant contribution that they make and the value of the work that they do—a reality that the Government appear to have just woken up to.

All those working in health and social care should be exempt from the immigration healthcare charge and should not have to pay the fee. The Government will issue refunds to those who are not automatically exempt under the tier 2 visa—a sizeable number of social care workers. But what will be the cost of administering these refunds? How will the Government ensure that all those to whom they should be paid receive such refunds? Why does it have to be done in this way? Why do we have to have refunds at all, rather than exemptions, when those affected will still have to find the money initially to pay the immigration health charge?

Last May, the Prime Minister pledged to abolish the immigration health charge for health and care staff as soon as possible, yet the reality for many migrant workers in health and social care is that they will have to continue to pay not just the existing fee but an increased fee if they move jobs and their sponsor changes, or if their period of time in this country is extended. Owing to their immigration status, some have no recourse to public funds so are not eligible for any state aid, such as free school meals or child benefit, yet will still have to pay the immigration health charge up front and face the financial pressure that that will involve.

The Government told us at the start of the pandemic that we were all in this together, a sentiment repeated by the Prime Minister in his broadcast last night. It is clear from this SI, though, that the Government’s togetherness does not appear to extend to many migrant workers who have shown true grit and determination in the invaluable, and at times life-saving, work that they have done and continue to do in our country during the pandemic. I beg to move.

--- Later in debate ---

[Lord Rosser (Lab)]

I thank the Minister for her reply and thank all noble Lords who have contributed to this debate. I will be brief. I am not sure that I have really had an answer to my question. Bearing in mind that some people coming into the country under the tier 2 visa will get automatic exemption, why can that not apply to all those in the health and care sector? I asked why we had to have refunds and why there could not be an exemption for all, but I did not get a very clear answer.

I also raised the specific issue of why it is necessary to make a dramatic increase in the healthcare charge now, when we are in the middle of a pandemic? A lot of those affected will be financially very stretched, and in certain circumstances will potentially have to pay the increase. I have not had an answer as to why that increase must be brought into effect now. The Minister quoted a manifesto commitment, but manifesto commitments do not all have to be implemented immediately. I do not suppose that when the manifesto was written it was envisaged that we would be in the middle of a pandemic crisis at this time. I have not really had an answer as to why it is necessary to make these substantial increases now.

However, I will leave it at that. I have made our two points, which are reflected in the amendment. I thank the noble Lord, Lord Paddick, for indicating that if I pushed it to a vote, I would have the support of the Liberal Democrats. I do not intent to do so. It has been an interesting debate and I have made clear the basis of our regrets about this SI. I am very grateful to noble Lords for their contributions and thank the Minister for her response. I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Brexit: Refugee Protection and Asylum Policy (EUC Report)

Lord Rosser Excerpts

Tuesday 22nd September 2020 Grand Committee

[Lord Rosser (Lab) [V]]

It is hardly satisfactory to be debating an EU Committee report nearly 12 months after it was published. While I am more than aware that there have been major difficulties this year, equally, I can recall that there were times this summer when this House did not have a full day’s business. Nevertheless, I congratulate the noble Lord, Lord Jay of Ewelme, and the former Home Affairs Sub-Committee on their measured and informative report, which seeks to bring both calmness of thought and the facts to bear on an issue that is all too often the subject of exaggeration and excessive emotion.

In the light of the Government revoking the Dublin III regulation at the end of the transition period and not keeping it as retained EU law, the committee considered what the impact would be of the UK ceasing to participate in the Dublin system after Brexit. It concluded that it

“would result in the loss of a safe, legal route for the reunification of separated refugee families in Europe. Vulnerable unaccompanied children would find their family reunion rights curtailed, as Dublin offers them the chance to be reunited with a broader range of family members than under current UK Immigration Rules.”

The report also stated:

“After Brexit, the UK is also likely to find it more difficult to enforce the principle that people in need of protection should claim asylum in the first safe country that they reach. Without access to the Eurodac database, it is unclear how the UK would be able to identify asylum applicants who have already been registered in another European country. And a new returns agreement (or agreements) would be needed for the UK to be able to send asylum seekers back to their first point of entry to the EU.”


A further issue raised by the committee was the potential impact of Brexit on our bilateral relationships with EU member states and, in particular, on the arrangements with France and Belgium, which allow us to check passengers and freight en route to the UK before they begin their journey, and on the co-operation between UK, French and Belgian border agencies to address the issue of migrants attempting to cross the channel in small boats. The committee recommended:

“Future UK-EU asylum cooperation should take the Dublin System as its starting point and would ideally be based on continued UK access to the Eurodac database … All routes to family reunion available under the Dublin System should be maintained”.


In their response to the committee in March this year, the Government said that

“the UK does not intend to replicate the Dublin Regulation”

although they were seeking, as has been said, a close partnership with the EU on asylum and illegal immigration, as well as a new agreement with the EU for the family reunion of unaccompanied asylum-seeking children in the EU with family members in the UK. However, the Government’s European Union (Withdrawal Agreement) Act 2020 removed the previous legal obligation to seek to negotiate such an agreement.

The EU Committee has since raised further questions in a letter last May arising from the Government’s response to its report in March of this year. A feature of that letter was the number of occasions in which it was stated that, despite waiting five months for the Government’s response to the report we are now debating, a number of recommendations or specific points had not been addressed. Can the Government explain in their reply to this debate why that happened and whether the Home Office response to a report is seen and cleared by Ministers before it is sent?

Can the Government also say why the response to the further letter from the EU Committee was apparently received only some months later, earlier this afternoon? I have not seen it but, subject to what the Government may say in response, the last-minute reply just before this debate tends to sum up their negative attitude to the role of Parliament. I noted with interest the comments of the noble Lord, Lord Ricketts, on Ministers’ non-attendance at committees.

It would be helpful if the Government in their reply to this debate could give their responses to the questions raised in the follow-up letter of May this year, some of which I want to repeat so that the answers are on the record in Hansard. The committee wanted to know whether the Government would seek to negotiate an interim agreement to support refugee family reunion, as urged in its report, in the event of no deal on asylum and immigration matters being reached by the end of the transition period. Are the Government seeking to maintain all routes to family reunion currently available under the Dublin system as part of the

“ambitious new partnership on asylum and immigration”

they were seeking?

In its report, the committee concluded that a future agreement with the EU on asylum and immigration should uphold a range of minimum standards for refugee protection. Are the Government committed to including such minimum standards in a future agreement? If so, what minimum standards are the Government seeking? How would the parties’ adherence to these minimum standards be supervised? How and by whom would they be enforced?

The EU committee report referred to the EU Asylum, Migration and Integration Fund and said that the UK had been the largest recipient of funding, having been allocated—I seem to remember—€370 million to spend on national priorities, such as improving Home Offices processes and the returns programme, and in support of refugee resettlement programmes and integration measures. Can the Government in their reply to this debate today say whether they plan to replace the support provided by the EU Asylum, Migration and Integration Fund? Can the Government, either today or subsequently, say how much funding the UK has received from the EU Asylum, Migration and Integration Fund over the past 10 years, with a breakdown of how, and on what, it has been spent?

The EU committee supported the Government’s intention to establish a single global refugee resettlement programme this year by consolidating existing schemes. My noble friend Lord Dubs and the noble Lord, Lord Kerr of Kinlochard, both referred to this. Can the Government indicate, if they have not already done this, when they will be providing a detailed summary to local authorities of how the new global resettlement scheme will operate and what that information will include? Can the Government also say in their response what they think were the factors that led many local authorities not to participate in the previous resettlement schemes and how they intend to encourage more authorities to participate in the global resettlement scheme?

The report we are considering urged the Government to offer the same package of financial and other integration support to all recognised refugees in the UK, irrespective of whether they arrived through a resettlement programme or as an asylum seeker. Can the Government say whether they will ensure that all recognised refugees in the UK receive equality of support, no matter how they arrive in this country?

On agreements with third countries, on readmission or co-operation to address the causes of migration, the committee recommended that all such agreements should be subject to formal human rights assessments. Can the Government say whether they will be doing this and, if so, which human rights standards will be applied? Will the Government’s assessment be subject to independent verification and, if so, by which body?

A number of issues and points have been raised by noble Lords on refugee protection and asylum policy over the past two hours or so. I hope government answers will now be forthcoming because we are approaching the deadline day for determining our future immigration policy, including on this issue, with some rapidity and even more uncertainty. It looks as though the role of Parliament in influencing and determining that policy will be as minimal as the Government can make it because future policy depends on the outcome of negotiations with the EU, negotiations that will be concluded, at best, very late in the day, and over which Parliament has little or no meaningful say or influence, with the essential specifics of our future immigration policy, including refugee protection and asylum policy, being laid down in secondary legislation, which cannot be amended, rather than in primary legislation. Quite sweeping powers are being grabbed by the Government, which they can then exercise with little meaningful challenge or direct accountability. Specific answers from the Government to the many questions and points raised in this debate today would therefore be both welcome and much needed. I hope I am wrong in suspecting that those answers will also prove elusive.

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

Lord Rosser Excerpts

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

[Lord Bruce of Bennachie (LD) [V]]

My Lords, I commend those noble Lords who have followed this Bill in detail and identified so many anomalies and injustices that may arise with the ending of free movement. I have intervened to give them support and to identify amendments in which I have a particular interest.

My brief intervention here is in support of Amendment 64 which, like a number of others, highlights the hardship and injustice that may arise not by deliberate intent but because, when a freedom that has been available for so long is terminated, something that is currently not an issue becomes one.

In Scotland, we have leading centres of medical excellence. In my home region, in Aberdeen, we have the oldest teaching hospital in the English-speaking world, which has pioneered a number of innovations including the MRI scanner. Medical centres of renown exist in Dundee, Edinburgh and Glasgow.

Under the present rules, treatment can be provided to EEA nationals without recourse to a visa. It would surely be inhumane if, under the terms of this amendment, a visa were to be denied in future. Similarly, it is surely right on compassionate grounds if an orphaned child can best be placed in foster care in the UK—for example, where a sibling is already placed or some other particular circumstances apply. If the child is the dependant of someone living in the UK who has the right to remain, it is surely absolutely right that they can be united with them in the UK. This should be sufficient grounds for the automatic right to a visa.

We have seen cases in which UK citizens have availed themselves of medical treatment elsewhere in the EU, and previous contributions have discussed treatment being provided to people from elsewhere, so it is to be hoped that accepting this amendment would help to ensure that EU countries provide similar reciprocal arrangements.

So much will change next year, sadly, in my view, to the detriment of UK citizens in most cases, and also inflicting potential hardship on our fellow EU citizens whose access to the UK has not been restricted hitherto. This amendment is a simple example of how we can modify our visa arrangements post Brexit on compassionate and humanitarian grounds. I hope it will be accepted in that spirit.

[Lord Rosser (Lab)]

My Lords, in Committee in the Commons, the Government stated that they were

“committed to the principle of family reunion and supporting vulnerable children”

and that they

“recognise that families can become separated because of … conflict and persecution”,

including through

“the speed and manner in which people are often forced to flee their country.” —[Official Report, Commons, 30/6/20; col. 263.]

Eligibility for refugee family reunion is covered in the UK’s Immigration Rules, which provide that refugees in the UK can be joined, via family reunion, by their spouse or partner and their dependent children under the age of 18.

Amendment 62 increases the family members whom EEA and Swiss nationals, who have exercised a right ended by Clause 1 of this Bill and are refugees in the UK, are allowed to sponsor to join them. In reality, the existing UK policy leaves some of the most vulnerable children separated from their parents at a time when they need their families more than ever—an issue that Amendment 62 seeks to address.

Amendment 64, to which my noble friend Lord Dubs’s name is attached, seeks to remedy this by requiring the Secretary of State to make provision for a visa to enter or remain in the UK on humanitarian grounds. This would apply to an EEA or Swiss national—that is done to keep the amendment in scope of the Bill—who requires medical treatment in the UK that is not available where they are resident; who is an orphan child, and a foster family or other foster care is available to the child in the UK and leave to enter or remain in the UK would be in the child’s best interests; or who is a dependent child of someone who has been granted leave to enter or remain in the UK. In their reply, perhaps the Government could say what they estimate would be the number of people entering the UK each year under the terms of such a humanitarian visa, compared with the latest annual net migration figure, for example.

The third amendment in this group provides that a person should be granted leave to enter or remain in the UK if they are an EEA or Swiss national and either have a child with a British citizen or person who has leave to remain in the UK, or are a child of a British citizen or person who has leave to remain in the UK.

I conclude by saying only that if the Government are

“committed to the principle of family reunion and supporting vulnerable children”,—[Official Report, Commons, 30/6/20; col. 263.]

as they said in the Commons when this Bill was being discussed, surely they can accept one or more of the amendments in this group.

--- Later in debate ---

Moved by

[Lord Rosser]

63: After Clause 4, insert the following new Clause—
“Duty to raise awareness of citizenship rights
(1) The Secretary of State must take steps to raise awareness of rights under the British Nationality Act 1981 to register as a British citizen to persons to whom subsection (2) applies.(2) This section applies to any person who has lost rights under section 1 and Schedule 1.(3) Within six months of the day on which this Act is passed, the Secretary of State must publish a report detailing the steps taken to raise awareness of rights under subsection (1), and lay it before Parliament.”

[Lord Rosser (Lab)]

Amendment 63 would lay a duty on the Secretary of State to raise awareness of people’s rights to register as a British citizen under the British Nationality Act 1981, with the people concerned being those who lose rights under Clause 1 and Schedule 1 of the Bill. The amendment would also require the Secretary of State to publish and lay before Parliament a report within six months of this Bill becoming an Act, detailing the action taken to raise awareness of rights to register as a British citizen.

As I understand it, before the 1981 Act anyone born in the UK was born British. The 1981 Act ended that and laid down who is and who is not a British citizen, and who is entitled to citizenship. Someone born in the UK now is only a British citizen if one of their parents is a British citizen or settled in the UK. Apart from the Home Secretary having a general power to register any child as a British citizen, all registration under the British Nationality Act 1981 is by entitlement. A child or an adult who satisfies the criteria for registration is entitled to British citizenship. The 1981 Act does not give the Home Secretary the decision of whether someone is entitled to British citizenship. This is different from naturalisation as a British citizen, which is only at the discretion of the Home Secretary, and only adults can be naturalised.

The EU settlement scheme, which provides for pre-settled and settled status, raises an issue. Some of those about to lose EU free movement rights in the UK will have rights to register as British citizens that they have not yet exercised, and they would quite probably wish to do so as people of EEA or Swiss nationality or parentage in the UK if the alternative was settled status. Citizenship means much more than settled status, and there being no available evidence of citizenship can have significant adverse consequences if changes are subsequently made to immigration policies, as the Windrush generation have found out.

In the shadow of the Windrush scandal, the Government should not be casual in their attitude to people’s right of access to citizenship. They should be working proactively to ensure that those, including children, who have the right to register as British citizens, with the same rights as all of us, are aware of that right and can access it. With the end of free movement and the focus on the EU settlement scheme, there is a risk of those who have the right to access British citizenship and register as British citizens ending up with at best an immigration status. This amendment seeks to minimise the risk of this happening.

In their response, can the Government update the Committee on what work is being done by the Home Secretary and the Home Office to proactively raise awareness and encourage and assist those who have the right to be British citizens to enjoy those rights? If the answer is that no such work is being undertaken on this citizenship issue, can the Government explain why not? I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I shall speak to Amendment 67 in my name and those of other noble Lords who will be speaking. I am grateful for their support. I express support for Amendment 63, moved so well by my noble friend Lord Rosser. Once again, I am grateful to the Project for the Registration of Children as British Citizens, of which I am a patron, and to Amnesty International UK for its briefing.

Amendment 67 would place a duty on the Secretary of State to encourage, promote and facilitate awareness and the exercising of rights to British citizenship among EEA and Swiss nationals. It would also introduce a positive duty to confirm information known to the Home Office that is relevant to establishing a person’s right to citizenship. I am told that at present such information is all too often not forthcoming—a particular problem for many looked-after children—but there appears to be a greater readiness to check and act on such information when it confirms that there is no entitlement to citizenship.

The intention of the amendment is to shift the Home Office’s mindset, in the spirit of Wendy Williams’s Windrush report. That mindset resulted in the active discouragement of members of the Windrush generation from exercising their rights to British citizenship. As we have heard, there are real fears that the lessons of that review are not being learned when it comes to children of EEA and Swiss citizens who were born in the UK or who have grown up here from an early age. Research by the European Children’s Rights Unit, funded by the Home Office, indicates that Roma children, who are an especially vulnerable group, may be particularly at risk.

More generally, PRCBC gives the example of Matteo, who was born in the UK to Italian parents. He has lived here all his life apart from occasional visits to Italy and a gap year in continental Europe. When he became an adult, he discovered to his great distress that he was not regarded as a British citizen when he was refused inclusion on the electoral register for the general election and was twice refused a British passport. Before contacting PRCBC, he had been given poor legal advice that he should apply for settled status under the EU settlement scheme and be naturalised as a British citizen at a future date. Having established what his situation was, PRCBC was able to help him register his entitlement to British citizenship under the 1981 Act. No one had previously advised him of this right, and he had suffered serious mental distress as a result. A young man in this situation should not have to rely on the chance of finding his way into an organisation like that. How many are not finding their way to such organisations?

Can the Minister explain what exactly the Home Office is doing to proactively encourage the exercise of the right to register citizenship, both directly and through local authorities, to ensure that children and young people such as Matteo are not missing out on their chance of registering as citizens? What steps is it now taking to ensure that no one who is entitled to register as a British citizen is wrongly channelled through the EUSS as an immigrant without being informed of their existing right to register as a citizen? Are any specific steps being taken to ensure that Roma children have the information and support they need? Also, can she give us some idea of the number of children overall likely to be affected?

These are important questions. The right to British citizenship of an unknown number of children is at stake. I and others emphasised the importance of citizenship in moving an earlier amendment, and there was a lot of support in the Committee for citizenship’s importance. The answer to these questions will give us some idea of the importance the Home Office attaches to it, and how far it is genuinely willing to shift its mindset in the wake of the Windrush scandal and the Lessons Learned report on it. In that report, Wendy Williams wrote of the need for “deep cultural reform”. The response to these amendments will serve as an indicator of whether the Home Office is genuinely committed to such reform.

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[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.

Amendment 63 withdrawn.

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[Baroness Hamwee (LD) [V]]

To follow the previous speech, this may be the first time we are taking this particular car round the track but I do not think it will be the last, because this amendment is aiming

“to clarify the rights … available to EEA citizens during the ‘grace period’ under”

the recently published SI. It is about the period to the end of June 2021. I say it aims to clarify the issues but it is more about putting some issues on the table. The Minister will be able to say that the amendment is not necessary because we have already done it. I thank her or possibly him—I am peering at a computer screen—for that and for what I saw being called the “bounty” of the recently published draft SIs. I think that was a reference to their length and complexity.

The instrument in question is the draft citizens’ rights (application deadline and temporary protection) (EU exit) regulations 2020. However, I am afraid that the debate now will not be the end of it. After this debate, as well as before it, stakeholders will be grappling with the detail of it and the other published SIs. I do not regard myself as having the knowledge required to appreciate the significance of the modifications to all the provisions listed across the 14 pages of this instrument.

My first question is about the status of the draft, which has been referred to throughout as an “illustrative draft”. What does illustrative mean? Is this simply because draft statutory instruments have a formal status, while this publication has not reached that status?

Exactly who is protected by the grace period provisions? Is it only those exercising treaty rights by the end of 2020, while, for instance, people who are self-sufficient and without comprehensive sickness insurance—what might better be called in this country private health insurance—are not covered? When the 2020 withdrawal Act was going through Parliament, there were clear assurances that everyone eligible for status via the EU settled status scheme would be protected during the grace period. The Minister will appreciate the importance of the issue: protection is not to be withdrawn from those currently eligible otherwise than through treaty rights who have not applied by the end of the year. In previous debates, I raised the importance of information being not just available but actively provided to those who are affected, in the context of who will be applying after next June. If this SI is to restrict applications, the matter is really very urgent.

The Minister, Kevin Foster, said that the regulations would be

“debated and made in good time prior to their entry into force at the end of the transition period.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 16/6/20; col. 191.]

I am sure noble Lords will understand that what is “in good time” for the Home Office could be very last minute for the individuals affected.

Will the Minister comment on one of the draft illustrative regulations? Regulation 7 in Schedule 1 to the 2016 regulations, which this modifies, acknowledges the discretion of member states

“acting within parameters set by the EU Treaties”

in taking a decision conducive to the public good. This discretion will become:

“acting within parameters set by the law, to define its own standards of public policy and public security, for purposes tailored to its individual context from time to time.”

I will not go down the route of saying that this is quite topical, given both the political and politico-legal debate that is going on, but I am sure the Minister will understand that there is a worry about moving the goalposts.

Will the Minister agree to meet parliamentarians if necessary—I understand there is a similar concern in the Commons—and for officials to be able to meet stakeholders, and the legal experts who are advising them, who are considering this draft and the other draft published at the same time? They are concerned, and they need the time. I ask that knowing that there is the opportunity for the Government to withdraw a published draft and reissue it, but it is always much easier, because of how human beings behave—they do not like to be thought to be backing down, and so on—to have the conversations before the final form is published, when it will be that much more difficult to withdraw.

My amendment provides the opportunity to make those requests for what I am sure could be productive discussions with people who are not in the Chamber at the moment and who will have other points they could usefully make. I beg to move.

[Lord Rosser (Lab)]

We had a short debate on this issue when we debated Amendment 52, and I raised one or two questions about the draft SI, which, as the noble Baroness, Lady Hamwee, said, is called the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. One of the questions I raised, to which I do not think I had an answer, related to Regulation 13, which 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”.


I asked in what situation the Government expect that people would have to prove their ongoing status; how they envisage people will do this, in the sense of what documentation they might need, for example; and, crucially, what support there would be for a person who found themselves in this situation and who might well in fact be perfectly lawfully resident in the United Kingdom.

I share the view that the noble Baroness, Lady Hamwee, expressed, that we need an opportunity for discussion of the provisions of the draft SI, and that it is a fairly complex process. At this stage, I have two further questions. First, are there any EEA citizens, and their families, resident in the UK by the end of the transition period whose full existing rights are not going to be protected during the grace period through secondary legislation made under the European Union (Withdrawal Agreement) Act 2020? Secondly, will the Minister spell out precisely whose full existing rights are protected by the draft SI?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for speaking to her Amendment 80. Its purpose, as she said, is to require the Government to publish draft statutory instruments protecting the rights of EEA citizens who are eligible to apply to the EU settlement scheme but have not done so by the end of the transition period. It concerns, as she said, the statutory instrument that will be made under Section 7 of the EU (Withdrawal Agreement) Act 2020. As noble Lords are aware, and as the noble Baroness mentioned, my noble friend Lady Williams of Trafford wrote to all noble Lords on 4 September, sharing a copy of this draft statutory instrument together with a copy of the draft regulations to be made under Clause 4 of this Bill.

The noble Baroness, Lady Hamwee, asked about the nature of the use of the word “illustrative”. My understanding is that it is used to differentiate from “Draft” with a capital D, which has a formal meaning—so yes, they are illustrative. In making these draft documents available, the Government’s intention is to support your Lordships’ House in its consideration of the Bill. They are also made available to Members in another place and published in the Libraries of both Houses.

The instrument will set the deadline for applications to the EU settlement scheme as 30 June 2021. It will also save relevant existing rights, in relation to residency and access to benefits and services for EEA citizens and their eligible family members who make an application by 30 June 2021, until it is finally determined. This includes pending the outcome of an appeal against any decision to refuse status under the EU settlement scheme. This means that if somebody has not yet applied or been granted status under the EU settlement scheme by the end of the transition period, they can continue to work and live in the UK as they do now, provided they apply by 30 June 2021. The Government will shortly lay this statutory instrument, which will be subject to debate and approval by Parliament and will need to come into force at the end of the transition period.

The noble Baroness, Lady Hamwee, asked about CSI. The grace period statutory instrument does not change the eligibility criteria for the EU settlement scheme and those criteria do not include CSI. I can confirm that the Government are not changing the requirements for applications to the EU settlement scheme. The grace period SI maintains CSI as a requirement for lawful residence during the grace period for a student or self-sufficient person under the saved EEA regulations, as is consistent with EU law.

The noble Baroness asked a question on a specific draft statutory instrument. In the interests of brevity and accuracy, I shall write to her about that, as I will on any other questions I have not covered. I am certainly happy to give an undertaking to meet parliamentarians and those who are interested in this issue, so that we can look at it further.

The noble Lord, Lord Rosser, asked what documentation people might need. During the grace period, EEA citizens will be able to give evidence of their rights to work and rent property by showing their passport or identity card. If EEA citizens apply for benefits during the grace period, they may need to demonstrate that they were also lawfully resident under the EEA regulations at the end of the transition period, for example that they were employed, which they might demonstrate by providing a wage slip or a letter from their employer. That is a requirement that they must meet now.

As I said, I am happy to write with further answers on the questions that I have not covered but I hope that this gives the noble Baroness the reassurance that she needs to withdraw her 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.

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

Lord Rosser Excerpts

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

[Lord Judd (Lab) [V]]

My Lords, Amendment 42 seeks to repeal the right-to-rent scheme introduced by Chapter 1 of Part 3 of the 2014 Act. That chapter, coupled with amendments made to it by the Immigration Act 2016 and amendments made there to the Housing Act 1988, requires landlords and their agents to refuse accommodation to people who require, but do not have, permission to be in the UK. Landlords and agents may indeed face criminal sanction if providing accommodation in these circumstances.

As Amnesty firmly argued in its excellent brief, the impact of this regime is more widely harmful for people of colour. It essentially promotes homelessness and race discrimination—for example, because it becomes safer for landlords to avoid providing accommodation to people who are not white, do not have recognisably British accents and have non-Anglo-Saxon-sounding names.

Amendment 50 essentially seeks the repeal of other provisions of Part 3 of the Immigration Act 2014, which provides for an immigration health charge and restrictions on who may open a bank account or obtain a driving licence. It is particularly important to emphasise the need for a repeal of the immigration health charge. As Amnesty again forcefully argues, it is nothing more than a tax upon people coming to the UK to work, study or join family—people who are already taxed by immigration fees often set far above the administrative cost, over and above the taxes that they, like others, pay by reason of their living and working in this country.

In the sad legislation before us, we need to take these points very seriously indeed.

[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.

--- Later in debate ---

[Lord Oates (LD)]

My Lords, I want to address my remarks to Amendments 43 and 74 in the names of my noble friends. As my noble friend Lady Ludford has so eloquently outlined, the exemption from data protection for migrants is unjustifiable. Indeed, as she said, the suggestion that we might even withdraw from the European Convention on Human Rights only adds to the alarm that we should feel about that.

This issue goes back some way, as my noble friend Lady Ludford said. During the passage of the Data Protection Bill through Parliament, my noble friend Lady Hamwee raised this issue and sought to amend the Bill, sadly unsuccessfully at that time. She asked the Government to justify the exemption, but from my reading of Hansard, they either could not or would not. She also asked for reassurance from the Minister —and I believe it was the same Minister, the noble Baroness—but, sadly, she did not seem to get much. In fact, the Minister told the House that a decision on whether to apply the exemption could be exercised not only by the Home Office but by contractors who worked for the Home Office. She said that it would apply not only to migrants but to British citizens who supported the applications of migrants. The one piece of assurance that the Minister gave was that the exemption would be used in only a very small number of cases. She was quite explicit about that, so I hope that in her reply, the Minister will tell us how many times the exemption has been applied and, if not, whether she will undertake to write to us.

The truth is that the exemption gives huge discretion to the Home Office and its contractors to determine when access to data can be denied. The Government say that it would not be abused. That might be fine if we had not had the events of Windrush, which my noble friend Lord Dholakia referred to, and if we really felt that we could trust the Home Office and its contractors in this era of the hostile environment. However, in these circumstances it is very hard to do so. We have no way of knowing how the exemption is being applied, unless the Minister is able to tell us a bit more about that. Therefore, this is a matter of significant concern to us. As my noble friends have noted, we are seeking to remove the exemption from EEA nationals. I hope that we will not hear from the Minister that that is in some way discriminatory, as we want it removed from everybody.

Finally, and briefly, on Amendment 74, as my noble friend Lady Ludford said, we really want to hear an assurance from the Minister on this matter that will appear in Hansard.

[Lord Rosser (Lab)]

As we know, the Data Protection Act 2018 provides for an exemption from some general data protection provisions where personal data is processed for the maintenance of effective immigration control. Of course, that allows an entity that processes data for immigration control purposes, such as the Home Office, to set aside a person’s data protection rights in a range of circumstances. It can also prevent people involved in immigration cases being able to request access to the data that the Home Office holds on them, and that could affect EEA or Swiss nationals applying for a new immigration status in the UK after Brexit.

As has been said, Amendment 43 would preclude the exemption from applying where the person in question is an EEA or Swiss national. EEA and Swiss nationals will become subject to this exemption as a result of our departure from the EU.

Amendment 72 would ensure that personal data belonging to an EEA or Swiss national resident in the UK before the Act that has been gathered through their use of public services cannot then be shared and used for the purposes of immigration enforcement. The relevant public services include primary and secondary education, and primary and secondary healthcare services, as well as where a person has contacted law enforcement to report a crime.

Amendment 74 would provide that a third party—for example, a landlord—given access to check a person’s settled status for specific purposes may not be allowed to use that access or information for any other purposes.

The issue is that there have been reports and evidence of data sharing as part of the Government’s rebranded hostile environment controls when people have, for example, access to education or report a crime to the police. In that latter regard, there appear to be examples of migrant women in particular suffering domestic abuse and being deterred from reporting a crime for fear of getting pulled into the immigration system. The comment has already been made about the independent Windrush Lessons Learned Review identifying a number of people from the Windrush generation who have been wrongly subject to proactive compliant environment sanctions, where the Home Office has shared data with other departments. Therefore, there is a lot of evidence that this data sharing goes on and that it has a detrimental effect on some individuals.

The Independent Chief Inspector of Borders and Immigration has found a 10% error rate in immigration status checks. Therefore, being unable to find out what immigration data the Home Office holds that led to an error—for the purposes of an appeal, for example—is of significance. The figure that I have been given—I am sure the Minister will correct me if I am wrong—is that, since the beginning of 2019, 60% of requests for disclosure have been denied. I hope that in their response the Government will, at the very least, say how they intend to address the concerns raised by this group of amendments.

--- Later in debate ---

There is one more point that I had not picked up on earlier; it occurred to me when I was listening to the eloquent contribution from my noble friend Lady Smith of Newnham. If somebody’s pre-settled status runs out in, say, two years’ time—because they have already been here three years, and after two they are entitled to apply for settled status—will they then have the whole of the three years between that point and the five-year period following the end of June next year? I hope that I have made myself understood. Will they have the whole of that three years to go back and apply for settled status, or will there be a time limit within which they have to turn their pre-settled status into settled status? In other words, for somebody who has been here for two years and gets their pre-settled status now, does that last for five years regardless, or end at some stage when they are entitled to apply for settled status? I would like an answer to that.

[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 Hamwee (LD) [V]]

My Lords, I have my name to this amendment on behalf of our Benches. The subject matter of this amendment, and that of later Amendment 62, are very close. Amendment 62 is about family reunion, and the noble Baroness, Lady Primarolo, in particular, referred to that. It will not escape the Committee that there is a particularly persuasive factor to Amendment 48, and that it is led by the noble Lord, Lord Dubs, whose track record in leading the House on issues relating to refugees, particularly child refugees, is second to none.

I do not want to repeat points that have been made about push and pull factors, or about children’s experiences. I am very clear about the moral issues that have been referred to. As the noble Lord, Lord Alton, has rightly reminded the House, the Government has not done nothing. It will, however, be hearing the call to do more.

I want to make some technical points. Ministers tell us they are working hard—I do not mean to impugn anything there—to ensure that unaccompanied asylum-seeking children are looked after in the best possible way after we leave the Dublin regulations. As we have heard, they have referred to the draft negotiating document, the draft working text for an agreement between the EU and the UK on the transfer of these children, but there are two problems. First, there is nothing firm about that text: member states “may” make a request to transfer a child, and the UK “may” make a request to member states. Secondly, the EU has no mandate to negotiate on behalf of member states on this. To deal with the latter first, the Security and Justice Sub-Committee of the House’s Select Committee on the European Union took evidence on the text in July from witnesses, including the noble Lord, Lord Dubs, and Professor Elspeth Guild, who explained the position to us. In the political declaration of last October, which is the basis for the commission’s negotiations—it has been given a mandate to negotiate on that basis—there was only one section on what is called illegal migration, which in turn is the basis for a draft agreement. That provides for co-operation to cover only three subject areas which do not include this issue.

When I first read the political declaration I wondered whether illegal migration covered refugees at all because they are not illegal, but since one of the three issues is tackling problems upstream, that suggests that refugees come within it. However, I will not challenge a professor of law with posts at two prestigious institutions, and I follow her argument. The EU has no mandate in negotiations, but that is not the end of it. The UK cannot negotiate an agreement member state by member state, because this is, counter-intuitively in view of what I have said, a fully exercised competence of the EU, so it is not open to member states to negotiate with the UK. It is counter-intuitive and a Catch-22 situation. Professor Guild said:

“The idea that we would be able to negotiate with each member state an equivalent of Article 6 of the Dublin regulations seems to me … astonishingly naive.”


It would need a lot of political will on all sides to sort this out through the UK-EU negotiations. We are all aware that matters are somewhat tense—would that be the right description? I, like others, am not optimistic about a positive outcome.

In January 2019, when the House was considering this issue, the Minister wrote to noble Lords that:

“negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas”,

referring to

“the traditional division between Government and Parliament”.

Given what we all know, or maybe do not know but suspect, about what is going on, is it wise to rely on the possibility of negotiation?

Apart from the principle, there are some shortcomings in the draft text of the provisions: the “may”, not “must”. It also says that no rights can be directly invoked in the domestic legal systems of the parties. That alone would make it hard to go along with the text. However, we can sort this out in domestic law, hence the amendment. The noble Lord, Lord Dubs, has been as persuasive as ever. The noble Lord, Lord Kerr, has been clear about channel crossings. I will not go on; I agree with pretty much everything—possibly everything—that has been said. Immigration Bills come along quite frequently, but we should not wait for the next one. The amendment is not a big ask; its objective, in proposed new subsection (5), is clear, but it requires strategy and clarity about reaching that objective. Crucially, it refers to the “child’s best interests”. We should take this opportunity to provide this safe and legal route for children.

[Lord Rosser (Lab)]

My Lords, Amendment 48 provides that the only existing legal route, which is under the Dublin III convention, for asylum seekers, including unaccompanied children, to join family in the UK would remain operational after the end of the transition period. It also requires the Secretary of State to lay a strategy before Parliament to ensure that unaccompanied children continue to be relocated to the UK if it is in the child’s best interest. Family reunion under the Dublin III convention will no longer apply after the end of the transition period, in just over three months’ time. That means that vulnerable child refugees seeking to join relatives in the UK will no longer have this, or any other, safe route to our country, unless—which looks increasingly unlikely—there is a deal with the EU before the end of the transition period, which incorporates an alternative family reunion arrangement.

The Government have previously given assurances that they would protect family reunion for unaccompanied children. However, the UK’s draft proposal for a replacement to family reunion no longer includes mandatory requirements on the Government to facilitate such reunions. Instead, it makes a child’s right to join their relatives discretionary and, on top of that, abolishes a child’s right to appeal against a refusal. Vulnerable refugees, including accompanied children and adults, would lose access to family reunion entirely. The evidence indicates that, without a mandatory requirement, family reunions will, to all intents and purposes, end, which may be the intention behind the Government’s draft proposal.

For the five years before mandatory provisions were introduced by Dublin III, from 2009 to 2014, family reunions of children and adults to the UK averaged just 11 people annually. After mandatory provisions were introduced by Dublin III, family reunions to the UK averaged nearly 550 people annually. Significantly more than 11, but not a significant number in itself, compared with the overall net migration figure of some 200,000 plus. Without a mandatory requirement, children are likely to remain stranded in Europe indefinitely; alternatively, some may risk the more hazardous routes, involving crossing the Channel in small boats or a lorry in an attempt to reach family members.

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Moved by

[Lord Rosser]

53: After Clause 4, insert the following new Clause—
“Exemption from no recourse to public funds
(1) This section applies during the current Covid-19 pandemic, as defined by the World Health Organisation on 11 March 2020.(2) Section 3(1)(c)(i) and (ii) of the Immigration Act 1971 cannot be applied to persons who have lost rights because of section 1 of and Schedule 1 to this Act.(3) This section may not be disapplied unless a resolution is passed by each House of Parliament.”Member’s explanatory statement
This new Clause would delay application of No Recourse to Public Funds rules during the current pandemic and until such time as Parliament decides.

[Lord Rosser (Lab)]

My Lords, many non-UK nationals with leave to remain in the UK, such as people on work or family visas, are subject to the no recourse to public funds condition. This prohibits them from claiming a large number of benefits. The condition also means that some British children whose parents have NRPF, due to their immigration status, are effectively unable to access many benefits, as they are unable to make a claim in their own right.

Most non-EEA national migrants with temporary permission to remain in the UK have no recourse to public funds. To keep within the scope of this Bill, Amendment 53 would prevent no recourse to public funds being applied to EEA and Swiss nationals; that is, those who lose rights under Part 1 of the Bill during the current pandemic and then until such a time as Parliament decides. Before I proceed any further, I ask the Minister, when he responds, to say whether an EEA or Swiss national with pre-settled status, rather than settled status, would be subject to NRPF.

Since April, we have been calling for no recourse to public funds to be suspended for the duration of the coronavirus crisis. We asked the Government to lift NRPF as a condition on a person’s migration status, in order to ensure that nobody was left behind in the public health effort undertaken in the fight against coronavirus.

Nearly six months since the national lockdown was announced, towards the end of March, local lockdowns are still required and today sees a retightening in national restrictions on social gatherings. This is a reminder that the pandemic has not gone away. Indeed, the number of new cases of the virus has risen sharply in the last week or so, and the full extent of the economic impact is probably still to come. What the coming winter has in store for us pandemic-wise is unknown, but there appears to be a general consensus, including in government, that the situation is more likely to deteriorate than to improve.

The Migration Observatory estimates that, at the end of last year, more than 175,000 children lived in families affected by no recourse to public funds, and that more than 1.3 million people had held valid visas that would usually have no recourse to public funds conditions attached to them.

The Children’s Society has said that thousands are facing “extreme poverty” during the pandemic, due to their families having no recourse to public funds. A significant number of the parents the Children’s Society is supporting are front-line key workers in the NHS and social care sectors.

Citizens Advice has reported that the number of people seeking advice on NRPF has doubled during the pandemic, and that it has been approached by people facing an

“impossible choice of returning to work while ill, shielding, or living with someone who is shielding or losing their income.”

In June, the Home Affairs and Work and Pensions Select Committees recommended that the Government should “immediately suspend NRPF” for the duration of the pandemic on public health grounds. That is very similar to what we are seeking as far as Amendment 53 is concerned .The Work and Pensions Committee reported:

“As a result of the no recourse to public funds condition, many hardworking and law-abiding people are being left without a social safety net and at risk of destitution and homelessness.”


In saying that, the Select Committee was also pointing out that NRPF was hitting people who are working legally in the UK and raising their families here, with many being key workers or front-line medical staff.

In response to a question from the chair of the Work and Pensions Select Committee on 27 May, the Prime Minister said:

“Clearly people who have worked hard for this country, who live and work here, should have support of one kind or another … I will find out how many there are in that position and we will see what we can do to help.”


The silence since then suggests that little or nothing has been done, or will be done, to help.

In June, when asked by MPs, including Select Committee chairs, for an official estimate of how many people are affected by “no recourse to public funds”, the Home Secretary did not know. The Home Office does not hold these figures, which is perhaps a reflection of the importance, or lack of it, that the Home Office attaches to people with NRPF during the current pandemic in particular. Perhaps the Government will provide us with the figures in their response.

The Government are not unaware of the risk of destitution that NRPF is posing, particularly in the current situation. In March, the Local Government Minister, Luke Hall MP, wrote to local authorities calling on them to

“utilise alternative powers and funding to assist those with no recourse to public funds who require shelter and other forms of support due to the Covid-19 pandemic”.

All too typically, though, this was not backed up with any clear instructions, guidance or funding, even though it was telling local authorities that people with no recourse to public funds should now have such recourse. The result has been inconsistency in application and authorities unable to do as asked, due to the effects of austerity and cuts in government funding, leading to a patchy postcode lottery.

As the Government will no doubt say, it is possible for families to apply for their NRPF conditions to be lifted when, due to a change in their circumstances, they are facing destitution—that is, assuming they know that it is possible, and how, and to whom, to apply. I understand that, in the first quarter of 2020, 843 applications were received for this relief; in the second quarter, 5,565 were received. This shows, on the Government’s own figures, that thousands of people are now in need of relief from no recourse to public funds. Will the Government, in response, either confirm that they do not know the answer or say what percentage of those on NRPF 5,565 represents, in respect of how many of the 5,565 applications the NRPF conditions were lifted, and whether they were lifted fully?

Support groups report that the process to have no recourse to public funds lifted is lengthy, complex, not available to all, and includes too high a burden of proof. Indeed, the Home Affairs Select Committee has recommended that the evidential burden for a change in circumstances due to the pandemic should be reduced.

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[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.

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

Lord Rosser Excerpts

Wednesday 9th September 2020 Lords Chamber

[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.

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

Lord Rosser Excerpts

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

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

The noble Lord, Lord Roberts of Llandudno, has withdrawn, so I call the noble Lord, Lord Rosser.

[Lord Rosser (Lab)]

It seems that the amendments in this group are similar in that they all relate to the right or ability to work. Amendment 24, to which my name is attached, requires that asylum seekers and their adult dependants be allowed to apply to the Secretary of State for the right to work if their application has not had a decision since six months of it being made. The reason the amendment only refers to EEA and Swiss nationals, not to those from other parts of the world as well, is to keep the amendment within the scope of the Bill.

Those seeking asylum in the UK can only apply for the right to work, whether as an employee or self-employed, once they have been waiting for a decision on their asylum claim for over a year, provided that the delay is not considered to have been caused by the applicants themselves. Adult dependants of people seeking asylum are not allowed to apply for permission to work at all, something which impacts women, in particular. Even then, there is a further significant hurdle for those seeking asylum, because employment is restricted to a limited list of skilled occupations on a government shortage occupation list—limited despite a change in skill levels that will mean the small numbers granted the right to work are more than likely to be unable to do so. It is not clear what the usefulness is of the shortage occupation list.

The reality is that those awaiting a decision on their asylum claim, as has been said, have to live on £5.66 per day to support themselves and, where applicable, their families and, as a result, are at serious risk of exploitation, including exploitative labour. No other European country has such a restrictive waiting period. The EU reception conditions directive of 2013, to which we did not opt in, set the maximum period for the right to work at, I think, nine months after an individual has lodged an asylum claim. Some three quarters of European countries, though, have a waiting period of six months or less, and many other countries do not place any restrictions on the type of employment that someone can take up.

When a person applies for asylum in the UK, the Home Office aims to make a decision on the case within six months, provided it is not classified as “non-straightforward”. In recent years, the number of people waiting for a decision on their asylum claim for more than six months—both main applicants and dependants—has grown considerably, to cover some 60% of all those waiting. This is the highest level, I believe, since public records began, as my noble friend Lord Dubs said.

It has been argued that opening up the labour market to people in the asylum system to a greater extent would only encourage more people to try to get to the UK and seek asylum simply as a means of getting to work in this country. But there is little or no evidence of such a link. Other factors, as the noble Baroness, Lady Meacher, said, such as the ability to speak the language of the host country or the presence of relatives or friends in the host country, are the significant ones. Surveys have also suggested nearly three quarters of those arriving in the UK were not aware, prior to arriving, that they would not be allowed to work.

On Monday, we discussed the high numbers of vacancies in the care sector, but that is not the only sector where there are vacancies and skills shortages. Many of those seeking asylum in this country are well qualified with skills we need. A survey earlier this year showed that one in seven of those seeking asylum had worked in health or social care and that 45% of respondents’ previous occupations would have defined them as “critical workers” during the Covid-19 pandemic. As has already been said, easing the restrictions on the ability of those claiming asylum to work would not only reduce the cost to public funds of the minimal support payments but bring in extra money from the resultant income tax and national insurance contributions.

As I understand it, the Home Office began a review of the right to work policy in 2018, following the then Immigration Minister noting that there was “much merit in the arguments for reform”. What is the position with that review one year and nine months later? Has it been finalised? If so, what were the conclusions? It should not take one year and nine months to complete a review if that is the position.

Taking into account support rates of just under £40 a week and National Audit Office estimates that accommodation costs £560 per month, the approximate cost of supporting one person waiting for a decision on their asylum claim is just under £9,000 per annum. Even if such a person, once allowed to work, needed some accommodation support, the Government would still save a minimum of over £2,000 per annum for each person in employment and no longer requiring subsistence cash support.

The Government have normally argued that work is a route out of poverty. Apparently, though, that principle does not apply to those awaiting the outcome of their asylum claim, nearly all of whom, as the right reverend Prelate the Bishop of Durham said, want to work and support themselves and their families and offer their often much-needed skills to this country. Why do we leave them, then, in a potential or actual state of poverty, feeling a sense of hopelessness and despair for often lengthy periods of time?

There are long delays in processing asylum applications and appeals. The ban on asylum workers working provides little incentive for the Home Office to speed up the progress of these cases, and with 45% of appeals succeeding, we are delaying giving the chance to work to people who will ultimately obtain it. It is time for a change of approach, and that is what I trust we will hear from the Government in their response—a change of approach that hopefully would also indicate that we were moving away from the hostile environment through our actions, not just our words.

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

My Lords, I understand that the noble Lord, Lord Green of Deddington, was withdrawn from the speakers’ list in error and is ready to speak now, so I call the noble Lord, Lord Green of Deddington.

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[Baroness Hamwee (LD) [V]]

My Lords, some years ago I chaired some work on the minimum income requirement affecting British people who, as has been said, never thought that they would be affected by their own country’s immigration laws.

The noble Baroness, Lady Bennett, mentioned someone from south Wales. I encountered someone from south Wales, David, whose second wife was a teacher from Canada—I do not think that you can get more respectable than being a teacher from Canada. By his first marriage he had a disabled daughter. Had he been able to bring his wife to the UK to share the care of his daughter, that, among other things, would have saved the state a lot of money. Instead, he had to limit the amount of work and the kind of work that he did and so did not meet the minimum income requirement. She was appallingly treated. I do not believe people in British society would support this, were they to know about it. Many do not until they are brought up against it personally. I have long thought that the answer to all this will be found only when a son or daughter of a Cabinet Minister finds himself or herself in this situation.

The focus at that time was largely on spouse visas and what can be taken into account in calculating incomes. That has been changed somewhat, but the issue remains. The rules about leave to enter for an individual’s parents are so harsh that they really amount to saying, “You need to be so much in need of care and support that you probably would not be fit to travel.”

The reality of this is striking home, as noble Lords have said. One of my noble friends received a letter, which she passed on to me at the weekend, from a UK citizen who has found herself in this situation. I shall read some short extracts: “As someone who married a non-UK EU national in the UK but then moved to his country to live as his parents were already elderly, never was it in my worst nightmares that I would not be able to do the same and I might be forced to choose between caring for him and caring for my mother. When I left, returning was always an option, as I work remotely, to be able to return to care for my parents. My parents are now on the brink of their eighth decade. My mother has lung issues. My father has prostate cancer. It is inevitable that I will want and need to return at some point. What child does not want to care for their parents themselves?”

She goes on: “I and many of the more than 1 million UK citizens living in the EU will not have that right. If we do not return before the end of 2022, our fate will become income-dependent. How is it conceivable that the British Government’s approach involves discrimination against its own citizens? Surely, the family is as sacrosanct in the UK as in the rest of Europe.” I am pleased, from our Benches, to support this amendment.

[Lord Rosser (Lab)]

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

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

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

[Baroness Williams of Trafford (Con)]

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

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

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

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

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Moved by

[Lord Rosser]

25: Clause 4, page 3, line 8, at end insert—
“( ) No regulations may be made under subsection (1) after the end of the period of one year beginning with IP completion day.( ) In this section “IP completion day” has the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This would provide that the regulation making powers under this section expire within one year of the end of the transition period.

[Lord Rosser (Lab)]

Amendment 25, to which my name is attached, would introduce a sunset clause limiting the use of delegated powers under Clause 4 to one year, beginning with the implementation period completion day at the end of the transition period.

Immigration involves fundamental rights on a regular basis: rights to liberty, respect for private family life, property rights, the right to non-discrimination, data protection rights and a prohibition on inhumane or inhuman and degrading treatment. Changes that could or would affect fundamental rights should be made by Parliament through primary legislation, not by Ministers through secondary legislation where there is no ability to amend or alter what is proposed.

As we have discussed already, the Lords Constitution Committee and the Lords Delegated Powers and Regulatory Reform Committee have both said that the provisions in the Bill

“include broad delegated powers, including Henry VIII powers, for which there is little policy detail as to their intended use; insufficient safeguards and scrutiny processes in relation to”

how those powers are used. Other comments from one or both of these Lords committees are that

“The Bill effectively changes significant areas of immigration law from primary into secondary legislation, weakening the parliamentary scrutiny that will be required for any future amendment or repeal”,


and that “A Henry VIII clause”, such as Clause 4,

“that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable”

and undermines “fundamental elements”.

The Government maintain that the Henry VIII powers in Clause 4 are only to address necessary technical legislative changes to primary legislation arising from the ending of free movement. The same powers in Clause 5, say the Government—those are the subject of a separate amendment later on—are there, first, to enable consequential amendments to be made to primary legislation and other retained EU law if areas of the retained EU social security co-ordination regulations, co-ordinating access to social security for individuals moving between EEA states, have to be repealed because they are not covered in a reciprocal agreement with the EU following the end of the transition period; and, secondly, if consequential technical amendments to legislation are needed arising from any new reciprocal agreement with the EU.

However, the trouble is that the actual terms of the Bill give the Government much greater powers than they say they need and are asking us to accept would be the situation. The Delegated Powers Committee said that Clause 4 presents

“a very significant delegation of power from Parliament to the Executive”,

and on Clause 5, it said:

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


If it the Government only want these very significant delegated powers, including Henry VIII powers, for the reasons they have previously given, they will surely recognise the potential constitutional dangers of leaving powers which represent such a significant delegation of power from Parliament to the Executive permanently on the statute book. Accordingly, if the Government want to use these powers only for the reasons they have mentioned, they should have no difficulty agreeing to the sunset clause provided for in this amendment, which I beg to move.

[Baroness Ludford (LD)]

We on these Benches are most grateful to the noble Lord, Lord Rosser, for tabling this amendment, which I can describe as an insurance policy. I agree with everything he said about Clause 4 powers, which we have had a chance to discuss, but we have a hierarchy of aims, the top one being to persuade the Government that Clause 4 is really not fit for purpose, as our committees have helpfully advised us, and that they need to go away and think again about it. The second choice would be that they accept that the broad scope, the width, of the powers they intend to give themselves is far too vague and imprecise—“in connection with”, “affecting”, et cetera—and that they need serious discipline, rigour and tightening up. The advantage of the amendment of the noble Lord, Lord Rosser, is that if we fail in those ambitions, we would at least, I hope, have the fallback position of looking after a year at what improvements we could make.

This is not like the Covid regulations, where the Government are reacting to an emergency situation. That is the more normal scenario for a sunset clause, but, none the less, the clause has a huge impact and demonstrates that “taking back control” did not mean taking back control for Parliament, let alone the people, it meant taking back control for the Government. It was a clever slogan, but unfortunately it has been heavily misused, and Clause 4 sums up all the problems with the approach that has been followed in the past few years.

If we do not succeed in our other ambitions in relation to Clause 4, it is sensible to have this fallback position of a sunset clause so that at least we would have a specified review date when we could reconsider what use is being made of Clause 4.

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For those reasons, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Rosser (Lab)]

I will be withdrawing the amendment. I listened with considerable interest to the Minister, and I am aware of what has been said previously. It almost seemed to me an invitation to come back with a sunset clause that would apply one month after the end of the transition period, because the Government are basically saying that they will get everything done within the next few months, after this Bill becomes an Act.

However, the Government’s view is that there might be things they miss which will need to be done. Therefore, they feel that they need to have this power on a much longer-term basis so that, if they do find things they have missed, they can still put them right without coming back for full parliamentary scrutiny.

The argument could be made the other way: a sunset clause which came into operation even earlier than the period of time I propose might give the Government the incentive to make sure that they jolly well did get things right first time, and did not have to use the argument that they missed something they should have put right under the terms of Clause 4.

I thank the Minister for his reply. I do not sense—from the nature of their stance on this issue—that the Government have too much confidence that they will use these powers within the few months that the Minister has indicated, and for the very technical purposes that they need them. If the Government did have that full confidence, they would not have any doubt, or any hesitation, about discussing whether there should be a sunset clause which was even earlier than I propose.

I beg leave to withdraw my amendment.

Amendment 25 withdrawn.

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[Baroness Ludford (LD)]

My Lords, this is not a workable notion. I am not the world’s expert on the non-EU migration system. It is a world I am having to learn about, having known far more about EU free movement in the past. As I understand it, most aspects of non-EU migration to date—which is going to be changed by the points-based system—have, I think, been affected by caps within individual tiers. I am sure I will be corrected if I am wrong. That has not, from some people’s point of view, been a great success. After all, for at least the last few years, annual non-EEA migration has been considerably higher than EU or EEA migration. I understand the aims of the authors of this amendment, but I am not sure how or why it would be expected to reduce numbers.

The amendment also offers us a very bureaucratic system rather than, as the Government intend, one that would respond in a flexible, streamlined fashion to the need for skills in our economy. After all, if you are an employer with a crucial post that cannot be filled—perhaps the geophysicist I mentioned earlier—it seems somewhat ridiculous that you would fail to recruit an expert that you could not find at home because you were the first one after the cap had been imposed.

It is not as if it is a free-for-all. As I understand it, the sponsor employer has to sponsor the call welcoming bids from would-be immigrants and has to pay the immigration surcharge and so on. It is not as if the numbers are not overseen by the system and by a number of individual needs and choices that are driven by the needs of the economy and the employer.

An overall cap would be unworkable and unhelpful to the economy and to employers. Indeed, as the noble Lord, Lord Kerr, pointed out, there are areas of the United Kingdom—he mentioned Scotland—that have a need for a greater population. There is one thing worse than having an expanding population, and that is having a declining one, as Germany is finding out and Japan has found out. There will come a time, with declining birth rates in this country, when we will be wishing that we had more immigrants. Indeed, that partly motivated Chancellor Merkel in 2015.

All things considered, I cannot offer from these Benches support for this amendment. I acknowledge the sincerity with which it is proposed, but I honestly do not think it is wise or workable.

[Lord Rosser (Lab)]

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

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

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

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

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

[Baroness Williams of Trafford (Con)]

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

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

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

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

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It is a truism to say, “We wish we had a plumber in the family”, but we can think of other skills that would have been useful, particularly over the past six months. I jolly well wish I could have a family member or someone who could come to the house to help me—when even our wonderful Parliamentary Digital Service cannot—with things that frustrate me in the tech and computer field. That is the sort of person who rightly has considerable value on the labour market, and we have been slow, as a country, to value that. However, the immigration system is not the way to enforce and encourage training, whether that be within employment or in the education system. Efforts are happening, but I am sure my colleagues who deal with education would say they are too little and in many ways too late. But artificial means within the immigration system, whether a cap or the resident market test, add more red tape and delay. So, the two things have to go together: employers need to be able to find skills if they cannot locally, but at the same time we need to increase the pipeline within the UK to reduce the need to import those skills, if that is what is desired. I am afraid that I am not persuaded that this amendment—or the previous one—is going to help us have better skills or a better immigration system.

[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.

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[Baroness Ludford (LD)]

My Lords, I am not really clear how this is meant to work. Is there any intention on the part of the Government to allow the so-called new entrants to enjoy a lower minimum salary requirement than other migrants? It is clear that there is something that I have not fully understood on this. I assume that the authors of the amendment fear, anticipate or foresee such a development, but it may be that, as I admitted earlier, my knowledge of the points-based migration system is insufficient to allow me to fully grasp to what mischief this amendment is addressed. I am surprised it is assumed that this situation could arise.

That is rather a lame comment, so I look forward even more than usual to hearing the Minister’s explanation of why this amendment is—as I assume she is about to say—unnecessary or does not pass muster. It seems to me that it too possibly falls foul of the problem of being bureaucratic and inflexible. I think I should stop there and listen to the Minister’s expert explanation.

[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.

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[Baroness Ludford (LD)]

My Lords, I am pleased to follow powerful speeches from across the House, not least the one I immediately follow, from the noble Lord, Lord Alton, and of course that of the noble Baroness, Lady Lister. I join the tributes to her and her record of campaigning, and indeed to the noble Lord, Lord Alton. Other noble Lords have driven in the same direction: the noble Lord, Lord Russell of Liverpool, the right reverend Prelate the Bishop of Durham, the noble Baroness, Lady Altmann, others on the screen, and of course my noble friends Lady Smith and Lady Hamwee—everybody, to be honest—made the very reasonable request that the Government reconsider their policies on the fees for citizenship. The terms “shabby”, “punitive”, “revenue generator” and “indefensible cross-subsidy”—I think that was from the right reverend Prelate—have all been used.

It seems extremely odd to be discouraging potential citizens. As the noble Baroness, Lady Lister, said, this is being put in a sort of transactional context, but it is more than that. I have only once had the honour of being asked to preside at a citizenship ceremony—when I was an MEP, I was out of the country a lot of the time, so the opportunity arose only once. It really was an honour and a privilege to see all those eager faces looking back at me. Those people wanted to become British citizens, for all the reasons that have been expressed in this debate: to have their status recognised; to have a stake in our society; not to feel an outsider; and to feel that they truly belonged in Britain.

The contrast between the current situation and the language recalled tonight from the debates on the British Nationality Act 1981—which of course was also passed under a Conservative Government—is considerable. We should be encouraging people to become citizens, even if they are dual citizens, which I am glad to say is generally permitted—it is perfectly reasonable for people to choose which cricket team they wish to cheer without feeling that they are not loyal to the country. It seems incomprehensible that we would not want people, particularly those who have been in the country a long time, to move into the full role of citizens. That is good for our existing society, as well as for them. We want more people to feel that they have a stake, that they belong and that they are fully recognised, not fewer people.

Then, of course, there is the special concern about vulnerable children, especially those in care, for whom it is even more unreasonable to charge more than £1,000 for them to become citizens. The danger of a new Windrush scandal has been raised tonight, and we will have a further debate on that at the end of our discussions in Committee. After the experience of the appalling treatment that the Windrush victims suffered, and the Williams review and the Government’s pledge to implement its recommendations, it does not seem very wise to knowingly run the risk that we could be creating more people who are not properly recognised and integrated and who risk all sorts of horrible things happening to them.

From the non-partisan nature of this discussion, it is evident that this proposal has such wide support across the Committee, so I implore the Government to think seriously about whether the cost-benefit ratio of charging what, in the words of the noble Baroness, Lady Altmann, may be three times the actual administrative cost—a 200% mark-up—is truly worth it in view of the wider cost of potentially either excluding people from citizenship or, even worse, having a new Windrush generation.

[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.

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[Lord Tyler (LD) [V]]

My Lords, I agree entirely with the noble Lord, not least in his admiration for my noble friend Lady Hamwee, who has indeed undertaken a marathon on this Bill today. By contrast, mine will be a quick sprint. We are anxious to ensure with this amendment that we can get some urgent clarification on an extremely important issue relating to citizenship. There are obvious echoes from the previous debate.

I doubt that any Members here need reminding of the considerable contribution that EU citizens make to the life of this country: to its essential services, its economy and so many local communities, not least in the health services. If I needed any such reminder, I had it most forcibly this afternoon when I paid a visit to the dentist. Many of them, especially if they have worked and lived in the United Kingdom for some time, have made a considerable tax contribution—local as well as national—as my noble friend said. It is a well-respected principle, not least in this House, that there is no taxation without representation.

The Minister may be able to give us an updated figure of those EU citizens who are now regarded as resident here on at least a semi-permanent basis. Those figures are very relevant to this amendment, as they are to a number of other parts of this Bill. I recall that, of all the cities in the world, London has the largest number of French citizens, exceeded only by Paris. These EU friends are employed throughout the UK in some crucial roles. Some are more obvious than others; for example, although most of those who work in agriculture and horticulture are temporary residents, some are employed full time and for longer periods, for example specialist advisers for viniculture in this country. On the day that “Back British Farming” is the slogan that the NFU wishes us to sign up to to demonstrate our commitment to that industry, I should give that a deserved mention.

The significance of the contribution of all these groups caused me to table the Question to which my noble friend referred. I need to reiterate the Answer given to me by the noble Lord, Lord True, on behalf of the Government because it contains some important detail that is relevant to this debate:

“The May local elections were postponed until 2021 due to Covid-19. In that context, the UK Government can confirm that resident EU citizens will remain able to vote and stand in the rescheduled May 2021 local elections in England (including London Assembly elections) and the May 2021 Police and Crime Commissioner elections in England and Wales. Those elected to office will be able to serve their full term and this will also apply to those elected before 2021. The franchise for local elections are devolved in Scotland and Wales. The UK Government has been clear that the issue of local voting rights of EU citizens living in the UK needs to be considered alongside the rights and interests of British expats living abroad. The Government has signed bilateral voting rights agreements with Spain, Portugal and Luxembourg in 2019, and with Poland in May 2020. We continue to work on further bilateral voting rights agreements with other EU member states.”


As my noble friend said, there may be an update tonight from the Minister; that was from 10 July, and there may have been some more successful developments since.

It will be obvious to all in your Lordships’ House that there are two significant limitations to that assurance. First, it is limited to May 2021. After that, there is no guarantee that the principle will be maintained for any future local elections for the majority of these residents. Secondly, the Brexit negotiators have succeeded in achieving only four bilateral agreements—with Spain, Portugal, Luxembourg and Poland—so much larger numbers originally from France, Germany and Italy, for example, are, as far as we know, excluded. What is being done to get agreements with the remaining 23 member states? I also hope that the Minister will be able to spell out what exactly was agreed with these four Governments.

I turn to the other point in this reply: the mention of the very relevant rights and interests of British expats living abroad. I suspect other Members have heard of the distressing concerns, anxieties and frustrations of our fellow British citizens currently living in the EU. I have had a very full report from a survey of many hundreds of these in France—a detailed report of the current dilemmas they face, not least in relation to healthcare and its costs. Surely the time has come—in their interests, as well as the interests of those to whom this amendment directly relates—for the Government to revert to our traditional attitude in this country. For once, could they not take the lead? Can they not now commit to bringing before Parliament certainty of continuing these civil rights? A more generous and realistic approach to these civic rights here would be likely to stimulate an equally humane and civilised response there. I repeat what my noble friend Lady Smith of Newnham said in the previous debate: they surely should do the right thing. I hope the Minister will be able to expand on the very limited information given to me previously and therefore respond positively to our amendment.

[Lord Rosser (Lab)]

Amendment 33 provides that regulations under Clause 4

“may not limit or remove the right to vote in local government elections”

for EU nationals who have lost free movement rights under this Bill

“unless the Secretary of State has laid … a draft of the … regulations and an assessment of their effect … at least three months before … the regulations”

are officially made. Parliament would thus have the opportunity to consider proposals for restricting the right of EU citizens to vote in local elections. Local voting rights are not covered by the withdrawal agreement as they are not an EU competence but a sovereign matter. There is thus an uncertainty about the future voting and candidacy rights in local government elections for many EU citizens as the Government have not gone down the road of giving a firm commitment that all settled EU citizens in this country will continue to have the right to vote in local elections.

All non-citizen residents from Ireland and the Commonwealth can vote in all elections and referendums. This is reciprocal in the case of Ireland, but most Commonwealth countries, including Cyprus and Malta, do not grant resident UK citizens the right to vote. EU citizens from the other 24 member states currently have a partial franchise that allows them to vote and stand as candidates in local government elections. This is guaranteed in UK law and the Government would need to take active steps to remove this right. There is disparity within the UK at present: Scotland and Wales grant voting rights to all migrants, while England and Northern Ireland do not.

As has been said, the Government have been seeking bilateral agreements on local election voting rights with EU member states, with agreements concluded with Spain, Portugal, Luxembourg and Poland. As I understand it, UK nationals will also be able to continue to vote, and in some cases stand, in local elections in EU member states where domestic legislation allows this. We are in favour of EU nationals living in the UK having full voting rights in future elections. They are our neighbours, friends, families, important parts of our communities and vital to our economy and healthcare service. We should value them. The Government should protect the local election voting rights that EU citizens living in this country currently have and seek to extend them so that they become full voting rights.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for moving Amendment 33 and the noble Lords, Lord Judd, Lord Tyler and Lord Rosser, for their contributions to this short but important debate. While I understand the sentiment that underpins the noble Baroness’s amendment and some of the speeches we have heard, I do not think it necessary to add this to the Bill.

As noble Lords will be aware, the Government have already shared the draft illustrative regulations proposed under Clause 4(1). As I hope and am sure noble Lords will have seen, they do not include any provisions relating to the voting rights of EU citizens; nor has there been any immediate change to the entitlement of EU citizens resident here to vote in local elections. Indeed—as the noble Baroness, Lady Hamwee, said—in an Answer to a Question posed by the noble Lord, Lord Tyler, and answered by my noble friend Lord True, the Government recently confirmed that EU citizens resident in England

“will remain able to vote”

in the elections in England next May. That includes not only elections to a number of local authorities at every level but elections for the Mayor of London and the Greater London Assembly and combined authority mayors in the West Midlands, Greater Manchester, Liverpool City Region, the Tees Valley, Cambridgeshire and Peterborough, the West of England and West Yorkshire, as well as for the police and crime commissioner elections in England and Wales on the same day. It also applies to the right of EU citizens to stand in those elections, and anyone elected

“will be able to serve their full term”.

I hope that removes the uncertainty the noble Lord, Lord Rosser, mentioned, in the short term at least. I take the opportunity to pay tribute to EU citizens who have served their local community in public office, whatever party or affiliation they have done that under.

I am afraid I have no update for the noble Lord, Lord Tyler, beyond the Answer by my noble friend Lord True, which he read out in full. As that pointed out, we have taken positive steps in our relationship with EU member states and signed bilateral voting agreements with Spain, Portugal and Luxembourg in 2019; the one signed with Poland in May this year remains the most recent.

This is really a debate more about parliamentary scrutiny. On that issue, which the noble Baroness’s amendment considers and which the noble Lord, Lord Judd, also mentioned, the Bill as drafted makes clear that any primary legislation amended by regulations provided for by Clause 4 would be subject to the affirmative procedure and would have to be approved by both Houses of Parliament. I have no doubt that in the course of any such debates, noble Lords—including those who have spoken tonight—as well as Members in another place, will want to give such regulations their fullest scrutiny. As such, we do not think this amendment is needed.

Digital Evidence

Lord Rosser Excerpts

Monday 7th September 2020 Lords Chamber

[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.

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

Lord Rosser Excerpts

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

[Baroness Hamwee (LD) [V]]

My Lords, we on these Benches—I am on them virtually—make no bones about how much we oppose the ending of free movement. That includes both welcoming EEA citizens—the collective term which includes the Swiss for this purpose—and their families to live and work in the UK, and the equal and opposite right for British citizens in the EU. For myself, it offends my politics, my emotions, my values, my logic and, you might say, my whole outlook on life. However, I will endeavour to keep my remarks within the scope of the Bill and not to seek to reopen what has irreversibly been decided—although “irreversible” may have gained a new definition overnight—nor do I want to make a Second Reading speech.

What is relevant is that the Bill does not set out what will be in place of the current arrangements. Like the noble Lord, Lord Adonis, I am with the noble Baroness, Lady Neville-Rolfe, regarding the importance of the integrity of the system. We might want different systems, but what we have should be robust.

The noble Baroness and the noble Lord spoke in terms of enforcement—a term used in the amendment. I prefer to talk in more inclusive rather than exclusive terms. She talked about so many of the issues that we are addressing now, or failing to address. One must use the opportunity to say that the best way to address them is to create safe and legal routes to the UK. I do not want to divert on to the wider question of those who seek sanctuary, but I have to disagree with her approach and some of the language that she used.

By no means all of the new, much-heralded immigration system which will apply to EU citizens is yet in the public domain. The noble Lord, Lord Adonis, referred to UK citizens in the EU; he may see that Amendment 23, which we will come to later, may give us more of an opportunity to discuss their position. When the system is in the public domain, however, we will not be able to rely on it in the same way as we can rely on primary legislation because of the flexibility—would that be a polite word?—provided by the Bill. So much of our system is contained in rules which Parliament cannot realistically amend, and indeed often it takes an awful lot of background knowledge and experience, application and concentration to understand those rules. It is no wonder that the Government had some years ago to require a particular level of expertise to advise on immigration. The rules are difficult for most of us—other noble Lords may say that they waltz through them with no difficulty; I do not—and they are often impenetrable to those directly affected. I have too often heard Ministers say, “It is on GOV.UK.” That is not everyone’s bedtime reading. Indeed, however detailed the rules and however much they flesh out the Bill, it remains a skeleton.

My noble friend Lady Ludford and I have three amendments in this group, all to Schedule 1. The noble Lord, Lord Pannick, referred to the coy but comatose draftsman—I may use that term on other occasions—and my noble friend Lord Beith asked an important question about what instructions had been given to the draftsmen and draftswomen. After all, the responsibility lies with Ministers.

Amendments 4 and 5 take out some of the most offensive words in Schedule 1, which I do not think I need to read into the record again, as others have referred to them. They are wide and imprecise; there are references to “application or operation of” provisions, and

“otherwise capable of affecting the exercise of functions in connection with immigration.”

If any of your Lordships on Opposition Benches were to produce amendments using that sort of terminology, we would quite rapidly be shot down, and rightly so, by the Government Front Bench.

A lot of functions are connected with immigration, and we will come on later to employment, renting property —the rest of the hostile environment. There are also all sorts of functions which I would accept are necessary but which I would not want brought within the repeal of

“rights, powers, liabilities, obligations, restrictions, remedies and procedures”,

to which Section 1 applies.

Amendment 6 in our names would add words to the schedule by not applying it to rights which do not arise under an EU directive. Directives which do not relate to immigration include, in our view: the protection for victims of trafficking in the anti-trafficking directive—there is an amendment specifically on that—the protection for asylum seekers in the reception conditions directive 2013/33, and the protection for victims of crime in the EU victims’ rights directive 2012/29. We do not suggest that we believe that these protections are at risk, but we do not know. If the Bill remains as it is when it becomes an Act, the only way to know for certain is to test the matter in the courts. The noble Baroness, Lady Neville-Rolfe, was critical in the context of removals from this country of applications to the courts. However, that is what they are there for, and they are applying law that has been made by Parliament, or by Ministers subject to the rather inadequate scrutiny that parliamentarians are able to give them.

On Amendment 6—this is something that has been identified by the Immigration Law Practitioners’ Association; the noble Lord, Lord Pannick, mentioned the comments on the Bill by its chair, Adrian Berry—the protections are potentially at risk as what the association describes as “collateral damage”. We hope that they do not fall within the scope of the Bill, but I think it is a matter for the Government to explain what the position is. This is all about the lack of clarity, the bad rule-making, to which other noble Lords have referred, all offensive to the rule of law.

To return to the first amendment in this group, I welcome reports to Parliament and parliamentary scrutiny. I am hesitant to criticise or comment on the wording of the clause, having learned from the noble Baroness that the clerks were involved in crafting it, but I am not sure that the provisions of Schedule 1 are correctly described as enforceable. A provision within six months would take us beyond the end of the year. However, I should not carp about that sort of detail because, whatever the language, I understand that the supporters of Amendment 1 are seeking to ensure that free movement ends and that Parliament is told how. We have made our views about the first part of that very clear.

Before I finish, I want to mention the amendment by the noble Baroness, Lady Prashar. I thought the points made by noble Lords were very telling regarding the reference to soft power. I was reminded of listening to the European Union Youth Orchestra a couple of years ago in Edinburgh. That was a very special experience and it rather goes to why we are so distressed by what we are having to go along with in the Bill.

I think I have said enough not to have to refer specifically to our opposition to Amendment 1.

[Lord Rosser (Lab)]

My Lords, this group of amendments seeks to address the issue of the lack of clarity in the Bill, not least in Schedule 1. I am sure we have reached the stage now where noble Lords want to hear the Government’s response. I wish to comment briefly on three of the amendments in this group, although all of them raise issues of significance, as my noble friend Lord Adonis has said. That has become clear from noble Lords’ contributions, even though noble Lords have not all been coming from the same direction.

Three days ago, we were sent a letter from the Government sharing illustrative drafts of regulations that they propose to make under the powers in Clause 4 of the Bill. One wonders why at least some of the terms of these draft regulations could not now be or already have been incorporated in the Bill and thus be open to proper parliamentary scrutiny.

Schedule 1 revokes Article 1 of the EU workers regulation, which provides freedom-of-movement rights. Paragraph 4(2) of that schedule provides that other parts of the workers regulation cease to apply so far as they are

“inconsistent with any provision made by or under the Immigration Acts”

or

“capable of affecting the interpretation, application or operation of any such provision”.

This is a very broad drafting. Amendment 3, to which the noble Lord, Lord Pannick, spoke with his usual considerable authority, would remove paragraph 4(2), as it is so broad and lacks clarity. We share the concern that that amendment seeks to address.

No doubt the Minister, in giving the Government’s reply, will be giving a pretty comprehensive list of examples of how and why, in the Government’s view, other parts of the workers regulation might credibly become, first, inconsistent with provisions made by the Immigration Acts and, secondly, capable of affecting provisions made by or under the Immigration Acts.

--- Later in debate ---

[Lord Rosser (Lab)]

Like the noble Lord, Lord Patel, and others, I congratulate my noble friend Lord Hunt of Kings Heath on his powerful speech opening this debate. I wish to speak in particular to Amendment 57 in this group, to which my name is attached, although I agree with the concerns that have been expressed by noble Lords who have spoken to other amendments in this group. I note that the noble Lord, Lord Hodgson of Astley Abbotts, advised the Minister to reject my amendment before I have even spoken to it, though I fear that my speech will probably only reinforce his view of his advice to his noble friend.

The amendment would make provision for the Secretary of State to provide a dedicated social care visa for EEA and Swiss nationals who had the right to free movement and have a job offer to work in the social care sector, and to their dependents. They would not be subject to the NHS surcharge or the immigration skills charge and the visa route would be available for three years from the end of the transition period, with the option to extend for further years if necessary.

The thinking behind the amendment is that the Government’s intention to suddenly shut the entry door at the end of the transition period in a few months’ time on the overwhelming majority of future overseas social care workers under the criteria laid down in the new points-based immigration system, and the exclusion of care workers from the qualifying list for the health and care visa, will have serious and immediate adverse consequences for our already stretched social care provision in the UK. The amendment would remove the suddenness associated with this policy change through the social care visa available for three years with an option to extend, and would give the social care sector a realistic chance of being able to adjust to the loss of a significant source of labour.

A Commons Home Office Minister said in July said that the reason why care workers had been excluded from the qualifying list for the health and care visa was that the Government had a “vision” for the social care sector that it should no longer

“carry on looking abroad to recruit at or near the minimum wage”,

and that the Government’s priority was that in future care sector jobs would be

“valued, rewarded and trained for, and that immigration should not be an alternative.”—[Official Report, Commons, 13/7/20; cols. 1249-50.]

If that means significantly better rates of pay and an associated increased degree of widely accepted and acknowledged professionalism in the underpaid and undervalued social care sector, that is to be welcomed—a widely accepted and acknowledged professionalism that does not leave care homes and care workers at the back of the queue when it comes to personal protective equipment and does not regard the care sector as so forgotten and unimportant as to send vulnerable people from hospital into care homes who have not been tested for Covid-19.

The fundamental change needed is far from the current position and cannot be achieved in the space of the next few months, when the transition period ends, without potentially serious adverse consequences for those who are vulnerable and dependent on care provision either at home or in a home. It requires a change of culture and attitude both towards and within the sector, a change that the Government have to accept is their responsibility to lead. That will take time, as the Government implicitly accepted when they said in July that with the vast majority of social care staff employed in the fragmented private sector, their

“ability to influence pay rates there”

is limited.

Some 17% to 20% of the social care workforce are migrant workers, with 115,000 EEA nationals and 134,000 non-EEA nationals. Vacancy rates in the care sector now stand at 6.5% in England and 5.5% in Scotland. Since there are already 100,000-plus vacancies in England’s care sector alone and the current flow of people from abroad to fill low-paid care sector jobs is about to dry up, the Government cannot possibly have been able to satisfy themselves that not only will UK-based workers immediately appear to fill that gap but they will be there in sufficient numbers—with the right training, aptitude and caring qualities for social care work—to lower the vacancy levels in the sector as well.

One assumes in making that statement that the Government do not believe that anyone can successfully do this kind of work and that anyone available should be recruited. We are told that the Government have an “oven-ready plan” to address the issue of funding the increasingly expensive social care sector. Unfortunately, the person claiming to have this plan for more than 12 months now has been unable to figure out how to turn the oven on.

If higher pay rates did suddenly materialise in the social care sector in a few months’ time, which would apparently solve the labour shortages—as the Government seem to assume will happen as a result of the points-based immigration system and the drying up of non-British labour—there will presumably be a potentially significant increase in the cost of providing social care. What do the Government think that increase in cost will be since it is only a few months ahead of us in a sector with a 30%-plus annual staff turnover rate, a high vacancy rate and a major source of labour about to end? Will it be the elderly, vulnerable care-home residents and people receiving care at home—the self-funders—who will have to find yet more money? Will it be the already cash-strapped local authorities? Will it be the providers of care provision or will it be the Government themselves financing the cost of a much better paid, more highly valued, more highly trained and increasingly professional social care workforce? I hope that the Government will provide an answer to this point in their reply.

The care sector was in crisis before Covid-19. Local authority spending on adult social care in England has fallen, I think, by some 7% per person in the past decade, thanks to austerity and cuts in grants from central government. Councils have had to tighten eligibility thresholds as cost, rather than need, has become the dominant factor in decision-making. One inevitable result is that some 1.5 million elderly and disabled people have unmet care needs and care workers are often expected to deliver home care within a 15-minute visit or less.

The work is usually low paid and seriously undervalued. However, high-quality care is not low skilled and the Government’s apparent policy that the rising unemployment on which they are banking will solve problems of staff shortages is misguided and potentially dangerous. What is needed is a better funded and resourced care sector with a new focus on training and continuing professional development. We need a cultural change in how we view social care and the value we place on those who work in the sector, including the way in which the immigration system regards social care workers—a change that recognises that there is direct competition from the NHS for many care staff, an NHS that offers higher pay levels and a career structure. With nearly one-fifth of the adult social care workforce being from overseas, in a sector with already high levels of vacancies and turnover rates it is unrealistic to believe that the effect of shutting the door to future care sector staff being recruited in any numbers from overseas can be overcome in rapid time by finding and training appropriate personnel with an aptitude for care sector work from within the ranks of British citizens, both already employed and unemployed.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, this group of amendments, led by my noble friend Lady Hamwee, is about ensuring that the Government cannot legislate by regulation, contrary to the withdrawal agreement. This is a prescient set of amendments, tabled when it might not have been thought that there was a particular danger of that happening. However, the pronouncements and press reports since last night—there is some backtracking going on, however, which we will debate in the Chamber tomorrow—raise serious fears about the Government’s reliability and integrity in respecting the withdrawal agreement, and, indeed, any other treaty commitments. It raises the question of whether they can be trusted.

We will be debating separately the question of the Government’s refusal to give settled status applicants a physical document, not just a digital code. I will raise a brief query here: whether a digital code alone would satisfy the requirement in Article 18 of the withdrawal agreement for

“a document evidencing such status which may be in a digital form.”

Those latter words were added at the UK’s insistence, as we understand it, but it still talks about a document evidencing status. I wonder whether a digital code is a document.

Not least as a feature of the settled status scheme which has been flagged up by the3million, which does excellent work and has provided some fantastic briefing—I shall use this occasion to thank that organisation along with the organisation, British in Europe—non EU-national family members get a physical document in the form of a biometric residence permit. Since Article 12 of the withdrawal agreement requires the Government not to discriminate on the grounds of nationality, it is odd that EU citizens do not get a physical document but those in the family who are not EU citizens have a biometric residence permit. That is rather strange.

In the context of group 1, I raised comprehensive sickness insurance. The Minister said that the Government would use their discretion in deciding whether the absence of CSI in the past would bar a person from getting UK citizenship. I know that this will come up again in a later group. However, it is important to note that the UK is regarded by the European Commission as being in breach of EU law by insisting on the term “comprehensive sickness insurance” as it is in the 2004 citizens’ rights and freedom of movement directive. The Commission insists, as indeed MEPs did at the time, that this means only that relevant persons should have access to whatever the health system is locally, so the Government’s insistence that they should pay for private health insurance is, as I understand it, the subject of ongoing infringement proceedings.

In 2017, Prime Minister Theresa May promised EU citizens that the CSI—I prefer to call it private health insurance because that is what we are talking about—for those who had been economically inactive would be dropped as a requirement for settled status under the new system. However, what is happening now is that those people applying for citizenship are at risk of having their applications refused because in the past they did not have private health insurance, even though they had been told that they did not need it for their settled status application. When they apply for citizenship, they are told that retroactively they will be barred if they did not have private health insurance in the past. This feels like moving the goalposts, playing cat and mouse and so on, and the Government will not make any friends by this. The Minister referred to a power of discretion, but I do not believe that any details have been made known about how that would be applied, so that leaves people in the dark and in a state of anxiety.

I should mention also that Article 10 of the withdrawal agreement states that those covered by the citizens’ rights provisions of the agreement include

“Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law”.


Union law—that is, EU law—means that the ability to use the NHS qualifies as “comprehensive sickness insurance”; that is the view of the European Commission, which as I say is following infringement proceedings. If the Government persist with this, I fear that they will come up against problems under the withdrawal agreement and there is a risk that they would be seen to be acting in bad faith. The amendments in this group therefore insist that the Government must abide by the withdrawal agreement in making regulations under both Clause 4 and Clause 5, and that should include doing away with the retrospective demand. I hope that the Minister will be able to give us some reassurance on that point.

A great deal of justified concern has also been expressed about children either in or leaving care. I do not have time to talk about this now because it will come up again at least in part in a later group, but it is a matter of great concern. Local authorities, even with the best will in the world, have found over the past six months with the challenge of Covid that they have not had or have not applied the resources to assist children who ought to be applying under the settlement scheme. They are finding it very difficult to get the evidence together, so I hope that the Government can give some reassurance about the assistance that they will be given. We will also talk later about the dangers of another Windrush.

[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.

Channel Crossings in Small Boats

Lord Rosser 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.