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

Debate between Nick Thomas-Symonds and Stuart C McDonald

Thursday 28th February 2019 Public Bill Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure, as always, to serve under your chairmanship, Sir David. I rise to speak to amendment 21 and to support new clause 36—after a brief difference of opinion this morning, it is nice to be back on the same side as the SNP.

Rights mean very little without the means to enforce them. The amendment would put in place a provision regarding legal aid, without which we say the repeal of the retained EU law relating to free movement should not happen. In other words, clause 1 would come into force only in the circumstances set out in the amendment.

Let me say briefly about the EU settlement scheme that the provision of a right to appeal and the legal aid necessary to enforce it would remove any uncertainty about whether there was scrutiny of those decisions. The complexity of the scheme means that errors may well be made, and a right of appeal is the optimum way to secure legal entitlements.

Returning specifically to the amendment, cuts to legal aid are a huge issue for enforcement, but they are also a potential problem with respect to the lawyer who eventually has a case. That is not to suggest that junior lawyers and fee earners in some lower categories do not do an excellent job. They do, but it obviously cannot be fair for a more junior lawyer, or a lawyer without the requisite expertise, to end up taking a case simply on the basis of the money available, without regard to the necessary experience and expertise.

Cost is a huge problem. The withdrawal of legal aid means that, to get before a tribunal with a robust bundle of evidence that gives them some chance of being granted an appeal, people often have to find thousands of pounds—£1,000, £2,000 or perhaps even £3,000. That is the cost simply for getting a bundle of evidence together to go before a tribunal, before even considering whether there is a remote chance of success. All too often, people just cannot afford that.

The amendment, which relates to new clause 36, specifically seeks the provision of legal aid to assist European economic area and Swiss nationals with immigration matters. The context for the amendment is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which, on the commencement of its civil legal aid provisions on 1 April 2013, largely removed non-asylum immigration advice and representation from the scope of legal aid in England and Wales. Clearly, the ending of rights by clause 1 and schedule 1 will significantly extend the impact of the legal aid cuts made by the 2012 Act by fully subjecting EEA and Swiss nationals and their family members to the immigration system and requiring them to have leave to enter or remain in the UK.

Complexity is not the only reason why the general removal of legal aid for immigration advice and representation is of profound concern. I am grateful to Amnesty International for its thorough briefing, which sets out its concerns. The reality is that substantial evidential hurdles exist for anyone who is seeking to establish rights to private and family life in the UK and measures for the best interests of children. Even if someone who is representing themselves—a litigant in person—understands relevant legal requirements and procedures, they will still have to assess, collect and present the evidence that is required to demonstrate that the rules and other requirements are met. The issue is not only that it is a daunting task and prohibitively expensive, but that the tribunal system is simply not set up to help someone in that situation. Worse still, it is a false economy, because there is no doubt whatever that the provision of a lawyer who is expert in the field will speed up the proceedings, as opposed to the proceedings being slowed down because a number of people have to represent themselves before the tribunal.

The Government have said that they wish to avoid another Windrush scandal. In that case, they would do well to accept this amendment. I should just draw attention to the fact that I was a practising barrister before I entered Parliament and I remain a non-practising barrister. For completeness, I refer to my entry in the Register of Members’ Financial Interests in that regard. I urge the Minister to accept the amendment.

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

I will speak to new clause 36, but I also fully support everything that the hon. Member for Torfaen has said about amendment 21. I can be very brief, given what he has said. As was revealed earlier, I used to practise as an immigration lawyer; this was a decade ago. Back then, the immigration rules were horrendously complex, but since then there have been hundreds of changes to the immigration rules and they have multiplied in size. I cannot remember what the figure is, but the appendices have just about every letter of the alphabet in their title. The system is ludicrously complex. The issue is not just that the rules are complicated; as we have heard, the evidential requirements are also incredibly complicated.

It is easy enough to say that we hope the settled status scheme is not too complicated, but that is not an end to the matter. It will be complicated for many people to access. People also have to make decisions and understand whether they actually need to apply, and that could be hugely complicated for some people. Some people will not be sure whether they have British nationality. Some people will not understand whether their right to permanent residence under existing EU law means that they do or do not need to apply. There is the situation of Irish citizens, for example, in Northern Ireland. All sorts of people are already asking questions about how this system applies to them. It is not a straightforward matter.

[Stuart C. McDonald]

It is fair to say that MPs can provide some basic help, but they are not immigration lawyers. All hon. Members have to be cautious to ensure that they do not hand out legal advice. A Member might be approached, for example, by someone who is entitled to British citizenship or to register as a British citizen. To set them off down the route of applying for settled status would be to do them a disservice. We have to be very careful. Although the settled status scheme in itself might appear to be reasonably straightforward, that is not the end of the matter.

[Nick Thomas-Symonds]

I would make two points in response to the suggestion that has been made. First, no one should be giving uninsured legal opinions—obviously, that is what a lawyer would have—and, secondly, we are surely not saying that as a consequence of all the legal aid cuts that have been made, Members of Parliament should be picking up the slack when they are not trained to do so.

[Stuart C. McDonald]

Absolutely. Another thing that I will say to the hon. Member for Banff and Buchan is that, thankfully, one benefit of devolution—all those who were opposing devolution earlier should take note—is that people can choose a different path, and in Scotland we have not implemented LASPO. I think that LASPO is one of the most outrageous Acts of Parliament to have gone through this place. Thankfully, in Scotland, people will still be able to obtain immigration advice through legal aid. I strongly urge the hon. Gentleman to use that, rather than potentially getting himself into trouble if he makes mistakes with his immigration advice.

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

Debate between Nick Thomas-Symonds and Stuart C McDonald

Committee Debate: 2nd sitting: House of Commons
Tuesday 12th February 2019 Public Bill Committees

[Stuart C. McDonald]

Q Thank you. You mentioned concern with the low take-up in relation to the settled status scheme. Do you worry about the implications of that if staff members do not make the deadline put in place by the Government and would you support any moves to scrap that deadline or make the system a declaratory one?

Vivienne Stern: We have not called for the deadline to be extended or scrapped. We feel that there is time for us to get the message out that these individuals need to apply for settled status and we are certainly working on that front.

Our bigger concern is about the possible difficulties created by the no-deal Brexit scenario and by the regime that the Government have set out for an interim arrangement, between the point of a no-deal Brexit and the implementation of the new immigration system, which is currently being consulted on. There is a very significant concern about the time limits that will apply to those individuals who, having arrived in the UK after 29 March or whatever the date of Brexit is, have to apply for the European temporary leave to remain. That will only be valid for three years. A student who is planning to arrive in the UK after 29 March can come for three months—they don’t need anything for that three-month period. After that, we need something that gives people certainty that, if they are embarking on a programme that lasts longer than three years, they will not find they get towards their final year and, somehow, are not able to switch into a category that would allow them to remain in the UK.

It is that inability to say with certainty “Don’t worry, you come, you’ve got a status that will see you through this programme, you can stay to the end” that is tripping people up. Also, we need to be able to say to people “This is a registration scheme. It is not something you apply for and maybe you get and maybe you don’t.” If you have arrived in the UK, and you have started a programme—maybe a Scottish programme that lasts four years—you need to know that you are not going to be kicked out halfway through. If the Government could give some attention to that, we would be grateful. It’s not that we don’t appreciate that three years is longer than the period that would be covered by the withdrawal agreement—we do—but it is a kink and it could be ironed out.

Rosa Crawford: May I add a concern that we have about the settled status programme from those who have already been through the process? Some people are finding that they do not have sufficient evidence from their national insurance records to prove that they have had five years’ continuous residence in the country. Rather than settled status, they are receiving pre-settled status. The Government said that the intention is for pre-settled status to lead to indefinite leave to remain, but it is not a legally watertight guarantee, and we know from the Windrush scandal that any time there is a question mark over immigration status, it can, in the hands of the wrong employer, be used as a means to threaten or dismiss workers.

That is already a problem in the university and health sectors, and now we know that the third phase of the pilot is being rolled out across the economy. As I said, in many parts of the private sector, in distribution and hospitality, people often do not receive any employment contracts at all, so they struggle to provide evidence that they have five years of continuous residence. We worry that they might fall into a legal limbo in which they are unable to demonstrate their legal status, and potentially cannot claim their employment rights and are subject to further exploitation. We want that entire scheme looked at, and for the burden of proof to be taken away from the worker having to prove their five years’ continuous residence, in a more all-encompassing process.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Q Professor Kinnair, going back to the issue of the £30,000 threshold, I remember your “Scrap the cap” campaign very well, which I and many colleagues supported. You have done a great deal of work trying to raise nurses’ salaries, and I would be fully in favour of that. Is not the reality that at the moment there are 90,000 to 120,000 nurses from overseas in our NHS?

Professor Dame Donna Kinnair: EU and EEA.

Eurojust

Debate between Nick Thomas-Symonds and Stuart C McDonald

Monday 14th January 2019 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under you as Chair, Ms Ryan. With your leave, I will ask the Minister a number of questions. First, I thank members of the European Scrutiny Committee for their observations, the hon. Member for Luton North for opening the debate, and the Minister for not only his remarks today but the letter dated 11 January, which talks about the interrelationship between this opt-in decision and the withdrawal agreement as it stands.

I agree with the Minister that it is very important to send a signal that Britain is determined to maintain a very strong, mutually beneficial security relationship with the EU27 whatever the outcome of the next few weeks. I would like the Minister to deal with three matters specifically. Paragraph 88 of the political declaration states:

“The Parties recognise the value in facilitating operational cooperation between the United Kingdom’s and Members States’ law enforcement and judicial authorities, and will therefore work together to identify the terms for the United Kingdom’s cooperation via Europol and Eurojust.”

First, can the Minister confirm the progress that has been made on that? What planning has been put in place for our position in Eurojust beyond the transition period? Secondly, more specifically, can the Minister identify the model of co-operation for the UK’s participation in Eurojust that the Government are seeking to emulate? The EU’s chief negotiator, Michel Barnier, has made it clear that the UK would be a third country in such circumstances. How exactly do the Government intend to reconcile that with participation?

To give a specific example, an executive committee is created in the measure. Do the Government want to maintain full voting rights on that committee? Do they want observer status? Do they want to be on the committee without voting rights? It would be good if the Minister gave some sense of what the Government are looking to do about those kinds of practical questions, even if he cannot specifically answer them at this stage.

Finally, Eurojust, Europol, the European arrest warrant and data collaboration all form the ecosystem—or the tools, to change the metaphor slightly—of the security apparatus available to us, yet neither the Schengen information system, SIS II, nor the European criminal records information system even appear in the political declaration. Can the Minister set out the Government’s plans to streamline the process by which data can continue to be exchanged in a secure and expedient manner for the safety of people here and in the EU27?

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

It is a pleasure to serve under your chairmanship, Ms Ryan. I, too, 100% welcome the Government’s decision to opt into Eurojust, but I have a couple of quick questions. The first is a simple, practical one: has the Minister had any indication about when we might expect a decision from the European Commission? In particular, will it be before or after the proposed Brexit date?

My second question might seem like a bit of a lawyer’s question, but it arises from what the European Scrutiny Committee has said, if I understand it correctly—forgive me if I have not. In its report, the Committee posed a question about whether the terms of the withdrawal agreement would prevent the UK from opting in, if a decision on the opt-in was eventually made after Brexit, because it would amount to enhanced co-operation. If I understand the Minister correctly, however, he said in his letter that he does not think that it would be enhanced co-operation. Could he say more about how the Government distinguish between enhanced co-operation and something that is essentially different?

If the Committee is right about that, or if, during the two-year transition or implementation period, a new justice and home affairs measure amounts to enhanced co-operation, do the Government believe that the terms of the withdrawal agreement will indeed preclude the United Kingdom opting into those measures? If so, what do the Government have planned to try to get around any difficulties that that might cause—for example, the ejection of the UK from existing measures if it cannot opt into enhanced measures?