Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fifth sitting)
Stuart C McDonald Excerpts(5 years, 9 months ago)
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The Minister for Immigration (Caroline Nokes)
It is a pleasure to serve under your chairmanship, Mr Stringer, and that of your co-Chair, Sir David Amess, who took us so ably through the evidence sessions the week before last.
At the outset, I would like to emphasise the importance of the Bill in delivering the future border and immigration system. It was clear from the EU referendum, from the many views shared on Second Reading and from the Committee’s evidence sessions that people want a fair immigration system that works for the whole United Kingdom—a system that attracts talent from around the globe and allows individuals to access the UK based on what they have to offer, not where they come from.
We heard many important views about the current and future border and immigration systems from witnesses who gave evidence before the Committee two weeks ago, as well as from organisations that provided written evidence. I am grateful to everyone who took the time to provide their opinions. The views that were put forward demonstrated a strong interest in a wide range of immigration issues, as well as in the specific design of the future system. The evidence highlighted the importance of learning lessons from the past and ensuring we get things right.
A clear message emerged about the need to create a fair and simple system, and those are key priorities for me in the design of the future system. As I have said previously, I recognise that the immigration rules need to be made simpler. That is why we have asked the Law Commission to review how the rules could be simplified. I look forward to considering its findings when they are published.
Leaving the European Union means that, for the first time in more than 40 years, we can deliver control of immigration by ending free movement. In its place, we will introduce a new system, which will level the playing field by ending preferential treatment for EU citizens. It will mean that everyone has the same opportunity to come to the UK, regardless of where they are from.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I am grateful to the Minister for giving way so early. She has asserted a couple of times that the new system will provide a level playing field for everybody, but the White Paper indicates that nationals of different countries will be treated in different ways. There will, I reckon, be preferential treatment for EU nationals with the one-year visa and for countries whose citizens are already non-visa nationals. Will she clarify that? Is she saying everybody is going to be treated exactly the same, or does she accept that the White Paper in fact does not set out such an arrangement?
Caroline Nokes
The Bill certainly does set out that people will be treated in the same way, because it is a Bill simply to end free movement. The White Paper, which was published on 18 December, gives us the opportunity to discuss the future system and how people from across the globe may be treated. It gives us the opportunity to discuss whether trade deals might include treatment within our immigration system. It is important that we have a system that reflects people’s skills and what we need in our economy. This Bill, through which we are seeking to end free movement, is an opportunity to start to provide that level playing field.
Afzal Khan
I agree wholeheartedly with my hon. Friend’s comments. Labour has tabled a number of new clauses to the Bill that would put the rights of EU citizens into primary legislation. We hope that the Government accept those when we get to that point.
The second question is what our new immigration system should be doing in the future. The Bill is incredibly flimsy; it is only 16 pages long, which is extraordinary given that it will mean the biggest change to our immigration system in decades. Instead of putting forward a new immigration system that Parliament can discuss and debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like through extensive Henry VIII powers. We were given an indication of what such a system might be like in the White Paper published by the Government in December. In fact, Ministers are under no obligation to use the powers to implement that system. If they implement the system described in the White Paper, it will spell disaster for our economy and our society.
We will go into these matters in more depth in subsequent debates, but expert witnesses at our evidence sessions criticised almost all aspects of the Government’s plans. The £30,000 threshold would be a disaster for business and public services such as the NHS. The 12-month visa would lead to exploitation. Labour has no problem with immigration that would treat all migrants the same no matter where they came from, but that is not the system the Government propose. The White Paper is explicit that there will be certain visas and conditions that will apply only to people from “low-risk countries”—a categorisation that the Government are not at all transparent about. Apart from those two glaring absences, the Bill before us fails to address a litany of problems with our immigration system, some of which we seek to remedy through our amendments.
Before I conclude, I have two questions that I would like the Minister to address. First, under what circumstances would the Government use the powers in the Bill? We have heard that this is a contingency Bill, so if there is a withdrawal agreement and thus a withdrawal and implementation Bill, will the Government use powers in that Bill to repeal free movement? Secondly, could the provisions in this Bill lead to a change in immigration law that affects non-European economic area migrants? Could the Government use the powers in the Bill to amend immigration legislation that affects non-EU citizens?
As the Minister will know, the Government are asking for extensive Henry VIII powers. During our Committee sittings, Adrian Berry, Steve Valdez-Symonds and Martin Hoare, all experts in immigration law, confirmed to me that the powers in the Bill could be used to make legislation affecting non-EU citizens. Is the Minister willing to contradict the experts? Does she agree that, if it is indeed the case that the powers in the Bill could be used to make legislation that affects non-EU citizens, its scope is much wider than the end of free movement?
Stuart C. McDonald
It is a pleasure to serve under your chairmanship, Mr Stringer. I thank the Clerks for working their way through a mountain of amendments and making them presentable in the last few days. I thank the various organisations and individuals for their help and ideas for amendments, and I thank the shadow Minister for engaging with us over the last couple of days. Any flaws in the amendments we have tabled are my responsibility alone. Finally, I thank the Minister; she has been very open to discussion, approachable and good humoured, as ever. The fact that I can’t stand the Bill and utterly oppose it should not be taken personally. Hopefully, we will still be able to have some useful and constructive debates.
I will not rehash all the points I made on Second Reading. I love free movement; my party fully supports it and I pretty much believe it is the best thing since sliced bread. I regret that it is in danger of coming to an end. It will leave the United Kingdom in an unusual position historically. This country has, for almost its entire history, allowed certain citizens to come and go, whether EU citizens, Commonwealth citizens or, before that, absolutely everybody. All the evidence is that free movement is beneficial to us, for growth, productivity and public finances. In Scotland, it has transformed our demographic outlook from a country of net immigration to a country of positive migration. The quid pro quo for all this is that we will lose our free movement rights. My family and I have benefited from free movement, as have many Members, including on this Committee. I regret that this Parliament will pull up the ladder behind it.
The challenges of free movement that are often cited will not be solved by ending free movement but by proper labour market standards and enforcement, by integration strategies and by investment in public services. Neither do the justifications for ending free movement stack up. Indeed, it was striking in the Minister’s speech and in the speeches of some Government Members on Second Reading how little free movement and the supposed justifications for ending it were addressed.
It is wrong to say that people voted to end free movement, because it was not on the ballot paper. To argue the contrary is to argue that almost 100% of leave voters were motivated by that alone. That is not the case. This is the Prime Minister’s red line, not the people’s red line. Opinion polls and studies show that if it comes to a choice between a closer trading relationship with Europe and ending free movement, a closer trading relationship wins. Simply repeating ad nauseam that we are “taking back control of our borders” is not an argument.
Now is the most bizarre moment for MPs to consider voting to end free movement. Parliament hopefully is on the verge of taking control. Who knows what trading arrangements may be secured, perhaps involving free movement. A people’s vote is even more on the cards than it was at the time of Second Reading. As the shadow Minister said, the Bill puts the cart before the horse. Let us sort out our negotiating position first, then we can decide what that means for free movement. If the public are happy enough to retain free movement for a closer trading arrangement, it is wrong for MPs to rule it out at this stage. There is no need to rush through the end of free movement, even if we do leave in a month’s time. For those reasons, my party believes that the clause should not stand part of the Bill.
Kate Green
It is a pleasure to serve under your chairmanship, Mr Stringer. I echo the comments of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in thanking the Minister for being so open to colleagues in preparing for consideration of the Bill over the next two weeks.
I, too, believe that freedom of movement has been good for our country and particularly for my constituency. We are a proud manufacturing constituency that offers many skilled jobs, and we have relied heavily over the years on the skills and talents of EEA nationals who come to work in our industries. It is clear that north-west England is destined to suffer most economically from loss of access to EEA labour under free movement rules.
I echo the hon. Gentleman’s remarks about public opinion on freedom of movement. A couple of years ago I had the pleasure to participate in a citizens’ assembly organised by the Constitution Unit of University College London. One of the questions that the participants were asked to address was what kind of immigration arrangements they wanted with the European Union after Brexit. This was a deliberative process carried out with a representative sample of over 100 individuals, exactly mirroring the demographic of the referendum electorate in terms of the vote—leave or remain—geography, ethnicity, age, background and so on.
Caroline Nokes
The hon. Gentleman raises an important point. If we have learned one thing from Windrush—and I sincerely hope we have learned many—it is that a declaratory system that does not give people the evidence they need to be able to affirm their right to be in the UK, to work and own property, does not work. That is why we have a scheme that I am confident will give people the evidence they need so that we can avoid a position whereby EU citizens who are here and settled are in the same situation in the future. I am conscious—Members may have heard me say this in Select Committees—that there will be children of EU citizens living in this country today who are well under the age of 16; some will be one or two years old. The hon. Member for Wirral South mentioned an ageing population and longevity, but while we in this room might be lucky to get to our late 80s, there are children who will live to 100 or 110. It is therefore important we have something that is enduring and enables them to evidence their right to be here for a century or more.
Stuart C. McDonald
A new argument appeared for the first time yesterday at Home Office questions, saying the problem was caused because Windrush was what Ministers describe as a declaratory system. That was not what caused the problem; the problem was the lack of evidence. In fact, if people did not have rights under statute—as we would like to see here—they could have been removed ages ago and could not have rectified the situation. It is not right to say that a declaratory system caused the problem to the Windrush generation.
Caroline Nokes
I disagree. If we look back to the Immigration Act 1971—I have become quite familiar with that Act over the past year in this job—it put the right of the people of the Windrush generation to be here in statute, but it did not provide them with the evidence they needed to demonstrate that. It is important we learn that lesson and make sure we do not repeat the mistake for our EU citizens.
Stuart C. McDonald
I beg to move amendment 29, in clause 2, page 1, line 11, at end insert—
“(1A) After section 2A insert—
‘2B Family members of Irish citizens
Nothing in the Immigration Rules (within the meaning of this Act) shall lay down any practice that treats or provides for the family members of Irish citizens differently to the treatment or provision made for the family member of British citizens.’”
This amendment seeks to ensure that the family members of Irish citizens are treated in the same way as the family members of British citizens.
The Chair
With this it will be convenient to discuss amendment 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”
This amendment would provide additional safeguards against deportation for Irish citizens.
Stuart C. McDonald
Clause 2 concerns the special status of Irish citizens in the UK in immigration law. It is probably fair to say that although we often refer to the common travel area, and although we know how it works in practice and have a broad idea of the practical reasons why it exists, the actual law here is pretty obscure, vague and not very well understood. I apologise if I have maligned any Committee members who are in fact experts in this area of immigration law.
In recent years it probably has not been a concern, largely because free movement means that it has not really mattered. That now changes completely if free movement is stopped, and clause 2 is one of the steps that we need to take to ensure that the status of Irish citizens here is protected. Parts of clause 2 are welcome because, if clause 2 were not part of the law, although Irish citizens could still come to the UK without immigration control if they were coming from another part of the common travel area, if free movement ended they would have no such right if they arrived in the UK from outside the common travel area, whether on a plane from New York or a train from Paris. Clause 2 confirms the right of Irish citizens to enter and remain without permission—even if free movement rights end—irrespective of where they entered the UK from, unless they are subject to a deportation order, exclusion order or international travel ban.
The question is: does clause 2 go far enough? The evidence received in writing and heard at hearings suggests that it does not. There are other aspects of the special status that we need to have a look at as well. There is one sense in which clause 2 appears to undermine the special status afforded to Irish citizens, and that is in relation to deportation.
As Professor Ryan pointed out in his evidence, the clause provides that Irish citizens may be deported under the general deportation laws of this country—those that apply to everybody else—under the Immigration Act 1971. Those apply to: a person whose deportation the Secretary of State deems conducive to the public good, including under the controversial mandatory deportation provisions of the UK Borders Act 2007; a person whom a court recommends for deportation at the time of conviction for a criminal offence punishable by imprisonment; and a family member of a person who is or has been ordered to be deported.
The clause would also introduce a specific new power to exclude Irish citizens from the United Kingdom if the Secretary of State considers that to be conducive to the public good. However, in doing so the Bill does not imply any particular special protection regarding the threshold for the deportation or exclusion of Irish citizens. The stated policy of the Government in 2007, according to the then Immigration Minister, was:
“Irish citizens will only be considered for deportation where a court has recommended deportation in sentencing or where the Secretary of State concludes, due to the exceptional circumstances of the case, the public interest requires deportation.”—[Official Report, 19 February 2007; Vol. 457, c. 4WS.]
That is a higher test than would be applied by clause 2, and we heard evidence suggesting that the clause would water down the position of Irish citizens. In that regard, it might be useful to note that, by virtue of their exemption from Irish immigration law, British citizens are completely immune from deportation and exclusion under Irish law. Indeed, other evidence sent to us from a group of academics goes further, and asks why, if Irish citizens are “not foreign” according to the Ireland Act 1949, we need to retain the power to deport them at all. Ireland has not retained the equivalent power.
Professor Ryan raised a further important question about whether, to comply with the Belfast agreement, there should be an exemption from deportation and exclusion for Irish citizens who are from Northern Ireland. Under the Belfast agreement, both Governments recognised the birthright of all people of Northern Ireland to identify themselves as, and be accepted as, Irish, British or both, as they may so choose. As Professor Ryan puts it:
“There is a risk that, as formulated, the deportation and exclusion clauses will fail to respect the right of a person from Northern Ireland who wishes to identify as an Irish citizen.”
He questions whether it is compatible with the Belfast agreement to require a person from Northern Ireland to assert their British identity in order to resist deportation to Ireland. There might even be circumstances in which UK nationality had been renounced.
Those are the issues that amendment 28 is designed to address. It seeks to enshrine in law what is supposedly current Government practice, instead of watering down that standard on deportation. It also seeks to ensure that clause 2 does not in any way undermine the Belfast agreement. I am sure that everyone in this room today would agree that it is important that we get these things right. My final observation in that regard is that, according to Professor Ryan, as I have said, there is no provision in Irish law to deport UK nationals.
Amendment 29 probes the Government, seeking an explanation of what the exact position will be of Irish nationals who seek to have family members join them—if and when the normal family rules in the immigration rules are applied to them. As we will come to later—perhaps today, or on Thursday—I absolutely hate those draconian and restrictive rules, but at least they are there, allowing British citizens and settled persons to be joined by family members. As Professor Ryan points out, the immigration rules will allow for UK citizens returning to the UK to be accompanied by non-UK or Irish family, and for UK citizens and settled persons already here to be joined by non-UK or Irish family. That last bit should apply simply enough to Irish nationals as well, because clause 2, if passed, would appear to mean that Irish persons would be treated as settled persons for the purposes of the rules. I should be grateful for confirmation that that is the case.
The second problem is that it seems, from the clause’s drafting, that Irish persons moving here with such family would not be able to use the rules in the way that a UK citizen could, because they would not yet be settled persons. The Irish person would need to come here first and become settled, and their family would join them later. Another issue is whether the rules in other respects will treat the family members of an Irish citizen in precisely the same way as they treat family members of UK citizens. In particular, if a UK national has a UK national child here, as we all know, the child would not cause the financial threshold to increase if any application was made by an overseas spouse to join them. Would the presence of an Irish citizen child of an Irish citizen result in the financial threshold being increased for any spouse coming to join that family?
Amendment 29 simply seeks to ensure that Irish citizens will be treated in the same way as UK nationals. I will not press it to a vote, however, because as the Committee on the Administration of Justice, a cross-community human rights organisation in Northern Ireland, rightly points out, it may need to be tweaked to ensure that it does not prevent Irish citizens from benefiting from the more favourable treatment that EU families may continue to enjoy for a period through retained EU law, in comparison with UK citizens and settled persons encumbered with the immigration rules. The amendment should probably preclude less favourable treatment rather than different treatment. The CAJ’s submission goes further, supporting the view of the human rights commissions that the common travel area is “written in sand” and warning of “other gaps”, including in relation to social rights.
Caroline Nokes
I thank hon. Members for raising important issues linked to Irish citizens. It is important to recognise that British and Irish citizens have enjoyed a particular status and specific rights in each other’s countries since the 1920s as part of the common travel area arrangements.
Clause 2 will protect the status of Irish citizens. When free movement ends, it will allow them to continue to come to the UK without requiring permission and without any restrictions on how long they can stay. British citizens enjoy reciprocal rights in Ireland. The clause will provide legal certainty and clarity for Irish citizens by inserting new section 3ZA into the Immigration Act 1971 to ensure that they can enter and remain in the UK without requiring permission, regardless of where they have travelled from. That is already the position for those who enter the UK from within the common travel area, but Irish citizens who travel to the UK from outside the CTA currently enter under European economic area regulations. The clause will remove that distinction by giving Irish citizens a clear status.
I turn to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, and for Paisley and Renfrewshire North. Amendment 29 would establish in legislation that the immigration rules cannot treat family members of Irish citizens differently from family members of British citizens. The common travel area arrangements have never included rights for the family members of British and Irish citizens. That is an approach that we intend to maintain, but the unique status of Irish citizens means that they are considered settled from the day on which they arrive in the United Kingdom. Irish citizens in the UK can therefore sponsor family members, in the same way as British citizens can. That is the position for those of all nationalities within the UK who are settled.
I also note that Irish citizens, in line with other EU nationals, can be joined in the UK by family members under the terms of the EU settlement scheme, but the amendment would prevent that. To be clear, Irish citizens are not required to apply for status under the EU settlement scheme to benefit from the family member rights, but they may apply if they wish. Under the settlement scheme in a deal scenario, close family members who are not already resident in the UK will be able to join an EU citizen—that includes Irish citizens—under the same conditions as now, where the relationship pre-existed the end of the implementation period. I therefore ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to consider withdrawing his amendment for the reasons that I have outlined.
Amendment 28 would introduce additional provisions regarding the deportation and exclusion of Irish citizens and their family members. I will use this opportunity to reiterate our approach to deporting Irish citizens in light of the historical community and political ties between the UK and Ireland, along with the existence of the common travel area. Irish citizens are considered for deportation only if a court has recommended deportation following conviction or if the Secretary of State concludes that, because of the exceptional circumstances of a case, the public interest requires deportation. We carefully assess all deportation decisions on a case-by-case basis, taking into account all the facts of the case.
In response to questions asked on Second Reading, I confirmed that the Government are fully committed to maintaining this approach. In that regard, Committee members will have noted that we are making provision to ensure that once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007. That exemption is contained in the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid before the House on 11 February. Therefore, proposed new subsections (6) and (8) are not needed.
As I have outlined, the UK’s approach is to deport Irish citizens only in exceptional circumstances or where the court has recommended it, which means that a family member of an Irish citizen would not be considered for deportation unless a deportation order was made in respect of that citizen in line with our approach. I also emphasise that the common travel area rights have always provided solely for British and Irish citizens. They have never specifically extended to the family members of British or Irish citizens, and we intend to maintain that approach.
With proposed new subsection (8) in mind, I must make it absolutely clear that the UK is fully committed to upholding the Belfast agreement and respects the right of the people of Northern Ireland to identify as Irish, British or both, and to hold both British and Irish citizenship as they choose. I recognise the centrality of those citizenship and identity provisions to the Belfast agreement. As I have said, deportation decisions are taken on a case-by-case basis, and we consider the seriousness of the criminality and whether it is in the public interest to require deportation.
Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully and not seek to deport a person from Northern Ireland who is solely an Irish citizen. However, I recognise the hon. Gentleman’s interest in this matter and will continue to keep it under consideration. I therefore respectfully ask him to consider withdrawing his amendment for the reasons outlined.
Stuart C. McDonald
I am grateful to the Minister for her detailed response. As I have accepted, amendment 29 is not perfect. I also accept her general reassurances about the treatment of Irish citizens’ families in the United Kingdom, so I will withdraw the amendment and reflect further on our position.
In relation to what the Minister said about deportations and amendment 28, it seems to me that we are mostly saying the same things, but our statements are reflected better in my amendment than in the clause. We seem to be saying the same thing, but reaching different conclusions about how to enshrine it in law. I am simply asking the Government to put their current practice into statute. I will give further thought to that, but for now I beg to ask leave to withdraw amendment 29.
Amendment, by leave, withdrawn.
Amendment proposed: 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”—(Stuart C. McDonald.)
This amendment would provide additional safeguards against deportation for Irish citizens.
Question put, That the amendment be made.
Caroline Nokes
As I said in response to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North, the clause will protect the status of Irish citizens in the UK when free movement ends. Without the clause, as Professor Ryan explained in evidence to the Committee, when freedom of movement ends, Irish citizens will need to seek permission to enter the UK when they arrive from outside the common travel area. I am sure all members of the Committee agree that that would be wholly unacceptable.
In addition to the evidence from Professor Ryan, I also welcome the written evidence from the Committee on the Administration of Justice, which notes that the clause is
“designed to remedy the gap for Irish citizens being able to enter and reside in the UK from outside the CTA”.
Dr de Mars, Mr Murray, Professor O’Donoghue and Dr Warwick highlight that the clause will help to clarify and simplify travel rights under the common travel area.
The Government are clear that, as now, Irish citizens should not be subject to immigration control unless they are subject to a deportation or exclusion order, or to an international travel ban. Those exceptions are set out in the Bill, and they reflect current and long-standing practice. I confirm that our approach is to deport Irish citizens only if there are exceptional circumstances, or if a court has recommended deportation in a criminal case.
Stuart C. McDonald
This is the crux of the matter—the Minister is confirming an approach that appears to be different from the one set out in the clause. Why not just include the Government’s approach to this issue in the Bill?
Caroline Nokes
The hon. Gentleman will be aware that he just lost a Division on that matter, but I am sure we will return to it on Report. He may consider his drafting to be better than that of my Home Office officials, but I must take a contrary view. I confirmed the Government’s approach in response to questions raised on Second Reading, and, as members of the Committee will have noted, once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007.
The clause amends section 9 of the Immigration Act 1971 so that restrictions placed on those who enter the UK from the CTA by order under that section will not apply to Irish citizens. It also amends schedule 4 to that Act, which deals with the integration of UK law and the immigration law of the islands—Jersey, Guernsey and the Isle of Man. The schedule provides broadly that leave granted or refused in the islands has the same effect as leave granted or refused in the UK. The clause disapplies those provisions in relation to Irish citizens who do not require such leave under the Bill. They also make it lawful for an Irish citizen—unless they are subject to a deportation or exclusion order—to enter the UK from the islands, regardless of their status in them.
The clause aims to support the wider reciprocal rights enjoyed by British and Irish citizens in the other state. Citizens will continue to work, study, access healthcare and social security benefits, and vote in certain elections when they are in the other state. I reiterate that once free movement ends, Irish citizens in the UK will be able to bring family members to the UK on the same basis as British citizens, because they are considered to be settled from day one of their arrival in the UK.
Caroline Nokes
Clause 3 is minor and technical in nature, but it is important for the implementation of the Bill and to ensure that we have a fully functioning statute book. Subsection (1) ensures that the Bill, when enacted, will be covered by any reference to “the Immigration Acts”, which are the Acts of Parliament that govern the UK’s immigration system. They enable, for example, grants of leave to enter and remain, and the deportation of individuals.
References to the Immigration Acts can be found across the statute book. For example, section 55 of the Borders, Citizenship and Immigration Act 2009 requires that functions conferred by virtue of the Immigration Acts are discharged having regard to the need to safeguard and promote the welfare of children in the UK. Clause 3 will ensure that functions conferred by regulations under the Bill must be discharged according to that duty in relation to the best interests of children. Such a provision is standard for an immigration Bill, and clauses that have the same purpose and effect are included in previous Immigration Acts. For example, section 73 of the Immigration Act 2014 and section 92 of the Immigration Act 2016 both provide that those Acts are included in the definition of Immigration Acts.
Subsection (2) clarifies that the Bill is not retained EU law. That means that it is not part of the body of law that will have been saved in UK law by the European Union (Withdrawal) Act 2018. It is important to make it clear that the Bill cannot be treated as retained EU law. For example, it cannot be amended by the deficiencies power under section 8 of the European Union (Withdrawal) Act or any other powers to deal with retained EU law.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Consequential etc provision
Stuart C. McDonald
I beg to move amendment 4, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”.
This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.
The Chair
With this it will be convenient to discuss the following:
Amendment 1, in clause 4, page 2, line 34, leave out “, or in connection with,”.
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 11, in clause 4, page 3, line 1, leave out “make provisions applying” and insert
“give leave to enter the United Kingdom”.
Amendment 2, in clause 4, page 3, line 8, leave out subsection (5).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 3, in clause 4, page 3, line 11, leave out subsection (6).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 5, in clause 4, page 3, line 17, leave out “other”.
This amendment is consequential on Amendment 3.
Amendment 6, in clause 4, page 3, line 17, leave out from “subsection (1)” to “is” on line 19.
This amendment, along with Amendment 7, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 12, in clause 4, page 3, line 18, leave out
“that amend or repeal any provision of primary legislation (whether alone or with any other provision)”.
This amendment would mean that all regulations made under Clause 4 would be subject to the affirmative procedure.
Amendment 7, in clause 4, page 3, line 21, leave out subsection (8).
This amendment, along with Amendment 6, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 10, in clause 7, page 5, line 44, at end insert—
“(10A) Section 4 and section 7(5) of this Act expire at the end of a period of one year beginning with the day on which this Act is passed.”
This amendment would place a time limit on the Henry VIII powers contained in Clause 4.
Stuart C. McDonald
It was a little while after my first election in 2015 that I first heard the term “Henry VIII clause,” but I have become very familiar with it since then. The clauses in the Immigration Act 2016 were outrageous enough, but they are small beer compared with the powers the Government have helped themselves to in the European Union (Withdrawal) Act and in this Bill. There is no need to take my word for it; we have ample evidence. The amendments are largely based on submissions from the Law Society of Scotland and the report of the House of Lords Delegated Powers and Regulatory Reform Committee. I am very grateful to both. It is unusual to have the benefit of the Lords Committee report for a Commons Bill, but it has certainly proved helpful. The Committee said:
“The combination of the subjective test of appropriateness, the words ‘in connection with Part 1’, the subject matter of Part 1 and the large number of persons who will be affected, make this a very significant delegation of power from Parliament to the Executive. The scope of this broad power is expanded even further by subsections (2) to (5).”
If we are serious about our role as legislators and about separating the Executive from the legislature, we must start putting our foot down and reining in these clauses. Otherwise, what on earth are we here for?
We can start that process through amendment 4, by replacing the subjective test of appropriateness. Through amendment 1 we can ditch the phrase “in connection with”. The Committee was absolutely scathing here. It said:
“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation)”.
Amendment 2 is also from the House of Lords Committee’s recommendations. It removes clause 4(5). It noted that subsection (5)
“confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who pre-exit would have had free movement rights under EU law”.
It recommended removal
“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power”.
That is the challenge for the Minister this morning.
As for the Government’s justifications and the memorandum on delegated powers stating that the powers are needed to protect EEA citizens, it is fair to say that the Committee was not persuaded. It said:
“We believe that transitional arrangements to protect existing legal rights of EEA nationals should appear on the face of the Bill, and not simply left to regulations with no opportunity for parliamentary scrutiny until after they have been made and come into force.”
That is exactly what Opposition MPs have sought to do with other amendments that we will come to later. The consequence of that for the Committee was that there would be no need to use made affirmative procedures set out in clause 4(6). It recommended removal of that subsection, which is what my amendments 3 and 5 seek to do. The very unusual made affirmative procedure means that the regulations are actually in force when they are tabled in the House of Commons before we have even voted on them. Our position is that the more common affirmative procedures should be followed, and instruments should be laid in draft and should not come into force until we examine and approve them—hence amendments 6 and 7.
I conclude with some comments by the Law Society of Scotland. It said:
“The abrogation of parliamentary scrutiny is deeply concerning and the cumulative effect of these provisions is to reduce the role of parliamentary scrutiny of legislation relating to immigration, both EU and non-EU”.
For all these reasons, I hope that the Government will listen carefully and rein in their desires for extensive delegated powers under clause 4.
Afzal Khan
I wish to speak to amendments 11, 12 and 10. Throughout the Brexit process, the Government have been carrying out a power grab, acquiring powers to amend primary and secondary legislation with little parliamentary scrutiny. The debates on Brexit legislation have shown that there is cross-party support for limiting Henry VIII powers. Back Benchers on both sides of the House recognise that Parliament’s role in making legislation is crucial and must be protected. We accept that there will be aspects of statutory legislation that the Government will need to adjust as a result of ending free movement; we need a functional statute book. However, there must be limits on these powers to ensure that Ministers cannot make significant policy changes, including to primary legislation through statutory instruments.
Currently, scrutiny of secondary legislation is weak. Statutory instruments are unamendable and the Government have a majority on all SI Committees—if the SI even gets a Committee. Those subject to the negative procedure may never even be discussed by parliamentarians, as Adrian Berry said in our evidence session. He said:
“It is true that you have the affirmative resolution procedure, but it is clearly a poor substitute for primary legislation and the scrutiny you get in Select Committees.”—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 90, Q221.]
He recommended the Henry VIII powers be radically redrawn. We know that the Government plan a major overhaul of our immigration system for EU and non-EU migrants set out in the White Paper. There is a risk that these powers could be used to bring in that entirely new system. Will the Minister confirm whether the Government would use the powers in the Bill to bring in the new system or if there would be a new immigration Bill? If there will be another Bill, when might it come? Would it be in addition to a withdrawal and implementation Bill, if we get a withdrawal agreement?
Immigration is already an area where the Government have extensive delegated powers. Since 1971, almost all major changes to our immigration system have been made through the immigration rules. We want to move to a situation in which there is more scrutiny of immigration changes, not less.
Labour has many issues with the proposed immigration system, but we broadly believe in the principle that certain major changes should have the chance to be fully discussed and debated before they are introduced. We are being asked to take it on trust that Ministers will not abuse the powers delegated to them in this clause. In the wake of Windrush, we should be particularly sceptical of this Government’s promises. The Windrush scandal was the result of a long period of under-the-radar changes to immigration rules, which chipped away at the rights of Windrush migrants and plunged their status in the UK into uncertainty. In the aftermath of Windrush, we should be particularly attentive to the risks of allowing Ministers the power to amend people’s rights after they have been debated and enshrined in primary legislation.
Clause 4 offers the Government a blank cheque to change our immigration laws and reduces the level of parliamentary scrutiny of immigration legislation. The Labour amendment and the SNP amendments, which we support, do four things.
First, they limit the scope of the powers. As currently drafted, changes to our immigration laws will be only in consequence of or in connection with the withdrawal of EU free movement legislation. We support the SNP’s amendment 1, which would limit the scope here. We support amendment 4, which would allow the Secretary of State to make only changes that are necessary rather than those that the Minister considers appropriate. The House of Lords Delegated Powers and Regulatory Reform Committee recommended the amendments because it was disturbed by the use of “in connection with”, as it would confer primary powers on Ministers to make whatever legislation they considered appropriate, provided that there was at least some connection with part 1, however tenuous, and to do so by negative procedure regulations.
Amendment 2 would prevent the Secretary of State making changes to fees and charges. Labour has tabled new clause 38, which states that visa fees should be set at cost price. The Delegated Powers and Regulatory Reform Committee raised significant concern about subsection (5) as it confers broad discretion on the Minister to levy fees or charges on any person seeking leave to enter or remain in the UK who would have had free movement rights under EU laws pre-exit. Fees are already so high that they are unaffordable. The Home Office makes enormous profits out of visa fees, and it is concerning that the Government are granting themselves the power to increase them even further.
Secondly, these amendments limit the nature of these powers. Amendment 11 in my name would allow Ministers to grant status to a group of EEA nationals but not allow them to remove any such rights without primary legislation. I am grateful to the Immigration Law Practitioners Association for its help in drafting it. We believe this is a vital safeguard and that right to remain should be set in stone, and not subject to amendment or to being removed by secondary legislation.
Thirdly, these amendments improve the scrutiny that changes to immigration rules will be subject to. Clause 4(6) sets out that some immigration rules may be made by the made affirmative procedure, which means that they will be assigned into law before being laid in Parliament. There is then a period of 40 days in which the House must approve them or they will cease to have effect. The House of Lords Committee recommended that this be removed, which is what amendment 3 does. Amendments 12, 13 and 7 will ensure that immigration rules are subject to the affirmative procedure. Labour has tabled new clause 9, which will subject them to super-affirmative procedure. Our immigration rules have an enormous impact on people’s lives, but they often receive very little scrutiny. The made affirmative procedure means that they will receive no scrutiny before coming into effect and that scrutiny will only be retrospective.
Fourthly and finally, amendment 10 will place a time limit on the Henry VIII powers in clause 4. The Government have said that they will review the White Paper proposal for 12 months. The sunset clause should ensure that they can use the Henry VIII powers in clause 4 to make small amendments to the legislation, but that at the point at which they will make bigger changes, the Henry VIII powers will expire.
We have serious concerns about the extent of the delegated powers in clause 4. Our amendments and the amendments tabled by the SNP would go a long way to limit the powers and would ensure that changes to immigration policy are properly scrutinised.
Stuart C. McDonald
I am grateful to the Minister for her detailed response; she said she would go into the detail and she certainly did not disappoint. The one defence that does not really fly with me is that similar powers have been used in previous immigration Bills. I objected very strongly to some of the powers that appeared in previous immigration Bills, and certainly to those in the immigration Bill before this one. However, she gave useful examples of how the powers will have to be used. We will have to go away, think carefully about what she said and reflect on whether changes are needed.
The amendment about which I was not fully satisfied by the Minister’s answer, and which I still wish to push to a vote, is amendment 1. In my view, tidying up the statute book and putting in place transitional provisions, as the Minister gave as examples, would surely meet the “in consequence” test, and so the very loose “in connection with” test would not be needed. I also agree with the Lords Committee that transitional arrangements should be in the Bill, first to cover a no-deal scenario, secondly because it would be useful for the UK in Europe in such a no-deal scenario when trying to push other Governments around the EU for reciprocal treatment, and finally because the Bill is a much safer place for it to be than in delegated legislation.
I also have some concerns about the response to amendments 3 and 5 on the different types of affirmative procedure. I still find it startling that we are even contemplating, in a no-deal scenario, an end to free movement within a few weeks’ time. I do not think this country is remotely ready for any such prospect at all; a far more sensible option would be to put in place arrangements for free movement to continue even in a no-deal scenario until we are properly ready to make any changes that are agreed upon. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 1, in clause 4, page 2, line 34, leave out “, or in connection with,”.—(Stuart C. McDonald.)
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Question put, That the amendment be made.
Immigration and Social Security Coordination (EU Withdrawal) Bill (Fifth sitting)
Stuart C McDonald ExcerptsTuesday 26th February 2019
(5 years, 9 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 February 2019 - (26 Feb 2019)
The Minister for Immigration (Caroline Nokes)
It is a pleasure to serve under your chairmanship, Mr Stringer, and that of your co-Chair, Sir David Amess, who took us so ably through the evidence sessions the week before last.
At the outset, I would like to emphasise the importance of the Bill in delivering the future border and immigration system. It was clear from the EU referendum, from the many views shared on Second Reading and from the Committee’s evidence sessions that people want a fair immigration system that works for the whole United Kingdom—a system that attracts talent from around the globe and allows individuals to access the UK based on what they have to offer, not where they come from.
We heard many important views about the current and future border and immigration systems from witnesses who gave evidence before the Committee two weeks ago, as well as from organisations that provided written evidence. I am grateful to everyone who took the time to provide their opinions. The views that were put forward demonstrated a strong interest in a wide range of immigration issues, as well as in the specific design of the future system. The evidence highlighted the importance of learning lessons from the past and ensuring we get things right.
A clear message emerged about the need to create a fair and simple system, and those are key priorities for me in the design of the future system. As I have said previously, I recognise that the immigration rules need to be made simpler. That is why we have asked the Law Commission to review how the rules could be simplified. I look forward to considering its findings when they are published.
Leaving the European Union means that, for the first time in more than 40 years, we can deliver control of immigration by ending free movement. In its place, we will introduce a new system, which will level the playing field by ending preferential treatment for EU citizens. It will mean that everyone has the same opportunity to come to the UK, regardless of where they are from.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I am grateful to the Minister for giving way so early. She has asserted a couple of times that the new system will provide a level playing field for everybody, but the White Paper indicates that nationals of different countries will be treated in different ways. There will, I reckon, be preferential treatment for EU nationals with the one-year visa and for countries whose citizens are already non-visa nationals. Will she clarify that? Is she saying everybody is going to be treated exactly the same, or does she accept that the White Paper in fact does not set out such an arrangement?
Caroline Nokes
The Bill certainly does set out that people will be treated in the same way, because it is a Bill simply to end free movement. The White Paper, which was published on 18 December, gives us the opportunity to discuss the future system and how people from across the globe may be treated. It gives us the opportunity to discuss whether trade deals might include treatment within our immigration system. It is important that we have a system that reflects people’s skills and what we need in our economy. This Bill, through which we are seeking to end free movement, is an opportunity to start to provide that level playing field.
Afzal Khan
I agree wholeheartedly with my hon. Friend’s comments. Labour has tabled a number of new clauses to the Bill that would put the rights of EU citizens into primary legislation. We hope that the Government accept those when we get to that point.
The second question is what our new immigration system should be doing in the future. The Bill is incredibly flimsy; it is only 16 pages long, which is extraordinary given that it will mean the biggest change to our immigration system in decades. Instead of putting forward a new immigration system that Parliament can discuss and debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like through extensive Henry VIII powers. We were given an indication of what such a system might be like in the White Paper published by the Government in December. In fact, Ministers are under no obligation to use the powers to implement that system. If they implement the system described in the White Paper, it will spell disaster for our economy and our society.
We will go into these matters in more depth in subsequent debates, but expert witnesses at our evidence sessions criticised almost all aspects of the Government’s plans. The £30,000 threshold would be a disaster for business and public services such as the NHS. The 12-month visa would lead to exploitation. Labour has no problem with immigration that would treat all migrants the same no matter where they came from, but that is not the system the Government propose. The White Paper is explicit that there will be certain visas and conditions that will apply only to people from “low-risk countries”—a categorisation that the Government are not at all transparent about. Apart from those two glaring absences, the Bill before us fails to address a litany of problems with our immigration system, some of which we seek to remedy through our amendments.
Before I conclude, I have two questions that I would like the Minister to address. First, under what circumstances would the Government use the powers in the Bill? We have heard that this is a contingency Bill, so if there is a withdrawal agreement and thus a withdrawal and implementation Bill, will the Government use powers in that Bill to repeal free movement? Secondly, could the provisions in this Bill lead to a change in immigration law that affects non-European economic area migrants? Could the Government use the powers in the Bill to amend immigration legislation that affects non-EU citizens?
As the Minister will know, the Government are asking for extensive Henry VIII powers. During our Committee sittings, Adrian Berry, Steve Valdez-Symonds and Martin Hoare, all experts in immigration law, confirmed to me that the powers in the Bill could be used to make legislation affecting non-EU citizens. Is the Minister willing to contradict the experts? Does she agree that, if it is indeed the case that the powers in the Bill could be used to make legislation that affects non-EU citizens, its scope is much wider than the end of free movement?
Stuart C. McDonald
It is a pleasure to serve under your chairmanship, Mr Stringer. I thank the Clerks for working their way through a mountain of amendments and making them presentable in the last few days. I thank the various organisations and individuals for their help and ideas for amendments, and I thank the shadow Minister for engaging with us over the last couple of days. Any flaws in the amendments we have tabled are my responsibility alone. Finally, I thank the Minister; she has been very open to discussion, approachable and good humoured, as ever. The fact that I can’t stand the Bill and utterly oppose it should not be taken personally. Hopefully, we will still be able to have some useful and constructive debates.
I will not rehash all the points I made on Second Reading. I love free movement; my party fully supports it and I pretty much believe it is the best thing since sliced bread. I regret that it is in danger of coming to an end. It will leave the United Kingdom in an unusual position historically. This country has, for almost its entire history, allowed certain citizens to come and go, whether EU citizens, Commonwealth citizens or, before that, absolutely everybody. All the evidence is that free movement is beneficial to us, for growth, productivity and public finances. In Scotland, it has transformed our demographic outlook from a country of net immigration to a country of positive migration. The quid pro quo for all this is that we will lose our free movement rights. My family and I have benefited from free movement, as have many Members, including on this Committee. I regret that this Parliament will pull up the ladder behind it.
The challenges of free movement that are often cited will not be solved by ending free movement but by proper labour market standards and enforcement, by integration strategies and by investment in public services. Neither do the justifications for ending free movement stack up. Indeed, it was striking in the Minister’s speech and in the speeches of some Government Members on Second Reading how little free movement and the supposed justifications for ending it were addressed.
It is wrong to say that people voted to end free movement, because it was not on the ballot paper. To argue the contrary is to argue that almost 100% of leave voters were motivated by that alone. That is not the case. This is the Prime Minister’s red line, not the people’s red line. Opinion polls and studies show that if it comes to a choice between a closer trading relationship with Europe and ending free movement, a closer trading relationship wins. Simply repeating ad nauseam that we are “taking back control of our borders” is not an argument.
Now is the most bizarre moment for MPs to consider voting to end free movement. Parliament hopefully is on the verge of taking control. Who knows what trading arrangements may be secured, perhaps involving free movement. A people’s vote is even more on the cards than it was at the time of Second Reading. As the shadow Minister said, the Bill puts the cart before the horse. Let us sort out our negotiating position first, then we can decide what that means for free movement. If the public are happy enough to retain free movement for a closer trading arrangement, it is wrong for MPs to rule it out at this stage. There is no need to rush through the end of free movement, even if we do leave in a month’s time. For those reasons, my party believes that the clause should not stand part of the Bill.
Kate Green
It is a pleasure to serve under your chairmanship, Mr Stringer. I echo the comments of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in thanking the Minister for being so open to colleagues in preparing for consideration of the Bill over the next two weeks.
I, too, believe that freedom of movement has been good for our country and particularly for my constituency. We are a proud manufacturing constituency that offers many skilled jobs, and we have relied heavily over the years on the skills and talents of EEA nationals who come to work in our industries. It is clear that north-west England is destined to suffer most economically from loss of access to EEA labour under free movement rules.
I echo the hon. Gentleman’s remarks about public opinion on freedom of movement. A couple of years ago I had the pleasure to participate in a citizens’ assembly organised by the Constitution Unit of University College London. One of the questions that the participants were asked to address was what kind of immigration arrangements they wanted with the European Union after Brexit. This was a deliberative process carried out with a representative sample of over 100 individuals, exactly mirroring the demographic of the referendum electorate in terms of the vote—leave or remain—geography, ethnicity, age, background and so on.
Caroline Nokes
The hon. Gentleman raises an important point. If we have learned one thing from Windrush—and I sincerely hope we have learned many—it is that a declaratory system that does not give people the evidence they need to be able to affirm their right to be in the UK, to work and own property, does not work. That is why we have a scheme that I am confident will give people the evidence they need so that we can avoid a position whereby EU citizens who are here and settled are in the same situation in the future. I am conscious—Members may have heard me say this in Select Committees—that there will be children of EU citizens living in this country today who are well under the age of 16; some will be one or two years old. The hon. Member for Wirral South mentioned an ageing population and longevity, but while we in this room might be lucky to get to our late 80s, there are children who will live to 100 or 110. It is therefore important we have something that is enduring and enables them to evidence their right to be here for a century or more.
Stuart C. McDonald
A new argument appeared for the first time yesterday at Home Office questions, saying the problem was caused because Windrush was what Ministers describe as a declaratory system. That was not what caused the problem; the problem was the lack of evidence. In fact, if people did not have rights under statute—as we would like to see here—they could have been removed ages ago and could not have rectified the situation. It is not right to say that a declaratory system caused the problem to the Windrush generation.
Caroline Nokes
I disagree. If we look back to the Immigration Act 1971—I have become quite familiar with that Act over the past year in this job—it put the right of the people of the Windrush generation to be here in statute, but it did not provide them with the evidence they needed to demonstrate that. It is important we learn that lesson and make sure we do not repeat the mistake for our EU citizens.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I beg to move amendment 29, in clause 2, page 1, line 11, at end insert—
“(1A) After section 2A insert—
‘2B Family members of Irish citizens
Nothing in the Immigration Rules (within the meaning of this Act) shall lay down any practice that treats or provides for the family members of Irish citizens differently to the treatment or provision made for the family member of British citizens.’”
This amendment seeks to ensure that the family members of Irish citizens are treated in the same way as the family members of British citizens.
The Chair
With this it will be convenient to discuss amendment 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”
This amendment would provide additional safeguards against deportation for Irish citizens.
Stuart C. McDonald
Clause 2 concerns the special status of Irish citizens in the UK in immigration law. It is probably fair to say that although we often refer to the common travel area, and although we know how it works in practice and have a broad idea of the practical reasons why it exists, the actual law here is pretty obscure, vague and not very well understood. I apologise if I have maligned any Committee members who are in fact experts in this area of immigration law.
In recent years it probably has not been a concern, largely because free movement means that it has not really mattered. That now changes completely if free movement is stopped, and clause 2 is one of the steps that we need to take to ensure that the status of Irish citizens here is protected. Parts of clause 2 are welcome because, if clause 2 were not part of the law, although Irish citizens could still come to the UK without immigration control if they were coming from another part of the common travel area, if free movement ended they would have no such right if they arrived in the UK from outside the common travel area, whether on a plane from New York or a train from Paris. Clause 2 confirms the right of Irish citizens to enter and remain without permission—even if free movement rights end—irrespective of where they entered the UK from, unless they are subject to a deportation order, exclusion order or international travel ban.
The question is: does clause 2 go far enough? The evidence received in writing and heard at hearings suggests that it does not. There are other aspects of the special status that we need to have a look at as well. There is one sense in which clause 2 appears to undermine the special status afforded to Irish citizens, and that is in relation to deportation.
As Professor Ryan pointed out in his evidence, the clause provides that Irish citizens may be deported under the general deportation laws of this country—those that apply to everybody else—under the Immigration Act 1971. Those apply to: a person whose deportation the Secretary of State deems conducive to the public good, including under the controversial mandatory deportation provisions of the UK Borders Act 2007; a person whom a court recommends for deportation at the time of conviction for a criminal offence punishable by imprisonment; and a family member of a person who is or has been ordered to be deported.
The clause would also introduce a specific new power to exclude Irish citizens from the United Kingdom if the Secretary of State considers that to be conducive to the public good. However, in doing so the Bill does not imply any particular special protection regarding the threshold for the deportation or exclusion of Irish citizens. The stated policy of the Government in 2007, according to the then Immigration Minister, was:
“Irish citizens will only be considered for deportation where a court has recommended deportation in sentencing or where the Secretary of State concludes, due to the exceptional circumstances of the case, the public interest requires deportation.”—[Official Report, 19 February 2007; Vol. 457, c. 4WS.]
That is a higher test than would be applied by clause 2, and we heard evidence suggesting that the clause would water down the position of Irish citizens. In that regard, it might be useful to note that, by virtue of their exemption from Irish immigration law, British citizens are completely immune from deportation and exclusion under Irish law. Indeed, other evidence sent to us from a group of academics goes further, and asks why, if Irish citizens are “not foreign” according to the Ireland Act 1949, we need to retain the power to deport them at all. Ireland has not retained the equivalent power.
Professor Ryan raised a further important question about whether, to comply with the Belfast agreement, there should be an exemption from deportation and exclusion for Irish citizens who are from Northern Ireland. Under the Belfast agreement, both Governments recognised the birthright of all people of Northern Ireland to identify themselves as, and be accepted as, Irish, British or both, as they may so choose. As Professor Ryan puts it:
“There is a risk that, as formulated, the deportation and exclusion clauses will fail to respect the right of a person from Northern Ireland who wishes to identify as an Irish citizen.”
He questions whether it is compatible with the Belfast agreement to require a person from Northern Ireland to assert their British identity in order to resist deportation to Ireland. There might even be circumstances in which UK nationality had been renounced.
Those are the issues that amendment 28 is designed to address. It seeks to enshrine in law what is supposedly current Government practice, instead of watering down that standard on deportation. It also seeks to ensure that clause 2 does not in any way undermine the Belfast agreement. I am sure that everyone in this room today would agree that it is important that we get these things right. My final observation in that regard is that, according to Professor Ryan, as I have said, there is no provision in Irish law to deport UK nationals.
Amendment 29 probes the Government, seeking an explanation of what the exact position will be of Irish nationals who seek to have family members join them—if and when the normal family rules in the immigration rules are applied to them. As we will come to later—perhaps today, or on Thursday—I absolutely hate those draconian and restrictive rules, but at least they are there, allowing British citizens and settled persons to be joined by family members. As Professor Ryan points out, the immigration rules will allow for UK citizens returning to the UK to be accompanied by non-UK or Irish family, and for UK citizens and settled persons already here to be joined by non-UK or Irish family. That last bit should apply simply enough to Irish nationals as well, because clause 2, if passed, would appear to mean that Irish persons would be treated as settled persons for the purposes of the rules. I should be grateful for confirmation that that is the case.
The second problem is that it seems, from the clause’s drafting, that Irish persons moving here with such family would not be able to use the rules in the way that a UK citizen could, because they would not yet be settled persons. The Irish person would need to come here first and become settled, and their family would join them later. Another issue is whether the rules in other respects will treat the family members of an Irish citizen in precisely the same way as they treat family members of UK citizens. In particular, if a UK national has a UK national child here, as we all know, the child would not cause the financial threshold to increase if any application was made by an overseas spouse to join them. Would the presence of an Irish citizen child of an Irish citizen result in the financial threshold being increased for any spouse coming to join that family?
Amendment 29 simply seeks to ensure that Irish citizens will be treated in the same way as UK nationals. I will not press it to a vote, however, because as the Committee on the Administration of Justice, a cross-community human rights organisation in Northern Ireland, rightly points out, it may need to be tweaked to ensure that it does not prevent Irish citizens from benefiting from the more favourable treatment that EU families may continue to enjoy for a period through retained EU law, in comparison with UK citizens and settled persons encumbered with the immigration rules. The amendment should probably preclude less favourable treatment rather than different treatment. The CAJ’s submission goes further, supporting the view of the human rights commissions that the common travel area is “written in sand” and warning of “other gaps”, including in relation to social rights.
Caroline Nokes
I thank hon. Members for raising important issues linked to Irish citizens. It is important to recognise that British and Irish citizens have enjoyed a particular status and specific rights in each other’s countries since the 1920s as part of the common travel area arrangements.
Clause 2 will protect the status of Irish citizens. When free movement ends, it will allow them to continue to come to the UK without requiring permission and without any restrictions on how long they can stay. British citizens enjoy reciprocal rights in Ireland. The clause will provide legal certainty and clarity for Irish citizens by inserting new section 3ZA into the Immigration Act 1971 to ensure that they can enter and remain in the UK without requiring permission, regardless of where they have travelled from. That is already the position for those who enter the UK from within the common travel area, but Irish citizens who travel to the UK from outside the CTA currently enter under European economic area regulations. The clause will remove that distinction by giving Irish citizens a clear status.
I turn to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, and for Paisley and Renfrewshire North. Amendment 29 would establish in legislation that the immigration rules cannot treat family members of Irish citizens differently from family members of British citizens. The common travel area arrangements have never included rights for the family members of British and Irish citizens. That is an approach that we intend to maintain, but the unique status of Irish citizens means that they are considered settled from the day on which they arrive in the United Kingdom. Irish citizens in the UK can therefore sponsor family members, in the same way as British citizens can. That is the position for those of all nationalities within the UK who are settled.
I also note that Irish citizens, in line with other EU nationals, can be joined in the UK by family members under the terms of the EU settlement scheme, but the amendment would prevent that. To be clear, Irish citizens are not required to apply for status under the EU settlement scheme to benefit from the family member rights, but they may apply if they wish. Under the settlement scheme in a deal scenario, close family members who are not already resident in the UK will be able to join an EU citizen—that includes Irish citizens—under the same conditions as now, where the relationship pre-existed the end of the implementation period. I therefore ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to consider withdrawing his amendment for the reasons that I have outlined.
Amendment 28 would introduce additional provisions regarding the deportation and exclusion of Irish citizens and their family members. I will use this opportunity to reiterate our approach to deporting Irish citizens in light of the historical community and political ties between the UK and Ireland, along with the existence of the common travel area. Irish citizens are considered for deportation only if a court has recommended deportation following conviction or if the Secretary of State concludes that, because of the exceptional circumstances of a case, the public interest requires deportation. We carefully assess all deportation decisions on a case-by-case basis, taking into account all the facts of the case.
In response to questions asked on Second Reading, I confirmed that the Government are fully committed to maintaining this approach. In that regard, Committee members will have noted that we are making provision to ensure that once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007. That exemption is contained in the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid before the House on 11 February. Therefore, proposed new subsections (6) and (8) are not needed.
As I have outlined, the UK’s approach is to deport Irish citizens only in exceptional circumstances or where the court has recommended it, which means that a family member of an Irish citizen would not be considered for deportation unless a deportation order was made in respect of that citizen in line with our approach. I also emphasise that the common travel area rights have always provided solely for British and Irish citizens. They have never specifically extended to the family members of British or Irish citizens, and we intend to maintain that approach.
With proposed new subsection (8) in mind, I must make it absolutely clear that the UK is fully committed to upholding the Belfast agreement and respects the right of the people of Northern Ireland to identify as Irish, British or both, and to hold both British and Irish citizenship as they choose. I recognise the centrality of those citizenship and identity provisions to the Belfast agreement. As I have said, deportation decisions are taken on a case-by-case basis, and we consider the seriousness of the criminality and whether it is in the public interest to require deportation.
Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully and not seek to deport a person from Northern Ireland who is solely an Irish citizen. However, I recognise the hon. Gentleman’s interest in this matter and will continue to keep it under consideration. I therefore respectfully ask him to consider withdrawing his amendment for the reasons outlined.
Stuart C. McDonald
I am grateful to the Minister for her detailed response. As I have accepted, amendment 29 is not perfect. I also accept her general reassurances about the treatment of Irish citizens’ families in the United Kingdom, so I will withdraw the amendment and reflect further on our position.
In relation to what the Minister said about deportations and amendment 28, it seems to me that we are mostly saying the same things, but our statements are reflected better in my amendment than in the clause. We seem to be saying the same thing, but reaching different conclusions about how to enshrine it in law. I am simply asking the Government to put their current practice into statute. I will give further thought to that, but for now I beg to ask leave to withdraw amendment 29.
Amendment, by leave, withdrawn.
Amendment proposed: 28, in clause 2, page 2, line 13, at end insert—
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.
(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.
(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).
(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”—(Stuart C. McDonald.)
This amendment would provide additional safeguards against deportation for Irish citizens.
Caroline Nokes
As I said in response to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North, the clause will protect the status of Irish citizens in the UK when free movement ends. Without the clause, as Professor Ryan explained in evidence to the Committee, when freedom of movement ends, Irish citizens will need to seek permission to enter the UK when they arrive from outside the common travel area. I am sure all members of the Committee agree that that would be wholly unacceptable.
In addition to the evidence from Professor Ryan, I also welcome the written evidence from the Committee on the Administration of Justice, which notes that the clause is
“designed to remedy the gap for Irish citizens being able to enter and reside in the UK from outside the CTA”.
Dr de Mars, Mr Murray, Professor O’Donoghue and Dr Warwick highlight that the clause will help to clarify and simplify travel rights under the common travel area.
The Government are clear that, as now, Irish citizens should not be subject to immigration control unless they are subject to a deportation or exclusion order, or to an international travel ban. Those exceptions are set out in the Bill, and they reflect current and long-standing practice. I confirm that our approach is to deport Irish citizens only if there are exceptional circumstances, or if a court has recommended deportation in a criminal case.
Stuart C. McDonald
This is the crux of the matter—the Minister is confirming an approach that appears to be different from the one set out in the clause. Why not just include the Government’s approach to this issue in the Bill?
Caroline Nokes
The hon. Gentleman will be aware that he just lost a division on that matter, but I am sure we will return to it on Report. He may consider his drafting to be better than that of my Home Office officials, but I must take a contrary view. I confirmed the Government’s approach in response to questions raised on Second Reading, and, as members of the Committee will have noted, once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007.
The clause amends section 9 of the Immigration Act 1971 so that restrictions placed on those who enter the UK from the CTA by order under that section will not apply to Irish citizens. It also amends schedule 4 to that Act, which deals with the integration of UK law and the immigration law of the islands—Jersey, Guernsey and the Isle of Man. The schedule provides broadly that leave granted or refused in the islands has the same effect as leave granted or refused in the UK. The clause disapplies those provisions in relation to Irish citizens who do not require such leave under the Bill. They also make it lawful for an Irish citizen—unless they are subject to a deportation or exclusion order—to enter the UK from the islands, regardless of their status in them.
The clause aims to support the wider reciprocal rights enjoyed by British and Irish citizens in the other state. Citizens will continue to work, study, access healthcare and social security benefits, and vote in certain elections when they are in the other state. I reiterate that once free movement ends, Irish citizens in the UK will be able to bring family members to the UK on the same basis as British citizens, because they are considered to be settled from day one of their arrival in the UK.
Caroline Nokes
Clause 3 is minor and technical in nature, but it is important for the implementation of the Bill and to ensure that we have a fully functioning statute book. Subsection (1) ensures that the Bill, when enacted, will be covered by any reference to “the Immigration Acts”, which are the Acts of Parliament that govern the UK’s immigration system. They enable, for example, grants of leave to enter and remain, and the deportation of individuals.
References to the Immigration Acts can be found across the statute book. For example, section 55 of the Borders, Citizenship and Immigration Act 2009 requires that functions conferred by virtue of the Immigration Acts are discharged having regard to the need to safeguard and promote the welfare of children in the UK. Clause 3 will ensure that functions conferred by regulations under the Bill must be discharged according to that duty in relation to the best interests of children. Such a provision is standard for an immigration Bill, and clauses that have the same purpose and effect are included in previous Immigration Acts. For example, section 73 of the Immigration Act 2014 and section 92 of the Immigration Act 2016 both provide that those Acts are included in the definition of Immigration Acts.
Subsection (2) clarifies that the Bill is not retained EU law. That means that it is not part of the body of law that will have been saved in UK law by the European Union (Withdrawal) Act 2018. It is important to make it clear that the Bill cannot be treated as retained EU law. For example, it cannot be amended by the deficiencies power under section 8 of the European Union (Withdrawal) Act or any other powers to deal with retained EU law.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Consequential etc provision
Stuart C. McDonald
I beg to move amendment 4, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”.
This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.
The Chair
With this it will be convenient to discuss the following:
Amendment 1, in clause 4, page 2, line 34, leave out “, or in connection with,”
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 11, in clause 4, page 3, line 1, leave out “make provisions applying” and insert
“give leave to enter the United Kingdom”.
Amendment 2, in clause 4, page 3, line 8, leave out subsection (5).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 3, in clause 4, page 3, line 11, leave out subsection (6).
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Amendment 5, in clause 4, page 3, line 17, leave out “other”.
This amendment is consequential on Amendment 3.
Amendment 6, in clause 4, page 3, line 17, leave out from “subsection (1)” to “is” on line 19.
This amendment, along with Amendment 7, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 12, in clause 4, page 3, line 18, leave out
“that amend or repeal any provision of primary legislation (whether alone or with any other provision)”.
This amendment would mean that all regulations made under Clause 4 would be subject to the affirmative procedure.
Amendment 7, in clause 4, page 3, line 21, leave out subsection (8).
This amendment, along with Amendment 6, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.
Amendment 10, in clause 7, page 5, line 44, at end insert—
“(10A) Section 4 and section 7(5) of this Act expire at the end of a period of one year beginning with the day on which this Act is passed.”
This amendment would place a time limit on the Henry VIII powers contained in Clause 4.
Stuart C. McDonald
It was a little while after my first election in 2015 that I first heard the term “Henry VIII clause,” but I have become very familiar with it since then. The clauses in the Immigration Act 2016 were outrageous enough, but they are small beer compared with the powers the Government have helped themselves to in the European Union (Withdrawal) Act and in this Bill. There is no need to take my word for it; we have ample evidence. The amendments are largely based on submissions from the Law Society of Scotland and the report of the House of Lords Delegated Powers and Regulatory Reform Committee. I am very grateful to both. It is unusual to have the benefit of the Lords Committee report for a Commons Bill, but it has certainly proved helpful. The Committee said:
“The combination of the subjective test of appropriateness, the words ‘in connection with Part 1’, the subject matter of Part 1 and the large number of persons who will be affected, make this a very significant delegation of power from Parliament to the Executive. The scope of this broad power is expanded even further by subsections (2) to (5).”
If we are serious about our role as legislators and about separating the Executive from the legislature, we must start putting our foot down and reining in these clauses. Otherwise, what on earth are we here for?
We can start that process through amendment 4, by replacing the subjective test of appropriateness. Through amendment 1 we can ditch the phrase “in connection with”. The Committee was absolutely scathing here. It said:
“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations (assuming no amendment was made to primary legislation)”.
Amendment 2 is also from the House of Lords Committee’s recommendations. It removes clause 4(v). It noted that subsection (v)
“confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who pre-exit would have had free movement rights under EU law”.
It recommended removal
“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power”.
That is the challenge for the Minister this morning.
As for the Government’s justifications and the memorandum on delegated powers stating that the powers are needed to protect EEA citizens, it is fair to say that the Committee was not persuaded. It said:
“We believe that transitional arrangements to protect existing legal rights of EEA nationals should appear on the face of the Bill, and not simply left to regulations with no opportunity for parliamentary scrutiny until after they have been made and come into force.”
That is exactly what Opposition MPs have sought to do with other amendments that we will come to later. The consequence of that for the Committee was that there would be no need to use made affirmative procedures set out in clause 4(vi). It recommended removal of that subsection, which is what my amendments 3 and 5 seek to do. The very unusual made affirmative procedure means that the regulations are actually in force when they are tabled in the House of Commons before we have even voted on them. Our position is that the more common made affirmative procedures should be followed, and instruments should be laid in draft and should not come into force until we examine and approve them—hence amendments 6 and 7.
I conclude with some comments by the Law Society of Scotland. It said:
“The abrogation of parliamentary scrutiny is deeply concerning and the cumulative effect of these provisions is to reduce the role of parliamentary scrutiny of legislation relating to immigration, both EU and non-EU”.
For all these reasons, I hope that the Government will listen carefully and rein in their desires for extensive delegated powers under clause 4.
Afzal Khan
I wish to speak to amendments 11, 12 and 10. Throughout the Brexit process, the Government have been carrying out a power grab, acquiring powers to amend primary and secondary legislation with little parliamentary scrutiny. The debates on Brexit legislation have shown that there is cross-party support for limiting Henry VIII powers. Back Benchers on both sides of the House recognise that Parliament’s role in making legislation is crucial and must be protected. We accept that there will be aspects of statutory legislation that the Government will need to adjust as a result of ending free movement; we need a functional statute book. However, there must be limits on these powers to ensure that Ministers cannot make significant policy changes, including to primary legislation through statutory instruments.
Currently, scrutiny of secondary legislation is weak. Statutory instruments are unamendable and the Government have a majority on all SI Committees—if the SI even gets a Committee. Those subject to the negative procedure may never even be discussed by parliamentarians, as Adrian Berry said in our evidence session. He said:
“It is true that you have the affirmative resolution procedure, but it is clearly a poor substitute for primary legislation and the scrutiny you get in Select Committees.”—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 90, Q221.]
He recommended the Henry VIII powers be radically redrawn. We know that the Government plan a major overhaul of our immigration system for EU and non-EU migrants set out in the White Paper. There is a risk that these powers could be used to bring in that entirely new system. Will the Minister confirm whether the Government would use the powers in the Bill to bring in the new system or if there would be a new immigration Bill? If there will be another Bill, when might it come? Would it be in addition to a withdrawal and implementation Bill, if we get a withdrawal agreement?
Immigration is already an area where the Government have extensive delegated powers. Since 1971, almost all major changes to our immigration system have been made through the immigration rules. We want to move to a situation in which there is more scrutiny of immigration changes, not less.
Labour has many issues with the proposed immigration system, but we broadly believe in the principle that certain major changes should have the chance to be fully discussed and debated before they are introduced. We are being asked to take it on trust that Ministers will not abuse the powers delegated to them in this clause. In the wake of Windrush, we should be particularly sceptical of this Government’s promises. The Windrush scandal was the result of a long period of under-the-radar changes to immigration rules, which chipped away at the rights of Windrush migrants and plunged their status in the UK into uncertainty. In the aftermath of Windrush, we should be particularly attentive to the risks of allowing Ministers the power to amend people’s rights after they have been debated and enshrined in primary legislation.
Clause 4 offers the Government a blank cheque to change our immigration laws and reduces the level of parliamentary scrutiny of immigration legislation. The Labour amendment and the SNP amendments, which we support, do four things.
First, they limit the scope of the powers. As currently drafted, changes to our immigration laws will be only in consequence of or in connection with the withdrawal of EU free movement legislation. We support the SNP’s amendment 1, which would limit the scope here. We support amendment 4, which would allow the Secretary of State to make only changes that are necessary rather than those that the Minister considers appropriate. The House of Lords Delegated Powers and Regulatory Reform Committee recommended the amendments because they were disturbed by the use of “in connection with”, as it would confer primary powers on Ministers to make whatever legislation they considered appropriate, provided that there was at least some connection with part one, however tenuous, and to do so by negative procedure regulations.
Amendment 2 would prevent the Secretary of State making changes to fees and charges. Labour has tabled new clause 38, which states that visa fees should be set at cost price. The Delegated Powers and Regulatory Reform Committee raised significant concern about this sub-clause as it confers broad discretion on the Minister to levy fees or charges on any person seeking leave to enter or remain in the UK who would have had free movement rights under EU laws pre-exit. Fees are already so high that they are unaffordable. The Home Office makes enormous profits out of visa fees, and it is concerning that the Government are granting themselves the power to increase them even further.
Secondly, these amendments limit the nature of these powers. Amendment 11 in my name would allow Ministers to grant status to a group of EEA nationals but not allow them to remove any such rights without primary legislation. I am grateful to the Immigration Law Practitioners Association for its help in drafting it. We believe this is a vital safeguard and that right to remain should be set in stone, and not subject to amendment or to being removed by secondary legislation.
Thirdly, these amendments improve the scrutiny that changes to immigration rules will be subject to. Clause 4(6) sets out that some immigration rules may be made by the made affirmative procedure, which means that they will be assigned into law before being laid in Parliament. There is then a period of 40 days in which the House must approve them or they will cease to have effect. The House of Lords Committee recommended that this be removed, which is what amendment 3 does. Amendments 12, 13 and 7 will ensure that immigration rules are subject to the affirmative procedure. Labour has tabled new clause 9, which will subject them to super-affirmative procedure. Our immigration rules have an enormous impact on people’s lives, but they often receive very little scrutiny. The made affirmative procedure means that they will receive no scrutiny before coming into effect and that scrutiny will only be retrospective.
Fourthly and finally, amendment 10 will place a time limit on the Henry VIII powers in clause 4. The Government have said that they will review the White Paper proposal for 12 months. The sunset clause should ensure that they can use the Henry VIII powers in clause 4 to make small amendments to the legislation, but that at the point at which they will make bigger changes, the Henry VIII powers will expire.
We have serious concerns about the extent of the delegated powers in clause 4. Our amendments and the amendments tabled by the SNP would go a long way to limit the powers and would ensure that changes to immigration policy are properly scrutinised.
Stuart C. McDonald
I am grateful to the Minister for her detailed response; she said she would go into the detail and she certainly did not disappoint. The one defence that does not really fly with me is that similar powers have been used in previous immigration Bills. I objected very strongly to some of the powers that appeared in previous immigration Bills, and certainly to those in the immigration Bill before this one. However, she gave useful examples of how the powers will have to be used. We will have to go away, think carefully about what she said and reflect on whether changes are needed.
The amendment about which I was not fully satisfied by the Minister’s answer, and which I still wish to push to a vote, is amendment 1. In my view, tidying up the statute book and putting in place transitional provisions, as the Minister gave as examples, would surely meet the “in consequence” test, and so the very loose “in connection with” test would not be needed. I also agree with the Lords Committee that transitional arrangements should be in the Bill, first to cover a no-deal scenario, secondly because it would be useful for the UK in Europe in such a no-deal scenario when trying to push other Governments around the EU for reciprocal treatment, and finally because the Bill is a much safer place for it to be than in delegated legislation.
I also have some concerns about the response to amendments 3 and 5 on the different types of affirmative procedure. I still find it startling that we are even contemplating, in a no-deal scenario, an end to free movement within a few weeks’ time. I do not think this country is remotely ready for any such prospect at all; a far more sensible option would be to put in place arrangements for free movement to continue even in a no-deal scenario until we are properly ready to make any changes that are agreed upon. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 1, in clause 4, page 2, line 34, leave out “, or in connection with,”—(Stuart C. McDonald.)
This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.
Question put, That the amendment be made.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Third sitting)
Stuart C McDonald Excerpts(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Q
Jurga McCluskey: I see your point. I completely accept everything that has been said before, in terms of the 5,000 changes in the last 10 years.
Stuart C. McDonald
Q
Jurga McCluskey: Absolutely; there is no denying that. However, at the same time, what is the alternative? Freedom of movement would have facilitated all the points you raise—
Stuart C. McDonald
Q
Adrian Berry: At the moment, in the absence of a mobility component of a future relationship treaty between the UK and the EU, the immigration rules will apply if you want to bring a spouse who is an EU citizen. However, be careful what you wish for, because that is the inbound system. On the export system, Brits going to the EU27—where economic migration is not harmonised—will face 27 different Acts of reciprocity to however strong we are on inbound migration. There will be no intra-EU migration for British citizens. How Brits will be impaired going the other way is completely missing from the White Paper or any Government document.
Stuart C. McDonald
Q
Ilona Pinter: There are obviously concerns about families being separated by income thresholds. The Children’s Society works within the UK, and our concerns are about those who are already here, as well as about families in the future. As I said, I think access to benefits and vital services is absolutely essential for families and particularly for children who currently miss out on vital things like free school meals and the pupil premium—things that are aimed at families on a low income and in material deprivation to help them to overcome and to have the best life chances in the future.
I want to add one more thing about the White Paper. It would be really beneficial to have proper public consultation on the White Paper; we have an opportunity to really look at this in detail. A lot of the focus in the White Paper is on the economic aspects, which are obviously very important, but a lot of cultural and social integration issues need to be thought through properly, as does, I would argue, how these complicated rules and systems are going to impact on children’s rights. The Children’s Minister committed in November to doing a children’s rights impact assessment on all new policy and legislation coming in. This is a great opportunity to do that. We have 12 months: we would really welcome the opportunity to work with Government and look at this in the round to make sure that proper account is taken of the wide-scale impact that it will have.
Stuart C. McDonald
Q
Hilary Brown: No, it does not, but that does not mean to say that we should not make some progress towards attempting to simplify it so that it does apply equally to all.
Stuart C. McDonald
Q
Hilary Brown: Yes, trade relationships may be a reason to justify some kind of other consideration, but they should not be a back-door route into the United Kingdom, for people who can hide behind trade,
Stuart C. McDonald
Q
Hilary Brown: Whatever rules are implemented, they should be fair. As I say, there could be other trade agreements, but they should be open to anxious scrutiny and I do not think they should be seen and used as a back-door route into the United Kingdom for people who can afford that.
Stuart C. McDonald
Q
Hilary Brown: At this time none of the immigration rules is simple. The tier 2 system can be a route into the United Kingdom, again, for people who are able to afford it and those with large reserves of money. I think the system itself needs to be completely overhauled. There needs to be a situation where the UK can look at innovation and other trades and routes. For instance, on the shortage occupation list, there are multimillion pound industries in the United Kingdom that would not be identified unless there was some innovation around whether they should be included in various tier 2 legislation.
Stuart C. McDonald
Q
Martin Hoare: First, with the tier 2 system, the process for employers of obtaining a sponsor licence is difficult. It does not receive intense scrutiny by the Home Office. There is no right of challenge to the Home Office decision, and therefore many employers who wish to run a tier 2 scheme to sponsor migrants, although they are bona fide employers, get cases refused and are not able to challenge. The starting point of the scheme is unworkable. The insistence on pedantic documentary requirements, which many employers cannot understand, leads to a lot of cases being refused, so the system is not workable at present.
With regard to your second point, yes, I think there should be simply a declaratory system for EU settled status. If the British Government wish to require EU citizens to justify and document every day of their existence in the United Kingdom when at the time they did not know they would have to do it, it will lead to a load of perverse and unfair outcomes.
Stuart C. McDonald
Q
Hilary Brown: I would certainly suggest not making it so onerous as to documents.
Afzal Khan
Q
Hilary Brown: Aside from the cost of the appeal to the tribunal, which is over £100, the cost of appealing is not a cost that can just be measured in the cost of the application to the tribunal. There is often the cost of getting representation and having to obtain evidence to go before the various tribunals. There is the cost of certifying and obtaining documents. The withdrawal of legal aid often means that for people to be able to get before a tribunal with a robust bundle of evidence giving some sort of chance of demonstrating that the appeal should be granted in the appellant’s favour, they must be able to find something in the region of £1,000 or £2,000—maybe £3,000. That is just to get together a bundle of evidence to go before a tribunal with a remote chance of succeeding. All too often people just cannot afford that. The fact that we have to put bundles together in a way that proves the documents and evidence they rely on will stand up to independent and anxious scrutiny, and the denial of legal aid, prevents people from getting access to justice.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fourth sitting)
Stuart C McDonald Excerpts(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Kate Green
Q
James Porter: No.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Q
James Porter: Yes.
Stuart C. McDonald
Q
James Porter: The MAC report—it is not just me saying this—recognises that there is no negative effect on wages from free movement. It is pretty much neutral; people coming in are not forcing down wages. The MAC also recognises that there is a shortage of labour in agriculture particularly, and it suggests that there should be a seasonal workers scheme to make up for that. The MAC recognises that we need labour coming in from abroad, but it still thinks it should be difficult for us to employ that labour. Yes, I could not agree more. The NFU position is clear: we believe there should be ongoing free movement of labour.
Stuart C. McDonald
Q
James Porter: No. I certainly do not, and I do not know any who do. There might well be some, but I am not aware of them.
Stuart C. McDonald
Q
James Porter: That sounds quite sensible. We had the SAW scheme previously, and we worked with it until it was ended when the EU accession countries came in. The agencies are quite closely on top of communicating with the people they place on farms, but I can understand that if someone was compelled to stay on one farm, it might be quite difficult for them to speak out if they did not have alternatives. I am sure there may be ways of trying to make that simpler. Perhaps if they received a visa to work in agriculture and were not compelled to stay in one place, that would give them a bit more freedom if they were not happy where they were.
Nic Dakin (Scunthorpe) (Lab)
Q
James Porter: One thousand pounds per seasonal worker?
Kate Green
Q
Professor Peers: Of course that is a possibility, although I am sure that people on every pay level are concerned about pensions. It is bound to factor into people’s considerations, although it is hard to quantify. I am sure that someone has studied it in detail, but I have not. However, it will undoubtedly be a factor, and it is one reason why the first regulation the EU ever adopted, in 1958, was on social security co-ordination. That was precisely the reason why they did it—plus, it was a treaty that was ready to be copied into regulation. There has been so much case law on it over the years because of the importance of social security co-ordination to labour mobility.
Stuart C. McDonald
Q
Professor Peers: First of all, I agree that it is useful to have the clause there. I think there was a general assumption in some quarters that we did not need to say anything on Irish citizens, because they were covered, although my colleague in Leicester, Bernard Ryan, questioned that over the years. It is now there in the legislation, and it is useful to have.
However, having looked at that recently, I think the question of family reunion might arise. Are Irish citizens covered by the general appendix EU rules on family reunion as the Government intend to implement them in event of no deal, where there would be a shorter period in which the EU rules on family reunion apply? Does their being covered by those rules depend on whether they apply for settled status? There might be an answer to that that I have missed, but that question certainly arose for me.
That is not just about people who have non-EU citizens as family members, about people who have EU citizens as family members. After a no-deal Brexit, EU citizens would be coming here on a limited basis, according to the Government’s plans on limited three-year permits. Someone might be in a better position if they are here as a family member, so it would be useful to know whether such people would end up being covered as family members. Perhaps that will be clearer when we get further changes to the immigration rules to implement the no-deal plans. I have checked this afternoon, but I have not seen that implemented yet. It would be useful to see it.
Stuart C. McDonald
Q
Professor Peers: In an ideal world, yes. However, given that it is the Government’s intention to end free movement, the difficulty will be how to distinguish between EU citizens who are here on a free movement basis before Brexit day—or the end of whatever further period we might have—and those who come after that period and who do not have ongoing free movement rights. How do you distinguish between them if there is not at least some system of registration?
By way of a compromise, it might be useful to make it clearer that settled status is a registration system, rather than an application system, because I think that a lot of people were unsettled by its being described as an application system. I know that the withdrawal agreement says that. It also says that people will have to be given settled status if they meet the criteria, so there is not really any discretion for the Government. Given that, why not simply describe it as a registration system? Otherwise, a lot of people will be concerned about what they see as an implied threat. If we are going to go ahead with it, which seems quite likely, a useful way forward would be to reconceive it.
Stuart C. McDonald
Q
Professor Peers: There is a case for having either a longer deadline or no deadline at all, or having some kind of fairly general excuse clause that gives the Home Office a lot of obligations—not necessarily discretion—to accept late applications for quite an open-ended series of reasons. Obviously, there will be people who do not know about it or understand it. I am in contact with people who know the system well and are campaigning about it and so on, but I realise that that is a bubble. There are a lot of EU citizens outside it who will not understand it very well or follow the details, or who will shake their heads and ignore it in the way you might ignore something like an ominous-looking bill. It would be much better to be as flexible as possible about subsequent future registration and various methods of forgiveness and excuses that people might need to invoke.
Eleanor Smith (Wolverhampton South West) (Lab)
Q
Professor Peers: It is quite hard to say. This is an app and an electronic process, but that is still a lot of people to go through the electronic process. I do not know about the technological feasibility of it. The difficulty will be with the people who do not get settled status, the people who do not apply and the people who get pre-settled status and argue that they should have had settled status. There will be those categories of people, and there will be some overlap with people who come in either during the transition period, if we have a withdrawal agreement, or during the unilateral, more truncated transition period if we have a no-deal scenario.
In that case, especially if there is no deal, I can imagine employers or landlords being confused about the situation: are these people necessarily entitled to be here or not? There will be people who could have had settled status but do not have it yet because they have not replied or they are waiting for a reply, as well as people who have a more limited leave to stay and more limited rights. Ultimately, there could be some confusion about telling those two groups apart, and we want to avoid a scenario where employers, landlords and banks start to become nervous about renting to or hiring people who are entitled to be here, especially because for a while we will have a category of people who are entitled to be here but do not have the documentation.
That is the background against which we could end up with a Windrush scenario, because at some point there would be greater demands for documentation and some of those people will not have got it or will not then be able to get it. If they have been self-employed, for instance, they may not have the records of all the work they did on an odd-job basis that would easily satisfy the system that they are entitled to be here.
Nic Dakin
Q
Joe Owen: As I have previously said, it seems like a workaround to a problem. There is a political imperative to do something to end free movement, but practically it is really difficult, because EU citizens need to be given time to apply; you need the White Paper and the new system needs to be up and running. Until there are those two things, it is almost impossible to meaningfully end free movement. We therefore have a system where, for citizens coming into the UK, it will be exactly as it is now; and then after three months, if they want to stay longer, they can apply for temporary registration, which will be largely a security check. There is nothing to enforce whether people have that or not. If I go to my employer at the end of 2020 with a European passport, they do not know if I am someone who has lived here for 30 years and has not claimed settled status yet, or if I turned up a year ago and I have not bothered to do the registration scheme. There is a real difficulty about how this will practically be enforced.
As I said, another issue is what happens at the back end, when the new system comes into place and people who are here—who have either registered or have not registered—apply for the new system. If they are unsuccessful, what happens to them and what is the treatment of them? What kicks in around that, again knowing that large groups of people are likely to be in that situation? People will be expecting that to be dealt with in a way that carries public confidence.
Stuart C. McDonald
Q
Joe Owen: There are some questions around built-in safeguards in the immigration enforcement and caseworking system within the Home Office. There have already been quite positive steps, with a team of senior caseworkers being established in response to Windrush last year. They are there to provide a bit more discretion—a second pair of eyes—on some of the difficult cases. How do we build that into the system to ensure that there is a safeguard for people who have characteristics that make you think that the person has been caught up without the right paperwork, but would have been covered under the withdrawal agreement? Addressing some of the structural and process questions—assuming that the policy around the hostile environment or compliant environment of enforcement through public services, landlords and employers continues—would seem to be one way. There is also more that can be done with people who end up being the arm of immigration enforcement, such as landlords and employers, through education and outreach. Those are some of the more processy things, rather than questions of policy.
Stuart C. McDonald
Q
Joe Owen: Those are certainly options, if you want to change the timeline. In terms of changing the timeline, if you give EU citizens more time in which to apply, to some extent that is likely to kick on the point at which you can bring in any new immigration scheme, because you need to find a way to differentiate between people when they apply for jobs.
Stuart C. McDonald
Q
Joe Owen: Precisely. This is about how you build safeguards into the system, so that the first time something flags up, you do not necessarily get a very strongly worded letter about having to leave the country, but perhaps a reminder that you need to be applying for settled status. There should be different grades of how the Home Office interacts with people whom it thinks are caught up as a result of not having the information. A time limit is one option and a declaratory system is another option. In the past, when there have been big groups of people who do not have status, you could just do a total amnesty and say, “Fine, we are just going to do a declaratory scheme and issue people with the necessary documentation.” All those things are options. Assuming that those big policy choices do not get taken, just in terms of the structures and processes, it is important that there are these necessary safeguards built in as a kind of bare minimum.
The Chair
Thank you very much for your time this afternoon, Mr Owen. The Committee is very grateful for the evidence you have provided us with. Our two final witnesses have been sitting patiently throughout the whole of our proceedings, so I think they will be familiar with what will happen.
Examination of Witnesses
Jeremy Morgan and Kalba Meadows gave evidence.
Jack Brereton
Q
Jeremy Morgan: It is very hard to say.
Kalba Meadows: I do not think it is so much a trade-off as the fact that in each country you are coming from an entirely different culture, and the starting point is different. The one thing they have in common is a desire to protect their citizens in the UK. That is a shared point of view.
Stuart C. McDonald
Q
Kalba Meadows: Yes.
Stuart C. McDonald
So that is a plan of action.
Jeremy Morgan: In connection with ring-fencing, we must not forget that the UK has signed no-deal deals with Switzerland and EEA countries. It is extraordinary that they should not be able to do the same thing with the EU.
Stuart C. McDonald
What happens in different scenarios if UK nationals currently in Europe want to come back to the UK with family members? How might whether we are in a deal or a no-deal situation affect that?
Kalba Meadows: Thank you for asking that, because it is a very important aspect that is causing a lot of concern. You are talking about Surinder Singh rights: the right of, let us say, a British citizen who has exercised freedom of movement by living elsewhere in the EU to come back to the UK with their non-British family member. That right will disappear after Brexit whether or not there is a deal. Let us say that we are talking about somebody who is married to a Dutch citizen. Anybody wanting or needing to come back to the UK after Brexit would have to comply with UK immigration laws in order to come back. Surinder Singh rights will disappear after Brexit, whether or not there is a deal.
Stuart C. McDonald
Q
Kalba Meadows: Absolutely. That leads to a situation where people may be forced to make a choice between their family in their host country and their family in the UK. Very often we are talking about people who need to come back to the UK to look after elderly parents.
I can give you a specific example very quickly. Let us call her Nicky. She lives in the Netherlands, where she looks after her husband who has multiple sclerosis. In the UK she has parents in their 80s getting older who will need care, and she is an only child. What does she do? She cannot come back to the UK, because there is no way, as a carer, she would earn the amount required in order to bring her husband. She cannot bring two very elderly parents to the Netherlands, because they do not speak Dutch. She is stuck. She has to make an impossible choice.
Stuart C. McDonald
Q
Jeremy Morgan: You put the withdrawal agreement into primary legislation. That takes you an awful long way down the road. We are not entirely happy with the withdrawal agreement, but it is the best thing out there at the moment.
Stuart C. McDonald
Q
Jeremy Morgan: It is more on the rights that we have in the EU. We have lost our freedom of movement rights, so the people who Kalba mentioned, who have moved to Europe—not necessarily to the Netherlands or to Luxembourg—have lost their right to move around. Many of them move there precisely because it is a very mobile market. People with IT skills, for example, work a two-year contract in one country and go to another. There are so many British people who have taken advantage of that, made lives for themselves, and ended up, in the course of that, picking up a family from one of the countries they have stayed in.
It has become a very complex system. Taking that right away from them is very serious indeed. The British do not have it in their gift, although at an early stage in the negotiations, I think in September 2017, the British offered to give EU citizens in the UK indefinite right to return. At present, you are allowed to be away for five years with your settled status, and then you lose it. The offer was to make that a lifetime right to return in exchange for freedom of movement for UK citizens in the EU. That was not accepted by the EU at the time, and has not been pushed as hard as it should have been since, because it is a terribly sensible arrangement.
Caroline Nokes
Q
Kalba Meadows: There is a timing issue, in that the UK may leave the EU in six weeks with no deal. That does not leave very long to legalise the rights of British citizens living abroad. If we know that the EU27 states are looking for legal guarantees for their own citizens living here, we do not have very long to do it. They will be looking for those in order to put into place their own legislation. I would have concerns about leaving it too long.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (First sitting)
Stuart C McDonald ExcerptsTuesday 12th February 2019
(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 February 2019 - (12 Feb 2019)
Afzal Khan
Q
Professor Manning: That kind of scheme was not in our report. We laid out reasons why we were not terribly enthusiastic about it, but it was a feature of the White Paper more than of our report.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Q
Professor Ryan: That is correct: I have argued in the written evidence—and I believe they will be saying something similar—that there are some adjustments that one could imagine. As it stands, the Bill does not guarantee equality as regards family migration for Irish citizens. That is thinking especially about Irish citizens who might want to relocate to the United Kingdom: they are not guaranteed to be in the same position as British citizens. That is a provision that could be made—or, one hopes that a commitment could be made that the rules will be framed so that Irish citizens will be treated in the same way as British citizens as regards family migration.
There are questions about the deportation provisions as well. I am not disputing that it should be possible to deport Irish citizens or to exclude them, but we need to recognise that the policy has been to do that only in exceptional circumstances. That is somewhat different to the “conducive to the public good” standard that is usually applied in deportation cases. It is important to get clarity about the intentions going forward as regards use of the deportation power. There is a specific issue about Northern Ireland, because of the Belfast Agreement and the entitlement of people from Northern Ireland to identify as Irish citizens. It is important that that entitlement is not compromised by the possibility of deportation of Irish citizens that is confirmed in the Bill.
I have suggested that it could be done through amendments, but the Government could clarify their intentions in relation to Northern Irish citizens.
Stuart C. McDonald
Q
Professor Ryan: Immigration policy is complex and it evolves so there has to be a structure that permits that to proceed. Perhaps immigration rules could be drafted differently; I know that work about that is going on. I am certainly not against the idea of having immigration rules, and doing the bulk of immigration policy in that way.
Stuart C. McDonald
Q
Professor Ryan: Exactly. The question is whether certain guarantees should be written into primary legislation. I suppose that that is what I am asking for.
Stuart C. McDonald
Q
Professor Ryan: Are you assuming that the withdrawal agreement—
Stuart C. McDonald
Q
Professor Ryan: I question why we even need a deadline for applications under the settlement scheme. There will be advantages to individuals to registering through that scheme, regardless. I do not see why we need a hard line that says, if you do not register by x date, then unless you come within some exception that we formulated, tough luck. I do not see why we need a deadline at all.
Stuart C. McDonald
Q
Professor Ryan: Children are the key test here. A child who is here now is eligible under the settled status scheme. Other people are taking those decisions for them, or failing to register. Even if they are registered, how do they know that and prove it later on? The opportunity for them to come back and make the application much later is a way of fixing any difficulties that arise. It would solve a lot of problems if there were no hard deadline for the settlement scheme.
Stuart C. McDonald
Q
Professor Ryan: It would be possible to formulate a guarantee in that way as well. I have been focusing on the people, ensuring that individuals are protected without specifying what protections they get. It clearly would also be possible in a guarantee to consider the core rights that would be obtained by the beneficiaries of any guarantee.
Stuart C. McDonald
Q
Professor Manning: I am not sure it is just Treasury—
Stuart C. McDonald
Q
Professor Manning: Yes, of course. It is important to realise that it is only modelling being more restrictive on the EU side. It is not modelling at all the liberalisation on the non-EU side. So it is not modelling the whole package at all.
Stuart C. McDonald
Q
Professor Manning: That is my understanding.
Stuart C. McDonald
Q
Professor Manning: The numbers that you quote make the point we made in our report that neither the costs nor the benefits have been very large. When you take that £4 billion over five years, quoted on the public finances, that adds up to a bit under 25p per person per week for a really quite substantial reduction in migration.
Stuart C. McDonald
Q
Professor Manning: I could do quite a lot with £4 billion, yes, but it is under 25p per person per week. You can say that is not a good idea, but you cannot say it is a big negative impact. It is what we said: the impacts, both costs and benefits, have been modest.
The Chair
May I remind colleagues that this session finishes at 10.30 am? I have got two people waiting to catch my eye, one of whom we have not heard from before. I also want to give the Minister a chance.
Gavin Newlands
Q
Lord Green: The first thing is to restore the cuts that have been made, but I think they will probably need more than that, because they will have a new situation to deal with. But I am not an expert on the administration of the Home Office.
Stuart C. McDonald
Q
Lord Green: There are bound to be problems. You are talking about literally millions of people, most of whom have good English, but not all. There is certainly a possibility—a probability—that by the time the deadline comes, there will be people who have not registered. I listened to what the previous witness said about that.
We will need to be careful that we do not accidentally find that a large number of people have rights that they are not aware of—have rights through their parents that they are not aware of, as one of the Committee members put it. There is a risk there, but that is administration and I am sure that the Home Office will do its best.
Stuart C. McDonald
Q
Lord Green: I do not have a strong view on that, but it does seem sensible to have a deadline, otherwise people will leave it and leave it and never get it done. The deadline helps to get people in and do the registration, so it is at least a line in the sand, but I do not think it should be the end of the world.
Stuart C. McDonald
Q
Dr Greening: I have seen something from the Government in which they specified that the deadline was somewhat flexible, so if there were good reasons why people had not applied by the deadline, they would be treated on a case-by-case basis.
Stuart C. McDonald
Q
Dr Greening: It is reassuring to see in the White Paper that the Government said:
“The EU Settlement Scheme…will ensure that those who successfully apply for it have a clear immigration status in the UK, safeguarding against what happened”
to some members of the Windrush generation. The Government are clearly aware of the lessons to be learned from Windrush and are applying them in applying the EU settlement scheme. There are bound to be some teething issues and problems.
Stuart C. McDonald
Q
Dr Greening: That would be a major problem. I hope that the Government take—
Stuart C. McDonald
Lord Green has highlighted the problems in terms of funding for Home Office administration. I think the Home Office is pulling out all the stops and doing its best to try to register as many EU nationals as it can, but even if it achieves a 90% success rate, 400,000 people will still be in a similar situation to the Windrush generation.
Dr Greening: We do have concerns about that. We will be watching closely to monitor it and ensure that it is efficient, that it works for the millions of people who will use it, that it reaches everyone and that it makes sure that no one who has rights loses their rights.
Resources are relevant to that. It is important to note that Lucy Moreton, of the Immigration Service Union, said that immigration enforcement is not adequately resourced at the moment to deal with illegal immigration. Combined spending on Border Force and immigration enforcement has fallen by £100 million over the last three years. The chief inspector of borders has said that the capacity simply will not deal with numbers. Officials have complained to him about security at southern ports being resourced to—
Stuart C. McDonald
Q
Dr Greening: As do we.
Maria Caulfield
Q
Chai Patel: In an ideal world, people from all countries would be treated equally under the immigration system. What I would be careful about is the fact that we have heard a lot from people who have suggested that Brexit provides an opportunity for us to move to that, but the Government’s plans in the White Paper certainly do not provide that because it specifically states that, of course, preferential treatment will continue to be given to people where trade deals require that to be the case. So, yes, in theory, but at the same time I would be reluctant to suggest that I think that is going to happen.
Stuart C. McDonald
Q
Chai Patel: I think that in effect it is the same thing. I might be wrong if there is no cut-off date. What is someone’s legal status at the end of the transition period or the grace period until they apply? If they are in legal limbo at that stage it seems simpler to grant them the legal right as of law, rather than saying they can apply later and be reinstated, because there might then be a question of what their status was in the intervening period.
Stuart C. McDonald
Q
Chai Patel: I think that will inevitably lead to exploitation. It contradicts the reasons that the Government have given for wanting to reduce immigration in the first place. Of course, we do not accept all of these, but in theory there is an idea—not borne out by evidence—that immigration reduces people’s rights in the workplace, because immigrants can be treated less well. That only happens when immigrants are given fewer rights. If they are put on short-term visas, that increases the potential for exploitation.
We do understand that there is concern about integration and people wanting more integrated and cohesive communities. We do not think there is any contradiction between immigration and cohesive communities. What we do think is that, if people are required to come here for a year and then to leave, they will not be able to make those community links.
It may well be that people are rightly resentful of people who come in for a year and then leave, having left no long-standing mark. I think people welcome immigration whereby people are able to come to this country to live as people who belong to this country and, if they choose, to stay as long as they want to put down roots and build families here.
Stuart C. McDonald
Q
Chai Patel: I am surprised. The withdrawal agreement clearly sets out that appeal rights will exist. The Government have said that legislation is required to make those appeal rights a reality, which is why we have not got them in the pilot scheme. Therefore, it seems very strange to us that the Bill does not contain that legislation.
Stuart C. McDonald
Q
Chai Patel: That is certainly a concern. All the rights that have been set out for EU nationals under the withdrawal agreement must be available to them in the event of no deal, if it is accepted that those rights are required. Certainly it must be right that people who are denied settled status have the right to appeal to an independent tribunal, rather than having to seek a Home Office administrative review or a judicial review, which is not sufficient to deal with the merits of their case and is very costly both for the Government and for the person pursuing it. There needs to be a simple and fair appeal system in which an independent tribunal can look at the merits of someone’s case when they are denied the right to stay in this country.
Tracey Crouch
Q
Chai Patel: First of all, our view is that it would be open to the Government to put forward an immigration Bill that did that very simply, but they would need a plan for the new system. No such plan exists; until it does, ending free movement simply cannot be tenable, for the reasons that we have given. We are not saying that it is invalid for the Government to choose to end free movement. We may disagree about precisely what system will replace it or about whether free movement was the best system in the first place, but that is fine. What you cannot do, however, is end free movement overnight, because that will lead to a situation in which between 3 million and 4 million EU citizens were here with no documentation beyond their EU passport, while new EU migrants were coming in with their EU passport plus some other document. We have in-country immigration checks, and people may want to leave and come back, but they will not be able to until they have been registered and a clear new system has been set out. The Government should have put that forward in the Bill.
Caroline Nokes
Q
Chai Patel: I would have to think about that. Perhaps we can respond in written evidence later. I am afraid I have not thought that through.
Stuart C. McDonald
Q
Chai Patel: Yes. The key reason why discrimination happens under, for example, right to rent is not that landlords, or whoever needs to do the check, are prejudiced; it is the administrative hassle of having to deal with it. It is simple just to check a British passport. By not giving people a physical document, you are creating a massive problem for them in terms of having equal access to work, housing or other things that they might need.
The Chair
That brings us to the end of the session. Thank you very much, Mr Patel, for the time that you have spent with the Committee.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Second sitting)
Stuart C McDonald ExcerptsTuesday 12th February 2019
(5 years, 10 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 February 2019 - (12 Feb 2019)
Eleanor Smith (Wolverhampton South West) (Lab)
Q
Vivienne Stern: Perhaps I can start. The cost of managing the compliance requirements for non-EEA students and staff for universities is about £66 million a year—a huge cost. I want to make it clear that universities are one of the biggest users of the immigration system and there has never been any suggestion from us that they should not be responsible for working to make sure that the visa system is not abused, but the cost is huge.
If we increase the number of individuals coming through that sort of system by adding EEA workers to the group of people that universities have to manage through the compliance system, the cost will increase, at least in proportion, unless something has changed. We have got a piece of work going on at the moment about estimating the cost of compliance to improve on that £66 million figure. When we have got the results of that, I am quite happy to write to the Committee with a sense of what we think the cost might be.
As I understand it, there is an opportunity now to try and refine the compliance system to make it easier for those sponsors to discharge their responsibilities without it being a massively burdensome and costly exercise, but also make it more appealing for people who are coming into the UK and experiencing it from the other side. I would like to add that the Home Office has said repeatedly that universities are highly compliant. There is a genuine desire to make sure the system is not abused, so I hope we can get to a position where it is a little bit lighter touch.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Q
Vivienne Stern: This is about the criteria you have to meet to have access to the lower threshold. The individuals I mentioned—the population of technicians whose salaries generally fall below the £30,000—would not qualify for the lower threshold level, which would apply, for example, to international graduates who were staying on in the UK for some time post graduation. There is probably a group in the middle who would qualify under those criteria for the lower threshold, but it will not address the bulk of the problem, where we have a large population of workers who would not qualify and yet will not make the £30,000 threshold.
Stuart C. McDonald
Q
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 Dame Donna Kinnair: EU and EEA.
David Duguid
Q
Gracie Bradley: Liberty would not really have a view, because we do not take a view on the immigration system in general. Our view would be that there should be minimum rights standards below which nobody should fall, related to convention rights, protection from indefinite detention, data protection, legal aid, etc., but on people coming in and out of the country, salary thresholds and things such as that, we do not take a view.
Jodie Blackstock: The frustration with this Bill is that the question you are asking is entirely the right one, but it does not give you the opportunity to debate it, because it leaves the power to the Government to decide.
Stuart C. McDonald
Q
Jodie Blackstock: I think so, but do elaborate a bit more to ensure that I am answering correctly.
Stuart C. McDonald
Q
Jodie Blackstock: It does. There is certainly some sense in that argument. What it demonstrates is the difficulty of the gap that will be created with the repeal of these measures. Having a scheme that someone has to apply for means that they have to make that effort, and while their application is being processed, their status is uncertain. Indeed, it may be processed in error, which requires an appeal right, during which their status is also uncertain. We suggest that the transitional arrangements for that group of people should also be in the Bill, with a policy requirement to extend those accrued rights for that group of people until such time as their settled status is determined by way of the scheme.
The reality is that this scheme is currently in a pilot state and only a certain group of people can apply for it until exit day, when it becomes live. At the moment, they have an entitlement to remain here anyway. Even if people were fully able to apply now, they might not realise that they have that right. We have to make provision for that group of people before their status is confirmed. That should be done by way of a transitional arrangement. It could be simply by declaration, but either way, that is a transitional provision that should be clear in the Bill.
Stuart C. McDonald
Q
Gracie Bradley: I cannot say that Liberty has briefed on this, but I would reiterate that there are basic safeguards that should be reinstated to the immigration system. We should ensure that people have access to legal aid, we should ensure that people have access to data protection rights so that they know on what basis the Home Office is granting or refusing them status, thinking about the automated checks, and we should protect them from a hostile environment. At the minute, the system is not geared towards helping people retain or access regular status, and as such the price that people pay for not having regular status is far too high.
Stuart C. McDonald
Q
Gracie Bradley: I cannot say that I have looked into that in any detail.
Stuart C. McDonald
Q
Jodie Blackstock: Section 3 of the Immigration Act 1971 creates the provision to amend immigration rules, to administer the immigration scheme that the country gives effect to. As with the powers in the Bill, our concern is that that creates a very broad provision for the Minister to amend the rules, to replace the free movement process with something that would not be subject to sufficient scrutiny by Parliament. Our proposal is for an amendment to limit the ability of the Government to use immigration rules to amend the law to give effect to post-Brexit arrangements.
Stuart C. McDonald
Any thoughts on that, Ms Bradley?
Gracie Bradley: Liberty has taken a slightly different approach, recognising that, as you will have seen, the Law Commission has said that the immigration rules are incredibly complex; I think there has been more than 5,000 changes to them since 2010. Liberty is increasingly concerned that the rules are being used to make changes to immigration policy that affect people’s fundamental rights. We are looking at an amendment that stipulates that rules may not be made under that section of the Immigration Act where they risk a significant negative impact on human rights, and that Ministers should have to publish a human rights impact assessment when making changes to immigration rules.
Part of the reason why we are where we are is that we have had thousands of changes to the rules and significant policy changes that should have been set out in primary legislation. The Bill demonstrates a problem that has been running for years in immigration policy making.
Eleanor Smith
Q
Jodie Blackstock: It is very unclear, because the power to arrange the post-exit scheme is left to the Minister. That is our concern. Its impact could be profound or negligible, depending on what policy process the Government put in place.
The proposals for the temporary leave to remain scheme would enable someone to go through a process of application if they wanted to settle in this country, for work or otherwise. The proposals in that scheme, which I have not looked at so cannot assess, ought to be within the Bill, so that the Committee can scrutinise them properly. The problem is that by enabling everything to be done using such a broad delegated power, you are not in a position to know.
With the way we are going, this will be left until post exit to be scrutinised, with the Bill proposing using the affirmative process for the first set of regulations, which we think is wholly inadequate, for the reasons we have given. If the scheme is already proposed, in draft or otherwise, it should be in the Bill, not left until the last minute to be announced, at which point it will not be possible to propose amendments to it. Our view is that it is a very simple step for the Government to bring forward their proposals for scrutiny, and they ought to do so for something that will create such a significant change.
Tracey Crouch
Q
Matthew Fell: Many countries around the world have told us that that is quite important when they have negotiated trade agreements with other countries around the world. That is something they expect to be part of that overall trade negotiation. We have heard from India, Japan, Australia and New Zealand. They have all publicly said that if they are looking to strike trade agreements with the UK, ideally they would like to include migration as part of those talks on a future trade deal. When you look around the world and other trade agreements, it is frequently part of those discussions and part of the final deal and our sense was that, if, rightly, we want to seek to strike the most ambitious trade deals in many parts of the world, this is something that should be part of those conversations.
Stuart C. McDonald
Q
Matthew Fell: Correct, yes, it is of that order.
Stuart C. McDonald
Q
Matthew Fell: I do not have that figure off the top of my head, no.
Stuart C. McDonald
Q
Matthew Fell: I would make a couple of observations which may be helpful. Clearly, the example I am going to give is retrospective, which does not apply. My understanding is that the figures are something in the order of three quarters of all EU workers in the UK today. If these rules were enforced with the new system as envisaged, those would be out of scope for the new proposed system. That gives you a little about the order of magnitude of the volume and scope of workers currently here that would be caught by that—that is what we believe.
You ask what an employer would face additionally. Those 30,000 firms are principally focused around the largest businesses in the UK. We know that the non-EU approach is quite complex. You typically enlist significant legal advice—it is sensible to do so—or you develop in-house expertise. While it is an administrative headache for the largest businesses, they are employing a sufficient volume of people to make it sensible and worth their while to invest in expertise and legal advice and so on—at least it is feasible for them to do that. I think it would have a stark impact on small and medium-sized businesses that possibly do not use the system with sufficient frequency that they get familiar with it, and in which the resources would bite even more if they needed to take on outside expertise and advice.
Stuart C. McDonald
Q
Matthew Fell: That is correct. Some of the admittedly small administrative examples that I just referred to are the sorts of things that you would have to be familiar with and continue to do. While they might be a headache in larger firms with dedicated teams, HR functions, compliance and so on who are able to provide those facilities, they are an even bigger headache for smaller businesses.
Stuart C. McDonald
Q
Matthew Fell: That is correct. That is my understanding of it.
Stuart C. McDonald
Q
Matthew Fell: I have not seen that specific report so I would need to go away to confirm that.
Stuart C. McDonald
Q
Matthew Fell: This is relatively new for many businesses. We have been working with the Government and businesses to help to inform the employer guide. We have been providing some guidance ourselves. We found that the level of interaction with businesses has been quite good, and there has been a spirit of helpfulness to be able to navigate that, recognising that it is a new approach. We are building up more familiarity with it.
Stuart C. McDonald
Q
Matthew Fell: There is a challenge of awareness. Organisations such as the CBI and other business organisations have a role to play in that, not just in raising awareness for their own employers, making sure they are properly informed about what they need to do and helping them through the process, but by encouraging them to do that with their friends, colleagues and contacts. There is a good role that business can play. That being said, however good the intent, awareness is clearly an issue. I do not have an exact feel for how many would or would not be aware. Ultimately, that is a bit of a judgment call, but that is the risk that would open up.
Stuart C. McDonald
Q
Matthew Fell: We have not explicitly gone on the record and said that that is an approach we would advocate. My view is that you would hope that pragmatism would prevail. My feeling is that, if an individual and a business are coming forward with good intent and saying, “I am ready to do it and have everything I need,” pragmatism ought to prevail in such situations.
Stuart C. McDonald
Q
Matthew Fell: The CBI’s natural constituency, if you like, is typically employers as opposed to the self-employed. The self-employed population is a huge contributor and hugely important to the UK economy. It is not an area that we particularly speak about, though, or which I focus on.
Afzal Khan
Q
Matthew Fell: I would be happy to share with the Committee a significant piece of work that the CBI published in the summer of 2018, where we took an in-depth look at a number of business sectors around the economy. The key conclusion was that it is hard to identify any sectors that are not impacted in this way. The reason for that is the interconnected nature of business today.
To give you a small example, we have a huge challenge in this country around house building. In order to build the 300,000 homes a year that we need, we need everything from architects to electricians, bricklayers and on-site labourers. The conclusion we drew was that if you take one piece out of that, the whole project does not get done. Our findings were that you could almost extend that logic to any part of the economy. For example, take the retail sector and its dependence on the logistics sector for distribution, and so on. It is really quite hard to identify any part of the economy where, even if we think it is not directly impacted by these issues, indirectly they do have a consequence.
On the regional aspect, looking at the statistics, we have a piece of work out today that looks at analysis by region. Even if you take a really quick glance at the numbers, median wages today are somewhere between £21,000 to £24,000 in most regions of the UK outside London. That tells you that the impact is quite significant across the country.
Mrs Badenoch
Q
Meri Åhlberg: Definitely. Pre-departure training and on-arrival training about people’s rights is really important. Having a multilingual complaints hotline or a 24-hour hotline, on which workers can make complaints is also important, but the most important thing would be to have proactive well-resourced labour market enforcement, to ensure that people were not depending on migrant workers and vulnerable workers coming forward and enforcement being based on reaction to a worker making a complaint. There is a lot of evidence to show that vulnerable workers do not come forward, so what needs to be in place is really proactive enforcement.
Stuart C. McDonald
Q
Caroline Robinson: We feel like many, I suppose, in the business of protecting workers’ rights in a conflicted situation. We recognise that there will be a shortage of workers in this country after Brexit. Equally, looking at seasonal workers programmes, as we have done over the past year, in great detail, workers in those programmes are more vulnerable to abuse and exploitation. If we were asked to start from nothing, we would not be proposing seasonal temporary workers schemes, but we are trying to engage with the programmes that are being suggested, to advocate for strong protective mechanisms to be integrated into those programmes.
Stuart C. McDonald
Q
Caroline Robinson: The agreement I mentioned between Mexico and Canada has the function of establishing conditions that workers can expect, but also what employers can expect of workers on the scheme. It is an engagement on the standards that can be expected in relation to the agricultural workers programme in particular. I guess there is a whole range of bilateral labour agreements that are established between sending and receiving countries. We are particularly interested where there is a facility for them to establish terms and conditions for workers, and also where there is a facility to guarantee a set number of hours or a limit on what the payment for the travel to the destination country might be, and a facility for paying that back in instalments on arrival, which we think would provide less of a risk to the workers.
Stuart C. McDonald
Q
Caroline Robinson: In relation to the previous SAWS scheme, I am not sure, but we can certainly look into it and write to you if that is of interest.
Stuart C. McDonald
Q
Meri Åhlberg: That is an incredibly problematic visa and has been in the past. I don’t know if Caroline wants to talk about that.
Caroline Robinson: The overseas domestic worker visa had problems, which led to the review by James Ewing, around the time of the Modern Slavery Act. Some measures were introduced by the Government to address the risk to workers on the overseas domestic worker visa. The interviews with workers to engage them on their rights have been introduced, which we have talked about in relation to this scheme as something we could learn from that visa—on the seasonal workers pilot, having an information session with workers when they arrive about their employment rights and entitlements in the UK, which is something to learn from the problems with the overseas domestic worker visa and the isolation that workers felt on that scheme.
Meri Åhlberg: With that scheme, workers were tied to their employer. That was then removed because it was recognised that it is incredibly problematic. If workers were tied to an employer and wanted to leave, they would lose their visa and have to return to their country of origin. Even after that provision was removed, workers could only come for six months, which then meant that if they only had two months left on their visa, it was very hard for them to find new work and to change employers. In practice it was very difficult. Similarly to the previous SAWS scheme, technically you could change employers, but in practice it was very difficult, and in practice is what matters.
Stuart C. McDonald
Q
Caroline Robinson: From the brief discussion with my colleague from the TUC, I believe she mentioned the illegal working offence, which I think we were talking about during the passage of the Immigration Act 2016. We would certainly support a discussion of the repeal of that offence, which we raised at the time. It places workers at great risk of exploitation. It is recognised by the Government and by the International Labour Organisation that the threat of denunciation to the authorities, regardless of a worker’s status, is a contributing factor to coercion and exploitation. As we mentioned at the beginning, the real risk to workers of the coercive power of an offence of illegal working is extremely dangerous in relation to modern slavery.
I raised at the time the fact that people would be fearful of coming forward to be referred to the UK national referral mechanism because of that offence, that traffickers would use the threat of the offence of illegal working to keep people in abusive and exploitative conditions, and that there is then the risk of criminalisation and detention of trafficked persons. The detention of trafficked persons is something that we have seen recently, and the difficulties of individuals being identified once they are in detention.
Windrush Scheme
Stuart C McDonald Excerpts(5 years, 10 months ago)
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Sajid Javid
I am happy to confirm that to my right hon. Friend, and he is right to raise it. From the moment the taskforce was set up, it was designed to make it as easy and simple as possible for people to use, and, as I said earlier, it has so far correctly documented almost 2,500 people.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I wish also to raise concerns about removals and deportations to Jamaica being resumed. By all accounts, we are talking about people who came as children, about parents with British children and even about Commonwealth soldiers. To all intents and purposes, therefore, we are talking about people who are British even if they are not formally citizens. The Home Secretary has mentioned foreign national offenders. Will he publish the full list of offences people are being deported for?
Even the issue of foreign national offenders is not straightforward. Stephen Shaw said in his updated report on detention that
“a significant proportion of those deemed FNOs had grown up in the UK, some having been born here but the majority having arrived in very early childhood. These detainees often had strong UK accents, had been to UK schools, and all of their close family and friends were based in the UK.”
In other words, the Home Office is often really deporting UK offenders to other countries. Has the Home Office even begun to engage with the issue Mr Shaw himself has raised? I am asking the Home Secretary not to break the law but simply to review it and change it if necessary.
What work has been done to establish how people from other countries, including Commonwealth countries, have been impacted by Windrush-type disasters? Finally, what will the Home Office do to prevent probably hundreds of thousands of EU nationals from being subject to the same hostile environment measures when they miss the cut-off date for settled status applications?
Sajid Javid
I want to be clear again about the flight to Jamaica mentioned by hon. Members: not a single person being deported is British—a person cannot be deported and be British; they are all foreign national offenders, and under the 2007 Act, where someone is given a sentence of at least one year, the Home Secretary is required to make a deportation order, and where it is four years or more, the Home Secretary is required by law to order a deportation.
The wording of the hon. Gentleman’s question seemed to suggest that he knew who was on the flight and who was not. Let me say gently to him that the flight has not happened yet, but the deportation of anyone who is on it will be carried out absolutely according to the law. Ultimately, this is about public safety, because these are individuals who have committed serious offences. I ask the hon. Gentleman to reflect on the fact that if we did not carry out the law, we would not only be breaking the law. Let us imagine what would happen if one of these people—someone, say, who had been convicted of murder—were allowed to stay in the UK and then committed that act again, against one of our constituents. What would the hon. Gentleman be saying to me then?
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Stuart C McDonald ExcerptsMonday 28th January 2019
(5 years, 10 months ago)
Commons ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
It is always nice to start with a note of consensus, so let me say that I agree that we need an immigration Bill and I welcome the one solitary clause in relation to Irish nationals. Sadly, that is where the consensus ends. Let me say unequivocally that the Scottish National party opposes the Second Reading of the Bill.
There is so much wrong with the UK immigration system that needs fixing, but this Bill will not fix anything; in fact, it will make things much worse. The UK immigration system is built on the flawed twin pillars of a ludicrous net migration target and an obnoxious hostile environment policy exposed in all its nastiness by the Windrush scandal. That scandal is yet to be adequately and fully investigated or resolved. Meanwhile, the chief inspector of borders and immigration points out that the Home Office makes no effort to measure the effects of the hostile environment, but we know that turning NHS workers, landlords and bank staff into border guards has had terrible implications for too many people. This Bill does not end the ludicrous net migration target or the hostile environment; instead it will see more people ensnared by both.
We have the disgraceful situation of being alone in Europe in insisting that indefinite detention is perfectly okay simply for immigration purposes. Report after report flags up the terrible effect it has on detainees, yet there is nothing in this Bill to fix it.
Alex Sobel (Leeds North West) (Lab/Co-op)
The hon. Gentleman is making excellent points about indefinite detention. Does he agree that one reason why the Government and Conservative MPs argue for indefinite detention is that they claim that otherwise there will be a pull factor and more people will come in? Actually, that has been disproved: academic studies show that there is no pull factor in this, so there is no need to have indefinite detention.
Stuart C. McDonald
There is absolutely no need for indefinite detention and the fact that we are the only country in Europe that has to have it shows that every other country manages perfectly well without it. Basically, it is an affront to democracy and the rule of law. It is a human rights disgrace and the Bill should be used to scrap it altogether.
We have among the most anti-family immigration rules in the world, splitting up partners, spouses and parents from children if the UK sponsor cannot meet the £18,600 financial threshold.
Drew Hendry
My hon. Friend might recall the family who ran the village shop in Laggan in the highlands, the Zielsdorfs. The shop they ran was a vital component of the community and well loved by the community, but they were deported to Canada by this Government under the current rules. Does my hon. Friend also agree that even under the current rules the Government cannot even support our armed services personnel to be put together with their families, as raised by me in Prime Minister’s questions this week in the case of Denis Omondi and Ann in Kenya?
Stuart C. McDonald
I saw my hon. Friend’s question to the Prime Minister and it gave yet another horrendous example of the types of family these immigration rules are splitting apart.
Some 40% of the total population is not able to meet the financial threshold set out in the immigration rules, but that proportion is significantly higher for women, ethnic minorities and certain communities across the country. Every week we hear stories such as the one referred to by my hon. Friend. These rules are wicked, but this Bill will result in their application to hundreds of thousands more families in future. Some 500,000 UK citizens currently live here with an EU partner or spouse. That gives an idea of how many future relationships will be impacted in the years ahead. Rules for other families are just as outrageous. This Bill does not end these anti-family policies; it will destroy more families.
We put families with children on “no recourse to public funds” visas, increasing the risk of exploitation and cost-shunting on to overstretched local authorities. Again there is nothing in the Bill to fix that, but more people will end up with “no recourse to public funds” visas. The UK immigration system has become ludicrously complicated and is characterised by poor decision-making and massive expense and bureaucracy. Those who seek to challenge decisions so that they can access their rights struggle because appeal rights have been swept away, while legal aid has become a rarity in England and Wales. The Bill will leave even more people subject to poor Home Office decision-making but without the means or procedures to challenge that effectively.
Pete Wishart (Perth and North Perthshire) (SNP)
Does my hon. Friend agree that the objective of Tory immigration Bills is to achieve two things: to stop people coming to this country, and to make life as miserable and difficult for the poor souls who have managed to make it here? Does my hon. Friend also agree that with this Bill they have triumphed in both respects?
Stuart C. McDonald
My hon. Friend is spot on. So much of this is about immigration theatre; it is about the politics of immigration and being seen not to stand up to those who are anti-migrant—almost trying to be seen to be hard on immigration for electoral purposes. It is a disgrace.
Caroline Lucas
The hon. Gentleman is making a powerful point. I want to take him back to the threshold figure of £18,600, because it is so unfair, so unequal and so unjust. That is not even the minimum wage, so it deliberately splits up families, depending on the wealth of one person in that family. The Supreme Court says it has a particularly harsh effect on citizens who have lived and worked abroad. Does the hon. Gentleman agree that there is cruelty and callousness at the heart of this Government’s policy?
Stuart C. McDonald
I absolutely agree. We could spend many hours debating, and highlighting the flaws of, so many of the features of the family migration rules. Another is the fact that this threshold only takes into account the earnings of the UK sponsor; it does not take into account, for example, the potential earnings of those who want to come and join their family members here. So these rules achieve absolutely nothing but keeping families apart—families split apart and destroyed.
Our asylum system also urgently needs important reform: to fix and extend the “move-on period” that forces newly recognised refugees into homelessness and poverty; to end the poverty support rates for asylum seekers and allow them the right to work; and to respect the vote in this House on the Refugees (Family Reunion) Bill to extend family reunion rights.
Angus Brendan MacNeil
Does my hon. Friend agree that the fundamental point is that those under a certain age who have been designated as refugees should have the same rights as people over that age, and it is very nasty not to give those rights to children in particular?
Stuart C. McDonald
My hon. Friend is absolutely right, and the UK is once more an outlier in terms of the refugee family reunion rules it has in place. Sadly, the Bill does not mention asylum at all, and gives us little chance to address those issues.
These and a million other things need to be fixed, but this Bill does not do that; instead, it provides the Government with a big blank cheque to extend many of these flawed features to hundreds of thousands more people, each and every year.
On EU nationals who are already here, although scrapping the fee for settled status is welcome, much more needs to be done. The Home Secretary says he is listening, but the biggest concern just now is what happens in the event of no deal. Unilateral promises from the Government are fine so far as they go, but promises can be here today and gone tomorrow and, being unilateral, they are no help to the UK in Europe, nor do they have the force of international law. That is why MPs across the House have repeatedly urged the Government to seek to ring-fence the deal on citizen rights so that they can be guaranteed once and for all sooner rather than later. But the Government have shown absolutely no interest so far. We should use the Bill to try to make them at least attempt to secure such a deal, and we should use the Bill to enshrine the rights of the 3 million in primary legislation so that they cannot be changed in the blink of an eye via immigration rules.
Other questions remain. Why are there differences between the positions of EU citizens in a no-deal scenario compared with if a deal is agreed? Why are there to be settled status appeal rights if there is a deal, but not if there is no deal? Why are the appeal rights not in the Bill? Why are voting rights not protected? Why are the 3 million to be refused physical documentation despite calls from the Exiting the European Union Committee to make that available? Where is the clarity about rights for Surinder Singh cases, and the different rights of carers from Chen, Ibrahim and Teixeira case law?
Perhaps most significantly of all, we still do not know anything about what will happen to those who fail to apply for settled status in time. Why should there be such a severe cut-off date? It is inevitable that hundreds of thousands will not apply in time: many children; people who have been resident for many years; those who think having a permanent residence document is sufficient; people who struggle with language or technology; vulnerable and exploited people; people who were born here and do not think they need to apply—the list goes on. We must also remember that in a recent British Medical Association survey, 37% of EU national doctors were unaware of the scheme. That does not bode well.
Angus Brendan MacNeil
When Conservatives are on the stump or going around the country, they always talk about getting rid of red tape and taking the Government out of the centre of people’s lives. Right now, through this sort of legislation, they are putting massive amounts of red tape in people’s lives and putting Government right in the middle of people’s lives. Where things are currently going seamlessly, they want to introduce a ramping up of bureaucracy. That is shocking.
Stuart C. McDonald
My hon. Friend is absolutely right; the Bill will catch hundreds of thousands of people into one of the most horrible bureaucracies that the Government have managed to create, and we should have absolutely nothing to do with it at all.
All the people—inevitably, hundreds of thousands of them—who fail to apply in time for the EU settled status scheme will be cast into the hostile environment, and that will make this a Windrush crisis writ large. The Bill creates that danger, but provides no clarity on, or protection from, the danger it creates.
Alison Thewliss (Glasgow Central) (SNP)
My hon. Friend is making some excellent points. Does he appreciate that many of my constituents will be EU nationals whose partners are non-EU nationals, and that that causes double the uncertainty for those families, who now do not know what the position will be?
Stuart C. McDonald
That is a fair point. That is the Surinder Singh route, and we still need clarity from the Government about what happens to people in that position.
One part of UK immigration policy continues to work pretty well: free movement. I would hope that continuing free movement would answer many of the questions I have just posed, but the Bill seeks to ditch it. An end to free movement will make the UK poorer economically, socially and in terms of opportunity. Ending free movement means ripping up mutual rights to live, study, work and enjoy family life across Europe, depriving future generations of the extraordinary opportunities that ours have enjoyed.
Geraint Davies (Swansea West) (Lab/Co-op)
Does the hon. Gentleman agree that the Bill, apart from being appalling, is premature, given that we do not know what will happen in the Brexit debate? There may be a public vote; we might stay in the EU; we may have a Norway model; we may have free movement. Why are we prematurely legislating for a position in which we will not get free movement when we do not know the future?
Stuart C. McDonald
The hon. Gentleman is spot on, and I shall come on to that point in a minute. It is premature, because it is tying Parliament’s hand on not just the future relationship, but the question of oversight of the future of the immigration system.
Free movement has been fantastic for people in this country and across the continent. As all the research shows, it has been good for our economy and for our public finances. That is true for Scotland and for the UK as a whole, and we will not support a Bill that brings those benefits to an end.
Drew Hendry
I am grateful to my hon. Friend for giving way yet again. He makes a point about free movement’s benefits to Scotland, and has it not been even more important for the highlands where, decade after decade, we have seen our population decline? Free movement has helped to arrest that situation and to turn it round to a point where we have a healthy population in the highlands, although we actually need more people there as well. Is it not the case that this is a “one size fits no one” policy as far as the highlands are concerned?
Stuart C. McDonald
My hon. Friend is spot on, I will come to the particular importance of the free movement of people for Scotland in a little while.
The other advantage that retaining free movement brings is, as the hon. Member for Leeds North West (Alex Sobel) said, that it opens up the possibility of different future relationships with the EU. The relationship that my party would prefer is, of course, continued EU membership, but the Prime Minister’s red line means that not only membership but other close relationships are not possible. If Parliament is serious about having a proper say on the future relationship, it should reject this Bill.
It is not only Parliament’s say on our future relationship with the EU that the Bill could diminish, but our say on the future immigration system. The Government launched their White Paper just a day before introducing this Bill. Their consultation has a year to run. Why would Parliament give the Government a blank cheque to introduce any system by subordinate legislation at this stage? We should be moving in the opposite direction; we need a totally different approach to how immigration laws are made. There have been thousands of changes to the immigration rules since 2010, but they are not noticed or understood, never mind debated, in this Chamber. There is no other public policy area in which such important changes attract so little scrutiny. Parliament must start getting involved in how we operate and design our immigration system.
The Bill is dominated by totally inappropriate Henry VIII clauses. This is about not only the incredible breadth of powers that are sought to change legislation, including primary legislation, simply because Ministers think that that is appropriate, but even the type of statutory instrument procedures. Why are “made affirmative” clauses the order of the day?
It is especially important not to give the Government a blank cheque on future immigration policy, given what their White Paper tells us that they will do with such a blank cheque. There has been a lot of talk about division in the country, but at least the Government have brought a broad coalition together in opposition to many of their White Paper’s proposals. Business organisations, trade unions, universities, charities and non-governmental organisations are all hugely concerned. Extending the bureaucracy and huge expense of tier 2 to EU employees is understandably unpopular, even if some tweaking around the edges is proposed.
The proposed retention of the £30,000 financial threshold has sparked incredulity, as it would mean that 80% of EU workers coming to the UK would no longer qualify. Some 60% of jobs at the so-called intermediate level would not make the grade. Technicians in our universities, medical research charities and the NHS would struggle. Nurses, paramedics, junior doctors and social care workers will be implicated. Hugely significant sectors will find it impossible to adjust, including retail, food and drink, and hospitality. Housing and infrastructure targets will be totally unachievable. Such a financial threshold fails to recognise the need to recruit right up and down supply chains.
The proposals for stop-gap, temporary one-year workers’ visas are, frankly, totally unacceptable. The Government say, “You can come to work, but don’t bring your family. You’ll have no recourse to public funds, and however well you do and however much your employer wants to retain you, you’ll need to leave again for at least another year.” That is an astonishing way to treat people, and such short-term schemes, under which people never develop support structures and have only a short period of employment to pay hefty recruitment and visa fees, are known to significantly increase the chances of exploitation. They are hopeless for integration—so they involve exactly the type of migration that the public are most frustrated about—and they are expensive for employers, who have to start again each year with a brand new recruit.
The White Paper is pretty much silent on the self-employed, which is again a matter of huge significance for certain industries in which self-employed contractors fill key roles. Universities have again criticised the failure to come up with anything approaching a sensible and competitive post-study work offer. If this is even roughly how the Government want to use the blank cheque provided by this immigration Bill, we should not be even remotely considering letting them near it.
Let me try once again to wake the Home Office up to the fact that this Bill, and the White Paper proposals that accompany it, would be a disaster for Scotland, both socially and economically. The White Paper proposals look set to result in an 85% reduction in the number of EEA workers coming to Scotland. Scottish Government modelling estimates that real GDP in Scotland will be around 6.2% lower by 2040 as a result of a Brexit-driven reduction in migration than it would have been otherwise. That is a fall of almost £6.8 billion a year in GDP by 2040, and a fall in Government revenue of £2 billion.
We need people to come, not additional hurdles to stop them coming.
Brendan O'Hara (Argyll and Bute) (SNP)
My hon. Friend is making an excellent speech. Does he recognise the particular problems faced in the western highlands of Scotland, where there is a depopulation crisis? Urgent action is required, yet the Government have turned a blind eye and a deaf ear to the needs of rural Scotland time and again. Even after an offer by Argyll and Bute Council to host a pilot scheme to test a regional immigration policy, they absolutely refused to do that. Will he join me in calling for the immediate devolution of immigration policy to the Scottish Parliament, because a “one size fits all” policy cannot and will not work for the whole UK?
Stuart C. McDonald
I am happy to support my hon. Friend in that call. Like my hon. Friend the Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry), he makes an important argument about rural Scotland.
If the Government were to succeed in reducing net migration to the tens of thousands, it is projected that Scotland’s working age population would decline by 4.5%, or 150,000, between 2016 and 2041. It is time that the Home Office engaged with these concerns. So far it has veered between platitudes about the useless Scottish shortage occupation list and total disinterest in the issue. I ask the Home Office: please, look at the analysis that has been done and proposals about how a differentiated or devolved system can work—not just from the Scottish Government but from academics such as Christina Boswell, Sarah Kyambi and Eve Hepburn. Look at what think-tanks such as the Institute for Public Policy Research are saying; see what works internationally in Canada, Australia and other countries.
Whatever our differing views on Scotland’s constitutional future, migration and demographics must be recognised as huge issues for the future of Scotland. The total lack of interest from the Home Office is just shocking. If it fails to start engaging and addressing the issue, there is no better illustration of why we need decisions on immigration to be in Scotland’s hands.
For all those reasons, the Bill must be refused a Second Reading. For such a short Bill, it risks remarkable damage. We will all be poorer if it passes. We say no to terminating our mutual rights to free movement and no to giving the Government a blank cheque to implement a disastrous alternative policy. We say no to extending the hostile environment and anti-family policies, and no to damaging Scotland’s future. For all those reasons, and all the reasons set out in the reasoned amendments tabled by the Greens and the Liberal Democrats, as well as that tabled by the SNP, the Bill must be refused a Second Reading.
Sir John Hayes
I take the view that this is our sovereign Parliament, that Home Office policy should be made here, and that the Government govern for the whole of our kingdom. That may seem a bit unconventional to Scottish nationalist eyes, but it is certainly my view. As I recall, it was also the view of the majority of Scots when their opinion was tested in a referendum, so let us move on from the idea of devolving this policy.
As I said, the figures speak for themselves. There have been unprecedented levels of mass net migration for a decade. Of course, the fact that most of those migrants came from outside the EU goes back to the point made quite persuasively by the shadow Home Secretary, which is that this debate must be contextualised. We need to talk about migration as a whole, rather than simply immigration from the EU. Nevertheless, in the views of many, free movement became a totem for the kind of lack of control of our destiny and our borders that the EU embodies.
Stuart C. McDonald
What I did not do in my speech was to set out alternative ways of addressing some of the concerns that the right hon. Gentleman is raising, such as by investing in public services in communities where there has been migration and in integration strategies, and through proper labour market enforcement of standards and wages. Those are ways of addressing community concerns without the whole country having to cut off its nose to spite its face by ending the free movement of people.
Sir John Hayes
The hon. Gentleman is right that growing the population significantly creates great pressures on health, housing, roads and schools. He is right that public services struggle to respond to population growth of the kind that I have outlined, and it is time that we had what was described earlier as a grown-up debate about population growth, and its effect on the provision of public services and how they are funded.
However, the point that I really want to make is that the Government have only partly responded to that public call for tougher action. Returning to the figures that I quoted earlier when I challenged the Home Secretary, the number of failed asylum seekers removed from this country has fallen from 16,000 in 2005 to just 5,000—despite what the Home Secretary said, that figure does not include the returns of foreign criminals, although I understand that he made a genuine mistake in that respect—and the number of overstayers returned has dropped from 31,000 per annum to about 21,000 per annum. We are perpetually failing to deal with such matters as effectively and efficiently as we ought to, and that is actually rather unfair to the individuals concerned, because they sometimes end up in unacceptable conditions, whether in housing, in detention centres or wherever. It is actually fairer to deal with these things quickly, as previous Governments clearly did to a greater extent—I do not say that with any great relish.
It is also important to understand what this new White Paper is likely to lead to. There is a real risk that the focus on low-skilled migrants, and certainly on the one-year limit, may mask immigration figures. There is an argument for seasonal workers. The seasonal agricultural workers scheme is to be welcomed, and we should extend it to horticulture, but those workers tend to go home. They do not settle and they are not migrants; they are people who simply come to work.
Let us build an immigration system that is fair and that reflects public understanding of the need to build communities that cohere. And let us build a shared sense of Britishness; that should be at the heart of what the Government do.
Oral Answers to Questions
Stuart C McDonald Excerpts(5 years, 11 months ago)
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Sajid Javid
The hon. Lady will know that a consultation on the subject recently closed; it was extended at the request of Martin Forde, the independent chairman appointed to look into the matter. We are now working through the responses across Government, and we will announce more details soon.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Tens of thousands of families have been split by the Prime Minister’s draconian anti-family immigration rules. How many more families will be destroyed by the Home Secretary’s proposals to extend those rules to EU family members? Should we not be getting rid of these rules, rather than extending them?
Sajid Javid
The hon. Gentleman may be aware that in the withdrawal agreement in the Prime Minister’s deal, there is an extensive section on guaranteeing citizens’ rights. I believe that what we have agreed with the EU is very generous. No one has any interest in splitting any families. We must do everything we can to welcome those EU citizens who have made their home in the United Kingdom.
Eurojust
Stuart C McDonald Excerpts(5 years, 11 months ago)
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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?
Mr Hurd
I am struck that there appears to be a level of cross-party consensus on this matter that I have yet to witness in the main Chamber on Brexit. I welcome that. Underlying that is, I think, a recognition that no party or Member of Parliament wants to risk losing capability when it comes to security and the No. 1 priority of any Government, which is the enforcement of the law and the protection of our citizens. I welcome both sets of questions and the recognition of the positive decision to opt in and of the wider agenda to try to secure a security partnership that, as far as possible, maintains our existing capabilities. That is our explicit objective.
The hon. Member for Torfaen asked about planning for the next phase. At the moment, as he would expect, the immediate priority is planning for a no-deal scenario, because the risks have risen and the consequences are potentially severe in terms of loss of capability. He will understand and I hope appreciate that the priority of the Government is to prioritise no-deal planning, not least an agreement on Eurojust or any of the other co-operation mechanisms on security, so that we have more time to establish that. A green light and a signal from the Commission is also required to start to engage in the negotiations, and, for reasons we understand, that has yet to materialise. It is fair to say, if the starting point is a standard third country agreement, that we would hope to do better than that.
I make the same point as I do in the context of Europol, for example, where there are some parallels by virtue of our long history inside the agencies and our weight within them. I gave data that made it clear how important we were in Eurojust, in terms of both requests for support and requests for support from other states, and in Europol we are the second biggest contributor of data. We start those conversations with, “What does the deal look like after we leave? Are we third country or third country plus?” We will argue for third country plus. I have spoken to a number of interior Ministers on this journey, and it is clear to me, certainly in the case of Europol, that there is a clear desire for as much continuity as possible, in recognition of the weight and the important value that the UK adds to those agencies.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East raised an extremely important point about whether we can do this and how consistent it is with the withdrawal agreement. Our position is that we can. As noted by the Committee, article 127(4) provides that the UK,
“shall not participate in any enhanced cooperation in relation to which authorisation was granted after the date of entry into force of this Agreement”.
However, article 4 of the opt-in protocol provides that the procedure for approval set out in article 331 of the treaty on the functioning of the European Union on enhanced co-operation applies mutatis mutandis to the UK opt-in request. Therefore, the UK may only opt in if the Commission or Council approves the request. Here is the essence of it: article 4 uses the process set out in article 331, but this does not in itself constitute enhanced co-operation. We therefore consider that article 127(4) of the withdrawal agreement would not affect the operation of article 4 of the opt-in protocol. That is our understanding and we believe that is the understanding of the Commission; we are just waiting for that in writing, but it forms the basis of why we are proceeding as we are.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked about timing. Assuming there is an implementation period, our interpretation is that the Commission has four months to confirm the UK’s request to participate in the Eurojust regulations. That would obviously take us into the period after 31 March, but, for the reasons that I have set out, we think that what we propose is entirely valid, and that, in our view, is the view of the Commission as well.