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

Afzal Khan Excerpts

Thursday 14th February 2019 Public Bill Committees

[The Chair]

We have until 12.30 pm for this session.

[Afzal Khan (Manchester, Gorton) (Lab)]

Q 221 Good morning to you all. Let me start with a question for everyone to answer. Clause 1 of the Bill will repeal free movement and subject European Union citizens to the UK’s immigration system. Do you think that the system is robust enough to deal with that influx? What are your biggest concerns?

Bella Sankey: As you say, clause 1 is incredibly significant, repealing free movement and bringing those resident here under regulation, within the scope of our immigration laws as they stand. Our major concern is the potential impact on the immigration detention population. We think that the Bill has far-reaching potential to make many more people liable to immigration detention. There is a real risk that we will see a similar situation develop to that of the Windrush scandal, with people who have the right to be here detained indefinitely for long periods. Even if a tiny fraction of people with the right to claim residency here under the settled status scheme did not do so, tens of thousands of individuals could be detained. We do not think that that system is currently fit for purpose, and we think that there needs to be a statutory time limit on detention, to guard against that risk.

Ilona Pinter: I echo Bella’s concerns. Obviously, the Children’s Society is particularly concerned about children and young people and their families. According to Migration Observatory figures, there are 900,000 children in non-Irish EU families in the UK. That is a significant proportion of the population, and more have come since then. More than half those children were born here, and some may be British citizens, although there are some discrepancies between those who have actually registered their citizenship and those who will need settled status.

We emphasise to the Committee that although some children will be able to get settled status through the EU settlement scheme, citizenship would be in the best interests of many of them. It will be important to consider that throughout the Bill.

We also have concerns about those who will not be able to regularise their status after Britain leaves the EU, and those who arrive after that. We work with many children, young people and families across the country who are currently subject to migration controls. Our experience of that is that children face significant difficulties in making sure that their welfare, safety and long-term outcomes are protected. We fear that a greater number of children will be subjected to that process.

There is an opportunity here to put right some of the challenges in the current immigration system. We urge Committee members to look at some of those opportunities.

Steve Valdez-Symonds: The short answer to the first part of your question, so far as Amnesty International is concerned, is: no, the system is not, as you put it, robust or fit for what is about to happen. There are, in broad terms, two major impacts.

There are the large number of people who will suddenly become subject to the fullness of this system. There are also, of course, a large number of other people who are already subject to it. The dysfunction of the system can only be expected to get worse for those people, given that it will be dealing with a much larger body of people—people already living here, and the European nationals who make future applications that the system will have to deal with.

If anyone had doubts about how unfit the system is, they should surely look back to what was revealed last year by the Windrush scandal. In response to that, Amnesty emphasised throughout that it was not a short-term scandal. It was not something that had happened for merely a few months or even a few years. Those issues have been going on for many years.

The system has been robbed of the safeguards that people need, and it has been made extremely complex. I am afraid that, as was made explicit in the quite clear evidence that Professor Bernard Ryan gave to the Committee on Tuesday morning, all we have in the Bill is the switching off of rights for a large number of people without any indication of how their futures will be protected.

The other thing I should like to flag from Professor Ryan’s evidence in response to your questions is that he very properly highlighted the implications not only for people already settled and living in this country but for the future of their descendants. That is a major problem, not least because not only has nothing been done to protect the future status of those who will need to apply for settled status under the new system, but nothing has been done—in some ways more importantly, for those children—to confirm what the status of their parents has been over the last several years. Many of the children we are talking about will have been born in this country, possibly as British citizens, but nobody knows, and in the future no one will be able to prove it.

Otherwise, with entitlements to British citizenship, I am sad to say that this Government have continued the policies of the previous Government by putting hurdles in the way of citizenship rights with fees that are, in our view, far in excess of what is appropriate for people to claim their statutory rights under our British nationality law.

Those matters, and many more, have not been addressed either in preparation for the Bill or on its face. The Bill contains wide powers to make enormous changes to our laws, but no indications or safeguards have been presented as to how that will happen.

Adrian Berry: The question was about clause 1, not about the Henry VIII powers in clause 4. There is a complete change from free movement to the immigration rules. We are changing from a permissive system where people can circulate in and out to a one-directional system where migrants come and are on routes to settlement.

What is really changing is the economic migration rules for EU citizens, who in essence will have to satisfy the tier 2 general work permit regime. At the moment, the Home Office deals with 20,000-plus work permits a year. EU migration for economic purposes will be greater by several orders of magnitude. If the question is whether the system for economic migration is robust enough, the answer is no, because the capacity is not there to deal with it.

The White Paper adopts the Migration Advisory Committee’s recommendations, which gives you some idea of where the Home Office wants to go but does not tell you anything about how it is going to work in practice. You are talking about a multiple factor of four, five or six in terms of the number of work permits that may have to be issued, and there is simply no real understanding of that.

Nor is there any understanding of how people will come and go to provide services on a short-term basis. The permitted paid engagement route and the business visitor rules are simply inadequate to replace the free movement of services. For example, under the permitted paid engagement route, you can only come for a month and take a fee from a UK-based client. There seems to be no thinking about that. It is certainly not on the face of the Bill, and it is not in the White Paper, so we are very short on detail.

Clause 1 is of course necessary for replacing free movement with a domestic system of immigration control, and schedule 1 reflects that commitment, but it does not tell you where the direction is. When you combine that with clause 4, which gives the Secretary of State wide powers to make regulations in the absence of Parliament, essentially usurping the function of Parliament—and of you, if you are not on the payroll—to make legislation, that creates a very dangerous situation.

Jurga McCluskey: EU inflows accounted for close to 49% of total non-British inflows to the UK in 2016. I realise these are old numbers, but they are the most recent ones I could get hold of. In the first quarter of 2017, approximately 2.4 million EU-born people were employed in the UK. Stuart McDonald asked in a previous sitting how many Europeans are working here in the UK. I do not think we can say how many are working, but I can honestly say I do not know of a company here that does not employ European workers.

Statistically, around 69% of EU nationals who come here do so to work, very closely followed by other requirements, such as study and so on. For me, and I think for business, it is really important that we facilitate the replacement of freedom of movement with a sophisticated system that is simple and flexible enough to allow us to accommodate that influx of people—adding to the overall management of the population in terms of immigration—but that also allows flexibility. Immigration rules and immigration laws need to be flexible, because we are adapting to a very fast-changing environment.

[The Chair]

A quarter of our time has already gone, but I wanted to give our witnesses the opportunity to respond to the overall question about how they feel about the Bill. A number of colleagues wish to ask questions. It is not necessary for everyone to give a view on every question. I hope that is understood.

[Afzal Khan]

Q Adrian, you talked about the Henry VIII powers in clauses 4 and 5. To what extent do those go beyond the powers the Secretary of State currently has? Is there anything that Ministers would need those powers to do that they cannot do already and is not so big that it would require primary legislation?

Adrian Berry: In my view, it is a grab on the functions of parliamentarians generally. You need to make a case for the use of Henry VIII powers—the idea that Ministers can make statutory instruments that amend primary legislation—under our constitutional order. There has to be some pressing need. The European Union (Withdrawal) Act 2018 already domesticates EU law and makes it our law. The question is: what is the case for not using primary legislation when you are considering the fundamental rights of migrants, who are, of course, unfranchised?

What drops out of the picture is your role as Members of Parliament to scrutinise parliamentary legislation in Committees such as this. 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. The law is already domesticated under the European Union (Withdrawal) Act. The Home Office memorandum to the Delegated Powers and Regulatory Reform Committee simply says, “We need this power because we have things to do.” That is not good enough. This is not needed urgently. You should not make yourselves redundant. You should retain your function at the level of making primary legislation in this area.

That particularly applies to social security, which is of course about not means-tested social assistance but the contribution-based benefits that people have paid into through their national insurance contributions in this country and other countries. It is a system that even non-EU countries, such as Morocco and Turkey, adhere to in the non-EU legal order.

[The Chair]

My colleague has just one more question, and then I am going to Maria Caulfield.

[Afzal Khan]

Q To follow on from that, could the Government use the powers in the Bill to amend immigration legislation affecting non-EU citizens?

Adrian Berry: Yes, they could. The power in clause 4 is broad enough for a Secretary of State to make legislation—in fact, by using the negative resolution procedure in certain circumstances—that has an effect on third-country nationals. That is, of course, an additional concern.

[Afzal Khan]

Q Does anybody disagree with that position—that the Government could use the powers in that way?

Steve Valdez-Symonds: No. It is explicit in clause 4(4) that it can be used for precisely the people you are referring to.

[Maria Caulfield (Lewes) (Con)]

Q I have a question to Bella Sankey on your concern about removing indefinite detention. I do not necessarily disagree with that, but I am interested in why you are supporting a 28-day limit. What is the rationale behind 28 days?

Bella Sankey: Thank you very much for the question. A limit of 28 days has been put forward as a principled, practical cumulative backstop for immigration detention. It reflects what the Home Office says its policy on detaining people is. Home Office guidance is clear that detention should happen only as a last resort, when there is the prospect of removal within a reasonable time, and when the prospect of removal is imminent. Imminence is defined as three to four weeks, so we are proposing a time limit that would reflect what the Government say their policy is on detention.

Through our casework, we see that that is not how detention is currently used. Detention Action has clients who have been detained for months or years—coming up to two years in some cases. Those are not unusual cases. Under our present system, the longest period that someone has been detained for is four and a half years. That makes the case for why a time limit is crucial.

We are proposing a 28-day backstop that would be accompanied by early judicial oversight of decisions to detain. That would mean that, after a period of days, the Home Office would need to go before a judge and the immigration tribunal. The tribunal would be able to decide whether to grant bail by looking at whether the decision to detain was really necessary and whether removal is genuinely imminent. That important safeguard should accompany any time limit to safeguard against the risk that, if 28 days is introduced as a statutory backstop, that becomes the norm. We would not want to see that.

--- Later in debate ---

[The Chair]

Welcome to our next set of witnesses. I think you have got a feel for the way in which we proceed. Your session is just half an hour, but, because there are two of you, it might not be so pressurised. Will you introduce yourselves?

Hilary Brown: My name is Hilary Brown. I am the chief executive officer of Virgo Consultancy Services, a law firm with offices in south Wales and south London.

Martin Hoare: I am Martin Hoare, a solicitor advocate in private practice representing immigrants.

[Afzal Khan]

Q My first question is to both of you. Clause 4 gives the Secretary of State powers to introduce new immigration rules with little scrutiny in Parliament. What are your concerns about how Ministers might use such powers?

Martin Hoare: The difficulty of making rules that have such a massive impact on the lives of the people they affect without any scrutiny has meant that people’s rights have not been respected. Furthermore, those making the rules have not had the benefit of input from concerned parties and from Parliament itself.

Hilary Brown: The complexity of individuals’ lives has not been taken into consideration, especially around issues such as vulnerability where people have been trafficked into the United Kingdom, where they are in circumstances and a situation that is out of the norm. Rules need to be made with all of those situations taken into consideration.

[Afzal Khan]

Q We now know that a 12-month visa was previously trialled and abandoned as unworkable. What evidence and information do you have regarding the operation of a 12-month visa?

Martin Hoare: The 12-month visa was in place in the form of the so-called sectors-based scheme. That was introduced in May 2003 by a House of Commons paper with no parliamentary discussion. It allowed people in less skilled fields to live in the United Kingdom for 12 months. It was abandoned following an investigation by Parliament. According to the Hansard report in 2008, quite significant malfunction and abuse was detected.

The tribunal responsible for immigration also found that there was a considerable amount of hostility towards the rule itself, manifested by those implementing the rule at the visa point. That rule was scrapped altogether by 2008. Tony McNulty, the then Minister of State, observed when scrapping it that the slack, as it were, could be taken up by immigration from what were then the EU accession states. The rule then was not effective. The significant difference between now and then is that there will be no pool of EU workers to take up the slack. What I have just referred to is in parliamentary documentation. It is not my opinion.



Hilary Brown: I have nothing to add to that—we have exactly the same frustrations.

[Afzal Khan]

Q Your question is slightly different. You have dealt with a number of Windrush victims; do you think Ministers have addressed the problems in the Home Office that led to the Windrush crisis, and that they will be able to avoid a repeat of that with EU citizens?

Hilary Brown: I do not think the difficulties faced by the people caught up in the Windrush scandal have been fully addressed. Many people still have not come forward, who have not been identified and who are living under the radar. I do not think it will be a situation where we can avoid a repeat of such a scandal if we are not in a position to fully map out where the deficiencies in the immigration rules lie.

Martin Hoare: The significant enduring problem is that people are required to establish a right that they say they have. They are required to establish that at short notice, perhaps when they are simply accessing a health service to which they are entitled. The Government have not shifted the onus of proof on those people, so the problem continues.

Furthermore, because of the expanding of immigration control to those who are not qualified to exercise it, such as healthcare professionals and the police, people are not able to determine whether the documents that people present are adequate. There are many examples of that: people holding indefinite leave to remain stamps in an expired passport encounter the difficulty that the passport has expired, therefore the perception is that the Home Office stamp in it has expired, notwithstanding that it explicitly states that it is settled.

People who came into the United Kingdom on other schemes, such as so-called east African Asians who came without passports because they had no citizenship, find it very difficult to establish an entitlement in the UK. They particularly encounter that difficulty when they access something else; they are on the receiving end of Government action when they are not expecting it, and they do not have legal aid. Those are continuing problems that permeate many cities in the United Kingdom and have not been addressed.

[Afzal Khan]

Q Could Government use powers in this Bill to amend immigration legislation affecting non-EU citizens?

Martin Hoare: Yes, they could if they chose to do so. There are so many examples of problems that arise from their not having done so.

[Jack Brereton]

Q Obviously, quite a substantial number of British citizens are living in EU countries. Do you feel those EU countries have taken adequate steps to address the rights of those citizens?

Martin Hoare: I do not profess any expertise on European law, but no doubt European Governments will look at how we treat citizens of European countries and will wonder whether they should treat our own citizens in the same way. I think there will be many vulnerable British people living in European countries who do not quite understand that yet.

--- Later in debate ---

[Stuart C. McDonald]

Q Ms Brown, any thoughts on improvements to the settled status scheme? We have heard people suggest making it declaratory, or appeal rights.

Hilary Brown: I would certainly suggest not making it so onerous as to documents.

[Afzal Khan]

Q Will you tell us the cost to applicants of applications and the fees for appeals, and the effect of removing legal aid?

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.

[Afzal Khan]

Q Will you also shed some light on the number of people who have been detained and later given some sort of leave to remain?

Hilary Brown: There are high numbers of people who are quickly detained when they are initially detected by various means—people who have trafficking offences and who have been randomly stopped by police and immigration authorities. In the first instance, they are taken to police stations and not given access to appropriately qualified immigration advisers. They are denied access to any type of legal advice in a police station. Often, and unnecessarily, that sees individuals referred on to immigration removal centres, which clogs up immigration removal centres unnecessarily. They then have to make bail applications to the various immigration tribunals. Often people are then released on bail, only having identified for the first time that they have some kind of irregular immigration status.

Detention is used far too often—and for over-extended periods of time— unnecessarily. If a similar type of system was offered to immigration detainees as to people who face criminal offences in police stations, such as a duty solicitor scheme or a duty representative scheme for immigration issues, I certainly think there would be far fewer immigration detentions.

Martin Hoare: On fees, to make an application to stay in the United Kingdom for 30 months, one has to pay £1,033 at the moment. That may apply to people who have been working in the United Kingdom. If somebody had their leave to remain cancelled with no right of appeal, their option would be to make a new application. To do that, they would have to pay £1,033. If they did not have £1,033, they would face removal from the United Kingdom.

Another aspect of the fee system is that an applicant has to find, for a period of two and a half years, £1,000 to pay towards the NHS. When that was introduced, the rationale was that people who are living here illegally should not use the NHS. The scheme would apply to someone who had been here lawfully for seven and a half years paying tax and national insurance. If they want their last two and a half years in the United Kingdom, they have to pay another £1,000 for it. Over a period of 10 years, someone living in the United Kingdom perfectly lawfully and paying tax and national insurance has to find another £10,000 to fund the NHS.

[Caroline Nokes]

Q You both mentioned the anxiety that employers might have regarding somebody’s right to work. Do you regard the digital right-to-work checks as a step forward?

Martin Hoare: If employers understand that there is a digital check system, it would be a step forward. The people answering the checks are not infallible. The system is very complicated. If the wrong advice is given, there is no way for an employer to check that.

Another aspect I have come across in advising employers is that they cannot determine whether documents are genuine. A digitalised check does not address that properly. Employers find that, notwithstanding having conducted checks, they have unwittingly employed somebody with a document that looks fine when it is checked digitally but that is not fine. The employer then faces criminal sanctions as a result. That is happening to people.