Immigration and Social Security Coordination (EU Withdrawal) Bill (Seventh sitting)
Afzal Khan Excerpts(5 years, 2 months ago)
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Kate Green
I am grateful for the hon. Gentleman’s support, and I agree with him about the huge significance for individuals and families of the way in which social security co-ordination regulations are adopted and adapted in future. It is about how much money people have to live on, to support their families or in their retirement. They have every expectation of a right to the support, because they have paid in and contributed to social insurance systems, and it would be frankly unethical of any Government to damage those legitimate expectations.
In conclusion, through my amendment I seek to curtail Ministers’ delegated powers in relation to social security co-ordination. The Government have stated that the anticipated policy changes, both in a no-deal scenario and in certain deal scenarios, could not otherwise be delivered by existing powers such as the European Union withdrawal agreement powers. However, in my view, such policy changes, or at least the principles of the policy, should be set out in primary legislation. That will be the case in a deal scenario, as the withdrawal agreement and its implementing primary legislation will address future policy on social security co-ordination. In a no-deal scenario, the European Union (Withdrawal) Act 2018 provides sufficient powers to make regulations—indeed, the Government have already drafted them—to maintain the status quo as far as possible until an agreement on social security co-ordination is reached with the EU for the future, at which point further primary legislation will be needed.
It is for those reasons that I commend my amendment to the Committee. It is important that we have parliamentary oversight and parliamentary scrutiny of Ministers’ powers in the area of any future decisions that will have an impact on social security entitlements.
Afzal Khan (Manchester, Gorton) (Lab)
Once again, it is a pleasure to serve under your chairmanship, Mr Stringer. I start by thanking my hon. Friend the Member for Stretford and Urmston for laying out this amendment.
The Henry VIII powers would allow the Government to remove rights to aggregate pensions and disability entitlements that EU citizens in the UK and UK citizens in the EU have built their lives around. It is vital that the Government do not make regulations that might remove the ability of British citizens and European economic area nationals to aggregate pension rights and social security benefits without proper scrutiny by Parliament, so we support this amendment. These social security rights are vital for EU citizens in the UK as well as UK citizens in the EU.
People will have moved back and forth between the UK and the EU on the assumption that they will be able to bring their pension entitlements with them. For example, a German national might move to the UK midway through their career, work here for 10 years, and then go back to Germany to retire. The current EU regulations allow them to receive a pension based on their contributions both in Germany and in the UK. The same is true for a UK national who moves to work in Germany.
If we have a withdrawal agreement, those rights will be guaranteed, but if we do not have a withdrawal agreement we do not know what will happen. Perhaps the Minister can help us with that.
In an evidence session, it was pointed out by British in Europe witnesses that 80% of the British people living in Europe are of working age or below, and more than 1 million people are affected by social security implications. Removing the ability to aggregate social security benefits will deter EU citizens from coming to work in the UK, because they will not be able to export social security from the UK, despite having paid into the system. The same would apply for UK citizens moving into the EU.
There is a particular concern among UK citizens living in the EU about the uprating of pensions. The percentage increases can accumulate to be very significant for pensioners living in the EU, particularly in the context of the declining value of the pound.
The UK state pension is already the lowest in all the OECD countries, and a refusal to uprate would cause significant hardship for many UK citizens. At the moment, the Government have committed to continue the uprating of pensions until April 2020, but not beyond. Can the Minister provide some much-needed clarity for the UK citizens living in the EU about the position of pensions beyond 2020?
If the UK introduces restrictions on social security, it is to be expected that the EU will respond in kind. We heard during our evidence session from the TUC that it is
“very worried about the increasing social insecurity and the welfare repercussions for British people abroad.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c.38, Q109.]
We heard from the British in Europe witnesses during our evidence session that the Bill has had a negative effect on discussions with EU Governments. Kalba Meadows was clear that
“national Governments across the EU27 are reticent in coming forward with their own legislation, because they are concerned that the rights of their nationals living in the UK will not be equally protected.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 146, Q364.]
The Minister for Employment (Alok Sharma)
It is an absolute pleasure to serve under your chairmanship today, Mr Stringer. I start by thanking the hon. Member for Stretford and Urmston for her amendment to clause 5. She made a wide-ranging speech, which covered many of the points that might be raised when we consider clause 5 stand part, and I will try to address some of the points that she made. I put it on record that whatever our political differences, I have always thought of the hon. Lady as one of the most courteous and considered Members in the House, and for that we should all be grateful.
The hon. Member for Manchester, Gorton made some interesting remarks. Before I discuss amendment 26, I say generally that if colleagues want to give citizens certainty, the best way of doing so is to support the withdrawal agreement and the deal that will be returning to the House. Many sincere views are expressed, and people are concerned for citizens—I completely get that—but the best way of providing certainty is to support the deal.
Alok Sharma
Clause 5 provides an essential legislative framework to ensure that the Government can reflect their preferred social security co-ordination policy outcomes after the UK has left the European Union, responding to the outcome of negotiations. It will enable the Government to deliver policy changes post exit both in the event of no agreement being reached on future social security co-ordination matters and to support deal scenarios in which a UK-EU agreement differs from current social security co-ordination measures.
The clause provides a power for the Secretary of State or Her Majesty’s Treasury to modify the current social security co-ordination regulations. The regulations provide for social security co-ordination across the EEA and will be incorporated into domestic law by the European Union (Withdrawal) Act when the UK leaves the EU. Clause 5(3) sets out some examples of the manner in which the power may be used. One such example is that regulations may make different provision for different cohorts, and some reference points for differentiation are suggested. This is particularly relevant in a no-deal scenario, as the regulations could, for example, provide protection to those who would otherwise have been in the scope of the withdrawal agreement in line with a unilateral offer. Very importantly, regulations made using powers in this clause will be subject to the affirmative procedure, so they will be scrutinised and must obtain the approval of both Houses.
In subsection (4), the clause also gives the Government the ability to make consequential changes to other primary legislation and other retained EU law to ensure that the changes to which the main power gives effect can be appropriately reflected. It may, for example, be used to address technical matters, inoperabilities and inconsistencies.
In subsections (5) and (6), the clause makes it clear that any directly affected rights that will have been saved by the European Union (Withdrawal) Act shall cease to be recognised to the extent that they are inconsistent or capable of affecting the changes made using the powers in the clause. This is necessary to address inoperabilities and conflicts of law that might arise as a result of regulations made under this clause. It will ensure that any policy changes are able to be delivered effectively.
It is vital that, across all EU exit legislation, the UK Government continue to honour any commitments that they have made in the devolution settlements. Therefore, subsections (1) and (7) of the clause confer powers on the devolved Administrations to legislate in areas for which they have competence. Officials in the UK Government and devolved Administrations have worked together on the correct approach for this clause, and legislative consent motions will be sought from the devolved legislatures in relation to this approach. Subsection (7) defines an appropriate authority, clarifying that the power is exercisable by the Secretary of State or the Treasury, a devolved authority, or jointly.
It is reasonable to assume that, in a deal scenario, if a withdrawal agreement is reached, the implementing vehicle for the withdrawal agreement will provide the necessary protections for those who fall within its scope, and Parliament has the power to ensure that that is the case. I want to reassure colleagues that the power in this clause will not be exercised to remove or reduce commitments made in relation to those individuals within the scope of the withdrawal agreement. The exercise of any powers within this clause will also be subject to the outcome of further negotiations with the EU on a future agreement. In a deal scenario, the clause will be necessary to deliver policy changes to the retained regime that will cover individuals who fall outside the scope of the deal, to reflect the reality of our new relationship with the EU.
In addition, this clause is essential to ensure that the UK Government are able to provide appropriate protections and make appropriate policy changes in a no-deal scenario. Without the clause, the Government have only the power contained in the European Union (Withdrawal) Act to fix deficiencies within the retained system of social security co-ordination. The current social security co-ordination regime operates on the basis of reciprocity. The European Union (Withdrawal) Act power allows us to ensure that the regime will operate on day one of exit, but does not enable us to deliver policy changes, including those that would help us to deliver effective support for UK nationals in the EU. This clause allows us to amend the rules in an appropriate and manageable way if the Government need to operate the system unilaterally, and to deliver changes to the retained regime.
As a responsible Government, we are preparing for all eventualities, and the power in this clause is necessary to provide the Government with the flexibility required to respond to a range of scenarios.
The aim of schedule 2 is straightforward. It sets out the power of the devolved authorities under the social security co-ordination clause—clause 5. The clause confers new powers on Scottish Ministers and, indeed, the Northern Ireland department, to amend the limited elements of the social security co-ordination regulations that fall within devolved competence. We are thus providing the devolved Administrations with the powers that they need to amend aspects of the regulations in areas of social security that are devolved—in the same way as, rightly, the UK Government have powers with respect to laws affecting the UK as a whole.
It is important that the powers in the Bill should not be so narrow as to hamper the devolved Administrations’ ability to amend the elements of the regulations that are within their competence. It is also important to set out, as the schedule does, the parameters for the powers. They should not be wider than is necessary to achieve their purpose. For example, the schedule ensures that the same rules on consent and consultation that the devolved authorities must follow when making provisions in their own legislation apply for regulations made under clause 5. We sought that balance by focusing on the specific aims and applying safeguards to ensure, for instance, that the powers will not be used in ways that might be outside devolved competence.
Schedule 3 simply gives further detail about the making of regulations under the social security co-ordination clause. It provides further detail about the form that regulations will take under the clause, whether they are statutory instruments, Northern Ireland statutory rules or Scottish statutory instruments. The schedule also provides that the use of the power is subject to full parliamentary scrutiny. Its exercise will be subject to the affirmative procedure, which means that regulations made using the power must obtain the approval of each House. It also gives clarity to the procedures that the devolved authorities will need to follow.
Paragraph 4 provides that where the UK Government and a devolved authority exercise the powers under clause 5 jointly, the affirmative procedure applies in both the UK Parliament and the devolved Parliaments or Assemblies. Paragraph 5 permits other regulations, subject to the negative procedure, to be included in an instrument made under clause 5. That means that even where a regulation would be subject to a lower level of scrutiny, if it is combined with regulations under clause 5 a higher level of scrutiny—the affirmative procedure—will apply.
Afzal Khan
Labour believes that if the Government want to make far-reaching changes to social security, they should be subject to scrutiny, in primary legislation. As we discussed in the clause 4 debate, secondary legislation does not provide Parliament with an opportunity for adequate scrutiny and oversight of major policy changes. The rights in question were brought in by primary legislation, and it is only right that their removal should be possible only with the same level of scrutiny.
The powers in the clause are not necessary. If the Government really want to tidy up the statute book or make other, minor, changes to legislation, section 8 of the European Union (Withdrawal) Act 2018 already gives them the power to remove the co-ordination regulations and replace them. In fact, they have already laid four regulations under the Act. We feel that the power in the clause would enable the Government to set out global changes to social security, which should rightly be done through primary, not secondary, legislation.
That position was set out by Justice during our evidence sittings. It was concerned about
“the extraordinary breadth of power that it creates”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 59, Q157.]
The witness set out clearly:
“It is simply not appropriate to leave that to a policy change by way of delegated power, but it seems to us, from their memorandum, that Government are expressly intending to do that to get around the limitations in section 8.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q158.]
Similarly, Professor Steve Peers was clear that
“the Government should not have unlimited powers and some constraints should be set by primary legislation.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 123, Q308.]
Urgent, widespread changes to social security co-ordination are not needed in a rush. Thanks to the 2018 Act, there is law in place. The statutory instrument amendments are in place and there is no urgent need for an overhaul of social security co-ordination that would justify such a lack of scrutiny.
The House of Lords Delegated Powers and Regulatory Reform Committee is clear that the Government have provided an inadequate justification for the transfer of power from Parliament to the Government in the clause. It recommended the removal of clause 5 in its entirety. It refers to a requirement to provide an “exceptional justification” for a skeleton Bill, which has not happened in this case. As the Committee puts it,
“Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton.”
Afzal Khan
As demonstrated by our voting on both Second Reading and the clauses that have been voted on so far, we do not agree with what the Government are doing in this Bill. However, we do not support the view that there should be a different immigration system for different parts of the country. We need a flexible immigration system that will allow businesses and public services to access the workers they need, but one that applies to the whole of the UK, not just Scotland.
I understand that there are issues with regional variation in salary levels, and that different areas of the UK have different needs in terms of migration. However, that is not an issue that affects only Scotland. My own region, and yours too, Chairman, the north-west, has very different salary levels and economic needs from London and the south-east, so it will have different migration needs.
Without a border between Scotland and the rest of the UK, we do not see how a different immigration system could work. How could we ensure that someone with the right to work in Scotland was not working in England or Wales? We fear that that might lead to a further reliance on the hostile environment, as we would be relying on employers and landlords to enforce the border between Scotland and the rest of the UK. In view of that, we do not support the amendment.
Caroline Nokes
I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said when he started to speak that he looked forward to a sensible and civilised conversation on this matter; across the whole of this Bill Committee, I think we are not doing badly on that front and I certainly hope we can continue in that vein.
These amendments cover topics that I have discussed with the hon. Members and their colleagues on a number of occasions. I fear they might find my response to be fairly predictable, but I make no apology for that. I remain to be convinced that introducing geographical variation into the immigration system is either practical or desirable.
Amendments 34 and 35 seek to change the extent of the Bill so that it does not apply to Scotland. However, the whole of the United Kingdom is leaving the European Union: England, Wales, Scotland and Northern Ireland are leaving the EU. I believe it is our duty as a responsible Government to fully deliver on the result of the EU referendum and to end free movement. It is also important to remind the Committee that this Bill legislates for the end of free movement from the EU. It provides the legislative framework to simplify the UK immigration system by bringing EEA nationals and non-EEA nationals under one system.
Meanwhile, proposed new clause 55 would commit the Secretary of State to reviewing whether or not Scotland should have its own immigration system and its own Scottish visas, but only for EEA nationals. I am not sure how such a proposal, limited to EEA nationals, would be justified on equality grounds. Such a review would not be the first time that the question of whether or not Scotland should have more independence from the UK has been considered, including decisively in a referendum in 2014. With particular reference to immigration, we are not reopening the work of the Smith commission. Immigration needs to be a reserved matter.
I remind the Committee that, in designing the new system, we commissioned the Migration Advisory Committee to consider the best immigration policies for the UK. MAC undertook a comprehensive engagement and evidence-gathering exercise across the whole of the country over a 12-month period and produced an authoritative report that gives the Government a clear direction of travel for the UK’s future skills-based immigration system.
As part of that exercise, MAC considered whether there was an economic need for regional differentiation in the immigration system, and not for the first time concluded that there was no case for it. To quote from its final report:
“Overall, we were not of the view that Scotland's economic situation is sufficiently different from that of the rest of the UK to justify a very different migration policy.”
MAC went on to note that Scotland already has a separate shortage occupation list. The Committee will note that the composition of that list, as well as the UK-wide one—
Stuart C. McDonald
I am hugely disappointed by the response from both Front-Bench spokespeople, and their degree of engagement on this will be a disappointment to their party colleagues in the Scottish Parliament. There has been no recognition or engagement with the challenges that Scotland faces. This issue is absolutely pivotal to our economy, tax base and public finances, and their not even recognising that as a problem, never mind offering a single solution, is hugely frustrating.
I recognise that the MAC report was not exactly wonderful for my argument, but it did not say that there should not be a differentiated policy for Scotland; it said that that would be a political decision. I acknowledge that other parts of the United Kingdom also have economic challenges, but my answer to that is to explore options to help them. I pointed to the Tech Nation visa, which has slightly different rules for one or two cities in England, so it is not as if the UK Government do not differentiate for certain parts of England.
The difference is that Scotland already has institutions that could help to operate such a policy, such as a Government and a Parliament, none of which exist in England. I will be happy to table amendments on Report that include Northern Ireland and Wales, if Members wish.
As the Minister said, the Smith commission looked at the issue, but that was long before there were any proposals to end free movement and implement the drastic new system, which has pretty much united Scotland’s businesses, trade unions and third sector organisations in opposition. She must be aware that if she does not think again about the proposals, the already increasing demand for some sort of differentiation will only grow. We have not even started to look at how things work in Canada, Australia or other places, but this does not need to be difficult; it could be simply a small additional means for Scotland to support its population and its economy.
I repeat that I am hugely frustrated by the response that we have been given this morning. I hope that we can get something better on Report, but in the meantime, there is no point in my dividing the Committee. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Afzal Khan
I beg to move amendment 14, in clause 7, page 5, line 32, at end insert—
“(5A) This Act cannot come into force until the House of Commons has passed a motion in the form set out in subsection (5B).
(5B) The form of the motion for the purposes of subsection (5A) is—
‘That the Immigration and Social Security Co-Ordination (EU Withdrawal Act) come into force’.”
The Chair
With this it will be convenient to discuss the following:
Amendment 36, in clause 7, page 5, line 32, at end insert—
“(5A) Section 1 must not be brought into force before 30 June 2021.”
This amendment would prevent the repeal of free movement until after the 30 June 2021.
Amendment 15, in clause 7, page 5, line 33, leave out from “which” to end of line 34, and insert
“the House of Commons has passed a motion in the form set out in subsection (5B) above.”
This amendment is consequential on Amendment 14.
Afzal Khan
The Bill is not explicit about when clause 1, on the repeal of free movement, will come into force. Under Clause 7(8), it may
“come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint.”
For reasons outlined in our debates on clause 1, ending free movement prematurely will have the effect of plunging millions of EU citizens in this country into legal limbo and may mean that they are here illegally. If we end free movement too soon, it will be impossible to distinguish those EU citizens who have just arrived in the UK from those who have lived here for decades but not yet registered for settled status. There is therefore a risk that people will be denied their rights to work, rent, use the NHS and so on because they are unable to prove that they have those rights.
If there is a withdrawal agreement, free movement will be repealed at the end of the transition period. Our amendments would ensure that if there is no deal, and therefore no transition period, the Secretary of State will not be able to repeal free movement until EU citizens have been given sufficient time to register for settled status. They would offer safeguards, protect citizens’ rights and secure their status.
Stuart C. McDonald
I am pleased to be back on the same side as the hon. Member for Manchester, Gorton; I need not say much more than he did. The amendments would address the problems that will arise in a no-deal situation if the Government introduce their proposals. For example, how will employers and landlords go about distinguishing those who arrive before and after Brexit day? The Minister reassures us that employers need make no checks on prospective employees except whether they are EEA nationals, but the problem is that they will want to know how long those people can work for them; will they be entitled to stay in the UK for three years, or will they end up being entitled to settled status? Likewise, landlords will want to know how long tenancies can last.
Some EU nationals may have the right to be in the UK indefinitely through the settled status scheme, while others may be restricted to three years. This is not the Minister’s fault, but there is no indication how the three-year visa will feed into the future immigration system. There is a huge danger that there will be discrimination, and that the system just will not work. The very simple answer in amendment 36, proposed by the3million, is not to end free movement, either in a deal or no-deal situation, until after the settled status scheme has run its course. Only then can we be absolutely sure that different categories of EEA nationals can be distinguished.
Caroline Nokes
As the hon. Gentleman will be aware, the Government are working hard to secure a deal, but there will need to be a reasonable transition period in the event of deal or no deal. Indeed, in no deal we will have to have an element of control and transition, and there will be no case where we shall be able to implement a new system and switch off the old system overnight. Transition is important, and it is important that we retain the tools that enable us to do that.
We have been clear that we aim for the future skills-based immigration system to be in place from January 2021. This amendment would prevent us from doing that, as it would effectively extend the implementation period for a further six months. That would leave us unable to deliver on our commitments to end free movement and to introduce the new system on time. We received a clear message in the referendum that free movement should end. Delaying it further beyond the agreed implementation period would clearly be ignoring that message.
Even in a no-deal scenario, there will need to be a transition period before the future skills-based immigration system begins. That period should reassure Members that there will be no cliff-edge. The Government announced their proposals for ending free movement in a no-deal scenario in the policy paper published on 28 January 2019. This Bill, not least the measures in part 1, is needed now to enable us to deliver the result of the referendum.
We have also been clear that we will ensure the immigration status of the resident population is protected before the deadline for the EU settlement scheme, through appropriate savings made under clause 4. That will ensure that their rights remain unchanged immediately after exit, avoiding any cliff-edge. That means it is not necessary to delay the repeal of the free movement law in the way proposed to protect the resident population.
By delaying the end of free movement in a no-deal scenario, the amendment creates a group of EU nationals who arrive under free movement, after EU exit but before the end of the implementation period, who will face uncertainty in June 2021, when those free-movement rights end. They are not eligible to apply under the EU settlement scheme and would be in the UK unlawfully, unless they obtain leave under the immigration rules. The Government’s planned transition of a dedicated EU leave to remain route, to bridge the transition from the end of free movement to the introduction of the future system, is both pragmatic and fair, and avoids the cliff-edge I have described. I believe it is preferable to amendment 36, which seeks to prolong free movement unilaterally.
Amendments 14 and 15 seek to prevent the Bill, once enacted, from coming into force until after a motion in a specific form is passed by the House of Commons. While I recognise the importance of facilitating extensive debate on this Bill, I am of the view that legislating for a further motion after enactment is neither an effective nor appropriate use of parliamentary time. There is ample opportunity for Members on both sides of the House to have their views heard and to subject the Bill to scrutiny as it progresses through Parliament. We have already heard valuable and thought-provoking views from both sides of the Committee, and Members will continue to debate and vote on the Bill on Report and Third Reading, before it passes to the other place for further scrutiny.
Furthermore, when the Bill receives Royal Assent, Parliament will clearly have made the decision that it should become law and that free movement should end. The Government have been clear, both publicly and in the House, when they plan to commence the provisions in the Bill. There is no good reason to continue free movement unilaterally in a no-deal scenario, and these amendments, which seek to do so, seek to deny the result of the referendum. That is not acceptable. I therefore ask the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw their amendments.
Afzal Khan
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 36, in clause 7, page 5, line 32, at end insert—
“(5A) Section 1 must not be brought into force before 30 June 2021.”—(Stuart C. McDonald.)
This amendment would prevent the repeal of free movement until after the 30 June 2021.
Question put, That the amendment be made.
Immigration and Social Security Coordination (EU Withdrawal) Bill (Fifth sitting)
Afzal Khan ExcerptsTuesday 26th February 2019
(5 years, 2 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)
Caroline Nokes
This is an opportunity for Members to express their views about the future immigration system. Far from giving the game away, the White Paper is an opportunity, and we have said that there will be a year of engagement on it during which we will consider all views. We already have a system in which nationals from some countries require visas for visits and others do not, and we will be seeking to establish relationships. All such matters will be for future negotiation and discussion. It is absolutely right that, as a first step in the process, we listen to what we were told in the 2016 referendum and end free movement.
I want us to continue to be an open, outward-looking and welcoming country. I reiterate what I and my right hon. Friend the Home Secretary have said many times: we value immigration and the contribution that people have made to our society, our culture and our economy. There are many people, including hon. Members on this Committee, who are rightly interested in the design of the future system. That is why we are engaging on the proposals set out in the White Paper, “The UK’s future skills-based immigration system”. That will include sessions that are open to all MPs to discuss specific points of interest on the proposals. In the past few weeks, I have held engagement sessions with Members on students and workers, and in the coming days there will be another one on asylum.
The purpose of the Bill is clear: we are ending free movement and providing the legal framework for the future border and immigration system. Clause 1 introduces the first schedule, which contains a list of measures to be repealed in relation to the end of free movement and related issues. The clause fulfils a purely mechanistic function to introduce the schedule. It is the bare bones of the Bill. I look forward to debating it further with hon. Members, who may address certain aspects of it in amendments that undoubtedly will be tabled to other parts of the Bill. To get matters under way, I commend clause 1 to the Committee.
Afzal Khan (Manchester, Gorton) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer.
This clause—this entire Bill, for that matter—puts the cart before the horse. Labour has been clear that our immigration policy is subordinate to our economic and trade policy. The Government’s position on Brexit, on the other hand, has been consistent in just one way: they insist on putting immigration ahead of our economic needs. We simply cannot support measures that would cause our country to be worse off.
It is a fact that freedom of movement ends when we leave the single market, but the Prime Minister herself has recognised the need for frictionless trade and has been told categorically by the EU that that cannot be maintained without a close relationship with the single market. If the Government cannot yet be clear about what the final agreement will be on our relationship with the single market, this makes no sense. Until the Government get their ducks in a row, we simply cannot vote for such a measure.
The Bill also fails to address two major questions facing Parliament. The first is how we will protect the rights of the 3.5 million people who have already moved to the UK and made their lives here. On Second Reading, the Home Secretary said,
“my message to the 3.5 million EU citizens already living here has also been very clear. I say, ‘You are an incredibly valued and an important part of our society; we want you to stay. Deal or no deal, that view will not change.’”—[Official Report, 28 January 2019; Vol. 653, c. 507.]
Yet the Government have made no provisions in the Bill to protect those citizens.
Kate Green (Stretford and Urmston) (Lab)
Does my hon. Friend agree that the Bill would be the ideal opportunity to offer statutory reassurance to those 3.5 million people by including the details of the Government’s settled status scheme and their ongoing proposals for protecting those people’s rights?
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.
Caroline Nokes
Through the EU settled status scheme, we have provided people with the mechanism via which to demonstrate that. I have confidence in the mechanism. I recognise the challenges, some of which we heard in the evidence session two weeks ago. I am determined we get that right and make it a system that people will engage in, take part in and be able to evidence their status.
Afzal Khan
On the same point, one of the issues that came through during the evidence sessions was that it would also be helpful to have a hard copy of that evidence.
Caroline Nokes
The hon. Gentleman will be aware that the Home Office is seeking to move to digital by default in many of our processes. I recognise that this is the way forward. I spent a very happy six months at the Cabinet Office as the Minister for the Government Digital Service, recognising that the delivery of services digitally is the way forward. With the digital right-to-work checks and the roll-out of the digital right-to-rent checks, we already have a system that makes sure the individual employer or landlord can see only the evidence to which they are entitled, rather than having a biometric card that lays out all a person’s details. It can be tailored so the potential employer gets to see only the evidence of the right to work. I believe that the system works well and when I showed it to the landlords’ representative panel, they engaged with and were enthused by it. It has also worked well for employers. Digital status that is backed up and can be evidence going forward, simply and easily, is much better than a document that potentially contains the risk of fraud and that might need renewing every 10 years, in the same way we have to renew our passports.
This is the Bill that will end free movement. That is not the role of the withdrawal agreement Bill, which is where we will enshrine citizens’ rights.
Caroline Nokes
There is a terrible phrase, which I really dislike using: “statutory excuse”. If an employer has seen evidence—an EU passport or ID card—that indicates that somebody has the right to work in the same way as they do now, that provides them with the protection that the hon. Lady seeks.
Afzal Khan
I ask the Minister again: could the Government use the powers in the Bill to amend immigration legislation affecting non-EU citizens?
Afzal Khan
I echo the words of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. In essence, we agree that clause 2 is necessary, but we believe that it requires some improvements.
I have some questions for the Minister. First, the Good Friday agreement grants people who were born in Northern Ireland the right to identify and be accepted as exclusively Irish, as exclusively British or as both Irish and British. Does the reference to Irish citizens in the Bill, and therefore the Immigration Act 1971, include Northern Ireland-born Irish citizens who do not identify as British? Secondly, clause 2 highlights the fact that many associated rights of the common travel area are provided for only by virtue of free movement. When, if not in the Bill, will common travel area rights be legislated for to ensure that they are maintained on a clear legal footing? Finally, will the Minister make it explicit in the Bill that people in Northern Ireland who identify exclusively as Irish, as is their right under the Belfast agreement, are exempt from deportation and exclusion?
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
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.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fifth sitting)
Afzal Khan Excerpts(5 years, 2 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Caroline Nokes
This is an opportunity for Members to express their views about the future immigration system. Far from giving the game away, the White Paper is an opportunity, and we have said that there will be a year of engagement on it during which we will consider all views. We already have a system in which nationals from some countries require visas for visits and others do not, and we will be seeking to establish relationships. All such matters will be for future negotiation and discussion. It is absolutely right that, as a first step in the process, we listen to what we were told in the 2016 referendum and end free movement.
I want us to continue to be an open, outward-looking and welcoming country. I reiterate what I and my right hon. Friend the Home Secretary have said many times: we value immigration and the contribution that people have made to our society, our culture and our economy. There are many people, including hon. Members on this Committee, who are rightly interested in the design of the future system. That is why we are engaging on the proposals set out in the White Paper, “The UK’s future skills-based immigration system”. That will include sessions that are open to all MPs to discuss specific points of interest on the proposals. In the past few weeks, I have held engagement sessions with Members on students and workers, and in the coming days there will be another one on asylum.
The purpose of the Bill is clear: we are ending free movement and providing the legal framework for the future border and immigration system. Clause 1 introduces the first schedule, which contains a list of measures to be repealed in relation to the end of free movement and related issues. The clause fulfils a purely mechanistic function to introduce the schedule. It is the bare bones of the Bill. I look forward to debating it further with hon. Members, who may address certain aspects of it in amendments that undoubtedly will be tabled to other parts of the Bill. To get matters under way, I commend clause 1 to the Committee.
Afzal Khan (Manchester, Gorton) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer.
This clause—this entire Bill, for that matter—puts the cart before the horse. Labour has been clear that our immigration policy is subordinate to our economic and trade policy. The Government’s position on Brexit, on the other hand, has been consistent in just one way: they insist on putting immigration ahead of our economic needs. We simply cannot support measures that would cause our country to be worse off.
It is a fact that freedom of movement ends when we leave the single market, but the Prime Minister herself has recognised the need for frictionless trade and has been told categorically by the EU that that cannot be maintained without a close relationship with the single market. If the Government cannot yet be clear about what the final agreement will be on our relationship with the single market, this makes no sense. Until the Government get their ducks in a row, we simply cannot vote for such a measure.
The Bill also fails to address two major questions facing Parliament. The first is how we will protect the rights of the 3.5 million people who have already moved to the UK and made their lives here. On Second Reading, the Home Secretary said,
“my message to the 3.5 million EU citizens already living here has also been very clear. I say, ‘You are an incredibly valued and an important part of our society; we want you to stay. Deal or no deal, that view will not change.’”—[Official Report, 28 January 2019; Vol. 653, c. 507.]
Yet the Government have made no provisions in the Bill to protect those citizens.
Kate Green (Stretford and Urmston) (Lab)
Does my hon. Friend agree that the Bill would be the ideal opportunity to offer statutory reassurance to those 3.5 million people by including the details of the Government’s settled status scheme and their ongoing proposals for protecting those people’s rights?
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.
Caroline Nokes
Through the EU settled status scheme, we have provided people with the mechanism via which to demonstrate that. I have confidence in the mechanism. I recognise the challenges, some of which we heard in the evidence session two weeks ago. I am determined we get that right and make it a system that people will engage in, take part in and be able to evidence their status.
Afzal Khan
On the same point, one of the issues that came through during the evidence sessions was that it would also be helpful to have a hard copy of that evidence.
Caroline Nokes
The hon. Gentleman will be aware that the Home Office is seeking to move to digital by default in many of our processes. I recognise that this is the way forward. I spent a very happy six months at the Cabinet Office as the Minister for the Government Digital Service, recognising that the delivery of services digitally is the way forward. With the digital right-to-work checks and the roll-out of the digital right-to-rent checks, we already have a system that makes sure the individual employer or landlord can see only the evidence to which they are entitled, rather than having a biometric card that lays out all a person’s details. It can be tailored so the potential employer gets to see only the evidence of the right to work. I believe that the system works well and when I showed it to the landlords’ representative panel, they engaged with and were enthused by it. It has also worked well for employers. Digital status that is backed up and can be evidence going forward, simply and easily, is much better than a document that potentially contains the risk of fraud and that might need renewing every 10 years, in the same way we have to renew our passports.
This is the Bill that will end free movement. That is not the role of the withdrawal agreement Bill, which is where we will enshrine citizens’ rights.
Caroline Nokes
There is a terrible phrase, which I really dislike using: “statutory excuse”. If an employer has seen evidence—an EU passport or ID card—that indicates that somebody has the right to work in the same way as they do now, that provides them with the protection that the hon. Lady seeks.
Afzal Khan
I ask the Minister again: could the Government use the powers in the Bill to amend immigration legislation affecting non-EU citizens?
Afzal Khan
I echo the words of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. In essence, we agree that clause 2 is necessary, but we believe that it requires some improvements.
I have some questions for the Minister. First, the Good Friday agreement grants people who were born in Northern Ireland the right to identify and be accepted as exclusively Irish, as exclusively British or as both Irish and British. Does the reference to Irish citizens in the Bill, and therefore the Immigration Act 1971, include Northern Ireland-born Irish citizens who do not identify as British? Secondly, clause 2 highlights the fact that many associated rights of the common travel area are provided for only by virtue of free movement. When, if not in the Bill, will common travel area rights be legislated for to ensure that they are maintained on a clear legal footing? Finally, will the Minister make it explicit in the Bill that people in Northern Ireland who identify exclusively as Irish, as is their right under the Belfast agreement, are exempt from deportation and exclusion?
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
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.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Sixth sitting)
Afzal Khan Excerpts(5 years, 2 months ago)
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Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I rise to speak to new clause 23, which essentially seeks to prod the Government to provide reassurance that they will do what they have promised to do, and we urge them to do so as quickly as possible.
The Government have made a very important promise. Under section 17 of the EU withdrawal Act, the Government agreed to seek an agreement with the EU to ensure that unaccompanied asylum-seeking children in an EU state can continue to be reunited with family members in the UK after Brexit. That was very welcome.
Of course, all of that is currently done through the EU’s so-called Dublin III regulations, which, though not perfect, have been vital in ensuring that children are not left unaccompanied and in danger of exploitation and trafficking. We must ensure that that route is not closed off; but, if it is, the danger is that more children will be forced into the hands of traffickers and smugglers, in order to reach family here in the UK. I do not think that anyone on this Committee would want that to happen.
New clause 23 seeks to put a timeframe on that promise. If there is a Brexit deal, we ask the Government to include and bring into force that agreement before the transition ends. If there is no deal, the new clause seeks to ensure that the arrangement comes into force within three months of withdrawal. Essentially, therefore, this is the opportunity for the Minister to let us know what is happening to implement Parliament’s express will in section 17 of the withdrawal Act.
Equally, this is also the chance for the Government to consider going further than their original commitment. For example, why not also seek to implement the other Dublin provisions, so that it is not just unaccompanied children who can be reunited with family here but other asylum seekers, too, where appropriate?
As I have said, Dublin III is not perfect. It relies on other EU countries to process asylum claims and then request a transfer, which—as we have often seen—can be a ludicrously slow process. Would it not be better simply to use immigration rules to allow asylum seekers to be reunited here, thereby potentially bypassing that first administrative step?
Finally on new clause 23, of course the Dublin rules on family reunion only apply in a European context. Why not apply them more broadly so that unaccompanied asylum-seeking children and other asylum seekers can be reunited with family here in the UK without having to make dangerous journeys to Europe? We will revisit some of these issues when we debate a later amendment, but for now a progress report from the Minister would be very much appreciated.
I lend my full support to the hon. Member for Stretford and Urmston Green for everything she said about amendment 19 and the right of asylum seekers to work. That policy has had the Scottish National party’s full support for many years, and to my mind it is an absolute no-brainer. As she said, first of all it is good for asylum seekers themselves. Anyone who spends 12 months out of work will find themselves in a drastic situation, and that is just as true, possibly more so, for asylum seekers, whose skills are lost and run down, which can have a negative impact on self-esteem and mental health. Frankly, as the hon. Lady said, the situation is putting people in poverty, given the unacceptably low levels of asylum support that they are left to subsist on.
The right to work is also good for employers, particularly because at a time when the Government are very happy to tell us that unemployment is at very low levels, access to workers will always be welcome. Of course, asylum seekers have a range of skills. A scheme in Glasgow is successfully integrating refugee doctors into the workforce, but why do we have to wait for them to be recognised as refugees? If they have the skills to work in the NHS, why not allow that to happen when they are still asylum seekers?
The right to work is good for communities; it is pivotal for integration and for tackling poverty. Some locations to which asylum seekers are dispersed are not the wealthiest in the country—the Minister and I have debated that a lot recently. Often, in fact, they are among the poorest, so putting in place a new population who do not have the right to work does not help. It would be good for communities if people were earning an income that they could spend in the community.
As the hon. Member for Stretford and Urmston pointed out, the right to work is good for the public purse. Put simply, there would be savings on asylum support, and tax revenue would be gained from the income tax and the increased spending of asylum seekers. Various estimates put the Government’s savings at tens of millions of pounds.
From time to time, the Government have expressed concerns about the pull factor, but if that were a significant issue no asylum seekers would come to the United Kingdom at all, because, as the hon. Lady pointed out, we are the outliers. By implementing a right to work, we will not be very different from neighbouring countries. I have already mentioned Canada, which is not a neighbouring country, but which pretty much allows the right to work from day one.
The proposed measure is popular with the public. I welcome the fact that the Government have said that they are willing to consider the arguments, but it is time to get a move on. The right to work is long overdue and the time for procrastination has come to an end.
Afzal Khan (Manchester, Gorton) (Lab)
I thank my hon. Friend the Member for Stretford and Urmston and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling the amendment and new clause, both of which we support. The immigration White Paper has almost nothing to say about asylum or refugee issues, even though there are so many problems.
Amendment 19 deals with the right to work. The right to work would allow asylum seekers the dignity of work, as has been said, and would enable them to earn enough money to support themselves and their families. It would also encourage integration and prevent people from having to rely, for no good reason, on the meagre state subsidy of £5.39 a day. If the Home Office cannot resolve cases in the six-month target time, it is right that asylum seekers be given the right to work.
The waste of talent has already been touched on. I came across an asylum seeker in my constituency who was a Syrian consultant but who has not been allowed to work, even though, with 100,000 job vacancies in the NHS, we really need that skill. Research has shown that not being able to work for a long period doubles the risk of asylum seekers experiencing major mental health problems.
We continue to support the right of unaccompanied children to be reunited with family members in the UK after our withdrawal from the EU. An SNP private Member’s Bill is trying to achieve the same outcome and it is right that we support both the amendment and the new clause.
Caroline Nokes
I welcome the opportunity to speak to amendment 19 and new clause 23. I thank the hon. Member for Hornsey and Wood Green (Catherine West), who tabled the amendment, and the hon. Member for Stretford and Urmston, who moved it. I welcome their ongoing contribution to the debate about the right of asylum seekers to work.
The amendment would require provision to be made under clause 4 to enable asylum seekers who are EEA nationals, and their adult dependants, to apply to the Home Office for the right to take up employment if a decision on their asylum claim has not been made within six months of the date on which it was recorded.
As hon. Members may know, the European economic area is not the same as the European Union. It is slightly wider and includes Liechtenstein, Norway and Iceland, which are not members of the EU. That distinction is very important. Under our current immigration rules, asylum claims from EU nationals are treated as inadmissible—in other words, they will not be substantively considered unless there are very exceptional circumstances. Claims from EEA nationals whose home countries are not part of the EU are not inadmissible.
Afzal Khan
I beg to move amendment 20, in clause 4, page 3, line 10, at end insert—
“(5A) Any regulations made under subsection (1) which introduce a work visa scheme for EEA nationals must be developed in consultation with trade union representatives.
(5B) The Secretary of State must publish an impact assessment on workers’ rights for any regulations made under subsection (1) which introduce a work visa scheme for EEA nationals.”
The Chair
With this it will be convenient to consider the following:
New clause 20—Seasonal agricultural work visas scheme for EEA and Swiss Nationals—
(1) The Secretary of State must introduce a sector-specific work visa to enable farmers to employ EEA and Swiss nationals to come and work in the United Kingdom for limited time periods.
(2) Any EEA and Swiss national is eligible to apply for a visa issued under this section if—
(a) they have secured a job offer in the United Kingdom; and
(b) they possess a certificate of sponsorship from a UK employer with a valid sponsorship licence.
(3) A work visa granted under this section remains valid for—
(a) the duration of time that the person it is granted to is employed in the United Kingdom; and
(b) for a period not exceeding six months continuous employment.
(4) No minimum income requirement shall be required for a visa issued under this section.
(5) The Secretary of State may by regulations made by statutory instrument make such further provision as the Secretary of State considers appropriate to establish a farming sector-specific work visa under this section.
(6) Any statutory instrument issued under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House.
New clause 21—Work visas for EEA and Swiss Nationals—
(1) The Secretary of State must introduce a general work visa to enable EEA and Swiss nationals to come and work in the United Kingdom.
(2) Any EEA and Swiss national is eligible to apply for a visa issued under this section if—
(a) they have secured a job offer in the United Kingdom; and
(b) they possess a certificate of sponsorship from a UK employer with a valid sponsorship licence.
(3) A work visa granted under this section remains valid for—
(a) the duration of time that the person it is granted to is employed in the United Kingdom; and
(b) for a period not exceeding 12 months continuous employment.
(4) No minimum income requirement shall be required for a visa issued under this section.
(5) The immediate family members of a person granted a general work visa under this section are entitled to reside in the United Kingdom for the duration of the validity of the work visa.
(6) In this section “immediate family member” means an EEA or Swiss citizen’s spouse or civil partner, or a person related to them (or their spouse or civil partner) as their—
(a) child or grandchild under 21 years old, or dependent child or grandchild of any age; or
(b) dependent parent or grandparent.
(7) The Secretary of State may by regulations made by statutory instrument make such further provision as the Secretary of State considers appropriate to establish a general work visa under this section.
(8) Any statutory instrument issued under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House.
Afzal Khan
The Government’s White Paper outlines the intention to introduce a new 12-month general work visa, which it says will be necessary to make up the shortfall in workers created by the ending of freedom of movement. The Government claim that it will be a skill-based system, even though they have repeatedly identified an income limit of £30,000, as we have heard many times today, which is above the annual wage for full-time workers. Our concern is that that will limit the ability of employers in both the public and private sectors to recruit to fill labour and skill shortages. It will also create a new category of low-skilled migrants and temporary workers whose rights will prove extremely difficult to uphold in practice. As a result, it is likely to have a detrimental effect on the ability to uphold the rights of all workers who occupy the lower-paid jobs affected.
Caroline Nokes
My hon. Friend is right to point out that the new clauses relate only to the EEA. Our future immigration system, which will undoubtedly be the subject of much debate, will have to provide the level playing field of which he speaks.
As I have set out, the Government have announced the two-year seasonal workers pilot, which allows non-EU migrants to work on UK farms for six months, specifically in the edible horticultural sector. The pilot will test the effectiveness of our immigration system in helping to alleviate seasonal labour shortages during peak production periods, while maintaining robust immigration controls, safeguarding migrant workers and ensuring that the impact on local communities and public services is minimal. There will be a thorough review before any decisions are taken about long-term arrangements. Piloting and evaluating is the right way to proceed, rather than taking a final decision now.
I advise the Committee that new clause 21, although well intentioned, is not necessary. When we debated amendment 20, I set out some details of the future immigration system, but let me remind the Committee what we will be providing. First, there will be a route for skilled workers, which will be available to nationals of all countries and will require workers to be sponsored by an employer to do a specific job. As now, however, there will be the facility to change jobs and move from one licensed sponsor to another.
In line with the recommendations of the independent Migration Advisory Committee, we are expanding that route to encompass medium-skilled as well as high-skilled workers. We are also abolishing the cap and the resident labour market test for high-skilled workers. Those who come to the UK through the skilled workers route will need to meet an income requirement, and I make no apology for that. That is a continuation of the provision in the current points-based system which, I remind the Committee, was introduced by the last Labour Government.
MAC’s report, which was published in September, said:
“We believe that these salary thresholds are likely to ensure that these migrants raise the level of productivity in the UK, make a clear positive contribution to the public finances and contribute to rising wages.”
I am sure that every member of the Committee shares those objectives. We have set out that we intend to spend the next year engaging with businesses, employers and other stakeholders before determining the level at which salary thresholds should be set.
Let me turn to more temporary and potentially less skilled migration, with which new clause 21 is particularly concerned. The immigration White Paper sets out that as a transitional measure we intend to introduce a temporary work visa, which will allow nationals of low-risk countries to come to the UK for up to a year to work in any job, at any skill level.
Unlike in the new clause proposed by the hon. Member for Manchester, Gorton, there will be no requirement to have a prior job offer or to be sponsored by a particular employer, and that is an important safeguard against exploitation. The temporary work route that I have described gives the hon. Gentleman much of what he is looking for with the new clause: a route for low-risk nationals to come to the UK for up to 12 months to work at any skill level and—crucially, given the problems that this might entail—without the need to be tied to a particular employer.
I apologise for having spoken at some length, but these are important issues worthy of serious consideration. I hope that I have reassured hon. Members that the protection of migrant workers is at the forefront of the Government’s thinking.
Afzal Khan
Does the Minister accept that during the evidence sessions, speaker after speaker who touched on the less skilled route and the 12-month visa said that they were not helpful? One person actually said that a 12-month scheme had been trialled but abandoned. What is the difference?
Caroline Nokes
We did hear evidence in which people expressed concerns about the temporary routes, but we also heard from the agricultural sector, which was keen that there should be some. I vividly remember some evidence that indicated that temporary routes would inevitably—that was the word used—lead to exploitation. In the rebuttal from the National Farmers Union, however, we were given much evidence about workers on temporary contracts who returned year after year. That suggests that short-term routes would not inevitably lead to exploitation.
That remains something for us to consider carefully by listening to the evidence and the discussions that we have in the next 12 months, so that we understand the sectors—particularly the agricultural sector—that are engaging with us. I highlight again the fact that we are in the final stages of establishing the relevant pilot scheme.
Caroline Nokes
As I have said, this is a transitional route that we will review carefully, but there are very good reasons why we do not propose that dependants should be able to come for such a short period. Of course, “no recourse to public funds” is about encouraging people who come here for work to not be reliant on the benefits system, which they will not have paid into for any significant period. We will have an immigration route for high-skilled and medium-skilled workers of all nationalities, and we will have a transitional route for workers at all skill levels. I hope that the hon. Member for Manchester, Gorton feels able to withdraw the amendment.
Afzal Khan
I thank the Minister for the explanation that she has given, but I wish to press amendment 20 to a Division.
Question put, That the amendment be made.
Caroline Nokes
The hon. Gentleman will be conscious that our immigration rules since the 1971 Act have been largely set out in the rules, as opposed to primary legislation. This is a framework Bill to end free movement. As I have put on record in a statutory instrument Committee, I fully expect there to be a subsequent immigration Bill. There are many aspects of future policy that are perhaps not yet in this Bill.
Afzal Khan
Does the Minister not agree that there are very dangerous implications for patients and their medicine from where we are? We have heard the figures: there are 2.5 million people currently living with cancer; one in three of us will experience that and the number is increasing. When we look at the figures for the number of people from the EU, it is not simply about looking ahead at what we may do; people are being affected today. We need to be careful and move quickly.
Caroline Nokes
The hon. Gentleman will be aware that the future system is intended to be introduced from 2021 and of my commitment to achieving a deal with the EU that is supported by Parliament, so that we can have transitional arrangements, which are crucial. However, now is not the appropriate time to publish impact assessments, which will come forward at the relevant time. I therefore invite the hon. Member for Scunthorpe to withdraw the amendment.
Stuart C. McDonald
I beg to move amendment 33, in clause 4, page 3, line 10, at end insert—
“(5A) Regulations under subsection (1) must provide for admission of EU nationals as spouses, partners and children of UK citizens and settled persons.
(5B) Regulations under subsection (1) may require that the EU nationals entering as spouses, partners and children of UK citizens and settled persons can be maintained and accommodated without recourse to public funds, but in deciding whether that test is met, account must be taken of the prospective earnings of the EU nationals seeking entry, as well as any third party support that may be available.
(5C) Regulations under subsection (1) must not include any test of financial circumstances beyond that set out in subsection (5B).”
This amendment would ensure that UK nationals and settled persons can be joined in future by EU spouses and partners and children without application of the financial thresholds and criteria that apply to non-EEA spouses, partners and children.
As hon. Members will have gathered, I disagree with immigration law and rules in this country, but one area of those rules about which I feel particularly strongly is what I regard as the egregious and outrageous rules on family. The problem with the Bill and the White Paper is that, although thousands of families have already been split apart because of the nature of current immigration rules, in future, many more families will face that awful situation. I could pick away at and criticise different aspects of the family immigration rules, but the amendment focuses on spouses, partners and children.
My message to the members of the Committee is that this could be us. If we lost our seats or were lucky enough to be able to retire, we could find ourselves on incomes that did not allow us to sponsor spouses or children to join us from overseas. It could affect our kids or our nephews and nieces. It certainly affects lots of our constituents. I have raised the matter a number of times in debates in Westminster Hall, in the main Chamber, and at Question Time, and I am then inundated with emails from families up and down the country, who are really suffering because we have some of the most draconian immigration rules for families in the world.
I will start with two case studies to highlight the issue, although I could easily provide hundreds. Kiran works six days a week for the NHS, booking people into appointments with their GPs. Sunday should be her only day off, but she instead gets up at the crack of dawn to clean a 21-acre car showroom. Her work is exhausting; there is no respite because the next day, the weekly routine starts again, and she goes back to her nine-to-six job working for the NHS. She has been doing that for a year, all so that she can push her income above the £18,600 threshold and be with her husband in the country that she grew up in. She says:
“I can't even describe to you how it feels. Why do we have to struggle so much to have our loved ones here? It doesn't feel very British to make people suffer like this. I used to be proud to be born and bred here, but all this has changed that. The system splits people apart and makes them feel like they’re worthless.”
The second case study is that of Juli and Tony. Juli met her husband, Tony, while studying for her master’s degree in Northumbria. He is a self-employed plasterer from Edinburgh and she is an artist and media management expert from the US. They met at a party, fell in love and got married after a whirlwind romance. Tony earns more than £18,600 from the business that he runs, but a technicality means that not all of his income is counted. As a result, this loving couple have not been allowed to start building their life together in the UK.
Juli has instead been sent back to the US, where she has slept on a sofa and lived out of a suitcase for months while she fights to come back to her husband. Tony cares for his mother, who suffers from severe mental health problems, and struggles with depression himself, especially without his wife by his side. Juli says:
“I hope this is the year my husband and I finally get to be together again, and I hope it’s sooner rather than later. My husband is suffering, and I’m very worried about him. I would like nothing more than to be able to use my degree to work, contribute to the Scottish economy and finally be able to build a life with my husband and start a family.”
As I said, I could give a million more examples, but every single one of them is about real lives turned upside down by unnecessarily restrictive immigration rules. The Bill and the White Paper would extend those rules to more families. We should do the opposite and try to repeal the worst of those provisions, which came into force in 2012. Since 2012, the minimum income rule has meant that thousands of British citizens, people with indefinite leave to remain and refugees are not allowed to live with their partners, but are forced to leave the country and live thousands of miles away from extended family and support networks. That is all because they do not meet the financial threshold.
As we know, the base threshold is currently set at £18,600, so a British citizen or a settled person must have an income far higher than the minimum wage in order to sponsor the visa of a non-EEA partner. The threshold is higher still if someone wishes to sponsor a child as well as a partner. If someone is sponsoring a partner and one non-British child, the threshold is £22,400 a year, plus a further £2,400 for any additional child. Usually, only the sponsor’s UK income counts towards meeting the threshold, which to me undermines some of the reasons offered by the Government in defence of the rules. If it was seriously only about whether a couple could support themselves without recourse to public funds, why is there this rule that prohibits any account being taken of the potential earnings of the spouse applying to come in from outside the EEA?
Proving the income is also complex, and can be extremely stressful. There are seven separate categories of ways in which sponsors can show that they earn above the required amount. In most cases, only income from UK employment can be counted, while income from overseas employment, the non-British partner’s potential earnings, job offers and support from third parties are excluded from consideration. None of that can be used to demonstrate a couple’s self-sufficiency.
To give an idea of the scale for the people affected, the UK’s income requirement is the highest in the world relative to average earnings. It is equal to more than 121% of the national living wage for those aged 25 and over, 129% for 21 to 24-year-olds and 161% for those aged between 18 and 20. That covers people who are employed on the basis of a full-time salary, but for the ever-growing number of self-employed the system is even more difficult to navigate. If the British partner is self-employed, couples will often end up spending at least 12 months apart, because the sponsor must be able to prove that they met the minimum income requirement over the course of the last full financial year, which is April to April, and applications for an initial spouse visa can usually only be made overseas.
Various groups are disproportionately affected, including women. In many parts of the country, well over half of full-time employed women would be affected. In some regions, more than 60% of the population would not be able to sponsor a spouse from outside the EEA. In many of the constituencies of MPs in this Committee, that will be the percentage of constituents who could not have a spouse join them in this country.
The rules have had a severe detrimental impact on the thousands of families who are unable to meet the requirements. Due to the minimum income rules, British citizens and settled UK residents have been separated from partners, parents and grandparents, often indefinitely. The Children’s Commissioner for England, together with academics from Middlesex University and researchers from the Joint Council for the Welfare of Immigrants, have documented the short and long-term negative effects of those rules on children whose parents are unable to satisfy the requirements.
Parents reported a range of behavioural and psychological problems in their children, including separation anxiety, anger, aggression, depression and guilt, disrupted sleep, bed wetting, social problems with peers and changes to eating patterns. Such effects stem from the enforced separation of children from a parent and/or other family members as a result of the Government’s immigration policy, as well as the transfer of parental stress and anxiety on to children.
NHS England alone employs more than 225,000 British citizens at salaries below the minimum income requirement. How can MPs tell them that they are not allowed to be joined here by their overseas spouse, or that they have to leave their job in the NHS to go and join their spouse overseas?
Average annual pay for teaching assistants, who make up 25% of the UK teaching workforce, is estimated to be between £13,600 and £15,900. The minimum income requirement means that those workers, too, are unable to establish a stable family life in the UK, and many take the difficult decision to move to their partner’s country of origin, or to a third country.
We have also heard about careworkers, more than 70% of whom would not be able to establish a family life in this country with a non-EEA partner under existing immigration rules. There are currently more than 100,000 empty jobs in the adult social care sector. With a fifth of all workers in the sector aged 55 or over, that number will skyrocket over the coming years. If the minimum income rules are extended to cover the spouses and partners of EU nationals, as set out in the White Paper, the care sector will be one of many to be heavily impacted.
Across all sectors, the minimum income requirement is forcing workers with children out of salaried employment. Parents unable to sponsor their partner to come to the UK to live with the family are often forced to choose between paying for prohibitively expensive childcare to enable them to continue working and to reach the threshold, or giving up work altogether in order to act as the family’s sole caregiver. That effect was not properly anticipated in the Government’s initial assessment of the economic impact of the rule changes.
As well as having a negative impact on the workforce, the policy risks harming children, since children of single parents who work part-time are at greater risk of falling into poverty. Some would-be sponsors with children will never be able to reach the minimum income requirement due to their childcare obligations. Single-parent households have a median annual income of about £17,800, compared to about £23,700 for two-parent households. All the stats under the sun cannot properly reflect the human cost and human tragedy at the heart of all this.
I finish with another quote, from a mother with a two-year-old son:
“I am a single mother who has to look after my son as well as provide for my family. I did not want or choose to be in this position but I am being forced to”
by the Government’s immigration rules. I am shocked. It is way after time that we rolled back these provisions. There is no way that we should extend them to many thousands more families who will face these heartbreaking situations. The amendment will prevent that from happening. It is only a first step, because it will stop the extension of the rules, whereas what we actually want is for the rules to be rolled back. Will the Minister comment on that?
Will the Minister also address the evidence we heard about Surinder Singh cases, in which British citizens want to return with non-EEA national spouses, having exercised their right to free movement elsewhere. Some of them may well end up in the difficult position of having to meet thresholds that they are unlikely to be able to meet. I feel very strongly about this rule, and I ask hon. Members to give serious thought as to whether they can countenance splitting families apart in this way.
Afzal Khan
We support the amendment. We feel that income thresholds discriminate against working-class people on lower incomes. Around 40% to 50% of UK residents earn less than £18,600. Due to Brexit, the Government plan to extend this threshold requirement to EU citizens. In the Labour party’s 2017 manifesto, we said that we would replace income thresholds with a prohibition on recourse to public funds, which we feel is a more appropriate way forward.
The Government argue that the financial requirement supports integration and prevents a burden from being placed on the taxpayer. It is right that there are controls on who is able to sponsor a partner to come to the UK. The immigration rules already state that anybody who wants to move to the UK to be with their partner or spouse must prove that they are in a genuine, loving relationship and must pass an English test, and they will not have access to benefits when they arrive. However, demanding that the British partner proves that they earn a specific amount on top of the existing rules means that families are being forced apart purely on the basis of income.
An estimated 15,000 children are growing up in Skype families, where the only contact they have with one of their parents is through Skype, because the British parent does not earn enough for the family to live together. Another group affected is the 80% of women in part-time work who do not meet the threshold. Young mothers are particularly badly affected, often being pushed out of the labour force because they have to handle childcare responsibilities alone due to these rules. I believe that these rules have a negative impact on families, on social cohesion and on the economy. They must be changed, so I am happy to support the amendment.
Caroline Nokes
I appreciate the positive intent behind the amendment, which seeks to create a means whereby, in the future, EU nationals will be able to join a spouse, partner or parent in the UK who is either a British citizen or is settled here, but without being subject to the current and established financial requirements for family migration. No doubt the intention is to be helpful to that group of people and their family members in the UK.
However, the practical effect would not be to maintain the status quo for EU citizens but to create a separate and preferential family migration system for EU family members when compared with the situation of British or settled people’s family members who are not EU nationals. This would clearly lead to a perception that non-EU families are discriminated against for no reason other than their nationality, and may well be regarded as unlawful for that very reason.
The possibly unwitting introduction of direct discrimination is the Government’s main reason for objecting to the amendment, but I also draw attention to the terms of the amendment itself. It would replace the minimum income requirement for British citizens and settled persons sponsoring EU family members with a test that has three separate components: being able to maintain and accommodate the family without recourse to public funds; taking account of the prospective earnings of the EU national seeking entry; and taking into account any third-party support available. I will address each in turn.
Oral Answers to Questions
Afzal Khan Excerpts(5 years, 2 months ago)
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Sajid Javid
It remains a first priority, which is why since I have been appointed we have helped more than 2,000 people through the Windrush taskforce; created the Windrush scheme; helped almost 3,500 people to apply for citizenship; waived thousands of pounds in costs; and set up an urgent assistance programme for exceptional cases. The hon. Lady is right to raise the compensation scheme. It is hugely important that we do it properly and get it right. That is why we have held a consultation, with an independent reviewer, to make sure that we look at all the issues and it is done properly.
Afzal Khan (Manchester, Gorton) (Lab)
Since our urgent question, the Jamaican commissioner has joined calls from across the House to halt deportation flights to Jamaica. After Windrush, where we know that hundreds of people were wrongfully deported or detained, this Government cannot be trusted to follow the correct process. What is their plan for future deportation flights, and will the Home Secretary suspend them until the lessons of Windrush have been learned?
Sajid Javid
As the hon. Gentleman will know, this issue has been discussed in the House. He refers to the charter flight to Jamaica on 6 February. On that flight were 29 foreign national offenders, all convicted of serious crimes. He will know that in each of those cases—as I said, they were all foreign national offenders—we took extra care to ensure that none were subject to the Windrush scheme. Every single one arrived after 1 January 1973 and there is no evidence to indicate that any had been here before that date. He will know that, under a law passed by a previous Labour Government, the Home Secretary is mandated by law to issue a deportation order for anyone who is given a sentence of more than one year. Surely he is not asking me to break the law.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Third sitting)
Afzal Khan Excerpts(5 years, 2 months ago)
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Afzal Khan (Manchester, Gorton) (Lab)
Q
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 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
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
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
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.
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
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
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
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
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
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.
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.
Afzal Khan
Q
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
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.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Fourth sitting)
Afzal Khan Excerpts(5 years, 2 months ago)
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The Chair
It sounds as though you are the right witness for this session, with that expertise. This session lasts until 2.30 pm.
Afzal Khan (Manchester, Gorton) (Lab)
Q
James Porter: Yes, we do indeed. In fact, we have already seen shortages over the last two years of about 10% to 15%. We are seriously concerned about the situation currently. We have, as I said, 300 seasonal workers lined up to come over, and many of them return year on year—about 70% are returnees. As many of them have said, any kind of restriction that is put in place will encourage them to go elsewhere. There are lots of jobs available in Germany, Holland and elsewhere in western Europe.
Afzal Khan
Q
James Porter: No. That is generally recognised. In fact, the Migration Advisory Committee report recognises that that labour force is not there. To take Angus, where I am, as an example, there are only 1,400 long-term employed in the county. Angus Soft Fruits, which is the marketing group that I market through, employs about 4,000 people in Angus across 20 growers, so the workforce is not really there. That has been recognised for quite a long time, generally.
Afzal Khan
Q
James Porter: Regarding the 12-month visa and so on, I think you are talking about things that are in the Bill. I have more immediate concerns, and I can tell you what they are and then come back to that, if you will allow me.
The first thing is the seasonal agricultural workers scheme allowing for 2,500 workers this year. NFU Scotland has long argued that that is not nearly enough, and that it needs to be at least 10,000. We are very concerned that that should happen immediately, because we know we are going to be short. About three or four weeks ago, I spoke to Pro-Force, which is one of the accredited labour providers, about how things are going. It is employing people to pick daffodils in Cornwall, and it has already filled the 1,250 places—it gets given half of them—and is struggling to find EU workers to come in and do that. Added to that is the uncertainty about where we are currently with leaving the EU. We really feel that the number of places ought to be put up to 10,000 immediately as a contingency.
Secondly, if we leave the EU without a deal, there is currently in place—I think I have got this right—a three-month rule, so workers can come over for three months without any application, after which they will have to apply for an extension that will let them stay for up to three years. Three months does not bear any relation to what is actually happening on the ground. Most of our workers come over in the early spring—it is probably earlier in England; I am not quite sure when they kick off—and go through the whole season, and then go home for the winter. We feel that the three-month rule will be very obstructive. I have been told that if the slightest impediment is put in the way of the guys and ladies who are coming over to pick fruit for us, they will decide to go elsewhere. We feel that the three-month rule should be extended to 12 months, and then whatever comes after that. We are in a very precarious position. Everything I am hearing on the ground is telling me that if the slightest hindrance is put in their way, they will go elsewhere. I will let someone else speak for a bit.
David Duguid (Banff and Buchan) (Con)
Q
James Porter: There are two or three problems. This is seasonal work, and most people in the UK are looking for full-time work, not seasonal work. The nature of the job really requires you to be on the farm at that point. We have very early starts in the morning, so it does not marry in naturally. The other thing is that it is quite a physical job. No one is pretending it is an easy job; it is quite hard work, and I do not think it is necessarily for everyone.
Afzal Khan
Q
Professor Peers: One distinction is that, as I understand it, according to the Government’s policy paper, there would not be a right of appeal in a no-deal scenario, whereas under the withdrawal agreement there would be. Another discrepancy relates to how long and how extensive family reunion rights would be under the withdrawal agreement compared with a no-deal scenario; they would be truncated in a no-deal scenario.
There is a more recent Government policy paper about what will happen to people who come in during the period after Brexit day in the event of no deal. Obviously, in that case, there would not be a fully-fledged transition period. The Government’s plan is to have a short-term permit and for people then to be rolled over into the general immigration system if they want to renew it. That is obviously quite different from the position people would be in if the withdrawal agreement were ratified, in which case the transition period free movement rights would continue for them as acquired rights. Also, under the withdrawal agreement, the transition period can be extended by one or two years, whereas, as far as we know, the Government are not, at least at the moment, planning for their own unilateral transition period to be extended.
Afzal Khan
Q
“any provision made by or under primary legislation passed before, or in the same Session as, this Act”
and “retained direct EU legislation”. Could the Government use that power to roll back their commitment to EU citizens?
Professor Peers: As I understand it, yes, as the Bill stands, because schedule 1 removes a whole series of existing provisions that would otherwise be retained EU law of various types. If you give the Government that sort of power to amend quite generally—more generally than under the withdrawal Act—legislation relating to the acquired rights of EU citizens, what is the limit on what they can do? It would be useful for Parliament to consider whether there ought to be statutory protection of at least some core rights acquired by EU citizens and others, such as family members and Turkish, Swiss and Norwegian citizens, in the period of EU membership so that appendix EU to the immigration rules cannot simply be done away with or robbed of key protections by statutory instrument in a very simplified way.
Afzal Khan
Q
Professor Peers: As I understand the Bill, it is focused on ending the free movement of EU citizens and issues related to it. The EU-Swiss agreement is also mentioned in schedule 1. There is not much in the Bill that addresses the White Paper issues about future immigration policy. I assume the Government will want either to introduce another Bill or to use the immigration rules to develop that future policy to deal with issues such as the cap—£30,000, or whatever it might be—for workers and non-EU citizens. As far as I know—I do not know whether the Government have been clear about this—that is an issue for the future. The Bill does not deal with that as such.
Afzal Khan
Q
Professor Peers: Yes, of course, because then it would take a further Act of Parliament to amend it, assuming there was no other Henry VIII power lying around that could be used to repeal it. Assuming that does not happen, you need an Act of Parliament to change an Act of Parliament, so you would have to go through that process. The Government might, of course, have a majority in the Commons and the Lords to proceed with that, but certainly it is a longer process involving more public discussion. Bills get more scrutiny than statutory instruments and are usually more open to public debate than the statutory instruments process is. It is not an absolute guarantee, but it is a relative guarantee if you put something in primary legislation compared with secondary legislation.
Afzal Khan
Q
Professor Peers: Again, it might be more useful to have some kind of statutory protection, at least of basic things such as acquired rights to social security as of Brexit day; obviously, British pensioners or would-be pensioners in the EU would be interested in that, as well as EU citizens who live or have lived here and might return to their original home on retirement. That would be useful as well.
Of course, this is more complicated, because a separate Act has recently passed Parliament that sets out separate powers to negotiate on social security. In this case, with social security, the Commission has proposed EU legislation—I think at the urging of member states—to keep acquired rights in relation to social security on the EU side. Depending on the details of how that gets negotiated, obviously very quickly, on the EU side, that might be something it would be useful to match.
Even if we do not have a ring-fenced agreement on all these issues, which would be ideal, would it not be helpful for everyone concerned to at least match the arrangements on social security and acquired rights? Perhaps that could be a statutory commitment and the Minister could come along and adopt a statutory instrument to match whatever the EU legislation is at the end of the day, which will not be too long from now, I think. That would be a good way to look at it going forward.
Nick Thomas-Symonds
Q
Professor Peers: Yes. There are a number of concerns. First, it would have been better either to have a ring-fenced agreement covering people on both sides and cutting out that part of the withdrawal agreement, which is not particularly controversial, or to have EU legislation similar to the social security proposal that has already been tabled, which unilaterally and uniformly protects UK citizens’ rights across the whole European Union. For whatever reason, the Commission did not go ahead with that, but it would have been far better to have done that.
What we have instead is different countries doing different things. Some aspects of UK citizens’ rights in the EU27 are governed by EU law on non-EU citizens, and long-term residence is an example of that, but there are parallel national laws on long-term residence too. I do not know the details of the Austrian law offhand, but the EU law on long-term residence has case law saying that you should not impose disproportionate fees, so someone might want to challenge the €210 as a disproportionate fee. However, if that is a national law on long-term residence, you do not have an EU law argument about it, so there will be a lot of non-uniform degrees of protection of UK citizens.
It would be better to have standard rules, because a lot of those citizens would be looking at national long-term residence; EU long-term residence is not necessarily used that much. Some of them will face the difficulties of paying high fees. There may of course be other difficulties in applying. There may be earnings thresholds, or other criteria to be met in relation to health insurance or being employed and so on, to get long-term resident status under national law. Those could be difficult to meet.
There might be issues to do with family reunion. Certainly if the family member has not been registered yet, or if they come after Brexit day, different rules might apply to them. It might be quite challenging to bring families in, or have them to stay. If there is a separation or divorce that could raise issues, and people would be in a more difficult position than they would under EU legislation.
Anyone who does not yet have the right to long-term residence could be in an even more difficult position, depending on how restrictive national law is in relation to how they qualify for the right to stay. Would they be given something like pre-settled status, which we will have in the UK, on the basis that they are on their way to getting long-term resident status, or, instead, a short-term permit? It might be that that could not be renewed, or could not be renewed on the same basis, or would not let the person change jobs, or would not let a student look for work—all things that people would have as an acquired right if the withdrawal agreement is passed.
People who are not registered under the national system for registering foreign citizens will have difficulty in any event. They might have difficulties for that reason alone with qualifying under a national system of getting residence permits. If they do not get a residence permit at some point, their life will be more difficult in terms of travel, access to benefits or whatever it might be.
Those points are a broad indication. They will be different in each country and the details will differ, but they give a broad idea of the sorts of problems UK citizens might face.
The Chair
Welcome to the Committee. Would you please kindly introduce yourself for the record?
Professor Smismans: I am Stijn Smismans, professor of European law at Cardiff University, and I am speaking on behalf of the3million, which represents European citizens already resident in the UK.
Afzal Khan
Q
Professor Smismans: I entirely agree. The objective of the Bill is to remove free movement and substantially to regulate future immigration. However, as collateral damage, the 3 million EU citizens who are in this country will be affected. The Bill does not provide any guarantees for them, which is quite remarkable. It provides protections for Irish citizens, which for reasons of history one can understand. However, at the same time, Irish citizens have lived in this country over recent decades with the same status as EU citizens, so it is strange that the Bill protects only that category and does not provide any protections for the EU citizens already here.
What the Bill does is actually quite radical. These EU citizens have been living here for decades completely legally, and legitimately expecting that their status is solid. One day, the Government said that they were going to remove all those people’s rights—their complete status. The Government say they will replace it with something new, although the definition of that is not yet entirely clear. There is still room for manoeuvre on which rights they will get, and particularly on the definition of the status, which can be partially set out in secondary legislation.
Moreover, the Government are not going to grant that status; EU citizens will have to apply for it and must comply with the criteria. If, by a certain deadline, they do not have those documents, they can be immediately deported, because they will be here illegally. That is quite radical for people who have been living here for, potentially, decades.
To put yourself in their place, imagine that you, as British citizens, have in the same way legitimately expected that you have the right to stay here, and one day the Government say that they will abolish the status that you have and replace it with something new. They assure you that it will be more or less the same, but they will set it out in secondary legislation. You must then apply for it, and if you do not get it, you can then be deported. You may say that British citizens are British citizens, not EU citizens, but over recent decades EU citizens have been living here with nearly exactly the same rights as British citizens, except the right to vote in national elections. They have had substantially the same rights, and they have never had to provide any other proof of their identity. They are now going from that status, which is protected not only in primary legislation but supranationally, to one that is not even set out in primary legislation, because the Bill does not provide that protection. It removes those people’s rights and gives a very broad delegation to secondary legislation, leaving much to be set out there.
the3million proposes that the Bill should set out several criteria. To start with, the process of registration should be set out in primary legislation, with criteria that give clarity on the exact status those people will have. We also propose that the procedure should be declaratory, compared with the current constitutive one. Obviously, that also implies that there have to be limits on the Henry VIII powers that are given in this Bill.
Afzal Khan
Q
Professor Smismans: The most logical way of proceeding would be to wait until we know whether there is a withdrawal agreement, because that withdrawal agreement provides protection for EU citizens and the UK would have to implement it with an implementation Bill. At the moment we do not know whether there will ever be a withdrawal agreement. If there is one, we do not know exactly what the implementation Bill will do. In the case of no deal, this Bill is the only place where you can provide guarantees in primary legislation.
Even if there is a withdrawal agreement in the end, if it were to be adopted in a couple of weeks, we would have a month to discuss the implementation Bill. That Bill will probably be limited in how much detail it would provide on the rights of EU citizens already here. There are some aspects that the withdrawal agreement does not set out in detail, such as the registration procedure. In any case, that would have to come in primary legislation set out here, and not just in the implementation of the withdrawal agreement. If it is not set out now, there is a very big chance that if there is no deal, there will be no guarantees in primary legislation, and even if there is a withdrawal agreement, the implementation Bill does not do that properly, because there has not been enough time to discuss it.
Afzal Khan
Q
Professor Smismans: The provisions given here for secondary legislation are very broad. The process for applying for status is not in primary legislation, so that is a starting problem. The rights we currently have can broadly be revised by the powers given in this Bill, so the status that we once had can be undermined gradually over time. That is why we propose that if a delegation remains in the Bill, there should be a sunset clause on it, so it is only for tweaking technical issues in current rules. In particular, there should be a clause that stipulates that these provisions should not at any time undermine the existing rights of the people already here.
We understand that one wants to regulate free movement for the future, abolish it and create new rules, and we understand that that might require Henry VIII powers. That is a choice. But it is a very different thing to remove the existing rights of people who have been here for decades. That should be set out in primary legislation, and it should not be possible to play with that in secondary legislation.
Maria Caulfield (Lewes) (Con)
Q
Professor Smismans: No, our proposal is that there should be a registration system. If there is no registration system, these people will not be able to distinguish themselves from future immigrants, so there has to be some registration.
Afzal Khan
Q
Professor Smismans: Exactly. With the settled status scheme, even if there is a 95% success rate at the end, 5% of 3 million is a lot of people. Given the current consequences, that means being hit by the hostile environment—that you are illegal whatever you do. If you are in work, that will be illegal. You lose all access to services and you can be deported at whatever moment in time. Even if it is 5% of 3 million, that is a huge number, and it will be at least 5%, because people will not register, will be rejected, or people will be in the quite unstable position of pre-settled status. After five years, they might try again, and are likely to fail again. It is likely to be hundreds of thousands.
Caroline Nokes
Q
Professor Smismans: That is what I said, and ideally that would have been the case. The problem is that first, we do not know whether it is going to happen, and secondly, if it is going to happen, the time will be so short that we will not know what is in there.
The Chair
Welcome. Would you like to introduce yourself to the Committee, just for the record?
Joe Owen: I am Joe Owen, associate director at the Institute for Government.
Afzal Khan
Q
Joe Owen: The Bill is a framework Bill that gives the Government broad powers with which to move forward. In some respects, particularly when we look at some of the criticisms we have already heard about this being a kind of blank cheque for Government, that is not uncommon on immigration. The basis of the legislation—the 1971 Act—means that the Government have pretty broad powers to start making changes in the immigration system. This is not necessarily a massive deviation from that.
Looking at this, there is an important question about whether the basis of immigration rules, with which this clearly shows a problem, is the right way to do immigration rules. It is certainly the case that between 2010 and 2013, for example, there were some pretty big changes in the immigration system, not least reducing non-EU migration, over which we had control—for want of a better phrase—by about 40%. That was all done without primary legislation, just through immigration rules.
There was also the introduction of the minimum threshold for family reunification, which meant that around 40% of British citizens, I think, would not be able to bring over spouses from the rest of the world under those rules. Whether or not you agree with the policy, there is a question about whether it is right that that can be done through immigration rules and negative procedure. The broad question with the Bill is the continuation of broad powers to make changes in the immigration system. There is a valid question at this point about whether that is the right way to progress with immigration legislation.
Afzal Khan
Q
Joe Owen: There is obviously value in having immigration rules that can be quick and responsive and make changes where there is recognised abuse in the system, or equally to loosen things up if there is a squeeze in the labour market. There is clearly value in having reactive immigration rules, but there is a question about the level of scrutiny more broadly. There is one quite interesting question about what happens before it gets to Parliament.
In the benefits system, there is the interesting example of the Social Security Advisory Committee, which brings together experts from an operational perspective, who are used to implementing the rules on a day-to-day basis, from a legal perspective and from business, non-governmental organisations and so on, to try to work out how those rules would be implemented in practice. That is quite an interesting model that there is less of when it comes to immigration rules; there is less up-front kicking the tyres.
When it comes to parliamentary scrutiny, that is done through the negative procedure as the baseline. I have already touched on some of the big changes that it was possible to make through the negative procedure. This change prompts a discussion about whether that is the right way for changes to be made in the immigration system and whether there needs to be another look at the balance of power between the Executive and what can be done through primary legislation. As I said at the beginning, that is not to say that everything should be done under primary legislation, because there are strong arguments for being able to be reactive, but I think there are certain cases where there is insufficient scrutiny of immigration rules.
Afzal Khan
Q
Joe Owen: That is a good question. That came through primary legislation with the 2014 Act, so there was an opportunity to discuss it. There was never really a White Paper. If you want a White Paper that sets out the hostile environment, you need to go back to Labour. I think it was in 2007 when they called it the “difficult environment”, or the “uncomfortable environment”, which put out a lot of the ideas that became the basis for the 2014 Act. Obviously, things changed, and it was not exactly that blueprint, but not much of a blueprint was laid out.
There is a question about what happened to some of the challenges that were picked up during that process. We know from the Government’s own impact assessments that they recognised that the right-to-rent measures, for example, would affect people of an older generation who had their rights guaranteed under primary legislation, whose documents might have been destroyed. It basically described the Windrush issue in a policy equality statement in, I think, 2015.
There is a question about the extent to which that was scrutinised, and what happened to that information afterwards. However, in terms of the level of scrutiny of the hostile environment, there was a piece of primary legislation, but there is an argument that there was not as much information White Paper-wise as you might normally expect.
Afzal Khan
Q
Joe Owen: Yes. This is a big opportunity to change the way the immigration system works, but clearly there is a trade-off between time and the level of ambition for what you can change. As it stands, the system would need to be up and running in less than two years. Clearly, time is a big constraint. That is one of the reasons why a lot of what sits at the core of the policy in the White Paper is the points-based system that existed before 2010. There were then a series of add-ons, such as the cap, which this removes, and stuff around the resident labour market test. Those things that were bolted are being stripped back.
The fact that there is so little time means that the level of ambition has to be curtailed in terms of what you can do. You would expect that changes will be needed over the longer term; we will not be done and dusted in December 2020. Such things as the promised review of the sponsorship system for employees might have to be done in the longer term. One of the things that we are looking at is whether there needs to be a bigger review of how the immigration system works, and the structures and processes in the Home Office. That was one of the things announced by the Home Secretary in response to the DNA testing issue.
One of the areas that is not touched on, and which will likely need a review—this has definitely been a theme in the evidence of all your previous panellists—is how enforcement works. You have heard from all the panellists since I have been here about the question of settled status, and what happens to the people who do not have settled status at the end. It is almost certain that quite large numbers of people will not.
It would be heroic if the Government managed to get to 95%. I think the dreamers scheme in the US, which was kind of similar in terms of the application process and who was eligible, got about 43% of people who were eligible. I think we did something in the UK around family leave to remain in the early to mid-2000s where we got about 20% coverage. Even if we were to stretch to 95%, which would be a really good job by the Home Office, you are talking potentially about nearly 200,000 people who do not have documentation. How does the enforcement system adapt to take into account the fact that that is just a reality we will be dealing with?
The Home Office will need to deal with the fact that there will be people for whom it does not have paperwork, and who technically may have no legal right to stay, if they did not apply within the time period. I think most people in the UK would recognise some kind of moral entitlement to stay if someone has lived here for 20-odd years. How the enforcement system adapts to that will be an important challenge.
Kate Green
Q
Joe Owen: I have to admit that I am by no means an expert on social security, but this is part of a broader Brexit phenomenon. The level of uncertainty of what sits ahead, and the need to pass legislation, means that the Government have to take broad powers in certain areas to cover all aspects of a no-deal scenario. Whether there is the necessary scrutiny of that, and the necessary security as to the powers being used properly, is a different question, but it would in some cases be quite difficult to get away from taking broad powers on Brexit-related issues, unless the Government were to be quite forward-looking about what they planned to do.
In short, it is kind of unavoidable that there are some quite broad powers in the Bill, but there is a serious question about whether there is the right level of scrutiny, and what more Select Committees, for example, could do to make sure the powers are used properly.
The Chair
This session finishes at 4.30 pm. Will you both kindly introduce yourself for the record?
Jeremy Morgan: I am Jeremy Morgan. I am the vice-chair of British in Europe, which is a coalition of groups across Europe. I am a committee member of British in Italy.
Kalba Meadows: I am Kalba Meadows. I am a committee member of British in Europe. I also co-ordinate the largest member group of British in Europe, which is a citizens’ rights group based in France.
Afzal Khan
Q
Jeremy Morgan: Can I ask you if we could cheat? We are the only representatives of British citizens in Europe, and we have heard various questions asked of other people who are not British citizens in Europe—questions that we know the answers to. Could we ever so briefly start by answering those questions, or would that be completely contrary to everything this Committee does?
Afzal Khan
Q
“Power to modify retained direct EU legislation relating to social security coordination”.
What concerns do you have about these powers?
Jeremy Morgan: They are very open ended, and to my mind they are unnecessary, certainly at this stage. You have to recall that we set out the legislative framework in our paper. At present, the EU’s social security co-ordination rules apply in this country, because we are still in the EU. The 2018 withdrawal Act preserves them as retained legislation after 30 March, if that is the date on which Brexit happens and there is no withdrawal agreement. However, in exercising a regulation-making power under that Act, the Department for Work and Pensions has already put forward a slightly amended version of the EU regulation, to take account of the fact that, basically, there will no longer be communication between the various countries.
There is no need for any rushed legislation on this. The existing law, which we are told it is the intention of the Government to preserve, is in place. The amended statutory instrument is in place. The new regulations are simply there to make further changes, as yet unspecified. No policy reasons for that are put forward in any of the supporting documentation. It is unnecessary, very broad and very worrying.
Afzal Khan
Q
Jeremy Morgan: You have to bear in mind that British citizens in Europe are somewhat less affected by UK law, for obvious reasons, than the EU citizens living here. Probably the most important aspects for UK citizens in the EU are healthcare, which in the EU is an aspect of social security, the aggregation of pension contributions and exporting pensions.
I, as a UK pensioner living in Italy, am entitled to receive my pension, but I am also entitled, under EU law, to an annual increase. There is a great concern that that might not continue—the Government have not committed to continue uprating our pensions beyond April 2020. That is a huge worry, because although inflation is quite low, the British pension is the lowest in the OECD countries and has already been devalued by 20% because of the fall in sterling. Not to increase that is adding insult to injury to people who left this country on the basis that they would always get their uprating.
Afzal Khan
Q
Kalba Meadows: We share the uncertainty with them. Right now, we share even more uncertainty, and I will tell you why. As the rights of EU citizens have not been enshrined in primary legislation, national Governments across the EU27 are reticent in coming forward with their own legislation, because they are concerned that the rights of their nationals living in the UK will not be equally protected.
In France, the legislation we now have—it came out last week—includes a clause that clearly states that, although it protects the rights of British citizens in a no-deal Brexit to some degree, everything in that can be withdrawn by decree if the French Government consider at any point that the British Government are not treating French citizens in the UK fairly and equally. Although, on the one hand, you might say that we have less uncertainty, because that is in place, on the other hand, it is not certainty, because it can be withdrawn by decree at any moment.
We are seeing across the EU27 that Governments are reluctant to come forward with legislation because the UK has not enshrined EU citizens’ rights in primary legislation. We hear that in our conversations with member states, and we are very aware that Governments are holding back on coming forward with their protections for us. You can imagine that that creates the most incredible uncertainty for people, because this is actually about people.
Jeremy Morgan: To underline that, we are not talking about hearsay here. As an organisation we have been involved in negotiations with our national Governments and with the EU Commission and MEPs. We have had fairly high-level involvement and we do know what they are thinking and saying.
Afzal Khan
Q
Kalba Meadows: I come back to the uncertainty. On clause 5 on social security co-ordination, 80% of the British living in Europe are of working age or below. That is an awful lot of people potentially affected by social security aggregation, and add to that the pension issues that Jeremy has already outlined. We are talking more than 1 million people who are affected by social security aggregation—the aggregation of the contributions they make to their retirement pension. That is a fundamental right that we all moved across the Channel with.
I would also add that British citizens moving abroad are mobile. It is not so much that a British citizen moves from the UK to one country. We are mobile citizens, and many people have worked in three or four different countries. That is a complicated aggregation scenario. It is entirely possible, due to the rules in individual countries about minimum contribution periods—in Italy, you have to contribute for 20 years before you can receive a pension; in the UK, as you know, it is 10; in France, it is 10; and so on—that without co-ordination, people could work an entire working life and not receive any state pension.
Jack Brereton
Q
Jeremy Morgan: Yes. In so far as we are talking about Britain versus 27 or 26 different countries, clearly the British Government’s aim has been to get the withdrawal agreement through—to get Brexit—and almost anything that has to be done in order to achieve that, they will do. Obviously, there are difficulties at the moment. The other countries are more concerned with specific national issues. I do not think you can generalise.
Kalba Meadows: I do not think you can. I agree with what Jeremy says.
Jeremy Morgan: The French are terribly concerned, for example, that people who are not French citizens should not be involved in public administration. In Italy, they are much more concerned about families. That is the Italians and the French for you.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (First sitting)
Afzal Khan ExcerptsTuesday 12th February 2019
(5 years, 2 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)
The Chair
Q
Professor Ryan: I am Bernard Ryan. I am professor of migration law at the University of Leicester.
Professor Manning: I am Alan Manning, current chair of the MAC and professor of economics at the London School of Economics.
Afzal Khan (Manchester, Gorton) (Lab)
Q
Professor Ryan: I see the Bill as an historic measure. If you take a long view, it is one of the moments at which the basic categories of immigration law are being redefined. In relation to EU citizens, it is essentially just a framework for switching off the rights that exists, but what about the people who are here already? If it is such a fundamental change, should provision not be made for them? Particularly in a no-deal scenario, which of course we have to look at, there is clearly a question about the people who are here now. If we get a withdrawal agreement, there will be implementing legislation for that, but there is no clear plan to have implementing legislation or equivalent legislation in the absence of an agreement. That would leave the people who are already here exercising rights without legislative protection.
Maria Caulfield (Lewes) (Con)
Q
Professor Ryan: I welcome clause 2. Some of us have been arguing for a long time, particularly since the referendum in 2016, that there is not full provision for Irish citizens in immigration law. There is, in a somewhat obscure manner, recognition of Irish citizens coming from other parts of the common travel area—that, in practice, means coming from the Republic—but, of course, that does not give protection or recognition to the position of Irish citizens who might simply enter the United Kingdom from elsewhere, or indeed who are born in the United Kingdom. That is the gap in legislative terms. Of course, the policy in practice is not to require of Irish citizens leave to enter or remain. That has always been the position, but it has never been clearly expressed in legislation. Clearly, this is the time to do it.
Maria Caulfield
Q
Professor Ryan: In terms of legislation, Irish citizens are protected only when they enter the United Kingdom from elsewhere in the common travel area; they are not exempt from immigration law when they enter the United Kingdom from the rest of the world. That is the large gap that clause 2 addresses.
Afzal Khan
Q
Professor Ryan: I would not want to be specific about what might happen in future. I am conscious that the Bill will potentially define a framework for decades regarding EU citizens. We just have to look at the Windrush story. The way in which Commonwealth citizens of that generation still rely on the Immigration Act 1971 to protect them is not fully understood. Section 34 conferred upon them automatic indefinite leave to remain. That is more than 40 years ago. What was put in place then is still being used. We have to think in that kind of timescale. I do not want to be specific about what might change in the future regarding public policy for EU citizens.
Afzal Khan
Q
Professor Manning: The first potential problem is that an employer-driven system can lead to workers being extremely vulnerable. They are here only for short periods and do not really understand the system, and so on. We would need quite extensive regulation to prevent potential abuse of those workers.
Secondly, if you are concerned about the social integration of migrants, it will not help with that. Inevitably, there is no point in people who are here only for a short period investing in building a life here, and links to the wider community.
Thirdly, historically it has been the case that, because it is quite artificial—at the end of 12 months a worker has to leave, perhaps to be replaced by another—it generally sets up some kind of pressure for employers to extend the 12 months. It may start off in that form, but there is a risk of drift into a more permanent migration route.
Jack Brereton (Stoke-on-Trent South) (Con)
Q
Professor Manning: The view in the report that we published in September is that EEA migration has not had very big costs. It has not had very big benefits either. The technical analysis in the White Paper indicated that. There would be impacts here and there. The general point is that after 2004 free movement, more by accident than design, was a system for primarily lower-skilled migration. Most countries have a preference for higher-skilled migrants. The proposals that we made, and that were taken forward in the White Paper, were essentially to alter the balance towards more higher-skilled migrants.
Maria Caulfield
Q
Professor Ryan: Only that they should go together, I suppose, at the commencement of the switch-off, the moment it happens. I am thinking particularly about a no-deal scenario; that has to be in step with the arrangements for the future.
Afzal Khan
Q
Professor Ryan: I was focusing particularly on the question of guarantees for people who are exercising rights already—prior residents, as it were. That is the key detail that is left out. Apart from that, it is understandable that it is a framework and that details will be filled in later, particularly as regards timing.
Afzal Khan
Q
Professor Manning: One example that you could use is the old seasonal agricultural workers scheme. In its early years, there were issues with some undesirable practices, but in later years the MAC’s view—it was before my time, so I was not involved in that piece of work—was that it was a fairly well run system. What is envisaged in the White Paper is potentially on a much bigger scale, which would mean much more expenditure on enforcement and so on. At the moment we do not really have the infrastructure in place for enforcement; it would have to go along with development of the programme itself.
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.
The Chair
Splendid. Which colleague would like to ask the first question? I call Afzal Khan.
Afzal Khan
Q
Lord Green: Yes—probably medium skilled. Before I answer your question, can I just thank the Chairman for the invitation? I notice that you have about 25 witnesses and we are the only ones whose view is that immigration should be reduced. In saying that, we have the support of some 38 million people. I just leave that on the table as something that the Committee might like to be aware of.
Certainly there are medium skills that are not very well paid. I would have thought that very high skills probably are well paid.
Afzal Khan
Q
Lord Green: Yes, certainly. First of all, we are very doubtful about it in principle. It seems to us to be a rather obvious way of avoiding getting people into the official immigration statistics. I think that is a mistake in terms of public trust. We are assuming, by the way, that EU citizens will be eligible for this, and there are indications that that will be so. There is no difference in effect between somebody who is here for 11 months, goes away for a year’s cooling-off period, and who can then come back and work for a period that has not yet been defined. I only have to say that to illustrate the difficulties of knowing who these people are, where they are and how long they have been here. We simply do not have the necessary information to do that.
Afzal Khan
Q
Lord Green: No, absolutely not.
Afzal Khan
Q
Lord Green: No. Its funds have been cut back as part of general cuts in public funds. It does not have the people it needs and it is simply not able to do the job that I am sure it would wish to do. You only have to look, for example, at the number of people who are here illegally and are removed, which has declined very sharply in recent years.
Afzal Khan
Q
Lord Green: I think you are implying that the Bill does just that—that it is a framework Bill. I think it has to be read in conjunction with the White Paper. We have looked at that to see what the risks might be, and today we are publishing an estimate that it will lead to net foreign migration of about 430,000 a year in a few years’ time. It could even hit half a million unless serious moves are taken to reduce it. From that figure, you have to subtract roughly 50,000 a year, which is the 10-year average of British emigration. You are looking at something like 380,000 net migration quite soon, which is higher than the previous peak of 340,000. Reaching that calculation—as I said, I will send it to the Committee—has very serious political implications, but I will leave that to you. In reaching it, we have deliberately ignored the 11-month workers to whom you referred in your first question, Mr Khan. We think that is misleading, and in practice there will be circular migration that amounts to significant numbers of low-skilled workers.
Let me just explain the proposal to weaken the highly skilled department. As you probably know, the proposal is to reduce the level of skills from degree to A-level, to reduce the salary level from £30,000—even £21,000 has been mentioned—to remove the requirement to advertise a job beforehand, and so on. You would be left with pretty much free movement, because 50% of EU migrants who have come here already are in those higher-skilled categories that the Government are now talking about. The other 50% could come as the 11-month brigade.
You would be looking at something that is very close to free movement, and you would have enormously increased the scope for migration from around the world. As outlined in the White Paper, these moves will open 9 million UK jobs to worldwide competition. That is bound to have a very substantial effect, partly because employers will understandably scour the world for less expensive employees. What is more, there will be a substantial number of employees who would want to come here, because those routes will lead to settlement. Our view is that this is a very dangerous policy in terms of numbers, and therefore in terms of the public response to immigration and immigrants.
The Chair
Lord Green, the Clerk has taken careful note of your remarks about the balance of witnesses. I did not have any hand in it, and we will reflect on the issue.
Lord Green: It is not a criticism. This is life—we are the only body in the UK that makes these points.
The Chair
This final session is even shorter—we have only until 25 past 11. Will our witness kindly introduce himself?
Chai Patel: I am Chai Patel, I am the Legal Policy Director at the Joint Council for the Welfare of Immigrants.
Afzal Khan
Q
Chai Patel: No. I think to some extent that is because of failings in the Home Office and the Government, but to another it is because the issues that were exposed most clearly by Windrush are very deep-seated in immigration law and the way we conduct almost all our immigration system. I would not necessarily have expected the Government to be able to do that in the time that we have had. The problem we face is that we are moving very quickly towards a situation in which between 3 million and 4 million more people’s immigration status or leave to remain in this country will not be as clear as it once was. That is because European nationals will no longer simply be able to show a passport and have everyone immediately assume that they have the right to work, to rent, to access healthcare and to simply live their lives here.
Over a period of years, several Governments have introduced a compliant or a hostile environment where immigration checks are part of day-to-day life and where private individuals have to carry them out, which we know causes discrimination for non-EU citizens. For example in the right to rent, we know that landlords are less likely to rent to people without British passports. We know that in some situations that can cause ethnicity discrimination. We are now proposing that the status of another 3 million to 4 million people should be potentially uncertain because their passport does not mean what it once did.
As an organisation, we do not have a formal position on the continuation of free movement or on exactly what the best political solution is to these problems. We are concerned with the human rights, the procedural rights and the legal rights of all people in this country, particularly migrants. The situation we are in and the way in which the Government have approached the settlement scheme and resolving some of these issues increases those risks.
Afzal Khan
Q
Chai Patel: Absolutely. I think you have already heard evidence that, at the end of the period allowed for people to make their settlement applications, potentially hundreds of thousands of people will not have been successful in doing so. Those people will be undocumented. They will be in exactly the situation that Windrush people found themselves in. If there is no deal, that could happen much earlier because it becomes very unclear what the difference is between the rights of EU nationals who arrived during the transition period and those of EU nationals who were already here. You might start to see some of those problems occurring much more immediately.
Afzal Khan
Q
Chai Patel: At the moment, non-EU immigration law is extraordinarily complex. Supreme Court judges, Court of Appeal judges, immigration experts and immigration lawyers have all said in public that it is almost impossible for anyone to navigate, let alone for people who are expected to do so without necessarily having perfect English or legal aid. To a great extent, the reason why it is so complex is that immigration rules have been made over many years and over many Governments, and they are frequently made in response to political pressures, without very much consideration of the consequences or of the underlying evidence for making them. They just pile on top of each other and you end up with a system that does not work for anyone.
You have that in the context of a Home Office that has been underfunded for some time and which has seen real-terms cuts to its funding over the past few years. It is now about to be asked to move from a system of free movement, which was, as the Minister said, a light-touch and simple system, to one that is potentially very complex. You, as parliamentarians, are being asked not just to approve that move but to approve the Home Office taking complete control over how the new system is going to work at a time when successive Home Secretaries and Prime Ministers have failed to construct a system that works when they have had the power to do so. At this time, Parliament should not be abdicating its responsibility to scrutinise and to decide what the immigration system should look like. At the moment, from everything that we have seen, the Home Office is not capable of administering the existing system.
Afzal Khan
Q
Chai Patel: One of our recommendations is certainly that the Law Commission’s exercise of simplification should be carried out before any substantial changes are made to the position of EU nationals.
Eleanor Smith
Q
Chai Patel: We have a number of recommendations that we would make if the settlement scheme remained an application process, but we think that, by far the simplest, most cost-effective and safest thing to do is to make it a declaratory scheme immediately and for all EU nationals and all relevant individuals who are currently in the UK under the EU treaties to be granted a legal right, as of law, permanently to remain in the UK. They should then be given the opportunity, over a number of years and with no strict cut-off, to register for documents as they need them.
I understand that concern has been expressed about how to encourage people to apply if there is no cut-off. I think that people will need those documents as part of their day-to-day lives and will apply for them when they need to. It is really important that they are not at risk of becoming undocumented because they have not done so. I hesitate to suggest this because we do not agree with it, but at the moment, the penalty for failing to apply is to lose your status. I understand that there are potentially exceptional circumstances or even some good reasons that might mean that you do not lose it, but the default is that you will lose your status. It is not beyond the wit of Government, if they want to, to devise some other incentive scheme that does not involve losing immigration status.
Jack Brereton
Q
Chai Patel: I do not have any opinion on that, I am afraid. That is beyond our remit as a charity concerned with the human rights of immigrants going through the system.
Afzal Khan
Q
Chai Patel: The Bill is premature because there is no plan for what follows. Our primary concern is the Henry VIII powers given to the Home Secretary to remove people’s rights, without the new system having been clearly set out. I know that there is the White Paper, but I also know that it is contested in Cabinet, and is still subject to intense debate.
The White Paper itself raises concerns about, for example, the one-year visas, which would cause exploitation and problems with integration. It also misses the opportunity to fix many of the problems that we saw with Windrush. There is nothing to address Home Office capacity, with so many new people coming through the system, or the problems with the hostile environment, which remain. We know that it causes discrimination, and we have not seen anything from the Government to roll back those provisions, or to thoroughly review them.
Caroline Nokes
Q
Chai Patel: I think so, yes. Any kind of scheme relating to someone’s rights in respect of continuing work, changing employment or changing the sector in which they are employed will result in exploitation, because they have fewer rights to move between employers than British nationals.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Second sitting)
Afzal Khan ExcerptsTuesday 12th February 2019
(5 years, 2 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 (Manchester, Gorton) (Lab)
Q
Rosa Crawford: The TUC is very concerned that the Bill opens up a wide scope for increased exploitation and insecurity among not only European Union citizens in this country, but UK citizens abroad. To focus on the first part of your question, we are worried that the legislation, by removing EU rules on social security co-ordination, paves the way for the Government to bring in plans to restrict EU social security entitlements for EU citizens, such as jobseeker’s allowance.
We have also seen in the White Paper plans to bring in an immigration health surcharge on EU citizens. From a welfare point of view, we are very concerned that that will mean 3.8 million citizens facing increased poverty and having to pay health charges. The TUC absolutely opposes the immigration health surcharge both for EU citizens and for all migrant workers.
Also, in the context of the Brexit negotiations, it seems reckless to suggest that we will introduce restrictions on EU citizens claiming social security entitlements here in the future when we know that more than 1 million British people live in the EU, many of whom now claim pensions, or will do soon. It is expected that EU countries may well reciprocate, with restrictions on British citizens abroad claiming sickness insurance and unemployment insurance and on claiming their pensions abroad, which is obviously a huge injustice. People have paid all their lives in one country and expect to be able to claim in another. We are very worried about the increasing social insecurity and the welfare repercussions for British people abroad.
On the second half of your question, on exploitation, we have said that the Bill will not only make life harder for EU citizens and workers in this country, but have the effect of making conditions worse for all workers. We say that because, by ending EU rules on free movement, and the right to change employers freely that comes with that, the Bill also paves the way for a more restrictive work visa regime, as the Government outlined in the immigration White Paper. What we have seen of those proposals is a recipe for increasing worker vulnerability.
We know that time-limited visas of the kind the Government have said they want to introduce—specifically the 12-month time-limited visa for low-skilled workers—would increase worker vulnerability exponentially by limiting people’s legal status in a country to their employment. If workers have a limited time to move from one employer to another, we know that will be an incentive for them to stay in abusive forms of employment, because of the difficulty of getting another legal form of employment.
If workers leave an abusive employer and cannot find another, legal form of employment, they become undocumented workers and, under the terms of the Immigration Act 2016, they are committing a criminal offence by working. That means that if they are then abused in an undocumented form of employment and go to the authorities, they could face a jail term and deportation as a result of reporting abuse.
We at the TUC are absolutely opposed to those measures, because they just encourage exploitation. As I said, they make it easier for bad employers to use irregular migrants or those with question marks about their immigration status, who accept lower conditions and undercut UK workers on terms and conditions and on pay. We already see that happening in agriculture, distribution and some sections of cleaning and care. The Bill will make it easier for that exploitation to happen, which is why we are calling on MPs to oppose it.
Afzal Khan
Q
Rosa Crawford: The TUC has said that the Government should scrap all the proposals in the Bill and that we should instead continue to have the current system in place for EU workers to come here, work freely and have all the legal protections in place. For any temporary visa migration system, as I said, time-limited visas bring the inherent risks that workers will face further exploitation because their condition of employment is linked to their legal status in the country.
An important change that would mean that all workers were less at risk of exploitation would be to make sure that workers, regardless of immigration status, could enforce their employment rights. That is in line with the International Labour Organisation’s recommendations. Employment rights are human rights—it is not a crime to work and it should not be a crime to try to claim your right at work. An important step would be to roll back the provisions in the Immigration Act 2016 that criminalise undocumented working. As I said, we have grave concerns about the introduction of any temporary visa scheme for EU citizens, because it would just increase exploitation and make it easier for bad employers to commit undercutting.
Afzal Khan
Q
Vivienne Stern: Perhaps I could start with a comment on the tier 2 route? For a long period, we have had some concerns about the way that the visa regime is working for universities for non-EU nationals, particularly the compliance system, the burdens of the compliance system and the overall effect on the attractiveness of the UK as a place to come and work. The extension of that regime to European economic area nationals raises some significant challenges because of the dependence of universities on EEA workers in some areas; because of the really rather significant increase in the compliance burden that could result—although I understand that there may be opportunities to think about how that can be reduced—and because of the impact of the proposed salary threshold on universities’ ability to recruit in some occupations where it has historically been quite difficult to fill roles with UK-domiciled workers.
Professor Dame Donna Kinnair: We would add to that. We think that we, as a country, are dependent on nurses coming from overseas, so we are absolutely dependent on overseas workers. We know that the impact of the threshold would damage our profession if it were applied to it, because its emphasis is on “Agenda for Change”. The £30,000 is an arbitrary figure and we do not understand where it has come from. Most skilled nurses that come into the country from overseas are not getting that.
We know that there have been some exemptions, but the whole process is arbitrary and we think that it would impact negatively on the workforce on which we are highly reliant. The nursing workforce are one of the major planks that this Government are using to fill shortages in the nursing profession, particularly in social care. It is highly important that the unintended consequences do not apply to the profession, because otherwise we will not have the people to care for our patients.
Afzal Khan
Q
Rosa Crawford: The TUC is very concerned about the impact of the £30,000 threshold. We are concerned about it now—it applies to non-EU workers—and applying it to EU workers would have a devastating impact on many sectors. The Government estimate that 80% of EU workers would fall below the threshold. It is not only nursing and other parts of the health service, but distribution, hospitality and many parts of industry, that are heavily dependent on EU workers. There would be a really negative impact on those workers if that threshold was introduced.
The TUC is saying that, in the long term, there needs to be action on pay so that more workers receive a better settlement. The Migration Advisory Committee has suggested that this threshold would be an incentive to improve pay, but unfortunately that is not what we have seen. The pay cap has been in place for seven years, and we are only just moving out of that. The TUC is still calling for a fully funded settlement to ensure that workers are decently paid and that their wages keep up where they have fallen behind for the last seven years. We have not yet seen that.
Unfortunately, there are not enough employers in the private sector paying workers decently, so many million workers are still in insecure contracts and are not being paid a living wage. We want action on pay alongside action to ensure that the workers we need now to fill the critical shortages that Donna has talked about can come in. We need not to have the £30,000 threshold, and we need serious action on pay in the public sector and key parts of the private sector to ensure that everybody is treated decently and that migrant workers and UK workers receive decent pay for their work.
Maria Caulfield (Lewes) (Con)
Q
Professor Dame Donna Kinnair: You will have seen that the RCN has been lobbying for an increase—we lobbied long and hard on “Scrap the Cap” for nurses—but we are where we are. We have a shortage of 42,000 nurses at the moment, and it is predicted that it will rise to about 100,000 in the next 10 years. Those are people who look after our patients. We are where we are.
Of course we need to increase the domestic supply of nurses, and that includes paying them appropriately. We fully support that, and we have been lobbying on that basis. However, the people who gave evidence to the Select Committee about the Government’s plans talked about three areas: international recruitment, return to practice and retention. We know that you cannot have a nursing workforce fit for the needs of the population of this country unless you increase the domestic supply. As you will have heard, we have been lobbying up and down the country. Unless we get the right staff in the right organisations, we will also seek legislation on staffing. We know that if we do not have the right number of people, care falls, and that is damaging to our patients.
In summary, we are lobbying. We do not understand the proposal about low-skilled workers, because who in nursing is a low-skilled worker? What does that mean? The 12-month visa does not allow continuity of care, because by the time someone has got to grips with the culture of this country, they are ready to go. It is also contrary to people being able to bring their dependants into the country. Many nurses have families. Are we going to split up families? Are we asking them to leave their children while they come and provide care for the UK population?
Maria Caulfield
Q
Professor Dame Donna Kinnair: We welcome the fact that there is one system. The less complex a system is, the better it is, because people can navigate it. It has been a particular Government intention to turn to non-EU nurses, and once we knew that we were coming out of Europe, they sought to draw in nurses from outside the EU. We have concerns because we believe in ethical recruitment. We do not believe that we should be raiding countries that require their nurses, despite the risk of not increasing our domestic supply.
Afzal Khan
Q
Vivienne Stern: For the university sector this is primarily a question of access to specific sorts of skills, and competitiveness. Overall, almost a quarter of academic staff in the university sector come from outside the UK, and in some disciplines and roles the reliance is much greater. EEA nationals make up 11% of all staff in universities, and they comprise 17% of academic staff. For staff on research-only contracts, that figure is 27%. In particular subject areas the concentration of EEA nationals can be even higher, particularly in science, technology, engineering and mathematics, as well as areas such as economics, where more than 30% of academic staff come from outside the UK.
Universities require specific skills, sometimes at relatively short notice, and the pool of talent is geographically distributed in some funny way. For example, the University of Cambridge has a world-leading strength in Arctic and Antarctic research, and it requires a pool of technicians who are able to analyse certain sorts of geological data. Quite often, those teams of individuals are deployed at relatively short notice when the climate conditions are right and boats are available, and it all comes together at the last minute. A group of individuals in Italy possess those skills, and historically Cambridge has called on them, and recruited from Italy to staff up those teams when they need those skills. That does not mean that over time we could not generate our own labour force with those specific skills, but in the short term if we moved from one regime to another, would institutions simply be unable to access the specific skillsets they need for one reason or another? Would they be less able to compete effectively and perform their research because they are constrained in that regard?
Overall, our particular concern relates to staff in technician roles, 63% of whom earn below the £30,000 threshold. That is why we propose that the Government should consider a lower threshold. We would like to suggest £21,000 as the level at which the majority of staff—particularly in those technician roles—will be able to continue to come to the UK. That would be a compromise. We also suggest that for staff whose jobs fall under the shortage occupation list there should be no salary threshold. As others have argued, a salary threshold is not a good proxy for skill level.
Afzal Khan
Q
Vivienne Stern: My concern right now is the low level of take-up of that scheme. I think the last I heard was that the Department for Education estimated that something like 20% of the staff who should have gone through that process had done that, so for us right now, there is a communication effort to make sure that staff are aware of the scheme and how to apply. There were some early glitches. There was a bit of frustration about the app in the very early days, but I think those problems were pretty swiftly resolved, and I am not aware of any significant concerns about the operation of the scheme.
Jack Brereton (Stoke-on-Trent South) (Con)
Q
Rosa Crawford: I think you can take many things from the referendum result in 2016. What is clear is that we need working people to not suffer as a result of that referendum result. As I have outlined, the provisions of the Bill make it easier for bad employers to use one group of workers to undercut other groups of workers, at the cost of everybody’s rights. We want a Brexit deal that ultimately delivers ongoing protections for UK workers at EU levels of rights, as well as tariff-free, barrier-free trade, and that ensures that there is no hard border between Northern Ireland and the Republic. For us, probably the best way to achieve that at this stage would be ongoing membership of the single market and a customs union.
The Chair
We will now take evidence from Liberty and Justice. I welcome our witnesses. We have until 4 o’clock for this session. Please both introduce yourselves.
Gracie Bradley: I am Gracie Bradley, the policy and campaigns manager at Liberty.
Jodie Blackstock: I am Jodie Blackstock, the legal director at Justice.
Afzal Khan
Q
Jodie Blackstock: At Justice we have deep concerns about the potential reach of clause 4, which provides extremely broad delegated powers to the Minister of State in connection with repeal of the current free movement provisions relating to EEA nationals. Of course the provisions have to enable the repeal of those measures after we leave the EU, but it is not at all clear from the Bill what is intended to replace them. We consider that a number of changes are necessary, and we will provide separate detail on those subsequently in our written evidence—I apologise for not having that before you now, but we will provide the detail this afternoon.
First, the primary policy aims ought to be stated on the face of the Bill in primary legislation, so that Parliament has the opportunity to scrutinise those principles and amend them as appropriate. Those provisions would be to enable the accrued rights of EEA nationals who currently have settled status in this country to remain and for the transitional provisions surrounding those rights to be introduced in a clear way. Currently, the Government have proposals on both issues, and we see no reason why they could not put them on the face of the Bill. I can come back to that in more detail.
Secondly, we consider that the delegated powers set out in clause 4 should be substantially limited. The memorandum on delegated powers that the Government have provided seeks to explain that the two key aims of that clause are to deal with technical amendments to remove references that are no longer appropriate to the EU from legislation and also to protect the accrued rights of EU and EEA nationals. If that is the intended aim, those can be the powers as set out in the Bill, and we would propose that it be constrained in that way, through a provision relating to technical amendments and a power to provide consequential amendments that will give effect to accrued rights.
In our view, there are additional consequences from that relating to section 3 of the Immigration Act 1971, which provides for the immigration rules. In these circumstances, which to a certain extent are unique and will create the biggest change to immigration policy since the Maastricht treaty in 1992, we suggest that the power to make those changes ought not to be left simply to immigration rules but should be set out in the Bill, or the use of section 3 of Immigration Act to do so should be specifically constrained as an alternative to the Bill. If you would like me to go into any of those points in a bit more detail, I can do so, but I wanted to set out our primary concerns about the way the delegated power operates.
Gracie Bradley: Liberty would echo those concerns. We are really quite concerned about clause 4, and particularly the fact that the purpose of regulations under the clause may be not just in consequence of the repeal of retained EU legislation relating to free movement, but in connection with that purpose. In our view, essentially any change to the immigration system for the foreseeable future will be in connection with the end of free movement, and therefore we are delegating a huge amount of power to the Secretary of State, effectively sidelining Parliament in a really significant policy change.
Afzal Khan
Q
Gracie Bradley: The impact of the hostile environment has really been laid bare by the Windrush scandal, and I would like to set Liberty’s comments in that context. We have seen people who had a right to be here made destitute, losing their livelihoods, and potentially being unable to come back into the country that they have called their home for decades. Some people have died as a result of the stress.
That is the impact of the Windrush scandal, but of course the effects of the hostile environment are not limited to Windrush citizens; it reverberates among undocumented people more generally. Those impacts are to do with children being afraid to go to school because of data sharing between the Home Office and the Department for Education, and people, some of whom are supposed to be receiving palliative care, being charged tens of thousands of pounds for medical treatment. We have seen victims and witnesses of serious crime deterred from reporting those crimes to the police. The impact is not just on the fundamental rights of undocumented people; the impact is to warp our public services and turn our teachers and doctors into border guards.
More generally, we see an environment of suspicion towards anybody who seems visibly foreign or who is black or minority ethnic. That discriminatory effect has been evidenced by the research of the Joint Council for the Welfare of Immigrants into landlord checks. We see that landlords are less likely to rent to BAME people without a passport as opposed to white people. We have seen incredibly broad and harmful effects of the hostile environment on the rights of undocumented people, people with a right to be here, British citizens and our public services.
Our concern is that the Bill essentially hands Ministers a blank cheque to bring millions more people into that system while doing nothing to remedy the injustices that have been exposed. We recommend that the hostile environment be repealed and that vital safeguards are restored to the immigration system, such as data protection rights and legal aid, and that there is also an end to indefinite immigration detention.
Afzal Khan
Q
Gracie Bradley: It is important to say first that the 28-day time limit on immigration detention is not Liberty’s proposal. The Joint Committee on Human Rights proposed that back in 2006 or 2007. A joint inquiry by the all-party parliamentary groups on migration and on refugees, which I know some of you were involved with, also recommended a 28-day time limit on detention. Why do we think the Bill is the place to implement that time limit? Put very simply, the Bill will most likely make tens of thousands more people liable to deportation, because EEA nationals will come under the automatic deportation provisions in the UK Borders Act 2007.
We know that the Ministry of Justice, in response to a freedom of information request, said that it expects that up to 26,000 people per year could be liable to detention as EU nationals come under domestic immigration law. At the same time, a parliamentary question revealed that there has been no assessment of the impact of the Bill on the detention estate. Of course, we know what the impact of indefinite detention is on people. They tell us that it is traumatic. They tell us that the lack of a time limit in itself is traumatic, because they do not know when their detention will end.
Liberty is not alone in advocating for a time limit. The lack of a time limit has been criticised by the United Nations High Commissioner for Refugees, the Bar Council and the British Medical Association, and on Second Reading parliamentarians from across the House stood up in support of a 28-day time limit. Given that the Bill is very likely to make more people vulnerable to detention, now is absolutely the time to implement a time limit on detention for everybody and, indeed, to begin looking at taking deprivation of liberty out of the immigration system more broadly.
David Duguid
Q
Jodie Blackstock: It is not something that we at Justice specifically have an opinion on, other than to say that the arrangements that are created must ensure that the acquired rights that people currently exercise as a consequence of their movement between the UK and the EU are protected, and that the process that is decided for those individuals post exit needs to be subject to the scrutiny of Parliament and not decided simply through a delegated power without sufficient scrutiny. That is why we say the procedure ought to be encapsulated in the Bill through a requirement that such a policy must be subject to the scrutiny of Parliament.
There are two schemes that the Government have already implemented and will come to fruition once we leave: the EU settlement scheme for those who are already in this country and are requesting settlement, if they do not already have that status; and the proposal for temporary leave to remain for people coming into the country who wish to remain and work here. Given that one of those schemes is already in the immigration rules and the other is well advanced, so there must be policy for it, it seems to us entirely appropriate that the procedure should be laid before Parliament in the Bill and be subject to scrutiny, rather than simply left to a delegated power that does not provide you with the opportunity to debate the important issues concerning what preferential treatment EU nationals should be given.
Kate Green
Q
Jodie Blackstock: The memorandum suggests that Government require the ability to change policy on social security co-ordination, and that is the purpose of creating a power here. Policy change would arguably not be possible under section 8 of the withdrawal Act, so Government are intending to do something broader here. In our view, it is wholly inappropriate to be changing policy relating to really fundamental provision for people who cross borders. We are talking about pension rights, access to healthcare, maternity and paternity leave—provision that may have built up over a significant number of years while a UK national resides in another EU country. It is simply not appropriate to leave that to a policy change by way of delegated power, but it seems to us, from their memorandum, that Government are expressly intending to do that to get around the limitations in section 8.
Gracie Bradley: I do not have anything to add to that.
Afzal Khan
Q
Gracie Bradley: When it comes to data protection, many of you will be aware that the Data Protection Act 2018 includes a very broad exemption that allows a data controller to set aside somebody’s data protection rights when their data is being processed for the purposes of immigration control, essentially. Liberty notes from the White Paper that automated data processing is likely to be used increasingly in the context of enforcing the hostile environment, and Liberty has, for the last couple of years, been scrutinising what have been relatively secret bulk data-sharing agreements between the Home Office and other Departments, such as the Department for Education, and NHS Digital, as well as ad hoc data-sharing practices between individual police forces and the Home Office.
Essentially, what Liberty is concerned about is the fact that the Home Office is really quite a poor data controller, and yet automated data processing is increasingly going to be the linchpin of implementing the hostile environment. We see, in the most recent independent chief inspector of borders and immigration report, that actually the Home Office is developing a status-checking project that would essentially enable multiple controllers, such as landlords, employers, health services and law enforcement, to check a person’s immigration status in real time.
Liberty is concerned, first, that no mention was made of that project during the Data Protection Bill debates, despite Government being asked repeatedly what they wanted that exemption from data protection law for. Secondly, we are concerned, in the light of the Home Office’s track record on data protection, that this system is going to be implemented in such a way as to leave people without redress and without remedy when the Home Office makes mistakes.
Some of you will remember that, in 2012, Capita was contracted to text almost 40,000 people suspected of being in the UK illegally, telling them to leave the country. Those 40,000 texts were sent, and many people received the texts in error. Veteran anti-racism campaigners who had lawful status in the UK were sent texts telling them to go home. It is one thing to send somebody a text in 2012—I appreciate that will have been distressing for people—but it is entirely another thing for an error on someone’s record to mean that they cannot access housing, lawful work, free healthcare or education. The Data Protection Act immigration exemption stops people from being able to find out what information is held about them by a data processor, and stops them from having the right to know when information on them is shared between processors.
Our concern is that, in the context of the Home Office’s relatively poor track record on data processing, this digitised hostile environment will be enacted and people will be left without redress. Indeed, we see from the National Audit Office report on the Windrush scandal that the Home Office had been asked by the NAO and the independent chief inspector of borders and immigration to clean up its migrant refusal pool, and had resisted all requests to do so. We are concerned about the impact of error on people, but we are also concerned about the impact of being able, at the click of a button, to exclude people from essential goods and services that are necessary for the exercise of their fundamental rights. The hostile environment should be repealed, rather than entrenched using exemptions in data protection law.
You also asked me about legal aid. I do not have a huge amount to say about legal aid, except that for the most part, there is no legal aid for immigration claims. Again, we see from the Windrush scandal what happens when people do not have access to early, good-quality legal advice. There are people in the UK who are undocumented, not because they have intentionally tried to evade the rules, but because they have been unable to retain their status as a result of not being able to access good-quality legal advice—or, indeed, because they have been unable to make the necessary applications because they cannot afford to pay prohibitive application fees. Many of you will know that it costs more than £1,000 to register a child as a British citizen.
When it comes to safeguards, we would say: get rid of that exemption in the Data Protection Act—it is paragraph 4 of schedule 2—reinstate immigration legal aid, because it is a false economy not to give people access to it, and look again at your fees. It should not be the case that the Home Office is profiting from fees when people need to make applications to regularise their status in the UK, or to claim British citizenship—to which children should be entitled in any event. Those are the basic safeguards that need to be reinstated before millions more people are brought into the immigration system.
Afzal Khan
Q
Jodie Blackstock: In principle, there will be. At the moment, we have complicated reciprocal arrangements that require member states to give effect to policy schemes across borders. Without an agreement in place, we could unilaterally make a decision to honour those schemes in this jurisdiction, and that might be seen as a policy change that it is not possible to make pursuant to section 8 of the withdrawal Act. That might be a positive way of protecting the rights of individuals who have access to such schemes at the moment in the UK, or indeed the rights of UK nationals who are living abroad.
If that is the intention of the legislation, there must be—as the Delegated Powers and Regulatory Reform Committee has said in the context of the made affirmative procedure—work that has been undertaken already, and proposals that Parliament can consider and scrutinise to ensure that they protect accrued rights. There may well be a policy decision to limit those rights, and for the same reasons we think it is appropriate that Parliament gets to see those proposals. At the moment, the provisions in this Bill, as opposed to the regulations that have been submitted under section 8 of the Act, are just too broad. We propose that there should be scrutiny of those regulations rather than having an unknown power here.
Afzal Khan
Q
Gracie Bradley: Absolutely. There are many things that I would have expected the Government to do before bringing forward this Bill, not least setting out the detail of the future immigration system, so that it could be appropriately scrutinised.
The Law Commission’s proposals are another thing that we think the Government should have looked at, but they have not necessarily looked at. Although I appreciate that the Government have given themselves this very broad delegated power, through which they may be able to implement future changes to the immigration system that take those proposals into account, when it comes to policy making that affects people’s lives, livelihoods and fundamental rights, that is not the right way to make policy.
The Chair
Before I bring the Minister in, does any other colleague want to ask anything?
The Chair
Welcome Mr Fell. Would you introduce yourself?
Matthew Fell: Good afternoon. I am Matthew Fell. I am the chief policy director at the Confederation of British Industry.
Afzal Khan
Q
Matthew Fell: There are a number of areas where we think there is a challenge. Most specifically, we would be very concerned about the imposition of a salary threshold—£30,000 is most commonly talked about at the moment. When we look at the shape of the economy today, we see a number of sectors—construction, logistics, hospitality—and many regions and nations around the UK where that threshold is significantly out of kilter with median salaries. There are a number of areas where that threshold would lead to a dramatic shortage of skills and of labour availability to meet the needs of the economy today. Although you could envisage a world in which, over time, businesses and other parts of society could adapt, we are concerned about going from the situation in which we are today in a very short period, without knowing precisely the nature of the rules or of the negotiation about what we are going to jump into. That lack of time to adapt is also a source of concern.
Afzal Khan
Q
Matthew Fell: There are a number of areas. First, we fear that that could significantly lead to an increase in the rate of churn of people, which clearly creates problems for business: it impacts on productivity, if you are constantly having to get new employees up to speed, for example, it adds to recruitment costs if you constantly need to bring new people into the organisation, and it has impacts beyond business too. Thinking about societal impacts, it could undermine the integration of people into local communities, and so on.
The second bucket or basket of concerns is around the inability to then switch on to a more skilled visa route. For example, if you invest in the training and upskilling of an individual there is currently no proposed mechanism for them to transfer from a lower-skilled 12-month route to a proper skilled visa route, so there are a number of different concerns about that.
Afzal Khan
Q
Matthew Fell: I think I am right in saying, but I am happy to take a little more detail on this, that the Government have confirmed that even in the event of a no-deal scenario there would be no, or no significant, changes to the administrative burdens on employers before the proposed new immigration system came into play. Clearly, if that situation changed, the administrative burden would be a bigger headache for business.
Jack Brereton
Q
Matthew Fell: The Migration Advisory Committee looked at that heavily in terms of any potential impact on the rest of the economy, society and so on. I think the conclusion it drew was that there was no major evidence of an impact on either jobs availability or wages. I think it highlighted some impacts on public services, and a bit on house prices and so on in certain areas, but I do not think it identified any real evidence of that.
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.
Afzal Khan
Q
Matthew Fell: I do not know whether it would further increase inequality. As part of my job I travel around the country quite extensively. I think it would create huge headaches in parts of the UK, not least in respect of the time to adapt. I spend quite a lot of time in Belfast in Northern Ireland and in some of the northern regions in England, for example, where it is really quite significant and they are deeply concerned by it.
The Chair
If there are no other questions from colleagues, I will bring the Minister in next.
Afzal Khan
Q
Matthew Fell: In the piece of work that we published in summer 2018 we asked, “How do you really build confidence and align that to control?” At the time, we proposed dropping the net migration target, because we felt that continually missing it was undermining confidence in the system. We said that there could be a number of different controls, such as registration on arrival. If you are not in work, in training or self-sufficient after three months, that would be a test of whether you can stay in the country.
We looked at other examples of labour market tests. The other issues that we identified at the time were the better and more rapid use of things such as the controlling migration fund, so that in areas of high immigration where there are clear impacts on public services we could better address and mitigate those concerns. Those were the clutch of proposals that we were talking about at the time.
The Chair
If there are no further questions, I thank Mr Fell very much indeed for his evidence to the Committee.
The final session starts at 4.30pm, so I suspend the sitting.
The Chair
Our next evidence session is with Focus on Labour Exploitation. Could our witnesses both introduce yourselves, please?
Caroline Robinson: Good afternoon. I am Caroline Robinson, the chief executive of Focus on Labour Exploitation.
Meri Åhlberg: Good afternoon. I am Meri Åhlberg, research officer for Focus on Labour Exploitation.
Afzal Khan
Q
Caroline Robinson: At Focus on Labour Exploitation, we have been looking for some time at the risks that immigration control measures, in particular, pose for modern slavery. Obviously, with this Bill—as with all measures regarding Brexit—we have a new risk that a much greater proportion of workers could be undocumented if they do not register under the EU settlement scheme, or because of the confusion that Brexit provides.
We think that there are particular risks arising from measures set out in the immigration White Paper, namely the temporary and migrant worker programmes and the short-term visas discussed in that paper. Our particular concerns are about barriers to the integration of the workers, which could mean that they have limited access to their labour rights. That puts workers at real risk of not understanding their rights in the UK labour market, and at risk of exploitation. There is also the potential for things like debt bondage: if recruitment measures are taken overseas over which we do not have jurisdiction, and workers have to pay high fees in order to come to the UK—whether recruitment fees or just for work permits and travel—that could leave them open to a real risk of debt bondage.
Meri Åhlberg: There is a real risk, for instance, that the 12-month programme will mean a constant churn of vulnerable workers who are not aware of their rights and do not have the chance to build up social networks that could support them. Workers will not have recourse to public funds. Those coming here to work in precarious jobs—for instance, in the hospitality sector, in which they might be on a zero-hours contract and have 40 hours of work one week and two hours the next—will, if they have no recourse to public funds, be very vulnerable.
A lot of other specific migration policy issues make workers vulnerable. For instance, under the seasonal workers pilot, which is also in the immigration White Paper and is being brought in through secondary legislation, workers have no guaranteed hours or guaranteed earnings. If they come here to work in the agricultural sector and are on a zero-hours contract, they will not necessarily be earning enough to cover their flights or visa costs if there is a bad harvest, for instance. Those are the kinds of things that we need to think about.
Afzal Khan
Q
Caroline Robinson: We have had some positive signs from the Home Secretary, who mentioned at a hearing of the Select Committee on Home Affairs that measures would be taken to evaluate the risk of exploitation that the seasonal workers pilot presents to workers. However, we are still quite anxious about the detail and about what it will mean in practice.
We look a lot at the role of labour inspectorates in preventing modern slavery, and we have a particular concern about the limited resources of agencies such as the Gangmasters and Labour Abuse Authority, which will need to license labour providers under the seasonal workers pilot, whatever country they may come from. Understanding the legislation of the countries concerned and identifying and engaging with prospective labour providers will obviously be a heavy drain on the agency’s resources, but we have not heard that any extra resources will be provided to facilitate that role. We also welcome the Government’s intention to create a single labour inspectorate, but the detail available at this stage is very limited.
It is positive that the Home Secretary has recognised that there is a risk. We look forward to engaging on the detail of how it will be addressed.
Meri Åhlberg: It is important to recognise that within the discussion about ending free movement and moving towards temporary migration schemes, we need to include labour market enforcement, as Caroline said. The UK has one of the least resourced labour inspectorates in Europe: the International Labour Organisation recommends that there should be one labour inspector per 10,000 workers, but the UK has 0.4 per 10,000. Per worker, half as much resourcing is put into labour inspection as in Ireland. There is a real need for proactive labour market enforcement, especially as more and more migrants are brought under immigration control, given fewer rights and made more vulnerable.
Afzal Khan
Q
Meri Åhlberg: I have already mentioned a few of the features of temporary schemes that make people vulnerable to exploitation. One of the main ones is that allowing people to stay for only six or 12 months means a constant churn of workers who are not necessarily aware of their labour rights, who do not have time to build networks and so on. There are often other restrictions, such as “no recourse to public funds”, that come with temporary contracts and put people at risk of exploitation. Those are the key issues with temporary migration programmes—there is definitely a risk.
Afzal Khan
Q
Caroline Robinson: To allow businesses?
Afzal Khan
To increase fees. You have said in the past that that might lead to debt bondage, so can you elaborate on how that would happen?
Caroline Robinson: Yes, certainly. We have looked quite extensively at other temporary migration programmes around the world and previous schemes in the UK, and we certainly see a risk in relation to recruitment fees. As I mentioned earlier, there is the possibility of elevated fees and also, as Members will be aware, the definition of debt bondage is an increased fee that is disproportionate to the initial fee paid, and using that fee to coerce an individual into an exploitative working condition.
We see that as a real risk in relation to overseas recruitment, but there are also the high fees that people will have to pay for their visa and for their travel to the UK. Obviously, because we know more of the detail on the seasonal workers pilot, we know that people will be coming for a short period of time—a six-month period—and, as Meri said, on zero-hours contracts, so there is no guarantee of a high rate of pay necessarily, and with potentially quite high up-front fees. So the risk is great there.
Also, we have looked at things like bilateral labour agreements. For example, Canada and Mexico have established an agreement on agricultural workers, where clear terms are established in terms of the minimum hours that workers will have, the minimum working week and the hours that people can be guaranteed, so that there are clear terms for workers, and so workers can budget accordingly and not face the risk of a huge debt that they cannot then repay, or, as I mentioned, a debt that increases disproportionately in relation to the initial debt, which is a risk.
Meri Åhlberg: For example, in Sweden they have migration from Thailand to pick berries, and what they were finding was that people would come, and they would pay high costs for flights, and then they would pay visa costs, and then they would come to Sweden and the blueberry season would be poor and they would not be able to pick enough even to cover their flights. So they would come, work for the summer and then leave in debt.
What Sweden has done, for instance, is that there is a minimum guaranteed wage that employers in Sweden have to prove they can pay. It is a minimum of approximately £1,100 per month for these workers, to each worker that they are recruiting, to make sure that people are not coming and not earning enough to cover their visa costs or their flight costs. There are also important protections that could be put in place.
Kate Green
Q
Caroline Robinson: As I said, we work a lot on the role of the labour inspectorates, particularly, while it still exists—as I said, there is a discussion about a single labour inspectorate and the Government have committed to that—at the Gangmasters and Labour Abuse Authority’s licensing being expanded to high-risk sectors, particularly those that are likely to take on a number of short-term workers in the future. Those sectors are already high-risk and then they might have a high proportion of short-term migrant workers. We feel that there is a really strong case then for licensing those sectors—sectors discussed, such as care and construction—where there is a real risk to workers of exploitation.
We have also looked at the Agricultural Wages Board and the seasonal workers pilots, obviously in the agricultural sector. We are lucky that we still have an Agricultural Wages Board in Scotland and in Northern Ireland, but the absence of one in England and Wales is a real risk in terms of setting the standards for workers in the agriculture sector. So I think it would be useful to look at what kind of worker voice could be integrated in setting standards in the agriculture sector, again given the high risk of isolation and exploitation of workers.
Meri Åhlberg: Another important thing would be to grant people access to public funds. If people are coming here on work contracts they are paying taxes, so they are paying for their services. It seems counterintuitive to not allow people access to services they are already paying for, making them vulnerable in that process.
Caroline Robinson: I would mention again these bilateral labour agreements, to have some kind of engagement with sending categories. At the moment the Gangmasters and Labour Abuse Authority has to rapidly try to license labour providers in a range of countries outside the EEA. They have already found it quite hard within the EEA to license labour providers, understanding the different jurisdictions and engaging with workers’ possible vulnerabilities. Having a structure and engagement on the basis of labour rights with a country that sends workers to our country and ensuring labour standards are upheld offers a framework, at least, for enforcing labour rights.
Afzal Khan
Thank you Chair. Let me say, first of all, that throughout this day your chairmanship has been excellent. We have got through a lot of evidence. My final question—
Afzal Khan
Q
Meri Åhlberg: I’m sorry, the fees for the workers or fees—
Afzal Khan
Yes, for the employer. The suggestion was employers have to pay higher fees for the second year and higher even for the third.
Meri Åhlberg: I would have to think about that and get back to you. In terms of having longer than a 12-month period, I have already said that I think that would be important. The danger of these temporary migration programmes and of having temporary workers who are not integrated into UK society is that you are creating a two-tier employment system where you have migrant workers in low-wage jobs with poor protections and with fewer rights. They also do not have the right to vote and they do not have any say over the conditions or the laws governing them. Also, they are being changed every year, so they do not have a community, they do not necessarily unionise and so on. It is a dangerous system and I do not see why we would have to limit it to 12 months.
The Chair
I thank our two witnesses, who stepped in early and accommodated the Committee. Thank you very much for the time you spent with us.
Windrush Scheme
Afzal Khan Excerpts(5 years, 3 months ago)
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Sajid Javid
My hon. Friend refers to a law, which represents the will of this House, that was passed in 2007, which, I say again, the right hon. Member for Tottenham (Mr Lammy) and many of his colleagues supported, and which requires the Government to deport foreign national offenders who have committed serious offences. None of those being deported is a British citizen a member of the Windrush generation, who are exempt under section 7 of the Immigration Act 1971.
Afzal Khan (Manchester, Gorton) (Lab)
This morning, the news broke that Ms Sims had been denied help from the Windrush compensation scheme because she was not from the Caribbean. Just like Windrush, this is a result of the Government ignoring credible warnings about the impact of their policies. The National Audit Office found that the Home Office showed a surprising
“lack of curiosity about individuals who may have been affected, and who are not of Caribbean heritage.”
What steps is the Home Secretary taking to ensure that, as Martin Forde QC has recommended, officials are aware that people other than those from the Caribbean are eligible? Will he commit to widening the remit of the Windrush review and compensation scheme? Can he justify Windrush victims being defined so narrowly? Some 186 people were formally refused help from the Windrush scheme. Can he guarantee that none of them was in fact eligible?
We have heard reports that the Home Office is restarting charter flights to Jamaica. Like those of many MPs, my constituency office phone has been ringing off the hook. Some 85,000 people have signed a petition. Why does the Home Secretary consider now an appropriate time to restart these flights? Victims of this scandal have not yet received compensation. The Windrush lessons learned review has not yet reported. A full year after the scandal broke, we do not know how many people have already been detained or deported. The hostile environment remains in place.
I understand that many of the detainees have been convicted of a criminal offence, but after Windrush, the Government have not proved they have the processes in place to make sure the wrong people do not end up on this flight. Will the Home Secretary urgently bring proof to this House that none of the people on the flight is a British citizen or has any other claim to be in this country? I understand the flight is due to leave from a Royal Air Force base. Does he accept that the militarisation of deportations sets a dangerous precedent of deportation happening behind closed doors?
Sajid Javid
First, I welcome the hon. Gentleman’s tone and approach of asking sensible questions, and he deserves answer to them all.
The hon. Gentleman raised the case of Ms Willow Sims, who I heard on the radio this morning. It was the first time I had heard about the case, and I was very concerned. She said she had written to me, which I was interested to hear, and I checked this morning. We received the letter on 28 January, which might help to explain why I have not seen the letter yet. That said, the Department was aware of the case before that, because her Member of Parliament wrote to the Department—in October, I believe—and Ms Sims is now getting the help she deserves. We will look further at why she was turned down for help by the taskforce, because that should not have happened.
The hon. Gentleman then mentioned the compliant environment. I remind him and the House that what he refers to as the compliant environment, which is about taking action against those who are in the UK illegally—in other words, people who have broken the law—began with laws that were passed under a previous Labour Government in 1997, 1999, 2002 and 2008 and which many of his hon. Friends will have supported. If Labour’s policy is now to abolish all those rules, it should be clear about that.
The hon. Gentleman mentioned the compensation scheme, which I have said a bit about already. We are determined to have it in place, and I want it to be as fair and as generous as possible, but, in the meantime, the exceptional payment scheme has begun. I set out exactly how that would work in a policy paper published and made available to the House at the end of last year.
The hon. Gentleman mentioned foreign national offenders. I want to make it very clear that the flight in question, assuming he is talking about the same flight as the right hon. Member for Tottenham, is to Jamaica and that everyone on it who is being deported is a foreign national offender from Jamaica. All of them have been convicted of serious crimes, such as rape, murder, firearms offences and drug trafficking, and we are required by law, quite correctly, to deport anyone with such a serious conviction. This law applies universally to all foreign national offenders.
The hon. Gentleman should know that most liberal democracies around the world have similar laws in place. British offenders in foreign states are often deported back to the UK, including from Jamaica, which has in the past deported British nationals who have committed serious offences back to the UK.