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

Afzal Khan Excerpts
Alison McGovern Portrait Alison McGovern
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I accept what the Minister says, and I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 15

Settled status

‘(1) Any person who has their right of free movement removed by the provisions contained in this Act has the right of settled status in the United Kingdom if that person —

(a) is an EEA or Swiss national;

(b) is a family member of an EEA or Swiss national or person with derived rights;

(c) is resident in the United Kingdom on or prior to 31 December 2020.

(2) Any person who is entitled to settle status under subsection 1 has the same protection against expulsion as defined in Article 28 of Directive 2004/38/EC of the European Parliament and Council.

(3) The Secretary of State must ensure that any person entitled to settle status under subsection 1 receives proof of that status via a system of registration.

(4) The Secretary of State must issue a paper certificate confirming settled status to any person registered for settled status under this section.

(5) No fee may be charged for applications to register for settled status under this section.

(6) Any person who has acquired settled status under the provisions of subsection 1 is entitled to—

(a) remain in the United Kingdom indefinitely;

(b) apply for British citizenship;

(c) work in the United Kingdom;

(d) use the National Health Service;

(e) enrol in all educational courses in the United Kingdom;

(f) access all benefits and pensions, if they meet the eligibility requirements.

(7) A person’s right to use the National Health Service (d), enrol in educational courses (e) and access all benefits and pensions (f) under subsection (6), is the same as those for a British national.

(8) Any person who is entitled to settled status under subsection (1) loses their settled status only

(a) if they are absent from the United Kingdom for a period exceeding five continuous years after 31 December 2021 or

(b) if the criteria for expulsion as set out in Article 28 of Directive 2004/38/EC of the European Parliament and Council applies to them.

(9) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(10) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’—(Afzal Khan.)

Brought up, and read the First time.

Afzal Khan Portrait Afzal Khan (Manchester, Gorton) (Lab)
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I beg to move, That the clause be read a Second time.

None Portrait The Chair
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With this it will be convenient to discuss the following:

New clause 16—Rights of family members

‘(1) Family members of any person (“P”) granted settled status under the provisions of clause [Settled status] are entitled to settled status in the United Kingdom after 31 December 2020 if —

(a) the family member’s relationship with “P” began before 31 December 2020; and

(b) the family member is still in a relationship with “P” when the family member applies for settled status.

(2) Any family member of any person (“P”) granted settled status under the provisions of clause [Settled status] are eligible for a family visa to come and live in the United Kingdom if that relationship began after 31 December 2020

(3) Any children born in the United Kingdom to a person granted settled status under the provisions of clause [Settled status] is a British citizen, whether the child was born before or after that person being granted settled status.

(4) Any family member who is entitled to settled status under subsection (1) loses their eligibility for settled status if they are absent from the United Kingdom for a period exceeding five continuous years after the date on which their settled status was granted.

(5) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(6) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’

This new clause is consequential on NC15.

New clause 17—Settled status: further provisions

‘(1) The Secretary of State must ensure that no EEA or Swiss national, or family member of an EEA or Swiss national or a person with derived rights, is denied settled status in the United Kingdom on account of their non-exercise of European Union treaty rights or a removal decision made as a result of their non-exercise of European Union treaty rights.

(2) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.’

New clause 18—Right to family life

‘(1) Article 8 of Schedule 1 of the Human Rights Act 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted settled status in the United Kingdom.

(2) Article 8 of Schedule 1 of the Human Rights Act 1998 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted a work visa under the provisions of clause [Work visas for EEA and Swiss nationals].’

This amendment is consequential on NC21

New clause 33—No time limit for applicants for settled or pre-settled status

‘(1) No time limit shall be placed on the right of EEA and Swiss nationals to apply for settled or pre-settled status in the United Kingdom.

(2) No EEA or Swiss national can be removed from the United Kingdom under the provisions of the Immigration Act 1971 after exit day if that person meets the requirements for settled or pre-settled status under appendix EU to the Immigration Rules.

(3) In this section, “exit day” has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018.’

This new clause would ensure that there is no time limit on applicants to apply for settled or pre-settled status and prevent EEA nationals who had not yet been granted this status from being removed.

New clause 35—Documented proof of settled or pre-settled status

‘Any person granted settled or pre-settled status under appendix EU of the Immigration Rules must be provided with a physical document confirming and evidencing that status within 28 days of that status being granted.’

This new clause would ensure that all EEA and Swiss nationals granted settled or pre-settled status must be provided with physical proof confirming their status.

New clause 47—Settled status

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to EEA and Swiss nationals, family members of EEA and Swiss nationals, and family members who have retained the right of residence by virtue of a relationship with an EEA or Swiss national and meet any one of the following conditions—

(a) they have a documented right of permanent residence;

(b) they can evidence indefinite leave to enter or remain;

(c) they have completed a continuous qualifying period of five years in any (or any combination) of those categories.

(3) This section also applies to—

(a) EEA and Swiss nationals who have ceased activity, and

(b) family members of EEA and Swiss nationals who have ceased activity and who have indefinite leave to remain under subsection (3)(a), providing the relationship existed at the point the EEA and Swiss national became a person who has ceased activity.

(4) This section also applies to family members of an EEA or Swiss national who has died where—

(a) the EEA or Swiss national was a resident in the UK as a worker or self-employed person at the time of their death;

(b) the EEA or Swiss national was resident in the UK for a continuous qualifying period of at least two years before dying, or the death was the result of an accident at work or an occupational disease; and

(c) the family member was resident in the UK with the relevant EEA or Swiss national immediately before their death.

(5) This section also applies to (a) a child under the age of 21 years of an EEA or Swiss national or (b) a child under 21 of the spouse or civil partner of an EEA or Swiss national where the spouse or civil partner was the durable partner of the EEA or Swiss national before the specified date, the partnership remained durable at the specified date, and the EEA or Swiss national has settled status under this section.

(6) The Secretary of State must, by way of regulations, make provision for EEA or Swiss nationals to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain EEA and Swiss nationals, and family members, have settled status by operation of law, and make clear what settled status entails.

New clause 48—Settled status: relationships with British citizens

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to a family member of a qualifying British citizen and a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and the person has a documented right of permanent residence.

(3) This section also applies to a family member of a qualifying British citizen and to a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen and there is valid evidence of their indefinite leave to enter or remain.

(4) This section also applies to a person who meets the following criteria—

(a) they are a family member of a qualifying British citizen or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen;

(b) the applicant has completed a continuous qualifying period of five years either (or any combination) of those categories; and

(c) the applicant was, for any period of residence as a family member of a qualifying British citizen relied upon under subsection4(b), in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6).

(5) This section also applies to a person who meets the following criteria—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); and

(b) the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has settled status.

(6) The Secretary of State must, by way of regulations, make provision for persons who qualify for settled status by virtue of this section to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen (subject to subsection (9)); and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain family members of UK citizens have settled status by operation of law, and make clear what settled status entails.

New clause 49—Limited leave to remain—

‘(1) A person to whom this section applies, has leave to enter and remain until 30 March 2024, or until such time as the person has settled status.

(2) This section applies when—

(a) a person is an EEA or Swiss national, a family member of an EEA or Swiss national or a family member who has retained the right of residence by virtue of a relationship with an EEA or Swiss national; and

(b) the applicant is not eligible for settled status because they have completed a continuous qualifying period of less than five years.

(3) This section applies when—

(a) a person is a family member of a qualifying British citizen and is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6) or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and

(b) the applicant is not eligible for settled status solely because they have completed a continuous qualifying period of less than five years.

(4) This section applies when—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date);

(b) is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has been or is being granted limited leave to remain under this section.

(5) The Secretary of State must, by way of regulations, make provision for persons who qualify for leave to remain by virtue of this section to secure documentary evidence of their leave, without charge.

(6) A person with limited leave to enter or remain in the United Kingdom has the same rights and entitlements as a UK citizen.’

Afzal Khan Portrait Afzal Khan
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My hon. Friend the Member for Sheffield Central will speak to new clause 15.

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Caroline Nokes Portrait Caroline Nokes
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From the demonstrations that I have had of the digital right-to-work check, and the work that I have done with the Landlords Consultative Panel surrounding the digital right to rent checks, we have seen a very simple and straightforward procedure where the individual can send a time-limited link to a prospective employer that does not require them to do a great deal of research to find digital status; it is there at the click of a mouse button. However, I am listening to the views put to me by the Committee, and will reflect on them over the next few weeks.

As I said, the new digital capability forms part of moving the UK’s immigration system to digital by default, and is a simpler, safer and more convenient system. The proposed new clause would be a step backwards in simplifying the current system. I therefore request that the hon. Member for Manchester, Gorton withdraw the new clause.

Afzal Khan Portrait Afzal Khan
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We wish to press new clause 15 to a vote.

Question put, That the clause be read a Second time.

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I very much hope that the Immigration Minister will be able to give firmer assurances to people who have suffered such injustice at the hands of that American company. That might have happened some years ago, but the issue remains very live for those individuals. Members of the Committee might be aware that the issue was covered again on “News at Ten” this week. It is an extremely painful story that does not reflect well on the education provided in this country. I am sure that the Minister will agree that at a time when it is important for us to be an attractive destination to international students, this is an injustice that the Government will want to do everything they can to put right, and as quickly as possible. I look forward to her response.
Afzal Khan Portrait Afzal Khan
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I strongly agree with the new clause. I have been involved in campaigning on the TOEIC test issue. It is a burning injustice that is long overdue for resolution by the Home Office. Thousands of innocent students have spent years trying to clear their names. In Committee, we have discussed the terrible consequences of the “hostile environment”, and those all rained down on the students. I hoped that the issue would be resolved long before now, given that the scandal first broke five years ago. Given that the legal limbo continues, we support the new clause as a vehicle to compel Ministers to resolve it.

Caroline Nokes Portrait Caroline Nokes
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I thank the hon. Member for Stretford and Urmston for tabling the new clause on behalf of the right hon. Member for East Ham. The new clause relates to the use of certificates to evidence knowledge of English. It raises an important issue, and I would like to explain the Government’s response to widespread abuse of English language testing facilities, which came to light in 2014.

The scale of the fraud—there is no doubt it was a fraud—is illustrated by the fact that so far more than 20 people have received criminal convictions for their role in facilitating the deception, and sentences totalling more than 60 years have been handed down. Further criminal trials are ongoing. There was also a strong link to wider abuse of the student visa route. The majority of individuals linked to the fraud were sponsored by private colleges rather than universities, many of whom the Home Office had significant concerns about well before “Panorama” uncovered the specific fraud. Indeed, 400 colleges who had sponsored students linked to the fraud had already had their licences revoked prior to 2014.

The Educational Testing Service had its licence to provide tests within the UK suspended in early February 2014 and was removed from the immigration rules on 1 July 2014. Approximately 20% of the tests taken in the UK were provided via ETS prior to its suspension.

During 2014, ETS systematically analysed all the TOEIC tests administered in the UK dating back to 2011 and classified them as either questionable or invalid. ETS categorised results as questionable where it had significant concerns about the test centres and sessions where they had been obtained.

We have always recognised that it was possible that a small number of students who took legitimate tests could have received a questionable result. That is why we ensured that those people were given the chance to resit a test or attend an interview before any action was taken against them. ETS categorised results as invalid only where the same voice was matched to two or more tests taken in different names, indicating that deception was likely to have been used.

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Stuart C McDonald Portrait Stuart C. McDonald
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Let me say at the outset that I am stepping somewhat outside my comfort zone in discussing automated data checks, so I am grateful for the assistance provided by the Immigration Law Practitioners Association and the Open Rights Group.

The settled status scheme relies heavily on automatic data checks. Input of a national insurance number triggers the automatic transfer of certain data from HMRC and the DWP to the Home Office. That data is subjected to algorithmic machine analysis according to a Home Office business logic, details of which have not been made public. Result outputs of pass, partial pass and fail are issued to a Home Office caseworker. Once the output is received, the raw data apparently disappears. Applicants who pass the data check are deemed to have fulfilled the residence requirement for the purposes of settled status. Applicants who do not pass are invited by caseworkers to upload documents for manual checking. Applicants who cannot evidence five years’ continuous residence generally receive pre-settled status.

Campaign organisations, including ILPA and the Open Rights Group, rightly believe that the Home Office has three specific legal duties—to give reasons for data check outcomes, to ensure that its caseworkers have meaningful oversight of the checks, and to provide public information about the scheme. The new clauses identify actions that the Home Office should take to comply with those three duties. They seek more information about the data checks and they would increase transparency.

Let me briefly take each of the three duties in turn. The first is the duty to give reasons for the outcome of a data check. The Home Office is under a common law duty to give reasons for its decisions to grant or refuse settled status. The data checks are a mandatory step in the scheme and they are integral to decision making. The duty to give reasons therefore includes a duty to explain why the data checks gave the result they did. Reasons should detail what data was analysed and how the business logic was applied. That information would enable applicants to appreciate whether decisions were open to challenge for irrationality or were made on the basis of inaccurate information.

If the Home Office accepts that it has a duty to give reasons, at least in some cases, how will it approach the need to retain records to supply such reasons? What data about applicants is retained by the Home Office as a result of the data checks? For what reason, and for how long, is that data retained? Which persons does the Home Office envisage will have a genuine business need to see that data?

The second duty is the duty to inform the public about the logic of the data checks. The EU General Data Protection Regulation of 2018 requires the Home Office to process data in a transparent manner. It would be consistent with such duties of transparency and openness if the Home Office provided meaningful public information about its business logic that enabled applicants to understand how it will apply in their case. Will the Home Office provide full details of, or sufficient information about, its business logic to allow its application to all types of individuals to be understood and to allow for independent review? What steps is the Home Office taking to limit and rectify business logic operational errors?

The third duty is the duty to exercise supervisory control over data checks. Making decisions by relying on output from automated data checks without scrutinising these is likely to constitute unlawful delegation of powers. To prevent this, a manual check for system errors should be conducted when applicants challenge refusal of settled status.

Proper oversight, safeguards and transparency are essential when dealing with complex decisions and people in vulnerable situations. It is important for EU nationals to know whether they are eligible for settled status, and if they are not eligible, the future date on which they are likely to become eligible. At the outcome of the data check, the Home Office should inform non-passing applicants which years the checks accepted covered, and which not. This would also improve system efficiency by reducing unnecessary challenges.

Some final questions: on the basis that residence is not contingent on income or contribution, why does it appear that different weighting is applied to data from the Department for Work and Pensions and from HMRC? Why is HMRC requested to provide data first, and not DWP? Will the Home Office add functionality in the scheme to enable applicants to easily request and obtain the information that HMRC and/or DWP have supplied about them? What steps is the Home Office taking to address the particular challenges faced by vulnerable groups such as children in care, persons in abusive or coercive relationships, victims of labour exploitation and trafficking and people who cannot provide documentary evidence, notably children, pensioners, non-working dependants, homeless persons, casual workers and victims of domestic abuse?

Afzal Khan Portrait Afzal Khan
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We support these amendments. I make two brief comments. First, the EU settlement scheme will entail an enormous amount of data sharing between the Home Office and other Departments. It is right that the terms of this data sharing should be transparent. Secondly, the possibility of EU citizens’ data being passed on by the Home Office has understandably caused concern among those citizens. We do not want to create any barriers to EU citizens applying for settled status. Getting a high take-up rate is already going to be extremely difficult. Providing for explicit consent for data to be shared or reused would be a sensible limit on Government powers.

Caroline Nokes Portrait Caroline Nokes
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I am grateful to the hon. Members for their new clauses 24 to 29 and 31. Given the similar effects of some of these new clauses, I will consider new clauses 24 to 28 and 31 together before speaking to new clause 29 separately.

These clauses cover a broad range of issues, including the gathering and using of data and matters relating to the automated residency checks under the EU settlement scheme. As I have said previously, securing the rights of citizens has always been our priority and we have delivered on this commitment. The draft withdrawal agreement published on 14 November 2018 guarantees the rights of EU citizens and their family members living in the UK, and those of UK nationals living in the EU.

The basis of the withdrawal agreement aligns closely to that of existing free movement rules with respect to when a person becomes a permanent resident and, in the case of the EU settlement scheme, acquires settled status. Significantly, the withdrawal agreement states that this assessment should be based not only on length of residence but on the fact that a person is exercising EU treaty rights for the whole qualifying period. We have, however, gone further than this and are being more generous to all EU citizens in the UK and to those who arrived during the implementation period. We do not test whether a person is exercising treaty rights—for example whether they are in work, studying or have comprehensive sickness insurance. Eligibility is based on residence alone, subject to criminality and security checks.

As part of the application process we will, where an applicant provides a national insurance number, conduct an automated check of residence based on tax and certain benefit records from HMRC and the DWP. We know that most EU citizens will have had some interaction with these departments and that this could demonstrate an applicant’s residence, either for the whole five-year period to qualify for settlement, or in part. While it is optional for an applicant to use the automated checks to prove their period of residency, in the test phases most have done so.

To date, 80% of the decisions made have been on the basis of this data alone. Where data exists, the automated checks replace the need for the applicant to submit any other form of evidence. The automated checks happen in real time as the application is completed, and the applicant is informed whether there is enough data to qualify for either settled or pre-settled status. Feedback from the three trial phases to date shows that people overwhelmingly like the simplicity of having their residence proved for them by these checks. The applicant is immediately informed if they need to provide additional documents and prompted to provide such documentation before completing their application.

In such instances, we will accept a range of documents as evidence, and they can be submitted digitally as part of the online application process. Where the applicant accepts the result of the automated check, no further evidence is required, and they will, subject to identity, security and criminality checks, be granted either settled or pre-settled status. The rules for assessing continuous residence are already set out in the immigration rules. The automated checks simply apply those principles to the data provided by HMRC and the DWP. New clauses 26 and 28, although well intentioned, are therefore unnecessary.

I understand the sentiment behind new clauses 24, 25 and 27, on publishing details of the automated residency checks in the scheme, as well as our memorandum of understanding with HMRC and the DWP. We will of course be completely transparent on how those checks work, as it is to everyone’s benefit for us to do so. I confirm that we will publish the MOU before the scheme is fully launched. We will also publish further materials, including more guidance on why automated checks may not return the expected data. The EU settlement scheme is still in the test phase, and it is important that we continue to amend our processes and design as we progress through the phased roll-out. I hope that offers reassurance to hon. Members.

On new clause 31, it may be helpful if I explain the different stages of the application process. When an applicant receives a wholly or partially unsuccessful result from the automated residency check, they are still in the middle of the application process and they have completed only some of the online form. They have therefore not yet submitted an application. Informing an applicant of why data has not matched is likely to increase the risk of fraud and identity abuse. The new clause would change the focus of the scheme from granting status to investigating the data quality of employers or of the DWP and HMRC. We consider that a distraction that would cause unnecessary delays for applicants.

I am sure all hon. Members on this Committee share my desire to keep the application process simple and quick in providing results. For the reasons I have given, the new clause is not consistent with those aims. In most cases, it would be far simpler and more straightforward for applicants to submit other evidence to prove residence, rather than seeking to resolve why data has not matched. Of course, the applicant can take up that issue with HMRC or the DWP if they wish. It is already the case that applicants, like anyone else, can ask Government Departments what data is held about them and get incorrect information rectified, as per article 16 of the general data protection regulation.

Our guidance includes a suggested list of documents that could be provided as additional evidence. Examples include bank statements, a letter from a general practitioner, and certificates from school, college, university or an accredited educational or training organisation. I assure hon. Members that we will continue to work to improve the match rates of the automated checks. The test phase gives us the opportunity to test the EU settlement scheme and to make improvements to the process.

New clause 29 seeks to prevent information from those who apply to the EU settlement scheme from being passed to immigration enforcement. Let me confirm that we fully comply with all statutory responsibilities when processing data. The ways in which this information may be processed are set out in the Home Office’s “Borders, immigration and citizenship: privacy information notice”, which is available on gov.uk. Decisions on whether information should be shared with immigration enforcement are made on a case-by-case basis. It is important that the Home Office uses data in ways that are compatible with the purpose for which it is collected—for example, to assist future citizenship and passport applications and, if needs be, to combat immigration offences.

To conclude, I thank hon. Members for raising these important issues, but I hope the assurances I have provided will lead them not to press their new clauses.

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Stuart C McDonald Portrait Stuart C. McDonald
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I beg to move, That the clause be read a Second time.

I will be very short, because this new clause is essentially tied up with the group we have just debated. Because the automated checks involve information passing to DWP and HMRC, the role of the independent chief inspector of borders and immigration should be extended so that they have the power to look under the bonnet, as it were, of both to see what is happening and to ensure that the process is running smoothly and appropriately. That is the new clause in a nutshell. I look forward to the Minister’s response.

Afzal Khan Portrait Afzal Khan
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This is a sensible amendment. The independent chief inspector of borders and immigration plays a vital role in inspecting and reporting on Home Office activities. Where the EU settlement scheme overlaps with other Departments, it is important that the inspector has the remit to inspect those. There is some ambiguity about the oversight of the EU settlement scheme if there is no deal. The withdrawal agreement makes it clear that if there is a deal, there will be an independent monitoring authority established to oversee the scheme.

The Minister, in her letter to me on 31 January, set out that if there is no deal, the independent chief inspector of borders and immigration will fulfil that function. Will they get any additional funding to carry it out? Will the Minister expand their remit to cover other Departments, to make sure the inspections are not limited in scope?

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for new clause 30. However, it is unnecessary. The UK Borders Act 2007 allows the independent chief inspector to inspect the efficiency and effectiveness of services provided by any person acting in relation to the discharge of immigration, nationality, asylum and customs functions. The EU settlement scheme is primarily an immigration function. Therefore, the independent chief inspector of borders and immigration already has the powers to inspect Government Departments involved in the EU settlement scheme application process, and that includes activities undertaken by the Department for Work and Pensions and Her Majesty’s Revenue and Customs in support of the EU settlement scheme application process. I therefore request the hon. Gentleman to withdraw the new clause.

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Stuart C McDonald Portrait Stuart C. McDonald
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The new clauses highlight in different ways the concern over significant increases in costs relating to the use of the migration system. Scrapping the settled status application fee was very welcome. New clause 32 would simply enshrine that in law and ensure that any replacement scheme did not attract a fee. That territory has largely been covered by the hon. Member for Sheffield Central earlier, and I will not repeat what he said.

Will the Minister confirm that there will be no fee for seeking an administrative review of any refusal of settled status? What assessments have been made of the costs of future centres that people are required to attend if they need help to scan documents, for example?

New clause 39 allows for a debate on the skills charge of £1,000 for an employee for 12 months and £500 for every subsequent six months. This is a significant tax on employing a worker from overseas. It is not a subtle tax and seems to be based on the false premise that firms that recruit from overseas are the ones that fail to invest in training at home. That is not the case. Comparatively few businesses recruit from outside the EEA currently. Are we really going to impose a significant levy on many thousands of additional businesses, simply because it is proving impossible for them to recruit locally?

Finally, new clause 45 concerns an issue that I have raised with the Minister on a number of occasions and that I feel strongly about: the system of charging people who are entitled to British citizenship by registration, but who are struggling to meet the exorbitant fees, which have escalated to over £1,000. If they are entitled to register as British, that would give many EEA nationals a more secure status than settled status. It is important to emphasise that when Parliament changed the rules on nationality so that birth in the UK was no longer enough to secure British citizenship, it was careful to seek to protect those who would not qualify automatically, but for whom the UK was genuinely home. The debates from the British Nationality Act 1981 show that Parliament envisaged a straightforward automatic grant if certain criteria were met. The fee at that time was just £35. We are not asking for a return to that level, but simply for a level that reflects the financial cost to the Home Office, which is in the region of £300,000, although I do not have the exact figure to hand.

An early-day motion on this topic achieved extensive cross-party support, as did a Backbench Business debate, which I believe happened last year. Again, I ask the Minister to simply listen to colleagues from both sides of the House. We are talking about people who are entitled in law to British citizenship, and they should not be prevented from obtaining that citizenship merely by an exorbitant fee. The Home Secretary himself recognised that it was a heck of a lot of money to be charging children, so I hope the Home Office will stop charging that sort of sum.

Afzal Khan Portrait Afzal Khan
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We support all these new clauses. I will speak briefly on new clause 38, which is in my name.

New clause 38 has three distinct provisions. The first would ensure that EEA and Swiss nationals applying for a visa are not charged above the cost price for that visa. As with many of our amendments, we would prefer that this apply to all migrants, but the scope of the Bill required us to narrow the new clause. The Home Office makes a profit of up to 800% on immigration applications from families, many of whom will not be well off. These applications will often be turned down on technicalities, forcing families to apply and pay again. As EEA nationals join migrants from the rest of the world coming into the UK under work visas, the risk of debt bondage increases. If workers are required to pay high fees for work visas, they will be vulnerable to exploitation and may be left working to pay off debts to recruiters.

The independent chief inspector of borders and immigration has completed an inspection of policies and practices relating to charging and fees. According to his website, he sent the report to the Home Office on 24 January. It would have been helpful to have it in preparation for this discussion. Can the Minister tell us when her Department will publish the report?

The second part of the new clause stipulates that no child with entitlement to register for British citizenship should be required to pay a fee. The principle is that those children, given their entitlement to British citizenship, will not be required to pay fees to realise that entitlement. This was the intention of the British Nationality Act 1981, which ended the principle that being born in the UK in itself makes someone British, when it gave no discretion to the Secretary of State, other than the formal role of registering the citizenship of any person with the entitlement.

The third part of the new clause would require that anyone naturalising as a British citizen should not pay above cost price. It is important to keep the questions of immigration and nationality separate, and to keep entitlement and naturalisation separate as well, despite the Government’s attempt to blur that distinction.

The fees are now £1,012 for children and £1,206 for adults. That is an enormous amount, and it disproportionately affects BME people and children under local authority care. The effect of being unable to pay these fees is that British people are subject to the hostile environment, including detention and temporary deportation, which is wholly unjust.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, for Paisley and Renfrewshire North and for Manchester, Gorton for having tabled new clauses 32, 38, 39 and 45.

It may be helpful to provide some background on this issue. Fees for border, immigration and citizenship products and services have been charged for a number of years, and they play a vital role in our country’s ability to run a sustainable system that minimises the burden on taxpayers. Each year, income from fees charged contributes enormously towards the running of our border, immigration and citizenship system. The charging framework for visa and immigration services delivered £1.35 billion in income in the last financial year. It is therefore true to say that fees paid by users play an absolutely critical role in this country’s ability to run an effective and sustainable system, and as I am sure members of the public rightly expect, to minimise the burden on UK taxpayers.

I also want to explain from the outset that we already have a legislative framework in place that governs fees. Fees are set and approved by Parliament through fees statutory instruments made under powers in the Immigration Act 2014. As hon. Members will be aware, the Prime Minister publicly confirmed that

“when we roll out the scheme in full on 30 March, the Government will waive the application fee so that there is no financial barrier for any EU nationals who wish to stay”—[Official Report, 21 January 2019; Vol. 653, c. 27.]

We will be amending existing fees legislation to implement that decision.

Outside of applications made under the EU settlement scheme, immigration and nationality fees legislation has always provided for some limited exceptions for paying application fees for limited and indefinite leave to remain. However, those exceptions are limited to specific circumstances, such as for those seeking asylum or fleeing domestic abuse, or where the requirement to pay the fee would lead to a breach of the European convention on human rights. Fee exceptions do not extend to applications made by individuals who are seeking to register or naturalise as a British citizen. That is because becoming a citizen is discretionary and not necessary to enable individuals to live, study and work in the UK, or to be eligible to benefit from appropriate services. Other exemptions are provided by separate regulations governing the immigration health surcharge.

To make provisions that are specific to certain nationalities as part of this Bill would be unfair to all users of the border, immigration and citizenship system.

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Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

New clause 51 relates to refugee family reunions. Again, I have encountered a problem with the scope of the Bill, as my new clause would extend the scope of refugee family reunion rules to EEA and Swiss nationals. That would obviously be a fairly rare occurrence; nevertheless, I think some of these amendments and new clauses would establish a principle. As I said to the Immigration Minister not long ago, if it gives rise to inequalities and problems, the answer is for the Government to equalise the situation by raising the standards in relation to non-EEA nationals who are also refugees.

Due to the restrictive rules about who is eligible, many people are not allowed to reunite under family reunion rules. Currently, the UK immigration rules state that

“adult refugees in the UK can be joined via family reunion by their spouse/partner and their dependent children who are under the age of 18.”

Those restrictions mean, for example, that parents are not automatically able to bring their children who have turned 18 to the UK, even if the child is still dependent on them and has not yet married or formed their own family. While the family reunion guidance allows some cases outside the rules to be granted in exceptional circumstances, in reality that rarely happens.

Furthermore, unlike adult refugees, children who are in the UK alone and have refugee status have no right to be reunited with even their closest family members. Again, in this regard the UK is an outlier. These are children who have often endured hardship and trauma and have been recognised by the Government as having the right to stay in the UK. They now find themselves alone in an unfamiliar country and having to navigate the immigration system themselves.

The Government argue that granting refugee children the right to sponsor family members to come to the UK would be a pull factor and incentivise or force more children to make dangerous journeys to the UK. However, there is no evidence to support that claim, and in every other EU member state refugee children can sponsor close relatives to join them.

In the 12 months before September 2018, for instance, 811 separated children were granted asylum in the UK, more than a quarter of whom had fled Eritrea. These children have been recognised by the Government as being in need of international protection, where it is not safe for them to be returned to their home country. Where possible, and where it is in their best interest, children should be able to be with their parents. Granting separated children family reunion rights would allow that to happen. That, in short, is what the new clause seeks to put us on the road to achieving.

The other point I want to make is that Parliament of course debated all this and heard all the Government’s arguments during the Second Reading debate on the Refugees (Family Reunion) (No. 2) Bill, promoted by my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil). Considerable effort was made to ensure that sufficient Members would be present at a Friday sitting to debate that private Member’s Bill. There was a vote and there was overwhelming support for its Second Reading. There is growing frustration about the delay in bringing forward the money resolution to enable that Bill to go to the next stage—Committee. I would therefore like the Minister to explain what is happening and when we will see the Bill get to Committee, because we are running out of time and it would be outrageous if all that good work was stymied by Government use of procedures.

Afzal Khan Portrait Afzal Khan
- Hansard - -

We support this new clause. I spoke in the Second Reading debate on the private Member’s Bill that would have implemented these changes. I commend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for once again bringing this issue to our attention through this Bill.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, along with the hon. Member for Paisley and Renfrewshire North, for raising, through new clause 51, the important issue of refugees’ rights to family reunion.

The new clause is designed to allow EEA and Swiss national refugees, including those who are nationals of EEA countries that are not part of the EU, to sponsor certain family members to join them in the UK. I spoke last week about the inadmissibility of asylum claims from the EU and about the Spanish protocol and do not intend to repeat today what I said then. It is the Government’s view, which I hope all members of the Committee share, that all Swiss and EEA nationals are from safe countries and are highly unlikely to suffer a well-founded fear of persecution or serious harm there, save in very exceptional circumstances. For those reasons and because we do not foresee a change in these circumstances, we intend to continue our policy on the inadmissibility of asylum claims from EU nationals, as well as treating claims from Swiss and EEA nationals as clearly unfounded, post EU exit.

I hope that hon. Members can see that treating asylum seekers from Switzerland and the EEA differently from those from the rest of the world on the grounds of their nationality would be illogical and discriminatory. It would be unlikely to comply with our equalities obligations and would offer a clear avenue of challenge on human rights grounds. I appreciate that that may not have been the intention behind the new clause, but it would be its effect. In any event, in a deal scenario, which remains the Government’s priority, we will already be providing family reunification rights. New clause 51 is therefore unnecessary to secure the rights of EEA and Swiss nationals to sponsor their family members.

I know that hon. Members are keen to address refugee family reunion more broadly, and I am conscious that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked a question about the private Member’s Bill promoted by the hon. Member for Na h-Eileanan an Iar. Of course, it is the usual channels that decide money resolutions. That is entirely outside my hands, but I can comment on the Government’s family reunion policy. That provides a safe and legal route to bring families together. It allows adult refugees who are granted protection in the UK to sponsor a partner and children under 18 to join them, if they formed part of the family unit before the sponsor fled their country. Under that policy, we have granted visas to more than 26,000 partners and children of those granted protection in the UK in the past five years; that is more than 5,000 people a year.

Furthermore, our family reunion policy offers clear discretion to grant leave outside the immigration rules. That caters for children over 18 where there are exceptional circumstances or compassionate factors—for example, where they would be left in a conflict zone or a dangerous situation.

The types of family member that the new clause is aimed at can apply under alternative routes. Under the immigration rules, adult refugees can sponsor adult dependent relatives. That includes parents, grandparents, children over 18 and siblings over 18 living overseas where, because of age, illness or disability, the person requires long-term personal care that can be provided only by their sponsor in the UK, and that will be without recourse to public funds.

Moreover, there are separate provisions in the rules to allow extended family who are adult refugees in the UK to sponsor children to come here where there are serious and compelling family or other considerations. That is an important measure, as it enables children to join family members in the UK through safe and legal means.

It is imperative that we think carefully about this issue. Adopting new clause 51 could significantly increase the number of people who could qualify to come here, not just from conflict regions, and irrespective of whether they needed international protection. That would risk reducing our capacity to assist the most vulnerable refugees.

We must also consider community and local authority capacity. I understand that this is a complex and emotive issue, which is why we are listening carefully to calls to extend family reunion and closely following the passage of the private Members’ Bills on this subject, and will continue our productive discussions with key partners. It is particularly important to me that hon. Members are reassured that we are taking this matter seriously, and I hope that I have gone some way in ensuring that. For those reasons, I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw new clause 51.

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Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

These new clauses relate to the offence of illegal working, which we heard about in the evidence to the Committee. The substance of that evidence was essentially that the offence of illegal working is driving people into exploitative employment relationships. Obviously, that is complete anathema to the Government’s stated anti-slavery objectives.

We heard from Focus on Labour Exploitation, whose research has clearly shown that undocumented people are unlikely to come forward to labour inspectorates about abuse if they fear immigration repercussions, which has a triple effect. First, they are not identified as victims or supported. Secondly, abusive employers can operate with relative impunity because the immigration regime effectively hands them exploitable workers. Thirdly, that serves to undercut other workers, who have legal rights, thereby dragging the whole labour market down.

I am loth to see the offence extended to EEA and Swiss nationals. This offence is a year or two old now; has the Home Office done any research on the impact of its creation? What have been the implications on the Government’s efforts to tackle modern slavery? At the very least, we need to be reassured that the Home Office is alive to these concerns and will take them seriously. In the absence of such reassurance, we cannot just head off and extend the scope of those offences further.

Afzal Khan Portrait Afzal Khan
- Hansard - -

We support the new clauses. As has been set out by the TUC and Focus on Labour Exploitation, it is essential that migrants are able to claim their rights at work. That means not being arrested for criminal offences when attempting to report abusive employers. Our labour market enforcement capacity is one of the weakest in Europe. We need to set high standards for wages and workers’ conditions, significantly improve our inspection capacity, and remove the offence of illegal working. This offence makes it less likely that people will come forward to the UK national referral for trafficking and modern slavery.

We know that many trafficking victims are already in immigration detention. In her evidence to us, Bella Sankey from Detention Action provided a powerful example of a Chinese woman who was a victim of trafficking. She was picked up at a brothel after a tip-off, but instead of being treated as a victim of modern-day slavery and trafficking, she was taken to a detention centre and held for six months. Clearly, many things went wrong at many stages of that woman’s journey through the immigration system, but removing the offence of illegal working would at least help to remove one barrier to her getting the help she needs.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I am grateful to hon. Members for tabling these amendments. I also welcome the opportunity to explain how the offence of illegal working will be applied to EEA and Swiss nationals after we have left the EU, and how our approach to the EU settlement scheme will minimise any risk of those nationals being subject to the offence of illegal working post-EU exit. The Government have made clear our commitment to protecting the rights of EEA and Swiss nationals who are resident in the UK before exit. I recognise the concerns and the intention behind both new clauses, but they are unnecessary and discriminatory. They are also incompatible with our commitment in the White Paper to establishing a single, skills-based immigration system for all migrants coming to live and work in the UK.

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Today, the GLAA has to license four sectors and oversee the whole labour market with a staff of just 123 people. If we want a labour market that provides decent work and conditions to all in the future, the resources must be in place to enable that to happen. Although the new clause calls for effective licensing to protect migrant workers in sectors where short-term visas may be particularly prevalent, and where there is an increased risk of exploitation, it will also be important for Ministers to provide the resources needed to make such protection a reality.
Afzal Khan Portrait Afzal Khan
- Hansard - -

We support the new clause to expand the remit of the GLAA. The GLAA performs a vital role in safeguarding the rights of workers and it is right that that should extend to the widest categories of vulnerable workers. My final point, which my hon. Friend has already made, is that the GLAA is chronically under- funded. We need to have more respect for the job it does.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I thank the hon. Member for Stretford and Urmston for introducing the new clause and giving us further opportunity to consider the critical matter of protecting the rights of migrant workers.

New clause 57 raises an important issue and I appreciate the intention behind it. As I indicated, I share the hon. Member’s concern that overseas workers—indeed, all workers—should be safe from abusive employment practices. Although I sympathise with the sentiment behind the new clause, I do not think it would be appropriate to change the Bill in the way proposed, for reasons I will explain.

First, it presumes that the employment practices for the sectors mentioned in the new clause are the same as the sectors currently licensed by the GLAA. They are not. The Gangmasters (Licensing) Act 2004 applies only to the agricultural, shellfish gathering, and food packaging and processing sectors, as that employment method is particular to those sectors. While gangmasters may be used in some cases, the practice is not prevalent in the supply of labour in the sectors covered by this new clause. In some sectors, such as construction, many workers are self-employed and in others workers are recruited directly, such as with people employed to do cleaning work.

If this new clause were to be passed, the consequence would be that many thousands of extra businesses—potentially every café or care home—would have to register as a gangmaster, with considerable expense but potentially little benefit. The new clause would in effect extend the scope of the Gangmasters (Licensing) Act 2004 to construction, cleaning, care or hospitality work, but only where that work is undertaken by EEA or Swiss nationals, and only where those individuals have come by that work through a particular route. That restriction does not sit comfortably in the existing regime, which defines scope through work sector and not through the characteristics of the individuals undertaking the work. The effect of the new clause would be to create a two-tier system, resulting in EEA and Swiss nationals receiving a greater degree of labour market protection.

The Government are fully committed to protecting the rights of migrant workers and I reassure the hon. Lady that the Government are giving active and serious consideration to these matters. I hope to be able to say more on that in the coming weeks. As I set out at length in earlier sittings, it is of the highest importance that everyone working within our economy is safe and is treated fairly and with respect. I am proud of the Government’s track record on this issue, with the introduction of the landmark Modern Slavery Act 2015 and the further powers we have given to the GLAA. We will not be complacent.

Let me be clear: migrants working lawfully in the UK are entitled to all the protections of UK law while they are here, whether it is entitlement to the minimum wage, health and safety legislation, working conditions, working time rules, maternity and paternity arrangements, the right to join a trade union, the right to strike, statutory rights, holiday and sick pay, and any of the other myriad protections that exist in UK law for workers. They apply to those who are in the UK on work visas every bit as much as they do for the resident workforce. That applies to both migrant workers who are here under the current immigration system and to those who may come in the future, under the new immigration system.

The Immigration Act 2016 created a new power to extend statutory licensing of gangmasters to new commercial sectors by secondary legislation, so the proposed new clause is not necessary. Although I am loth to say it, this demonstrates yet again that we could make the changes through the immigration rules, which might provide a convenient route to do so. In deciding whether to extend gangmaster licensing, the Government would need clear evidence that that is the right course and would draw advice from the Director of Labour Market Enforcement. I hope that having further considered the wider impacts of this new clause and heard my assurance that the protection of migrant workers is at the forefront of the Government’s thinking, the hon. Lady will feel able to withdraw the proposed new clause.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

As we have now concluded the Bill’s Committee stage, I thank both you, Mr Stringer, and your co-Chair, Sir David Amess, for your effective chairmanship and for keeping us all in order. It might be only me who tried your patience—I am sure other Members have a view on that. I know you have been advised throughout by the Clerks to the Committee, who have acted with a great deal of professionalism. I extend my gratitude to them.

I thank all the Committee members for their thoughtful consideration of the issues we have debated over the past few weeks. Although we by no means agreed on everything, we debated important points in a constructive spirit and considered a wide range of matters very carefully. I am particularly grateful to the Opposition spokespeople, the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East—I have said that constituency name an awful lot over the past fortnight; I hope I have pronounced it correctly—for their valuable contributions on a range of important issues. I suspect those will not be their last words on the Bill.

I thank the policemen and the Doorkeepers, who kept us safe and ensured that everyone received the support they needed, and the staff of the Official Report, who ensured that all our pearls of wisdom were faithfully recorded. Finally, I thank my Bill team, who have been unfailingly good humoured in keeping me in line and helping me through my first Bill Committee in this role. I am very much indebted to them. I look forward to considering the Bill during its next stage.

Afzal Khan Portrait Afzal Khan
- Hansard - -

May I add my thanks to you, Mr Stringer, and your colleague, Sir David Amess, for the excellent job you have done of steering us through the Bill? I thank the Clerks for all the help they have provided, not only here but outside this room. I also thank all the Committee members; like the Minister, this is my first attempt at a Bill Committee, so I am particularly grateful to my Front-Bench colleagues for all their help. Let us not forget all the other staff who helped us, too. I look forward to the next stage of the Bill.

None Portrait The Chair
- Hansard -

I thank the Minister and the shadow Minister for their kind words, and I thank Committee members for their good humour and for getting through the business so quickly and effectively.

Question put and agreed to.

Bill accordingly to be reported, without amendment.

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

Afzal Khan Excerpts
Thursday 28th February 2019

(5 years, 8 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

That is all fair enough but, ultimately, the point remains that all of this is incredibly difficult. Nationality and immigration law are complicated, and the settled status scheme, although it is straightforward in principle, has a number of complexities. Legal aid is essential.

We are talking about fundamental issues to do with human rights and citizenship—the hon. Member for Torfaen talked about Windrush earlier—and all the factors together make legal aid imperative. I am glad that we still have good legal aid coverage for immigration matters in Scotland, and I very much think that that should be the case throughout the United Kingdom.

Afzal Khan Portrait Afzal Khan (Manchester, Gorton) (Lab)
- Hansard - -

Briefly, in the light of the two earlier speakers declaring their interests, I declare that I am a solicitor and that I practised immigration law, although I do not do so currently.

Caroline Nokes Portrait The Minister for Immigration (Caroline Nokes)
- Hansard - - - Excerpts

It is a pleasure to serve under your chairmanship, Sir David. I thank the Opposition Members for their contribution to this debate. I put the name of the hon. Member for Torfaen at the top of this sheet of paper, but then I had to add all the other hon. Members because of their detailed and learned comments on legal aid.

Amendment 21 and new clause 36 are grouped together because, in essence, they cover the same ground. I recognise the issues that have been raised by hon. Members. The EU settlement scheme has been designed to be streamlined and user-friendly, and the majority of applicants will be able to apply without the need for general advice from a lawyer or advice on rights to enter or remain required as a result of the Bill. Indeed, feedback from the testing phases of the EU settlement scheme showed that most applicants found the application easy to complete.

For the most part, feedback from applicants in the vulnerable cohort has been positive, noting the speed of decisions in many cases and that it was easy to provide evidence of residence. Supporting vulnerable individuals to obtain UK immigration status is a core element of the delivery of the scheme, and we recognise that we need to reach out and support a wide range of vulnerable groups whose needs will vary, including the elderly, those who cannot access or are not confident with technology, and of course non-English speakers.

We are therefore putting in place safeguards to ensure that the EU settlement scheme is accessible and capable of handling vulnerable individuals with flexibility and care. That will include a range of direct support offered by the Home Office, such as assisted digital support and indirect support through third parties. As a practical example, we are providing grant funding of up to £9 million for voluntary and community organisations throughout the UK to support EU citizens who might need additional help when applying for their immigration status through the EU settlement scheme. The grant funding will help those organisations to inform vulnerable individuals about the need to apply for status and to support them in completing their applications under the scheme.

As the Committee heard at the oral evidence sessions, voluntary and community organisations such as the Children’s Society have been well engaged in the development of the settlement scheme. We are also working to ensure that local authorities have all the support that they need to ensure that looked-after children in their care will receive leave to remain under the EU settlement scheme. Caseworkers will provide support to ensure that applications are not turned down because of simple errors or omissions, and a principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate. In short, the process has been designed with users in mind.

As an additional safeguard, legal aid will be available to some particularly vulnerable individuals. The Government have always been clear that publicly funded immigration legal advice is available for individuals identified as potential victims of human trafficking, modern slavery or domestic violence. We will also introduce legislation shortly to bring immigration matters for unaccompanied and separated migrant children into the scope of legal aid, meaning that that group will get support in securing their immigration rights.

In addition to that, legal aid may be available through the exceptional case funding scheme where the relevant criteria are met. As my right hon. Friend the Secretary of State for Justice announced in the House on 7 February, the Government will bring forward proposals to simplify the exceptional case funding application process and to improve the timeliness of funding determinations to ensure that those who need legal aid funding can access it when they need it.

The EU settlement scheme has been specifically designed to ensure that individuals can apply for settled status without the need for a lawyer. The Government have also committed to providing a range of safeguards to ensure that vulnerable individuals receive the assistance they need in securing their immigration rights. These safeguards will of course apply to vulnerable EEA and Swiss nationals. For those reasons, I hope that the hon. Member for Manchester, Gorton will withdraw amendment 21.

Afzal Khan Portrait Afzal Khan
- Hansard - -

I thank the Minister for her statement, but we are not satisfied. We will put the amendment to a vote.

Question put, That the amendment be made.

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Afzal Khan Portrait Afzal Khan
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I beg to move amendment 32, in clause 7, page 5, line 37, at end insert—

“(7A) Section 1 of this Act cannot come into force until the Secretary of State has commissioned an independent review to examine whether the UK’s existing immigration legislation, and any provisions or rules issued under existing legislation, require amending to deal with the ending of freedom of movement under the provisions of this Act.

(7B) The review under subsection 1 must consider, but is not limited to —

(a) an equality impact assessment evaluating whether any individuals subject to the Immigration Act 1971 are discriminated against on the basis of any of the protected characteristics defined in the Equality Act 2010;

(b) an assessment of whether the Immigration Act 1971 needs amending to ensure the human rights of persons who have their freedom of movement removed under the provisions of this Act are protected;

(c) whether sections 20 to 47 of the Immigration Act 2014, sections 34 to 45 of the Immigration Act 2016, and sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 require amending;

(d) whether schedule 2 of the Data Protection Act 2018 requires amending.

(7C) The review under subsection 1 must be laid before both Houses of Parliament.”.

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss the following:

Amendment 17, in clause 7, page 5, line 39, at end insert—

“(8A) The Secretary of State must not issue any regulations under subsection 8 above until the Secretary of State has implemented any recommendations contained in the Law Commission’s review of the UK’s Immigration Rules which relate to or will relate to persons who, under the provisions of the Act, will lose their right of free movement.”.

Amendment 38, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsection (8) may not be made until the Secretary of State has published a review of section 3 of the Immigration Act 1971, examining its impact on the human rights of people whose right of free movement is ended by section 1 and schedule 1 of this Act.”.

Amendment 39, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsection (8) may not be made until the Government has repealed paragraph 4 of schedule 2 of the Data Protection Act 2018 in so far as it affects people whose right of free movement is ended by section 1 and schedule 1 of this Act.”.

Afzal Khan Portrait Afzal Khan
- Hansard - -

I will speak to amendments 17 and 32, which are in my name. I support amendments 38 and 39, which have been tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.

On amendment 32, the Bill and the White Paper do not address the many deep-seated problems in our broken immigration system, but instead subject a further 3 million people to it. The Windrush crisis laid bare the extent to which the hostile environment policy impacts on human rights; British citizens were detained and deported, and the Government have acknowledged that that was utterly wrong. I will return to the need for a full review of all Windrush cases, before the Bill is enacted, when we debate amendment 16.

We have heard the opinions of several experts on the danger of a repeat of Windrush for EU citizens, and we need a two-pronged approach to avoid that. First, we must ensure that the rights of EU citizens are enshrined in primary legislation, and that there is no unnecessary cut-off for applications for settled status—an argument I will elaborate on when we discuss the new clauses. Secondly, we must address the root cause of the Windrush crisis: the hostile environment policy.

As the spokesperson for Liberty set out in our evidence session, the impact of the hostile environment goes beyond even the Windrush scandal; it reverberates throughout people’s lives. Children are afraid to go to school, sick people are afraid to go to hospital and victims of serious crime are afraid to report them to the police. Our public services have been co-opted, with doctors, teachers and landlords turned into border guards.

The hostile environment does not only affect migrants. A report by the Joint Council for the Welfare of Immigrants shows that inquiries from British black and minority ethnic tenants without a passport were ignored or turned down by 58% of landlords in a mystery shopping exercise. I need not remind the Committee that a large number of BME British citizens will be caught in this policy. A number of independent bodies have recommended that the Government review the hostile environment. The Independent Chief Inspector of Borders and Immigration found:

“Concerns about right to rent’s impact on racial and other forms of discrimination by landlords, exploitation of migrants and associated criminality, and homelessness, have been raised, repeatedly, by the Joint Council for the Welfare of Immigrants (JCWI), Crisis, Migrants’ Rights Network and others”,

but the Government did not complete an evaluation of the pilot before rolling it out, nor did they attempt to measure its impact once it was fully rolled out. The independent chief inspector found that overall,

“the RtR scheme had yet to demonstrate its worth as a tool to encourage immigration compliance.”

Internally, the Home Office has failed to co-ordinate, maximise or even effectively measure the use of the scheme. Externally, meanwhile, the Home Office is doing little to address stakeholders’ concerns. The National Audit Office found that the Government failed to fulfil their duty of care when introducing the hostile environment. Its report said:

“In its implementation of the policy with few checks and balances and targets for enforcement action, we do not consider, once again, that the Department adequately prioritised the protection of those who suffered distress and damage through being wrongly penalised, and to whom they owed a duty of care. Instead it operated a target-driven environment for its enforcement teams.”

The Government have recognised the need for an extensive review. After one of my parliamentary questions exposed the scandal of the Home Office’s requiring people who applied for visas to supply DNA evidence, the Home Secretary committed to a wide-ranging review of those “structures and processes” in the Home Office,

“to ensure they can deliver a system in a way which is fair and humane.”

That was back in October 2018, and we have heard nothing more about it since then. The Labour party is clear that we cannot have a “fair and humane” immigration system that respects human rights until we have repealed the hostile environment in its entirety. The Windrush crisis was caused by systematic problems within the Home Office, and it will take root and branch reform to return us to an immigration system that respects human rights.

I turn briefly to the question of data protection, which is related but warrants special consideration. The Data Protection Act 2018 allows an entity that processes data for immigration control purposes to set aside a person’s data protection rights in a broad range of circumstances. As I believe was said during the debate on that Bill, data protection rights help us to hold the Home Office to account. The White Paper indicates that the Government will be using data sharing more and more to enforce the hostile environment.

As Liberty set out, it is concerned 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.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q159.]

In that context, it is essential that people have some form of redress for data errors, and data protection rights are crucial. We believe that the hostile environment should be repealed, but if it is to be continued, we must at least have effective redress for errors.

The purpose of amendment 17 is to require the Secretary of State to implement the recommendations of the Law Commission’s review of UK immigration rules. In her opening remarks on this Bill, the Minister mentioned the Law Commission, and I welcome that; I hope she will commit to adopting the measures it recommends before the Government make extensive changes to immigration rules as a consequence of this Bill. In that case, we would not press this amendment to a vote.

Many changes to immigration rules have been made in a piecemeal way, resulting in immigration laws being practically incomprehensible. The JCWI pointed out that 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 people who are expected to do so without necessarily having perfect English or legal aid. The Law Commission points out that, on 31 December 2018, the rules totalled 1,133 and are poorly drafted, which the Government recognised by commissioning the Law Commission review. It makes sense to implement the Law Commission’s recommendations and clean up the statute book before making a whole raft of changes for EEA citizens.

The Law Commission’s project of simplifying the immigration rules officially started on 13 December 2017. It held pre-consultation meetings with key stakeholders and other experts, and with the Home Office. The consultation paper was published on 21 January 2019 and the consultation period is open until 26 April 2019. Recommendations will be delivered in a final report “later in 2019”.

Changes that the Law Commission is considering as part of its review include: a less prescriptive approach to the rules; reforming the organisation and restructuring the immigration rules; removing overlapping provisions and resolving inconsistencies; improving the drafting style; and improving the way that immigration rules are updated. We support those changes, and we believe that it makes most sense for them to be incorporated before our immigration rules are overhauled as a consequence of enacting the Bill.

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

I will speak to amendments 38 and 39, tabled in my name and that of my hon. Friend the Member for Paisley and Renfrewshire North, which are essentially subsections of the broader amendments that the shadow Minister spoke to. I absolutely endorse his comments, so I will be very brief indeed.

Essentially, the development of immigration policy has not been evidence-based or rights-based. My amendments pose a couple of questions. First, before we set out to apply the immigration rules to many thousands more people, why do we not review them and assess their impact on human rights? Secondly, my amendments ask us to revisit a pretty scandalous immigration exemption inserted into the recent Data Protection Act 2018.

On the first point, the Government tend to argue in their defence that the statutory duties that are in place are sufficient. However, we unfortunately all too often see statutory duties not properly discharged by the Home Office. For example, we heard in an earlier debate about the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. Justice McCloskey said in 2016:

“As in so many cases involving children, there is no evidence that the statutory duty imposed by section 55(2) to have regard to the Secretary of State’s statutory guidance was discharged. I readily infer that it was not. This, sadly, seems to be the rule rather than the exception in cases of this kind.”

Rather than leaving it to statutory duties and guidelines, we want a proper assessment, to make sure that those duties are complied with, and to see how they are complied with.

On the second point, that immigration exemption gives the Home Office sweeping powers to excuse itself or others from fundamental data protections, which are vital to ensuring that people are not subjected to wrong immigration decisions, and wrongly exercised functions and powers, as befell so many members of the Windrush generation. That exemption absolutely ought to be removed.

In particular, the sharing of migrants’ data between public services and the Home Office, and the erosion of migrants’ data protection rights, are some of the most controversial aspects of the hostile environment, turning traditionally safe spaces, such as hospitals and schools, into immigration surveillance services. The policy of sharing NHS patient data with the Home Office eroded the patient confidentiality rights of migrant patients, causing outrage among doctors, royal medical colleges and the British Medical Association. In the light of evidence that data sharing caused migrants to avoid healthcare services and presented a public health risk, the policy was suspended. We need to go further than that and row back on the immigration exemption altogether, which is why I ask hon. Members to support amendment 39.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

My hon. Friend makes an important point. As with so much in immigration, it is important that we get the balance right. I have been concerned that there has been much scaremongering in recent months that the immigration exemption would be used by the Home Office to deny individuals rights in a sweeping way, or as an excuse for not providing reasons for the refusal of cases. That is simply not true.

The exemption as set out in the legislation is not a blanket exemption that can be used to deny rights in a sweeping way; it does not target any particular group or individual. There are very clear tests to be met. The immigration exemption is only applied on a case-by-case basis, and only where complying with certain rights would be likely to prejudice the maintenance of effective immigration control. We must be able to satisfy the prejudice test set out in the Data Protection Act before it can be used. The data subject may assert their rights through the Information Commissioner’s office and the courts, if that individual believes that an exemption has been wrongly applied.

The immigration exemption is entirely separate from measures designed to deal with ending the free movement of EEA nationals. It is a necessary and proportionate measure, which we believe is compliant with GDPR—a regulation introduced by the European Union that applies to all member states. I can categorically assure hon. Members that it is not aimed at EEA nationals and, in compliance with our public sector equality duty, it must be applied in a lawful and non-discriminatory manner. I hope that in the light of these points, the hon. Member for Manchester, Gorton will withdraw the amendment.

Afzal Khan Portrait Afzal Khan
- Hansard - -

I thank the Minister for her assessment, but I am not totally satisfied, so I wish to press the amendment to a Division.

Question put, That the amendment be made.

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The UK Government have taken many laudable steps to promote gender equality in other areas, including the introduction of mandatory gender pay gap reporting. We must not allow that progress to be undermined through ill thought-through measures that will lead to significant numbers of women being denied the opportunity to come to the UK or to join their families here, despite the robust evidence of the barriers that women face in taking up full-time employment and achieving the same level of remuneration as men. For that reason, my amendment calls for a full gender impact assessment of the Act, and for that assessment to be laid before the House in a report within six months of its passing.
Afzal Khan Portrait Afzal Khan
- Hansard - -

I thank my hon. Friend for tabling the amendment and I heartily support all that she has said about it. Last Tuesday, I also gave reasons why I feel that the Bill disproportionately affects women. Therefore, we will support the amendment.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I, too, thank the hon. Member for Stretford and Urmston for tabling the amendment, because it gives me the opportunity to confirm that gender impact and gender equality are important issues that must be taken into account across Government policy. Of course, that applies to all protected characteristics under the Equality Act 2010.

The UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations. The Government are committed to complying with their public sector equality duty under section 149 of the 2010 Act. Furthermore, the Government have been clear that all protections in and under the Equality Acts 2010 and 2006, and the equivalent legislation in Northern Ireland, will continue to apply after we leave the EU. We will not renege on our strong equalities and workers’ rights commitments.

As such, we published two policy equality statements alongside the introduction of the Bill, one on immigration and one on the social security aspects of the Bill. Both of those considered the potential gender impacts of the Bill. However, as the Committee is aware, the Bill is a framework Bill, and its core focus is to end free movement. As set out in the policy equality statement on the immigration measures in the Bill, the resident population of EU nationals is estimated to be roughly half male and half female, as the hon. Lady said. As a consequence, we do not think that ending free movement will discriminate on the grounds of sex, and there is nothing further to suggest that it will have a particular impact based on gender. However, we cannot predict the volume and pattern of migration post EU exit, because the future arrangements that will replace free movement have not yet been finalised.

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Afzal Khan Portrait Afzal Khan
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I beg to move amendment 16, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsection (8) above may not be made until—

(a) the Secretary of State has completed a review of all cases of deportation, detention, or refusal of status to individuals who entered the United Kingdom before 1973, and the children and descendants of those individuals; and

(b) the Secretary of State has considered the findings of that review and implemented any safeguards deemed necessary, following a public consultation, to ensure that those who lose their right of freedom of movement under the provisions of this Act are protected from any wrongful detention, deportation or denial of legal rights.”

None Portrait The Chair
- Hansard -

With this it will be convenient to discuss amendment 23, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsections (7) and (8) relating to the coming into force of section 1 or section 5 may not be made until the number of people registered for settled status in the United Kingdom reaches 3 million.”

This amendment would prevent the Bill from coming into force until the number of people registered for settled status reaches 3 million.

Afzal Khan Portrait Afzal Khan
- Hansard - -

Amendment 16 will prevent schedule 1 from coming into force until the Home Office has completed a full review of how enforcement has been applied following the Windrush scandal.

The Windrush scandal exposed systematic issues in the Government. A year on, we still do not know how many people have been detained or deported, or have even died as a result of the hostile environment. The measures that the Government have taken so far to fix the Windrush scandal have been unsatisfactory.

The National Audit Office has criticised the narrow scope of the Government’s review thus far, saying that the Home Office has shown a surprising

“lack of curiosity about individuals who may have been affected, and who are not of Caribbean heritage, on the basis that this would be a ‘disproportionate effort’.”

When the question is whether someone’s fundamental rights have been grossly violated, no effort is disproportionate in identifying and compensating victims.

This situation comes about after the Government showed a lack of concern about the potential impact of the hostile environment when it was introduced, despite repeated warnings from organisations and Opposition Members.

The compensation scheme has yet to be set up. The Government only introduced an emergency hardship fund after months of lobbying by Labour, and shockingly, it only helped one person in 2018. Just this month, there was widespread outrage at the Government’s decision to restart deportation flights to Jamaica, after they were suspended at the height of the Windrush scandal. The Government have not yet shown that they have learned the lessons of Windrush. The lessons learned review has not even reported yet, so those flights were entirely premature.

Amendment 16 would redress the Government’s failure to fulfil their duty of care to members of the Windrush generation, and would ensure that 3 million more EU citizens were not subjected to an already broken immigration system. As it is, the Bill will subject millions more people to a detention and deportation system that we know is broken, as outlined by Liberty in our evidence session. It said 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.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 55, Q147.]

I entirely support the point that Amnesty made when it said:

“The dysfunction of the system can only be expected to get worse...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.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 88, Q221.]

Another issue that we heard a lot about during our evidence sessions was the threat of a repeat of Windrush for EU citizens. Once we have fixed problems with our current detention and deportation systems, we must ensure that we are not creating new systematic issues that will cause a repeat of the Windrush tragedy. As long as the hostile environment exists, it is imperative that people have documentation to prove their right to be in the UK.

The Government have set up the settled status scheme, and I am glad that they have started registering people, but we heard during the evidence sessions that there are already some problems with it, and that is before we get to the difficult cases of people who do not know that they need to register, do not have access to a phone or computer, or do not speak English well enough to complete the application and understand their rights and obligations under the scheme. Those EEA nationals who are unable to obtain status are likely to be the most vulnerable and marginalised, such as victims of trafficking or domestic violence, and children in care.

The Government have no clear plans at the moment to demonstrate that they have successfully registered all eligible EEA nationals for settled status by the end of the implementation period, nor have they put any plans in place to attempt to measure the extent of their success in doing so, nor have they set any targets for numbers to be registered. If the Minister disagrees on this point, I would be happy for her to tell the Committee what her target is for registering EEA nationals for settled status.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

It is still the Home Office’s position that we regard that as an arbitrary figure. We believe that a deadline that is set as a date is much more easily understood by individuals.

We are running an extensive communications campaign to ensure that people are aware of the need to apply. We are using all available channels to reach our audience, and last year targeted online advertising alone reached more than 2 million people. Our communications activity will be even more visible in the coming months, and we will shortly launch a wide-ranging marketing campaign that will encourage EU citizens to apply when the scheme is fully open. Nobody will be left behind, however, and we are working in partnership with vulnerable group representatives to ensure that we reach everyone. We expect the large majority of EEA nationals to have been granted status by the deadline, but if a person has good reasons for missing the deadline, we will be able to protect their status and enable them to apply afterwards.

Secondly, by requiring 3 million EU citizens to be granted settled status before the Bill can come into force and lay the ground for the future immigration system, we are presupposing that all resident EU citizens will receive indefinite leave to remain, which is what settled status refers to. That does not take into account the fact that some resident EU citizens may not need to apply for settled status. Some may want to leave the UK before the deadline; some will have arrived pre-1973 and already have indefinite leave to remain; and some may want to apply for British citizenship instead.

A significant proportion of EEA nationals who are eligible to apply under the settlement scheme will not have been continuously resident in the UK for five years, so they will not be entitled to settled status. They will be issued with pre-settled status, which gives them limited leave to remain, rather than indefinite leave. Some may then leave the UK without staying to complete the five years continuous residence required for a grant of settled status.

The date on which free movement could be repealed, or retained social security co-ordination legislation amended, would therefore be highly uncertain and operationally unworkable as a result of the amendment. The decision about whether free movement ended would be left solely in the hands of those EEA nationals. To prevent free movement from coming to an end through the Bill, they could simply refuse to apply under the EU settlement scheme, knowing that, as a consequence, free movement would not end.

That would be the antithesis of taking back control. It would put the future immigration system in the hands not of the Government or the British people, but of EU nationals who had already exercised their free movement rights and whose rights were protected, but who could prevent us from ending free movement and delivering on the outcome of the referendum.

Finally, it makes no sense to restrict the commencement of the social security co-ordination provisions in clause 5 based on the number of people who are granted settled status. Rights under the social security co-ordination regulations—for example, the right to aggregate to meet domestic entitlement for specific benefits—are not connected to the grant of leave under the EU settlement scheme. I therefore ask the hon. Member for Manchester, Gorton to withdraw his amendment.

Afzal Khan Portrait Afzal Khan
- Hansard - -

I thank the Minister for her statement. I am minded to press amendment 16 to a vote, but not amendment 23.

Question put, That the amendment be made.

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Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

We could do what we did previously, which was to recover the costs after the event. However, as I say, I have tabled these amendments to spark debate. At the end of the day, if it is a choice between risking people’s lives or even causing death, and risking losing out on certain funds after the event, the second of those is the lesser evil. However, it is a difficult issue; I do not have all the answers as to how we should approach it. As I say, that is why the new clauses and the amendment have been tabled.

Afzal Khan Portrait Afzal Khan
- Hansard - -

What would be said if there was a contagious disease and people were not coming to get the help that they needed?

Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

The hon. Gentleman makes an absolutely valid point.

I turn to amendment 37, which would prevent the Government from bringing into force those parts of the Bill that subject EEA nationals to the domestic immigration system until EEA and Swiss nationals with immigration permission are exempted from the NHS’s overseas visitors charges. This amendment would mean that all EU migrants with a visa, including temporary workers on short-term visas, are able to receive NHS services free at the point of care. That reflects the current situation of EU nationals living and working in the UK.

The White Paper indicates that EU migrants on short-term visas of 12 months will have no right to healthcare beyond emergency care, and skilled workers and their dependants will be required to pay the immigration health surcharge when making an immigration application to enter or remain in the UK. Good preventive healthcare plays a central role in maintaining a fit and healthy workforce, and the policy to exclude people on short-term visas from all healthcare beyond emergency care establishes a worrying precedent in excluding from NHS services migrants who are legally living and working in the UK.

Those on short-term visas are likely to be in lower-paid jobs and unable to pay for healthcare out of their own pockets. Requiring EU migrants on skilled worker visas and their dependants to pay the immigration health surcharge is unfair and will be cost-prohibitive for some. Payment of the surcharge, which is currently set at £400 per person per year with a discounted rate for students of £300 per year, must be made at the same time as an immigration application, and it has to cover the total cost for the duration of the visa and for all the people named on the application. A person applying for a two-and-a-half-year visa will incur a surcharge of £1,000, on top of any other immigration fees, and a family of four would be required to pay £8,100 for a visa for the same period.

For those on low incomes, the health surcharge will be cost-prohibitive. We are particularly concerned about the impact that the surcharge will have on EU migrants living in the UK when they come to renew their visa, and about the fact that large health surcharge payments will prevent those on low incomes from being able to renew their visa, causing them to lose their lawful stay in the UK. It is also of note that EU migrants who are employed—for example, those on short-term or skilled visas—will be contributing to the NHS through tax and national insurance payments and that, by being required to pay the health surcharge, they will in effect be being charged twice for healthcare.

For those reasons, I have also tabled new clause 42, which would remove the applicability of the health surcharge. The surcharge has doubled this year to what I regard as an unacceptably high level.

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Afzal Khan Portrait Afzal Khan
- Hansard - -

We support the proposals. Overall, the sweeping provisions in clause 4(5) provide limitless scope for the Government to change fees and charges. The immigration health surcharge was already doubled from £200 to £400 a year by the Immigration (Health Charge) (Amendment) Order 2018, which Labour voted against. There is nothing to stop the Government doubling it again. The whole idea of an immigration health surcharge is pretty dubious, because the migrants who are forced to pay the charges are already paying large sums of money in tax and national insurance contributions. Some of them may even be working in the NHS, so they are paying a double tax for a service that they are helping to deliver.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments on migrants’ access to healthcare in the United Kingdom. I am also grateful to the hon. Member for Wolverhampton South West for tabling her new clause. Given their similar effects, I will consider them together.

The Government have been very clear in everything we have said since the referendum that, although the United Kingdom will be leaving the European Union, we are certainly not leaving Europe. Our relations with the European Union and the whole of the EEA will continue to be close and cordial. As part of that, immigration from the EEA will certainly continue. We want EEA citizens, who have contributed so much to our society, to continue living and working in the United Kingdom. While they are here, they will of course need access to healthcare. We are fortunate in this country to have a world-class health system, thanks to the NHS. The proposals, in different ways, would exempt EEA and Swiss citizens from the requirement to pay for healthcare in the UK. However, they are unnecessary.

Amendment 37 and new clause 12 are also technically deficient, because they do not reflect the nature of devolved health legislation. Entitlement to free-of-charge NHS care is not, and should not be, based on nationality. It is based on a concept of ordinary residence in the United Kingdom. For EEA nationals, that means living in the UK on a

“lawful…properly settled basis for the time being.”

I thank hon. Members for their comments on specific proposals, and I will make a number of points. Operating fair and proportionate controls on access to the NHS is not about outsourcing immigration control; it is about protecting a vital taxpayer-funded service from potential misuse. The Department of Health and Social Care’s policy of up-front NHS charging for non-urgent treatment for overseas visitors was upheld by the courts in a judicial review last year. Treatment for specified public health conditions, such as the infectious diseases mentioned earlier, is not subject to overseas visitor charges.

The hon. Member for Wolverhampton South West asked whether it was fair that EEA nationals should pay the health charge, given that they would pay for the NHS via taxes and national insurance contributions. Whether EEA nationals pay the health charge following the introduction of the new skills-based immigration may depend on the outcome of our negotiations with the EU about our future relationship. The health charge currently applies only to non-EEA temporary migrants. Although some non-EEA nationals will pay tax and national insurance contributions, they will not have made the same financial contribution to the NHS that most UK nationals and permanent residents have made or will continue to make over the course of their working lives. It is therefore fair to require them to make an up-front and proportionate contribution to the NHS.

When we debated this in Committee some months ago, the issue of the level of contribution was raised, and it has been again this afternoon. The Department of Health and Social Care undertook a careful study with NHS England of the NHS resources that temporary migrants to this country generally used over the course of a year. It came out in the region of £470 per individual. I hope that hon. Members will note that the immigration health charge is set below that level at £400 per person, or the reduced rate of £300 per year for students and those on youth mobility schemes.

The hon. Member for Stretford and Urmston raised maternity care. The Department of Health and Social Care is responsible for guidance on overseas visitor charges in England. Maternity care is always urgent and must never be withheld pending payment. That is clear in the Department of Health and Social Care’s guidance. However, charges are applied to protect maternity services for those entitled to live in this country.

The hon. Lady asked whether I would speak to DHSC Ministers about the review of charges, which I understand has not yet been published. I am happy to make that representation to my fellow Ministers.

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

My hon. Friend makes an important point, which underpins the immigration health surcharge. The Government took the view, and in successive general elections made it very clear, that we would continue to implement and, indeed, increase the immigration health surcharge. As I said, this is a matter for EEA nationals and is still for negotiation as part of our future relationship.

Afzal Khan Portrait Afzal Khan
- Hansard - -

Does the Minister agree that it is also true that EU citizens are more likely to provide health services than receive them, and are more likely to be young and therefore need fewer NHS services?

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

I thank the hon. Gentleman for his comments. I cannot comment on the demographics of EU citizens. We know that those who are the most mobile in the labour force tend to be the youngest. He is right to comment on the valuable contribution that many EEA citizens make to our national health service. It was argued with me in the Chamber some months ago that there was a Brexodus of EU nationals from our health service, and I was assured by the then Minister in the Department of Health and Social Care that there are now 4,000 more EU nationals working in our NHS than there were at the time of the referendum in 2016.

Immigration and Social Security Coordination (EU Withdrawal) Bill (Seventh sitting)

Afzal Khan Excerpts
Thursday 28th February 2019

(5 years, 8 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
Kate Green Portrait Kate Green
- Hansard - - - Excerpts

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 Portrait Afzal Khan (Manchester, Gorton) (Lab)
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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.]

Lord Sharma Portrait The Minister for Employment (Alok Sharma)
- Hansard - - - Excerpts

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.

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Lord Sharma Portrait Alok Sharma
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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.”

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Those are the two options I put before the Committee for debate today, and I look forward to hearing the Minister’s response.
Afzal Khan Portrait Afzal Khan
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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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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—

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Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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’.”

None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
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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 Portrait Stuart C. McDonald
- Hansard - - - Excerpts

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.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 Co-ordination (EU Withdrawal) Bill (Fifth sitting)

Afzal Khan Excerpts
Tuesday 26th February 2019

(5 years, 8 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
Caroline Nokes Portrait Caroline Nokes
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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 Portrait Afzal Khan (Manchester, Gorton) (Lab)
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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 Portrait Kate Green (Stretford and Urmston) (Lab)
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 Portrait Stuart C. McDonald
- Hansard - - - Excerpts

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.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

I ask the Minister again: could the Government use the powers in the Bill to amend immigration legislation affecting non-EU citizens?

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I conclude with several questions for the Minister. Why do we seem to be watering down the rights of Irish nationals, including with respect to deportation? Are the provisions in danger of undermining the Belfast agreement in relation to people in Northern Ireland? Why not simply put current Government practice on deportation into statute? What provisions will there be for families of Irish nationals in future? Is the Minister willing to revisit the issue, so that we can ensure that the status of Irish citizens is properly and comprehensively protected, rather than being left to obscure practices and rules “written in sand”?
Afzal Khan Portrait Afzal Khan
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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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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.

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Stuart C McDonald Portrait Stuart C. McDonald
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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 Portrait Afzal Khan
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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 Coordination (EU Withdrawal) Bill (Fifth sitting)

Afzal Khan Excerpts
Caroline Nokes Portrait Caroline Nokes
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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 Portrait Afzal Khan (Manchester, Gorton) (Lab)
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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 Portrait Kate Green (Stretford and Urmston) (Lab)
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 Portrait Stuart C. McDonald
- Hansard - - - Excerpts

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.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

I ask the Minister again: could the Government use the powers in the Bill to amend immigration legislation affecting non-EU citizens?

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I conclude with several questions for the Minister. Why do we seem to be watering down the rights of Irish nationals, including with respect to deportation? Are the provisions in danger of undermining the Belfast agreement in relation to people in Northern Ireland? Why not simply put current Government practice on deportation into statute? What provisions will there be for families of Irish nationals in future? Is the Minister willing to revisit the issue, so that we can ensure that the status of Irish citizens is properly and comprehensively protected, rather than being left to obscure practices and rules “written in sand”?
Afzal Khan Portrait Afzal Khan
- Hansard - -

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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.

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Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 (Sixth sitting)

Afzal Khan Excerpts
Tuesday 26th February 2019

(5 years, 8 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
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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 Portrait Afzal Khan (Manchester, Gorton) (Lab)
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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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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.

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None Portrait The Chair
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We will come to new clause 23 later in the agenda.

Afzal Khan Portrait Afzal Khan
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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.”

None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
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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.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
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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.

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Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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 Portrait Afzal Khan
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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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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.

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Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

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 Portrait Afzal Khan
- Hansard - -

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

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
Monday 25th February 2019

(5 years, 8 months ago)

Commons Chamber
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Sajid Javid Portrait Sajid Javid
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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 Portrait Afzal Khan (Manchester, Gorton) (Lab)
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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 Portrait Sajid Javid
- Hansard - - - Excerpts

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 (Fourth sitting)

Afzal Khan Excerpts
Thursday 14th February 2019

(5 years, 8 months ago)

Public Bill Committees
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None Portrait The Chair
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It sounds as though you are the right witness for this session, with that expertise. This session lasts until 2.30 pm.

Afzal Khan Portrait Afzal Khan (Manchester, Gorton) (Lab)
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Q 280 I am someone non-Scottish, to start with. Do you have concerns about Scotland’s agricultural and associated sectors’ ability to recruit the labour they will need post Brexit?

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 Portrait Afzal Khan
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Q In your view, can those vacancies not be filled by workers from the UK?

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 Portrait Afzal Khan
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Q You said that 70% were returnees. Do you have any other concerns about the 12-month visa, or the £30,000 income threshold that we have been talking about?

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 Portrait David Duguid (Banff and Buchan) (Con)
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Q You mentioned the very low unemployment rates in Angus. They are broadly similar, and perhaps even lower, in Aberdeenshire, just north of you—where I am from, obviously. Can anything be done to make agriculture or horticulture more attractive to British workers from elsewhere in the UK?

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.

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Afzal Khan Portrait Afzal Khan
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Q Professor, you have highlighted certain discrepancies between the treatment of EU citizens who are already in the UK in the event that we reach a deal, and their treatment in the event of a no-deal Brexit. Will you run through those discrepancies?

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 Portrait Afzal Khan
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Q Clause 4(2) gives the Secretary of State powers to modify

“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 Portrait Afzal Khan
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Q Could the Government use powers in the Bill to amend immigration legislation affecting non-EU nationals?

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 Portrait Afzal Khan
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Q As it is currently drafted, the Bill contains no protections for EU citizens already resident in the UK. Would there be stronger protection for EU citizens if the Government’s commitment were laid out in primary legislation?

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 Portrait Afzal Khan
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Q Finally, what concerns do you have about the ability of EU citizens in the UK and UK citizens in the EU to accumulate social security rights if we leave the EU without a deal? Clause 5 of the Bill grants Henry VIII powers to the Secretary of State to make broad changes to social security co-ordination. Do you think those rights can be gained without primary legislation?

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 Portrait Nick Thomas-Symonds
- Hansard - - - Excerpts

Q Professor Peers, you have written a lot about free movement, including that of UK citizens in the EU27. A former constituent of mine contacted me recently about the situation in Austria; the Austrian Government have just published their scheme for expats, and it is €210 per person for a long-term residence permit, which seemed to me quite an extraordinary amount of money. Can you set out your concerns for UK citizens in the EU27 during this period?

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.

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None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
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Q We heard from Professor Bernard Ryan on Tuesday that a gap in the Bill is its lack of provisions for EU citizens who are already here and who will now apply for settled status. Do you agree? What kind of provisions would be needed to secure the rights of EU citizens in the UK?

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 Portrait Afzal Khan
- Hansard - -

Q Just to make sure we catch both these areas, I have two quick questions. We have heard that the implementation Bill may be a chance to guarantee the rights of EU citizens in primary legislation. Do you want to expand on that? What is the case for doing it in this Bill?

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 Portrait Afzal Khan
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Q What concerns do you have about the Henry VIII powers in this Bill? Do they potentially allow the Government to amend the rights of EU citizens in the UK by secondary legislation?

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 Portrait Maria Caulfield (Lewes) (Con)
- Hansard - - - Excerpts

Q I just want to clarify something. You seemed to suggest that EU citizens who are living here now do not have to apply for any settled status, but that is not the case, is it?

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.

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Afzal Khan Portrait Afzal Khan
- Hansard - -

Q This 3 million is a big number. Even if small numbers get caught up in something like what has happened with Windrush, do you think there is a risk that EU citizens will be caught in that way?

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

Q I think that you have said that the best way to protect citizens’ rights is through the withdrawal agreement, and you will certainly get no argument from me on that front. In the event of a deal, given your clearly expressed view that citizens’ rights should be protected in primary legislation, is a withdrawal agreement Bill the best place to do that?

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.

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None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
- Hansard - -

Q What do you think about the powers in clause 4?

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 Portrait Afzal Khan
- Hansard - -

Q Do you think there is sufficient scrutiny of immigration rules now?

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 Portrait Afzal Khan
- Hansard - -

Q Do you think there was sufficient scrutiny of the hostile environment when it was brought in?

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 Portrait Afzal Khan
- Hansard - -

Q Knowing what we know about where we are with the current immigration system, do you think that it needs to be reviewed before we add another 3 million or 4 million EU citizens? Would it help to streamline, improve and simplify it?

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 Portrait Kate Green
- Hansard - - - Excerpts

Q Can I ask you about the provisions in the Bill that relate to social security co-ordination? Clause 5, again, gives the Government Henry VIII powers to modify the social security co-ordination arrangements, including modifications to entitlements that people may currently have in primary legislation. You have spoken a bit about how immigration rules have been used to modify primary legislation. What is your view of those Henry VIII powers?

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.

--- Later in debate ---
None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
- Hansard - -

Q Thank you for attending. Clause 5 of this Bill—

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?

--- Later in debate ---
None Portrait The Chair
- Hansard -

Thank you very much for making those points. Now we will have the questions.

Afzal Khan Portrait Afzal Khan
- Hansard - -

Q Clause 5 of this Bill grants the Secretary of State:

“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 Portrait Afzal Khan
- Hansard - -

Q What concerns do you have about the changes the Government have already introduced on social security through secondary legislation?

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 Portrait Afzal Khan
- Hansard - -

Q What has been the effect on your rights, as British citizens living in the EU, of the uncertainty over the rights of EU citizens in the UK?

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 Portrait Afzal Khan
- Hansard - -

Q The Government have said that they need the powers in clause 5 to introduce as yet unspecified post-exit policy changes in social security. Do you think it is right that we grant powers to the Government without knowing what they will do with them?

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 Portrait Jack Brereton
- Hansard - - - Excerpts

Q You mentioned the variable way in which different countries in the EU are treating the rights of British citizens living in the EU. I ask you a similar question to that which I asked one of our other witnesses earlier. Do you think that different countries, the EU, and the British Government have approached this from a different perspective?

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 (Third sitting)

Afzal Khan Excerpts
Thursday 14th February 2019

(5 years, 8 months ago)

Public Bill Committees
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
None Portrait The Chair
- Hansard -

We have until 12.30 pm for this session.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
- Hansard - -

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

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

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

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

None Portrait The Chair
- Hansard -

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

Afzal Khan Portrait Afzal Khan
- Hansard - -

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

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

Afzal Khan Portrait Afzal Khan
- Hansard - -

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

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

Maria Caulfield Portrait Maria Caulfield (Lewes) (Con)
- Hansard - - - Excerpts

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

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

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

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

--- Later in debate ---
None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
- Hansard - -

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

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

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

Afzal Khan Portrait Afzal Khan
- Hansard - -

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

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

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



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

Afzal Khan Portrait Afzal Khan
- Hansard - -

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

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

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

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

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

Afzal Khan Portrait Afzal Khan
- Hansard - -

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

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

Jack Brereton Portrait Jack Brereton
- Hansard - - - Excerpts

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

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

--- Later in debate ---
Stuart C McDonald Portrait Stuart C. McDonald
- Hansard - - - Excerpts

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

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

Afzal Khan Portrait Afzal Khan
- Hansard - -

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

Hilary Brown: Aside from the cost of the appeal to the tribunal, which is over £100, the cost of appealing is not a cost that can just be measured in the cost of the application to the tribunal. There is often the cost of getting representation and having to obtain evidence to go before the various tribunals. There is the cost of certifying and obtaining documents. The withdrawal of legal aid often means that for people to be able to get before a tribunal with a robust bundle of evidence giving some sort of chance of demonstrating that the appeal should be granted in the appellant’s favour, they must be able to find something in the region of £1,000 or £2,000—maybe £3,000. That is just to get together a bundle of evidence to go before a tribunal with a remote chance of succeeding. All too often people just cannot afford that. The fact that we have to put bundles together in a way that proves the documents and evidence they rely on will stand up to independent and anxious scrutiny, and the denial of legal aid, prevents people from getting access to justice.

Afzal Khan Portrait Afzal Khan
- Hansard - -

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

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

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

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

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

Caroline Nokes Portrait Caroline Nokes
- Hansard - - - Excerpts

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

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

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

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

Afzal Khan Excerpts
None Portrait The Chair
- Hansard -

Q It is very good of you to make us aware of that. I assume that there are no further interests to declare. Would the panel members please introduced themselves?

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 Portrait Afzal Khan (Manchester, Gorton) (Lab)
- Hansard - -

Q Good morning, both of you. Let me start with two questions for Professor Ryan. You said in your written evidence that we need a legislative guarantee for EU citizens’ rights in the event of no deal. Why is that necessary?

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 Portrait Maria Caulfield (Lewes) (Con)
- Hansard - - - Excerpts

Q Professor Ryan, may I ask you about clause 2, which relates to Irish citizens? Obviously, the rights of Irish citizens and the common travel area were outlined in the Immigration Act 1971. What does the Bill do to that? Does it add to it? Is clause 2 necessary?

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 Portrait Maria Caulfield
- Hansard - - - Excerpts

Q Am I understanding you correctly? You feel that clause 2 is necessary to add to the existing rights.

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 Portrait Afzal Khan
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Q Where do you see the risks of the Government rolling back their promises to EU citizens?

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 Portrait Afzal Khan
- Hansard - -

Q Professor Manning, in the White Paper the Government proposed a temporary 12-month work visa to help businesses to transition. What do you think are the possible problems with the proposed route?

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 Portrait Jack Brereton (Stoke-on-Trent South) (Con)
- Hansard - - - Excerpts

Q How do you see the changes to free movement affecting the economy? Do you think they will have a positive or negative impact, or do you have more detailed concerns?

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.

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Maria Caulfield Portrait Maria Caulfield
- Hansard - - - Excerpts

Q You have both said in your evidence that the scope of the Bill does not cover future immigration policy, but do you have a view on how quickly that future immigration policy should follow the Bill?

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 Portrait Afzal Khan
- Hansard - -

Q Professor Ryan, you said earlier that there was not enough in the Bill. Is the Bill’s lack of detail a problem?

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 Portrait Afzal Khan
- Hansard - -

Q Professor Manning, you talked about the need to regulate against the risk of abuse of a 12-month visa. What safeguards would be needed to prevent that sort of abuse?

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 Portrait Afzal Khan
- Hansard - -

Q On expenditure, are there any further details that you can give us on what you expect, or in which area?

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 Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
- Hansard - - - Excerpts

Q Professor Ryan, I think everyone welcomes what clause 2 does to protect the rights of Irish citizens and their leave to enter, but your written evidence and other submissions that we have received seem to suggest that it does not go far enough. What else should the Bill do to protect the position of Irish citizens?

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.

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None Portrait The Chair
- Hansard -

Splendid. Which colleague would like to ask the first question? I call Afzal Khan.

Afzal Khan Portrait Afzal Khan
- Hansard - -

Q I have a question for Lord Green. Would you agree that there are certain professions that are not highly paid but are nevertheless highly skilled?

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 Portrait Afzal Khan
- Hansard - -

Q I believe you have expressed concern about the Government’s ability to enforce the deadline on the 12-month visa. Can you elaborate on your concerns?

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 Portrait Afzal Khan
- Hansard - -

Q Do you think the Government will be able to make sure that anyone who comes on a 12-month visa leaves at the end of that period?

Lord Green: No, absolutely not.

Afzal Khan Portrait Afzal Khan
- Hansard - -

Q What do you think of Border Force? Is it adequately resourced at present?

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 Portrait Afzal Khan
- Hansard - -

Q What are the risks associated with giving the Government carte blanche to introduce a replacement immigration system?

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.

None Portrait The Chair
- Hansard -

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.

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None Portrait The Chair
- Hansard -

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 Portrait Afzal Khan
- Hansard - -

Q Your organisation played a key support role in the Windrush scandal. Do you think the Government have addressed the systematic issues in the Home Office so that another Windrush for EEA citizens who are about to come under the UK’s immigration system can be avoided?

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 Portrait Afzal Khan
- Hansard - -

Q Do you feel there is a real risk of EU citizens having the same difficulty as the Windrush people?

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 Portrait Afzal Khan
- Hansard - -

Q On clause 4, what concerns do you have about the scope of powers granted to the Home Office to create an immigration system through secondary legislation, and how well do you think the system of parliamentary scrutiny of immigration is working at the moment?

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 Portrait Afzal Khan
- Hansard - -

Q In the light of what you have said about the complexity and difficulty of the system, would it have been helpful if the Government had followed the Law Commission’s idea of simplifying immigration and then added the 3 million or 4 million, so that it would have been easier to operate?

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 Portrait Eleanor Smith
- Hansard - - - Excerpts

Q What changes would you like to see the Government make—I think you have just mentioned this—to the EU settlement scheme?

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.

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Jack Brereton Portrait Jack Brereton
- Hansard - - - Excerpts

Q Following Brexit, do you think that there should be a preferential system for all EU citizens?

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 Portrait Afzal Khan
- Hansard - -

Q You said the Bill is premature. Can you quickly give us your major concerns about the Bill?

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 Portrait Caroline Nokes
- Hansard - - - Excerpts

Q I am sure that Hansard will correct me if I misheard you, but I think you said very early on in your evidence that short-term visas inevitably lead to exploitation. Do you think that the same holds true for seasonal agricultural worker schemes, or perhaps the tier 5 youth mobility schemes?

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.