Draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019

Alison Thewliss Excerpts

Monday 11th March 2019 General Committees

[Dr Whitford]

I declare an interest: my husband is German and has been a GP in the NHS for over 33 years. Like other EU nationals, he will have to apply to stay with his family and in his home. The Minister talks about how the Government have always made it clear that EU citizens are welcome. If they were welcomed and valued, they would not have been described as playing cards and bargaining chips in the early phases of the negotiation.

As the Minister mentioned, this order is not the means that protects the rights of EEA citizens; it is largely about changing the function of the border. In a no-deal situation, the rights of EU and EEA citizens will be protected by clause 4 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, but some EU citizens are already losing out. Among my colleagues, we have 11 cases of people who have been refused universal credit because they do not have a method of proving that they have the right to remain, even though the UK is still inside the EU. They seem to be predominantly women who might not have their name on a gas or electricity bill and who do not have an unbroken HMRC record because they are carers. That is accentuated among women who have left abusive relationships and therefore cannot return to ask for papers that go back five years. We are still in the EU, and this will clearly be an issue for the very same women under settled status.

[Alison Thewliss (Glasgow Central) (SNP)]

Some of my constituents have been affected by this. Does my hon. Friend agree that this is a pernicious policy? People who do not know their rights are losing out and are not well placed to challenge the decision.

[Dr Whitford]

I absolutely agree. The issue of discrimination was mentioned by the Labour spokesperson. I am someone who has worked on the frontline in the NHS. How are doctors or nurses expected to know whether someone is required to pay or register in order to be treated? Are we meant to go on colour, accent or foreign-sounding names? That is really pernicious from the point of view of breaking down the doctor-patient relationship. We already have patients who are not going to the doctor because they are afraid of NHS England reporting data to the Home Office, which can result only in missing conditions that should be treated. If they are infectious conditions, it increases the risk to others.

I am also aware of cases in which some EU countries—particularly Belgium—do not pay disability pensions or state retirement pensions outside the EU. I am aware of two cases of people in Scotland forced to consider leaving now, because they are afraid that they will have no income whatever beyond 29 March. What discussions are the UK Government having on, and what consideration have they given to, the rules of other countries, to ensure that people who have worked and lived here and contributed to the UK are not suddenly left destitute or having to leave their homes?

Obviously, in a deal situation, people will be expected to navigate appendix EU of the immigration rules, which is an enormous document, to apply for settled status. However, I welcome the fact that settled status will be provided to EU citizens whether there is a deal or no deal. The test version for applying has been open since 21 January, but it will be fully operational only on 30 March. People have tried to interact with it but do not have the right phone or materials, or have to pay and reclaim, so most people will actually wait until afterwards, meaning that more than 3 million people will have to be registered in just over a year and a half. Will the Minister reassure us as to how she thinks the Home Office will cope with the sheer scale of that challenge?

Another issue raised by EU citizens with me is the small print at the bottom of the settlement scheme, which says that somebody going forward with it has to agree to their data being shared with public or private bodies in the UK or overseas. Will the Minister clarify who the Government will share that data with—it might be shorter to clarify who they will not share it with—and what protections there will be? That does not sound like it meets general data protection regulation rules, with people expected to sign up to a blanket sharing of their data.

The draft instrument obviously changes the function at the border, with people able to come here as visitors for only three months. They will not be able to come and spend as long here as they like. That is particularly relevant where people have settled here but still have family in Europe. Family members may tend to come for longer seasons, such as over the summer, to visit children or even to help people manage in the school holidays. This is still a loss from where we are now.

The Minister says that the longer leave to remain of three years will allow people to work or study. Scottish university courses are honours courses and last for four years, so it is clear that there has been absolutely no consideration of visas that allow people to stay long enough to study an honours degree at a Scottish university. That will inhibit our universities, limiting the number of people coming to them.

Like the Labour spokesperson, I of course welcome the fact that the period of absence has been extended; the original proposal of two years would have been laughable. Anyone going from the UK to study in Europe would have lost their right to remain. Having spent almost two years in the middle east as a volunteer, I know that many people who spend a lot of time overseas for perfectly good reasons, whether in industry or voluntarily, would then lose their home and their base here in the UK.

I also welcome that the draft instrument removes the immigration charge. The health immigration charge currently hits a lot of non-EU nationals who actually work for the NHS, which is absolutely ridiculous. It should be removed across the board. It says that people can apply from overseas and may have to provide fingerprints, as well as photographs. Again, I am sure that people would like to know how safe their biometric data will be.

The draft explanatory memorandum talks about the common travel area and how there will not be routine immigration checks, although it does say that those moving within the common travel area would benefit from leave by order. That implies that European citizens who live in Ireland may indeed find themselves suddenly challenged if they travel to the UK. The Secretary of State has the right to give or refuse entry on the grounds that a person’s exclusion could be conducive to the public good. That sounds like a vague phrase, so I would be grateful if the Minister gave us a definition of what that could be and what the safeguards are that it will not simply be used randomly, particularly given the Windrush scandal and that the number of removals of citizenship has gone up in five or six years from 50 to more than 100 last year.

People want to know what the goalposts are and to have some stability. If people are actually going to live somewhere, they need to know that they are secure. It is said that people who are given leave under article 3 of the order may be examined by an immigration officer to see whether there are grounds for cancelling that leave. It does not list any of those grounds—so again, there is insecurity.

At the end of the explanatory memorandum, it says that the Secretary of State did not organise any consultation because he could not think of anyone to consult. I find that rather surprising, because the order has a significant impact on many people. There was also no impact assessment, as the order is not expected to have an impact on business. Well, there are more than businesses in the UK, and more than businesses should have been looked at. Even if we just focus on businesses, however, I would have thought that there will be a significant impact from the fact that they will have to apply to bring people in when they move staff across supply chains.

The explanatory memorandum repeatedly says that people will be able to continue their lives “broadly as now”—but no, they will not. I mentioned the women who are being refused universal credit even now, which, obviously, is likely to get worse when we leave. It is not described as a registration, but an application, which implies that people may fail. Although Ministers have stood at the Dispatch Box and said that no one has been refused, significant numbers of people have actually been refused. They may have succeeded on their second attempt, but they were turned down on their first attempt. The order also limits the ability to bring family members in after the transition period, if there is a deal, or after we leave the EU, if there is no deal. To say that it is not changing how European citizens live here is, frankly, not paying attention.

It is tragic that we are losing freedom of movement, which is one of the biggest benefits that we have had from Europe. Everyone from Germany east knows the value of freedom of movement. For them, it is a “heart and soul” measure, because they were trapped behind an iron curtain and a Berlin wall for so many years. The fact that the Government do not understand what freedom of movement means in a country such as Germany, or in eastern Europe, is exactly why they have not even been talking the same language. For me, the order is not something to celebrate, because that was one of the greatest benefits.

Scotland is one third of the UK. We know that we need more people, and we would welcome them. We find it a major issue that the Immigration and Social Security Co-ordination (EU Withdrawal) Bill is determined to shut down immigration to tens of thousands and to set limits that will cause huge problems for our public sector, our businesses and our economy.

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[Alison Thewliss]

It is a pleasure to see you back in the Chair, Mr Austin, after a brief interlude.

I first want to pick up on what my hon. Friend the Member for Central Ayrshire said. It is absolutely without any basis or substance that anyone could make any accusations of racism about anything she said in her speech. That is simply not the case.

I argue very strongly that immigration is a good thing. It has been a good thing for Scotland and for the rest of the UK, and it has been a good thing for Glasgow. One of my members of staff said to me earlier that if it were not for immigration in Scotland it would just be mince and tatties all the time. We have the world to thank for coming to Glasgow and giving us the benefits of their cuisines and cultures, and all they have brought to our wonderful city through immigration.

Immigration is undeniably a good thing, but services in some parts of the UK have ended up not keeping pace with it. Austerity has caused more problems in more communities across these islands than immigration ever has. The services that ought to have supported people to integrate and become part of their communities are no longer there. The irony is that a lot of the services that people depend on, wherever they come from in the world, depend on people who have chosen this country as a home propping them up, as the husband of my hon. Friend the Member for Central Ayrshire does, and as she did as a surgeon. Many of our people, wherever they live across the UK, depend on those who have done us the great honour of choosing to come to this country, to work, live, love and make their lives here. We owe them a great deal of thanks for that.

[Dr Whitford]

I will not go back into the discussion prompted by the hon. Member for Lichfield, but we have a 90% drop in European nurses coming here, and NHS England has 41,000 nursing vacancies. Does that not exemplify the contribution that people have made to this country, and the danger of turning that off? People are simply put off; they do not feel welcome.

[Alison Thewliss]

My hon. Friend is correct. It is already the case that people who apply to the Home Office to work here are having their lives ruined by the process. I have constituents who worked in care services who are no longer able to work. They would love to be working in the care home that they were working in before, but the Home Office says no. I have a gentleman who is a surgeon, who is not being allowed to work due to delays in the Home Office. He has been told that he just has to wait during the process, but his job will have gone by the time it concludes. It is absolutely unacceptable, and the Home Office needs to look at its processes.

It is my contention that the Home Office will not be able to cope with processing an extra 3 million EU nationals. It certainly will not be able to do anything with this absolute shambles of a statutory instrument. People are being allowed three months’ leave to enter. That is fine. As the hon. Member for Gedling said, we do not know what will happen once they get here—whether they will be processed in a particular way—because no system under which they will be processed is set out in the legislation.

There is no reason why somebody could not come in for three months, leave for a day or an afternoon, and come back in again for another three months. That is perfectly allowable under the system. I do not think that that is what the Minister intends, but that will be the result. I am perfectly happy with people coming in and out; that is no problem for me. Freedom of movement, as I said, is a great thing. However, I am pretty sure that that is certainly not the Minister’s intention with the legislation.

There is no indication whether there will be any restriction on the three months. Under visitor visas, people who are non-EU citizens get six months, and there is then a bit of a restriction regarding when they can come back in, so they are not encouraged to get continual visitor visas. Again, I have constituents in this situation who have had to apply for exemptions on compassionate grounds in order to get back in because relatives have been dying. Nothing within the system in the order says that somebody will have any kind of restriction after the three months. The order is very vague on that.

The order is also vague on specified circumstances. People should be allowed to come in and work and study—that is a good thing—but, as the hon. Member for Manchester, Gorton asked, how will that be checked? Will it be subject to the immigration checking service, and on what basis? How will employers have confidence in the system? At the moment, the employers I speak to have no confidence in the system, due to many errors and issues. How will the employers’ checking service interface with the people who are coming in for three months or so?

Will those people be able to have bank accounts? I have sat on statutory instrument Committees in this House in which we restricted the ability for people to have bank accounts in this country. Will they be subject to the ongoing mess that is the Government’s right to rent policy? Will they be able to go and rent somewhere while they are here, and on what basis?

Why is it that, if somebody is applying for a more permanent status, they will be subject to the £30,000 threshold, which will affect many of my constituents who do not earn anything like that, but who still carry out hugely important and vital roles within my constituency and across Scotland? The people who are coming in for three months will presumably not be subject to the £30,000 threshold, so the system is an absolute mess.

As my hon. Friend mentioned, there is the issue of universities and colleges, of which I have many in my constituency. I have the University of Strathclyde, Glasgow Caledonian University, the Glasgow School of Art, the Royal Conservatoire of Scotland and the City of Glasgow College, all of which are significant educational institutions. Will people be allowed to take up courses on the basis of being able to be here for three months, and then leave for a day and come back? People are making plans, and they need to know what they are able to do.

If people are able to work, are they able to come and give lectures at those universities? Will they be able to come and hold events and seminars? Will they be able to come and contribute to the great cultural activities within the city of Glasgow? It is not clear within the order, because there appears to be nothing underpinning the three-month promise.

How has the information been communicated to people? There has been a series of events across the UK with the Home Office and the Department for Exiting the European Union talking to people about their rights once the UK leaves the EU. A member of my staff attended one of the meetings and the Home Office talked about the withdrawal agreement and what the rights would be. DExEU gave no-deal information. Has that been part of the briefings and have people going to the meetings been able to get that information as well?

Finally, what happens if somebody stays over the three-month period because of some issue? For example, if somebody gets knocked down and has to stay in hospital for a couple of extra days, or cares for someone who is ill, or simply forgets the date that they came, because people sometimes forget things like that, will they be termed as an overstayer? Will they be subject to immigration removal and dawn raids? Will any error or overstaying for whatever reason be counted against them should they wish to make a permanent application in future? If there is very little paperwork to say when they came, when they left and what they did when they were here, I do not see how something like that could be counted against them. Again, that might not be the Minister’s intention—I have different views on that—but it is incredibly unclear as to what will actually happen to people caught up in the system, who cannot see for themselves what the rules will be, how they will be applied and what the future will look like.

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[Caroline Nokes]

The hon. Lady is right to pick up that point. Temporary leave to remain is a mechanism that we intend to use in a no-deal situation, not in a deal situation. In a deal situation, people will have exactly the same rights as they have now to come, apply for the settled status scheme and stay for the duration of their studies. She is right to highlight the issue of those who may be here for longer; these are matters on which we are in intense discussion, both with our EU counterparts and with the Department for Education.

Several hon. Members asked about right to work and right to rent checks. In our December White Paper, the Government made it clear that there will be no changes to the system of right to work or rent checks until the future border and immigration system is introduced at the start of 2021. In the meantime, European economic area nationals will continue to be able to demonstrate a right to work or rent by using a national passport or ID card. Alternatively, they may use the online checking service if they have been granted status under the EU settlement scheme. Non-EEA family members will use Home Office documentation. We have made it clear that we will not require employers to conduct retrospective checks on their existing EEA workers when the future border and immigration system is introduced.

[Alison Thewliss]

rose—

[Caroline Nokes]

I want to cover some more ground, because I am conscious that if I do not complete my comments, there will be a vote at 7.30 pm without my having responded to many of the points that have already been made.

The hon. Member for Central Ayrshire raised the issue of how individuals would know whether they had met the conditions to qualify for automatic leave. The draft order sets out the conditions that need to be met to qualify for automatic leave. They include a person being an EEA or Swiss national; holding an EEA or Swiss passport or national identity card; requiring leave to enter—that is, not having been previously resident in the UK before it leaves the European Union; and being entitled to apply for the EU settlement scheme.

A number of Members raised the issue of enforcement and how we would establish whether people had been here for more than three months. Those EEA and Swiss nationals who arrive after free movement has ended, in a no-deal scenario, should apply for European temporary leave to remain if they wish to stay longer. I am clear on the importance of clear communication, so that individuals understand their status. Upstream communications would seek to ensure that individuals are aware of the requirement to apply for European temporary leave to remain if they wish to stay longer than three months.

The Home Office is working closely with other Departments on communicating the immigration arrangements in a no-deal scenario to key sectors and stakeholders. That includes information on gov.uk to reassure inbound travellers, which went live on the 4th of this month. In addition, preparations are under way for a comprehensive communications campaign in two weeks. As I mentioned, the EU settled status scheme has so far received well over 160,000 applications. I have referred to the SI that will ensure that the scheme fee is lifted and that refunds will be possible.

A number of Members mentioned Windrush; the scheme’s design anticipates many of the Windrush issues. EEA nationals will have plenty of time to make an application. There are dedicated caseworking teams. Support is available for the vulnerable on the phone, in local libraries, in a dedicated call centre, and even in people’s homes. The Home Office has made available £9 million of grants to organisations working with the vulnerable, to enable them to assist those people in the process.

It is important that we provide clear communications on the rights of those in the UK before the UK leaves the EU, and on the requirements for those who arrive after the UK leaves. If EU citizens in the UK prior to exit fail to apply under the settled status scheme, they will not be here actively unlawfully in the same way as clandestine entrants or overstayers. We will give those who have reasonable grounds for missing the deadlines further opportunities to apply.

There was mention of entry via Ireland. We do not operate routine immigration controls on journeys from within the common travel area to the UK. However, EEA and Swiss citizens entering from Ireland will benefit from the leave by order provisions. Those entering from the Crown dependencies will already have leave granted by the islands, recognised by the UK under our integrated legal framework.

The hon. Members for Central Ayrshire and for Glasgow Central raised the subject of women who might be in abusive relationships. We accept a wide range of documents to evidence five years of residence, and dedicated casework teams will help applicants to prove their residence. As I said, we are providing £9 million of funding to help those with vulnerabilities, which is important to ensure they can access the support services we have targeted specifically at them.

I was asked in which circumstances leave would be cancelled at the border. The automatic leave to enter provision will ensure that we can continue to smooth the passage of legitimate travellers through the border, while maintaining the security of the borders. The ability to cancel leave is therefore a key element in making sure we maintain the correct balance.

A question was raised about whether the EU settled status scheme was compliant with the requirements of the general data protection regulation. We take our data protection and security responsibility very seriously. All our data activity must be compliant with the data protection legislation. We want to reassure applicants that we do not allow access to their information by any unauthorised person or body, and can share data only where it is absolutely necessary and where we have a legal basis for doing so.

There are some good examples of where the ability to share data has been of benefit, not least in the settled status scheme’s ability to share information with HMRC and the Department for Work and Pensions; that has enabled a significant majority of those going through the process to have achieved settled status already, without having to provide any additional information. The hon. Member for Gedling spoke about the complexity of the immigration rules, and I have some sympathy with his view. He may not yet be aware of the Law Commission’s consultation on the immigration rules, which is specifically designed to make them simpler and more straightforward, but I urge him and all hon. Members to participate in it.

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[Caroline Nokes]

The suggestion would be that European temporary leave to remain should be about identity and declaration of any criminal convictions, as with the EU settled status scheme, and that it would omit the HMRC check—although the issue is not necessarily an HMRC check, but evidence of residence. The Government will take as evidence of residence a wide variety of proofs; it does not have to be an HMRC check.

The hon. Lady raised the question of conversations between the Home Office and the DWP; I must say that they occur on a regular basis. I am conscious, and not only from matters raised with me by right hon. and hon. Members across the House, that there have been occasional incidents to date, and those are problems we are working hard to iron out with the DWP.

[Alison Thewliss]

The reason I mentioned the £30,000 threshold was to ask whether it would apply to people who are coming in for three months at a time and working.

[Caroline Nokes]

As I said, the hon. Lady is confusing this with the future borders and immigration system, which will enter service in 2021. We are engaging on that threshold over the course of this year. It is absolutely not part of the order and applies not to European temporary leave to remain, but to the future borders and immigration system; I hope that hon. Members have understood that. With that, I commend the order to the Committee.

Question put.