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

Baroness Bennett of Manor Castle Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, many laws come before the House of Lords that I disagree with but few deserve the label “tragedy”—but the Bill now before us does. In introducing the Bill, the Minister set it out plainly:

“The heart of the Bill is that it ends free movement.”


She said it. The Bill deliberately and bluntly ends something deeply precious that had been available to hundreds of millions of people for decades—a freedom and an opportunity for a wider life. It is a tragedy that we are today, in a stroke, preparing to reduce the freedoms and opportunities of 450 million European citizens and the chances for them to come to the UK and contribute their skills, knowledge and energy to our life.

I will focus on the far greater reverse loss for 66 million Britons, and particularly our young people. Denying free movement from the EU to the UK also means the reverse. We lose freedom of movement in the EU in more than a score of countries spread across a good part of a continent.

Lots of this debate has focused on economics, as far too much of our debate assumes that people exist to serve the economy and not the reverse, but I will focus on people’s lives, hopes, loves and, yes, even whims; the chance to up sticks and move, to stop in your travels, to experiment and to change—an opportunity that this Bill wipes out for Britons.

Movement is integral to the nature of our species—indeed, the nature of our genus, when you look at how far even our ancestor Homo erectus spread around this planet. With this Bill we are choosing to deny it to ourselves. It is traditional in your Lordships’ House to declare interests, although I know that as soon as I open my mouth it is evident that I grew up in one place, which I did not much like, and decided to see what was on the other side of the world, being lucky enough to have that opportunity open to me.

Huge numbers of people in the world move not by choice but by force of war and civil conflict, climate emergency and nature crisis. We should be working towards a world where no one has to move, but we should want a world in which everyone can move and make choices. That option is always available to the rich; there are always ways. Losing freedom of movement is profoundly an issue of inequality. It is those without the cash, connections and languages who will be stuck while the few wander the globe at will.

Many noble Lords have outlined how we might make this Bill slightly less disastrous, prevent children being torn away from their parents and couples from each other, protect child refugees and stop Henry VIII powers, and in Committee I will join in that work. Today I ask your Lordships to consider taking a bold, brave step, stop a tragedy and stand up for a deeply precious right: freedom of movement.

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

Baroness Bennett of Manor Castle Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to speak to Amendment 1 in my name and that of the noble Lord, Lord Green of Deddington. I start by thanking my noble friend the Minister and her team for the briefing sessions arranged since Second Reading and the substantial package of materials circulated last week, including some illustrative statutory instruments, which I always find helpful in understanding how Bills will work. We will come on to those in later groups.

I know from all the legislation that I have made as a civil servant and as a Minister, and complied with as a businesswoman and a citizen, that how a new law is enforced and the resources devoted to it is almost as important as the law itself. Our amendment, the first in this group, is a probing one designed to elicit detailed information on enforcement ahead of Report. I note that there is very little in the Bill, no doubt because the enforcement provisions, penalties, powers of entry and enforcement officers responsible sit in existing legislation, but we need a road map. We need to know as much as possible now and, failing that, we need a public report to Parliament within six months, as stated in my amendment—the way the excellent Bill clerks thought that we could ensure the provision of adequate information.

As discussed at Second Reading, my general approach is that government policy should align itself more closely with the majority of public opinion, which has consistently held over many decades that more rigorous controls are needed and that the rules should be enforced fairly and firmly. This was shown unequivocally in the Brexit referendum.

There are a number of troubling issues with enforcement implications. The number of migrants seeking ever more novel ways to get into the UK illegally is growing. Last week, it was reported that a record 416 migrants exploited fine weather to make the crossing from France to England in one day, arriving on beaches all along the south coast. Immigration law can be enforced by tightening border controls or by deporting those without a right to remain in our country, yet we see repeated reports of the failure of government steps to remove migrants who have already sought asylum elsewhere or have no right to remain for other reasons. Last week, a charter flight took off for Spain that was meant to carry 20 such migrants; in the event, only 11 boarded the plane, after late legal challenges. The week before, the Government abandoned a similar flight with 23 migrants on board, after last-minute legal action. Many thousands are attracted to dangerous ways of entering the UK, because the authorities are known to be useless at enforcing the law.

We have passed many laws and regulations in recent years, including in 2014—when I had the pleasure of supporting the then Home Office Minister, my noble friend Lord Taylor of Holbeach—but enforcement has been weak. As a result, businesses, banks and landlords play a big part in policing the rules at very considerable cost to themselves—as I remember well from Tesco. Yet immigration continues to increase. There are large numbers here illegally, both putting pressure on our public services and housing and risking ill treatment and exploitation—for example, in modern slavery or in dangerous low-paid working environments.

The Bill focuses on the EEA and Switzerland, and migrants arriving from those countries are not exempt from the problems that I highlighted. There is never-ending pressure on the EU’s southern and eastern borders, and the growth of hotspots of deprivation in EU urban centres. This phenomenon, most shockingly shown by the queues across Europe a few years ago, helped to bring us Brexit. The Bill must provide the powers we need to tackle these issues properly or we will never be forgiven.

Against this background, I have some questions. First, where are the enforcement provisions that will apply to the Bill and regulations made under it? What are the fines and criminal sanctions that apply and to whom? Secondly, the Bill contains powers to amend primary legislation elsewhere. Can that include enforcement provisions and how would such powers be limited? Thirdly, what are the enforcement authorities—the Border Force, the police, local authorities, the Home Office or the DWP?

Fourthly, what resources are available for enforcement and how much will they be increased? For example, the UK points-based immigration system, set out in CP 258 and at the useful briefing arranged by my noble friend the Minister, requires a huge new administrative structure post Brexit and an ESTA-style system involving millions of individuals every week. According to the department’s interesting impact assessment—thank you to the Home Office for doing one, by the way—there were 142.8 million passenger arrivals in 2018. That included nearly 41 million from the EU and 20.5 million non-EEA citizens. That necessitates a lot of checking. Add to that the pressure on our authorities of the illegal attempts I described earlier, the complications of Covid and post-Brexit trade, and you have a case for much more resource.

Fifthly, what scope is there for the use of technology to ease the obvious pressures on our enforcement? Does that also have downsides too that have been anticipated? 

Finally, will the Minister take another look at the economics of deportation flights? At Second Reading, I suggested the Government take advantage of the current market to buy some small planes for this purpose. Having some experience in this area, I was not happy with the response in the Minister’s letter. Given the failure rate and the apparent ability of lawyers to delay deportation on flimsy grounds, I am sure it would be cheaper, in the longer term, than charter flights. I am clear that, given media coverage and public concern, the public would not put up with the use of scheduled or mixed flights for that purpose. This approach would generate more confidence, and we need that. I urge the department to work with the Treasury if necessary to do a proper cost-benefit analysis, rather than applying some narrow procurement mantra.

In conclusion, I support Clause 1. However, we need to be clear about the rules for enforcement and entry. The other amendments in this group cover other aspects, and I look forward to colleagues making the case for these, although I must to admit to reservations about some of them.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, in following the noble Baroness, Lady Neville-Rolfe, I agree with her that we need to tackle modern slavery and exploitation in the UK and that this is something the Government need to properly fund and prioritise, focusing on the exploiters, not the victims. I am, however, speaking in direct opposition to her statement as I am opposing Clause 1.

Today marks another step in the robbing of rights from millions of Britons that they were born with and the removal of rights for future generations. Clause 1 is a key step by which freedom of movement for Britons and to Britain ends. I believe we should not allow the destruction of rights and freedoms for Britons to pass unmarked, which is why I have put down my intention to oppose Clause 1 standing part of the Bill.

As I did that, I was thinking back a couple of years to a rally in the centre of Brussels, held in ankle-deep snow, where I heard from lots of Britons who had come from across the continent to talk about how freedom of movement had changed and improved their lives. In particular, I think of a woman who, when young, had upped sticks when her life in the UK had not worked out, moved to several European countries over the years, built a couple of different careers and made a full, interesting, varied life for herself. She came from a very poor area of England and from a family with few financial resources. But she had bought a cheap coach ticket, shifted across a continent and found opportunities, interesting experiences and a comfortable place for herself in the world.

The wealthy have always been able to do this and, no doubt, will always be able to. Many an aristocrat set out on the Grand Tour and, by choice, never came home. Many a black sheep from a wealthy family snuck off to the continent and rebuilt their life away from scandal. The arrival of freedom of movement meant the chance for everybody to exercise that freedom to seek the opportunities, the experiences, the enhancements of life that change can bring and the chance to meet new and different people, learn a new language and find a different culture, environment and way of life.

Making that opportunity available to all was a huge step towards balancing inequality, and now it is being wiped out. All our lives are much poorer with the loss of freedom of movement. Of course, it has also been a safety net. British builders escaping the deprivations of 1970s Britain in Germany became a stereotype, but it was a fact. In our shock-ridden, insecure and unstable world, how vital might that right have been to many in the future?

As a noble and learned Lord pointed out to me when I was discussing my intention with him, I do not have the power to simply restore that movement right for Britons. That right is granted by other states under EU membership, which we have now lost, and all those rights will go when we end the transition period at the end of this year. These are rights, incidentally, that quite a number of Members of the House of Lords have availed themselves of. Freedom of movement exercised before the end of December will continue, unless by tearing up the withdrawal agreement signed just eight months ago, as was being threatened this morning, Boris Johnson puts into question the rights of the 1.3 million Britons who thought they were secure through their existing residence in the EU. What I am proposing would keep the rights of citizens from EU states in the UK. But the principle of reciprocation is strong, and we could, in accepting these rights, expect that reciprocation.

Moving countries is something that many people will never consider. My aim will always be for a world where no one is forced to leave their home by poverty, war, discrimination or environmental crises. But there are always people for whom this is an exciting idea: for some, the possibility of escape is attractive, and for others, the possibility of a fresh start they cannot find in their birthplace is essential.

We are also denying ourselves the talents, skills and energy of people from across the continent, who, without free movement, will not have the same opportunities their elders enjoyed. I am sorry about that too.

When young British people ask me what I did to keep their freedoms and opportunities, I will be able to say I did my best to defend them. I ask Members of your Lordships’ House: how would you answer that question? I am not going to ask Members to put their votes on the line today, but I intend to in the future.

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[Baroness Hamwee (LD) [V]]

My Lords, Amendment 8 concerns protections against deportation for Irish citizens. It might seem a little counterintuitive to noble Lords that it is necessary to provide protection at all because it is inherent, as it were, given our relationship with Ireland, the common travel area and so on.

Since 2007, the Government’s policy position has been to deport Irish citizens only where a court has recommended it in sentencing or where the Secretary of State concludes, due to exceptional circumstances, that the public interest requires it. That reflects the special status that Irish citizens have, as I have mentioned, with close historical community and political ties, as well as the common travel area.

However, this is a matter of executive policy not protected by any level of legislation. It currently permits the deportation of Irish citizens in a range of circumstances, circumscribed by EU law relating to free movement. The protections of EU law come to an end in less than four months, so there will be no law to stop a future Government reversing the position. Domestic law would allow them to do so. However, that is completely separate from the UK’s membership of the EU. There is not a democratic basis on which to remove these protections when free movement comes to an end.

The Government have expressed no intention to change the policy position, so it would be good to take the opportunity to incorporate the greater protective status for Irish citizens into law. The position is particularly confusing, given that the Government have taken steps to remove Irish citizens from the automatic deportation regime. They could easily have done so for the rest of the regime and not just when an individual is sentenced to more than 12 months’ imprisonment. The legal position is not corrected by the Bill, and in fact Clause 2(2) weakens the protection because it does not put in place a replacement for the safety net that EU law has provided.

The Good Friday agreement envisages that Irish citizens from Northern Ireland should not, as a matter of law, be able to be excluded or deported from the UK, but that is not currently reflected in UK immigration law. Because British citizens cannot be excluded or deported from the UK there is a risk that, when an Irish citizen from Northern Ireland is threatened with deportation, they will have to assert British citizenship in order to continue to live in Northern Ireland. That goes against both the spirit and the terms of the Good Friday agreement, which allows all people of Northern Ireland to remain in the territory whether they identify as Irish, British or both.

Mentioning the Good Friday agreement reminds us of the importance of the involvement of the devolved Administrations—the different experiences, economies and needs in Scotland, Wales, Northern Ireland and England. However, we also need to keep in our minds the Good Friday agreement and the opportunity that we have here to set what is executive policy into law.

Amendment 58 in the name of the noble Lord, Lord Rosser, requires the Secretary of State to publish a report on the reciprocal rights of the common travel area. I obviously do not oppose the substance of this but we are very near the end of the transition period. The law being created by the Bill—or perhaps I might say the law being destroyed by the Bill—will happen in less than four months, and the protection of rights is a matter for now.

Late on Friday, the Government published a draft statutory instrument, which we will have a word about when we come to the next group. It was only when I looked at the fact sheet that I saw something positive about Irish citizens. The clearest part of the instrument relates to exclusions but I would like to be inclusive. Therefore, although I support the sentiments of Amendment 58, I really think it is a matter for now, and I hope that noble Lords can support Amendment 8, which I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I thank the noble Baroness, Lady Hamwee, for her very clear introduction and explanation of the reasons for Amendment 8, to which I am delighted to attach my name. The noble Baroness set out very clearly the need for legal certainty and security for Irish citizens and people born in Northern Ireland.

Rather than repeating all these things again, I think it is worth very briefly addressing the whole issue of deportations. Of course, in this context, I cannot avoid mentioning the Windrush generation, the hostile environment and the fact that we have increasingly come to see people who have perhaps spent effectively all of their life in the UK, who have very close ties to the country and whose entire upbringing and experiences are in the UK facing deportation. That is utterly unacceptable in any circumstances but the situation with Irish citizens and the Common Travel Area involves two countries between which there has been continual, regular interchange and movement. A large number of people could potentially be affected by this situation, people who could see their lives torn apart. It is crucial that we build in these protections.

We have a great deal to do and it is already late so I will not go on too much longer, but I also want to mention briefly—having listened very closely to the noble Lord, Lord McColl, and the debate on the previous amendment, in which many expressed the sentiment that we should have world-leading protection in the UK for victims of trafficking and modern slavery—that I associate the Green group with those sentiments.

[Baroness Ludford (LD)]

My Lords, I speak strongly in support of Amendment 8 as moved by my noble friend Lady Hamwee and supported by the noble Baroness, Lady Bennett. Like my noble friend, I understand Amendment 58 but, as she said, we need statutory underpinning rather than exploration of the situation because there is no one place where rights under the Common Travel Area are collected. They are still largely expressed in a bilateral convention and now a memorandum of understanding.

The Common Travel Area rights have been overlaid in recent decades by EU free movement rights, so it is entirely legitimate to worry about rights under the CTA when free movement is stripped away. My friend in the other place, Stephen Farry of the Alliance Party —I call him a friend because it is the Lib Dems’ sister party—said that there had been mixed and confusing signals about Irish citizens and the EU settlement scheme. Some have been told that they need not apply but they can, while Irish citizens from Northern Ireland are told that they should not apply. As he also said, on the face of it, Clause 2 goes some way towards giving reassurance and addressing anomalies. However, it spells out not rights but only ministerial powers, and it only applies to immigration issues—especially deportation —whereas the EU settlement scheme covers a much wider range, such as family reunion, equality of treatment, rights of the employed and self-employed, recognition of qualifications and voting. Stephen Farry recalled that only the right of voting for Irish citizens is explicit in UK law. Ideally, therefore, there should be a UK-Ireland treaty perhaps or, at least, an elaboration in statute of the rights of Irish citizens.

--- Later in debate ---

[Baroness Ludford (LD)]

I also very much look forward to hearing from the noble Lord, Lord Blencathra, as his committee has provided us with two excellent reports which have been of great assistance, particularly with regard to Clause 4.

My noble friend Lady Hamwee pinched one of my quotes, but I will use the other one from the Delegated Powers Committee report, which stated that

“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 by negative procedure regulations, unless it amended primary legislation. I think we can take from that that they do not think very much of Clause 4 and the schedule.

Even if there is some value in the fact that the first regulations are by “made affirmative” rather than negative procedure, those rights could be abolished by new regulations under Clause 4, when the negative procedure would apply. Therefore, any value there is in “made affirmative” over negative procedure could be removed by some deft sequencing of regulations. Everything points to the justification of having a test of necessity.

Paragraph 6 of Schedule 1 is also problematic. It potentially disapplies any retained EU law in the context of immigration. This could lead to the repeal of legal protections far beyond the realms of free movement. It could dent the EU law retained by Section 4 of the European Union (Withdrawal) Act 2018 because, even though provisions might have been partially saved by the Act, those provisions would not apply to the extent that

“they are inconsistent with or otherwise capable of affecting the interpretation, application or operation of any provision made by or under the Immigration Acts or otherwise capable of affecting the exercise of functions in connection with immigration”.

That is amazingly broad. We had some fun over the Brexit draft legislation with delegated powers, Henry VIII clauses and so on, but I have not seen anything quite to match this. The phrase

“functions in connection with immigration”

can relate to almost any aspect of immigration control within the UK. This is broadened even further when it is linked to the test of “capable of affecting”. It lacks any objective parameters by which to be able to ascertain the intended targets. Immigration practitioners trying to advise clients will be totally at sea. It undermines the rule of law if people do not know what the law is or could be in this area. They are going to be unable to make their behaviour fit the law.

A number of measures could be cited. Trafficking victims have already been discussed on an earlier group of amendments. Asylum seekers were protected under the reception conditions directive, which the UK opted into although it did not opt into all the asylum legislation. During the debate on an earlier group of amendments, my noble friend Lady Hamwee mentioned the protection of victims of crime and the victims’ rights directive. These protections are potentially at risk as collateral damage from the ending of free movement. Even if the Government do not intend at this moment to repeal these provisions, they must explain why they could fall within the Bill and how they are going to introduce some rigour into the drafting of the Bill, such that this collateral damage does not happen.

With my support, my noble friend Lady Hamwee has put forward one solution in Amendment 11. All the amendments in this group are intended to provide the tightening up that is so sadly lacking from the drafting of the Bill as presented to us.

[Baroness Bennett of Manor Castle (GP) [V]]

It is my pleasure to follow the three noble Baroness who have spoken. In our earlier session I strongly disagreed with the noble Baroness, Lady Neville-Rolfe, but in this case, I agree with her concerns and share her experience of apparent inequality. I sought to table a number of amendments to the Bill to deal more broadly not with just EU and EEA citizens, but I was told that they were outside the scope, yet it appears that the Government are being given open slather to address anything they like through the Bill.

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

Baroness Bennett of Manor Castle Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 9th September 2020 Lords Chamber

[Baroness Ludford (LD)]

My Lords, as the noble Lord, Lord Kennedy, has explained, Amendment 21 is complementary to Amendment 20 in that it seeks to persuade the Government to explain how they would use this power. In the absence of that, it is hard to justify it. The Delegated Powers and Regulatory Reform Committee has expressed great concern about this clause and the breadth of the discretion it would confer on Ministers to levy fees or charges. In this Bill, we are talking about people who, before Brexit, would have had free movement rights under EU law and would not have had to pay these kinds of charges. It is, therefore, beholden on the Government to provide some proper and explicit justification, as the committee suggested, for this inclusion and to explain how it would be used.

In preparing for this debate, I recalled that Section 9 of the European Union (Withdrawal) Act 2018, which gives the power to implement the withdrawal agreement by regulations, expressly excludes the power to impose fees. I seem to remember—although sometimes the last few years are a bit of a blur—that we had quite a dust-up about that provision. Of course, if other amendments to limit the Clause 4 delegation of powers— specifically Amendment 11—were to pass, then Clause 4(5) would drop because Clause 4 powers would exclude fees in that case.

There is, obviously, a great deal of concern about this subject, because the current fees impose costs on people far in excess of reimbursement to the Treasury. In some cases, they force people to become outside any permission to remain because they cannot afford the fees for themselves and their families. When the Minister replied to questions at Second Reading, she said that my noble friend Lord Clement-Jones, “asked whether the visa costs would be brought in line with other countries. These immigration and citizenship fees are set at a level that helps provide the resources necessary to operate our border, immigration and citizenship system. In fairness to UK taxpayers, it is only right that those who directly benefit from our immigration system contribute to its funding.”

Of course, that is right if it means reimbursing the administrative costs that cause the fees, but anything much over that starts to get into the realm of making a profit. Some might see that as a good idea, but, of course, it is problematic when we are going to be—and this is the Government’s vision—competing internationally for skilled people. The British Heart Foundation makes the point that the up-front cost of obtaining a five-year UK global talent visa is £2,608, considerably more than 11 other leading scientific nations. The total average up-front cost for a tier 2 skilled worker visa, taking the cost for the researcher and employer together, is £8,419, 540% higher than the average cost in other leading scientific nations, which is £1,316. I confess that I have not made these calculations myself, but I have no reason to think that they are not accurate.

In the current context of families struggling for work and their incomes in the Covid-19 pandemic, this is even more of a problem. We would like to hear from the Minister the justification that the Delegated Powers Committee has suggested. If it really is only to have the power to reduce fees, that would perhaps be a reasonable point for the Government to make, but in the absence of that reassurance, it is concerning that the Government would have a free hand to raise fees which are already, by international comparisons, pretty high.

[Baroness Bennett of Manor Castle (GP) (V)]

My Lords, I was pleased to attach my name to Amendment 20 in the name of the noble Lord, Lord Rosser, which was also signed by the noble Lord, Lord Kennedy of Southwark. I also agree with virtually everything that the noble Baroness, Lady Ludford, has just said. Essentially, as it appears in the Bill, this looks like a power-grab by the Government in a situation that is already iniquitous and utterly unreasonable. The cost of that to the UK —the denial of the skills, knowledge and ability of people who might go somewhere else because our fees are just too high—was set out by the noble Baroness, Lady Ludford, very clearly. I somewhat disagreed with her, however, when she suggested that it might be reasonable for the Government to cover the actual real cost through fees, and I will particularly focus on children.

In December 2019, the High Court ruled that the Home Office had acted unlawfully in charging £1,012 for children to register their right to British citizenship. This was a judicial claim brought by the Project for the Registration of Children as British Citizens on behalf of two children known as O, age 3 and A, age 12. They were British but could not access their citizenship because they had been priced out. The court found that the Home Office had taken no account of the best interests of the children in setting the fee. It highlighted a mass of evidence showing that the fee prevented many children from registering for British citizenship, thus leaving them,

“alienated, excluded, second best, insecure and not fully assimilated into the culture and social fabric of the UK.”

We are already in an iniquitous situation. The Government have chosen to appeal that ruling, so it is still before the courts. However, we certainly do not want a situation where the Government are not subject to full parliamentary scrutiny. I hope that such scrutiny will be applied, otherwise an utterly unreasonable situation that is bound to affect many more people will become even worse.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I now call the noble Lord, Lord Randall of Uxbridge. Lord Randall, we can see you, but we cannot hear you.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support this group of amendments. I have added my name to Amendments 24 and 31. I see these amendments as being not just in the interests of asylum seekers and refugees, although we have already heard strong arguments for why they are so, but also in the country’s economic and social interests and in the interests of overall social integration, which is supposedly a government policy goal.

A recent paper from the Institute of Labor Economics throws some light on the issues raised by Amendment 24 and others, using cross-European data for a period of nearly 30 years. It concluded that

“imposing temporary employment bans on asylum seekers has large negative consequences for their subsequent labour market integration − an effect that may remain sizable for up to 10 years”.

The authors recommend that

“host country governments should carefully weigh the (alleged) benefits of such bans against their longer term costs for both refugees and the host country economy.”

They found the sooner the access to the labour market, the better, and that when access is allowed it is not helpful to restrict it according to job type or employment sector in the way that our ludicrous shortage occupation list, mentioned by the noble Baroness, Lady Ludford, does.

The paper also found that the existence of a ban has no impact on the numbers seeking asylum, which is one of the arguments that Ministers have used to justify it. I hope the noble Lord, Lord Parkinson, will not come out with that argument, because there is no evidence for it. If he is going to do so, could he please tell us what the evidence is?

Nearly a year ago, I had an exchange with the noble Baroness, Lady Williams, about the economic benefits of lifting the ban. As well as the survey of business leaders mentioned by the noble Baroness, Lady Meacher, a group of business leaders wrote to the Financial Times to make the case, and the FT quoted the CBI chief economist, who said that

“despite being keen to earn a living and participate in the society where they live, many of those displaced are prevented from using their skills to contribute to the economy.”

In a letter to me, the Minister questioned how many asylum seekers would in fact be skilled, and suggested that the priority should be speeding up decision-making and then supporting granted refugees into employment more quickly. No one would dispute the need to speed up decision-making and support refugees into employment but, nearly a year on from that exchange, the Immigration Minister acknowledged to the House of Commons committee that the asylum decision-making timeframe remains a concern. This is not an either/or situation. Worse, at present it seems to be neither: we have neither speeded up decision-making nor do we have the right to work. I accept that the assumptions about the proportion of asylum seekers who are skilled may be optimistic, as the Minister said, but that does not invalidate the case, not least because many of those deemed to be unskilled may in fact have very real skills to contribute, including to the care sector, which we heard about on Monday.

This May, the Lift the Ban campaign carried out a skills audit of people seeking asylum. Nearly half of those audited reported previous occupations that would fall into the Government’s definition of “critical workers”, with one in seven having worked in health or social care. Have the Government carried out such a skills audit on which to base their position?

In Amendment 31, which I was very pleased to be able to support, we are talking about a group of displaced refugees who would be recognised as skilled under any definition. The right reverend Prelate has already made a strong case for what I believe is a very helpful and, as he put it, creative idea that is well worth exploring. I hope the Government will explore it. I understand that there have been pilots to see how it might work. It worked rather well in other countries but unfortunately has floundered in this country because the Immigration Rules have meant that it is not practical or scalable. If nothing else, I hope there might be a way of seeing whether we can have a proper pilot in this country.

All I will add to the case already made so well by the right reverend Prelate is to emphasise a point that has already been made in a sense: we do not see this as a substitute for fulfilling our obligation to provide a safe haven to asylum seekers and refugees or for positive reforms to the asylum system, including the more general right to work after at most six months that we have been talking about.

The Government have dragged their heels over the right to work issue, as we have already heard, for nearly two years, yet suddenly it is all speed ahead with what we are told will be the new asylum Bill, designed not to help asylum seekers, as it would seem from what the media has said about it, but to make it harder for them to come here. Suddenly it has become an urgent matter, whereas there has been no urgency at all to do something for asylum seekers here.

If the Government want to dispel the fears about this forthcoming Bill—that it is all about how we keep asylum seekers out and nothing to do with how we make life better for them when they are here—I hope at the very least they will commit today to finish their review of the right to work and include it in this forthcoming Bill.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it was my pleasure to attach my name to Amendment 24 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, and the noble Baroness, Lady Lister. I express my support for all the amendments in this group, including, as has been said, the very creative Amendment 31 in the name of the right reverend Prelate.

I am following five eloquent and powerful speeches, so I do not feel the need to add a great deal. Those speeches, collectively and individually, have utterly put paid to any suggestion that the UK is generous to people who come to our shores fleeing war or repression and desperately in need of sanctuary. As other speakers have made clear, we are an international outlier in our restrictions on work, to which these amendments refer. I am sure the Minister will recall that she very kindly took the time to hear from me about the circumstances of the asylum seekers in Urban House in Wakefield and the conditions in which people are living.

We all know that the hostile environment of the Home Office is very often chaotic. People are trapped, often for years, living in inadequate privatised housing with the desperately limited sum of £37.75 a week to try to get by on and denied the opportunity—which so many of them are desperate to take—to work. I cite a young woman I spoke to some years ago who made a huge impact on me, so eloquent was she about the situation she found herself in. She was, you might say, an extreme case, but sadly a not at all uncommon one. She had come to Britain as a young woman of 18 or 19, having been a political activist in Zimbabwe— I have no doubt that she was a victim of torture. Some 10 years later, we have still not given her status. She was studying for a degree through funding and support from a voluntary organisation, but she told me what her situation was like:

“I feel like I’m in a cage. I can see the door, and people keep walking back and forth in front of that door with a key in their hand, but they never stick the key in the lock and let me out.”


Leaving people in that situation is torture. We are talking about people who are often already victims of torture. Any of these amendments would be a significant improvement. The three-month amendment is obviously the best one. The current situation cannot continue; it is damaging to all British society as well as to individuals. I commend these amendments to the House.

[Lord Dubs (Lab) [V]]

My Lords, I support all these amendments very happily. I appreciate that the Bill is concerned with EEA and Swiss people, but there is a point of principle which goes wider than the limited scope of the Bill. Some of the arguments we are using apply to that wider point of principle. The first three, Amendments 22, 24 and 29, are all similar, except that they vary on the length of period necessary before permission to work is granted and/or whether one needs to apply separately and additionally to the Secretary of State or whether the right to work is automatic.

We hear the arguments about pull factors. I think every time I have been involved in debates on immigration, asylum seekers or refugees, I have heard the phrase “pull factor” used to rebut any argument used. It is a stock response from the Government and I am not convinced that it is all that powerful an argument. Sometimes it does not apply at all. I have on occasions met people desperate to work. I was in south Wales not quite a year ago and met some asylum seekers. They had two requests: first, could they be helped to learn English because, secondly, they wanted to apply for work. Work was the key thing for them.

There is another group of people who are victims of lacking the right to work: children who come here and reach the age of 18 without having had their status confirmed. There is a later amendment which will give me the chance to develop this argument further. Such people are then in a very vulnerable position. Not only do they not have a full right to stay in this country but, as I discovered from some social workers who begged me to say that they have got these young people, they are not allowed to work and are stuck in complete limbo. I am sure we can all produce other examples of people we have met who are desperate to have the right to work. I think that, statistically, 61% of all asylum seekers have waited over six months to get their status determined. That is a higher proportion than any since records began. Reference has already been made to the Home Office review, allegedly started in 2018; I hope we can learn more about what has happened to it.

I will mention briefly some of the benefits of people being allowed to work, many of which have been referred to already. Above all, there is self-respect. We want people in this country to have a sense of their own worth and self-respect. To deny that to our fellow human beings is pretty appalling. It is a matter of integrity that people should be allowed to work. It is a way out of poverty. Public opinion is overwhelmingly in support of having people here who work rather than eking their existence out of virtually no benefits—even if they were on larger benefits, public opinion would still support the right to work. We are dragging well behind comparable countries. If there is a pull factor, it is those countries that will attract people rather than this one. Above all, people want to contribute to society. Talk to any asylum seeker and they will say that they want to contribute to this country and our society.

These amendments are really important. They add to the dignity of our fellow human beings. I hope that the Government will see their way to being supportive of them.

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[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is my pleasure to support Amendment 23 in the name of the noble Lord, Lord Flight—who just presented an excellent introduction to it—and signed by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser.

I also refer noble Lords to my Amendment 79, which addresses some of the same issues, although it is particularly addressed to children and was inspired by an issue that I have worked on many times over the years, known in shorthand as “Skype families”, whereby people are able to maintain family relationships only by Skype—perhaps we should call them “Zoom families” these days—over long periods for all of the reasons the noble Lord, Lord Rosser, just outlined.

We have seen many people trapped in this situation. In particular, I recall a gentleman who contacted me and was frantically trying to find anyone who could help him in a situation similar to the one described by the noble Lord, Lord Flight. His family origins were in south Wales, but he had been teaching English in Thailand for a number of years and was seeking to come back to care for his aged parents—care that would, of course, potentially save the British state considerable amounts of money as well as ensure family reunion—but he would not be able to bring his Thai wife and children with him.

We are now in a situation where many more people are likely to be caught in this trap. We know that there has been a huge exchange of people across the continent, and families have been created. One thing that I have found when working on this issue over the years is that, when many of the people who have found themselves caught in this situation talk to me, they say that they have talked to other British people—friends, neighbours and work colleagues—who say that this surely cannot be right and that surely a British person can live in their own country with their foreign spouse or partner and/or their children. They are British; that must be a right—this is what people believe. Indeed, I have encountered members of the public who, when they went to their MP for assistance, found that this was initially the impression that elected Members of Parliament had.

I believe that we should have a rule for everybody: a British person should be able to live in their own country with a foreign spouse or partner and their children, independent of any income situation at all. As referred to previously in this debate, the Public Bill Office tells us that, within the scope of the Bill, we are allowed to refer only to EU and EEA people, so that is what this amendment, like Amendment 79, does.

However, I will not talk at great length because this is an issue about which I am sure many Members of your Lordships’ House attending this debate—and I hope the Minister as well—are well aware. However, I will finally reflect that I am sure that the Conservative Party would claim to be a party of, and in support of, the family. Why would it want, through immigration law, forcibly to separate families, spouses and children, forcing people into impossible choices over caring for elderly loved ones, being with their children, living as a family and having a family life?

[The Earl of Clancarty (CB)]

My Lords, I support this amendment and thank Brexpats—Hear Our Voice for the excellent “British in Europe” briefing. I will be brief because there is a straightforward argument here.

This is a simple matter of humanity. We are talking about British citizens living in Europe, who, like the rest of us, had no inkling up to four years ago of the significantly changed circumstances in which they would find themselves. Many have raised families in EEA countries with the reasonable expectation that their and their families’ mobility around Europe—including the UK—would not be affected in the future. Of course, Brexit has changed that.

We need to help our fellow British citizens and ensure that those who wish or need to do so can return to the UK with their families without deadlines being put on that return or any other conditions, such as the MIR, needing to be met. Indeed, as it stands, as the noble Lord, Lord Flight, said, we are discriminating against our own citizens if EU citizens who moved to the UK before the end of 2020 can, according to the withdrawal agreement, bring family members here for life and return to their own countries with their families. This is a clear discrepancy.

I cannot see any good reason why this amendment should not be accepted. I hope this is a matter that has just been overlooked. I will listen with interest to the Government's response.

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[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

I am sorry to interrupt, but somebody else wants to ask a question. I shall let them ask the question and then come back to the noble Baroness, Lady Lister, to let her finish. I am really sorry about this. The noble Baroness, Lady Bennett, has made a late request to ask a question and I think we should let her ask it.

[Baroness Bennett of Manor Castle (GP) [V]]

I thank noble Lords and apologise for my lateness; I am having a very bad day with technology. I tried to send the email about 30 minutes ago.

I join other noble Lords in being very disappointed given the powerful and wide-ranging contributions from all sides of the Committee, both spiritual and temporal. In asking my question, I think I need to declare my position as a vice-president of the Local Government Association. I wonder whether the Minister can offer us one concession tonight or whether she will go away and think about making this concession. I refer to Amendment 68 and to subsection (2) of the proposed new clause which refers to children in the care of a local authority. I do not need to tell noble Lords that local authority funding is extremely stretched and extremely fragile and that there are huge demands on children’s services. As a responsible institutional parent, a local authority would surely want to secure citizenship for a child in its care, but that would be taking money away from other services, so will the Minister consider at least thinking about ensuring that if there is no waiving of fees, local authorities are recompensed for the cost of those fees?

[Baroness Williams of Trafford (Con)]

The noble Baroness has just demonstrated that it is really beneficial to be here throughout the whole of the debate, because I covered that aspect on local authorities in my speech. If she reads Hansard, it will clarify the matter for her, and if she would like to come back to me again, I would be very happy to respond.

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

Baroness Bennett of Manor Castle Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 14th September 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, in moving Amendment 42. I will speak also on Amendments 50 and 71. These amendments deal with the so-called hostile environment measures. That phrase is used by the noble Baroness, Lady Bennett, in her Amendment 71, which extends to the Data Protection Act; that is the subject of the next group. I am aware the term used now by the Government is “compliant environment”, but I am concerned with the substance not the terminology.

We have turned citizens, our public services and the police into border guards. We have dumped on them the enforcement of immigration control. The policies encourage us to be suspicious of each other and undermine trust in our public services. People are deterred from seeking medical treatment for fear of a large bill or being reported, detained or deported. An answer to this would be that emergency treatment would not be withheld. A condition not an emergency today may still need treatment and it may become life-changing or life-threatening.

To what end is the hostile or compliant environment? I understand that the Home Office acknowledges that the “vast majority”—I quote that term—most of whom are people who came here legally but subsequently lost status, have done nothing wrong. Landlords are required to check the immigration status of potential tenants and face huge fines or imprisonment if they fail to check or get it wrong. Can it be any surprise that many landlords take the easy course and look for tenants who are British passport holders? They must regard this as being simply practical, not discriminatory. It is—though without any real sanction.

The Joint Council for the Welfare of Immigrants, whose action against the Home Office continues, says on its website:

“It takes BME people and migrants up to twice as long to find a home to rent as a white British person.”


Recently, the organisation the3million commissioned a poll of employers in connection with its campaign for physical documentary proof of EU settled status; we will come to that shortly. The poll seems relevant to this issue. It was a poll of professionals with authority over hiring decisions. It said that it was worth noting that the picture is bad when considering all employers in the UK; the fact that the poll was online means that there will be a certain amount of oversampling of employers who are more comfortable with digital technology. This affects EEA and Swiss citizens in the immediate short term, but the Government aim to roll out the digital-only status to an ever-expanding group of immigrants.

The poll’s findings included the fact that employers are very concerned about the consequences of getting it wrong. This creates an incentive to play it safe and avoid recruiting people from outside the UK, so there is just the same risk of discrimination as in the landlord/tenant sector. Thank goodness the “Go home” vans were short lived.

We can address only address legislation through our amendments. The legislation sets out the policy, and from the policy, practice flows.

A week ago, Ian Birrell wrote an interesting and powerful article in the i about the impact of our arrangements. He talked about the large number of people who

“had never bothered applying for passports, while the Home Office had lost their papers”

and then discovered that they were “technically undocumented”. One young woman who found herself in that situation was precluded from attending university, for which she had qualified, and is behind a report showing how lives are “distorted and damaged”—her words—by a

“callous bureaucratic system that sows division, hurts mental health and condemns families to more than a decade of massive financial strain … Talk to these young adults and you hear tales of life on the edge as they are pitched into a Kafkaesque process that is complex, intrusive, often incompetent, demands huge and constantly rising fees”—

the fees are no little part of the picture—

“yet make one mistake and, like a dystopian game of snakes and ladders, applicants slide back down to start the torturous … process to citizenship again.”

I will discipline myself and not quote further from the article, but it ends by saying that

“the horrors of the hostile environment have not faded”.

The Government talk of welcoming people from the EEA making a home here within the Immigration Rules, but the application of the hostile or compliant environment legislation does not say, “Welcome to the UK.”

I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I will speak to Amendment 71 in my name and also to Amendments 42 and 52 in the names of the noble Baronesses, Lady Hamwee and Lady Ludford. They cover parts of Amendment 71 and also Amendment 43, which covers data sharing.

I pay tribute to the campaign group Liberty for its help with my preparation of this amendment and for its support through its unfortunately unsuccessful struggle to see its scope allowed to cover everyone affected by the hostile environment, rather than just those who face being newly affected by it—for whom, as the noble Baroness, Lady Hamwee, said, the digital-only status is likely to create particular issues.

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Amendment 72, in the name of the noble Baroness, Lady Bennett, seeks to limit the use for immigration purposes of data gathered by certain public service bodies in healthcare and education, and where the person has reported a crime or being a victim or witness to a crime. The amendment is helpful in at least limiting the harmful impact of Paragraph 4 of Schedule 2 to the Data Protection Act, but that paragraph in fact needs wholesale deletion. I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, my Amendment 72 complements my Amendment 71. I have spoken at length on these issues, so I will be brief. I also support Amendments 43 and 74, in the names of the noble Baronesses, Lady Hamwee and Lady Ludford. I thank the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, for making the same point as I made at the start of my speech. It might seem somewhat disingenuous to suggest that these amendments are discriminatory by choice, when we were actually given the option of applying these only to limited numbers of people. Everyone who has spoken on this subject has expressed their desire to see them used to end the entire hostile environment.

[Lord Dholakia (LD)]

My Lords, the Data Protection Act is designed to fundamentally affect the way we use data to market, provide services and run our businesses. It also provides an obligation to warn people how their data will be gathered and used. My noble friend has already spoken about why the immigration exemption in the Data Protection Act 2018 does not apply to EEA or Swiss nationals. I support the arguments that have been advanced, particularly in the field of immigration.

Immigration is a fairly emotive issue and the use of data has caused serious problems in this country. There is an insatiable appetite to question migrants about their movements, but to put very little emphasis on what has been said. The Minister arranged a briefing session prior to Committee. I was not satisfied when I asked why some of the agencies can share the information collected but the police have been excluded from this arrangement. We need clarity on this issue, and I hope that the Minister will be able to provide that today.

I do not dispute the procedures, which are to admit those who are eligible and to remove those who are not, but in any administrative system questions arise about priorities. The administration of the immigration system is no exception and we know that the points system is to be introduced at the tail end of this particular withdrawal Bill. The purpose of the data collection is not in dispute. The administration of the immigration system about the need to exclude the ineligible is no exception. It has always been the case that to exclude the ineligible means that checks have to be made to determine who is eligible and who is not. The immigration officers have similar powers to those of the police in this matter. There is always a concern about fishing raids unless they are done on intelligence. The problem is that the more intensive these checks are, the more delay and expense there is to those who are eligible. The matter of proper documentation has been a point of dispute and likely to cause serious problems. We have seen this in relation to Windrush, which is so often mentioned in debates on this subject. Even today, after 70 years, we have not resolved this issue. We may head towards the EU settled migrants with similar problems if we fail to give proper documentation backed up by proper data collection and the proper use of information collected.

There are ample safeguards on how the information on individuals is to be used. It is explicit that such information may not be used for immigration control or enforcement. All we want to ensure is that there is less adversarial contact with migrants. The police need adequate information in their duties as providers of public services, as is the case with public service organisations such as the NHS and schools.

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[Baroness Smith of Newnham (LD)]

My Lords, I essentially support all the amendments in this group, but in particular it is crucial to think about the EU nationals resident here for maybe five years or more who expected to get settled status and then were given pre-settled status. As my noble friend Lady Hamwee so eloquently outlined in her opening remarks, 41% of those EU nationals seeking status of some sort have so far been given pre-settled status.

Maybe members of Her Majesty’s Government are always fully on top of every detail of every document they are ever required to look at, sign or agree. Whenever they get a piece of paper—assuming they even get a piece of paper and it is not some digital communication—they presumably know where they put it and they will know that on some future date, perhaps 23 July 2023, they will have to say, “Now I’m due to have my settled status. Oh Government, please, what do I do now?”

Every Minister might be able to do this, but I suspect that many of the 1.4 million people with pre-settled status might be more like the rest of us: they would know at the back of their minds that they needed to do something. It is a bit like doing a tax return, but at least with an annual self-assessment, one is reminded of it constantly—not just by emails from HMRC but by regular newspaper and television advertisements telling people the date by which they have to do their annual self-assessment tax return. People with pre-settled status are not going to have a single date: each of them will have a different point at which their five-year residence is up and needs to be turned into settled status. Amendment 45 is therefore absolutely crucial.

The Minister may argue that each individual should take responsibility for themselves—this may be the government view. I am sure that everyone who has sought settled status and has so far been told that they can have only pre-settled status is trying to take responsibility for themselves, but there may be all sorts of reasons why they do not necessarily remember the precise date by which they need to regularise things. It could be because of individual specific circumstances. As the noble Baroness, Lady Altmann, mentioned, it could be because of the Covid crisis. There are all sorts of reasons people may not be able to deal with paperwork in the way they would normally be able to do. There may be a family bereavement—there could be a whole set of reasons why people have not thought through what paperwork is required.

There is, however, something to be said for the Government sending appropriate reminders. Surely one of the lessons of Windrush is that it is hugely important not only for individuals to have details of their own status but for the Government to have them too. If the Government are moving so much towards digitisation—so that all settled status documentation will be digital, unless the amendment in the name of my noble friend Lord Oates is passed—it ought not to be beyond the wit of the Government to have a mechanism for alerting people, six months out, to what they need to do to convert their status. If the Minister is minded to demonstrate Her Majesty’s Government’s compassionate and flexible approach—not something we very often see from the Home Office—that would be one way of going about it.

The amendment in the name of the noble Lord, Lord Rosser, requesting information about what would count as appropriate for a late application is most valuable. EU nationals who have used their rights of free movement in recent years would be fully aware of the requirement to seek settled status. But people who have lived in the United Kingdom for many years—who were maybe born here, to parents who are not British but who had the right to be here because of some other European citizenship—may not think to apply. Maybe they have lived all their lives in the United Kingdom and never stopped to realise that they did not have the rights of residency that settled status would give them, without which they may not even be permitted to be in this country. Unless the Government has an effective way of identifying a whole range of people eligible for settled status but who did not realise that they needed it, some flexibility is required. A tolerant country would surely allow these people to apply late when their status becomes clear.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I offer the Green group’s support for all the amendments in this group. We have already had a strong, informative debate, so I will not take up very much of the time of your Lordships’ House.

I wish to address a couple of points. On Amendment 46, on comprehensive sickness insurance, the noble Baroness, Lady Whitaker, powerfully and clearly set out the discriminatory effects of this surprising—possibly illegal—application of the rules. I am particularly concerned about the differential gender impact: invariably, it is women in caring situations who do not have their own income who will be affected by this.

I want to speak briefly to Amendment 44 in the name of the noble Baroness, Lady Hamwee. This can be described only as a modest and reasonable request for transparency, democracy and scrutiny from the Government. It asks them to show what their plans are for looking after the group—that will inevitably, by definition, be made up of more vulnerable people—affected by the inability to apply for settled status within the deadline. Debating this amendment in the other place, as well as in your Lordships’ House, would be a chance for scrutiny, as well as constructive engagement, the pointing out of flaws and making suggestions for improvement. Will the Minister consider this? We can assume, I hope, that we will receive many assurances from the Government about how they intend to use the right to late applications. The Government clearly already have in mind how this is going to look, so surely it would not be that difficult to set it out on paper.

I want to briefly follow on from what the noble Baroness, Lady Smith of Newnham, said about technology. These days, what people have to do practically and how they manage their lives is increasingly digital. Maybe you have put a reminder to yourself in a digital calendar to do something. The deadline is there and you have done the right thing, but we all know that sometimes technology goes wrong: computers die and people lose passwords. The Government should be able to ensure a steady recording and reminder process. They do not perhaps always have a great record when it comes to IT projects, but this should not be very difficult or very costly. It would provide people with a security blanket, which is what all these amendments seek to do. As the noble Baroness, Lady Hamwee, said in her introduction, we are talking here about enabling people to exercise the rights to which they are entitled. Surely that is something that the Government want to make as easy and practical as possible.

[Baroness Ludford (LD)]

My Lords, this group of amendments, and the later group on the grace period, are somewhat interrelated. However, as I will not be speaking to that group, I want to make all my remarks now.

Amendments 44, 45 and 46, in my name and that of my noble friend Lady Hamwee, with support from the noble Baroness, Lady Whitaker, and the noble Lord, Lord Bourne of Aberystwyth, on Amendment 46, are designed to address concerns about late applications and the need for the EU settlement scheme to remain open. As my noble friend Lady Hamwee has fully explained, it would ensure that those granted pre-settled status get a reminder of the need to apply for full status and can, in the meantime, enjoy access to social assistance and housing. It would also rule out a retrospective requirement for private health insurance, which is what comprehensive sickness insurance means in this context, if a person with settled status applies for citizenship. I also fully support all the comments made by my noble friend Lady Smith of Newnham.

A week ago, in a debate on applications for citizenship, the Minister told us that

“if people who were previously here as a student, or as self-sufficient, lack this”—

“this” being CSI—

“it does not mean that an application will be refused. The British Nationality Act allows for discretion to be applied around this requirement in the special circumstances of a particular case.”—[Official Report, 7/9/20; col. 579.]

I do not think we were told what the nature and criteria of the exercise of this discretion would be. Perhaps the Minister can tell us a bit more about this.

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[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I am the first person who signed Amendment 51 to speak on this group. I thank the noble Lord, Lord Oates, for providing such a clear introduction to both the need for a physical document and the difference between these two amendments. Amendment 51, which I signed with the noble Lords, Lord Rosser and Lord Kennedy of Southwark, calls for the automatic provision of the document, as the noble Lord, Lord Oates said, and Amendment 49 would provide one on request. I would argue that Amendment 51 is stronger because “on request” requires people seeing into the future and predicting when things might not work. It would be simpler and easier for the department to administer, but either one of these amendments would be a significant improvement on the situation we have now.

As the noble Lord, Lord Oates, said, both the3million and Britons in Europe have done a great deal of work to spread the information about the need for this document. I was at a briefing earlier with the Children’s Society and the3million, focusing on the situation of the 260,000 children who have acquired settled status and the 150,000 who now have pre-settled status. If we think about the situation where—in about 10 or 15 years’ hence—one of those young children has to suddenly prove their status, recovering all the emails, the phone numbers and all the other information they might need to do that is likely to be far from simple.

I also want to address the situation for adults. Can the Minister confirm my understanding of what the process would be? My understanding is, for example, if someone wants to prove their right to work—as we were discussing in an earlier amendment—they will need to access their status via a website, providing the passport or ID card they applied with and their date of birth; they will then have a choice of getting a code with either email or phone; that code will need to be entered on the website; if that is successful, their status will appear on the screen and there will be an option to prove their status. They will then have to fill in the employer’s email address; the system will attempt to email a code to the employer, who will then need to find the correct website, enter the code along with some security information and finally see a screen with a photograph and proof that the person has the right to work. Does the Minister acknowledge that this has many moving parts? If any one of these fails, then it all fails.

We were talking before about landlords being reluctant to go through the extra hassle. We can also imagine plenty of employers who might be similarly reluctant—if they are choosing between two nearly equal applicants—and thinking, “Well, let’s just go for the simpler option.” We saw research from the Joint Council for the Welfare of Immigrants that showed that only three in 150 landlords said they were prepared to do those digital checks. Perhaps employers might not be quite so prepared—if they are concerned about discrimination legislation—to talk about their reluctance to do it, but you have to wonder if it would be there.

Of course, as other speakers have already said, this is really very frightening; it makes people feel very insecure. It is estimated that 22% of people do not have the essential digital skills to complete this process. It might be that they rely on someone else—such as the small child that I started off by talking about—but what happens when that person is no longer accessible or available to them or in contact with them? Physical back-up would provide people with certainty and security. It would be good if everyone had it, but either way it should certainly be available. Therefore, I commend both of these amendments, but particularly Amendment 51, to your Lordships.

[Lord Alton of Liverpool (CB)]

My Lords, it is a pleasure to support Amendments 49 and 51. I listened carefully to what the noble Lord, Lord Oates, said in introducing them so cogently and reasonably, and I had the advantage of being able to have had a conversation with him last week where he explained the generalities of the amendments to me. I thought the arguments were compelling; the noble Lord, Lord Polak, put it well when he said this was a practical and sensible option. All three speeches that we have heard so far have underlined why this is not one of those ragged political debates that require us to take positions; it is something about which we can do something useful this evening in Committee.

I will turn, if I may, from the generalities to something specific, a particular case of people who will be especially disadvantaged by the impact of digital-only status: the Roma community. On 2 August, Roma Holocaust Memorial Day commemorated the shocking liquidation of Roma in August 1944 at the so-called Gypsy family camp at Auschwitz- Birkenau. On that infamous day, 2,897 men, women and children of Roma or Sinti origin were murdered by the Nazis. Of around 23,000 Roma taken to Auschwitz—and hundreds of thousands more perished during the Holocaust—an estimated 20,000 were murdered there. At the time of the liberation of Auschwitz, only four Roma remained alive.

Now, 76 years later, Roma people still face discrimination and liquidation. I especially commend the work of the All-Party Parliamentary Group on Roma in ensuring that Parliament understands the horrors that this community has experienced and the special circumstances and challenges which it faces today.

In debates like this, I miss the voice of Lord Avebury, a good and long-standing friend and the author of the Caravan Sites Act 1968. At the memorial event celebrating his life, Damian Le Bas, a Roma who wrote The Stopping Places: A Journey Through Gypsy Britain—a remarkable insight into the world of Travelling people—spoke powerfully about how parliamentarians such as Lord Avebury can act to ensure that the UK’s 200,000 Roma can lead lives of dignity.

Lord Avebury would have been the first on his feet to support these amendments, pointing to the lack of awareness within the Roma community of digital immigration status and the way in which digital exclusion simply builds on the other exclusions which Roma historically have experienced. The Roma Support Group says that only 3% of Roma are able independently to complete online applications such as those required by the European Union settlement scheme. Very little data exists about how many Roma have applied to the EUSS so far and been given settled or pre-settled status. As the debate proceeds, I will hand the Minister a copy of the Roma Support Group’s briefing on this so that she can read some of the cases illustrating this point. I would be grateful if the Minister could say how this problem can be addressed, especially as the Home Office data does not include a breakdown of ethnicity.

Enabling those who need it to receive physical evidence of their status in the UK would certainly be a start, and enabling programmes to be developed which could address the issue of digital exclusion, on which this debate has helped us to focus, would be a very good outcome.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I rise to speak in support of Amendment 53, to which I have added my name, which was moved so ably by my noble friend Lord Rosser. I am sure that I also support Amendment 73, but that has not been explained yet.

The recent report of the Food, Poverty, Health and Environment Committee identified those with no recourse to public funds as particularly vulnerable to food poverty and insecurity. The impact on children has to be of particular concern.

A pre-Covid study of children and food by the Child Poverty Action Group—of which I am honorary president—found that children in families subject to the rule were among the most deprived in the study. Both children and their parents were going hungry, and denial of entitlement to free school meals was a particular problem. One child said of his hunger that

“it was like I got stabbed with a knife and it’s still there.”

Another explained:

“Sometimes you don’t have enough energy, you cannot cope in the classroom so you have to, like, try and rest a bit. You just put your head on the table and you end up falling asleep in the classroom and you get in trouble for it.”


The partial concession, which allowed some children in families with NRPF to claim free school meal support this summer, was very welcome as far as it went. But what possible justification could there be for withdrawing it now that these children are back at school, with the pandemic very much still with us? A letter from 60 organisations to the Education Secretary last month put it very well; it said that

“the Covid-19 pandemic simply exposed the precariousness of daily life for thousands of NRPF families, where the absence of a safety net leaves them only one crisis away from catastrophe. No matter where the next few months lead us, this basic fact will not change. Meanwhile, the effects of this crisis will continue to be felt for years to come. While much effort is being made to ensure children do not fall behind, without access to free school meals many children in NRPF families will face having to make up for half a year of lost learning on empty stomachs, at a time when they may still be struggling to cope with the mental and emotional aftershocks of lockdown.”

As we have heard, the Government have devolved to local authorities much of the responsibility for this extremely vulnerable group, without willing them the means to provide the support needed and without providing clear enough guidance during the pandemic. In particular, as the Work and Pensions Committee noted, there is lack of clarity on whether local welfare assistance funds, which have been boosted during the pandemic, count as public funds for these purposes. Could the Minister provide a definitive clarification on this?

Another concern, as we have heard, is the lack of official data. There has been an exchange between the chair of the Work and Pensions Committee, the UK Statistics Authority and the Home Office on the issue. While it is welcome that the Home Office has now published data on the change of condition applications, this is only a rough indicator of the extent of hardship caused and the data need to be disaggregated. Could the Minister undertake to see what can be done to improve the provision of data, possibly in consultation with the Children’s Society, which has done a lot of work on this? Without it, how can the Home Office assess the impact of the policy?

The amendments raise important social policy issues, but more fundamentally they raise crucial human rights issues. As Project 17 and Sustain point out, the UK Government have signed up to a number of international human rights standards that uphold the right to food, including the UN Convention on the Rights of the Child. I agree with them that, to uphold these obligations,

“our Government should ensure that all children, regardless of immigration status or any other characteristic, are able to access food in a dignified way and this should include universal entitlement to healthy free school meals.”

Of course the “no recourse” rule does not only affect access to food—for example, there are serious concerns about its impact on survivors of domestic abuse, which we will be raising when the Domestic Abuse Bill is with us—but the right to food is crucial to both healthy development and education.

Amendment 53 is a very modest amendment—indeed, some might say too modest—but it could make a real difference to a significant number of extremely vulnerable people, including children and women subject to domestic abuse. The Work and Pensions Committee suggested that the total number exceeds a million, of whom at least 100,000 are children. Moreover, as the committee underlined and my noble friend has already pointed out, there is a very strong case on public health grounds for the immediate suspension of the rule at least for the duration of the outbreak.

I hope that the Minister will be able to reassure us that the Government are giving serious consideration to the recommendations of the Work and Pensions Committee and the Home Affairs Committee, and will not dismiss this amendment in the frankly complacent way that the Immigration Minister did in the Commons, with reference to “a range of safeguards” that evidence from a range of organisations indicates simply are not sufficient to prevent severe hardship and destitution.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I support Amendment 53 in the name of the noble Lord, Lord Rosser, which is also signed by the noble Lord, Lord Kennedy of Southwark, and the noble Baroness, Lady Lister of Burtersett, and Amendment 73 in my own name. I thank her for offering her support before I had even spoken to it; that is much appreciated.

To be speaking on these two amendments in what is Universal Basic Income Week around the globe has both an irony and an extra importance. Universal basic income would be an unconditional payment going to everyone accepted as a member of our society. No recourse to public funds, together with universal credit, is the extreme other view: conditionality that can deny people the most basic support that they need and human rights, such as the right to food, which the noble Baroness, Lady Lister, just referred to.

The noble Lord, Lord Rosser, cited what I believe are figures from Citizens Advice showing that 1.4 million people are on visas, or have received visas, that may leave them having no recourse to public funds and therefore, in the age of Covid-19, intensely vulnerable. This is not just a human rights issue; it is an issue of public health. If you face your children going hungry and you have Covid symptoms but you could go to work, what do you do? That is a very difficult situation and one that potentially puts everyone’s health at risk. As other noble Lords have said, this is a very modest measure to apply in the special circumstances of Covid-19 when so many other things in our society have had to adjust and flex.

However, I want to speak chiefly to Amendment 73, which, as I alluded to earlier, is part of a package with Amendments 71 and 72. Together they create a situation where the end of freedom of movement could not be brought in until people who were newly affected by the hostile environment were freed from that environment. As I said previously, this is something that Liberty has done a great deal of work on, and I appreciate its support on this matter.

In the previous debates, the noble Baroness, Lady Bull, spoke about the situation where people—most likely women—trapped in abusive relationships are in a very difficult situation if they cannot access evidence of their status. Of course, this is also true if they have no recourse to public funds and, over many years, I have spoken to many people—particularly workers in refuges—who have been left greatly distressed by their inability to help people in the most desperate need because they are in a situation where they have no recourse to public funds. People make choices to remain in abusive relationships because their other option is hunger and homelessness—a situation where they are also highly vulnerable to abuse.

So we need to think about what kind of society the UK is. I believe that we should be a society with a universal basic income; one where everyone has access to the support that they need. However, in the meantime, Amendment 73 would spare people being newly affected by the hostile environment of “no recourse to public funds” and spare them the impacts of this.

I am well aware that, with the Minister, we are on something of a merry-go-round and back to saying that this is discriminatory. Of course, I would absolutely welcome it and be delighted if this was to be applied to everybody affected by “no recourse to public funds”. However, in the meantime, I have put down the amendment that I have been told is what is allowed within the scope of the Bill. “No recourse to public funds” is now a dreadful sentence being inflicted on innocent people through no fault of their own. That is true under Covid and all the time, and I suggest that this is something we cannot allow to continue.

[Baroness Smith of Newnham (LD)]

My Lords, both of these amendments seek to do something that I think very much aims to right the injustice of a million people—100,000 children, as the noble Baroness, Lady Lister of Burtersett, was saying—having no recourse to public funds. For many of them, in a time of Covid, that means no food and potentially no heating, which is a danger to the most vulnerable in terms of, “Are they going to starve, are they able to get food that they can then cook from a food bank?” Because one of the real difficulties that you hear so often from people running food banks is that people say, “Please can I have some food that does not need to be cooked because I cannot actually afford to cook anything”. So we are talking about people who are going to be very vulnerable.

The hour is late, and I do not wish to detain the House for very long, but we have already heard that this is about social policy, public health and human rights. What sort of a country are we if we allow children to go to school who cannot be fed and say, “Well, I’m terribly sorry, you can’t have free school meals because your parent has no recourse to public funds”? Whatever choices the parents have made—whether they could or could not go home to another country—the child under 18 has no such say; their rights need to be taken into consideration.

These amendments are limited. We are talking about a time of global pandemic. The amendments are not asking for people to be taken out of “no recourse to public funds” in perpetuity, but the current context is that the economy is in a very, very difficult situation and many people who thought they had a job—perhaps on an hourly basis or possibly a zero-hours contract—may find there are no hours and they may not have been furloughed. Can the Government not find it in their heart to deal with these people fairly? It may be a question of immigration law saying that, normally, it is not right for these people to have recourse to public funds—whether that is right or not is for a wider debate—but, in the narrow context of EU nationals who find themselves still in the UK and unable to access public funds in the current context of Covid, please can the Government think about acting?

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

Baroness Bennett of Manor Castle Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I strongly support the amendment. The Government should be doing all they can to ensure that the estimated nearly 10,000 looked-after children and care leavers are registered. It would seem that the Children’s Society has done more to identify these children than the Government have. It is not sufficient to say that they will allow late applications, welcome as that is, because that means these children will, as has already been said, be undocumented and could then run into all sorts of problems under the hostile/compliant environments. Will the Minister undertake to issue a formal policy statement and guidance that confirms formally what has been said about late claims? Stakeholder groups such as the Children’s Society and the3million are concerned that it is not there in a formal way.

It is not enough to say that it is the responsibility of local authorities and leave it at that, with only non-statutory guidance. According to the Children’s Society and the3million, many local authorities seem unaware of this, as my noble friend Lord Dubs said. To reinforce his questions, will the Minister say exactly what the Government are doing to ensure that local authorities are aware of their responsibilities; to support local authorities to fulfil those responsibilities, because we know the pressure they are under; and to ensure that local authorities are doing all they can to identify and support children for whom they have a responsibility? The evidence suggests that many of these hard-pressed local authorities are not doing what is required.

The noble Lord, Lord Kerr, said that to accept this amendment would be to do the decent thing. Indeed, it would, and I do not think it is tedious at all for him to remind noble Lords about what is happening in Lesbos. It is decent that he has done that, and I hope the Minister will answer his questions in a decent way.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a pleasure to follow all the noble Lords who have spoken on this amendment thus far. I particularly commend the noble Lord, Lord Dubs, as others have, for his tireless work in this area.

Most of the questions have been asked and most of the issues have been canvassed, so I will be brief. I think everybody accepts that these are acutely vulnerable children. They do not have a parent who is able to look out for them; the state is their guardian, and that creates huge humanitarian responsibilities for the state that we expect our Government to live up to.

I also echo the comments of the noble Lord, Lord Kerr: where is the Statement and the action from the Government on the situation in Lesbos? We have seen significant action from European Governments, particularly the German and French Governments, so I join others in saying that I very much hope that we will hear an answer from the Minister on what the Government are going to do to help those intensely vulnerable people.

[Baroness Hamwee (LD) [V]]

My Lords, I have added my name to this amendment. The Government have given us an example of the reasonable grounds there may be for submitting a late application to the EU settled status scheme, but in this case the applicant is a child whose parent or guardian failed to apply on their behalf.

This amendment is about children of a corporate parent: the state. As we have heard, the Home Office estimates that there are 5,000 looked-after children and 4,000 care leavers who would need to apply. Not only are these children considered vulnerable—a word we are applying quite widely to very different situations—but in this context they have rights which it is not possible, or certainly not easy in practical terms, for them to exercise. Their parent, the state, is in a rather different position from a flesh-and-blood mother or father.

This is a very nifty amendment. It means that social workers would not have to chase after paperwork; they are very overloaded, as we have heard. It does not leave children in the precarious position of having to apply late, or of being undocumented, when they would be exposed to ineligibility for NHS treatment that is not charged for, and there would be no cliff edge at the end of pre-settled status. I think I am right in saying that the five-year period in subsection (6) of the proposed new clause would mean that it would apply to babies who are currently, or by next June, under five years old.

As the noble Lord, Lord Kerr, said, this is not too hard to sort out—at least, it does not seem so to me. I hope the Minister will agree. Like others, I think that the noble Lord’s questions are relevant to today, if not relevant precisely to this amendment. They are very important. I look forward to supporting this amendment.

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[The Earl of Dundee (Con) [V]]

My Lords, I support Amendment 62—spoken to in a very moving way by the noble Baroness, Lady Hamwee—which seeks to expand family reunion rules. I also support Amendment 79, in the name of the noble Baroness, Lady Bennett, which ensures that family reunification should not be restricted by any lack of income or assets affecting relevant parties.

Amendment 64, in my name, allows visas to be issued on humanitarian grounds. Three conditions are stipulated: the person needs medical treatment, is an orphaned child, or is a child who is a dependant of a person in the United Kingdom. These conditions are covered in Section 3. However, Section 4 enables the Secretary of State to add to them if required.

As outlined, therefore, Amendment 64 does not address family reunion. Instead, it deals with people who need to come to the United Kingdom for medical attention, orphaned children, and those who do not qualify for family reunion but who are dependent upon another person, or people, in the United Kingdom. Post Brexit, this amendment may thus prove useful for the continuity of the United Kingdom’s excellent record of sustained high standards of humanitarian good practice, such as receiving here for emergency surgery the Nobel Prize laureate Malala Yousafzai, after she had been shot in the head by Islamist terrorists, and, during the recent lockdown—and for this my noble friend the Minister and her government colleagues deserve a great deal of credit—the relocation to the United Kingdom of dozens of unaccompanied minors from Moria refugee camp in Greece when it was recently destroyed by arson.

Secondly, the measures proposed may also help many to avoid become prey to human smugglers and traffickers. An absence of humanitarian visas, which the amendment seeks to redress, is also an advantage to human smugglers and traffickers. For these reasons, I hope that the Minister can accept Amendment 64.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I rise to support Amendment 62 in the name of the noble Baroness, Lady Hamwee, which I was delighted to sign. I also wish to express my support for Amendment 64, which the noble Earl has so ably presented, and to speak to my own Amendment 79. The first two refer to people who need refuge; mine refers to a different group and I will get to that in a second.

As I was listening to the powerful presentations from the noble Baroness, Lady Hamwee, and the noble Earl, I was thinking back to January 2016 when I was at a memorial service for a 15 year-old Afghan boy. His name was Masud, and he died in the back of lorry trying to get to the UK to rejoin his brother. This relates to the discussion we were having before about the situation on Lesbos. We have to provide safe, legal, orderly routes for people to reach the UK, and to achieve the refuge they should be entitled to.

I note my position as the co-chair of the All-Party Parliamentary Group on Hong Kong and identify what may well be a rising issue. The Government have stepped forward and said that they want to help people who need to leave Hong Kong because of what is happening there with regard to human rights. I very much hope that we will see action on providing orderly routes for people to be able to do that, and for people all around the world.

I mostly want to speak on Amendment 79. As I said, this does not relate to refugees. This relates to a situation involving those generally known as Skype children, the numbers of whom are, of course, likely to be significantly enhanced. At the moment, for non-EU and EAA citizens who are the spousal partner of a British citizen, the British citizen has to have an income of £18,600 a year to bring them to the UK—more with children—and at the end of the transition period this Bill will extend that to many more people and many more children.

This is a more limited amendment than Amendment 23, which we debated last week, which addressed couples being able to stay together as well as children. While I prefer Amendment 23, I am hoping that the Conservative Government might be more prepared to consider amending the legislation specifically so that it is not tearing children out of their parents’ arms. It is, at the moment, not using the wisdom of Solomon but actually delivering the verdict of Solomon and forcing parents to let their children go to be separated from them for years. As we all know from the situation with Covid-19, yes, you may be able to keep in contact through a screen, but it is certainly not the same thing.

I note that in 2018 the Children’s Commissioner for England commissioned a report showing that up to 15,000 British children were already growing up in this situation. This is without adding in people affected by Brexit. Many children were reportedly suffering from significant stress and anxiety from the separation.

So have the Government made an estimate of the number of children likely to be affected annually by the minimum income requirement once the immigration Act, as it will be, comes into effect? The research by the Children’s Commissioner found that Britain had the least family-friendly reunification policies of 38 developed countries, largely because of that minimum income requirement. That is of course £18,600 a year, which was then 138% of the minimum wage. It will not be quite so bad now. The Children’s Commissioner, Anne Longfield, said at the time:

“There is a wealth of evidence which indicates that children are far more likely to thrive when they are raised by parents in a warm, stable and loving family environment.”


There is evidence, she said, that this affects

“their well-being and development. It is also likely to have an impact on their educational attainment and outcomes.”

As one of the authors of the report commissioned by the Children’s Commissioner pointed out, the great majority of children affected by this are British citizens. They are being forced to grow up effectively in single-parent families, when their parents want to be together. So I hope that the Government will reflect on the comparison with Solomon and think about accepting this amendment.

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[Lord Judd (Lab) [V]]

My Lords, I thank the noble Lord, Lord Greaves, for his characteristically forceful speech, particularly the striking and moving anecdote about the young man who lost his driving licence. I fear that that kind of experience is not unique and is repeated too often, in too many ways.

I put on record my strongest possible appreciation and support for these two amendments. They are vital. I also want to say how cheered I have been by the strength of argument and emotion with which my noble friend Lord Rosser introduced the debate, and by the way that my noble friend Lady Lister backed him up with her commitment. As the noble Lord, Lord Greaves, has just pointed out, the first bit of the Member’s explanatory statement for this amendment says that it

“is to probe the case for a statutory duty to encourage, promote and facilitate”.

These are key words. The statement runs on to say that it is to ensure the Secretary of State

“does not exercise certain of her powers and responsibilities in any way that may impede the exercise of those rights”.

That hardly needs to be said; at the same time, it needs to be underlined because one cannot be altogether certain on that front.

Rights are rights but there are too many indications of considerable numbers of people—young people and children, in particular—who are not really yet switched on to what their rights are and what is necessary to register them under the new arrangements. There may be a host of reasons why they are not acutely aware of what they must do, but that problem exists with a considerable number of people. I would like to feel that we had a Home Office with political leadership that supports civil servants in saying that their job is to ensure that everyone with a right is going to be able to register to continue the fulfilment of those rights. That is the kind of commitment and drive we need from Ministers and civil servants.

In the context of a Select Committee to which I belonged at the time, I was one of those who had the good fortune to attend a couple of briefings, and I also went to the Home Office to be briefed by civil servants on the arrangements that they were making under the necessary processes following the removal of European Union citizenship in Britain. I was impressed then, because there seemed to be a real commitment by the team working on this issue to tackle the situation effectively. Now, however, I have the feeling that there is not so much inertia but more a sense that our job is to provide the facilities and make them as accessible as possible. We have to be more proactive than that, but that is not going to happen on the scale and with the thoroughness that it should unless leadership comes from the top.

I thank my noble friends Lord Rosser and Lady Lister, and all the others who have spoken so effectively and convincingly on this issue. I cannot believe that the Minister, being the sort of person she is and on hearing these arguments, will not find a way in which she can convincingly respond to them.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I offer the Green group’s support to Amendments 63 and 67. We have already heard many powerful speeches, so I will be brief.

I want to address Amendment 67 in particular, because it has full cross-party support, in so far as that can be expressed by the procedures of your Lordships’ House. I note that Members from the three largest parties and the Cross Benches have signed it. It struck me in looking at this that perhaps I might make representations about our procedures to show the full breadth of cross-party support in our multiparty age; there might need to be the possibility of more signatures to be available on the Order Paper, but that is something for another time.

I want to focus on some of the words of the noble Baroness, Lady Lister. She spoke about the imbalance between the Home Office’s actions: its clear desire to enforce action against people who it perceives not to be British citizens and not to have the right to be here versus its extreme inaction in informing and educating people about their rights and making sure that they are not excluded from those rights. As many noble Lords have noted, there is not much use in having rights if you do not know about them; that is effectively being denied your rights. I was reflecting on that and thinking that, effectively, the Home Office is defying the will of Parliament in defying the rights that Parliament has granted to people, by failing to inform them. That is not what should be happening, but it clearly is. That is why I think it is really important to support both these amendments, which work in much the same ways, and will push to see them in the Bill.

We saw with the Windrush scandal, which one just cannot avoid referring to in this context, that the Home Office denied people their personal rights. It denied them their life in some cases—the actions taken by the Home Office were deadly.

I also note the comments of the noble Lord, Lord Alton of Liverpool, that all too often these issues are mixed up with immigration, but they are absolutely distinct. We are talking about British people being able to live in their own country and exercise the rights that they enjoy. I commend both these amendments to your Lordships’ House.

[Baroness Hamwee (LD) [V]]

My Lords, I have added my name to Amendment 67 on behalf of the Liberal Democrat Benches, because we have all heard too many stories of individuals who did not realise the significance of their rights. Many speakers have stressed the term “rights”, including the noble Baronesses, Lady Primarolo and Lady Bennett, and the noble Lord, Lord Judd, and referred to people who did not know their rights until the crunch point when they encountered the difficulties of proving those rights.

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[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have two requests to speak after the Minister from the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Kennedy of Southwark.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, the Minister had clearly not been informed that I was already waiting to ask a question, so I hope this does not come as too much of a shock to him. However, in the interests of clarity in this debate, I am sure he will agree to note the fact that the human ecological footprint is a product of a number of people in an area or nation, or on the globe, multiplied by their consumption level. I am sure he will know that the people of the UK collectively consume our share of three planets’ resources each year, but we have only one planet. Even if we had half the number of people in the UK that we have now, we would greatly exceed the planetary limits.

Can the Minister confirm the Government’s understanding of the essential environmental approach in areas ranging from the climate emergency—noting our special responsibilities as COP26 chair—to the nature crisis and water concerns that we discussed earlier in Oral Questions? The key approach is transforming our currently wasteful, destructive treatment of the planet as a mine and dumping ground, which has produced a miserable, insecure and vulnerable society—as exposed by Covid-19—that exceeds a significant number of planetary boundaries.

[Lord Parkinson of Whitley Bay (Con)]

It is not a shock but a pleasure to hear from the noble Baroness, and a particular pleasure to agree with what she says about it being not just the level of consumption but the overall number of people that has an ecological impact. That is why I am pleased to be part of a Government who are pursuing our world-leading target of achieving net zero.

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[Baroness Hamwee (LD) [V]]

My Lords, EEA nationals and their family members will of course be made subject to the system of immigration control when free movement ends. That will affect those who face removal from the UK on the basis of their character or conduct, including any criminal record. The tests for the deportation of EEA nationals and their family members are currently more stringent than those for the deportation of third-country family members of British nationals and settled persons.

Those who have not raised protection claims and meet the deportation criteria, and who want to remain in the UK on family life or private life grounds, must satisfy one of two exceptions. Either they must prove that they have

“a genuine and subsisting relationship with a qualifying partner or a genuine and subsisting parental relationship with a qualifying child”

who would experience the deportation as “unduly harsh”. Those sentenced to four years or more must show very compelling circumstances—a higher threshold than that.

The Home Office interprets “unduly harsh” as excessively cruel. In the case of KO, the Supreme Court found that, to meet the test, mothers and fathers facing deportation must demonstrate that separation from their children would involve

“a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.”

In the subsequent cases of PG and KF, the courts held that most children who have a parent facing deportation would be likely to suffer significant psychological trauma, so that to succeed in their appeal the parent would have to show a risk of harm beyond what would normally be expected. The court in the case of PG expressed great sympathy for the children but said that distress to innocent children is insufficient to prevent deportation.

That means, in effect, that the courts are obliged to accept that harshness or cruelty caused to a child is acceptable—or, at any rate, has to be accepted—even where the long-term harm and trauma caused to the child, their family and the community may be detrimental to society at large and therefore not in the public interest.

Unlike a criminal sentence when a parent is sentenced to imprisonment, deportation can effectively end a child’s family life with a parent for the whole of their childhood. The permanent ending of family life can have a long-term negative impact. I do not need to describe that in detail to noble Lords. The partner left in the UK effectively becomes a single parent with all the struggles that involves. Perhaps it is a rhetorical question, but how can this be reconciled with the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to have

“regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”?

Despite the Home Office’s statutory duty to safeguard and promote the welfare of children and have children’s best interests as a primary consideration, the Home Office does not record the number of families it separates through deportation. We have had plenty of debates in this House about the importance of data. In 2018, Stephen Shaw, whose reviews have been so powerful, said:

“I find the policy of removing individuals brought up here from infancy to be deeply troubling. For low risk offenders it seems entirely disproportionate to tear them away from their lives, families and friends in the UK and send them to countries where they may not speak the language or have any ties.”


For those who have committed serious crimes, there is a further question of whether it is right to send high-risk offenders to another country when their offending follows an upbringing in the UK. As I have said, judges have expressed sympathy with appellants in deportation appeals and have expressed surprise at the effect of the legislation. As Lord Justice Baker remarked in the case of KF:

“For those lawyers, like my Lord and myself, who have spent many years practising in the family jurisdiction, this is not a comfortable interpretation to apply. But that is what Parliament has decided.”


I am putting this to Parliament again by proposing the modifications to the Nationality, Immigration and Asylum Act 2002 set out in Amendment 82A. I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I intervene to support Amendment 82A in the name of the noble Baroness, Lady Hamwee. She has set out a very clear case, so I will be brief.

I have lost count of how many times we have heard Ministers say, “We want to treat everyone the same way; we want a global system.” As the noble Baroness set out, this amendment seeks to correct a discrimination in how the law was being applied. Many times, when I have risen to speak in this Committee, it has been because of concern about family life, the impacts of decisions on children and the separation of families. As the noble Baroness, Lady Hamwee, just set out, that is what we are looking at here, as well as a situation in which people who are clearly a product of British society—and should be our responsibility—being dumped on other nations, which may have far fewer resources than we have to deal with them. To expect other nations to pick up the results of our choices and decisions is utterly unreasonable.

It is chiefly those innocent children, spouses and partners I am concerned about—lives being torn apart. I refer the Minister to the Children’s Commissioner’s quotes I referred to in the Skype family amendment. This has massive impacts on well-being, health, mental health and educational attainment.

The last time I spoke, I talked about the judgment of Solomon. It is a question of applying the judgment of Solomon or applying his wisdom to make a choice that is best for individuals or society. I therefore commend Amendment 82A to the House.

This is my last contribution on the Bill in Committee, so I pay tribute to the relatively small number of Members of your Lordships’ House who have done an enormous amount of work and clearly have a massive amount of expertise in all these areas. I have learned a great deal from listening to that. I appreciate that, and I hope the Government will listen to nearly all the amendments presented here, which have been trying to make the Bill more humane, fair and respectful of human rights.

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

Baroness Bennett of Manor Castle Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 30th September 2020 Lords Chamber

I say with huge respect and very gently to her that that is not an accurate representation of the situation. We already have an enforcement regime for non-EEA citizens. We may think that it is no good, but it exists. However, so far as EEA citizens are concerned there is no system and cannot be one, because we have free movement of labour until we finally leave the EU. Post Brexit, we will need one and we will need to check how effective it has been and is being. That is why my noble friend’s amendment should be accepte-d.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I speak to Amendment 2 in my name, which takes us in a very different direction to the debate thus far. Amendment 2 has a modest snippet of text: “Leave out Clause 1”. If noble Lords go back to the Bill, they will find that it covers “Repeal of the main retained EU law relating to free movement etc.” This is the point, from the view of your Lordships’ House, at which the freedom of movement that was the birthright for everyone born since 1992, and which their elders have enjoyed since then, is irrevocably wiped out. We have an expectation, as problematic as it sometimes is, that society is advancing and improving. Yet here we are, after 28 years, taking a massive step backwards. I credit the noble Baroness, Lady McIntosh of Pickering, for noting in Committee how much she personally had benefited from freedom of movement. Many other noble Lords will have similarly benefited, and others have noted it in the House during debate.

As I speak now, I think particularly of the 18 year-olds who are having such a torrid time at university or college or in seeking a job. They have endured all the chaos of A-level and GCSE results and now face losing an escape route—a safety valve—but, above all, an opportunity to roam a continent without restraint, free to study, to work, to live and to love without thought of visa or restriction. That loss should not be allowed to slip quietly into the political darkness.

Much of the focus of the debate around freedom of movement and on the Bill has been on the fate of some 4 million EU citizens in the UK. We will be debating and, I hope, adding some positive changes to the Bill for them later. There is also a rightful focus on the Britons who now face being unable to live in their own country with their European spousal partner and children. I hope your Lordships’ House will also do something about that, but for now I will focus on the Britons affected. We cannot, of course, control what other countries do—by leaving the European Union, we have lost control of that—but we know that in Europe there is a strong tradition of reciprocity. Britons will largely be treated in European states as we treat their citizens here, which is something to think about right through this Bill’s discussions.

Of course, rich people and those with connections will not be anything more than perhaps a little discommoded: if you have enough cash, you can buy a passport from several European countries, and if you have a higher level of earnings or savings, a visa will not be a barrier. Losing freedom of movement is a massive set-back for equality. Over the recent long, weary years of campaigning, I have met many Britons who were not rich and who had not started out with the advantages that many in your Lordships’ House have enjoyed. However, they were able to establish a new life on the continent, with the choice of more than a score of countries before them; all they needed was a sense of adventure—or sometimes desperation—and a few pounds for a cheap coach fare, and they set out. They are some of the 1.2 million Britons who live in the rest of Europe, who will be profoundly affected by the decisions we are making today.

This is all one enormous, careless rush, with fewer than 100 days before the end of the Brexit transition period. In the Committee debate, the noble Baroness, Lady Hamwee, noted that the Bill removes

“all rights, powers, liabilities, obligations, restrictions, remedies and procedures which derive from EU law”.—[Official Report, 7/9/20; col. 644.]

I cannot tackle everything, but I want to do everything I can to highlight this great loss. Therefore, I give notice that it is my intention to divide the House, as I indicated in Committee that I would do at this stage. I will ask every Member of your Lordships’ House to be on the record: will you vote to greatly reduce the freedom we all enjoy from January, and probably for decades to come? Will you show your opposition, or will you remain off the record in the face of this massive loss?

[Lord Paddick (LD)]

My Lords, I rise to speak to my Amendment 26 in this group, and my noble friend Lady Hamwee will speak to the other amendments in the group. I too am sceptical about the Government’s ability to enforce immigration law in general and the end of free movement in particular. Indeed, as I have previously argued, there is evidence that, rather than “taking back control”, the Government have made the UK border more porous.

At previous stages of this Bill, I have raised the issue of EEA and Swiss nationals, who will continue to be able to enter the UK using airport e-passport gates and who will benefit from visa-free entry to the UK, officially for six months at the end of the transition period, along with the nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea and the USA—the so-called B5JSSK countries.

I am very grateful to the Minister for meeting me face to face—a rare treat—along with several officials, who joined us virtually. The point of raising this issue now is to have on the record the fact that the Government’s approach to immigration contains significant loopholes, which are as follows.

First, there will be no digital record of the immigration status of EEA and Swiss nationals, or those of the other B5JSSK countries that I have listed, visiting the UK under the six-month visa-free arrangements. This can be checked—for example, by landlords, in order to fulfil their right-to-rent obligations to ensure that they do not rent property to those who are in the UK illegally. The Government have no plans to change this situation other than an ambition that this will happen at some time in the future.

Secondly, there will be no way of tracking EEA, Swiss or other B5JSSK nationals once they have arrived in the UK, as no information will be recorded as to where they are going to be staying, there will be no stamp in their passport and there will be no way of establishing whether they have left the UK when or before the six-month limit has been reached.

Thirdly, in order to comply with the law—even though there is no way of enforcing it—all an EEA or Swiss national, or a national of one of the other B5JSSK countries, needs to do is take a day trip on the Eurostar to Lille, for example, in order to be legally eligible to stay for another six months. In their UK Points-Based Immigration System: Further Details Statement, the Government claim that EEA and Swiss nationals should not

“in effect live in the UK by means of repeat or continuous visits.”

However, in reality, there is no way of checking or enforcing this.

Fourthly, with the leeway provided to landlords under the right to rent scheme, landlords can rent a property for up to 12 months to an EEA or Swiss national, or to other B5JSSK nationals—even though they are legally allowed to stay in the country for only six months—without any sanction, civil or criminal. At the end of that period, the landlord can continue to rent the property to the EEA or Swiss national, or to one of these other nationals, provided they produce another ticket, boarding pass, travel booking or

“Any other documentary evidence which establishes the date of arrival in the UK in the last six months.”


Fifthly, the Government cannot provide any details of the electronic travel authorisations, or ETAs, mentioned in the Government’s immigration plans under the heading “The border of the future”, or of how that system will operate. The Government claim that it will

“allow security checks to be conducted and more informed decisions taken on information obtained at an earlier stage, as to whether individuals should be allowed to travel to the UK.”

In the meantime, and for the foreseeable future, the UK could be vulnerable to such individuals entering the UK—without checks or a visa—through the e-passport gates.

Every national of Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA used to hand in a landing card and be questioned by a Border Force officer at the UK border to establish where they were going to stay, how long they were staying and whether they had the means to sustain themselves without working illegally. I am told that about 3,000 US nationals a year used to be turned away at the border, but these individuals can now use the e-passport gates, almost always unchallenged. I understand that the reason the B5JSSK nationals were added to those who could use the e-passport gates was to better manage the queues at the UK border. Allowing people through the UK border more quickly by not checking whether they are entering the UK legitimately does not seem to be “taking back control” of our borders.

From 1 January, EEA and Swiss nationals will be able to enter the UK in the same way, even though free movement is supposed to be at an end. Can the Minister please confirm on the record that these loopholes do indeed exist and that there are no immediate plans to close them? Can she also repudiate the explanation offered by a lawyer friend of mine—who, when I discussed this issue with him, described the B5JSSK countries as “white” countries—by explaining how the B5JSSK countries were chosen?

--- Later in debate ---

Moved by

[Baroness Bennett of Manor Castle]

2: Clause 1, leave out Clause 1

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I wish to move this amendment formally. We are in unprecedented political times. We are racing towards a disastrous year of chaos, confusion and disruption as a result of the ending of the Brexit transition and the continuing pandemic. I have listened very carefully to the debate—

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness just has to move her amendment formally, which I believe she has done.

--- Later in debate ---

The Government’s position on this seems so unnecessary and unfair, especially in consideration of the fact that EU citizens who have settled status will—correctly—have lifetime rights to have existing spouses join them in the UK. This is a question of fairness and humanity, and I hope that the Government will relent.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I was pleased to attach my name to this amendment in the name of the noble Baroness, Lady Hamwee, but, after the powerful debate we had in Committee, I am very sorry that it was still necessary to put this down again.

In our debate on Amendment 6, the noble Baroness, Lady Smith of Newnham, referred to the long and continuing discussion the Minister, the noble Baroness, Lady Lister of Burtersett, and many others—including myself—had in Committee about the many amendments that we sought to have applied to all affected by immigration law, the ruling out of the scope of those amendments and the claims from the Minister that what we were tabling was subsequently discriminatory. However, that is an argument that cannot—or, certainly, should not—be applied to this amendment; the situation of Britons married or partnered with Europeans is particular, but it can only be said that it is particularly awful.

No one with a non-EU spouse or partner could have predicted the “onerous” and “unjustified” minimum income requirement applied in 2012. Those are not my adjectives but those of a High Court judge. What I would call an unreasonably harsh assessment might be to say “Well, they should have known that the rules could change when they made their family arrangements”. Yet the many Britons who have been writing to me—and, as the noble Baroness, Lady Hamwee, said, no doubt to many other Members of your Lordship’s House—who established families in Europe decades ago, in many cases, could not conceivably have imagined the dreadful state of British politics over the past five years that has brought us to the current pass. I join the noble Baroness, Lady Hamwee, in thanking all of them for taking the time and having the courage to share their circumstances with us in the hope that we can get the Government to listen.

Rather than making my own arguments, I want as closely as possible to let Jane, a Briton who gave me permission to share her story, speak for herself in your Lordships’ House. She says:

“I am a British citizen, resident in Italy since 1993 with my Italian husband and children; I have my widowed mother, aged 76, living alone in the UK. She is fortunately in good health at the present time. However, one must be realistic. In time, she may need extra care. As her only child, I, with my husband, have always reassured my mother that we would be there to care for her in her later years, but due to the possible outcome of this Bill, we are increasingly worried.


Like many other Britons who moved to the EU while Britain was a member, I had—and expected to keep—an almost unfettered right to return to the UK with my family. My mother and I were safe in the knowledge that I could always come back should the need arise. I do not want my mother to have this worry. I would like her to grow old knowing that we can come back to the UK should that need arise. Unless this Bill is amended, this right will be removed on 29 March 2022, creating impossible choices for me and thousands of families like mine.


The Government’s answer is that we are given 15 months from the end of transition to return with our families to the UK. This is ignoring the massive practical difficulties of uprooting ourselves from family life and work in our country of residence. I have my own business here in Italy, not to mention my husband’s work and our children’s education, and there may be no need for that uprooting.”


Will the Minister personally respond to Jane and tell her what the Government’s justification is for putting her and her family in this situation?

The Green Party group wholeheartedly offers the noble Baroness, Lady Hamwee, its support if she chooses to put her amendment to a vote.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was prompted to speak in support of the amendment by an email that I received this week from a British citizen born of British parents in Britain. During voluntary service overseas, she met and married an Italian. She lived in Italy, working for a UN agency for 30 years. They adopted a boy whose nationality is Italian. After her husband died, she hoped to return to the UK, where her brother and sister live. However, this would now mean her leaving her son behind, which, she writes,

“I could never do. We are very close. I could never leave him behind, with me in one country and him in another.”

Both she and others in a similar situation cannot believe that their families will be split up in this way in future.

I refer to what the Minister said in Committee at the end of the debate on another amendment relating to family reunion. She appeared to agree with the argument of the noble Lord, Lord Green of Deddington, for raising the minimum income threshold—referred to earlier by the noble Baroness, Lady Hamwee—from £18,600 to £25,700, or even £38,000, to cover the cost of public services or make a net contribution to public finances. I know that these figures came from the Migration Advisory Committee but they are premised on a narrow understanding of what constitutes a contribution to our society. It is the same kind of thinking that will exclude care workers and other key workers from immigration, as we heard during the debate on a previous amendment. The argument discounts the importance of the right to family life. I hope that the Minister will say now that I misread what she was saying and that she was not supporting the suggestion to raise the threshold.

The damaging impact of the minimum income threshold has been documented in a number of studies, most recently from the University of Bristol. It wrote of

“not just emotional impacts of separation, but financial, mental and physical hardship.”

The family reunion rules divide far too many families already. They need reviewing. For now, we can at least prevent even more families—like those of the mother who emailed me and the many other people who have emailed other Members of your Lordships’ House—being split up in this cruel and heartless way. We can prevent that happening by supporting this amendment.

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

Baroness Bennett of Manor Castle Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Monday 5th October 2020 Lords Chamber

[Baroness Primarolo (Lab) [V]]

My Lords, I will add a couple of comments to this very important debate. First, I congratulate my noble friend Lady Lister. She has pursued this vital subject with great tenacity and ensured with great clarity that the main arguments are put again on the Floor of the House. I know that the Minister will be listening carefully to all the points that have been made.

As my noble friend said, this is a modest amendment, which seeks action from the Government to ensure that the rights that were conveyed by the British Nationality Act 1981 are open and accessible to those who are entitled to them. When reading some of the comments that Ministers made during the passage of the British Nationality Bill, it is fascinating to see the clarity with which they saw the entitlement to citizenship which has now been so clouded and had so many barriers put in its way, as my noble friend Lady Lister said. For example, the Minister of State for the Home Office who took that Bill through said that

“as I think the House knows by now, what we are looking for in the creation of our new scheme of British citizenship is real connection. We are looking for citizens who have a real connection with the United Kingdom.”—[Official Report, Commons, 3/6/1981; cols. 979-980.]

He went on to say that it is “extremely important that those who grow up in this country should have as strong a sense of security as possible”. Conveying the entitlement to citizenship was central to that.

It was not Parliament’s intention at the time that anyone, least of all children, entitled to British citizenship, should be content, as a substitute, with either limited or indefinite leave to remain. That could leave them liable to immigration control and powers from which it was intended they should be free and would not fulfil the clear intention that Parliament wanted to establish in providing for the entitlement—the right—to British citizenship. It is time to make sure that we have a clear route through to delivering that entitlement, that right, to those in this country who currently cannot get access to it.

The requirements of this amendment, modest as they are, seek to remove a two-tier system, the prohibitive fees and the lack of information which leaves people unable to access their rights. It is time that this House addresses this and I sincerely hope that the Minister will be able to give a clear indication today about how we are going to honour the word given to these children in the British Nationality Act 1981 and to deliver access to that right, instead of preventing them achieving it.

I will support the amendment if it goes to a vote, but I sincerely hope that the Minister will be able to explain to the House how the Government will deliver.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I declare my membership of the Roma, Gypsy and Traveller APPG which, as the noble Baroness, Lady Whitaker, said, represents some of the children who may be particularly affected by our current discriminatory system, which is effectively impossible to navigate. The noble Baroness, Lady Lister, made a hugely powerful introduction, so I will be brief in offering the Green group’s support for this amendment. I add my hope to that of many noble Lords that the Government will the see the sense of it and agree to adopt it. We are talking about rights that people are entitled to. We cannot allow people to be excluded from them by lack of knowledge, lack of funds to access them or lack of access to the systems needed to exercise them. Keeping that exclusion would be a profound injustice.



I think I have to declare a personal stake in this issue. I chose to become British, as I chose, before that, to live as an immigrant in Thailand for a number of years. But I was able to make both moves very easily, reflecting my relatively privileged background. In Thailand, the Australian state, through Australian volunteers abroad, sorted out my paperwork, then my employer did. It was then through grandparent rights that I was able to come to Britain. The family story is that my grandmother came back to the UK to have a baby. Then, after a period of residence, I was easily able to secure citizenship, back when the price of a British passport was close to the actual cost of administering it, in the early 1990s, which was not really that long ago.

It was only recently, when I read the excellent book, Bordering Britain: Law, Race and Empire, by Nadine El-Enany, that I was educated about the racism behind that arrangement, the grandparent right. There is much that should be tackled in our law to clear the taint of racism, colonialism and expropriation that remains central. But after Windrush, surely we can do something to clean up the structure of our systems—modest changes, as noble Lord after noble Lord, including from the Minister’s side of the House, has said before me—particularly systems that deny children and young people their right to security and a stable place in the world. Equality before the law is a foundational principle, but the letter of the law is not enough, as Windrush has demonstrated. The practice of government has to be fair and non-discriminatory.

[Lord Russell of Liverpool (CB)]

I declare my interest as a governor of the children’s charity, Coram. I rise to speak strongly in support of this amendment.

In Committee, the noble Baroness, Lady Lister, and her supporters were praised for their “terrier-like” characteristics. My initial research into terriers slightly alarmed me, because the original animal, which, in 1815, inspired the creation of the canine family of terriers, was called, believe it or not, Trump. You heard it here. I became less alarmed when I read Johannes Caius’s 1576 description of dogs with similar characteristics, which he praised for their

“insane dedication to chasing creatures bigger and stronger than themselves.”

The Minister knows what she is up against. 

The Minister may recall that at Second Reading I spoke about the paramount importance of accurate, reliable and timely data in making any key policy and process decisions. I think she agrees with this. 

I am supporting this amendment because I am persuaded by several key pieces of evidence. As a terrier, I doggedly follow the scent—or, in this case, the evidence. The first piece of evidence comes from the PRCBC, of which the noble Baroness is a patron, and which repeatedly encounters children who fall into two particular categories. The first category is that of those born in the UK, but not born British citizens because their parent, also born in the UK, had been unaware of, or was unable to exercise, their own right to register as a British citizen. The second category is that of children who are British citizens by birth, who were taken into care or adopted, for whom nobody has acted to confirm their right to citizenship, leaving them unable to establish that they are already legally entitled to British citizenship. These two categories of children are being treated as though they are not British but mere guests in this country, as a result of which they run the risk of effective loss of their citizenship rights. This is both morally and legally wrong and is certainly not what Parliament intended, as several noble Lords have said.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I offer the Green group’s support for both the amendments, but particularly Amendment 25 in the name of the noble Earl, Lord Clancarty, with broad cross-party support. Given the time and extensive exploration of these amendments by the movers, I shall not speak at length, but I want briefly to reflect particularly on the issues of inequality that the end of freedom of movement will bring to the science and research communities and the artistic and entertainment industries.

The Government like to talk about attracting the great and the good—another way of saying the established and mainstream, those backed by multinational companies and large funders. But this is very rarely where the big creative ideas come from: the truly original thinking and breakthrough artistic creations, the ideas and knowledge that will help us move away from the disastrous “business as usual” approaches that have trashed our planet and given us a poverty-stricken and unhealthy society.

When we look at the arts and entertainment, there is often a temptation to refer to the economic importance of those industries, and they are of course of great and increasing importance. But I also want to speak about the quality and enjoyment of life. There is little doubt that the top-charting artists, those with massive commercial backing, will be little affected by this Bill. But the small French band visiting from a town with which a rural settlement is twinned, or the experimental and innovative new artist appearing at a fringe festival, are the people who will be stopped—and we will all be the poorer.

Finally, I refer to the arguments that I made in moving Amendment 2—and I put on record my thanks to all noble Lords who supported it—about the impact on UK citizens’ residence. As I said, how we treat people across Europe will be largely mirrored by how our people will be treated in Europe. I am sure that I am not the only Member to be contacted by desperate musicians and other performers who fear, with good cause, that the restrictions that they may face in response to our restrictions will end their career. I shall not seek to steal words from the Lords spiritual, but the phrase “Do unto others as you would have them do unto you” comes irresistibly to mind.

[Lord Judd (Lab) [V]]

My Lords, the noble Earl is a very civilised man, and it is always very refreshing to hear him. We have become a highly regarded and enviable centre of the arts in the world. The first thing that any of us who are involved at all know—and I have a son-in-law who is a professional singer and other members of the family who are involved in the arts—is that that by definition the arts and creative activities that they involve know no national frontiers. They are international. My goodness, how we flock to hear the music of foreign composers and singers from other countries. In drama, the same story is true. This is a creative element which helps to build a positive profile of Britain in the world.

I find it very sad indeed that people wanting to participate here and make a contribution to the world by participating here, and certainly to our enjoyment in this country, should encounter these physical barriers and the rest. It is important that if we take any pride at all in the reputation of the UK and of the place of respect and envy that we have reached in the world, this amendment needs to be addressed very seriously. I know the Minister is a highly civilised person and I am sure she will take the point that we should be encouraging people to come and participate in that activity.

The other point I shall make is that I am involved, marginally, in several universities in Britain. It may be argued that the number of overseas students wanting to come here defies the predictions of those who have had anxieties, but in this amendment we are talking not about undergraduate students but about the quality of research. The quality of research and of higher education depends upon international input. It is inseparable. It is not just something with which we may or may not make some money. It is integral to the real quality of higher education research.

Again, we should be welcoming people from abroad and encouraging them to come and participate in that activity. There is too much evidence that, whatever may be happening at undergraduate level with numbers of students, there are now too many people of real quality who are thinking twice about settling with their family in this country. That is a tragedy, and we should do anything we can do to make them welcome. We should have a most welcoming reception at immigration points in this country, at ports of entry and the rest, so that people understand how much we value and appreciate them. I do not know about other noble Lords, but I am sure that many of them and the Minister share a sense of richness, enjoyment and fulfilment at the quality of our arts and our research. This is an important amendment and I am delighted that the noble Earl has put it forward.

--- Later in debate ---

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

My Lords, I have received one request so far to ask a short question after the Minister; that is from the noble Baroness, Lady Bennett of Manor Castle.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I am aware of the time so I will be very brief. For the record, the Green group is offering our support for this amendment. I have identified three questions from the debate which I do not think the Minister has answered. First, the noble Baroness, Lady Bull, asked about people who lack or lose mental capacity. To answer ID-confirming questions from a call centre—

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Baroness, but the Standing Orders make clear that she may ask one question on a point of elucidation, so perhaps she would choose her favourite of the three.

[Baroness Bennett of Manor Castle (GP) [V]]

That is really difficult. I will go to the question of the noble Lord, Lord Kerr, about being in an airport or train station and the fact that you have to have two pieces of technology working. The Minister said that the Government’s systems will be wonderful but, of course, this relies on other people’s systems. As the Minister said, our systems are great, but the noble Baroness, Lady Shackleton, said that she has had a problem; all of us have encountered those problems. Imagine that situation at the airport or train station: the clock is ticking, the queue is moving and the plane is about to go—and the systems are not working. What are people going to do and what situations will they be stuck in as a result?

[Baroness Williams of Trafford (Con)]

I will say just two things to the noble Baroness. The first is that I hope I have explained in quite a lot of detail the level of security back-up inherent in this system. I also hope that she will acknowledge something that I have had experience of before: walking through an airport, I suddenly could not find my passport.

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

Baroness Bennett of Manor Castle Excerpts

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Tuesday 6th October 2020 Lords Chamber

Moved by

[Baroness Bennett of Manor Castle (GP)]

24: After Clause 4, insert the following new Clause—
“Recourse to public funds
(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052);(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments repealed by Schedule 1; or(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the European Union (Withdrawal) Act 2018, to be recognised and available in domestic law after exit day.(2) Regulations under section 4(1) may not be made until the Government has brought forward legislative measures to ensure that P can access social security benefits, where P is habitually resident, including repealing or amending the following provisions insofar as they relate to P—(a) section 3(1)(c)(ii) of the Immigration Act 1971;(b) section 115 of the Immigration and Asylum Act 1999;(c) any provision in subordinate legislation, which imposes a “no recourse to public funds” condition on grants of limited leave to enter or remain; and(d) any other enactment or power exercised under any other enactment, which makes immigration status a condition to access social security benefits.”Member’s explanatory statement
This new Clause seeks to restrict measures prohibiting access to public funds.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, Amendment 24, which appears under my name, is one of a suite of amendments that I moved in Committee. I continue to stand by all of them, but in achieving a disappointing response from the Minister then, I have restricted myself to just one. I record now, as I did then, the role of Liberty in working on all of them. When I saw that no one else had brought forward a similar amendment, I felt that this issue had to be raised in any immigration Bill.

This amendment is about “no recourse to public funds”. It is something I find myself talking about so often that the phrase rolls off my tongue like poetry, but of course this is the stuff of nightmare, of personal desperation and great suffering. It is the situation of the victim of domestic violence facing the choice between homelessness and penury for herself and her children and the very real danger of being maimed or killed if she stays. It is the situation of the child going hungry, suffering the miserable, desperate pangs that prevent concentration or hope, when his peers get free school meals.

I assume there is no Member of your Lordships’ House who would deny the human right to life, but “no recourse to public funds” denies access to the most basic essentials. People are forced to rely on the fragile, overstretched resources of specialist charities, and people fall through the cracks of that hopelessly underresourced, fragile net of support.

I fear that in this Bill, the Minister and I are trapped on a merry-go-round. I believe I can foresee the response I am likely to receive: that this is discriminatory if applied only to people newly covered by immigration law, EU and EEA citizens, and not to everybody. At the risk of sounding like a recording, I want this to apply to everybody. The Government could and should end any application of the “no recourse to public funds” rule. In this amendment, I have tried to save as many as the rules of the Table Office will allow me. Saving some people from being penniless and homeless, from hunger and abuse, and perhaps from death, is better than saving none. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I thank the noble Baroness, Lady Bennett, for tabling Amendment 24. In supporting it, I will not repeat the evidence I rehearsed in Committee showing the damaging impact of the “no recourse to public funds” condition on children denied free school meals, in particular—she mentioned that particular group. But I will draw attention to a national survey published since then by the Children’s Food Campaign and Food Active, which found that nine out of 10 parents agreed that eligibility for free school meals should apply regardless of immigration status.

I also want to return to some specific points I raised in Committee. First, I would like to thank the noble Baroness the Minister for responding to my question about data in her letter. I hope the department will follow this up with the Children’s Society, to see how it might improve the data so as to provide a better indicator of the levels of hardship created and the demographics of the groups worst affected.

In Committee, the noble Baroness the Minister referred to what I said about the temporary extension of eligibility for free school meals to support families with NRPF. But she did not acknowledge the point I made that this was a partial concession covering only some NRPF families, nor that the concession has now been withdrawn. I asked what possible justification there could be for this, and I quoted from a letter from 60 organisations to the Education Secretary, which among other things noted that these children will face having to make up half a year of lost learning on empty stomachs. Could the noble Lord the Minister who is speaking today respond to that point now and, at the very least, commit to taking it up with colleagues in the Department for Education?

According to a briefing from the Children’s Society and others, the Government have indicated that there will be a full review of the free school meals system and that that is needed before the extension to NRPF families can be made permanent. But why? Why does it need a full review? Hunger cannot wait for a review. What is the scope and timetable of this review? If the Minister cannot answer that now, please could it be covered in a subsequent letter?

The Minister did not respond either in Committee or in her letter to a specific question that I posed, echoing the Work and Pensions Select Committee. I asked for a definitive clarification as to whether local welfare assistance funds counted as public funds for these purposes. They act as a kind of safety net below the safety net—a rather ragged safety net below the safety net—but if even those are not available, it makes life that much harder for this group. Again, if the Minister does not have the answer, could it please be covered in a subsequent letter?

The comprehensive improvement plan, published last week in response to the Windrush Lessons Learned Review, identified the NRPF as one of six primary streams in the compliant—aka hostile—environment. It is interesting that the Home Secretary, as far as I can see, did not refer to this rather important plan of the Home Office in her speech on Sunday at the Conservative Party conference. But in contrast to the plan’s emollient tone, while talking about compassion and so forth, we have learned in the media—and I know that the Minister will say that he cannot respond to leaks, but it did not seem like a leak; it seemed like it had been deliberately placed—that there is a push by Downing Street to

“radically beef up the hostile environment in 2021.”

If this is true, it makes a mockery of the review of the hostile/compliant environment detailed in the Home Office’s plan. Can the Minister provide a categorical denial that the intention is not to radically beef up the compliant/hostile environment, because that certainly was not what Wendy Williams was calling for?

I refer back to the exchange that I had in Committee with the Minister on the Windrush Lessons Learned Review—and I thank her for the offer of the meeting. It seems to me from the comprehensive improvement plan that the review of the hostile/compliant environment will not include questioning its legislative underpinnings. For instance, it will not question the right-to-rent legislation itself, but simply how it is being implemented. What if the review concludes that the legislation itself is not proportionate in meeting the Government’s stated aims, which is part of what Wendy Williams’s recommendations said it should be looking at? I would be very happy if the Minister responds to say that I have misinterpreted what the plan says, and that the terms of reference are that it is open to those reviewing the hostile/compliant environment to question the legislation, if that is where the evidence takes them. Surely—going back to my first point—the denial of free school meals to hungry children is not proportionate.

--- Later in debate ---

[The Deputy Speaker (Lord Haskel) (Lab)]

My Lords, I have had no requests to speak after the Minister, so I call the noble Baroness, Lady Bennett of Manor Castle.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I thank the noble Lord for his response, although I am disappointed, but not surprised, by the direction of his comments. I apologise for the misidentification of the respondent. I think other noble Lords will join me in being pleased that the Home Office will produce these figures, as raised by multiple noble Lords. We will all look forward to seeing and scrutinising those.

I must thank the noble Baroness, Lady Lister, for her powerful and detailed analysis of the Government’s current position and their review plans, and I note her overview, “Hunger cannot wait for a review”. As the noble Baroness, Lady Smith, referred to, we are talking about destitution. Everything is in the context of Covid-19 now, and it seems that at the Tory party conference today the Prime Minister suggested that is going to be the case for the next year.

The noble Baroness, Lady Neville-Rolfe, asked about the cost of this amendment. I would say, some things are priceless: ensuring that we do not see Victorian conditions of destitution in the UK in 2020 is something we should seek to deliver with every sinew, as human beings. She referred to the bills for immigration matters—for people exercising their legal rights, that means getting what the law entitles them to. I note that the noble Baroness, Lady Lister, cited figures showing that the British public overwhelmingly do not want children to go hungry. That is what we are talking about here; as the noble Baroness, Lady Hamwee, said, this is about humanity.

I note the amendment in Committee that the noble Lord, Lord Rosser, referred to, which is something we could go back to in the context of Covid-19. Noble Lords will have had heard me refer in other cases to universal basic income as the best solution of all—we could then ensure that nobody was left stranded or left with nothing.

I understand that the restrictions on scope have not allowed me today to make this the amendment I would like it to be on no recourse to public funds. On this occasion I will not be pushing it to a Division, but I fully expect to take a different approach in future.

Amendment 24 withdrawn.