Immigration (European Economic Area) Regulations 2016

Baroness Hamwee Excerpts

Thursday 15th December 2016 Lords Chamber

Finally, what is the procedure adopted by the Home Office when faced with these two critical reports from the committee—namely, the 14th and 17th reports? At what level have the committee’s findings been considered, or will be considered, in the Home Office, and who has responsibility in the Home Office for ensuring that this is the last such report which the Secondary Legislation Scrutiny Committee feels it has no choice but to issue in relation to a Home Office statutory instrument? This issue of making the appropriate information available, and of issuing guidance so that that guidance can be scrutinised by Parliament if there is an unwillingness to put the information into the regulations, affects the ability of Parliament to call the Government to account. That, in a sense, is what is at stake, and what the Home Office has sought to avoid through what it has done in relation to these regulations. I hope the Minister will be able to give satisfactory responses to the questions I have raised. After I have heard her reply, I hope I will not be left with the feeling that the Home Office’s position is that the committee can say whatever it likes, but the way the Home Office carries on will continue unchanged.

[Baroness Hamwee (LD)]

My Lords, I join the noble Lord, Lord Rosser, in his expression of regret. I was for some time a member of the Secondary Legislation Scrutiny Committee and can confirm his characterisation of the restraint it uses in its reports. It does not use extreme language and reports to the House only when it is very necessary to do so. My regret goes wider than the process but the committee is to be thanked for that process. It is dogged in its pursuit of detail and in reminding departments of the requirement to maintain the necessary standards as regards the mountain—it is a mountain—of instruments which are put before Parliament.

I shall say a few words about these regulations but I want to make a broader point. The likelihood must be that, in connection with exiting the European Union, Parliament will be asked to approve, or not to oppose, very large quantities of secondary legislation. I think of the great repeal Bill as a great reinstatement Bill because it will repeal one thing but it is likely to provide a mechanism for reinstating a very great deal of our current legislation, as an awful lot of legislation will have to be reinstated in domestic law. It is critical—I do not use that term lightly—that those instruments have the highest standards and do not require the sort of pursuit of detail, or indeed of meaning, that characterises this instrument.

I have more of an objection to these regulations than the committee has, and I guess that it would have been outside its remit. The undesirability of regulations which require guidance for them to make sense is an issue. The committee says that guidance should be available in draft when the regulations are being considered so that Parliament can in effect treat them as part of the scrutiny process. It should not be necessary to rely on guidance to understand the kernel—the fundamental issues raised by regulations. That is not only because, like regulations, guidance is unamendable by Parliament but because it can so easily be changed without reference to Parliament.

The committee in this instance quite rightly advises the House that the interpretation of specific terms and how decisions are made should be set out clearly in this instrument. I note that it says:

“A fundamental tenet for new legislation is that it should not make work for the courts by using loosely worded provisions”.

That is particularly notable since the Government so much object to what they perceive as judge-made law.

These regulations deal with particularly sensitive subjects, so the issue of redaction, raised by the noble Lord, Lord Rosser, is of concern. Paragraph 2 of Schedule 1 is about integration—a topical and concerning issue. Paragraph 7 of Schedule 1, to which the noble Lord referred, attempts to define, although not exhaustively, the “fundamental interests of society”. The best that can be said about them is that may be a better term than “British values”. The committee says:

“We are surprised that so significant a change should be implemented by a negative instrument, and also”—

as the noble Lord, Lord Rosser, said—

“that it was undertaken without any prior consultation”.

I could imagine this House spending at least two days debating the fundamental interests of society, and probably not coming to a conclusion. Academia could spend months and years over it. To see them listed, or purported to be listed, in the schedule to unamendable regulations, is therefore bold. I will not attempt to analyse and critique the list, but I cannot resist mentioning the conjunction of a sub-paragraph about “protecting public services”, which is right up against,

“preventing the evasion of taxes”.

Although it would not be relevant to this, you cannot think about that without the context of how services and taxes relate to one another. Perhaps more importantly, the people who will be affected by this and who see that conjunction of issues may well wonder what fundamental interests—or interest—society has in their position, and the way they will perceive these regulations will not be a happy experience. We support the Motion.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank both noble Lords who have made comments during this debate.

Following the public’s vote to leave the European Union and until exit negotiations are concluded, all the rights and obligations of EU membership remain in force and the Government will continue to apply and implement EU legislation. It is important to continue to make this point at the outset. At present, the rights of EEA nationals and Swiss citizens to live and work in the UK have not been affected by the referendum.

It is the free movement directive that mainly sets out those rights, and it is implemented in the UK through the Immigration (European Economic Area) Regulations 2006, as amended. These regulations were amended in 2009, 2011, twice in 2012, twice in 2013, three times in 2014, and in 2015 to reflect developments in immigration policy and to give effect to relevant case law. As noble Lords will therefore appreciate, this has resulted in a legislative framework that has become quite fragmented and complex.

The new 2016 regulations, which are the subject of today’s debate, do not significantly change the Government’s policy and legal position as set out in the 2006 regulations. Their main effect is to revoke and replace the 2006 regulations, consolidating the previous legislation, modernising the language used and simplifying terms, where possible, in line with current drafting practice.

The Government have also taken this opportunity to address issues concerning the practical application of the 2006 regulations and to clarify our approach in key areas such as criminality and the abuse of free movement. These changes are not about restricting the free movement rights of law-abiding EEA nationals and their family members who make a valuable contribution to society but about making sure that we are in the strongest possible position to deal with those who come here and do not abide by the rules.

I totally agree with noble Lords that it is undesirable to have regulations that are broad and open-ended in nature. That is precisely why we have made some of these changes. For example, the 2006 regulations stuck closely to the wording of the free movement directive, simply providing for a person to be expelled from the UK on public policy and public security grounds where their conduct represents a,

“genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

That wording clearly covers a wide range of scenarios and could be criticised as being too broad and overarching, possibly giving rise to a lack of certainty, either for individuals or for the courts, as to what behaviour might meet that threshold.

European Court of Justice case law in this area is clear: member states have a margin of discretion to determine the fundamental interests of their society. Therefore, the 2016 regulations are now significantly clearer by providing further descriptions and examples of matters of public policy and public security, and they provide more detail about what the Home Secretary considers to be in the fundamental interests of the United Kingdom in respect of taking such decisions under these regulations.

The changes clarify that we can take deportation action in a broad range of cases, including against those who abuse their free movement right by facilitating illegal immigration or engaging in immigration abuse—for example, through sham marriage—or those who undermine our public services through tax evasion or benefit fraud. The regulations also make it clear that it is not only high-harm criminality that threatens the fundamental interests of the UK but persistent low-level offending as well.

As noble Lords can see, the new regulations do not significantly change the legal position; rather, they spell out the detailed factors that decision-makers and the courts should take into account when considering whether the deportation of an EEA national is in the fundamental interests of society. The new drafting approach in the 2016 regulations merely sets out a fuller range of circumstances and interests that fall within the term “public policy”. However, this range always fell within the meaning of that term, even under the 2006 regulations, so there has been no extension of the term.

Clearly, there is a very broad and varied array of circumstances in which an individual may pose a threat to public policy concerns, so it is quite impossible to draft in a way that specifically deals with each possibility but still provides comprehensive coverage in a single document that is not excessive in length. To ensure comprehensive cover in a manageable document means it is inevitable that some of the provisions are somewhat broad in nature. Although I am all for improving clarity and providing extra detail, having to describe in legislation every possible circumstance would be neither practically possible nor indeed helpful, given the number of provisions this would need and the changing threats that UK society faces.

The noble Lord, Lord Rosser, queried the sorts of persistent low-level offending that will be aggregated to qualify a person for removal. As is very much the case now, and as is required under both the 2006 and the 2016 regulations, all decisions taken on the grounds of public policy and public security will be made in accordance with the principle of proportionality, will take into consideration the personal circumstances and will be based exclusively on the conduct of the individual concerned. For this reason, there is no prescribed list of offences, nor a threshold for the number of offences which must be committed in order for a decision to be made on the grounds of public policy or public security to combat persistent offending—a matter which is of significant concern to the public.

I note the noble Lord’s concern about the level of scrutiny that Parliament has been able to afford these new regulations. I hope that the reassurances I have given as to the modest evolutionary rather than revolutionary nature of the 2016 regulations will serve to explain why, as was the case with the 2006 regulations and their very many amendments, the Government considered that the negative resolution procedure was the appropriate mechanism. The noble Lord also raised the issue of consultation. We of course consulted other government departments where substantive policy changes were made; for example, implementation of the Upper Tribunal case of Sala, removing a right of appeal from applicants seeking recognition as an extended family member.

I understand the reasonable point made by noble Lords that it would have been helpful if the guidance had been published when we laid the regulations, to assist their scrutiny. We did publish detailed guidance on GOV.UK regarding Regulation 9 when it came into force on 25 November, as the noble Lord, Lord Rosser, said. Detailed guidance on the remainder of the regulations will be published when they come into force on 1 February. However, I am afraid that we are not in a position at this point to provide additional information on the remaining regulations. The noble Lord also mentioned that the guidance on Regulation 9 relating to the genuineness of residence included several redacted sections marked “For Home Office Use Only”. As is usual with redacted sections of guidance, disclosure to the court will be considered on a case-by-case basis in accordance with the relevant procedural requirements or court order.

The noble Lord, Lord Rosser, said that the new, more specific drafting gives rise to concern that a different approach would be adopted across the country due to the terms being somewhat general and non-exhaustive. As I think I have mentioned, the new drafting substantially improves on the drafting of the 2006 regulations, and in the 10 years they have been in effect there has been no complaint about differing geographical application even though, based on the above argument, surely the risk was so much greater given that all this was covered in one sentence in the 2006 regulations but is now covered by many times that number of words.

Schedule 1 seeks to replicate the existing position in the 2006 regulations but in a clearer way by providing extensive language to describe the scope of things such as the fundamental interests of society in relation to public policy.

The noble Lord also asked what the procedure was for acting on these reports and at what level. A parliamentary team will bring the various reports to the attention of relevant units within the Home Office, and the directors of those units are responsible for ensuring that the Secondary Legislation Scrutiny Committee is considered and taken account of at the relevant time and in relation to future practice.

I hope that I have covered all points that noble Lords raised. I am sure that they will intervene if I have not.

[Baroness Hamwee]

My Lords, I shall accept that invitation. This is not a point that I have raised before and I do not expect the Minister to have an instant answer, but I make a plea. I would not have found the guidance had I not seen a reference to the date when it was published. Even then, it took me some time to navigate the GOV.UK website to find it, by which time I did not have very much time to look at it. There seemed to be no cross-reference to the number or title of the regulations, and I think the guidance may well cover more than just these regulations. I really think that that website could do with the uninitiated doing some mystery shopping on it.

[Baroness Williams of Trafford]

I will certainly take that point back because, if the noble Baroness cannot find it, lesser mortals would really struggle.

In conclusion, the Government believe that the changes made in the 2016 regulations do not fundamentally change the legal position set out in the 2006 regulations and that the measures are proportionate. I hope with those words and with my explanation on the noble Lord’s questions, that he will feel free to withdraw his Motion.