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

Baroness Hamwee Excerpts

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

[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.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I fully support Amendment 56, moved by my noble friend Lord Dubs, which would add a new clause to the Bill. This clause would provide for children who are EEA and Swiss nationals and in care, along with those entitled to care-leaving support, to be granted automatic indefinite leave to remain under the EU settlement scheme.

This amendment has wide cross-party support. The idea behind it had support in the other House, and it has that today. Every speaker so far, from different sides of the House, has spoken in support of the amendment. I am sure the Minister has taken that on board and will want to give us a positive response.

As my noble friend Lord Dubs said, there are vast numbers of these children and the amendment would ensure that none of them become undocumented. Identification is a serious problem, as my noble friend outlined. The different practices adopted by different local authorities is a real problem in itself.

The amendment would speed up the process and enable social workers, who do a fantastic job—we all know that they are under extreme pressure—to apply directly to the Home Office without having to deal with consulates and embassies and all the bureaucracy you have in dealing with another country when trying to get the right documents identified. You would avoid all that work, paperwork and bureaucracy, and go straight to the Home Office.

My noble friend Lord Dubs also asked the Minister about the safeguards in place for children who have pre-settled status, and that question deserves a careful response. As the noble Earl, Lord Dundee, said, this is a sensible amendment that really deserves a positive response from the Government.

I agree with all the remarks of the noble Lord, Lord Kerr of Kinlochard, on this amendment. It is the decent thing to do for these children. We are talking about a relatively small number of children, but it would ensure that nobody falls into the trap of becoming undocumented. As the noble Lord, Lord Bruce of Bennachie, said, children in care face all sorts of additional challenges; they are not with their parents and the local authority in effect is looking after them. All this amendment seeks to do is to ensure that they do not have further issues to deal with; a young person leaving care, or in many years’ time, may have the problem of being undocumented and unable to establish their identity properly. This is a very small measure which the Government should give way on.

Like my noble friend Lady Lister of Burtersett, I commend the work of the Children’s Society to identify and raise the plights of these children. The society has campaigned to ensure that they have protection and that their problems are not added to by becoming undocumented. As I say, it is the decent thing to do. Equally, I am sure that we will get a response from the Minister on the amendment, and on the issue in Lesbos.

I should also draw the attention of the House to the fact that I am a vice-president of the Local Government Association. Local authorities do a fantastic job. Certain authorities, particularly Kent, are under particular pressure regarding children’s issues, but they generally do a fantastic job. This is one small measure which the Government could accept to help authorities and make it a bit easier for them in the work that they do. I hope that the Minister can give a positive response to us today, and maybe we can come back to this on Report.

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[Baroness Williams of Trafford (Con)]

My Lords, the noble Lord can probably tell that I have never been a diplomat. However, I take his point in absolutely good faith. It is probably both reputational and our duty to help those in need around the world.

I spoke to the noble Lord about the joint historic migration plan, which confirms our closer co-operation with Greece. I was speaking to the noble Lord, Lord Alton, before we even began this Committee stage, and I think that we all need to get together and work out solutions for upstream work and to help the desperate people in the regions who will never even get to Europe. We need to tackle some of the drivers of the terrible criminality that goes on, which has no intention of helping the most vulnerable people at all.

[Baroness Hamwee (LD) [V]]

I was not sure whether the Minister was talking about money that had been paid to Greece to help, or money that was going to be paid. Clearly, money is needed—I am in no position to think how much that might be—but it is not just about money.

I commend to noble Lords the BBC Radio 4 programme “More or Less” this morning, which objectively dealt with where the UK comes in comparison with other nations in taking refugees and assisting asylum seekers. The tables I have in front of me show that, combining both resettled refugees and asylum seekers, we take less than a quarter of the number taken by Greece and less than 10% of the number taken by Germany. This is not a competition, except a competition to do better. I wanted to put that on the record.

I also want to respond to the points the Minister has just made. The best upstream action is to provide safe and legal routes. She mentioned that in her first response, and I commend her for that. That is where the focus needs to be.

[Baroness Williams of Trafford (Con)]

My Lords, I do not disagree with the noble Baroness, Lady Hamwee: we need to provide safe and legal routes, and through our resettlement schemes we do provide them. We are all in danger of agreeing violently, because we want to help the most vulnerable and we want places like Greece, that need our support, to get it.

The noble Baroness asked whether the money had been paid or would be paid. It has been paid. She will of course remember that, back in the day, we put quite a phenomenal amount of money into helping people in the region who will never get out and who will never make the journey over to Europe.

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Moved by

[Baroness Hamwee]

62: After Clause 4, insert the following new Clause—
“Refugee family reunion
The Secretary of State must make rules under section 3(2) of the Immigration Act 1971 to allow any EEA or Swiss citizen who has exercised a right brought to an end by section 1 and Schedule 1 and who has been recognised as a refugee in the United Kingdom to sponsor their—(a) children under the age of 25 who were either under the age of 18, or unmarried, at the time the person granted asylum left the country of their habitual residence in order to seek asylum;(b) parents; or(c) siblings under the age of 25 who were either under the age of 18, or unmarried, at the time the person granted asylum left the country of their habitual residence in order to seek asylum;to join them in the United Kingdom.”Member’s explanatory statement
This new Clause is intended to probe the need to expand family reunion rules.

[Baroness Hamwee (LD) [V]]

My Lords, Amendment 62 is grouped with Amendments 64 and 79, which I very much support.

On a previous day, we debated Amendment 48, a “Dubs amendment”—the noble Lord, Lord Dubs, is becoming a noun; I hope that he will forgive me for using his name in this way—which was also about refugee family reunion, with a focus on unaccompanied asylum-seeking children. My Amendment 62 is different. The starting point is that someone of any age, including a child, who has refugee status in the UK could sponsor certain family members to join him or her. As with other amendments that we have debated, the issue is very much wider than EEA and Swiss citizens, but I cannot let the Bill go by without making points about this situation, too.

I believe that this is a very modest ask to test the water, as I have done previously and hope to do again if we ever get back to Private Members’ Bills, because I have one on this subject in the pipeline. The amendment would allow a refugee to sponsor his or her

“children under the age of 25 who were either under the age of 18, or unmarried, at the time”

the sponsor left the country. The “unmarried” point is important. One hears alarming stories about the treatment of young women in refugee camps. They have an even more precarious existence than others, as well as precarious experiences on their journey. The amendment would also allow the sponsorship of parents or siblings who came in the categories I have just mentioned.

It is often suggested that families in difficult parts of the world send a son off to try to reach the UK with a view to the family seamlessly following for economic reasons. It is true that children in this situation do sometimes leave with a parent’s agreement, but all too often it is about seeking asylum which is a necessity. This provision would not kick in unless the sponsor was recognised as a refugee. I hope that that reassures noble Lords.

I dare say that someone might argue that such a provision would endanger that sponsor, who might be a child, because of the danger of getting to the UK. As always, the answer is to create safe and legal routes, as this amendment would do for those who are sponsored. It would also help with the recovery and integration of refugees in this country. I hope that it is not necessary to explain to the Committee the importance of families being together. They belong together.

In January of this year, other noble Lords may have received, as I did, emails from a primary school where children had read a book about a boy refugee trying to be reunited with his family. This was as the Government were repealing Section 17 of the 2018 EU withdrawal Act. At the time, I quoted a child who said:

“I thought my country was better than this.”—[Official Report, 15/1/20; col. 755.]


Another child castigated us. He said:

“You’re all leaders. You’re all meant to lead by example, yet you’ve made us feel so ashamed that we are prevented from helping these children. What if you were in their position? You’d want to be brought to safety, wouldn’t you?”


Well, I know the answer to that.

Another child said:

“There’s no war in the UK and if children have family here, they should have the right to go to them. I think it must be very scary to be alone, not speaking the same language as people around you, in a big new country surrounded by new people. These children don’t know what is going to happen to them. Knowing they were able to go to a relation in this country would be a relief for them and we would know we’ve helped.”


Finally by way of example, I will quote a young refugee assisted by the Red Cross:

“I was so little when I left my home and my family. I left but my family unfortunately did not have the chance to leave with me. I wish they were here with me. We’re forced to leave. We leave as children and we still need our parents’ figures in our lives. I worry about my brothers because I know they will be in danger. I worry about my younger sister, who’s 14. I want to get her out of there. It is so important that we are all together again.”


As I said, there are three amendments in this group. The fact that noble Lords from around the House are showing concern for refugees in different situations— and this is not the whole of it—indicates how widely shared the view is that we as a country should be doing more.

I beg to move.

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[Baroness Hamwee (LD) [V]]

My Lords, on the minimum income requirement, what is lawful is still not necessarily the system that many people want, including British citizens who, to their surprise, are affected by the rules. The Minister said that they were clear, but what counts towards assessing whether an income is £18,600 is a problem and has been for some time. It has also been changed from time to time, and the income of the person sponsored does not count. I do not have up-to-date figures, but it puts this arrangement out of reach for about half the wage earners in this country.

However, we are not here to debate the minimum income requirement, so I will go back to the family reunion point—it is all intertwined, of course. My noble friend Lord Bruce said he had been struck by how something that was not a problem can become one. Here, we are seeking to address something that has been a problem for some time and which will become a bigger problem. I am of course aware that Appendix FM and paragraph 319X of the Immigration Rules deal with exceptional circumstances. Sadly, the situations we are debating are not exceptional. To exercise discretion outside of the rules is an unsatisfactory position when we could have rules. The Minister talked about dependents being left alone. More often they are left with a single parent.

The organisations on the ground are concerned about this. This is not something manufactured in my head. It is an issue that we will have to go on pursuing. I thought that the humanitarian case to which the Minister subscribed was undermined at the end by her referring to numbers. Since the numbers are never going to be overwhelming, I would prefer to stick to the humanitarian case. However, I beg leave to withdraw Amendment 62.

Amendment 62 withdrawn.

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[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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Moved by

[Baroness Hamwee]

80: After Clause 4, insert the following new Clause—
“Protections under the European Union (Withdrawal Agreement) Act 2020
At least three months before the commencement of Part 1 for any purpose, the Secretary of State must publish drafts of such statutory instruments as are proposed to be laid under the powers contained in the European Union (Withdrawal Agreement) Act 2020 to protect the rights of EEA citizens and their family members’ rights of residence, entry and exit until 30 June 2021.”Member’s explanatory statement
This amendment aims to clarify the rights that would be available to EEA citizens during the ‘grace period’ under the European Union (Withdrawal Agreement) Act.

[Baroness Hamwee (LD) [V]]

To follow the previous speech, this may be the first time we are taking this particular car round the track but I do not think it will be the last, because this amendment is aiming

“to clarify the rights … available to EEA citizens during the ‘grace period’ under”

the recently published SI. It is about the period to the end of June 2021. I say it aims to clarify the issues but it is more about putting some issues on the table. The Minister will be able to say that the amendment is not necessary because we have already done it. I thank her or possibly him—I am peering at a computer screen—for that and for what I saw being called the “bounty” of the recently published draft SIs. I think that was a reference to their length and complexity.

The instrument in question is the draft citizens’ rights (application deadline and temporary protection) (EU exit) regulations 2020. However, I am afraid that the debate now will not be the end of it. After this debate, as well as before it, stakeholders will be grappling with the detail of it and the other published SIs. I do not regard myself as having the knowledge required to appreciate the significance of the modifications to all the provisions listed across the 14 pages of this instrument.

My first question is about the status of the draft, which has been referred to throughout as an “illustrative draft”. What does illustrative mean? Is this simply because draft statutory instruments have a formal status, while this publication has not reached that status?

Exactly who is protected by the grace period provisions? Is it only those exercising treaty rights by the end of 2020, while, for instance, people who are self-sufficient and without comprehensive sickness insurance—what might better be called in this country private health insurance—are not covered? When the 2020 withdrawal Act was going through Parliament, there were clear assurances that everyone eligible for status via the EU settled status scheme would be protected during the grace period. The Minister will appreciate the importance of the issue: protection is not to be withdrawn from those currently eligible otherwise than through treaty rights who have not applied by the end of the year. In previous debates, I raised the importance of information being not just available but actively provided to those who are affected, in the context of who will be applying after next June. If this SI is to restrict applications, the matter is really very urgent.

The Minister, Kevin Foster, said that the regulations would be

“debated and made in good time prior to their entry into force at the end of the transition period.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 16/6/20; col. 191.]

I am sure noble Lords will understand that what is “in good time” for the Home Office could be very last minute for the individuals affected.

Will the Minister comment on one of the draft illustrative regulations? Regulation 7 in Schedule 1 to the 2016 regulations, which this modifies, acknowledges the discretion of member states

“acting within parameters set by the EU Treaties”

in taking a decision conducive to the public good. This discretion will become:

“acting within parameters set by the law, to define its own standards of public policy and public security, for purposes tailored to its individual context from time to time.”

I will not go down the route of saying that this is quite topical, given both the political and politico-legal debate that is going on, but I am sure the Minister will understand that there is a worry about moving the goalposts.

Will the Minister agree to meet parliamentarians if necessary—I understand there is a similar concern in the Commons—and for officials to be able to meet stakeholders, and the legal experts who are advising them, who are considering this draft and the other draft published at the same time? They are concerned, and they need the time. I ask that knowing that there is the opportunity for the Government to withdraw a published draft and reissue it, but it is always much easier, because of how human beings behave—they do not like to be thought to be backing down, and so on—to have the conversations before the final form is published, when it will be that much more difficult to withdraw.

My amendment provides the opportunity to make those requests for what I am sure could be productive discussions with people who are not in the Chamber at the moment and who will have other points they could usefully make. I beg to move.

[Lord Rosser (Lab)]

We had a short debate on this issue when we debated Amendment 52, and I raised one or two questions about the draft SI, which, as the noble Baroness, Lady Hamwee, said, is called the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. One of the questions I raised, to which I do not think I had an answer, related to Regulation 13, which states:

“Where any question arises as to whether a person is or was lawfully resident in the United Kingdom at a particular point in time … it is for the individual in question to prove that they were”.


I asked in what situation the Government expect that people would have to prove their ongoing status; how they envisage people will do this, in the sense of what documentation they might need, for example; and, crucially, what support there would be for a person who found themselves in this situation and who might well in fact be perfectly lawfully resident in the United Kingdom.

I share the view that the noble Baroness, Lady Hamwee, expressed, that we need an opportunity for discussion of the provisions of the draft SI, and that it is a fairly complex process. At this stage, I have two further questions. First, are there any EEA citizens, and their families, resident in the UK by the end of the transition period whose full existing rights are not going to be protected during the grace period through secondary legislation made under the European Union (Withdrawal Agreement) Act 2020? Secondly, will the Minister spell out precisely whose full existing rights are protected by the draft SI?

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[The Deputy Chairman of Committees (Lord Bates) (Con)]

I have received no requests to speak after the Minister so I call the noble Baroness, Lady Hamwee, to respond to the debate on her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I am grateful for that response. Of course, when one is dealing with something so technical, it is difficult to know whether one has thought of the right questions. I am therefore particularly grateful for the Minister’s offer of a meeting.

The noble Lord, Lord Rosser, mentioned Regulation 13. He asked what support would be given to people who need to prove their position. I marked that and, immediately afterwards, marked the comment at the end of the Explanatory Note that there is no full impact assessment for the instrument

“as no, or no significant, impact on the private, voluntary or public sector is foreseen.”

That made me think of the support that has had to be given to the voluntary sector in particular and the work for others in rolling out and attracting applications for the settled status scheme.

As I said, however, I thank the Minister. I suspect that this is not the end of our discussions on what I hope will not be set in stone until its impact is fully understood by everyone involved and until everyone is satisfied that it is a proper way to approach the matter.

I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

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Sadly, despite our taking back control of our borders and the excellent work of our law enforcement agencies, there will still be good numbers of poor unfortunates trafficked and forced into modern slavery. This amendment asks Her Majesty’s Government only for an assessment of the impact. Perhaps my noble friend might like to consider that William Wilberforce lived for a time in Uxbridge. I am sure that the current MP for that place, my home town, will be keen to ensure that this Government do not ignore the potential for improving the lot of the victims of modern slavery. Let us at least ensure that they will not be forced back to face their traffickers and suffer the same fate again.

[Baroness Hamwee (LD) [V]]

My Lords, one noble Lord said that the Private Member’s Bill from the noble Lord, Lord McColl, is one whose time has come; I think it came quite some while ago.

During the debate on the first amendment today we talked about humanity, and this is a matter of humanity as well. It is about practice as well as law. Some victims will be desperate to get back home, which is a problem for prosecutors. Others will want to stay. Others will need quite a while to sort out what they want to do, and they will need to assess their status. That is only one situation of many and only one example of how immigration and slavery issues coincide.

I do not want to take up the Committee’s time by repeating what so many noble Lords, who have all spent a great deal of time considering modern slavery and doing their very best to fight it in all sorts of ways, have said. The Minister will tell us whether it is necessary, technically and otherwise. I take the view that the problems of slavery should be a consideration across the whole of the legislative front. The 2015 Act needs to be kept under constant review, because as the weeks go by, we learn more about the abhorrent situation and the plight of individuals caught up in it.

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Moved by

[Baroness Hamwee]

82A: After Clause 4, insert the following new Clause—
“Family life
(1) This section applies when a court or tribunal is required to determine whether a decision made under the Immigration Acts in respect of a relevant person—(a) breaches a person’s right to respect for private and family life under Article 8; and(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.(2) In subsection (1) a “relevant person” is—(a) any person who, immediately before the commencement of Schedule 1, was—(i) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;(ii) residing in the United Kingdom in accordance with a right conferred by or under any of the other enactments which is repealed by Schedule 1;(iii) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, or immediately before the commencement of Schedule 1 continued, by virtue of section 4 of the European Union (Withdrawal) Act 2018 to be recognised and available in the United Kingdom; and(b) any other person within the scope of regulations under sections 4(1) and (4).(3) In a case to which this section applies, section 117C of the Nationality, Immigration and Asylum Act 2002 shall be read subject to the following modifications.(4) Section 117C(5) shall be read as if the words “and the effect of C’s deportation on the partner or child would be unduly harsh” were replaced with “and either—(a) the effect of C’s deportation on the partner would be unduly harsh; or(b) it would be unreasonable for the child to leave the UK or to remain in the UK without C.”(5) Section 117C(6) shall be read as if—(a) the word “(“C”)” were inserted after “foreign criminal” and(b) the words “there are very compelling circumstances, over and above those described in Exceptions 1 and 2” were replaced with “either—(i) C has a genuine and subsisting parental relationship with a qualifying child and it would be unreasonable for the child to leave the UK or to remain in the UK without C; or(ii) there are very compelling circumstances, over and above those described in exceptions 1 and 2””Member’s explanatory statement
This new Clause modifies the threshold for deportation of EEA nationals and family members who are parents of “qualifying children” – children who are British or have lived in the UK for 7 years or more.

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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.

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This clause would not apply to all FNOs but only to those residing under EU free movement rights immediately before they were revoked. This would mean applying Section 117C differently to EEA and non-EEA citizens. It is right that, as far as possible, we create parity for all foreign nationals in the UK. Where conduct is committed after the end of the transition period, an EEA citizen protected by the withdrawal agreements or by the UK’s domestic implementation of those agreements will be considered for deportation according to the same rules as non-EEA citizens. I hope that with that explanation, the noble Baroness will be happy to withdraw the amendment.

[Baroness Hamwee (LD) [V]]

The noble Baroness, Lady Bennett, who has certainly done her fair share of work on the Bill, is quite right in saying that this is about correcting discrimination, and I do not think the Minister addressed that point. The noble Lord, Lord Rosser, is also quite right that this is about the impact on children. This is not a hearts and flowers amendment about all criminals.

The Minister said that she would bring the numbers with her for the next debate on these issues. I understand that the Home Office has no numbers on this; I shall be glad if she writes to correct me if I am wrong, but I was told that it had no data.

The amendment comes from the organisation Bail for Immigration Detainees. It sees how Section 117C operates. Frankly, I would not like to have to apply it—and that has been the view of certain courts, which I have quoted. I am not arguing that it is unlawful, but I am saying that Parliament should take this opportunity to reflect on how thinking about our society develops and changes. The courts may say that it is lawful, but some judges have also said that, in their view, it is not necessarily right as judged by other criteria. The Minister said that this would diminish the weight placed on the public interest, but I think that there is a public interest in the impact of laws on children.

This amendment was about—or is about; I have not withdrawn it yet—treating EEA and non-EEA citizens equally. We have heard about the importance of this throughout the four days of this Committee. I am sorry that the Government have now prayed in aid the fact that the clause can be only about EEA and Swiss citizens, rather than accepting that this would level things up and end a discrimination. However, I think I have no alternative at this moment other than to beg leave to withdraw the amendment.

Amendment 82A withdrawn.

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Moved by

[Baroness Hamwee]

86: Clause 5, page 4, line 8, leave out paragraph (b)
Member’s explanatory statement
This amendment is to probe the different purposes that may be required.

[Baroness Hamwee (LD) [V]]

My Lords, I shall speak also to Amendments 87, 88, 89, 90 and 92. These amendments are parallel to amendments debated on day one in Committee, on Clause 4, and some, of course, are exactly the same. As we heard in the last debate, both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee of your Lordships’ House have reported. The chair of the DPRRC, the noble Lord, Lord Blencathra, said that he was “not emollient” whenever it was that we debated Clause 4, and he was right not to be so when dealing with what he called “fundamentally excessive delegated powers”. What I regarded, and regard, as too- wide powers, the Minister then called “clear constraints”. She relied particularly on what the Government have published already: whether it is in its draft, illustrative or final form is irrelevant.

The noble Baroness, Lady Stedman-Scott, also relied on the fact that “we”—the Government—would do and not do certain things, but “we” will not always be the “we” that the noble Baroness is referring to, and others whom we actually know. I am sure that, were she on the other side of the House, she would be pointing out that Governments change and individuals change, and it is in no way impugning her integrity to say that there should be protection against future changes without the proper involvement of Parliament.

Yet again it has just been suggested that a debate, without Parliament having a power to amend something, is adequate: “adequate parliamentary power”. It is not. I must say that I for one got a bit lost on some of the arguments in the last debate. In particular, I did not follow why Amendment 85 was unnecessary. I wonder whether we might have a written explanation of the opposition to it. I could not quite follow whether it was because of what is meant by the term “modify”.

The powers will remain and the Government will have them until the Act is amended or repealed. The latter would cause a lot of confusion. It is not only about the here and now; it is about the short, medium and long-term future.

I refer particularly to Clause 5(3)(d), which is the subject of Amendment 89. That says that the regulation-making power includes power

“to provide for a person to exercise a discretion in dealing with any matter.”

I do not think that is in Clause 4, so I wonder about the significance of the addition and what the discretion could be about. Would it be a discretion to apply a restriction or criteria less robustly? I do not think it could mean to apply it more robustly, but I might be wrong in that. I do not think the latter would be lawful. If the Minister is able to clarify that, it would help.

I had intended to quote from the DPRRC report and to comment on the Constitution Committee report a little. It strongly agreed with the DPRRC’s conclusions, but we have heard a lot from the report, so I do not think I need to do so. However, I follow my noble friend Lady Ludford, who talked about the uncertainty that recent events have caused people who will be affected by the changes being made and the big changes to their lives. I think she said that these things could happen quickly, and they certainly can, which reinforces my point about the importance of not just relying on what certain Ministers say today because it might not be the case tomorrow.

This morning, I had an email from a British citizen living in Spain. She said:

“With the withdrawal agreement, both EU citizens in the UK and UK citizens residing in the EU at last felt we had secured a relatively good, guaranteed level of protection, even if not completely perfect (and certainly not as good as we had with the UK a member of the EU!). However, if the government can tear up the rule book in this way clearly anything can be changed on a whim and nothing is guaranteed, and I fear that our hard-fought rights could be just as easily removed.”


I beg to move.

[Baroness Sherlock (Lab) [V]]

My Lords, I thank the noble Baroness, Lady Hamwee, for raising these issues. I specified my concerns on delegated powers in relation to social security in my speech on the previous group, so I will not repeat them. However, I asked a number of specific questions in that speech, not all of which the Minister managed to answer. Will she commit to respond to each of them in writing before we get to Report?

The Minister has been generous in allowing us access to her officials, who have provided some excellent briefing, but it has taken me two weeks of work to get my head around the interaction of all these sets of powers and the Government’s arguments on the use of delegated powers in relation to the Bill. The Minister will realise that the Committee remains pretty unhappy about this matter, so I encourage her to respond as fully as she can, in writing, both to my points and to those raised by the noble Baroness, Lady Hamwee, and others before we reach Report, so that we can have the best possible debate at that point. I look forward to hearing her reply.

[Baroness Stedman-Scott (Con)]

My Lords, I thank the noble Baronesses, Lady Hamwee and Lady Ludford, for tabling Amendments 86 to 90 and 92. I sincerely apologise for any effort on my part that allowed the noble Baroness, Lady Hamwee, to get lost in my explanation. That was never the intention. I can confirm to all noble Lords that we will write, as requested. I hope it is clear that, as in the run-up to Committee stage, our door is open for further meetings for clarification.

These amendments seek to probe and limit the consequential powers at subsections (3), (4) and (5) of Clause 5, which are intended to provide the flexibility needed to fully implement, across the statute book, policy changes arising from the outcome of negotiations with the EU. In general, the provisions at subsections (3) and (4) provide the Government with the ability to give full effect across the statute book to policy changes arising from the modification of the retained SSC regulations listed at subsection (2), based on the outcome of negotiations with the EU in this area.

The purpose of these powers will be to ensure that there are no inconsistencies or gaps in provision between domestic social security legislation and retained SSC regulations following modification of the regulations at subsection (2). Such inconsistencies could potentially hamper the operation of domestic social security law where there are references to the regulations at subsection (2). Subsection (4) is not a “new power”, as the noble Baroness suggests. Nothing in subsections (3) or (4) enables the Government to do anything that does not arise as a result of changes to the SSC regulations. In particular, changes made under subsection (4) are limited by Clause 5(3)(c).

Wording used in Clause 5(3)(a), (b) and (d), for example, in relation to the use of discretion, as well as making different provision for different categories and purposes, reflects largely common wording in social security and other legislation which ensures that the regulations made under Clause 5(1) can appropriately reflect the different categories and statuses of those affected. I have previously mentioned the withdrawal agreement and the agreement that we have with Ireland on social security. Both are examples of where, for persons in scope of those agreements, we have already made provision for different categories of persons and for different purposes, and may need to do so again under regulations made under Clause 5 through subsection (3).

Subsection (4) simply ensures that any changes directly related to the retained SSC regulations can be fully implemented—for example, where supplementary or transitory provision is required in other legislation arising from the changes to the SSC regulations. The terms used at subsection (3)(c) allow for the making of provisions that arise from the changes to retained SSC regulations and for temporary or time-limited provisions that assist in the implementation of any changes brought about by the outcome of negotiations with the EU, if appropriate. The removal of subsection (4) could result in incomplete or incoherent amendments to domestic legislation or retained EU law not mentioned in subsection (2), potentially affecting the functioning of domestic social security law and a future agreement in this area.

We have shared with the Committee an illustrative draft statutory instrument that would be made under Clause 5. The draft SI includes a section which makes consequential and supplementary amendments of different types and purposes that arise elsewhere in the statute book as a result of the modification of retained SSC regulations. It is important that the Government have the power to make such consequential changes to avoid inconsistencies, gaps and inoperabilities across the statute book.

In my previous comments I gave an example of where the Government could not use this power to stop the export of the state pension. The state pension is payable worldwide under domestic legislation. Therefore, this power could not be used to such effect. With regard to Amendment 90, subsections (5) and (6) simply ensure that there are no unintended interactions between areas of EU law and new policies for those not covered by the withdrawal agreement. We have been very clear that there will be new policies in this area, which will mean that there will be a change in social security co-ordination entitlements for future cohorts of claimants.

These amendments would restrict the Government’s ability to reflect changes and to make appropriate changes across the statute book to ensure the full implementation of any outcome of negotiations with the EU. I think I have confirmed to the noble Baroness, Lady Sherlock, that I will respond to her in writing. To the noble Baroness, Lady Hamwee, on lack of scrutiny, I have set out under the previous group the specific consequences that justify this approach. I say to her also that, on Amendment 89 on the use of discretion, reference to discretion is standard wording in social security legislation and can be found in many Acts of Parliament. On the issue of why Amendment 85 is unnecessary, I will happily write to the noble Baroness, Lady Hamwee.

I hope I have addressed noble Lords’ concerns, and I ask the noble Baroness to withdraw her amendment for the reasons outlined.

[Baroness Hamwee (LD) [V]]

My Lords, it is not the Minister’s fault that I was confused in the previous group. I certainly was not accusing her of anything—it is entirely my own fault.

I am interested to hear that Clause 5(3)(d) is standard in social security legislation. It is not something that I am accustomed to in Home Office legislation—this Bill brings the two together—but I may be wrong in that and might not have noticed it before.

The Government have got themselves into a pretty tight timetable on this. That is why they want scope to make changes. I do not doubt the noble Baroness’s intentions; she sounded very reassuring. But it is not about being reassuring now, it is about what is possible under the very wide powers, as I and other noble Lords have been pointing out. Clearly, at this moment it is appropriate that I should beg leave to withdraw the amendment, so that is what I will do. However, I say to the noble Baroness—and it is no accusation—that I have not been assured. I beg leave to withdraw the amendment.

Amendment 86 withdrawn.

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Moved by

[Baroness Hamwee]

95: Clause 8, page 5, line 34, at end insert—
“( ) The Secretary of State may not appoint a day pursuant to subsection (1) until—(a) the recommendations of the “Windrush Lessons Learned Review” (HC93 published in March 2020) which may affect EEA and Swiss nationals have been implemented in full in respect of such persons;(b) the Secretary of State has laid before Parliament a report on their implementation in respect of such persons; and(c) the report has been debated by both Houses of Parliament.”Member’s explanatory statement
This amendment would prevent the Government from ending free movement until it has implemented in full the recommendations of the Windrush Lessons Learned Review so far as they may affect EEA and Swiss nationals.

[Baroness Hamwee (LD) [V]]

My Lords, Amendment 95 was tabled some time ago. I will not speak for long on this, but I will refer again to the level of anxiety among people affected by the Bill and by other arrangements related to the ending of free movement, exacerbated by the events of the last few days. I have just read out an email I received this morning explaining precisely that.

Windrush has been referred to very often in discussions on the ending of free movement and associated rights, the extent or otherwise of rights following that ending and the risk of things going wrong. I hesitated when I said “Windrush”, because that seems disrespectful. It has become a term for a whole number of people who have been so shockingly affected. That is a pretty neutral term, but I know noble Lords will understand who I am referring to, and they are all individuals. I hope anybody listening to or reading this debate will understand that that is not intended to be disrespectful at all.

The Windrush Lessons Learned Review has particularly relevant recommendations. A lot are about ways of doing things and attitudes. I made a note about a couple of recommendations, 22 and 23, but at this late hour I will not read them out; I suspect other noble Lords are very familiar with the review’s recommendations. To give other noble Lords an opportunity to speak to this amendment, I simply beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I support Amendment 95, to which I was pleased to add my name. Over the course of our four days in Committee, we have heard many warnings of how EEA and Swiss nationals could now become caught in the snare of the hostile/compliant environment. At Second Reading I lamented this fact and that the Bill does nothing to dismantle its institutional architecture, such as the right-to-rent regime.

In light of the Home Secretary’s very welcome announcement that she accepted Wendy Williams’s recommendation of a full review and evaluation of the hostile/compliant environment, I asked the Minister whether she could assure us that that review has the power to question its basic tenets and institutions.

In her subsequent letter to Peers, she responded to the question but without really answering it, saying that the Government are now addressing and implementing the Windrush review findings. Other than acknowledging the significant failings revealed as members of the Windrush generation were unintentionally caught up in measures intended for so-called illegal migrants—I do not believe anyone is illegal—she left us none the wiser as to how deep the evaluation of the hostile/compliant environment would be able to delve.

Likewise, I did not glean much from a Written Question I tabled after Second Reading. This asked about terms of reference, whether the evaluation would be designed in partnership with external experts—as recommended by Wendy Williams—when it was due to be completed and whether the findings would be made public. The Minister’s reply did not answer the questions directly but explained that the evaluation needed to get the balance right between not allowing those without a legal right to be in the country “to exploit the system” and ensuring that the right protections are in place for those whose status should have been assured. Scoping of the work had begun and more information would be available in due course.

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[Baroness Hamwee (LD) [V]]

My Lords, the comprehensive improvement plan is due this month, and the first day of Report on this Bill is the last day of this month. I had made a note, before the Minister said it, that Wendy Williams herself talked about the importance of not rushing the change, but I think we can look forward to the review before—albeit immediately before—we start on Report. I accept of course that changing a culture, like redirecting an oil tanker, is a long process. Indeed, changing culture is something that should go on and on; it is necessary that it should always be a current issue.

The noble Baroness, Lady Sherlock, talked about the importance of not getting the policy wrong; it is about both policy and practice. The obvious read-across from the experience of the Windrush generation is indeed the documentation, as my noble friend mentioned. Recommendations are good, but they will only be evidenced by actions. As the Minister has just acknowledged, the lessons learned from the unhappy experience of Windrush are transferrable. “Fairness” and “humanity”, she said; those are very good last words for today—they are very good words for always. On that note, I beg leave to withdraw the amendment.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

My Lords, before we proceed to that point, I have a request to speak from the noble Baroness, Lady Lister of Burtersett.